1984 PLP 202 (MLD)

Wajihuddin Ahmed for Respondent No.2. Abdul Naseer Khan for Respondent No.3. Dates of hearing: 14th and 15th February, 1984. The petitioner has challenged the order passed by the respondents Nos.1 & 2 whereby the respondent No.3 has been permitted to occupy a portion of the courtyard. The Properties bearing Plots No. R.C.12/37, 12/37A and 12/37B, situated in Ranchore Quarter, Karachi, were treated as evacuee properties and acquired in the Compensation Pool. It has been stated by the Petitioner that plot No. RC.12/37 is independent from plot No. 12/37B and separated by Teja Street. The property on Plot No.RC 12/37A consists of a double storeyed building having three tenement on the ground floor numbered as G/1, G/2 and G/3 in the records of the Custodian Evacuee Property. The tenement bearing No. G/1 and G/2 were transferred to the petitioner under a PTO dated 10-5-1960 followed by an approved plan demarcating the said tenement and finally a PTD was issued on 8-6-1965 and the petitioner accordingly got his name mutated in the records of rights and the relevant records of various authorities. After PTO was issued in favour of the petitioner he filed proceedings under section 29 of the Displaced Persons (Rehab. & Comp.) Act, 1958 against Meirajuddin and others for their ejectment by the Deputy Settlement Commissioner who by his order, dated 30th April, 1962 rejected it and the petitioner filed an appeal before the Additional Settlement Commissioner. In those proceedings Meirajuddin and others took the stand that Property R.C.12/37A was Evacuee Trust Property. Notice was sent to the Trust Board which was represented by a counsel before the Additional Settlement Commissioner, who by his order dated 4-6-1963 held that property No. 12/37 being a trust property is separated by Teja Street, and has no concern with Plot No.R.C.12/37A and consequently accepted the appeal and directed the lower Court to proceed with the application under section 29 filed by the petitioner. The petitioner, however, served a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act and on refusal of Meirajuddin the petitioner filed an ejectment application before the Controller. In these proceedings the Controller directed Meirajuddin to deposit arrears of rent amounting to 85.4,400 before 15-4-1975. As Meirajuddin defaulted in payment of rent application for striking off the defence was filed which was granted on 2-8-1975 and Meirajuddin was directed to handover possession by 30th August, 1975. It is pleaded that during the pendency of the proceedings before the Controller the Respondent No.3 stored some planks with Merajuddin in the courtyard and approached the Deputy Administrator the respondent No.2 for regularisation of his possession in respect of property No. R.C.12/37 without disclosing that the disputed portion was part and parcel of 12/37A, nor it was disclosed that the disputed portion was transferred to the petitioner. An ex parte order was obtained from the respondent No.2 on 6-2-1975 whereby the occupation of portion of R.C.12/37 was regularised and rent was proposed to be charged. The respondent No.3 thereafter stated collecting material with object to raise unauthorised construction in the courtyard. The petitioner filed an appeal before the Administrator Evacuee Property, Trust Board, Karachi. The Administrator, Evacuee Trust Property Board considering the confused state of facts inspected the site and by order dated, 14-4-1975 held that the respondent No.3 was not in possession as claimed by him and set aside the order of the Deputy Administrator, dated 6-2-1975. He also directed the Respondent No.2 to seek determination of the status of property as evacuee trust property. The respondent No.3 filed an appeal before the respondent No.1 which according to tile petitioner was not a Trust Property and the action could be taken as PTD had been issued to the petitioner. The petitioner challenged tile jurisdiction of the respondent No.1. However the respondent No.1 on the basis of possession of the father of the respondent No.3 on the roof of G/3 of R.C.12/37A allowed him to be entitled to use a portion in the courtyard for earning his livelihood. Against this order a Revision was filed before the Joint Secretary who held that as the status of the property had not been determined he had no jurisdiction in the matter. The respondent No.1 was again approached by the petitioner and by order, dated 15-2-1977 he refused to withdraw or cancel his previous order, dated 25-5-1976. The petitioner has therefore, challenged these orders in this petition. Petition No.56/82 has been filed by Bashir Ahmed who is respondent No.3 in Petition 59/77. He has pleaded that he and his late father were residing in a portion of the first floor of property No.RC12/37A bearing No.l/1 and he is carrying on business in a portion of the property on the ground floor facing the main road for the last 30 years. It has been pleaded that these properties were trust properties, and could not be transferred by the Settlement Department, nor could be taken in compensation and Rehabilitation Pool. It is further pleaded that his father was occupying portion of plot No.R.C.12/37 A and has applied for transfer of property, but as it was evacuee trust property application was not entertained. It is further stated that his possession was regularised on 6-2-1976, but Abdul Baqi predecessor of Abdul Hadi Khan respondent No.3 (petitioner in Petition No. 59/77) filed an appeal which was allowed. Thereafter an appeal was filed which was allowed in favour of Bashir. It has been pleaded that PTO has been illegally obtained by late Abdul Baqi Khan. On the application of tile Deputy Administrator Evacuee Property respondent No.2 the Chairman Evacuee Trust Property decided the matter by order dated 29-1-1978 holding that R.C.12/37A was evacuee trust property and declared it to be evacuee trust property under section 8 of Act XIII of 1975. Bashir has also challenged that the P T D and site plan issued in favour of Abdul Baqi is illegal and void. It has been further prayed that orders dated 29-1-78 and 27-11-1978 are illegal and erroneous. The admitted position seems to be that both the parties now agree that the property is an evacuee trust property. There is no dispute on this point, and therefore, all objections in that regard raised by the petitioner in Petition No. 59/77 are of no consequence. As regards Petition No.56/82 the learned counsel for Abdul Baqi has contended that Bashir has no locus standi as he is not a transferee of any portion of the property, and the order dated 6-2-1975 was set aside by the Administrator and the respondent No.1 also has not regularised his possession, nor there was any order by the Chairman in his favour and hence it is stated that the order passed by the respondent No.1 was merely on a compassionate grounds and has no legal basis. From the statement of fact and the history of litgation it is plain that now the only dispute remains in respect of the portion of courtyard occupied by respondent No.3 Beshir. He has not made any claim of any nature whatsoever on the property transferred to the petitioner. Throughout the entire litigation he has resisted the claim of the petitioner in respect of a portion of courtyard occupied by him. In these circumstances, I do not find much force in the contention of the learned counsel for the respondent No.3 that Bashir is entitled to seek relief for the cancellation of P T D and other title documents issued to the petitioner by the Settlement Authorities. Now coming to the disputed land in the courtyard there seems to be conflicting claims. Bashir has stated that his father was residing on the first floor and that he had been occupying the land for the last 30 years. He has also stated that he had applied for its transfer, but in fact no document of any nature was produced whatsoever at any stage and the only finding in his favour given by the respondent No.l is that he is occupying a very small corner portion of the courtyard for carrying on his business. The respondent No.2 before whom the matter was proceeding had inspected the site and even considered the rival claims as the possession of Bashir had been regularised ex parte. He had come to the conclusion that the two properties 12/37 and 12/37A were two distinct and different properties. He had also noted that the record was silent about the possession of the respondent No.l on the disputed portion of the courtyard. Bashir (Respondent No.3) only resided with his father on the first floor and therefore, it was held that the respondent No.3 does not have any locus standi. The respondent No.l, however summarized the situation in the following manner:

"It has been established that tenements G/1 and G/2 have been transferred to Mr. Abdul Baqi Khan or it may be said that Mr.Abdul Baqi is the occupant of the said two tenement in property No.12/37A. Mr.Irshad Hussain is the occupant of tenement No.G/3 in tile same building. There is more than one family residing on the first floor of this property and among them Mr.Allah Bakhsh, the petitioner's father. The existence of this tenant in the building is proved by the record and the fact that he has paid rent for several years. Photographs have been placed on record confirming that ramshackle structures have been set by people who live on the first floor. The fact remains that there are people who do live there. The entrance to the house is through tile courtyard where Mr. Muhammad Bashir occupies a small corner, and through the front verandah where the stairs to the ground floor are located. The courtyard has therefore to be considered a place for the common use of all those who live in the building, Mr. Muhammad Bashir therefore as one of the occupants has the right to use the courtyard as much as the other tenant, Mr Abdul Baqi Khan, of his tenancy is disputed, his father's occupation of a part of the main building has been established. Though Mr.Bashir has filed affidavits of local occupants to support his tenancy his claim to use the courtyard for work is supported by his father's presence in the building.. This occupation and use of this portion by Mr. Bashir is subject to the bye laws of the Karachi Municipal Corporation. But there is hardly any justification, under the circumstances of the case to prevent him from using the small nook in the courtyard for earning his living. The appeal is therefore disposed of accordingly." The main ground for granting permission to Bashir to use the courtyard for business purposes seems to be that his father was occupying a tenement on the first floor. In fact it was a thachet on the roof of G/3 and therefore, it was observed that every party who has been residing is entitled to a right to use the courtyard. The report proceeded further that the respondent No.3 should be allowed to continue to earn his livelihood. The order seems to be completely contradictory inasmuch as the only right if at all conferred on Bashir, the respondent No.3, by virtue of his father's possession of a tenament on the first floor in which he is alleged to reside, is that he can use the courtyard like other' allottees and transferees residing in different tenements. The permission to use the portion of courtyard to carry on business does not seem to have any legal justification. In the second order dated 15-2-1977 the respondent No.1 has proceeded on completely different grounds relating to the declaration of the status of property. In view of these facts the order, dated 25-5-1976 granting respondent No.3 Mohammad Bashir a right to occupy and carry on business in a portion of the courtyard was passed without lawful Authority. To that extent the Petition No.59/77 is allowed and the Petition No.56/82 is dismissed, with no order as to cost. M.A.K Order accordingly.