2005 PLP 520 (CLC)

This inspection report of Mukhtiarkar/City Survey Officer was challenged by the learned counsel for the defendant on the ground that at the time of inspection the Commissioner did not invite any representative of the defendant and thus, being in the nature of ex parte is not sustainable in law. Accordingly, this Court on 15‑1‑1995 appointed Deputy Registrar (Judicial) of this Court to inspect the suit property. He has also filed his report dated 22‑8‑1995. The learned Deputy Registrar has conducted a detailed survey of the land and has also collected documentary evidence from both the parties. The conclusion drawn in the said report by the Deputy Registrar is as under:‑‑ "A perusal of the above Deh Map (Exh.A/3) very clearly shows that the land allotted to the plaintiff measuring 4.20 acres shown in Yellow colour is far away at a distinct position from the land measuring 640.55 acres allotted to the defendant shown in Purple colour. Thus, according to the Deh Map (Exh.A/3) both the lands allotted to the plaintiff measuring 4.20 acres and to the defendant measuring 640.55 acres are situated on separate locations. As regards the conditions/possession of the disputed land measuring 4.20 acres it was observed that the land was full of pits and shrubs ''here and there. The ground was not levelled and it appeared that no development work was carried out on the land. Keeping in view the demolished boundary wall and remains of the Chowkidars rooms it appeared that physically the disputed land had remained in possession of the plaintiff." Mr. Raja Muhammad Irshad, Advocate for defendant has vehemently objected on the report of Deputy Registrar (Judicial) on the grounds that the learned Commissioner had acted under the wrong advice of Tapedar from the office of the Deputy Commissioner and that the letter dated 14‑9‑1977 as well as lease agreement, dated 16‑12‑1979 was not considered by the Commissioner. It is further objected that the Commissioner/Deputy Registrar has solely relied upon the statement of the plaintiff and did not consider the documents and other facts brought on record by the defendant's representatives. It was also argued by Mr. Raja Muhammad Irshad that this is a case of double allotment and in this connection, he has shown me a photocopy of letter dated 4‑7‑1995 issued by the Deputy Commissioner Karachi East wherein a detailed report about the double allotment and unauthorized allotments were conveyed to the member (Land Utilization) Board of Revenue, Karachi. I have gone through the contents of this letter and I am of the view that in absence of any supporting application or affidavit arid without giving an opportunity to the plaintiff to rebut/controvert the same, contents of such letter cannot be accepted in a manner as proposed by the learned counsel for the defendant‑ However, the defendant shall be entitled to place all these documents on record through appropriate application, if so advised. For the purpose of obtaining an interim injunction it is settled law that the plaintiff is required to show a prima facie case as well as has to show that in case the relief as prayed is not granted he shall suffer irreparable loss and injury and that the balance of convenience is in his, favour. After going through the documents filed with the plaint and after, considering the two survey reports of the Commissioners as well as the respective submissions of both the learned counsel, I am of the tentative view that the plaintiff has made out a prima facie case for grant or injunction and that the balance of convenience as well as question on suffering irreparable loss and injury are also in favour of the plaintiff. However, this application cannot be granted as prayed since according to both the reports of the Commissioners the boundary wall constructed by the plaintiff was seen to have been demolished and only debaris anti other wild bushes were found on the disputed land which indicates that at the time of hearing none of the parties was in actual physical possession of the suit‑land. However, I am of the considered view that in order to keep the suit‑land protected from alienation some terms should be imposed on both the parties. Therefore, I grant this application in the following manner:‑‑ (i) The defendant is restrained from disposing of in any manner or alienating or creating any lien or third party interest on the suit property. (ii) The plaintiff is also restrained from disposing of in any manner or from creating any third party interest in property till disposal of the suit. (iii) Since short question, as suggested by Mr. Raja Muhammad Irshad, is involved in this suit, I direct that this suit be treated as short cause case. (iv) It is directed that the office may fix this case at an early date for framing of issues. (v) It is earnestly desired, if acceptable to the parties, that evidence may be recorded through a Commissioner so to shorten the duration of litigation. C.M.A. No. 1203 of 1993 stands disposed of. (4) By consent this application is granted. Let the fee of the Commissioner be paid to him. (5) The amendment proposed by the plaintiff, as it appears, will neither change the character or nature of the suit nor amounts to introducing any fresh cause .of action. I am also of the view that no prejudice will be caused to the defendant if such amendment is allowed. Subject to all just exceptions, this application is granted. Plaintiff is directed to file amended plaint within two weeks and to supply the copies to the defendant: M.B.A./N‑50/K Order accordingly.