1989 PLP 506 (MLD)

The above two revisions ‑are directed against the judgments/decrees dated 24‑5‑1975 and 14‑10‑1978 passed by the learned Xth Civil Judge Karachi and learned Vth Additional District Judge, Karachi respectively in Suit No‑2409 of 1979 and Civil Appeals Nos.124 of 1975 and 135 of 1975.

2. The brief facts leading to the filing of the above revisions are that the applicant in Revision No. 158 of 1979 issued a notice dated 16‑11‑1970 under section 83 of the Municipal Administration Ordinance, 1960 (hereinafter referred to as the Ordinance), alleging therein that respondent No. 4 had unauthorisedly occupied the KMC land. She was directed to remove the encroachment. Respondent No. 1 filed the aforesaid suit for declaration and permanent injunction, on the basis of the averments that she had purchased the land with construction thereon from Syed Aftab Ahmed. It appears that Shabbir Ahmed the applicant in Revision Petition No. 42 of 1979 had become a party to the above suit upon filing of an application under Order I, Rule 10, C.P.C. by an order dated 23‑2‑1974. The allegation of Shabbir Ahmed was that respondent No. 1's husband Syed Riaz Ali was the tenant of Shop No. 10 in his market, namely, Laiq Cloth Market since February, 1961; and that he filed Rent Case No. 42 of 1966 for ejectment and got the ejectment order in his favour. The matter was contested upto the Supreme Court level by Syed Riaz Ali but the above ejectment order was maintained. It was the case of Shabbir Ahmed that respondent No. 1; husband unauthorisedly constructed shops in front of his market and thereby affected the view of the market and the access of the market.

3. The K.M.C. resisted the above suit and it was pleaded in the written statement that the encroachment was of a portion of the road.

4. The learned Civil Judge on the basis of the pleadings of the partie framed six issues. The plaintiff examined her huband Syed Riaz Ali as the attorney, K.M.C. examined Mirza Mohsin Ali, the surveyor, whereas Shabbi Ahmed examined himself and two of his tenants Mushtaq Ahmed and Syed Muhammad Kawas. After hearing the parties, the learned Civil Judge decree the above suit in favour of respondent No.

1. Shabbir Ahmed filed Civil Appeal No. 124 of 1975 whereas the K.M.C. filed Civil Appeal No. 135 of 1975. Both the above appeals were decided by the above common judgment dated 14‑10‑1978 whereby the judgments/decrees of the learned trial Court was maintained.

5. As observed hereinabove Shabbir Ahmed filed Revision Petition No. 4 of 1979 whereas K.M.C. filed Revision Petition No. 159 of 1979 against the above two judgments/decrees.

6. In support of the Revision Petition No. 159 of 1979 Mr. Muslim Naqvi, learned counsel for the K.M.C. has urged that the finding of the two Courts that respondent No. 1 was the owner of the land is contrary to the evidence on record inasmuch as the sale agreement under which the respondent No. 1 had allegedly purchased land and the structure thereon (Ext. P/9) itself speaks that the land did not belong to the vendor. He has further submitted that there was sufficient evidence on record to conclude that respondent No. 1 had occupied the portion of the road. Mr. Abdul Rahim Kazi, learned counsel appearing for Shabbir Ahmed in the other Revision Petition has adopted the arguments of Mr. Muslim Naqvi.

7. On the other hand, Mr. S. Ishtiaq Ali, learned counsel for respondent No. 1 has submitted that the fording on the question of title of the land is not conclusive as the only point in issue before the two Courts below was the question of legality of the impugned notice. He has further submitted that the finding on the question of notice that it is illegal, is in accordance with law as admittedly even the notice under section 83 of the Ordinance speaks of the land and not of the road.

8. Adverting to the first submission of the learned counsel for the parties, I may observe that I have gone through the Ext. P/9 and the other documents on record including the alleged photostat copy of the identity card and the allotment order allegedly allotting a piece of land measuring 16 x 10 feet. Mr. Muslim Naqvi has urged that if in fact the allotment m favour of Syed Aftab Ahmed would have been in existence, he would have mentioned in the sale agreement the factum that the purchaser could obtain the land and he would assist in that behalf. The photostat copy has‑not been lawfully proved. Syed Aftab Ahmed was not examined in order to explain the reason as to why the original allotment was not available nor anybody was summoned from the office of the Rehabilitation Department. I am, therefore, of the view that the finding on the question of the title to the land is contrary to the evidence on record and therefore, the same is reversed. The above agreement Ext. P/9 establishes that respondent No. 1 had purchased the construction on the land, of which he also obtained the possession,

9. As regards the legality of the notice I am inclined to hold that since in the impugned notice the K.M.C. had not alleged that respondent No. 1 had occupied a portion of the road but it was stated that she had occupied a portion of the K.M.C's. land and as the K.M.C. had not produced the layout plan of the road indicating the total length of the road and total width of the road. I am not unable to record a finding in favour of the K.M.C. A notice under section 83(2) of the Ordinance could have been served, if respondent No. 1 would have been encroached upon the road or a street which factum has not been proved as held by me. I would, therefore, maintain the finding of the two Courts below that the notice is illegal. However, this will not prevent the K.M.C. from initiating fresh proceedings m accordance with law. The above revision petition stands disposed of in the above terms with no order as to costs. H.B.T./S‑337/K?????????????????????????????????????????????????????????????????????????????????? Order accordingly.