1997 PLP 2304 (MLD)

Muhammad Yaseen Kiyani for Defendant No. l Muhammad Ali Saeed for Defendant No.

1. Aziz Malik for Defendants Nos.2 and

3. In this suit for declaration, possession permanent injunction and alternatively for damages to the tune of Rs.5 crores with indexation and mark‑up till payment, plaintiff by this civil miscellaneous application seeks an order against defendants Nos.2 and 3 restraining them from carrying on construction on the plot in suit, altering its structure or entertaining any booking thereon in any manner, transferring or creating third party interest or parting with possession thereof till the decision of the suit. Dispute between the parties relates to Plot No.27‑A, Clifton Quarters measuring 5042 sq. yards which according to the plaintiff was originally in occupation of Abdul Hameed Kazmi s/o Muneeruddin. It is his case that he acquired possessory rights of occupation from said Abdul Hameed Kazmi on 22‑8‑1977 for valuable consideration and by reason of his continuous possession since then was making representations and issuing notices to defendant No. l i.e. Karachi Metropolitan Corporation for regularisation of his possession by grant of lease in his favour. According to the plaint in or about October, 1995 defendants Nos.2 and 3 through some hired persons attempted to disturb his possession by use of force but they could not dispossess him. According to the plaintiff instead of instituting criminal proceedings against the said defendants he issued a legal notice dated 28‑12‑1995 to defendant No. l calling upon it to grant lease in respect of the plot in his possession who agreed to grant the lease by their letter Annexure 'A' to the plaint subject to payment of Rs.17,51,377 ‑ within 10 days.

3. It is further the case of the plaintiff that on receipt of Rs.17,51,377 through bank challan defendant No.1 executed a registered lease deed in his favour through its Assistant Director on 4th March, 1996. He has maintained that he raised some temporary structure on the plot in suit and was prepared to raise further construction and develop the plan it should be plot commercially when on 7‑3‑1996 defendants Nos.2 and 3 again attempted to dispossess him which attempt was thwarted. On 10‑3‑1996 he filed a suit far injunction against defendants Nos.2 and 3 and obtained a status quo order from the Court Vth Senior Civil Judge, Karachi‑South. It may be observed that suit, in fact, was filed against Abdul Sattar, father of defendants Nos.2 and 3, with wrong address and Station House Officer Clifton, Karachi. It is the grievance of the plaintiff that defendants Nos.2 and 3 in order to illegally and unauthorisedly lay claim on the Plot in suit against him filed Suit No.203 of 1996 against him and others in this Court on 17‑3‑1996 and obtained ex parte status quo order. Without mentioning the precise date he states that he was forcibly dispossessed by these defendants through their agents before filing the suit and started construction under the cover of status quo order. It is further asserted that in order to obtain status quo order without any resistance in the aforesaid suit service on him was manipulated and the plaintiff misled this Court into believing that notices were repeatedly served upon him. While claiming that he has obtained lease for 99 years from defendant No. l for valuable consideration and that title to the plot in suit has passed on to him by virtue of a registered document he maintained that defendant No.1 in their written statement in Suit No.203 of 1996 on the one hand denied the authenticity of the lease deed in his favour and on the other hand denied having given any authority to the officer concerned who executed the lease deed in his favour. Cause of action, as stated, arose to the plaintiff when defendants Nos.2 and 3 dispossessed him from the plot and being in illegal occupation thereof started carrying out unauthorized construction thereon. It further arose against defendant No. l who denied the execution of the lease deed in his favour which is mala fide and coupled with dangerous consequences. In the suit plaintiff prayed for a declaration of title to the plot in the suit in his favour, validity of lease and entitlement to possession and alternatively decree for damages to the tune of Rs.5 crores with indexation and mark‑up till payment. He has also prayed for permanent injunction against defendants Nos.2 and 3 restraining them for carrying on any construction on the plot in suit, altering its structure, entertaining any booking in any manner and from transferring or creating third party interest and parting with possession in favour of someone else. It may further be pointed out that the suit has been filed through Haji Anwar, claiming to be attorney for the plaintiff who has verified and signed the plaint on his behalf.

4. In the counter‑affidavit defendants Nos.1 and 2 filed by their attorney and brother Muhammad Usman, all material allegations have been denied. It is said that the attorney of the plaintiff has not mentioned his address in his affidavit and that he does not reside at the address shown in the plaint and General Power of Attorney and in fact he resides at OT‑1/3, Haleema Mansion. It is denied that the plaintiff ever acquired possessory rights/occupation of 5042 sq. yards in Plot No.27‑A, Clifton Quarters, Karachi which is purely imaginary and such plot with the size and description shown in the sketch annexed to the lease deed does not exist in survey sheet and the record of rights maintained in the Office of City Deputy Collector, Karachi‑South or in the record of K.M.C. and the K.D.A. With regard to the registered lease deed it is said that it is a fake and a bogus document while the public notice in an undisclosed paper pertained to a non‑existing Plot No.27‑A. While denying any attempt to dispossess the plaintiff, defendants claim to be fully possessed of their own property and produced a certified sketch from the City Survey Office of Deputy Commissioner, South. Suit No.217 of 1996, describing it as a frivolous suit in the Court of Vth Senior Civil Judge was allowed to be dismissed for default as the plaintiff intentionally remained absent knowing fully well the fate of his suit. Grant of lease by defendant No. l in favour of the plaintiff is denied and a copy of the written‑statement filed by defendant No. l in Suit No.203 of 1996 alongwith certified copy of the affidavit of Assistant Director, K.M.C. filed with a further averment that defendant No. l themselves did not have any title over the land claimed by the plaintiff.

5. An affidavit‑in‑rejoinder was filed by attorney of the plaintiff reiterating the contents of the plaint and controverting the case set up by the contesting defendants.

6. I have heard the learned counsel for the parties at quite some length and gone through the material placed on record. At the outset it may be made clear that defendants Nos.2 and 3 in the suit filed by them against K.M.C., Directorate of Katchi Abadi, Assistant Director K.M.C. and the present plaintiff have made out a case of ownership and title to the plot in suit measuring 7883 sq. yards. They are stated to be in possession thereof by virtue of a registered conveyance deed dated 11‑1‑1979 in favour of their father Abdul. Sattar and subsequent gift thereof by him and by his wife in favour of their‑two daughters namely defendants Nos.2 and

3. They have pleaded that they are raising construction after obtaining approval of building plan from Karachi Building Control Authority and after obtaining N.O.C. from Karachi Water and Sewerage Board, Sui Southern Gas Company Limited, Karachi Electric Supply Corporation and other agencies after payment of huge fees to them. Copies of the documents and pleadings in the suit filed by them have been filed in this suit to substantiate their assertions and the defence set up by them.

7. In order to succeed in this civil miscellaneous application the plaintiff in the first instance is required to adduce prima facie evidence of his continuous possession of the plot in suit in a Katchi Abadi prior to 23‑3‑1985 so that his occupation could be legally regularized as Katchi Abadi by the Authority established under the provisions of the Sindh Katchi Abadis Act, 1987. Besides he has to assert and establish that the relevant Authority under the said Act had declared the area in his occupation as Katchi Abadi. Not a single document to this effect has been placed on record while a copy of the lease deed prima facie tending to show that it was a lease for plot by regularisation of unauthorised possession is said to have been executed by an officer not authorised by K.M.C. In the suit filed by defendants Nos.2 and 3 they have prayed for cancellation of lease deed in favour of the plaintiff as obtained by fraud and misrepresentation. In the face of the stand taken by the contesting‑defendants and the position taken by K.M.C. in the connected suit it can hardly be said that the plaintiff was ever in occupation of the plot in suit. Apparently, he has not been able to establish his prima facie position over the plot in suit before the filing of the suit much less since 1977 as wrongly alleged. In a situation in which the plaintiff is unable to make out a case of marketable title and right to the property in the suit and his possession thereof before knocking the door of the Court it is highly difficult to subscribe to the view that he is entitled to the protection of his rights or that he has made out a strong prima facie case for the grant of discretionary and equitable relief of injunction.

8. Needless to observe that the balance of convenience would lie in favour of the contesting defendants Nos.2 and 3 who shall suffer irreparable injury in the event of grant of injunction rather than the plaintiff who has alternatively claimed damages worth Rs.5 crores with indexation and mark‑up thereon. Should the plaintiff ultimately succeed in suit he might be adequately compensated for the loss if any incurred by him.

9. Learned counsel for the plaintiff has relied upon the Majlis‑i‑Intizamia Jamia Masjid Ghulam Muhammad Abad Colony, Lyallpur v. The Secretary to Government of West Pakistan, Communication and Works Department, Lahore PLD 1975 SC 355 and Muhammad Aref Effendi v. Egypt Airline 1980 SCMR 588 in support of his contentions but both the cases are of no avail to him in the peculiar facts of this case.

10. For these reasons there is no merit in the injunction application which must fail and is hereby dismissed. A.A./M‑142/K???????????????????????????????????????????????????????????????????????? Application dismissed.