1989 PLP 1221 (CLC)

Abdul Rahim Kazi A.A.‑G. for Appellants. A . H . Mirza for Respondents. Date of hearing: 16th August, 1988. _ AJMAL MIAN, J.‑‑This appeal is directed against the judgment and decree dated 11‑4‑1985, passed by a learned Single Judge of this Court in Suit No.424/1972, decreeing the Suit of the respondents for a sum of Rs.1,03,059 with interest 9$ per annum from the date of filing of the suit till the realisation.

2. The brief facts leading to the filing of the above appeal are, that the Settlement Department had put to auction Mohatta Building situated on McLeod Road, bearing survey number SR‑2/11‑2/1. The respondents were successful bidders for a sum of Rs.6,05,

000. The respondents bid was accepted by the Deputy Settlement and Rehabilitation Commissioner (Judicial), Karachi vide letter September, 1959, Exh.6/1. The above letter was followed by a letter dated 3rd November, 1959, wherein it was stated, that the aforesaid building contains an area of 1,677 sq. yards in respect of which a sketch was also enclosed. After that a PTO was issued on 5th September, 1959. In the schedule to the PTO, the property was described as follows: SCHEDULE OF THE PROPERTY Big mansion situated on Plot No. known as Mohatta Building MecLeod Road, Wood St., Karachi (DS No.III‑C‑25) Admeasuring 1,158 sq. yds. Karachi. Area of plot. 872.6 sq. yds. SR.2/11/2‑1 285.6 sq. yds. SR.2/11/2‑2 ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ 1158 sq. yds. Sd/‑ Illegible The above PTO was followed by FTO in which also the above schedule was reproduced.

3. It appears, that prior to the issuance of the above PTO, it was discovered that 518 sq. yds. had been transferred to the Post and Telegraph Department by the Settlement Department, and, therefore, the Price of the above property was reduced from Rs.6,05,000 to Rs.4,18,013 on the 'assumption that the area of the above property was 1,677 sq. yds. After issuance of the above PTO and FTO the mutation in the record of rights in favour of the respondents was effected. However, subsequently mutation in relation to survey No.2/11‑2/2 for an area of 285 sq. yds was deleted. After that the respondents filed the aforesaid suit in which in the alternate the amount for the reduced area of 285 sq. yds. was claimed on the basis of which the price was reduced on account of reduction of an area of 518 sq. yds.

4. The above suit was resisted by the appellants. The learned Single Judge adopted by consent of the parties as many as 16 issues. The respondents in support of the ,case examined their attorney, whereas the present appellant did not examine any witness but defendant No.5 examined one witness. The learned Single Judge after hearing the learned counsel for the parties decreed the suit in the above terms. The appellants being aggrieved by the above judgment and decree have filed the present appeal.

5. We have heard the learned counsel for the parties, and we find, that the basic question in the instant case is, as to whether at the time when the above building was put to auction the respondents were informed either through public notice or otherwise that the area of the plot on which the building existed was 1,677 sq. yds. The letter Exh.6/2 in which the above area is mentioned is of a subsequent date and not of a date prior to the auction. By consent of the learned counsel for the parties the case is remanded to a learned Single Judge. The parties shall lead evidence on the aforesaid question and that it will be open to the respondents to substitute or to add the Government of Pakistan or Government of Sind as parties to the suit as the appellants were sued through their official designations. The appeal stands disposed of in the above terms with no orders as to costs. Case remanded. M.Y.H.ID‑42/K