P L D 2003 Karachi 222 (PLP)

(G) Directing the defendants and each of them to resist and restrain from interfering into the possession and enjoyment of land by the plaintiff in respect of the entire land measuring 14 acres, situate in Mussa Ghado Goth, Deh Khari Laki, Tappo Manghopir, District Karachi Central. (H) Permanently restraining the defendants Nos. l and 2 from making any forward sale of shop or flat or booking any cottage in the project known as Central Avenue or Central Luxury Cottages on the portion of land measuring 4 acres and 20 Ghuntas or accepting booking on pretext of providing shop, flat or cottage in the project on the suit land. (I) Granting permanent injunction restraining defendants and each of them froth dealing with the suit land or any part or portion thereof in any manner till the final settlement of disputes. (J) Any other further or better relief which this Honourable Court may deem fit and proper in the circumstances of the case. (K) Cost of the suit."

3. The appellants claimed their title to the suit land through one Moosa Gado. It is claimed that the suit land was unsurveyed private land and was part of the holding of Moosa Gado after whom the village was named. After his death the entire land devolved upon his granddaughter Mst. Halima. This was acknowledged by the Mukhtiarkar of Karachi vide Letter No.HM/2095/66, dated 4‑1‑1966 which may be reproduced as under:‑‑ "To, Mst. Halima, R/o Moosa Gado, Karachi. Sub: Ownership of Mossa Gado village. Ref: Your Application dated 15‑11‑1965. This is to inform you that from the record of this office it appears that the village Moosa Gado is privately owned and it stands in the name of your grandfather Moosa Gado: Village land is not assigned with any survey number. (Sd. ) (GUL HASSAM BHATTI), MUKHTIARKAR OF KARACHI."

4. On the strength of the aforesaid letter Mst. Halima executed a registered Deed of Conveyance dated 21‑3‑1966 transferring 30 acres to one Abdul Sattar Bhai. On 15‑2‑1975 Abdul Sattar Bhai and his co‑owner executed an agreement of sale with a partnership firm M.Y. Corporation undertaking to sell the entire 30 acres of land which was accompanied by a power of attorney in favour of the firm. In the aforesaid agreement, it was declared that only 12 acres of land was in possession of the vendors whereas the remaining 18 Acres was in occupation of the villagers and was a subject matter of Suit No. 1202 of 1968. Subsequently the suit was compromised on 29‑1‑1980 and the firm became the owner of the entire property of 30 acres. Thereafter, the, firm applied for regularization of the purchase‑and ownership and possession over the land was regularized on 15‑11‑1980. Necessary mutation was also effected in the record of rights in favour of the firm on 7‑12‑1980.

5. On 6‑9‑1981, pursuant to a complaint made by one Ghulam Muhammad before the Board of Revenue, Sindh a detailed enquiry was conducted and it was found that the land did not belong to the firm. Entry kept in the record of rights in favour of the firm, therefore, was cancelled. The firm; however, challenged such cancellation through Suit No.2073 of 1983. As a consequence of the cancellation of entries vide order dated 18‑6‑1982 a notice was served upon the firm requiring it to hand over possession of the land. The petitioner questioned the aforesaid notice through C.P. No.583 of 1984 before this Court. Nevertheless, the firm was ejected on 17‑7‑1984 and consequently. the petition before this Court was dismissed as infructuous. The pending suit was also subsequently dismissed for non‑prosecution.

6. The appellants have alleged that the firm was dissolved on 2‑7‑1983 and all its assets and liabilities were taken over by the appellants. Nevertheless it is interesting to note that even after the alleged dissolution proceedings under M.L.0.202 were contested in the name of the firm and C.P. No.583 of 1984 was also preferred on behalf of the firm. Moreover while on one hand it is contended that the firm was constituted into a company and it is claimed that its assets were transferred to the appellants. In July, 1983; an agreement to sale the suit‑land stated to have been executed between the firm and the appellant company dated _____________ has also been placed on record. Nevertheless, these inconsistencies do not appear to have a material bearing on the controversy and we are inclined to ignore. What is important to keep in mind, however, is the fact that the suit filed by the firm was‑not pursued by the appellant company and after its dismissal for non‑prosecution on 3‑3‑1988 the instant suit was filed about 5 years latter in 1993.

7. As against this, the respondents Nos.l to 4 has pleaded in their written statement that on 14‑1‑1992 the respondent No.4,was allotted land measuring 4 acres and 20 Ghuntas by the Sindh Government which on 21‑1‑1992 was leased out to them for 99 years. It was stated that the entire lease money was paid and thereafter possession was, handed over to the respondent No.4 by the concerned officials and mutation was also effected in the records of tight. The respondent No.5 on 25‑10-1992 granted N.O.C. and K.B.C.A. respondent N6.6, had approved its building plan for construction of ground + 4 storeys. The respondent No.4 after completing the codal formalities started raising construction and completed ground + 2 floors structure. At that point of time, the appellants filed the Suit No. l of 1993 seeking cancellation of the land allotted to the respondent No.4 claiming it to be the portion of land of which the appellants claimed as owners. The appellants alongwith the plaint in Suit No. l . of 1993 has filed Injunction Application (C.M.A. 88 of 1993) to which counter‑affidavit was filed by the respondents. It may further be noticed that in addition to the filing of the above suit on 14‑2‑1993, the appellants also got the plaint in Suit No. l of 1993 registered with the Registrar under section 52 of the Transfer of Property Act to reflect that the lis was pending adjudication and registration itself was a notice to the public. Therefore, in any event, the interest of the appellants was protected on getting the plaint in Suit No. I of 1993 registered with the Registrar under the amended section 52 of the Transfer of Property Act.

8. It has been argued by Mr. Syed Sami Ahmed, learned counsel for the appellants, that by passing the impugned order the learned Single Judge has disposed of the whole suit. Refusal to grant of the injunction would lead the proceedings meaningless and would destroy the corpus of the suit property.

9. Mr. Shamsul Islam, learned counsel for respondents Nos. l to 4, has argued drawing out attention to the comments filed on behalf of Deputy Commissioner, Karachi Central, in Suit No.684 of 1989, which was filed against the appellants by some private persons, reflects that neither the appellants nor their predecessor‑in‑interest at any point of time were owners of the land inasmuch as that the land of Moosa Gado Goth which is suit property was owned and vested in the Government of Sindh: It was submitted that since the date of dismissal of the suit of appellants predecessor‑in‑interest in 1988 till 1993, the appellants did not take any step to safeguard their alleged interes, in the property and the property which was subject‑matter of the above proceedings was duly allotted to respondent No.4 and the respondent No.4 could not be deprived of the enjoyment of the property on the basis of claim of the appellants which, prima facie, was derived from a letter of Mukhtiarkar referred to hereinabove.

10. Mr. Suleman Habibullah, learned Additional Advocate‑General, submitted that. the land in question is a Government land and the appellants did not have any . right to claim ownership based on the letter of the Mukhtiarkar, who was later convicted on account of issuance of the said letter. He submitted that the very foundation of the title of the appellants was without sanction of law, therefore, the appellants are not entitled to any relief prayed for either in the suit or by way of injunction. He did not support the impugned order but at the same time submitted that die allotment of land in favour of the respondent No.4 has been cancelled in view of promulgation of Ordinance No.III of 2001 and therefore, the respondents also have no lawful right to claim ownership.

11. We have heard the arguments of teamed counsel for the parties and perused the record. In order to seek injunction, a party has to be vigilant and should approach the Court without loss of time to show its bona tide. The delay in such matters normally disentitles the party from seeking relief of injunction. Admittedly, the appellants who claimed to be the owners of the land in question since 1968 till 1993 remained silent for several years though it transpires from the record that mutation in 'favour of appellants' predecessor‑in‑interest was cancelled on 6‑8‑1981 and the appellants were dispossessed on 17‑7‑1984. Suit No.2073 of 1983 filed by predecessors‑in- interest of the appellants was also discussed in 1988 when the appellants claim to be successors‑in‑interest of the firm, they can only blame themselves for remaining silent for about five years, despite full knowledge of the proceedings. All these orders were not challenged by the appellant except that Suit No. l of 1993 was filed in this Court. At the time when the suit was filed construction work carried out by respondent No.4 was in advance stage, The different exchange of, correspondence between the appellants arid the Sindh Government also speaks volumes. We are disturbed to notice that certain documents reflect that appellants and their predecessors‑in‑interest had purchased that land in 1966 whereas in some of the documents it has been mentioned that the appellants purchased the land by way of sale agreement in 1975 and 1983. However, all these issues could only be adjudicated upon and answered by recording evidence of the parties. It has been rightly submitted by Mr. Syed Sami Ahmed, learned appellants' counsel that the order at the interlocutory stage should be tentative in nature and should not be allowed to decide the entire suit. At the same time, we cannot loose sight of the settled law that the party seeking injunction has to show three important ingredients in its favour, namely, "prima facie case", "balance of convenience" and "irreparable loss". If any one of the three ingredients is missing, the Courts would not ordinarily grant injunction. In the present case, it has been argued by Mr. Syed Sami Ahmad that the refusal of injunction amounts to dismissal of the suit of the appellants inasmuch as the respondents Nos. l to 4 have been allowed to raise construction and have not been restrained from alienating the property and if the corpus of the suit is lost the suit would become infructuous by the time it is finally decided. We have carefully examined this aspect of the case and do not find that the appellants have any prima facie case in view of the fact that the entries in favour of the appellants produced in the records of right were cancelled way back in 1981. Admittedly the predecessor‑in‑interest of the appellants were dispossessed in 1984 and the suit, which was filed by them, was also dismissed in 1988. The Suit No.l of 1993 of which the present High Court appeal arises was filed in 1993. A party, which has chosen. not to approach the Court promptly, cannot seek injunction of the nature and that too on the basis of documents which, prima facie, have no legal sanctity. The letter of Mukhtiarkar certifying the predecessor‑in‑interest of the appellants as owner ex facie has no value in the eyes of law. We have ourselves examined the records of right produced by Mr. Abdul Qadir Javed, Mukhtiarkar, North Nazimabad, Karachi (Central), and we found no entry has been effected in favour of Moosa Gado prior to 1966 which could establish Moosa Gado as owner of land at any point of time. In view of these admitted facts, the appellants do not have any prima facie case. The facts as reflected show that the land belongs to Government of Sindh. Balance of convenience was also not in favour of the appellants who were admittedly not in possession at the relevant time and had too claimed mesne profit. The respondents Nos. l to 4 who were in possession of the land would be put to more inconvenience in the event if they were denied enjoyment and/or utilization of the land if the injunction is allowed. No irreparable loss would be caused to the appellants in such circumstances as the appellants were not in possession, therefore, C question of irreparable loss does not arise. On the other hand, the respondents Nos. l to 4 after being leased out the land, they had started raising construction of a multi‑storey building and restraining order would indeed put them to huge monetary losses as costs of construction would increase. besides the fact that the persons who had approached the respondents Nos. l to 4 for booking apartment, etc. may drag them to different forums for damages. In such eventuality, the loss and inconvenience that may be caused to the respondents Nos. l to 4 would be much more. Since the appellants themselves have got the plaint registered under section 52 of the Transfer of Property Act, therefore, the corpus of the suit would remain intact as registration of the kind is in nature of public notice. Those who chose to purchase the suit‑property during pendency of the suit would be bound by the judgment and decree that may be passed by the trial Court after recording of the evidence. The construction actively undertaken by the respondents Nos. l to 4 would be at their own risk.

12. Contention of Mr. Suleman Habibullah, learned Additional Advocate‑General that the allotment of suit property in favour of the respondent No.4 has also cancelled has no nexus with these proceedings. The Government, however, would be at liberty to take action against the respondent No.4 in accordance with law if so advised.

13. For the foregoing reasons we have dismissed the appeal by our short p order dated 14‑11‑2002. Q.M.H./M‑432/K Appeal dismissed.