1996CLC456 (PLP)

10. I may here point out that learned counsel of defendant No.4 said that vide Annexure ' D‑1' the suit land was declared as building site and "placed at the disposal of the Government of Sindh". Now, this Annexure 'D‑1' to the written‑statement of defendant No.4 is Notification of the Office of Chief Settlement Commissioner West Pakistan No.669‑66/574‑B(L) dated 11th February, 1966 which was notified in the Gazette of 18th March 1966, which declares certain agricultural survey numbers mentioned therein, including Survey No.209 which is the suit‑land, as "building sites" ‑‑‑ and this is an admitted position ‑‑‑ but there is nothing in this notification to suggest that it also placed this land at the disposal of the Government of Sindh. 11, Learned counsel of defendant No.4 referred the Court to Annexure ' D‑3' which is letter dated 22‑4‑1969 from Rehabilitation Mukhtiarkar to the plaintiff asking him to clear the dues of the auction price in respect of suit ‑land (Survey No.209). He then referred to Annexure ' D‑9' which is an office note (it is not clear how its attested copy was delivered to defendant No.4 since it was not a public document), dated 1st May in which Rehabilitation Mukhtiarkar, after observing that the plaintiff was not inclined to make payment, recommended that the auction sale dated 20‑4‑1968 in favour of the plaintiff be cancelled whereupon the next higher office ordered on 3rd May for issuance of yet another warning giving him time up to 10th May to clear the dues. This fresh warning was also given (vide Annexure ' D‑5' of the same date, the 3rd May) but a fresh office‑note of Rehabilitation Mukhtiarkar (date not given) shows that payment was still not made by the plaintiff whereupon the Settlement Commissioner ordered on 14th May to cancel auction‑sale of the plaintiff which was accordingly cancelled vide. cancellation order of the same date (14th May, 1968) Annexure ' D‑10' . The Court was then referred to Annexure ' D‑7' which is letter, dated 7th October, 1970 from Deputy Settlement Commissioner (Land) to the plaintiff in which it was clarified that the total area of land purchased by the plaintiff in open auction came to 12,221 Sq.Yds. out of which an area of 4,356 Sq. Yds. had been acquired by the Government for purposes of circular railway and, therefore, the plaintiff was left with an area of 7,865 Sq. Yds. only of which the total cost came to Rs.57,021 out of which he had already paid Rs.47,151 which left an outstanding balance of Rs.9,870 only ,and the plaintiff was directed to pay it within seven days. It was then pointed out that payments shown at the last page of Annexure ' D‑11' do not coincide with the demand made vide Annexure 'D‑7'. Learned counsel of defendant No.4 also pointed out that the plaintiff had allegedly paid Rs.25,000 on 16th May, 1969 towards the part‑payment of auction‑price of suit‑land vide State Bank Challan of which Annexure ' P‑3' was a photo‑copy and he then produced a letter, dated 9th August, 1992 from the office of Additional Commissioner‑II, Karachi (Evacuee Property Branch) certifying that original challans in respect of payment pertaining to Survey No‑209 were not available in the office but photostat copies of three challans in the sum of Rs.22,151, Rs.9,584 and Rs.286 deposited by Asif Khan Shamim (the plaintiff) were available. (This letter has been placed on record as Annexure ' D‑21' to written statement). He implied that this indicated that Annexure ' P‑3' was a forged document. However, learned counsel of the plaintiff produced the original challan, dated 16th May for Rs.25,

000. Thus it is evident that the record in the office of Additional Commissioner‑II is not in proper shape and a lot of important documents are missing and this payment of Rs.25,000 had in fact been made and Annexure ' P‑3' is not a forged document.

12. Learned counsel of defendant No.4 also referred to Settlement Scheme No. VIII and section 3‑A thereof and stated that the conditions mentioned therein must be fulfilled before cancellation of auction‑sale (vide Annexure 'D‑10') could be cancelled and claimed that these conditions were not fulfilled as would appear from Annexure ' D‑7' and, therefore, cancellation subsists and, consequently, Transfer Order Annexure ' P‑4 : is void and illegal. He also claimed that the date "30‑6‑1974" under the signature of the Deputy Settlement Commissioner at four places on Annexure ' P‑4' is a fraudulent addition to bring Annexure ' P‑4' within the jurisdiction of Settlement Authorities. He then argued that, a case .of prima facie fraud having thus been made out, the temporary injunction may not be granted to the plaintiff and he relied upon the cases of Ismail Brothers v. Kavalram (PLD 1981 SC 545) and tried to distinguish the case reported as 1990 CLC 1299 (Nasim Ahmad Khan v. Salim Ahmad Khan) on which learned counsel of the plaintiff had relied.

13. Section 3‑A of Settlement Scheme No. VIII is quoted below:‑‑ 3‑A(1) Within thirty days of the date of the order of cancellation as aforesaid, the defaulter nay apply to the Deputy Settlement Commissioner or the Additional Settlement Commissioner (Industries) as the case may be, to ‑allow him to pay in lump sum the whole of the balance of transfer price payable by him. The aforementioned authorities may then` allow him to pay it immediately if by then no other person has applied for the transfer of the same property nor has it been put to auction. (2) The concerned appellate authority may allow the defaulter to pay the whole of the balance of transfer price payable by him one lump sum within ninety days of the date of order of cancellation as aforesaid, if any, then no other person has applied for transfer of the same property nor has it been put to auction. (3) When the defaulter makes full payment under sub‑paragraph (1) of sub para. (2) the order of the cancellation and any other order made will be withdrawn. .. ,

14. I am of the view that, whatever defect or weakness may be in the case of the plaintiff, it is certainly not a case of fraud or forgery. Learned counsel of defendant No.4 could not show on what authority he claimed that the date "30‑6‑1974" under the, signatures of the Deputy Settlement Commissioner on Annexure ' P‑4' was a fraudulent addition on the document. On the contrary, it looks quite natural that the document should have been complete at least a couple of days before it was given number and date and delivered to the party.

15. It is evident that the original area of Survey No.209 was 12,221 Sq. Yds. which was auction‑purchased by the plaintiff and in respect of which notices were issued to him to clear the dues but the grievance of the plaintiff was that a substantial portion of the land was acquired by the Government for circular railway but still the price of the entire 12,221 Sq. Yds. was being demanded from him and that is why he had not paid the same as a result of which his auction‑purchase was cancelled vide order dated 14‑5‑1969 Annexure ' D‑10' but he was all along making representations. These representations were eventually accepted and on 7th October, 1970 he was informed that an enquiry had revealed that out of the total area of 12,221 Sq. Yds., 4,356 Sq, Yds. had been acquired for the circular railway which reduced the area of auction purchase to 7,865 Sq. Yds. The plaintiff was further informed that cost of 7,865 Sq. Yds. came to Rs.57,021 out of which he had already paid Rs.47,151 leaving a balance of Rs.9,870 and he was ordered to pay it within a week (of 7th October, 1970). This letter is on record as Annexure D‑7 and it indicates that the cancellation of auction‑purchaser vide Annexure ' D‑10' was subsequently cancelled on the ground that the demand earlier raised against the plaintiff was unjustified because it was for the whole survey number whereas a substantial portion of it was acquired by the Government for circular railway. After all the dues were subsequently paid by the plaintiff. Transfer Order Annexure ' P‑4' (or 'D‑11') was issued and it is an admitted position that it has not been cancelled by any authority and yet a duplicate allotment in respect of 25 Ghuntas in Survey No.209 was made by the defendants Nos. l to 3 in favour of defendant No.4. It may be noted that out of 2 acres, 10 Ghuntas regularised in favour of defendant No.4 vide Annexure 'D‑12', only 25 Ghuntas pertain to the suit‑land and the rest of the land falls in other survey numbers with which the suit has no concern.

16. It may also be noted that, besides the fact that Annexure ' P‑4' (or 'D‑11') has not been cancelled by any competent authority till this day, no arrears were due against the plaintiff when this Transfer Order was issued and even if any arrears were still outstanding the transfer order Annexure ' P‑4' could still not be cancelled and vide condition No.7 thereof, the Board of Revenue could effect the recovery of the dues as arrears of land revenue.

17. For the abovenoted reasons, I am of the view that the plaintiff has succeeded in establishing the prima facie nature of his case. Defendant No.4 is, however, at liberty to prove its allegations at the stage of trial when they shall be decided on the basis of evidence.

18. Learned counsel of defendant No.4 also referred to certain corrections in figures on Annexure ' D‑2' which is the bid sheet and' argued that these overwritings/corrections were not under the signature of any authorised officer and, therefore, the Bid‑Sheet was of doubtful value. These corrections are as follows:‑‑ Total Area 2‑21 1‑25 Ghuntas Area in Sq. yards 12,221 7865 Sq. Yds. Learned counsel was not justified in raising this objection because these corrections are explained by the following note under the signatures of Assistant Rehabilitation Mukhtiarkar which is dated 21‑3‑1973: "An area of 4,356 Sq. Yds. acquired for Karachi Circular Railway vide Mukhtiarkar's Letter No. SCM/2630/70, dated 24‑10‑1970. (Sd.) A. R. M. 21‑3‑1973." The corrections are thus well‑authenticated and they are also well‑explained in the letter, dated 7th October; 1970 from Deputy Settlement Commissioner (Land), Karachi to the plaintiff (Annexure 'D‑7'). The objection is thus without any force.

19. Learned counsel of defendant No.5 has raised the objection that it is only an advertisement‑agent and only entitled to its commission and that Fahad Garden Builders are in possession of the suit‑land but they have not been impleaded and, therefore, no effective relief can be granted to the plaintiff as any order against defendants Nos.4 and 5 shall not be binding on the absentee party. The second argument was that the 172 persons who had booked flats vide Annexure ' C' to counter‑affidavit of defendant No.4 were also necessary parties to the suit. Learned counsel then referred to section 51 of Transfer of Property Act and claimed that M/s. Fahad Gardens and the 172 persons were entitled to compensation for the improvements made by them over the property and prayed for the appointment of a Commissioner to assess the value of such improvements. Learned counsel was, therefore, of the view that either stay order may not be granted or else the Court may suo motu implead all the necessary parties as indicated by him. To this, the reply of learned counsel of the plaintiffs that section 51 of Transfer of Property Act applies only when the equitable grounds given in the said section are made out, otherwise the improvements belong to the owner and that this section 51 cannot be made the basis for impleading additional parties in the suit.

20. It appears to me that learned counsel of defendant No.5 was rather mostly pleading the case of the absentee parties.

21. Learned A.A.‑G. is of the view that Survey No.209 was agricultural land from time immemorial and, therefore, it vested in the Board of Revenue which lawfully allotted it to defendant No.

4. This is not correct. When this land was declared as evacuee property it vested in the Federal Government free from all encumbrance and when it was declared "building site" vide Notification of Chief Settlement Commissioner, dated 11th February, 1966 and gazetted on 18th March, 1966 (Annexure 'D‑1') it ceased to be agricultural land. In any case, it was not lying undisposed of on 1st July, 1974 when Act XIV of 1975 came into force and, therefore, apparently, this land did not revert to the Provincial Government.

22. I am of the view that defendant No.4 continues to be the only effective contender of the claim of the plaintiff. He has not in any way alienated the suit property to defendant No.5 or to M/s. Fahad Garden who are no more than his agents and their fortune shall rise or fall with the fate of defendant No.

4. If defendant No.4 has entered into any agreement with a third party for the construction or development of suit‑land, such party does not acquire any vested right in the suit land and is, therefore, not a necessary party to the suit. It is inconceivable that M/s. Fahad Garden should not be aware of the pendency of the suit and the fact that they have not cared to apply for being impleaded shows that they do not consider themselves necessary party to the suit. 1, therefore, see no justification to appoint any Commissioner to assess the value of the improvements or to implead any party in these proceedings. Besides, only 25 Ghuntas of suit land is involved in the dispute as the rest of the land which has been allotted to defendant No. 4'vide Order dated 23‑9‑1991 Annexure 'D‑12' falls in other survey numbers with which the plaintiff and this suit have no concern.

23. I am also of opinion that if construction is raised on the 25 Ghuntas of Survey No .209, it shall cause irreparable loss to the plaintiff, as it will become difficult to separate this construction from the rest of the construction on the remaining land allotted to defendant No.4 vide Annexure 'D‑12'.

24. Under the circumstances, I would amend the ad interim order and pass injunction in the following terms: since only 25 Ghuntas of Survey No.209 is included in the allotment order Annexure ' D‑12' and since this alone constitutes the suit‑land, defendants Nos.4 and 5, and everyone else through them, are restrained from including this land in their building plans till the disposal of the suit and they shall also not book, or, cause to be booked any flats in building which is planned to be constructed on this portion. Defendants Nos.4 and 5 are free to proceed with their building activity on the rest of the land allotted to defendant No.4 vide Annexure '‑D‑12'. This defendant No.4 shall do after ensuring the exclusion of any portion of Survey No.209 from the building activity.

25. Mr. Ahmad Yousuf Ali Rizvi, Advocate is also appearing for defendant No.4 alongwith Mr. S. Sharifuddin Pirzada, Advocate. However, Mr. Pirzada had addressed the Court on behalf of defendant No.4. After learned counsel of the plaintiff had replied to the arguments of counsel of the defendants Mr. Rizvi desired that he should also be heard. I had rejected his oral request on the ground that Mr. Pirzada had already addressed the Court on behalf of defendant No.4 and he (Mr. Rizvi) could not again re‑open the arguments on behalf of defendant No.4. Now he has moved this application under section 151, ,C.P.C. and wants to address the Court in reply to what learned counsel of the plaintiff stated in reply to the submissions of learned counsel of the defendants. There is no provision for a reply to the reply. Otherwise, there shall be no end to this exercise. The prayer is uncalled for C.M.A. No.5382/92 is accordingly rejected. A.A./A‑1554/K Temporary Injunction granted.