1988 PLP 1154 (CLC)

Dates of hearing: 3rd September and 1st October, 1987. This revision application arises out of two judgments and decrees, one dated 15‑8‑1979 passed in Suit No. 1932 of 1968 by the III Civil Judge Ist Class, Karachi, and the other dated 14‑11‑1982 passed in Civil Appeal No.255 of 1979 by the VIII Addl. District Judge, Karachi, maintaining the judgment and decree of the Civil Judge.

2. The relevant facts are that on 13‑9‑1968, the applicant plaintiff filed a suit for declaration and injunction to the effect that he was a lawful allottee of Plot No.6 Row No. 7, Sub‑Block 'B' Block No.II, Nazimabad, Karachi, which was adjacent to Plot No.5 towards West of Plot No.6 and the open space was a part and parcel of Plot No‑6 allotted to the plaintiff and also sought perpetual injunction against the defendants respondents not to deny the entitlement of the plaintiff to the portion of the plot in question. The suit was resisted by both the present respondents and they denied the contention of the plaintiff /applicant.

3. In brief, the claim of the applicant was that he had been granted an allotment on 30‑9‑1952 by Government of Pakistan of Plot No.6. Row 7, C II, Nazimabad, Karachi, with given dimensions mentioning the various roads and lanes and plots, by which the said plot was bounded. It was also mentioned in the allotment order that the said plot was 352 square yards. Possession of 352 sq. yds, was given to the applicant on 16‑11‑1953 but the applicant had pleaded in the plaint that the whole plot measured 568 sq. yds, and it was only by mistake that PWD had treated it to be a plot of only 352 sq. yds. In 1955 lease of the plot was granted in favour of the applicant by the Central Government, where the same dimensions and boundaries were mentioned and area of the plot was also stated to be 352 sq. yds.

4. It is an admitted position that the applicant had constructed house over the land, of which possession had been delivered to him in 1953. He had, however, made a well covering an area of about 200 sq. yds. of land, which he considered to be a part and parcel of plot No.6. On 20‑11‑1967, the applicant approached the KDA stating that at the time of handing over possession of plot No.6, the P.W.D staff had short measured the plot by about 200 sq. yds. and asked him to construct the house over that portion of the plot. Consequently, the extra area, which is now in his possession, remained unaccounted for and therefore, he requested that the extra portion, which formed part of entire plot No.6, be regularized in his name, for which he was, ready to pay the charges. The KDA replied to the applicant that he had not deposited six to eight instalments of ground rent upto 1968 and therefore, he was requested to clear all the dues in respect of the plot and thereafter necessary action may be taken on his request for allotment of extra land. The applicant, acting on this letter, paid the balance of occupancy value in respect of the whole land as claimed by him, and again requested the KDA to regularize the allotment. However, on 10‑1‑1968, the KDA demolished the boundary wall of the applicant. The house constructed by the applicant on 352 sq. yds. had not been touched by the KDA. The applicant filed Suit No.112/67 but it was dismissed as barred under Article 131‑A of KDA Order 5 of 1957. On 13‑6‑1968, the KDA allotted the Plot No. 5‑A, Row 7‑C, measuring 215 sq. yds. to one Muneer Jafri and on 26‑6‑1968 possession was delivered to him. On 13‑9‑1968 Suit No. 1932/68 was filed by the present applicant for declaration. On 3‑9‑1969, Plot No.5 was leased out by KDA to Muneer Jafri and on 20‑9‑1969 the present respondent No.2 Mst. Abida Qureshi purchased the said Plot No.5‑A from Muneer Jafri by registered sale deed and the KDA mutated the plot in favour of Mst. Abida Qureshi.

5. The position taken by K.D.A. in the suit filed by the applicant was that only 352 sq. yds. of land was allotted to the applicant but he had constructed a boundary wall extra on area of 568 sq. yds, illegally. The position taken by Abida Qureshi in her statement, when she was joined in 1979, was that she was the purchaser of the plot in the due course and the area of her plot had never been allotted to the applicant.

6. Seven issues were framed. PW Hamidullah was examined on behalf of the applicant while DWs Abdul Qadeer, husband of Abida Qureshi, and Ali Ahmad, KDA Record Sorter were examined on behalf of the defence. Various documents had been filed by the parties and after considering all the documents and the evidence the Civil Judge as well as the VIII Additional District Judge have come to the conclusion that only 352 sq. yds. of land had been allotted to the applicant in 1952 and that he had made an unauthorized construction of wall on the balance of 216 sq. yiis. and that his suit was time‑barred, as the allotment had been made in 1952 and he had sought the declaration in 1968. It was held that Hamidullah (applicant) had been allotted only 'C' category plot, which measured 352 sq yds. and he was not entitled to the adjoining area of 216 sq. yds. and the applicant had been delivered possession of plot No.6 measuring 352 sq yds. It was further held that plot No. 5‑A measuring 216 sq yds was allotted to Muneer Jafri, which was sold to Abida Qureshi by registered sale deed. Finally, it was held that the applicant had failed to prove his title over plot No.5‑A measuring 216 sq, yds and Mst. Abida Qureshi had title over it. It may be mentioned here that Mst. Abida Qureshi had made a counter‑claim for declaration in her favour in respect of plot No. 5‑A. The Civil Judge had omitted to grant the declaration in her favour, although he had clearly held that the space adjacent to the plot of the applicant was not a portion of his plot. The respondent No.2 had, therefore, filed Appeal No.276, of 79 and the same was allowed by the Addl. District Judge and she was declared as owner of plot No. 5‑A and permanent injunction was issued against the applicant and he was restrained from interfering with the possession and enjoyment of lease hold right of Mst. Abida Qureshi.

7. Mr. Khalid M. Ishaque, learned counsel for the applicant had argued that the property having been leased out in 1955 in favour of the applicant, the KDA was bound to honour the same. He submitted that it was a 'B' type plot, which had been given to the applicant and there was no plot No.5‑A in existence, which was later on carved out of plot No.6. I do not find any force in the submission of the learned counsel, because I find that the original allotment order in his favour mentions plot No.6 as having approximately 200 sqs. on the front of the said allotment, while the dimensions of the plot are mentioned on its back page and its boundaries are also set forth. The area of the plot on the backside of the allotment is stated to be 352 sq. yds. This clearly shows that only plot of 200 sq. yds. was allotted to the applicant, which was later on measured to be 352 sq. yds. and the dimenions of the same are given as 78'‑2" on one side, 48'‑6" on the other side,57'‑3" on the third side and 50"‑0" on the fourth side. It is, therefore, clear that the applicant cannot lay any chain to anything of more than 352 sq. yds. of area. Even the possession certificate, which was issued to the applicant in 1953, shows the area of the plot to be 352 sq. yds. Mr. Khalid wanted me to construe that since the boundaries of the plot have been mentioned therefore, whatever is lying between those boundaries should be treated as the area of plot No.6. There is hardly any justification for this. There is a conscious allotment of 352 sq. yds. in favour of the applicant, which is confirmed by the possession order and therefore, by mere inferences it cannot be presumed that whatever be the area of plot No. 6 in the original plan, the same was allotted to the applicant. In his statement the applicant has clearly admitted that at the time of giving over possession he was only handed over possession of 352 sq yds. of land and he has further admitted that he had made construction over the said portion of the plot, of which possession had been given to him. Since the applicant had been given possession of only 352 sq. yds. therefore, the balance of the area was unauthorizedly occupied by him. There is no justification on record for the submission that 568 sq. yds. had been allotted to the applicant. In fact the applicant had himself asked for the regularization of the allotment in 1967 of the balance of the area. He had not shown as to when he occupied the balance of the area and under what authority. The KDA had never made any regularization of the balance of the area to the applicant and in fact they had demolished the wall made by the applicant on the area beyond 352 sq. yds. They never represented to the applicant that they would allot the land of the rest of the area to him: Therefore, the two judgments appear to be correct on merits.

8. Applicant's counsel had contended that the suit was not time‑barred, as the same had been filed within a year of the demolition of the wall by the KDA. However, I find that the finding of being time‑barred is 'in respect of the declaration sought by the applicant and since the allotment was made in his favour in 1952 and he had sought declaration in 1968, after 16 years of the original allotment, therefore, the declaration which seeks to increase the measurements of the allotment after 16 years of the allotment is obviously time‑barred.

9. Mr. Khalid had also propounded that it was simply a mistake in the area of the allotment and therefore it should have been construed and corrected in accordance with the area found to the bounded by the boundaries shown in the lease. I am unable to find any mistake in the area of the land allotted to the applicant. The applicant is bound by the measurements shown in his allotment and the possession of the area, which he has consciously taken and upon which he has constructed his house.' He cannot rely upon mere inferences, which come out of the boundaries of the plots shown in the allotment or lease as construed in the light of the original‑plan, which shows six plots, as against that there is a clear mention of 352 sq. yds. of land allotted and given to the applicant and not only the figure of 352 is mentioned but even the dimensions shown of the four sides of the plot make it quite clear that it was only 352 sq. yds. which was allotted to the applicant and therefore, no inferences based on boundaries can be drawn in favour of the applicant particularly when a plan of land showing the demarcation of Plot No. 5‑A has been produced by the witness of KDA, which bears a date of 1959. Of course, another plan of land of the same date did not show Plot No. 5‑A , but these differences are not of great significance in view of the fact that the area of land allotted was only 352 sq. yds. Plans of land could be amended at time if the circumstances justified it and no vested right was going to be affected. The petitioner had only a right in respect of 352 sq. yds. and hence creation of Plot No.5‑A did not affect any of his vested rights.

10. The last contention of Mr. Khalid was that lease of 568 sq. yds. having been issued by the Government, it was not competent for the KDA to reduce the size of the plot by 216 sq. yds, and demarcate another plot. I do not find such a contention having been raised at all by the applicant and in tact the applicant has not impleaded the Government as a party. The very letter of the applicant seeking regularization of allotment of the extra land shows that the applicant had not been given more than 352 sq. yds. of land. Even the lease mentions 352 sq. yds, of land having been given to the applicant, therefore, the claim that the Government had given a lease of 568 sq. yds. is simply frivolous.

11. The result is that this revision application is found without merits and it hereby dismissed. H . B . T . / H‑75/ K Revision dismissed.