1987 PLP 3189 (MLD)

(6) What should the decree be?"

3. The Petitioner examined himself Ex. 1, whereas Respondent No. 1 examined one Ali Ahmed Ex.

15. The learned trial Court after hearing the parties by his aforesaid Judgment and decree dated 20-1-1983 dismissed the suit. The Petitioner being aggrieved by the above Judgment and decree dated 20-1-1983 filed aforesaid Appeal No. 42 of 1983, which was dismissed by the aforesaid Judgment and decree dated 9-5-1985. The petitioner being aggrieved by the above two Judgments and decrees has filed the present Revision.

4. In support of the above Revision, Mr. Azhar. Ali Siddiqui, learned counsel for the petitioner has vehemently submitted that respondent No. 1 had not produced the record of the newly allotted plot in exchange of the suit plot and that both the Courts have erred in holding that Article 131 of the KDA Order was applicable. On the other hand Mr. Sabir Hussain Kizilbash has submitted that the burden of proof was on the petitioner which he failed to discharge, inasmuch as he neither impleaded the allottee as a party to the suit, nor examined him as a witness.

5. I have gone through the evidence on record and I find that the petitioner in his cross-examination was unable to deny any of the suggestions as to the making of the application for alternate plot by the allottee, as to the allotment of the alternative plot and as to the giving of the possession. It will be pertinent to reproduce herein below Petitioner's cross-examination which reads as under:- "It is not a fact that the KDA did not allot the plot to said Tahir. Again says that in these days the Ministry of Works was having the powers of allotment in that area hence the Ministry of Works allotted this plot to Tahir on 20-10-1950. 1 do not know if the Pak PWD gave possession of this plot to Tahir after allotment in 1952. I do not know if the said Tahir made two applications dated 21-5-1954 and 18-8-1954 for exchange of this plot with a Plot No. 4-A/11/3. I do not know if the allotment of the Plot No. 4-A/11/3 was given to the said Tahir in exchange of Plot No. 4-B-3/4 on 16-5-1955. I do not know if the possession of this Plot No. 4-A-11/3 was given to Tahir on 26-7-1955. I do not know if the allotment of plot in case Plot No. 4-B-III/4 has been cancelled, after the possession of 4-A/11/3 to Tahir. It is not a fact that I have unauthorisedly occupied the plot in case. I was summoned by KDA. It is not a fact that I did not give any joint application for transfer of this plot to me. It is not a fact that I am an encroacher on this plot but I am purchaser from allottee."

6. In my view in the absence of the allottee, either as a part to the suit or in any case as a witness the Petitioner could not have proved his case. In view of the above statement of the Petitioner the cross-examination the burden was on him to show that factually respondent No. 1 had not allotted any alternative plot o: that possession thereof was not given. I am, therefore, of the view that the findings of the two Courts below that the petitioner has failed to establish his case seems to be correct. I had dictated the Judgment in the above case in open Court on 19-5-1987, but before I sign the judgment I issued notice to the learned counsel for the parties by my order dated 20-5-1987 which reads as follows: - "After dictating the Judgment in open Court it occurred to me whether under Article 69 the K. D. A. could obtain the possession as mainly the notice under Articles 72 and 73 for removal of the unauthorised construction has been issued. I would like to be satisfied on this point before I sign the Judgment. I would issue notice to the learned counsel for the parties for 21-5-1987 Mr. S. H. Kazilbash, learned counsel for the respondent No. 1 is present in Court, I have informed him about the hearing. Issue notice today to Mr. Azhar Ali Siddiqui, learned counsel for the applicant for 21-5-1987." In response to the above notice, Mr. Azhar All Siddiqui for the petitioner and Mr. S.H. Kazilbash for respondent No. 1 have appeared before me and have submitted their respective arguments. Mr. Kizilbash has invited my attention to the prayer clause in the plaint and has pointed out that in view of the findings recorded by the two Courts and concurred by the High Court, the prayer contained in sub-paras 1 and 2 which reads as follows, cannot be granted: "(i) declare that the plaintiff is entitled for the transfer and lease of the Plot No. IV-BL3/4, Nazimabad, Karachi, on payment of the prescribed transfer fee and lease money; (ii) declare that the defendant No. 3 has no locus standi to claim the allotment of the said plot which is not a vacant site but a house owned by the plaintiff." The above contention seems to be correct as after having held that the petitioner has failed to prove his case the above reliefs cannot be granted. However, the question arises whether relief mentioned in sub?-para (iii) can be granted. The above sub-para (iii) reads as follows:- ??????????? "(iii) restrain the defendant No. 1 and its functionaries and subordinates by way of permanent injunction from interfering in the possession of the plaintiff and enjoyment of the house on the said plot in any manner whatsoever and from demolishing the plaintiff's structure." In this regard Mr. Kazilbash has invited my attention to the fact that the impugned notice was served on or about 7-8-1980. The notice under Article 131 of the KDA Order was served on 11-12-1980, whereas the suit was filed on the very day i.e. before the expiry of 30 days provided for in Article

131. I was inclined to hold that the KDA cannot eject the petitioner under Article 64 of the KDA Order though it can demolish the construction under Articles 72 and 73 but since the above suit was filed before the expiry of period provided under Article 131 and as the two Courts have held that the suit was defective, I cannot grant any relief. However, it will be open to the Petitioner to file a fresh suit, if competent, in accordance with law in relation to the above quoted sub-para (iii). The Revision is, dismissed, with no order as to costs. M.Y.H./M-285/K.?????????????????????????????????????????????????????????????????????????????? Petition dismissed.