P L D 2005 Karachi 302 (PLP)

RATE PER ACRE LAND VALUE 15% STATUTORY ALLOWANCE INTEREST ON COL. 8 & 9 TOTAL AMOUNT PAYABLE REMARKS

1. Mr. Mahmood s/o Angario 0-4-0 21 14-20 14-20 Rs. 18(a) 6525.00 978.75 450.22 7953.97 Paid by pay order on 25-7-1963

2. Mr. Mohd. Hussain s/o Angario 0-4-0 6525.00 978.75 450.22 7953.97

3. Mr. Usman s/o Bakhar 0-2-4 3806.25 570.10 262.60 4638.95

4. Mst. Basra d/o Bakhar 0-1-2 1903.12 285.5 131.30 2319.47

5. Mst. Hawi w/o Bakhar 0-0-6 815.63 123.60 56.34 995.57

6. Mr. Moosa s/o Isso 0-4-0 6525.00 978.75 450.22 7953.97 1-0-0 26,100.00 3915.00 1800.90 31,815.90 Moosa s/o Isso has Leaving the following Expired heirs (a) Mr. Qasim s/o Husain 0-1-4 14-20 14-20 1800/- Paid separately by pay order under letter dated 13-8-1963 2651.32 (b) Mr. Isso s/o Husain 0‑1‑4 2651.32 (c) Mst. Fatima d/o Husain 0‑0‑8 1325.66 (d) Mst. Hawa d/o Husain 0‑0‑8 1325.66 7953.97 The perusal of record also shows that the amount of compensation was received by Mahmood son of Angario, Muhammad Husain son of Angario, Usman son of Bakar, Basra daughter of Bakar. Hawi wife of Bakar and Mooso son of Isso, on his death, compensation was paid to his legal heirs, namely Qasam son of Husain, Isso son of Hussain, Fatima daughter of Husain, Hawa daughter of Husain on 15‑8‑1963. There is also an undated application by Usman and Qasam, stating therein that they received the compensation awarded under protest with a request that the case may kindly be referred to the Court under section 18 of the Land Acquisition Act, it contains a submission note that it was filed on 19‑6‑1966. Matter was not referred under section

18. No step was taken by the original Khatedars, challenging the acquisition with regard to the compensation or the area of the land acquired. Nazir's report dated 24‑3‑2004 in pursuance of order dated 19‑3‑2004 is in the following terms:‑ "The land about 12 acres was bounded with old boundary walls of which southern side wall was found only half. About 7 acres 10 Ghuntas was in possession of plaintiff, one Haji Yameen was present for them. Two iron big old gates with north side boundary wall and old room 10 x 10 feet each without plaster were available with the boundary wall of east, north and west. With chappar 75 buffaloes were standing on west portion. Adjacent to the boundary wall of eastern side there was a wall of height of 6 feet of 90 x 20 feet length and width without plaster available. Remaining land was open to sky. The land about 3 acres or moreso out of 12 acres was found open to sky with the possession of Naeem his servant Arif, who was supervising the bifurcating wall between 7 acres 10 Ghuntas and 3 acres or more so which was found at the time of inspection up to the foundation level of which eastern portion about 30 RFT raised up to 5 feet height. The entrance of 3 acres portion is from the portion of 7 acres 10 Ghuntas of the plaintiff." I have heard Mr. Abid S. Zuberi, learned counsel for the plaintiffs. Mr. Khwaja Shamsul Islam, learned counsel for the defendants 1 to 5, Mr. Abbas Ali, Additional Advocate‑General for defendants 6, 7 and 10 and Mr. Manzoor Ahmed, learned counsel for defendant No.9, who has adopted the arguments of the learned Additional Advocate General. The principles for the grant or refusal of temporary injunction are:‑‑ (a) whether the plaintiff has prima facie good case; (b) whether the balance of convenience lies in favour of grant of injunction and lastly; (c) whether the plaintiff would suffer irreparable loss if the injunction is refused. These principles are to be applied on the basis of facts and circumstances of the case. Plaintiffs need to establish is that there is a prima facie existence of a right and‑threatened infringement. The learned counsel for the plaintiffs in support of the application contended that the plaintiffs are bona fide purchasers from the ostensible owners and they were put in possession as such they have a good prima facie case and his further contention was that the land was not acquired and even if it was acquired, it cannot be said to be legally acquired for want to gazette notifications under sections 4 and 6 of the Land Acquisition Act. He maintained that in case; the injunction is not granted, the plaintiffs would suffer loss that which cannot be compensated in terms of money. Opposing the injunction application, learned Additional Advocate‑General contention was that the land was acquired for Public purpose in the year 1961, compensation was paid to the original Khatedars in the year 1963 for establishment of Wools Washing Area, Godown and tanneries etc., by K.M.C. Once the original Khatedars have received the compensation, no further proceedings were taken by them, land so acquired vest in the Government and subsequently transferred to the KMC and original Khatedars have no right nor the legal heirs could have any right in the land so acquired and any mutation in favour of the legal heirs and subsequent sale by them by registered sale‑deeds or otherwise will not confer any right and title to the plaintiffs over the land. Learned counsel for the defendants Nos. 1 to 5's contention was that the KMC by public auction, auctioned the plots and the defendants purchased the Plots Nos. 75, 76, 77, 88, 89, 90, 99, 100, 113, 114 of the Wool Washing Areas, Landhi Cattle Colony, Karachi, total measuring 40,000 sq. yards and all the allottees are relatives inter se, and they chosen to cover all the area with one boundary wall by affixing two iron gates in order to save the property from the land grabbers. He maintained that the defendants were in peaceful possession and they were dispossessed by throwing out the Chowkidar by force. He further maintained that the Revenue staff with collusion with heirs of Usman son of Bakar have manipulated the Revenue record. His submission was that the plaintiffs have no right and title in the property. In case the injunction is granted, the actual owner would suffer and they cannot be compensated in terms of money. Elaborating first contention, learned counsel for the plaintiffs contended that the plaintiffs have purchased the property from legal heirs, as such, they are protected in terms of section 41 of the Transfer of Property Act. Learned counsel for the plaintiffs with vehemence has contended that the plaintiffs have taken all the precaution, they have obtained the Heirship Certificate, mutation is in the name of legal heirs and after obtaining the no objection from the Revenue, have entered into, sale transaction through sale‑deeds, thus‑they are protected under section 41 and his further contention was that even if the land was acquired in absence of Gazette notification under sections 4 and 6 of the Land Acquisition Act, all the proceedings were nullity in the eye of law and no right of the original owners had extinguished and to support his contention, referred the case of Pakistan through Secretary, Ministry of Defence and others v. Late Ch. Muhammad Ahsan through legal Heirs and others (1991 SCMR 2180). Section 41 of the Transfer of Property Act reads as follows;- "

41. Transfer by ostensible owner.‑‑‑ Where, with the consent, express or implied, of the 'persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be viodable oh the ground that the transferor was not authorized to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith." Celebrated Author, Mulla in his book "Transfer of Property Act" has pointed out the foundation of this section by referring a passage from the judgment of the Judicial Committee in Ramcoomar v. Macqueen (1872) 11 Bengal Law Report 46"‑‑ "It is a principle of natural equity which must be universally applicable that, where one man allows another to hold himself out as the owner of an estate and a third person purchases it, for value, from the apparent owner in the belief that he is the real owner, the man who so allows the other to hold himself out shall not be permitted to recover upon his secret title, unless he can overthrow that of the purchaser by showing either that he had direct notice, or something which amounts to constructive notice, of the real title; or that there existed circumstances which ought to have put him upon an inquiry that, if prosecuted, would have led to a discovery of it." The section is a statutory application of the law of estoppel and makes an exception to the rule that a person cannot confer a better title than he has. The principle underlying the provisions of the section is "whenever one of the two innocent persons has to suffer by the act of a third person he who has enabled the third person to occasion the loss must sustain it." The following conditions are necessary for the application of the section, namely:‑ (i) the transferor is the ostensible owner; (ii) he is so by the consent, express or implied, of the real owner; (iii) the transfer is for consideration; (iv) the transferee had acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer. Reference in this behalf can be made to the case of Kanwal Nain and 3 others v. Fateh Khan and others (PLD 1983 SC 53). Next question is as to whether the plaintiffs are bona fide purchasers and are entitled to the benefit of section 41 of the Transfer of Property Act. This question came up for consideration in Muhammad Yamin and others v. Settlement Commissioner and others (1976 SCMR 489), wherein it was held that where it was found that the vendor has no right, title or interest in the demised property, no protection can be given to him on the basis of section 41 of the Transfer of Property Act. The same rule was reiterated in (1) Bashir Ahmed and others v. Additional Commissioner and others (1983 SCMR 1199), (2) Manzoor Hussain v. Fazal Hussain and others (1984 SCMR 1027) and (3) Ejaz Ahmed Khan v. Chahat and others (1987 SCMR 192). Now the question is whether the mutation entries in the Record of Rights creates any title in favour of any person. In Nirman Singh v. Rudra Partab Narain Singh (AIR 1926 PC 100); Judicial Committee held that "mutation proceedings are not judicial proceedings in which title to and proprietary rights in immovable property are determined but that they are much more of the nature of fiscal enquiries institued in the interest of the State for the purposes of ascertaining which of the several claimants for the occupation of certain denomination of immovable property may be put into occupation of it with greater confidence that the Revenue for it will be paid." The same view was reiterated in Ram Sarup Rai v. Charitter Rai (AIR 1927 Allahabad 339), Rasulan Bibi v. Nand Lal (AIR 1914 Allahabad 521), Mahadeo Singh v. Jagmohan Singh (AIR 1914 Oudh 235), Mst. Jagrani v. Bisheshar Dube (AIR 1916 Allahabad 1) and Baldeo Singh v. Udal Singh (AIR 1921 Allahabad 248). Judicial Committee reaffirmed its view that "the mutation of names sanctioned by the Revenue Authorities does not confer title and an order passed in mutation proceedings on the basis of an unregistered deed cannot validate the transaction covered by that deed so as to make it admissible in evidence without registration". The view expressed by the Judicial Committee was also followed in case of Kaniz Fatima v. Member Board of Revenue (PLD 1972 Lahore 495), that the mutation does not create a title in favour of the person and also does not adversely affect the rights of any person. It is only for correcting the entries in the Revenue Record to facilitate the recovery of the land revenue. In Muhammad Ali v. Hassan Muhammad (PLD 1994 SC 245), the apex Court has approved the view expressed in the above cases that "it is well‑settled that entries in the Revenue Record can neither create nor extinguish the title to the property. These entries are maintained mainly for fiscal purposes". Apparently, the conditions 1, 2 and 3 are missing in the instant case, therefore, this plea is not available to the plaintiffs. The second contention of the learned counsel for the plaintiffs was that in absence of Gazette Notification, the proceedings are illegal and without jurisdiction and the right of the original owner is not extinguished. Conversely, learned Additional Advocate‑General and the learned counsel for the private defendants have with vehemence contended that once the land has been acquired in accordance with the law and the compensation was received by the original owners and the register of village Form‑VII pertaining to the years 1936‑37 and 1966‑67 contains the entries against Survey No.21, that on verification of record of file, it transpired that Survey No. 21, 14.20 acres, Deh Ghangiaro was acquired for, Wool Washing by KMC as per Notification 19/64/61 Rev dated 20‑10‑1961 of the Deputy Commissioner, Karachi. It was canvassed that under the provisions of section 129 (e) of the Qanun‑e- Shahadat presumption is attached to the judicial and official acts that same have been regularly performed and on the basis of presumption of law which has not been dislodged by the plaintiffs, it has to be presumed that the disputed land was acquired after observing all the formalities of law and as such, legal heirs had no vested right in the land when the compensation was already received by the actual khatedars. They have also placed their reliance on the judgment referred by plaintiffs' counsel. I have referred the acquisition proceedings taken for the acquisition of Survey No.21, Deh Ghanghiaro. The Survey No.21 was inclaved with the Government land, which was given to the KMC for Wool Washing and tanneries purposes. The notifications under sections 4 and 6 were issued and sent to the Manager, Government Press of Pakistan, Karachi for publication in Karachi Gazettee, Khatedars, namely Mahmood Angiaro, Muhammad Husain, Usman Bakar, Kibrani, Hawa and Mooso were served with notice under section 9 of the Land Acquisition Act. Mooso son of Isso died during the proceeding his legal heirs Qasim. Isso, Fatima and Hawai were paid compensation after the award. Once the possession of land under subsection (1) of section 17 has been taken the land vest in the Government. The term "vest" used in sections 16 and 17 of the Act came for interpretation before the Supreme Court of India in The Fruit & Vegetable Merchants Union v. The Dehli Improvement Trust (AIR 1957 SC 344), it was held that the sections 16 and 17 of the Land Acquisition Act, provide that the property so acquired, upon the happening of certain events, shall "vest absolutely in the Government free from all encumbrances". In the cases contemplated by sections 16 and 17 the property acquired becomes the property of Government without any conditions or limitations either as to title or possession. The legislature has made it clear that the vesting of the property is not for any limited purpose or limited duration. It would thus appear that the word "vest" has not got a fixed connotation, meaning in all cases that the property is owned by the person or the authority in whom it vests. I am of the view that once possession of land has been taken over under section 17(1), the original Khatedars accepted the compensation without protest or otherwise have not challenged the acquisition proceedings and after about 40 years, the plaintiffs cannot challenge the acquisition proceedings. It is the case of the plaintiff that suit‑land measuring about 7‑10 acres was sold to them through two sale deeds, Annexures P‑1 and P‑

14. The perusal of the sale deeds, the land sold was not shown bounded by the wall with gates. The schedule of the first deed is reproduced as follows:‑‑ Joint and divided shares to the extent of 0‑8‑0 share admeasuring 7 acres and 6 Ghuntas of the Vendors in all pieces or all portions of Kabooli Land bearing Survey No.21 Deh Gangiaro share of Khatedars as in the Deed, situated at Bin Qasim Karachi in the territorial jurisdiction of P.S Sikhan, District Sub‑District, City Taluka and Town of Bin Qasim, Karachi. Whereas the case of the defendants Nos. l to 5 is that they purchased the plot in Wool Washing Area through public auction from KMC and they have raised boundary wall and affixed the gate. The version given by the defendants is supported by the Nazir's report referred to above that the area covered by the boundary wall is in excess of the area claimed by the plaintiffs. The plaintiffs are purchasers from the legal heirs of original Khatedars who have already received the compensation. The land has changed its character after acquisition from agricultural to industrial. The sellers had no right in the property. Therefore, I am of the view that the plaintiffs have no prima facie case nor the balance of convenience lies in their favour, on the contrary if the injunction is granted, the owners of the plots, who have purchased it from KMC would suffer and would be more inconvenienced. In the light of above discussion, I am of the view that the plaintiffs have failed to make out a case for injunction, nor balance of convenience lies in their favour Consequently, the application is dismissed. M.H/M‑190/K Application dismissed.