2020 PLP 35 (YLRN)

ADNAN IQBAL CHAUDHRY, J.

By this application under section 12(2), C.P.C., the Applicants pray for setting aside the judgment and decree dated 29.05.2014 passed in Suit No.1561 of 2010 in favour of the Respondents 1 and 2, on the ground that the same had been obtained by fraud and mis-representation.

2. The Respondents 1 and 2 claim to be owners of 10 acres in Naclass No.1, Deh Songal, District Malir, falling in Sector 31 of KDA Scheme No.33, Karachi ('the Suit Land'). On 11-10-2010 they filed Suit No.1561/2010 ('the Said Suit') alleging that land grabbers, with the collusion and connivance of Revenue officials and the Police, trespassed onto a part of the Suit Land and claimed it as land of a village allotted to them by the Government. The Respondents 3 to 8 herein were arrayed as defendants in the Said Suit which prayed as follows: "A. To declare that the plaintiffs are absolute and exclusive lessees/lawful owners and in legal/ constructive/physical possession of the land/property admeasuring 10 Acres situated at Naclass No.1, Deh Songal, District Malir Karachi, as it appears and seen in the layout plan/site plan issued by the Executive Engineer R & D Division II Scheme No.33, K.D.A. Karachi, as well as Land Utilization Department Karachi, and that the Plaintiffs are entitled to possess and use the same for their benefit without any let, hindrance and interference from the Defendants and all persons claiming to act under or through them; B. Grant permanent/mandatory injunction restraining Defendants their agents, subordinates, workers, officers, person/persons acting under or through them from creating third party interest in the plaintiff's suit property/ land or allowing the land grabbers to trespass the land of the Plaintiffs in collusion and in league with them (Defendants), thereby making and an impression as if the land belongs to a village; C. To declare that the land does not belongs to any Gothabad Scheme, nor any Goth or Village could be announced on the subject land as being private land of Plaintiffs. D. Direct the Defendant No.3 and any other law enforcing agency including Anti Encroachment Cell of Land Utilization Department Board of Revenue/and District Officer Revenue to get the land vacated (trespassed portion under the guard of village) and physical vacant possession same be handedover to the Plaintiffs and allow them to raise boundary wall on their 10 Acres of Land under the supervision of Defendants or otherwise. E. Any other relief or reliefs that deems fit and proper under the circumstances of the case. F. Cost of the suit."

3. On the apprehension of the Respondents 1 and 2 that Revenue officials may give legal cover to trespasses on the Suit Land under the garb of a village settlement, on 11-10-2010 an interim order was passed in the Said Suit restraining the Respondents 3 to 8, which included the Board of Revenue, from creating third party interest in the Suit Land.

4. On 21-02-2011, the counsel representing the Board of Revenue in the Said Suit stated before the Court that no village/Goth was being created on the Suit Land by the Government, nor any other third party interest, and requested the Court to dispose of the Said Suit on the basis of such statement. However, on the request of the Respondents 1 and 2 (plaintiffs) the Said Suit was adjourned.

5. On 06-04-2012, the Secretary, Land Utilization Department issued the following letter: Karachi, dated 06-04-2012 The Deputy Commissioner (Malir), Karachi GRANT OF LEASE HOLD RIGHTS FOR 99 YEARS LEASE TO OCCUPANTS/INHABITANTS OF 70 (SEVENTY) VILLAGES SITUATED IN DISTRICT MALIR, KARACHI

1. Reference your letter No..... dated 21.03.2012 and No .. dated 05.04.2012 on the subject noted above.

2. The Chief Minister Sindh has been pleased to approve grant of lease hold rights to the occupants / inhabitants of built up units of the following 70 (seventy) villages situated in District Malir, Karachi. Sr. # Name of Village Deh Survey/ N C. No. Area in acre Built-up Houses 35 Darya Khan Songal - 16-00 450

3. The Hon'ble Chief Minister Sindh has further approved that the occupancy price shall be charged at the rates of Zone-VI of Karachi Abadi as the land is similar to the land of Baldia, Maripur and Surjani which falls in Zone-VI.

4. The list of built up units of above 70 (seventy) villages situated in District Malir, Karachi sent by you was annexed with the summary and the same has been approved and as such no allotment letter is to be issued in respect of any unit and in the name of any person which is not included in this list without prior permission of Land Utilization Department.

5. You should ensure that the allotment orders are issued to be occupants of built-up units of above villages on State land after proper verification and under proper supervision, subject to condition that the land in question is free from litigation/duplication and all encumbrances. Sd/- SECRETARY GOVERNMENT OF SINDH LAND UTILIZATION DEPARTMENT"

6. To the extent that the above letter approved the grant of land by the Government to occupants/inhabitants of Village Darya Khan in Deh Songal, the same was agitated by the Respondents 1 and 2, as according to them, the 16 acres approved for Village Darya Khan included the 10 acres of their Suit Land. Thus the Respondents 1 and 2 moved a contempt application (C.M.A. No.11320 of 2013) in the Said Suit against the Chief Minister Sindh for violating the restraining order dated 11-10-2010 passed in the Said Suit whereby the defendants of the Said Suit, which included the Board of Revenue, had been restrained from creating third-party interest in the Suit Land.

7. When confronted with the contempt application, the Secretary Land Utilization Department, vide letter dated 01-04-2014, pointed out to the concerned Deputy Commissioner that the land approved for grant to villages vide letter dated 06-04-2012 was on the condition that the land should be free from litigation/duplication, and since the land granted to Village Darya Khan had been granted pending the Said Suit, the grant made to Village Darya Khan was cancelled as follows: "Karachi, dated: 01-04-2004 The Deputy Commissioner East, Karachi Subject: SUIT No.1561 OF 2010 - FILED BY WASHEEDUDDDIN SIDDIQUI VERSUS PROVINCE OF SINDH AND OTHERS.

2. Accordingly, you are directed to cancel the 10-00 acres land and all, correspondence. Challans/ Sanads/ Mutations immediately made on behalf of Village Darya Khan involved in above referred suit and take over the possession of suit land and also the remaining area of 06-00 acres of State land, if available may be regularized in accordance with Law/Policy/Rules.

3. This letter issued with the approval of Senior Member, Board of Revenue, Sindh Karachi. Sd/- SECRETARY TO GOVERNMENT OF SINDH LAND UTILIZATION DEPARTMENT"

8. In view of the above cancellation letter dated 01-04-2014, the Respondents 1 and 2 (plaintiffs) moved C.M.A. No.6992/2014 in the said Suit under Order XII, Rule 6, C.P.C. to decree the said Suit in terms of the letter dated 01.04.2014. When that application came up before the Court, the counsel for the Board of Revenue conceded to a decree in terms of the letter dated 01-04-2014. Consequently the following decree (the impugned decree) was passed in the said Suit on 29-05-2014: " The Plaintiff has filed an application under Order XII, Rule 6/W section 151, C.P.C. being C.M.A. No. 6992/2014 which is allowed. Accordingly it is hereby ordered that the suit is decreed in terms of letter dated 01.04.2014. (Certified true copy of letter dated 01.04.2014 is attached, which will deem to be part of decree)."

9. Pursuant to the aforesaid decree passed in the Said Suit, the Respondents 1 and 2 filed Execution Application No.12/ 2015 to enforce the same. It was thereafter, in 2016, that the Applicants moved the instant J.M. to challenge the said decree when, as alleged by the Applicants, they acquired knowledge of the said decree.

10. Mr. Nasarullah Malik, learned counsel for the Applicants submitted that the impugned judgment and decree have been obtained by fraud and misrepresentation by concealing that the Suit Land was part of Village Darya Khan; that the Applicants had been residing thereat from the time of their forefathers; that in view of their long standing possession of the Suit Land, the Government of Sindh had regularized the same and the Deputy Commissioner had allotted plots therein to the Applicants in exercise of powers under the Sindh Colonization and Disposal of Government Lands Act, 1912; that the subsequent cancellation of their allotment letters/ sanads vide letter dated 01-04-2014 was an unlawful act of the Government. Learned counsel submitted that the fraud was apparent from the fact that even though the parties to the said Suit had knowledge that the Applicants were in possession of the Suit Land, still they did not make the Applicants party to the said Suit. He submitted that in any case, since the Suit Land was in an un-surveyed area and had not been demarcated, therefore this J.M. ought to be decided after recording evidence so as to determine whether it was a case of overlapping boundaries.

11. On the other hand, Barrister Abdul Rehman, learned counsel for the Respondents 1 and 2 (plaintiffs) submitted that the Applicants were land grabbers who had been facilitated by Government officials in encroaching the Suit Land; that the said Suit had been brought for relief against the unlawful encroachment caused by Government officials; that in passing the impugned judgment and decree the Court was fully conscious that it was ordering the removal of encroachers and therefore the question of fraud or misrepresentation did not arise. Learned counsel submitted that encroachers (Applicants), who cannot claim any legal right or interest in the Suit Land, were not required to be made parties to the said Suit. He submitted that in any case, in the given circumstances there was no way of determining who that fluctuating body of encroachers was so as to name them as parties in the said Suit. Learned counsel pointed to the record of the Said Suit to submit that while the title of the Respondents 1 and 2 to the Suit Land and their possession since 1985 was beyond doubt, the Applicants cannot show that they were in possession of the Suit Land prior to 2010 when they trespassed thereon; that the reliance placed by the Applicants on allotment letters/sanads issue to them by the Deputy Commissioner was of no use as such allotment letters stood cancelled by the Government vide letter dated 01.04.2014 which cancellation has not been challenged by the Applicants to-date. He submitted that the grant of the suit Land to the Applicants was in any case unlawful as the same was not State land and that such grant had been made in violation of the restraining order dated 11-10-2019 operating in the said Suit.

12. Learned counsel for the Board of Revenue too opposed this J.M. He relied on the counter-affidavit filed on behalf of the Board of Revenue to submit that the grant of land vide letter dated 06-04-2012 was approved by the Chief Minister Sindh only for those villages where the inhabitants had set up built-up units prior to the year 2000, but that such grant made to the Village Darya Khan was subsequently cancelled. He stated that the Applicants were encroachers who were in unlawful possession not only of the 10 acres of the Suit Land belonging to the Respondents 1 and 2, but also 6 acres of the adjoining State land.

13. Heard the learned counsel and perused the record. The background in which the impugned judgment and decree was passed, discussed in paras 2 to 8 above, is also to show that the ownership of the Respondents 1 and 2 in the Suit Land was not an issue between the parties to the said Suit. The Board of Revenue had never disputed such ownership in view of the following record of the said Suit: (i) Letter dated 04-12-1985 issued by the Deputy Commissioner Karachi (East), lease of even date, and Form VII dated 08.01.1986 to show that the Suit Land was originally held by the Respondents 1 and 2 on a 3 year lease; (ii) Letter dated 15-09-1999 issued by the Secretary, Land Utilization Department, Government of Sindh, to show that the Suit Land was then granted to the Respondents 1 and 2 for 99 years under section 10(1) of the Sindh Colonization and Disposal of Government Lands Act, 1912; (iii) Letter dated 01-09-2007 issued by the Secretary, Land Utilization Department, Government of Sindh, and From II dated 02.11.2007 to show that the Suit Land had been regularized in favour of the Respondents 1 and 2 by the Land Committee constituted under Ordinance III of 2001 and thereafter the Suit Land was mutated to their names; (iv) Record of a previous Suit No.963/2004 that had been filed by the Respondents 1 and 2 wherein the Board of Revenue had admitted that the Suit Land had been regularized in favour of the Respondents 1 and 2 under Ordinance III of 2001, and on which basis the Respondents 1 and 2 had withdrawn Suit No.963/2004.

14. When the Respondents 1 and 2 brought to the notice of the Court in the Said Suit that the 16 acres granted by the. Board of Revenue to Village Darya Khan vide letter, dated 06-04-2012 was overlapping 10 acres of the suit Land, that such grant to the village had been made in violation of the restraining order dated 11-10-2010 prevailing in the said suit and in violation of the undertaking given on behalf of the Board of Revenue to the Court on 21-02-2011, the Board of Revenue retracted its steps and proceeded to issue the letter dated 01-04-2014 (para 7 above) to cancel the grant made to the village. In my view, the said letter dated 01-04-2014 was an acknowledgement by the Board of Revenue that the grant made to the purported residents of the purported Village Darya Khan had overlapped the Suit Land which was the property of the Respondents 1 and 2 and that the allotment letters/sanads that had been issued by the Deputy Commissioner Malir to the villagers did not adhere to the condition of the grant viz., that the land should be free from litigation/duplication. Thus vide letter 01-04-2014 the Board of Revenue moved to remedy the situation and to restore status quo ante by issuing instructions to cancel the allotment letters/ sanads issued to the villagers/ Applicants, and since it had contributed to the unlawful occupation of the Suit Land, the Board of Revenue took upon itself to get the Suit Land vacated from such occupants. Therefore, when the plaintiffs of the Said Suit (Respondents 1 and 2) had prayed to the Court for a decree in terms of the letter dated 01-04-2014, and when the Board of Revenue conceded to such decree, they did not play fraud on the Court nor did they make any misrepresentation. The impugned decree against the Board of Revenue "in terms of letter dated 01.04.2014" is essentially one for restitution of the Suit Land to Respondents 1 and 2.

15. Mr. Nasarullah. Malik, learned counsel for the Applicants had contended that the fraud and misrepresentation was that the Applicants were not made party to the said Suit and their possession of the Suit Land and been concealed from the Court. But that contention, as also pointed out by Barrister Abdul Rahman, is negated by the fact that the very suit had been brought to free the Suit Land from persons who were alleged to be encroachers, and thus in passing the impugned judgment and decree, the Court was fully conscious that the decree would entail the removal of those persons from the Suit Land who were not before the Court. Nevertheless, fraud or misrepresentation cannot be inferred solely on the ground that the Applicants were not made party to the said Suit, and for that the Applicants would first have to demonstrate that the impugned judgment and decree infringed a legal right or interest of the Applicants in the Suit Land, for it cannot be argued by the Applicants that their grant was cancelled by the Board of Revenue as a result of the impugned judgment and decree when in fact the said judgment and decree had followed the cancellation and it was not that the cancellation had followed the judgment and decree.

16. The thrust of the submissions of Mr. Nasarullah Malik, learned counsel for the Applicants, was that the impugned judgment and decree is oblivious to the long standing possession of the Applicants of the Suit Land. But even assuming that a long standing possession of the Suit Land without any title thereto would bestow the Applicants with a legal interest in the Suit Land, nothing has been placed on the record to demonstrate the alleged long standing possession. The electricity bills annexed with the application are all for the year 2016. The photographs annexed to the application to show structures existing on the Suit Land go against the Applicants as all these photographs show new construction, most at an unfinished stage. The photocopy of the map (Annexure E), relied upon as being the alleged survey of the Village Darya Khan, said to be signed by the Mukhtiarkar and Tapedar, is neither a sketch prepared in their hand nor does it bear any date. In fact, one look at the said map will show that it cannot conceivable be a map or survey of a village. While a letter dated 02.12.2010 issued by the Mukhtiarkar (Revenue)/ ACSO (Annexure D/1) sales that "The representative of Goth Darya Khan Rind has provided the photo stat copy of voter list which shows that census was carried out in said village in 2000-2001, and birth certificate of Union Council No. 13 issued in 2003, it appears that existence of village is old one."; but neither that voter list nor the birth certificate is attached to the said letter. In any case, the letter of the Mukhtiarkar is not supported by proceedings required by Condition Nos. 4 and 5 of the Statement of Conditions bearing Notification No.09/ 298/03/983/08/SO-I dated 21.11.2008, under which the grant to the Applicants is said to have been made, viz., the determi-nation of genuineness of the existence of the village and the determination of the market price of the land.

17. During the course of arguments, learned counsel for the Applicants was categorically asked whether the Applicants had any other document to show their long standing possession of the Suit Land, to which his reply was that the allotment letters/sanads issued to the Applicants were proof in itself of that matter. But the said allotment letters/ sanads, though none of them (except for one) bear any date, were admittedly issued after the letter of grant dated 06.04.2012 and cannot be evidence of any prior possession. Further, nothing has been placed on record to show that Condition No.2 to the allotment letters/ sanads viz., the execution of a registered conveyance deed to acquire proprietary right in the land, had ever been complied with. Interestingly, the allotment letters/ sanads placed on the record show that more than one plot, and at places even five plots have been allotted to one person. In view of the above, the said allotment letters/sanads are no evidence of the alleged long standing possession of the Suit Land by the Applicants. Admittedly, the said allotment letters/sanads were subsequently cancelled by the Board of Revenue, which cancellation was never challenged by the Applicants by independent proceedings.

18. On the other hand, the Respon-dents 1 and 2 had placed on the record of the Said Suit the lay out plan of the Suit Land attached to the erstwhile lease of the Suit Land dated 04-12-1985, and the sub-division plan of the Suit Land prepared in the year 2008 and signed by a Licensed Town Planner of the erstwhile KBCA and the Mukhtiarkar, and none of them show any village at or near the Suit Land.

19. It is laid down in the case of Warraich Zarai Corporation v. F.M.C. United (Pvt.) Ltd. (2006 SCMR 531) that it is not obligatory for the Court to frame issues and record evidence in each case brought under section 12(2) C.P.C. Also, in the case of Nasira Khatoon v. Aisha Bai it was held that the remedy under section 12(2), C.P.C. is not like a regular suit and the Court may dispose of such application without framing issues and recording evidence on the basis of available record if such record is considered sufficient. The Applicants having failed to substantiate their claim of long standing possession of the Suit Land and the allegation of fraud and misrepresentation, there is no further cause to probe by way of recording evidence. Consequently, this application under section 12(2), C.P.C. is dismissed. ZC/A-143/Sindh Application dismissed.