1987 PLP 1402 (MLD)

(3) In the negative. (4 & 5) As follows. (6) In the negative. (7) In the affirmative. (8) The suit is decreed re. prayers (a) and (b). REASONS. ISSUES NOS.1, 2 AND 3.

6. The Plaintiffs have examined P. W. Rehmat Ali Khan and P. W. Bahadur Khan and have stated on oath that this land belonged to Pakistan Railways and its area was 63.13 acres. This was purchased by the Pakistan Railways from the private owners of the land. In the minutes of the meeting exhibit 4/4 it was clearly admitted by the officers of the Sind Government and the K.D.A. in clause (1) of para 3 that 63 acres Railway land had been acquired by the Railway separately. It was also admitted in the said minutes of the meeting that this piece of land as well as several other pieces of land referred in clauses 2, 3 and 4 would also be handed over by the K.D.A. to Pakistan Railway. Such original sketch and its copy have been produced as exhibits 5/3 and 4/3. It is therefore quite clear that the disputed land belonged to Pakistan Railways. The lease agreement exhibit 4/2 has been produced which shows that Pakistan Railway had leased out the said land to Plaintiff-society. A Notification of Ministry of Railways (Railway Board) Islamabad dated 17-2-1983 S.R.O.170(1)/83 is produced as exhibit 5/1 to show that Pakistan Railway had the power and authority to lease out their lands for the purpose beneficial for the Railway staff through Railway Employees Co-operative Housing Society.

7. The Defendant's witness Mr. Nisar Ahmad Mukhtiarkar Karachi East has given absolutely unconvincing and shaky evidence. He was not able to give proper reply to the questions put to him. The burden of proof, that the land belonged to the Government of Sind, was on the defendants. P.W. Nisar Ahmad being the Mukhtiarkar was supposed to be in possession of Revenue records. When asked about the possession of the land in dispute measuring 63.13 acres in the said record he gave an evasive reply by saying that since the survey numbers of this land were not given therefore he was not able to say as to what was the position of this disputed land in the said record. He was then referred to the sketch wherein the details of the land in dispute were mentioned. Even then he did not give any clear reply and avoided to say as to whom this land belonged in the Revenue Record. His evidence is therefore of no help to the Court. It may be pointed out that if the Government of Sind claimed to be the owner of this land it was its duty to prove the ownership by documentary evidence which was supposed to be in its possession. The defendants have taken two inconsistent stands about this land. The first is that it belongs to Provincial Government and the second is that it is an evacuee land. Since the Government and K.D.A. had already handed over the possession of this land to the Pakistan Railway, it was the duty of the Defendants to prove that the land does not belong to the Railway, and that the delivery thereof to Railway was illegal.

8. The Plaintiffs are also not clear on the point as to how the Pakistan Railway acquired this land. In the plaint they have stated that this land was occupied by K.D.A. in Scheme 24 and subsequently in pursuance of the decision of the high level meeting, the minutes of which are Ex.4/4 it was handed over to Pakistan Railway. Then their Field Officer P.W. Rahmat Ali Khan has deposed that this land belonged to Sind Government and was handed over to Pakistan Railway for construction of Railway Station. Finally their Secretary General P. W. Bahadur Khan has stated that 63 acres of this land was purchased by Railway from private owners, while 18 acres of land was given to Pakistan Railway by K.D.A. in lieu of the land encroached upon by it in Gulshan-e-Iqbal Scheme. The fact as to who was the owner of this land before Pakistan Railway may not be clear, but it is quite clear that at present Pakistan Railway and through them the Plaintiffs are the owners of this land. I therefore hold these issues accordingly. ISSUES NOS.4 AND 5.

9. It may be pointed out that there was a dispute regarding the land in question at one stage and therefore the said dispute had to be resolved through a meeting of the respective departments held under the Chairmanship of Chief Secretary Sind. It was in pursuance of the said meeting that the possession of the said land was delivered to Pakistan Railway. The action of the defendants regarding demolition of the Plaintiffs' wall and their directions to the respective officers for stopping the work of construction of Housing Society appears to be bona fide and based upon a misunderstanding, which is clear from the fact that even the plaintiff were not fully aware about the origin of the title of this land as gown above. In this connection it will be useful to reproduce the contents of a letter written by Commissioner Karachi to Chief Secretary Government of Sind Ex.6/1. "Chief Secretary, Government of Sind, Karachi. Sub:-?? MINUTES OF MEETING HELD ON 17-8-1980 REGARDING LAND CLAIMED BY PAKISTAN RAILWAY. It will be recalled that in the meeting held under the Chairmanship of the Chief Secretary it was decided inter alia that unencumbered land available in the Gulshan-e-Iqbal will be handed over to the Pakistan Railways for establishing a Central Terminal Station. The K.D.A. has recently handed over the entire land available for the Railway Station in Gulshan-e-Iqbal. (2) It has now been revealed from the letter of Deputy Commissioner Karachi East copy enclosed and the letter of 20-11-1980 from the Divisional Superintendent Pakistan Railways Karachi that the land has been unauthorisedly handed over by the Divisional Superintendent to Railway Employees Co-operative Housing Society for inclusion in the Railway Housing Scheme. This is not only against the decision of the meeting but is also against all rules and laws applicable in such cases. The land was given to Railway for establishment of a Railway Station and not for private housing societies. In fact conversion of amenity site to a residential plot is a punishable offence and the allotment is liable to cancellation. I am, therefore, directing the Deputy Commissioner East to resume the possession, of the land and not to allow the Railways to utilize it for the housing purpose. Sd/- (M.M. Usmani) Commissioner Karachi Division." Hence it cannot be said that they had acted in a mala fide manner. I therefore do not propose to grant any compensation on account of demolition of the Plaintiffs' wall. ISSUES NOS.6 AND 7.

10. Since I have already held that the land belonged to Pakistan Railway which had been acquired by it from the private owners in part and from Sind Government in part or entirely from Sind Government and that the said land was leased out by Pakistan Railway to the Plaintiff Society in a valid and legal manner therefore the defendants were not competent to resume the land and their action was illegal, void and without jurisdiction.

11. These are the reasons for which I decreed the Plaintiff's suit with regard to clauses (a) and (b) of their prayers. In the peculiar circumstances of this case I also decided to not to award any compensation to the Plaintiffs and further ordered that the costs of the suit be borne by the respective parties. M. Y. H./P-24/ K.?????????????????????????????????????????????????????????????????????????????? Suit decreed.