P L D 1984 Karachi 34 (PLP)

This Revision Application has been filed against the order of the First Appellate Court, whereby the order of the learned trial Court granting application under Order V11, rule 11, C. P. C. has been set aside. The respondents Nos. 2 to 6 filed a Civil Suit No. 3611 of 1978 against the applicant, and respondent No. 1 for declaration and injunction. Briefly the facts are that the respondents Nos. 2 to 6 claim to be Haris of Survey Nos. 37, 160 and 161 situated in Deh Chewari, Tapo Songal, Taluka and District Karachi. It has been alleged that originally the land belonged to Panjrapur Association, a Hindu Ckaritable Trust, and was taken on lease by the respondents Nos. 4 & 6 and their deceased brother Abdul Rehman. The respondents Nos. 2, 3 & 5 are the legal heirs of the deceased Abdul Rehman. It is alleged that they were leassees even before partition and have grown fruit trees and are cultivating the land regularly. The respondents have produced photostat copy of Khasra gurdawari and land revenue receipts to show that the land was recorded in the name of Abdul Rehman and respondents Nos. 4 and

6. It has also been alleged that these respondents used to pay land revenue to the Government as the Haris of the said land. The Evacuee Trust Property Board, the respondent No. 1, is the owner of the property and they continued to be its Haris. It has been alleged that the applicant manipulated with the Revenue Authorities for transfer of the said land in its favour and the Deputy Commissioner has transferred the said land to the applicant illegally, maliciously and without any lawful authority. Such transfer is alleged to be in infringment of respondent's legal rights as Haris: Photo copy of letter of Mukhtiakar dated 9th May, 1975, has been filed to show that the respondents Nos. 2, 4 & 6 are cultivating the land. This letter also mentions that the property has been transferred to K. D. A. for Scheme No.

24. The applicant brought bulldozer on 17-4-1978 to eject the said respondents who filed the suit for declaration that they are Haris of the said land and continue in possession thereof and for injunction restraining the applicant from ejecting them. The applicant filed written statement, in which preliminary objections were taken (i) that the suit is not maintainable, (ii) the suit is incompetent for want of mandatory notice under Article 131 K. D. A. Order (iii) that the suit is barred under provisions of Sind Public Properties (Removal of Encroachment) Act, 1975., and (iv) that the Court has no jurisdiction to proceed with the suit. On merits it was stated that the land was Evacuee Trust Property and has been acquired alongwith other land for K. D. A. for its Scheme No. 24 against payment of due compensation under the Award. The copies of Notification; Award, payment made by K. D. A. and acceptance by the Evacuee Trust Board were filed with the written statement. It has been stated that the procedure provided under law for clearing the property has been complied with. The applicant has denied that the land was given on lease to the respondents. It has been alleged that in fact Survey No. 37 was given to Abdul Rehman in the year 1949 and his name appeared as Hari in 1952-53. It has also been denied that the respondents are in possession of the property. The applicant also filed an application under Order VII, rule 11, C. P. C. for the rejection of the plaint mainly on the- basis of the preliminary objections that were raised in the written statement. The trial Court by order dated 19-12-1978 rejected the plaint, but this order was set aside by the impugned order. Mr. A. A. Fazeel, the learned counsel for the applicant has contended that in the plaint no averment has been made that notice under -Article 131 of the K. D. A. Order hereinafter referred as `the Order' has been served. This aspect of the case has not been considered by the learned Appellate Court, and therefore, on this basis alone, the plaint should be rejected, while considering an application under Order VII, rule 11, C. P. C. the Court has to proceed on the assumption that the averments made in the plaint are correct. If on the basis of sucn averment the suit is barred by any law the plaint shall be rejected. It is correct that in the plaint no averment has been made that notice under Article 131 has been served on K. D,. A. This is not the case of the respondent that such a notice has been served. The learned counsel for the applicant has referred t P L D 1978 Kar.

848. However, it is not in every case that notice unde Article 131 is necessary before instituting a suit against K. D. A. Such notice is necessary against K. D. A. if suit has been filed in respect of an act purporting to be done under the order or the Rules or Regulations mad thereunder. From the averments made in the .plaint it is clear that the respondents have challenged the action of application on the ground that their action for dispossessing them is illegal, without jurisdiction and not according to law as the property belongs to Evacuee Trust Property Board. To sub­stantiate its allegation, the applicant has filed some documents with the written statement that the property has been acquired and vests in K_ D. A. In my view, for purpose of rejecting the plaint under Order VII, rule 11 the Court is not competent to look into the averments made in the written statement or documents filed by the defendants. The Court has to look into the averments made in the plaint. Faced with this situation, the learned counsel for the applicant referred to annexure `G' to the plaint, in which it has been stated that the property in dispute has been transferred to K. D. A. for Scheme No. 24 as specified by the Deputy Commissioner's letters dated 11-5-1978, and 11-3-1978. By producing these letters the respondents do not admit that the property has been validly acquired and lawfully vests in K. D. A.The object of .the respondent was to show that they are in possession of the land. From the averment made in plaint it is clear that the respondents do not admit that the property vests in K. D. A. In fact a clear statement has been made that it belongs to respondent No.

1. Amazingly enough the respondent No. 1 has also filed its written statement, in which it has been pleaded that Evacuee Trust Property Board is the owner of the property in question. I am not influenced, by such statement in the written statement of respondent No. 1 but had only referred to point out that the same stand has been taken by the respondents Nos. 2 to

6. Therefore, at this stage on- the basis of the . written statement filed by the applicant it will not be. proper to decide this question. In the case of Zainab Hajiani (P L D 1978 Kar. 848), .the plaintiff had filed a suit against K. D. A. and KESC seeking a declaratory injunction that the constructions of substation on the land adjacent to his residential house was blocking the enterance to his house, posed a potential danger to the inhabitants and that it was being constructed on the land shown in the Master Plant as lane or a street. A plea of Article 131 was raised and the plaint. was rejected. It was held that as the substation was cons­tructed on the basis of no-objection certificate given by K. D. A. it was performing a duty under the order and therefore notice under Article 131 was necessary: In the present case, the situation is completely different on the basis of the averments in the plaint and the fact that the ownership and the authority of K-. D. A. is being challenged the case may fall out­side the pale of Article

131. If at this stage on this plea plaint is rejected then it would amount to rejecting it on the basis of the averments made in the written statement and counter-affidavit and not the plaint itself. It will be open for the applicant to raise this issue at the trial and establish it by evidence. The learned counsel for the applicant has contended that the suit is barred under section 11 of the Sind Public Property (Removal of Encroachment) Act, 1975. In this regard reference has been made to P L D 1975 Kar. 1046. Under sections 11 and 13 jurisdiction of the civil Court is barred in respect of suit where dispute relates to public property. In the present suit before bar to the jurisdiction is applied, it is necessary to establish that the property in dispute is a public property. This fact cannot be deduced from the averment made in the plaint. In view of the facts I am of the opinion that the order of the 1st Appellate Court is proper and legal and does not call for any interference.The Court has already framed issues which include all these objections, that have been raised by the applicants. The proper course open for the applicant is to lead evidence before the trial Court to substantiate the allegations that the land has been acquired, compensation has been paid and property vests in K. D. A. Once it is established, the legal bar pressed in service will come into play. The learned counsel for the applicant has also stated that the learned Appellate Court has wrongly granted injunction to the respondents. Prima facie it seems that the respondents Nos. 2 to 6 are in possession of the property and since serious dispute relating to the title of the applicant has been raised particularly as the respondent No. 1 who is said to have received compensation has also challenged the title of K. D. A. it is proper that the parties should maintain status quo. The balance of convenience is in favour of the respondents Nos.. 2 to 6 and if they are ejected they will suffer irreparable injury. In these circumstances; the Revision Application is dismissed. However, the trial Court is directed to dispose of the suit by 31st of October, 1983. The parties be directed to appear before the learned trial Court on 25th April, 1983, when the trial Court would fix a date for examining the witnesses of the parties. The trial Court, if possible, should proceed with the suit day to day and send the progress report to this Court every month. K .Z. M, Revision application dismissed.