ALIGARH COOPERATIVE HOUSING SOCIETY Ltd. Versus KARACHI DEVELOPMENT AUTHORITY
This Revision is directed against the judgments/decrees dated 1‑2‑1974 and dated 30‑5‑1982 passed by the learned IIIrd Civil Judge, Karachi and learned 7th Additional District Judge, Karachi respectively in Suit No.1303 of 1970 and Civil Appeal No.19 of 1974.
2. The brief facts leading to the filing of the Revision are that the petitioner/plaintiff was allotted 22 acres of land situated at Deh Orangi, Government Survey No.7 Karachi in the .year 1956 by the Collector of Karachi under the name of Aligarh Refugees Housing Society, which name was changed into Aligarh Co‑operative Housing Society in 1965, i.e. the petitioner. 1t is the case of the petitioner that in the year 1965 it was allotted an additional land measuring 4.39 acres, bearing Nos.ST‑1, ST‑2, ST‑3; ST‑4 and ST‑5, hereinafter referred to as the Suit land. It is also the case of the petitioner that when they were collecting building materials for raising the wall, an Administrative Officer of the KDA came on the spot on 26‑6‑1970 and interfered in their possession by breaking and destroying some of the blocks. 1t was further averred by the petitioner in the plaint that defendant /respondent also attempted to interfere with their possession on ST‑4 on 12‑2‑1969 which was protested by them through a telegram and a letter. On the basis of the above averments the petitioner filed aforesaid Suit No.1303 of 1970 for declaration that they were in possession of the suit land under allotment by the Deputy Commissioner and Collector of Karachi and for permanent injunction restraining the defendants from interfering in their possession. The above suit was resisted by the defendants who were two in number, namely, KDA as defendant No.1 and Anjuman Falah Bashindgan Gulfamabad, a registered Society as defendant No.2. A learned Civil Judge on the basis of the pleadings of the parties framed as many as 12 issues. The petitioner in support of the suit examined its Secretary, Mr.M.Saleh Qaiser Ex.1, whereas the defendant No.1/Respondent No.1 examined three witnesses namely, D.W.1 Syed Muhammad Hussain Assistant Engineer KDA, Ex.22, D.W.2 Nabi Raza, an Assistant Administrative Officer KDA Ex.24 and D.W.3 Mr. Ahmed Khan a clerk from the Collector's and Deputy Commissioner's office Ex.25, whereas the defendant/respondent No.2 examined its Secretary Muhammad Ayub. The parties have also produced a number of. documents. The learned Civil Judge by the aforesaid detailed judgment running into 31 pages dated 1‑2‑1974 dismissed the suit with costs on the ground of want of notice under Article 131 of the K.D.A. Orders as well as on merits. The petitioner being aggrieved by the above judgment/decree filed aforesaid appeal which was dismissed by the learned 7th Additional District Judge, Karachi by his aforesaid judgment/decree dated 30‑5‑1982, and the judgment and decree of the trial Court were maintained. The petitioner being aggrieved by the above two judgments/decrees filed the above Revision, which was admitted on the basis of Exs.5 and 13.
3. In support of the above petition Mr. Abbas Zia, learned counsel for the petitioner has vehemently urged that there was ample documentary evidence to conclude that factually the suit land was allotted to the petitioner and, therefore, the concurrent finding of the two Courts below is contrary to the evidence on record.
On the other hand Mr. Muslim Naqvi who has appeared for the newly impleaded respondent No.3, KMC has contended that the two Judgments of the two Courts below are well‑considered and the concurrent finding that the suit land was not allotted to the petitioner, as was alleged in the plaint, is based on the documentary evidence on record.
4. It may be observed that the petitioner was the plaintiff in the suit. It was, therefore, for the plaintiff to have proved the factum of allotment of the suit land in its favour. The question which requires consideration is as to whether the petitioner has brought on record sufficient evidence on the basis of which the two Courts should have held that the suit land was allotted to it.
Mr. Abbas Zia learned counsel for the petitioner in support of his above submission has referred to Exs.5,6,13,16,21 and 'i0. It may be observed that Ex.5 is a photostat copy dated 30‑6‑1963 or 1965 (as the month and the year is not legible on the photostat copy produced by the petitioner nor it is given in the paper book of the appeal), which was a notice issued by the Land Acquisition Officer, Karachi Development Authority addressed to the Secretary Aligarh Colony under Article 47 of the KDA Order 1957 intimating that survey No.7 area 4.39 acres granted by Collector of Karachi for Aligarh Society was required for the purpose of the KDA Scheme No.27, Ex.6, is the copy of the plan indicating that the suit land is situated near the land which was allotted to the petitioner, Ex.12 is a copy of petitioner's Advocate's notice dated Nil stating therein that petitioner society was allotted 26.30 acres and the KDA Authorities were restraining the members from occupying some of the suit lands, Ex.16 is a photostat copy of a letter dated 9‑7‑1962 from Deputy‑Commissioner Karachi ordering transfer of the suit plot in favour of Commissioner's Emergency Relief Fund free of cost under section 38 of the L.R.C. read with Rule 32 of the L. R. Rules, Ex.21 is a simple copy of letter of the Town Planner addressed to the Chief Engineer (D&H),. Karachi Development Authority dated 21‑5‑1965 forwarding lay out plan of Aligarh Co‑operative Housing Society and stating therein that the O, existing lay‑out plan of Aligarh Co‑operative Housing Society has not been disturbed except the portion affected by the 150' Highway and that all those affected by the road had been accommodated in the adjoining area. 1t was also stated that the sits for various amenities are also shown which may be utilized by the inhabitants of the Aligarh Society and Ex.30 is an extract from the Revenue record from the office of Mukhtiarkar of Karachi dated 28‑12‑1964. 1n the column of remarks there appears to be following entries:
"(1) An area of 3.6 acres fall in Sui gas.
(2) An area of 4.39 acres granted for Qasba Colony (Aligarh Colony) Add.G.M.B.D.
(3) An area of 30.4 acres reserved for Press Colony under control of D.C.
(4) An area of 15 acres granted to Maulana Abdul Hamid Badayuni.
(5) An area of 1,600 square yards leased out for petrol pump (allotted to Caltex Co.).
(6) An area of 0.4 Ghuntas falls in Sui gas."
It is an admitted position that the petitioner does not hold any allotment in respect of the suit land nor it has paid any charges or rent in respect thereof though, for the land measuring 22 acres allotted to the petitioner certain payments have been made as is reflected from the documentary evidence. The factum that there is‑ no allotment has been admitted by the petitioner's solitary witness P.W.1 M. Saleh Qaiser. Mr. Abbas Zia has heavily placed reliance on EXS.5 and 30 referred to hereinabove. Both the Courts have held that the above documents do not prove the allotment of the suit land in favour of the petitioner. D.W.1 Syed Muhammad Hussain has stated that the above notice Ex.5 was issued by mistake which has been believed by the two Courts below. In my view the 2 Courts below were competent to believe or to disbelieve the statements of the above witnesses on the above point. In the absence of any allotment of the suit land in favour of the petitioner, the above notice cannot be treated as an allotment. The petitioner has not brought anything on record to indicate that they had sent any reply to the above notice. Even the original copy of this notice has not been brought on record. In my view the finding of the learned two Courts below on the above Ex. is in consonance with law. The other document Ex.30 has s also been explained by the respondent's witness. D.W.3 Ahmed Khan a clerk from the office of the Collector/Deputy Commissioner has stated that at no point of time any allotment was made by the Collector in favour of the petitioner of the suit. plot, and that there was interpolation in the revenue record in respect of the suit land. On the contrary Ex.16 belies the petitioner's averment that the suit land was allotted to it. As pointed out hereinabove, Ex.16 is an order dated 19‑7‑1962 from the office of ‑Deputy Commissioner transferring the suit land to Commissioner's Emergency Relief Fund free of cost. It has been urged by Mr. Abbas Zia that this transfer was in fact for the benefit of the petitioner society. In my view the above submission is not supported by any material on record. In view of the above document on record the burden was on the petitioner to have proved that the suit land was allotted either by the Commissioner's Emergency Relief Fund to it or by any other competent authority. There is also ocular evidence of respondent No.2's Secretary that there are 140 families on ST‑2 which is part of the suit land of the members of the respondent No.2's Society. There is also evidence on record that there is a dispensary on ST‑2 in addition to the above houses. There is a Primary School on s ST‑3. The petitioner has not brought or. record anything to show that the same were constructed by it. On the contrary D.W.1 Nabi Raja in his deposition has stated that the above dispensary and Primary School have been constructed by the Government. It may be observed that ST‑1 is reserved for Community Centre.
5. I am inclined to hold that the concurrent finding of the two Courts below on the question that the plaintiff has failed to prove any allotment in their favour of the suit land is in accordance with the evidence on record.
As regards the non‑service of the "notice under Article 131 of the KDA Order, it may be observed that the notice was served on 13‑6‑1970 whereas the suit was filed on 4‑7‑1970 i.e. before the expiry of the period specified in the above Article. However, it was submitted by Mr. Abbas Zia that during the pendency of the suit one month's period has expired and, therefore, the suit would not have been dismissed on that ground. It will sufficient to observe that since I have maintained the judgments of two Courts below on merits, it is not necessary to go into the above question.
6. For the aforesaid reasons the Revision is dismissed but there will be no order as to costs.
These are the reasons in pursuance of a short order of even date.
H.B.T./A‑340/K Revision dismissed.