GOVERNMENT OF SIND Versus Haji GULZAR ALI
MAMOON KAZI, J.‑‑ This appeal is directed against the judgment and decree passed by the learned Single Judge of this Court, dated 13th June, 1982, decreeing the respondents' suit (No.608 of 1977) for declaration and permanent injunction against the appellants and the respondent No.2.
2. The dispute between the parties related to a plot of land bearing NoA(P), measuring 83 square yards, situated at the junction of Jehangir Panthki Road and Garden Road, Karachi. According to the case of the respondent No.1 in the plaint, the plot in question and other open plots had been put to public auction for sale, by the Administrator, K.M.C. (Respondent No.2). The bid given by the respondent No.1 was accepted for the plot and a bank challan for Rs.29,465 being the 25 per cent of the auction price was deposited on the same day by the respondent No.1. The auction was subsequently confirmed by the respondent No.2 and the respondent also paid the balance of the sale consideration including the land rent, survey and sanad fees amounting to Rs.88,596.56 through a bank challan on 14‑1‑1977. After receiving the full payment, the respondent No.2 executed an agreement dated 16‑3‑1977 in respect of the plot (Ex.5/6), agreeing that on completion of the building on the plot, the respondent No.1 would be entitled to get a lease for a period of )9 years. The physical possession of the plot was also handed over to the respondent No.1 on 26‑7‑1977 who then submitted a construction plan for approval to start the construction. However, thereafter the police department claimed that the land in question did not belong to the K.M.C. (Respondent No.2) and the same was part of the police lines and belonged to the police department. It was the case of the respondent No.1 that he had constructed a small hutment on the plot and also posted a chowkidar and had also put machinery including road rollers, cement and concrete mixer etc. but on 6‑11‑1977 at about 16.30 a.m. a police party came to the site and without any previous notice demolished the temporary hutment. On this the respondent No.1 rushed to the police headquarters and took an interview with the Superintendent of Police Headquarters, Police Lines (Appellant No.2) but without any success. The respondent No.1 thereafter send various telegrams to the concerned authorities but ance again without success. The police also posted a police constable on the plot in question. The following reliefs were, therefore, claimed in the suit:--
(a) Declaration that the plaintiff is the owner of the plot in suit by purchase from K.M.C.
(b) Decree for permanent injunction restraining the defendants from interfering with the rights of the plaintiff in respect of the plot; and
(c) Decree for damages amounting to Rs.5,000."
3. The respondent No.2 in their written statement supported the case of the respondent No.1. On behalf of the appellants, only the appellant No.2 fled a written statement and the same was treated as a written statement on behalf of both the appellants. The appellant No.2 in his written statement claimed that the possession of the plot in question had throughout remained with the police from times immemorial and the same continued to ‑remain with it. It was further pleaded that the plot was not a separate plot but was part and parcel of police lines and lay within the boundaries of the Police Headquarters and was also owned by the police department. The resort to any illegal acts or misuse of authority was also denied by the appellant No.2.
4. On the pleadings of the parties, the following issues were framed by the Court.
"(1) Whether the land in suit was or is owned by the defendant No.2 or defendant No.3?
(2) Whether the physical possession of the land is with defendant No.2?
(3) Whether police demolished temporary hutment occupied by the plaintiff's chowkidar? If so, what damages, if any, the plaintiff has suffered?
(4) Relief?"
5. On the basis of evidence respectively adduced by the parties before the Court, all the issues were decided in favour of the respondent No.1. However, in case of the damages claimed by him, it was held that there was no evidence produced to support the claim, and hence, the same was disallowed.
6. Mr.Imdad Hussain Kazi, learned counsel for the appellants has argued that the learned Single Judge has failed to appreciate the evidence properly as due weight has not been given to the evidence produced in support of the appellants' case.
7. We find no merit in this argument. Three witnesses each were examined on behalf of the respondent No.1 and the appellants and one witness on behalf of the respondent No.2. The respondent No.1 examined himself and reiterated what was earlier stated by him in the plaint. His evidence was further supported by P.W.1 Altaf Ahmed Khan and P.W.2 Kazi Siraj Ahmed, who were working as Senior Clerk in the Land Department, K.M.C. and City Surveyor, C.D.C. respectively. Their evidence which was supported by maps and other relevant documents fully supported the case of the respondent No.1 as according to them the plot in question was outside the boundaries of the police lines. The evidence of these witnesses was further supported by that of P.W. Abdus Samad who was examined on behalf of the respondent No.2. According to this witness, the plot in question had been sold through a public auction. The witness further deposed ‑that a survey had been carried out by the K.M.C. Survey Department in 1922‑23 and according to the original survey sheet the plot in the suit was shown outside the boundaries of the police lines. On the other hand, apart from the oral evidence of D.S.P. Syed Manzoor Ahmed (Appellant No.2) that the disputed plot falls within the boundaries of the police headquarters area, there is no other evidence in support of the same. Even P.W. Qazi Siraj Ahmed from the City Survey Office, who was examined as a witness on behalf of the appellant No‑2 did not support the appellants' case as even he admitted that the land in question was outside the area of the police lines according to the survey map. Such being the position, the only evidence which could lend any support to the appellants' case is the statement given by D.S.P. Manzoor Ahmed, but the oral statement of the Q witness in view of the other oral and documentary evidence could not be relied upon by. the learned Single Judge. Consequently issue No.1 has been rightly decided m favour of the respondent No.1.
8. As far as the second issue is concerned, we again find sufficient evidence' on record to support the findings of the learned Single Judge thereon. First of all the finding arrived at by the learned Single Judge that the plot in question did not C form part of the police lines, could rightly give rise to an inference that the possession of the plot had been taken later by the police. Although this was, controverted by D.S.P. Syed Manzoor Ahmad, the main witness examined on' behalf of the appellants, but he could not offer any satisfactory explanation in respect of the fact that the boundary wall of the disputed plot had been constructed with cement blocks, while the rest of the boundary wall of the police lines consisted of stone work. The explanation offered by the witness was that a portion of the boundary wall had been washed away by rains and the damaged portions were replaced by the cement blocks. This explanation in our view is far from satisfactory due to two reasons. First of all the chances of such a coincidence can be remote that only the portion of the wall over the disputed plot was washed away by rains while the rest of it remained intact. Secondly, D.W. Syed Manzoor was contradicted by an affidavit given by ST. Azhar Ali Farooqui on behalf of the appellants which had been filed by them in reply to the respondent No.1's application under section 151 C.P.C. In the affidavit, S.P. Azhar Ali Farooqui had admitted that the construction of the boundary wall over the disputed plot by the police was to prevent any further attempt by the respondent No.1 to encroach upon the land. The affidavit, therefore, clearly belied the version of D.W. Syed Manzoor Ahmed that the respondent No.1 had been dispossessed later or that the plot originally fell within the boundary wall of the police lines. We are consequently of the view that the findings of the learned Single Judge are unexceptionable even on the issue No.2.
9. The last issue was not decided in favour of the respondent No.1, therefore, we need not go into the same.
10. For the aforesaid reasons, we found the impugned judgment to be unexceptionable and dismissed the appeal by a short order with no order as to costs.
H.B.T./G‑69/K Appeal dismissed.