ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

PRESENT:

Mr. Justice Aqeel Ahmed Abbasi

Mr. Justice Mahmood A. Khan

H.C.A. No.122 of 2018

Talib Deen Jokhio………………….………………………………….Appellant

Versus

The Province of Sindh and others……….…..………………....Respondents

Appellant : Through Mr. Muhammad Waseem Samo, Advocate.

Respondents 1-4 : Through Mr. Meeran Muhammad Shah,

Addl. Advocate-General, Sindh.

Respondent No.5 : Through Mr. Badar Alam, Advocate

Dates of Hearing : 19.02.2021 and 04.05.2021

Date of Short Order : 04.05.2021

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O R D E R

Instant High Court Appeal arises against the impugned judgment dated 20.12.2017 and decree dated 27.03.2018 passed by the learned Single Judge, on the original side, of this Court in Suit No.380 of 2008 filed by the appellant seeking declaration to the effect that the plaintiff/appellant has lawful leasehold rights in respect of the property i.e. 20-ghuntas of land situated at Naclass No.108, Deh Khanto, Tapo Landhi, Taluka and District Malir for 30 years from the year 1996-1997. Whereas, further declaration has been sought to the effect that the lease granted to the defendant/respondent No.5 may be declared as illegal and possession of 20-ghuntas of land may be handed over to the plaintiff/appellant. Learned Single Judge after perusal of the evidence produced by the parties vide impugned judgment dated 20.12.2017 and decree dated 27.03.2018 has been pleased to dismiss the suit of the plaintiff/appellant with no order as to costs, while deciding all the issues formulated in the suit on 22.04.2013 against the plaintiff/appellant and in favour of the defendant/respondent No.5.

2. Briefly, the facts as stated in the plaint of suit are that the plaintiff’s predecessor-in-interest (father) was granted the suit land for a period of 10 years commencing from 1986-87 by defendant No.4 (Mukhtiarkar) on 03.03.1987 on Ijazatnama. It was subsequently cancelled by the Deputy Commissioner, Malir, Karachi. The plaintiff’s father had filed an appeal against the order of the Deputy Commissioner and the said appeal was also rejected by order dated 20.11.1996. The plaintiff t hen filed Revision Petition before the Member, Land Utilization Department, Board of Revenue bearing Case No.GROR-232/96. The Revision was allowed by order dated 12.10.1998. The plaintiff alleged that he was enjoying peaceful possession of the suit land when staff of Commanding Officer-101, Transport Battalion, National Logistic Cell (hereinafter NLC) National Highway, Landhi, Karachi came and threatened the plaintiff to remove the hut. The plaintiff tried to construct boundary wall but he4 was stopped by the staff of Commanding Officer-101, Transport Battalion. In December, 2003 the staff of NLC informed the plaintiff that the suit land belonged to NLC and that the possession of the plaintiff will not be restored at any cost. Therefore, the plaintiff filed a Constitutional Petition bearing No.D-641/2004 before this Court and the said petition was disposed of by order dated 07.02.2007, whereby, defendants No.1 and 2 were directed to demarcate the land of the petitioner and handover the possession to the parties. The plaintiff averred on 07.12.2007 when he reached at the site of the suit land, he found that defendant No.5 was carrying on construction on the suit land. The plaintiff enquired that how the construction was being carried out by defendant No.5, it was revealed that the suit land has been allotted to the defendant No.5 by Revenue staff. Therefore, the plaintiff filed the instant suit seeking declaration in the above terms.

3. Province of Sindh through Land Utilization Department filed written-statement in which they claimed that 20-ghuntas of land situated at Naclass No.108, Deh Khanto, Tapo Landhi, Taluka and District Malir was given on license to the father of the plaintiff Muhammad Rafique for the period of 10 years regarding poultry purposes, however, it was cancelled by the Deputy Commissioner, Karachi East, thereafter, pursuant to an order passed by the Commissioner Karachi in Revision, same was restored for 30 years as per usual terms and conditions on 12.10.1998.

4. Respondent No.5 also filed written-statement in which it has been claimed that the respondent No.5 is in possession of the land admeasuring 5250 square yards in Survey No.107, Deh Khanto, Tapo Landhi, Taluka and District Malir, Karachi pursuant to a registered lease for 99 years issued by the Government of Sindh through District Officer (Revenue), City District Govt. Karachi and has constructed his building for industrial purposes, whereas, the appellant has no right or title whatsoever in respect of the land of respondent No.5, which is situated in Survey No.107. Whereas, the appellant is claiming 20-ghuntas of land in Naclass No.108, which has nothing to do with the land of the respondent No.5. All the relevant documents regarding title leasehold rights for 99 years and possession of the respondent No.5 admeasuring 5250 square yards in Survey No.107, Deh Khanto, Tapo Landhi, Taluka and District Malir Karachi were filed, which were duly exhibited in evidence, whereas, Revenue Authorities also verified the claim of respondent No.5 over subject land.

5. From the pleadings of the parties, following issues were framed by the Court on 22.04.2013:

1. Whether Survey No.107 and NaClass No.108, Deh Khanto, Tapo Landhi, Taluka and District Malir, Karachi, are two separate and distinct lands owned by two different individuals, that is, defendant No.5 and the plaintiff, respectively?

2. Whether the plaintiff is the lawful owner of NaClass No.108, or whether the same is owned by defendant No.5?

3. Whether any cause of action has accrued to the plaintiff against defendant No.5?

4. Whether the suit is maintainable, and whether the plaintiff is entitled to the relief sought in this suit?

5. What should be the decree?

6. The plaintiff/appellant examined one Muhammad Miraj Vohra, his attorney as sole witness and he was cross-examined by the counsel for the defendants. Defendant No.5 has filed his affidavit-in-evidence and he was cross-examined by the counsel for the plaintiff. Defendants Nos.1 to 4 have not examined any witness.

7. The learned Single Judge after scrutiny of record on the basis of evidence produced by the parties has recorded its consolidated findings on the aforesaid issues in the following terms:

11. I have also examined the admitted documents filed by the plaintiff and defendant No.5. The plaintiff who has filed C.P.No.541/2004 seems to have failed to get the benefit of order of demarcation, if any, in respect of the property which he claimed in Naclass 108 in Deh Khanto. From his own showing in Ex:P/12 no demarcation had been done until 27.11.2007 but he had not filed any contempt proceedings for non-compliance of the order in C.P. NO.541/2004. Nor he was put in possession of land. He has not produced any document showing any demarcation of the land situated in Naclass 108, Deh Khanto, except a sketch which is unauthenticated document. It does not bear any seal or even name of any office from whom he got it. Defendant No.5 has produced original lease deed in respect of 5250 sq. yards, I Survey No.107, Deh Khato Taluka and District, Malir, Karachi and all the payments of capital value tax and challans and cash deposited challans and Deh Form showing official transfer of the land in possession of the defendant No.5 on the basis of lease executed by L.U Department, Government of Sindh on payment of full and final sales consideration. Defendant No.5 has also produced approved building plans and regularization letters etc as Ex:DW-5/13 and DW-5/15 and further various payment to the KBCA and KDA in respect of construction on the suit land without any hindrance from the plaintiff side.

12. The above discussion on facts and evidence shows that the plaintiff has miserably failed to discharge his burden on any of the issues, consequently, the suit of the plaintiff was dismissed by short order dated 20.12.2017 with no orders as to cost and the above are the reasons for the same.”

8. Learned counsel for the appellant has mainly argued that since the subject land of the appellant i.e. 20-ghuntas of land situated at Naclass No.108, Deh Khanto, Tapo Landhi, Taluka and District Malir was initially leased out in favour of the father of the appellant for 10 years and, thereafter, it was extended for another period of 30 years, therefore, it could not be leased out to the respondent No.5. It has been further contended by the learned counsel for appellant that the learned Single Judge while passing the impugned judgment did not pass any order for demarcation of land of the appellant and has wrongly presumed that the land of the appellant is different from the land leased out in favour of the respondent No.5. While concluding his arguments, learned counsel for the appellant submits that the appellant had produced relevant documents including ijazatnama and entry in Deh Form VII, Suratehal and two receipts towards payment of license fees, to establish his claim over the subject land, therefore, the learned Single Judge was not justified to ignore such evidence while dismissing the suit of the appellant.

9. Conversely, the learned counsel for the respondent No.5 has vehemently opposed the contention of the learned counsel for appellant and has submitted that the appellant has no locus standi to file the suit seeking declaration, as referred to hereinabove, as the appellant never had any title, right or possession of the land admeasuring 5250 square yards situated in Survey No.107, Deh Khanto, Tapo Landhi, Taluka and District Malir, Karachi leased in favour of the respondent No.5 for 99 years for the purposes of industrial use, on which the respondent No.5 has constructed an industry, whereas, respondent No.5 has been in continued and uninterrupted possession of the subject land. It has been further contended by the learned counsel for respondent No.5 that the claim of appellant, besides being bogus and based on no evidence, is in respect of 20-ghuntas of land in Naclass No.108, Deh Khanto, Tapo Landhi, Taluka and District Malir Karachi, which was not even identified by metes and bounds, whereas, the documents produced by the appellant, besides having no evidentiary value to establish the title, right or possession of the appellant, are also fake and manipulated, as rightly observed by the learned Single Judge in the impugned judgment. According to the learned counsel for respondent No.5, the appellant has miserably failed to establish his title, right or possession upon 20-ghuntas of land situated at Naclass No.108, Deh Khanto, Tapo Landhi, Taluka and District Malir Karachi, as neither any amount in respect of license purportedly issued initially to the father of appellant for 10 years, nor any consideration for the purported renewal of license for 30 years has been paid by the appellant, on the contrary official respondents have also disputed the claim of appellant and have objected to the genuineness of the documents produced by the appellant in support of his claim.

10. Learned Addl. Advocate-General, Sindh also supported the case of the respondent No.5 and has submitted that the appellant has miserably failed to make out a case seeking declaration in respect of land, measuring 5250 sq. yds. which has been leased out in favour of the respondent No.5 for 99 years in Survey No.107, Deh Khanto, Tapo Landhi, Taluka and District Malir Karachi. It has been further contended by the learned Addl. Advocate-General Sindh that prior to filing the suit, appellant had filed a Constitutional Petition bearing No.D-641/2004 in respect of the same land i.e. 20-ghuntas of land situated at Naclass No.108, Deh Khanto, Tapo Landhi, Taluka and District Malir Karachi, however, could not obtain any favourable order and the same was disposed of with directions to the appellant to approach the concerned Authority for demarcation of land in Naclass No.108, if any, in accordance with law. Per learned Addl. A.G. Sindh, instead of approaching the concerned Authority for the purpose of demarcation, appellant kept silent and has ultimately filed Suit No.380/2008 in respect of the same subject land, which has been rightly dismissed by the learned Single Judge through impugned judgment.

11. We have heard the learned counsel for the parties, perused the record and the evidence produced in the instant matter and have also gone through the impugned judgment passed by the learned Single Judge on the consolidated issues formulated on 22.04.2013.

12. Learned counsel for the appellant was confronted to refer to any document, which could establish the title, right or even possession of the appellant in respect of any portion of the land, which has been leased out for 99 years in favour of the respondent No.5 or to establish that the land claimed by the appellant i.e. 20-ghuntas of land situated at Naclass No.108, Deh Khanto, Tapo Landhi, Taluka and District Malir Karachi, is included in Survey land of the respondent No.5, including demarcation by the Naclass land by Surveyor or any other revenue authority showing the metes and bounds of 20-ghuntas of land purportedly given on license for poultry purposes initially for 10 years to the father of the appellant and, thereafter, its renewal for 30 years in his favour. However, learned counsel for the appellant could not refer to any such document or evidence and has insisted upon the documents produced by the appellant, including Ijazatnama, Suratehal, entry in Form-VII, etc. It has come on record through evidence that the land admeasuring 5250 square yards situated in Survey No.107, Deh Khanto, Tapo Landhi, Taluka and District Malir Karachi has been leased out in favour of the respondent No.5 through registered lease for 99 years on payment of consideration along with possession, therefore, the legal presumption with regard to the genuineness of the registered lease in respect of survey land alongwith its metes and bounds cannot be disputed unless some illegality is shown. The appellant has miserably failed to make out a prima facie case with regard to any title, right or even possession in respect of claimed land i.e. 20-ghuntas of land situated at Naclass No.108, Deh Khanto, nor could establish that 20-ghuntas of land at Naclass No.108 is included in the land admeasuring 5250 square yards in Survey No.107, Deh Khanto, which was leased out for 99 years in favour of the respondent No.5. Moreover, purported documents produced by the appellant, besides being irrelevant for establishing the appellant’s lawful title, right or possession of the subject land appears to be bogus and manipulated and even contrary to the order passed by the Member, Board of Revenue as rightly held by the learned Single Judge in the impugned judgment. We may further observe that License does not give any title, right in the land to the licensees and can be revoked cancelled under law, whereas, in case of any grievance only damages can be claimed and not a declaration to above nature.

13. In view of hereinabove facts and circumstances of the case, we do not find any factual error or legal infirmity in the impugned judgment and decree passed by the learned Single Judge, which does not require any interference by this Court in the instant High Court Appeal. Accordingly, instant appeal was dismissed vide our short order dated 04.05.2021 and these are the reasons of the same.

J U D G E

Farhan-PS