IN THE HIGH COURT OF SINDH, KARACHI

H.C.A. No.75 of 2024

[ Imran Khan v. Muhammad Lakhani & others ]

PRESENT:

Mr. Justice Arshad Hussain Khan

Mr. Justice Amjad Ali Sahito

Appellant : Through Mr. Naveed Ahmed Khan,

Advocate.

Respondent No.1 : Through Syed Muhammad Bazil Ali Rizvi,

Advocate.

Respondent No.2&3 : Syed Hussain Shah, AAG Sindh.

Date of hearing : 22.04.2026

Date of Decision : 22.04.2026.

J U D G M E N T

ARSHAD HUSSAIN KHAN, J. This High Court Appeal is directed against the order dated 14.02.2024, passed by the learned Single Judge in Suit No.2880 of 2021 whereby the Appellant’s application (CMA No. 20496/2023) filed under Section 151 CPC seeking demarcation of the suit property, was dismissed with a cost of Rs.25,000/- to be deposited with the High Court Clinic.

2. The brief facts of the case are that Respondent No.1 (plaintiff) instituted a suit for declaration and permanent injunction in respect of Plot No.38-D(1), measuring 400.69 square yards, situated in Block D, KDA Scheme-1, Karachi, asserting exclusive ownership and possession thereof. The appellant (defendant No.1), however, disputed the very identity of the property and contended that the subject land does not form part of KDA Scheme-1, but is, in fact, a portion of Plot No.SNPA-39, Block 7 & 8, Dhorajee, Bahadurabad, Karachi, in respect whereof he claims to have obtained a favourable order. During the pendency of the suit, the appellant moved an application seeking demarcation of the subject property through the relevant authorities, including KDA, City Survey, and the Revenue Department, in order to resolve what was asserted to be the core and determinative issue in the lis.

3. Learned counsel for the Appellant argues that the impugned order suffers from illegality and irregularity as the learned Single Judge failed to appreciate the core controversy, the location of the land. It was contended that since the respondent No.1 claims the land is in KDA Scheme No.1 while the appellant claims it is in Dhorajee, a physical survey is the only "decisive" method to resolve the suit. Counsel further contends that the dismissal of the application on the grounds of not filing a Counter-Claim was a technicality that ignored the "golden principle" that whatever is not prohibited by law is permitted. Counsel further argues that the imposition of costs was harsh and that the Appellant’s right to a fair trial under Article 4 of the Constitution was infringed upon by denying the best evidence (demarcation).

4. Learned counsel for Respondent No.1 vehemently opposes the appeal, reiterating the points in his formal objections filed in the appeal. He argues that the identity of the property is a matter of evidence to be recorded during the trial, not through a miscellaneous application at the interim stage. It was highlighted that the Appellant has not sought any final relief or declaration of title through a Counter-Claim, thus having no locus standi to seek an order for survey.

5. Learned Assistant Advocate General Sindh, appearing for the official Respondents, supports the impugned order, stating that the KDA records and City Survey maps are distinct; he argues that the Court should not be used as an investigative agency to collect evidence for a party that has failed to establish a prima facie title in its own right.

6. After hearing the learned counsel for the parties and perusing the record, we find that the learned Single Judge's reasoning is legally sound. A party seeking interim directions must show that such directions are in aid of the final relief sought in the pleadings. Appellant, having filed only a Written Statement in the subject suit without a Counter-Claim, is not seeking any decree from this Court; therefore, his request for a massive demarcation exercise involving half a dozen government departments is indeed misconceived.

7. Furthermore, demarcation is essentially a factual finding. In a suit for Declaration, the burden of proof lies on the parties to produce their title documents and produce witnesses during the evidence stage. Appellant cannot bypass the rigors of a trial by requesting a Court-appointed commission to determine the location of the land at this preliminary stage. We also note that the properties in question, KDA Scheme No.1 and Dhorajee Colony, are geographically distinct entities in official records. The Appellant's attempt to link them via Section 151 CPC, without a substantive claim for title, appears to be a strategy to prolong the litigation.

8. It may also be observed that while demarcation may indeed be a useful tool in resolving boundary disputes, it cannot be ordered in isolation of the pleadings. The jurisprudence is clear that interim applications must be ancillary to the relief sought in the suit. Where no counter‑claim or independent prayer for demarcation is made, directing a survey would amount to granting substantive relief to a party who has not formally sought it. Moreover, Section 151 CPC is not a carte blanche to bypass established procedures. The inherent powers of the Court are intended to supplement, not supplant, the express provisions of the Code. To allow demarcation at this stage would effectively convert the Court into an investigative forum, contrary to the adversarial system where parties bear the burden of producing evidence.

9. In view of the above, we find no illegality or jurisdictional error in the impugned order dated 14.02.2024. Consequently, instant High Court Appeal is dismissed and the impugned order of dismissal of the demarcation application is upheld. However, the cost of Rs. 25,000/- imposed by the learned Single Judge is set-aside and waived. The trial court is directed to proceed with the suit on merits, strictly in accordance with law.

Instant High Court Appeal stands disposed of alongwith all pending applications.

JUDGE

Naveed PA