Find a Lawyer

Revision No. 101 of 1975, decided on 7th May, 1985.

‑‑O.I, R.10‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.10‑‑Transfer of evacuee property‑‑Acquisition of portion of such property for Housing Society‑‑Proof‑‑Disputed piece of land was handed over to respondent by Society out of plot which was transferred to applicant with pretext that such disputed area was acquired for Society‑‑Applicant specifically denied that any portion of his plot was ever acquired for Society and claimed that entire plot was validly transferred to him‑‑Order of Courts below simply showed that certain area was squired by Society, but did not specifically state that disputed area was acquired for Society‑‑Society being necessary party was not impleaded in suit filed by respondent against applicant‑ Controversy in suit, held, could not be decided effectively in absence of Society‑‑Judgment and decree of Courts below was set aside and case was remanded for a fresh decision in accordance with law after impleading Society as defendant in circumstances.

Nizam Ahmed for Applicant.

M.M. Beg for Respondent.

Date of hearing: 7th May, 1985.

This Revision Application is directed against the two concurrent Judgments of the Courts below whereby the suit filed by the respondent for possession was decreed but the prayer for mesne profits was disallowed. The following facts are relevant for disposal of the present Revision Application and which are not in dispute.

2. The applicant is allottee of Plot No. 447, situated in Dahli Tajjar Co‑operative Housing Society, Karachi, having been allotted the same by the Society. Plot No. 447 alongwith Plots Nos. 448, 452, 453, 455 and 456 (I will hereinafter refer these plots as "the property" only for the sake of convenience) were originally agreed to be purchased by Ziaur Rehman, and others on 19‑10‑1984 from its Hindu evacuee owner Basant Singh Amil. After the property was treated as evacuee, Ziaur Rehman and others applied to the Custodian of Evacuee Properties for permission to file suit for specific performance of the above agreement of sale dated 19‑10‑1948 but the Custodian by its order dated 20th April, 1950 declined to grant the permission. However, a charge in the sum of Rs. 8,286 which was paid to the evacuee Basant Singh Amil by way of earnest money by Ziaur Rehman and others, was created in favour of Ziaur Rehman and others by the Custodian in respect of the property, By another order of Custodian dated 1‑9‑1950 Ziaur Rehman was appointed as the manager of the property. On promulgation of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the said Ziaur Rehman and others formed a Co‑operative Housing Society under the name and style of Dahli Tajjar Co‑operative Housing Society (I, will hereafter refer this Co‑operative Society as the 'society' only and applied to the Settlement Authorities for transfer of the property in the name of the Society. The Deputy Settlement Commissioner by order dated 11‑6‑1960 transferred the property to the Society but instead of total area of 8,286 sq. yds. the Society was transferred only an area of 7,790 sq. yds. and it is also mentioned in the order of Deputy Settlement Commissioner that an area of 496 sq. yds. of the property was acquired by the Karachi Municipal Corporation for the purposes of widening of Deepchand Ojha Road. Subsequently Plot No. 447 was allotted to the present applicant by the society on which he claims to have built a house. The respondent who is owner of Plot claimed to be in possession of an area of 147 sq. yds., out of Plot No. 447 since 1952 and alleged that she was dispossessed from the said portion by the applicant in the year 1966. The respondent accordingly filed Suit No. 204 of 1966 for possession and mesne profits against the applicant on the allegation that the K.M.C. under the Town Planning Scheme framed in the year 1935 acquired alongwith other lands an area of 147 sq. yds.. out of Plot No. 447 and handed over and regularised the same in favour of respondent in the year 1963 upon payment of contribution amounting to Rs.3,044 She also claimed that she was wrongfully dispossessed from the plot in the year 1966 by the applicant. The trial Court decreed the suit for possession only and the decree has been upheld by the first appellate Court.

3. The learned counsel for the applicant firstly contended that the controversy in the suit instituted by respondent as reflected by the issues could not be decided effectively in the absence of K . M . C . which was a necessary party to the suit. It is next contended by the learned counsel for the applicant that in any case there was no an area of 147 sq. yds. out of Plot No. 447 was acquired by the K . M . C . in the year 1935 as claimed by the respondent. The learned counsel for the respondent on the other hand contends that the witness summoned from the K.M.C. did state before the trial Court that an area of sq. yds. was handed over to respondent out of Plot No. 447 by the K . M . C . and that the transfer order passed in favour of Society by the Deputy Settlement Commissioner transferring the property also clarified that the Society was transferred the property minus an area of 496 sq. yds., and as such the Courts below rightly held that 147 sq. yds. Out of Plot No. 447 was acquired by the K.M.C. and later on transferred to respondent. I have gone through the entire evidence recorded in the case and after hearing the learned counsel for the parties at length I find that although it has come in the evidence that an area of 147 sq. yds. was handed over to the respondent in the year 1963 by the K . M . C . which was allegedly out of Plot No. 447 but there is no evidence on record to show that K.M.C. acquired this land in the year 1935 under the Housing Scheme. The applicant in his written statement specifically denied that any portion of Plot No. 447 was acquired by the K . M . C . He also averred that the entire Plot No. 447 was transferred to the Society under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958 as evacuee property. The order of Deputy Settlement Commissioner relied by the learned counsel for the respondent only show that an area of 496 yds. was acquired by the K.M.C. for widening of Deepchand Ojha Road. This order did not state that K.M.C. acquired any area out of Plot No. 447. In these circumstances it was necessary for the respondent to have established that an area of 147 sq. yds. out of Plot No. 447 was acquired by K.M.C. before the plot became evacuee. I find that a specific issue was raised in this behalf before the trial Court but this issue was not properly, decided in the case. The issue reads as under:‑‑

"Whether the Municipal Corporation acquired the disputed piece of land and handed over the possession of the same to the plaintiff, if so when and to what effect "

The above issue is very material as the contention of the applicant throughout in the case was throughout in the case was that Plot No. 447 was an evacuee property and was transferred as such to the society. I also find that in view of the denial that a portion of Plot No. 447 measuring 147 sq. yds. was acquired under the housing scheme, K.M.C. was necessary party to the suit and in any case the controversy in the suit could not be decided effectively in the absence of K.M.C. At this stage the learned counsel for the parties also agree that the K.M.C. may be allowed to be impleaded as a defendant in the suit and I accordingly allow this prayer. The judgment and decree of the Courts below are accordingly set aside and case is sent back to the trial Court with the direction to implead K . M . C . as defendant in the suit. The plaintiff will file amended plaint and after filing of the written statement by K.M.C. the trial Court will decide Issues Nos. 4 and 2 framed in the suit afresh in the light of the evidence which may be produced by the parties, and may grant such relief to the plaintiff as she may be found entitled to as a result of decision on these issues. The trial Court may also frame and decide any further issue which may be raised by the K.M.C. in its written statement. The Revision is disposed of accordingly and suit is remanded back to the trial Court with the directions that as soon as the written statement is filed by the newly‑added defendant (K . M. C . ) the case will be disposed of expeditiously and will be given preference over all other cases pending in that Court. There will, however be no order as to costs.

H. B. T. Order accordingly.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.