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Revision Application No. 234 of 1984, decided on 6th August, 1985.

‑‑‑O.XXXIX, Rr.1 & 2‑‑Interim relief, grant of‑‑Discretion of Trial Court‑‑Exercise of‑‑One unauthorised person intending to encroach upon area could not push out another unauthorised person who was occupying same since 1947 and had made huge investment by way of raising construction thereon in hope of being permanently settled thereat‑ Undecided and debatable ownership or title over land in dispute should be examined at time of trial of case and should be determined on appreciation of evidence whether area in dispute belonged to respondent‑‑Discretion exercised by Trial Court in granting interim relief to petitioner, held, was not illegal or improper, justifying interference and reversal by appellate Court in circumstances‑‑ Interim order of Trial Court restored.

Nasrullah Awan for Applicant.

Abdul Saeed Khan for Respondent.

Date of hearing: 6th August, 1985.

This revision calls in question order, dated 18‑9‑1984 passed by the learned IInd Additional District Judge, Karachi in 1st Appeal No.304 of 1980, whereby he has vacated the order of injunction which was issued in favour of the applicant by 25th Civil Judge IInd Class in Suit No.3455 of 1980.

2. The facts of the case are that the applicant is occupying a plot situated in the Gizri Village, Karachi since 1947, whereupon he has raised some constructions is carrying on his business peacefully and uninterrupted. There are other structures and Kutcha constructions in this area which forms part of the Gizri village. By a notice, dated 28‑8‑1980, the defendant /respondent objected to the occupation of the applicant of this plot and called upon him to vacate the same within seven days of the service of the notice. Under this threatened action the Suit No.3455 of 1980 for declaration and "permanent injunction against the defendant restraining its officials, representatives, servants from taking any action contrary to the right of the plaintiff /applicant in respect of the Plot No.C‑VI 573, Gizri Village, Karachi and taking no action of whatever nature in pursuance of the letter dated 28‑8‑1980" was filed.

3. An application for interim relief of like nature was also filed alongwith the suit. A counter‑affidavit was filed by the defendant Society. By an order, dated 27th September, 1980 the learned Civil Judge No. XXV, Karachi granted the injunction restraining the defendant from disturbing the possession ' of the plaintiff /applicant. The consideration which weighed with the learned Judge at that initial stage for granting the injunction are reproduced from the order below:‑--

("So far as the title of plaintiff is concerned, it is admitted that the plaintiff has not yet been allotted the plot but the plaintiff has produced a. letter of Secretary to M.L.A. Zone 'C' which reveals that with reference to a petition made to President of Pakistan the Association of Gizri Village Occupants was informer' to move the Secretary Local Government of Sind for regularisation of Katchi Abadis. This letter indicate that the land of Gizri Village is lying at the disposal of Katchi Abadi Department. The learned counsel for plaintiff has contended that the land where Gizri Village situated does not belong to the defendant and it is not the part of Defence Housing Society and that the possession itself is a legal character in respect of the suit property. I find that defendants have since produced no document to indicate that the land of Gizri Village has been leased out to the defendant, therefore, prima facie it appears that the defendant's notice of eviction, dated 28‑8‑1980 is not justified in the circumstances of the case.")

4. Against this order an appeal was preferred by the Defendant Society which was heard by the learned IInd Additional District Judge, Karachi and as stated above, the injunction granted by the learned trial Court was vacated. I have read the order carefully and feel that the question of ownership of the area where the plot in suit is situated still remains debatable. The injunction was granted by the trial Court on consideration that so far there was no evidence before the Court to establish that the defendants/ respondents were the lawful owners of the area and as such not justified in issuing the notice, dated 28‑8‑1980. The perusal of the order in appeal does not change the position because the learned appellate Court has not categorically recorded the finding that the area undisputedly falls within the area leased out or transferred to the defendant Society by the Government of Pakistan. On the other hand there are other considerations which seem to have weighed with the learned 1st appellate Court. One among them being that the plot in question has been allotted to some Mr. Jatoi for the purpose of building Cinema House. I would produce the relevant portion of this order to show how this learned 1st Appellate Court has approached this question of ownership of the plot or for that matter the entire area known as Gizri Village:

"In the present case, admittedly, the respondent has got no legal title over the property in question except that he is in unlawful occupation on the same. The sketch produced by the respondent in the lower Court is also unauthentic. On the other hand the appellants have filed photostat copy of notification, dated 31st January, 1984 issued by Ministry of Defence by which, Federal Government has excluded area of Qayoomabad and upper Gizri from the limits of Clifton Cantonment They also filed the sketch issued by Pakistan Defence Officers Housing Authority showing that plot in question comes in the Defence Authority area and also photostat copy of lease‑deed, dated 28th November 1982 by which plot in question has been leased out by the Pakistan Defence Officers Housing Authority to some other person and this lease‑deed has been duly registered."

5. Had it been a case of the plaintiff /applicant occupying the plot that plot belongs to the defendant‑Society surely the point that the applicant has no title and no‑authority to occupy the plot would have been relevant. But in the present case the authority of the defendant/ respondent is also disputed. As such both the plaintiff and defendant rank at par with each' other and to put it plainly one unauthorised person intending to encroach upon an area cannot push out another unauthorised person who is occupying it since 1947 and has made huge investment by way of raising construction thereon in the hope of being permanently settled on this portion as evident from the finding made in the order of the trial Court. The order under appeal has mentioned that the area has been excluded from the limits of Clifton, but it does not prove that it has been included in the area of the Defence Officer Housing Society. All these controversies should be examined at the time of the trial of the case and it should be determined on appreciation of the evidence whether the area belongs to the defendant‑Society or falls to be disposed of under the Katchi Abadi Scheme. In these circumstances it cannot be said that the discretion exercised by the learned trial Judge was illegal or improper justifying interference and reversal by the 1st Appellate Court.

This petition is, therefore, allowed and the order of the learned Judge, dated 27‑9‑1980 is restored.

H . B . T . Revision petition allowed.

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