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Suit No. 693 of 1986, decided on 13th November, 1986.

---O.XXXIX, Rr. 1 & 2--Injunction--Document produced not ever prima facie establishing title of plaintiff, in respect of land it question--Assertion that plaintiff was in actual physical possession not appearing to be correct--Land in question was acquired by competent authority for a Scheme of K. D. A. and allotted by latter to hundreds and thousands of persons during last several years after public notice and possession thereof had been given to allottees long ago who were not even parties to suit--Held, plaintiff failed to make out a prima facie case--Prayer for grant injunction refused.

Syed Ansar Hussain for Plaintiff.

S.H. Qizalbash for Defendant No.1.

S.M. Saeed for Defendant No.2.

This is an application for injunction filed by the plaintiff against the defendants to restrain the K.D.A. from taking over possession of Survey Nos. 109 and 110 of Deh Babrano, Tappo Manghopir, Taluka Karachi from the plaintiff. This application has arisen out of the suit praying for the following relief:-

"In view of the circumstances as stated above this Hon'ble Court be pleased to pass a judgment and decree against the Defendants jointly and severally as under:-

(a) declaring that the acquisition order referred in annexure (d) is void ab-initio and without lawful authority and, therefore, it is no acquisition but if for any reasons this Hon'ble High Court comes to the conclusion that the acquisition order is valid, it may be held that the K. D. A., had no authority to alter the original nature of the scheme and, therefore, the plaintiff being the bona fide purchaser of the land in question is entitled to have his scheme for raising low cost houses for low-income-holders;

(b) be further pleased to cancel, set aside the allotments of land styled as flat-size to the Defendants 2 to 8;

(c) be further pleased to restrain the Defendants from taking over possession of the land in question from the plaintiff;

(d) any other relief or reliefs which this Hon'ble Court deems fit and proper in the interest of justice."

Mr. Ansar Hussain in support of his application submitted that no notification under section 4 of the Land Acquisition Act has been issued by defendant No.1 and as such they have no right, title or interest in the land. In the alternative he submitted that the notification dated 9th December 1961 produced by defendant No.1 is invalid as the same has not been issued under any scheme of K.D.A.

Mr. Qizalbash, on the other hand submitted that the notification for acquisition of the land which included the land in question i.e. survey Nos. 109 and 110 was issued by the Commissioner Karachi, which is dated 9th December, 1981 for North Karachi Scheme. The K.D.A. in pursuance of the notification got control and possession of the entire area, and they have allotted plots to thousands of allotees including defendant No.2 and they have all been put in possession thereof. In support of his submission he has filed copy of the notification, award and resolution regarding the payment of Rs.9,72,164.12, being actual amount of compensation as worked out on account of Evacuee Trust land (Pinjapur) measuring 581-02 acres situated in Deh Babrano paid to the Evacuee Trust property Board. A number of documents with regard to the various steps taken in the matter by the K.D.A. have also been placed on record by the K.D.A.

Mr. Qizalbash has also produced today in Court copy of letter issued by the Mukhtiarkar, Karachi (West) which is dated 30-10-1986 enclosing therewith copy of notification, 1961 already referred, as well as copy of public notice issued by the office of Collector of Karachi with a schedule of land acquired which includes the two survey numbers in question.

Mr. Ansar has filed a photo-stat copy of some extract, which besides being illegible does not seem to bear any date, signature and seal of any officer. I required him to produce the original certified copy of the same which he failed to produce. Moreover, Mr. Qizalbash has also taken a plea that no notice under Article 131 as required by K. D. A. Order 5 of 1957 has been served on the K. D. A. before the institution of the above suit, which fact has not been denied by Mr. Ansar Hussain.

Mr. S.M. Saeed, learned counsel for defendant No.2 submitted that earlier in September, 1985 the plaintiff had filed Suit No. 2049/85 against the said defendant including the K.D.A. and some other parties including one M/s. Home Land, for declaration and injunction in the Court 'of Civil Judge v. (West) Karachi, and had succeeded in obtaining ad-interim status quo order, which was later on vacated by the learned Civil Judge Civil Misc. Appeal filed by the plaintiff against the stay order was also dismissed, thereafter, the plaintiff withdrew the said suit under Order 23, rule 1, C.P.C.

It was further submitted by him that the land in question is a part of the land allotted to defendant No.2 on 22-12-1984 on payment of Rs. 4,15, 564.00 to K. D. A. The said defendant is in physical possession of the said land by possession order issued by K. D. A. on 14-1-1985 and have invested about twenty lacs of rupees thereon in developing the said land and at present five storeyed flats are under construction, which have been allotted/sold to the numerous persons.

Mr. Ansar Hussain submitted that he had purchased the land in question from a trustee of the Pinjapur Trust. Reliance was placed by him on agreement of lease executed by one Shri Mahant Bawa Manobhagir and Syed Muhammad Yaqoob. He .gas however not able to satisfy me as to how the said Trustee could enter into an agreement to lease when the property, being an evacuee trust property, vested in the Evacuee Trust Board. It is only an agreement to lease. Even if it is considered to be a lease it is unregistered. Be that as it may the document does not establish the title of the plaintiff, even prima facie, in respect of the land in question. The assertion of counsel that the plaintiff is in actual physical possession does not seem to be correct. In view of the averments made by the K.D.A. and defendant No.2 in their counter-affidavit, the whole land comprising over 500 Acres including about 31 Acres of the land in question appears to have vested in the Evacuee Trust Board who have received compensation from the K.D.A. The land has been acquired by the Notification produced in Court by the Commissioner of Karachi as long back as 1961 and possession of the land, including survey numbers in dispute was also taken by the K.D.A. from Revenue Authority on 18-10-1983. The submission of the counsel that the Notification is invalid as the land was not acquired by the K.D.A. is of no weight. The land is acquired by the Commissioner under Land Acquisition Act being competent officer under the Act, for North Karachi Scheme prepared by the K.D.A. The allotments have been made by the K.D.A. to hundreds and thousands of persons during last several years after public notice and possession thereof has been given to the allottees long ago, who are not even parties to the suit.

In the facts and circumstances of the case as observed above the plaintiffs have not been able to make out a prima facie case for injunction. The application is, therefore, rejected.

M.Y.H./A-70/K Injunction refused.

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