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Suit No.68 of 1981, decided on 31st March, 1987.

---S.9 & O.XXXIX, Rr.l & 2--Suit--Dispute between parties arising over ownership of a piece of land handed over by Pakistan Railways to plaintiffs/ Railway Employees Cooperative Housing Society for purpose of constructing residential houses and establishment of a colony for welfare of Railway staff--Plaintiff society occupied land and constructed boundary wall--Government functionaries demolishing wall and assuming land treating plaintiff as trespasser--Record showing that in a joint meeting of all concerned including Provincial Government representatives, land in question was given to Railway for the said purpose--Government taking inconsistent stands about ownership of land in dispute and failing to prove their right over it by documentary evidence or that same did not belong to Railway or its delivery was illegally given to plaintiff--Held, dispute about land having already been resolved in a joint meeting and Government handed over land to Railway and for that matter to plaintiff, action of Government functionaries in demolishing boundary wall and resuming land was illegal and without jurisdiction--Wall of plaintiffs having been demolished under bona fide belief and under misunderstanding, no compensation therefore, could be awarded to the plaintiff--Suit decreed accordingly.

S.H.Rizvi for Plaintiff.

Sattar Shaikh and Agha Imdadally for Defendants.

Date of hearing: 31st March, 1987.

The Plaintiff Pakistan Railways Employees Co-operative Housing Society Limited has filed this suit for declaration, permanent injunction and compensation. Briefly stated the Plaintiff's case is that it has been granted an area of 63.13 acres out of the land owned by Pakistan Railways for the purposes of construction of residential houses and establishment of a colony for the welfare of Railway Staff. Such an agreement of lease was executed between the Plaintiff and the Pakistan Railways on 24-12-1980. The land in question formerly formed part of the K . D . A . Scheme No.24, Gulshan-e-Iqbal, Karachi, K . D . A . had occupied relevant land in the said scheme and therefore a dispute arose between K.D.A. and Pakistan Railways which was resolved by a compromise arrived at a meeting held on 6-2-1980 which was presided by the Chief Secretary Government of Sind and was attended by the officers of Sind Government, K.D.A. and the Railways administration. In accordance with the decision arrived at the above meeting the K.D.A. handed over the possession of the said land to Pakistan Railways. The Plaintiff society raised a boundry wall around the said land and started preparing a housing and commercial scheme for the welfare of Railway employees. It spent a sum of Rs.1,50,000 over the construction of boundary wall. On 2-2-1981 without any prior notice to the Plaintiff and without any proper proceedings by any competent authority the boundary wall of the Plaintiff society was demolished and on inquiry the Plaintiff society was informed that it was done under the orders passed by the Commissioner Karachi Division and Deputy Commissioner, Karachi East. Hence this Suit.

2. The Defendants Nos.1 to 3 filed a joint written statement, signed and verified by the Assistant Commissioner Karachi East alone. There is nothing on record to show that the said officer had any authority to sign or verify the said written statement on behalf of the defendant No.3 whose immediate subordinate he was or on behalf of the first two defendants. However, the said written statement was taken into consideration by this Court. It was denied that the land in question was owned by the Pakistan Railways. It was stated that the grant of an area of 63.13 acres out of the land which was not owned by Pakistan. Railways to the Plaintiff-society was therefore illegal and did not create any right in favour of the Plaintiff-society. It was further stated that the land in question belonged to the Provincial Government and the K.D.A. was therefore not legally competent to hand it over to Pakistan Railways. It was also stated that the land was an evacuee land and, therefore, could not be transferred in absence of any policy of transfer formulated by the Provincial Government. Since the land in question belonged to the Provincial Government the boundary wall of the Plaintiff-society was demolished being illegal and unauthorised. It was denied that the impugned orders of the Commissioner and Deputy Commissioner are void and of no legal effect. It is also denied that a loss of Rs.1,50,000 was caused to the Plaintiff-society due to the said demolition.

On the pleading of the parties the following issues have been framed: -

(1) Whether the land in Suit belongs to the Plaintiffs having acquired on lease from Pakistan Railways

(2) Whether K.D.A. was not competent to transfer the suit land to Pakistan Railways

(3) Whether the Plaintiffs occupied the land in an illegal and unauthorised manner

(4) Whether the boundary wall of the Plaintiffs was wrongly demolished by the Defendants

(5) Whether the plaintiffs suffered any financial loss on account of demolition of the plaintiff's wall. If so, to what extent

(6) Whether the defendants or any other Government Official of the Provincial Government is competent to resume the land treating the Plaintiffs as trespassers

(7) Whether the action. of the defendants was illegal, void, and without jurisdiction

(8) To what relief, if any, the Plaintiffs are entitled

3. The Plaintiffs examined their Field Officer. Rehmat Ali Khan exhibit 4 who produced the certificate of registration of Society as exhibit 4/1, duplicate copy of agreement of lease as exhibit 4/2, plan showing the land taken over from the K.D.A. and land proposed to be handed over to Pakistan Railways employees at Karachi central station as exhibit 4/3, minutes of meeting held on 6-2-198b as exhibit 4/4, letter of Executive Engineer K.D.A. to the Director K.D.A. regarding survey of Railway land. The Plaintiffs have also examined their General Secretary Bahadur Khan exhibit 5 and produced the Notification dated 17-2-1983 as exhibit 5/1 and copy of the letter dated 30-9-1980 as exhibit 5/2 and the original plan which shows that the land in question had been given to the Plaintiff-society by K.D.A. as exhibit 5/3.

4. As against this the defendants have examined Mr.Nasir Ahmad Mughal Mukhtiarkar Karachi East who produced a letter written by the Commissioner Karachi Division to the Chief Secretary Government of Sind as exhibit 6/1 and a D.O. written by the members of Land Utilization, Board of Revenue to the Commissioner Karachi Division as exhibit 6/2.

5. My findings on these issues are as follows:-

(1) In the affirmative.

(2) In the affirmative.

(3) In the negative.

(4 & 5) As follows.

(6) In the negative.

(7) In the affirmative.

(8) The suit is decreed re. prayers (a) and (b).

6. The Plaintiffs have examined P. W. Rehmat Ali Khan and P. W. Bahadur Khan and have stated on oath that this land belonged to Pakistan Railways and its area was 63.13 acres. This was purchased by the Pakistan Railways from the private owners of the land. In the minutes of the meeting exhibit 4/4 it was clearly admitted by the officers of the Sind Government and the K.D.A. in clause (1) of para 3 that 63 acres Railway land had been acquired by the Railway separately. It was also admitted in the said minutes of the meeting that this piece of land as well as several other pieces of land referred in clauses 2, 3 and 4 would also be handed over by the K.D.A. to Pakistan Railway. Such original sketch and its copy have been produced as exhibits 5/3 and 4/3. It is therefore quite clear that the disputed land belonged to Pakistan Railways. The lease agreement exhibit 4/2 has been produced which shows that Pakistan Railway had leased out the said land to Plaintiff-society. A Notification of Ministry of Railways (Railway Board) Islamabad dated 17-2-1983 S.R.O.170(1)/83 is produced as exhibit 5/1 to show that Pakistan Railway had the power and authority to lease out their lands for the purpose beneficial for the Railway staff through Railway Employees Co-operative Housing Society.

7. The Defendant's witness Mr. Nisar Ahmad Mukhtiarkar Karachi East has given absolutely unconvincing and shaky evidence. He was not able to give proper reply to the questions put to him. The burden of proof, that the land belonged to the Government of Sind, was on the defendants. P.W. Nisar Ahmad being the Mukhtiarkar was supposed to be in possession of Revenue records. When asked about the possession of the land in dispute measuring 63.13 acres in the said record he gave an evasive reply by saying that since the survey numbers of this land were not given therefore he was not able to say as to what was the position of this disputed land in the said record. He was then referred to the sketch wherein the details of the land in dispute were mentioned. Even then he did not give any clear reply and avoided to say as to whom this land belonged in the Revenue Record. His evidence is therefore of no help to the Court. It may be pointed out that if the Government of Sind claimed to be the owner of this land it was its duty to prove the ownership by documentary evidence which was supposed to be in its possession. The defendants have taken two inconsistent stands about this land. The first is that it belongs to Provincial Government and the second is that it is an evacuee land. Since the Government and K.D.A. had already handed over the possession of this land to the Pakistan Railway, it was the duty of the Defendants to prove that the land does not belong to the Railway, and that the delivery thereof to Railway was illegal.

8. The Plaintiffs are also not clear on the point as to how the Pakistan Railway acquired this land. In the plaint they have stated that this land was occupied by K.D.A. in Scheme 24 and subsequently in pursuance of the decision of the high level meeting, the minutes of which are Ex.4/4 it was handed over to Pakistan Railway. Then their Field Officer P.W. Rahmat Ali Khan has deposed that this land belonged to Sind Government and was handed over to Pakistan Railway for construction of Railway Station. Finally their Secretary General P. W. Bahadur Khan has stated that 63 acres of this land was purchased by Railway from private owners, while 18 acres of land was given to Pakistan Railway by K.D.A. in lieu of the land encroached upon by it in Gulshan-e-Iqbal Scheme.

The fact as to who was the owner of this land before Pakistan Railway may not be clear, but it is quite clear that at present Pakistan Railway and through them the Plaintiffs are the owners of this land.

I therefore hold these issues accordingly.

9. It may be pointed out that there was a dispute regarding the land in question at one stage and therefore the said dispute had to be resolved through a meeting of the respective departments held under the Chairmanship of Chief Secretary Sind. It was in pursuance of the said meeting that the possession of the said land was delivered to Pakistan Railway. The action of the defendants regarding demolition of the Plaintiffs' wall and their directions to the respective officers for stopping the work of construction of Housing Society appears to be bona fide and based upon a misunderstanding, which is clear from the fact that even the plaintiff were not fully aware about the origin of the title of this land as gown above. In this connection it will be useful to reproduce the contents of a letter written by Commissioner Karachi to Chief Secretary Government of Sind Ex.6/1.

"Chief Secretary,

Government of Sind,

Karachi.

It will be recalled that in the meeting held under the Chairmanship of the Chief Secretary it was decided inter alia that unencumbered land available in the Gulshan-e-Iqbal will be handed over to the Pakistan Railways for establishing a Central Terminal Station. The K.D.A. has recently handed over the entire land available for the Railway Station in Gulshan-e-Iqbal.

(2) It has now been revealed from the letter of Deputy Commissioner Karachi East copy enclosed and the letter of 20-11-1980 from the Divisional Superintendent Pakistan Railways Karachi that the land has been unauthorisedly handed over by the Divisional Superintendent to Railway Employees Co-operative Housing Society for inclusion in the Railway Housing Scheme. This is not only against the decision of the meeting but is also against all rules and laws applicable in such cases. The land was given to Railway for establishment of a Railway Station and not for private housing societies. In fact conversion of amenity site to a residential plot is a punishable offence and the allotment is liable to cancellation. I am, therefore, directing the Deputy Commissioner East to resume the possession, of the land and not to allow the Railways to utilize it for the housing purpose.

Sd/-

(M.M. Usmani)

Commissioner Karachi Division."

Hence it cannot be said that they had acted in a mala fide manner. I therefore do not propose to grant any compensation on account of demolition of the Plaintiffs' wall.

10. Since I have already held that the land belonged to Pakistan Railway which had been acquired by it from the private owners in part and from Sind Government in part or entirely from Sind Government and that the said land was leased out by Pakistan Railway to the Plaintiff Society in a valid and legal manner therefore the defendants were not competent to resume the land and their action was illegal, void and without jurisdiction.

11. These are the reasons for which I decreed the Plaintiff's suit with regard to clauses (a) and (b) of their prayers. In the peculiar circumstances of this case I also decided to not to award any compensation to the Plaintiffs and further ordered that the costs of the suit be borne by the respective parties.

M. Y. H./P-24/ K. Suit decreed.

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