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Petitioner: Dr. Arifa Farid and others VS Respondent: Mitha Khan and others
Court Name: Sindh High Court Judge(s): Muhammad Faisal Kamal Alam Title: Dr. Arifa Farid and others vs Mitha Khan and others Case No.: Suit No.2322 of 2014 Date of Judgment:2019-04-24 Reported As: PLD 2020 Sindh 451 Result: Order accordingly
JUDGMENT
JUDGMENT MUHAMMAD FAISAL KAMAL ALAM, J. -This representative lis has been brought by the Plaintif fs for various plots, in Block-1 1, Scheme 36, Karachi, regarding which the Plaintif fs claim their respective entitlement as owners, allottees and transferees. Plaint contains the following prayer clause-- (a) That this Hon'ble Court may graciously be pleased to direct KMC/KDA/KBCA to deliver the vacant possession of the respective plots to the plot owners and may further be directed to demarcate the plots as per layout plan to provide amenities so that approved plan may be submitted for raising construction over the plots. (b) To remove the illegal encroachment made by land grabbers from entire Block - 11, KDA Scheme-36, Gulistan-e-Jauhar , Karachi. (c) To take the suit proceedings as representative as per prayer made in the separate application accompanied herewith. (d) To award the mesne profit from the date of allotment till the final disposal of this suit to the plaintif fs / plot owners directing KMC/KDA/KBCA to make payment to allottees. (e) To demolish all illegal structures within the boundaries of Block - 1 1 of Scheme-36. (f) Any other relief(s) this Hon'ble Court may deem fit and proper under the circumstances. 2. Upon issuance of summons, the private and Official Defendants contested the matter by filing their respective Written Statements. 3. On 05.12.2018, following Issues were settled-- 1. Whether the Government of Sindh on the basis of non-payment of dues can resume the land allotted to KDA, in accordance with law?
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2. Whether the KDA is entitled to transfer proprietary rights of the subject land situated in Block-1 1, Scheme No.36, Gulistan e-Johar , Karachi? 3. Whether the defendants Nos.1 to 7 have any right, title or interest in respect of the subject land? 4. Whether the plaintif fs are entitled for the possession of their respective plots as per their allotment in subject land? 5. Whether 'Bhingo Gabol Goth' is a legally constituted /sanctioned village? 6. Whether the plaintif fs are entitled for the relief prayed for? 7. What should the decree be? 4. Messrs S. Hassan Imam, Irfan Ahmed Qureshi, Zeeshan Iqbal, Abdul Rehman, Advocates, representing different Plaintif fs have argued that it was observed in the order dated 05.12.2018 that the entire controversy can be decided on the basis of legal Issues and in the light of the Judgment passed by the learned Division Bench of this Court in number of constitutional petitions, C.P. No.D-1608 being the leading petition, which decision was maintained up to the honourable Suprem e Court. It is contended that the said decisions though primarily relate to Block-6 of Scheme No.36, Gulistan-e-Jauhar , Karachi, but, material findings are also applicable to the present case and thus, the entire controversy in the present lis can be decided without leading any evidence as no triable Issue is involved. 5. Per learned counsel for the Plaintif fs, so also mentioned in the plaint, Plaintif fs Nos. 1 to 7 are direct allottecs of plots by Defendant KDA, whereas, Plain tiffs Nos.8 to 44 are transferees of their respective plots by way of sale transactions. Later Plaintif fs Nos.53 to 58 joined the proceeding when their application (C.M.A. No.3271 of 2018) was allowed vide order dated 29.05.201 8. These Plaintif fs have claimed to have subsequently purchased their respective plots from their predecessor-in-interest. The record shows that subsequently , another application [C.M.A. No.5688 of 2018] for impleading the Plaintif fs as 59 to 63 was allowed by the Order dated 02.05.2018. These Plaintif fs also claimed their right and interest in respect of one of the plots being plot No.65, situated in Block-1 1, as mentioned in the Allotm ent Order issued by Defendant KDA, appended with the said application. Interestingly , the application was granted by consent of all as mentioned in the order dated 02.05.2018. Eventually , vide an order dated 17.10.2018, one more application preferred on behalf of present Plaintif f No.64 was granted and he was also impleaded being subsequent allottee of Defendant KDA. 6. Messrs Muhammad Yaseen Azad, Nasrullah Malik and Mr. Taqdir Ali Khan, Advocates, representing the set of private Defendants Nos.1, 2, 3 and 4, have argued that in the present case demarcation is necessary in order to ascertain entitlement of the Plaintif fs and the private Defendants, who are residents of the two Goths (villages), namely , "Bhingo Gabol Goth " and "Rustam Zigri Goth" (hereinafter referred to as the "Said Goths "). Per legal team of the private Defendants, the Said Goths exist at the site even before the Partition and hence entitlement of residents/villagers of these two Goths should be given due consideration. Mr. Muhammad Yaseen Azad (Senior Advocate), has cited a reported case of this Court in PLD 2003 Karachi page-237, to augment his arguments that the land in question does not belong to the Karachi Development Authority ("KDA "), but Government of Sindh. The learned Advocates further contended that this case should be decided after a full dress trial and not on the basis of legal issues. 7. Messrs Usman Tufail Shaikh and Muhammad Khurram Ghayas, Advocates, representing Defendant No.15 (Karachi Development Authority-KDA), have supported the stance of the Plaintif fs and have also placed reliance upon the above two Judgmeuts. 8. Mr. Shahryar Qazi, learned Additional Advocate General sindh along with Messrs Akhter Ali Mastoi and Noor Alam Khatri, Advocates, have mainly argued that Defendant No.15 - KDA besides being defaulter in payment of entire costs of the land allotted to them way back in the year 1977, has also encroached upon the additional state land of the Government of Sindh. Both learned counsel as well as Mr. Akhter Ali Mastoi, have also supported the contentions of learned counsel for the private Defendants that demarcation be carried out in the subject matter . However , it has been acknowledged by Defendant No.14 (Board of Revenue) in their written statement that the land in Block-1 1, Scheme No.36 belong s to Defendant KDA and the above named 'Bingo Gabol Village' is an
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abandoned Goth. It is further admitted that neither an sanctioned nor any regularised Village exist in Block-1 1 in question. 9. Arguments heard and record perused. 10. First thing that should be decided is the applicability of the above decisions of this Court and of the honourable apex Court handed down in number of constitutional petitions, and C.P. No. D-1608 of 2005 being the leading petition filed by one Ms. Talat Ejaz (Ejaz Case) v. City District Government Karachi (which was also the predecessor-in- interest of present KDA). It is a matter of record that the decision of this Court has been upheld by the honourable Supreme Court in Civil Petition No.2086 of 2015- Pir Masoom Jan Sarhandi v. Ms. Talat Ejaz, whereas, a second Petition preferred by one of the Intervenors as Civil Petition No.3470-K of 2015- Roshan Associates, Karachi and others v. Talat Ejaz and others , also met the same fate (was dismissed); collectively the above three decisions may be referred to as the " said Decisions". If the aforesaid Ejaz Case is decided only between the parties to the proceeding (of said Ejaz Case), then it is the Decision "in personam " and its effect and determination is confi ned only between inter parties or the parties of the above Cases (Ejaz Case) and eventually present /is should then be decided after conclusion of the evidence, as also argued by the legal team of private Defendants; but, if the said Decision s are "in rem" then it is to be considered that how far it covers the issues involved in the present case. 11. This legal concept of judgment in rem and in personam is explained in many judicial pronouncements, some of which are mentioned in the opening paragraph of this decision. It has been summarized by the honourable Supreme Court in the Bhatti Case (ibid). The crux of this concept is that when judgment is pronounced with regard to a legal principle then it is a judgment in rem; for instance, if a Notification issued by a Government Functionary , is set aside or a levy is held to be ultra vires , then the effect of that decision will also be extended to those persons, who were not even parties in the original proceeding but are affected by the impugned notification or levy. Similarly , if a judgment is pronounced in an action with regard to claim of ownership against all other persons and the finding is given in favour of claimant then the said Judgment and decree is to be considered as judgment in rem. In the same perspective, the honourable Supreme Court in Khursheed Bhinder Case (supra) decided the various applications (for permission to file review petitions) preferred by the Petitioners (who were former Judges of the Superior Courts). 12. It would be advantageous to reproduce relevant portion of the judgment of the honourable Supreme Court handed down in Bhatti Case, in which the legal principle about judgment in rem and personam has been explained- "Upon a consideration of what has been stated above, the formation on behalf of the appellants cannot be accepted as it stands. In a controversy raising a dispute inter parties, the thing adjudged is conclusive as between the parties both on question s of fact and law but as to what the Court decides generally is the ratio decidendi or rule of law for which it is the authority .. It is this ratio decidendi which is applicable to subsequent cases presenting the same problem between third parties not involved in the original case nor will either of the original parties be bound in a subsequent dispute with a third party . It will be misnomer to say that this rule of law acts in rem, that is, as against the whole world as conceptually the applicability of the rule of law is either founded on the doctrine of precedent as under the English law or rule of stare decises, and none of the doctrines in its applications is inflexible for what has been recalled elsewhere in the judgment. Therefore, the judgment cannot act in rem as is sought to be argued... ... ... ...The High Court in dislodging the appellants held that the judgment of the Supreme Court was not a judgment in rem, but in personam. The terms 'in .rem' and ' in personam' are of Roman Law used in connect in with actio, that is actio in rem and action in personam to denote the nature of actions, and with the disappearance of the Roman forms of procedure, each of the two terms ' in rem' and 'in personam' got tagged with the word judgments to donate the end-products of actions in rem and actions in personam. Thus, according to the civil law an action in which a claim of ownership was made against all other persons was an action in rem and the judgment pronounced in such action was a judgment in rem and binding upon all persons whom the Court was competent to bind, but if the claim was made against particular person or persons, it was an
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action in personam and the decree was a decree in personam and binding only upon the particular person or persons against whom the claim was preferred or persons who were privies to them. Munir in his "Principles and Digest of the Law of Evidence" at page 563, gives the import of these terms as under:-- "The point adjudicated upon in a judgment in rem is always as to the status of the res and is conclusive against the world as to that status, whereas in a judgment in personam the point, whatever it may be which is adjudicated upon, it not being as to the status of the res, is conclusive only ,between parties or privies. A decision in rem not merely declares the status of the person or thing, but ipso facto renders it, such as it is declared: thus, a decree of divorce not only annuls the marriage, but renders the wife female sole: adjudication in bankruptcy not only declares; but constitutes the debtor a bankrupt; a sentence in a prize Court not merely declares the vessel prize, but vests it in the captor . Section 41 of the Evidence Act does not use the terms 'judgment in rem', but it incorporates the law on the subject of judgments in rem, and makes them relevant not only against strangers but also conclusive of certain matters such as whether a person was entitled to a legal character or to any specific thing not as against any specified person but absolutely . ............................................ 8. It may be observed that Black's Law Dictionary gives simple definition of the above two items by providing that 'judgment in personam or inter' parties' is a judgment against a particular person as distinguished from 'a judgment against a thing or a right or status, whereas the term 'judgment in rem' has been defined as an adjudication pronounced upon the status of some particular things or subject-matter by a Tribunal having competent authority . Such a judgment is binding upon all persons insofar as their interests in the property are concerned." 13. The said Decision (of Ejaz Case ) has laid down the legal principle that Sindh Government (Defendant No.8) cannot cancel the 2000 Acres of land earlier allotted to the KDA way back in the year 1977, merely because the said KDA did not pay the entire price. It has been further held that since Scheme - 36 is a duly notified Scheme under the Karachi Development Authority Order , 1957, therefore, the Petitioners (of the said Ejaz Case) should not be made to suffer on account of dispute between the two Government Functionaries, viz. Sindh Government and KDA; both are also impleaded as Defendants in the present lis. It has also been held as a legal principle that since Gabol Goth, which was the subject dispute in the above Ejaz Case, was established in violation of the Land Grant Policy , 1980 (Clause-1 1 of the Land Grant Policy , dated 12.01.1980), therefore, "Mir Khan Gabol Goth" was declared to be illegal. Similarly , if the table mentioned in the opening part of the Decision (in Ejaz Case) of this Court is seen, the undisputed position that emerges is that it relates to Blocks-4,6,7,10 and 11; whereas, the present dispute also pertains to Block - 11. The finding of the learned Division Bench in the Ejaz case (which has been maintained up to the honourable apex Court) that Government of Sindh (present Defendant No.8) could neither have resumed any portion of land, nor have allotted the same for any village, in terms of Land Grant Policy , 1980, is also directly relevant for deciding the present controversy . Admittedly , the above decision was in respect of 2000 Acres of land which constitutes the whole of Scheme-36 of Gulistan-e-Jauhar , Karachi, including present Block-1 1 in question. It is also a well recognised rule that "greater includes the smaller". Thus, Block-1 1 being a part of the Scheme 36, applicability of the said Decisions {of learned Division Bench, which was further upheld by the two separate decisions of the honourable apex Court }, are fully attracted and is applicable to the present lis. Secondly , the ratio decidendi is not only applicable to the present us on the basis of principle of stare decisis but also because the said Decisions of this Court and the honourable apex Court are judgment in rem and not in personam . ISSUES NOS.1, 2 and 4 : 14. Learned counsel for the Plaintif fs have referred to the said Decisions (in Ejaz Case) in support of their arguments.
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The Issues can be decided on the basis of afore-referred said Decision (of Ejaz case); wherein, it has been held, which finding has been maintained up to the honourable Supreme Court, that the Defendants Nos.8 and 14 (Province of Sindh and Board of Revenue, respectively), have illegally cancelled the allotment in favour of KDA on account of non-payment of the entire price and dues, while resuming the land in respect of which bona fide/genuine third party interests have been created in due course of time. A careful examination of the above Ejaz Case shows that out of 43 petitions, there were many petitions related to Block-1 1 of Scheme No.36, which Block is the subject matter of present lis. But, at the same time, if (at all) Defendant No.15 (KDA) is a defaulter in payment of entire occupancy price to official Defendants Nos. 8 and 15, as argued by the learned Additional Advocate General Sindh as well as learned counsel for Official Defendant No.14, then the latter (the said official Defendants Nos.8 and 15) are at liberty to take action under the law against the Defendant KDA, but the bona fide purchasers for value, including present Plaintif fs, who have been duly allotted plots by Defendant KDA, or, those who are subsequent transferees by virtue of valid sale transactions, in the said Scheme-36, cannot be punished or penalized for the wrongful acts (if any) on the part of Defendant KDA. This Issue has already been finally decided in the said Decisions (of Ejaz case). Consequently , Issue No.1 is answered in Negative but in favour of present Plaintif fs and Issue No.2 is in Affirmative; that is to say, the Official Defendants and Government of Sindh cannot resume the subject land and Defendant No. 15 is entitled to transfer proprietary rights to the Plaintif fs in accordance with law and after fulfilling codal formalities. Issue No.4 is also answered in affirmative and considering the finding contained in the said Ejaz decision , inter alia, about handing over of the possession, Plaintif fs are entitled for the possession of their respective plots as per their allotment orders or being lawful, bona fide transferees. ISSUES NOS.3 and 5: 15. Answer to Issue No.3 is directly related with Issue No.5, therefore, the latter is to be decided first. The main defence setup by the learned Advocates for the private Defendants is that the above Decision pertains to an area of 30 Acres only, which was earlier resum ed by the Government of Sindh / Defen dant No.8 and was given to the villagers of "Mir Khan Gabol Goth" and in the entire Judgment right up to the honourable Supreme Court, there is no mentioning of the said two Goths (V illages) in question [which are the subject matter of the present lis]. 16. In order to ascertain the status of the Said Villages, vide order dated 26.02.201 9, a Report was called from the concerned Deputy Commissioner , who submitted a Report dated 22.03.2019 with the caption "Comprehensive Report ", against which no objection has been preferred. The gist of this "Comprehensive Report" is that occupants of "Rustam Zigri Goth" did not pay occupancy price, whereas, issue of "Bhingo Gabol Goth" is also unresolved because of orders passed by the honourable Supreme Court in Suo Motu Case No. 16 of 2012. On this particular aspect, the learned Counsel for Defendant - KDA assisted by the above named Officials, have opposed the contention of the legal team of the priva te Defendants, who are claiming to be the occupants of above named Goths/V illages. As per the averments of KDA, area of "Rustam Zigri Goth" was earlier utilized as part of present Jinnah International Airport, whereas, the other "Bhingo Gabol Goth" is an attempt to encroach upon the subject land in Scheme-36. 17. On a specific query with regard to the reported decision relied upon by the legal team of the private Defendants and cited by Mr. Muhammad Yaseen Azad (Senior Advocate), in rebuttal, Mr. Abdur Rehman, learned counsel representing a set of the Plaintif fs, has relied upon the unreported decision of the honourable Supreme Court in the above Ejaz Case. Order of the honourable apex Court has been perused. The contention of the Plaintif fs' legal team has substance. The apex Court in its order dated 19.08.2016 has maintained decision of learned Division Bench of this Court in Ejaz Case, while considering the above reported case relied upon by the private Defendants. Secondly , if the reported decision (cited by the Defendants) is read carefully , it would be apparent that the Official Respondents (in the said reported case) did not produce or bring on record that material and irrefutable official documents to assist the Court, which have been subsequently produced in the afore-referred Ejaz Case. Thirdly , the cited decision as far as it concerns the present controversy , with utmost respect, does not have the same binding force as the said Decisions, viz. the exhaustive decision of Ejaz Case handed down subsequently
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by another learned Division Bench of this Court, which has been upheld by the two separate orders of the Hon'ble Supreme Court. Fourthly , in view of above discussion and after going through the said Decisions (in Ejaz case), it is now a proven fact that the aforementioned two Goths/V illages, which are part of the present controversy , are not the established villages in terms of the Sindh Gothabad Act, 1987; admittedly , no housing scheme exists as provided under Section 4 (of the Sindh Gothabad Act, 1987) read with Rule 4 of the Sindh Gothabad (Housing Scheme) Rules, 2008, and no "Sanad" in terms of last mentioned Law and Rules has been brought on record. Even the private Defendants have admitted in their respective Written Statements (pleadings) that the regularization of the said two Villages is pending. In this regard the admission contained in the Written Statement of the Defendant Board of Revenue, as discussed in the foregoing paragraphs, which is the custodian of revenue record, cannot be ignored and should be given due weight. Even though it is a rule that pleadings do not themselves have evidentiary value, unless the Plaintif f and or Defendant, as the case may be, enter the witness box and lead the evidence in support or defence of their pleadings; but, an exception to this rule is, that pleadings or a Written Statement can be considered when there is an admission on the part of Defendant; because, depending upon the facts of each case, even on the basis of written statement a judgment as envisaged under Rule 6 of Order XII of C.P.C., can be pronounced. On the other hand the private Defendants have not produced any tangible documentary evidence in support of their claim. Thus in order to decide the Issues involved, a full dress trial is not necessary , because, no triable issue has left to be answered in view of the discussion in preceding paragraphs. It follows that proceeding of the nature can be decided and relief (as the Court deems fit), can be granted in terms of the Specific Relief Act, 1877, without leading the evidence. Fifthly , it has been unequivocally held in the Ejaz Case by the learned Division Bench of this Court (arid upheld by the honourable Supreme Court) that when no village existed at the time of launching of Scheme - 36 as per the KDA Order 1957, way back in the year 1977, then there is no question of granting of land by Sindh Government and its other Departments, which are also Defendants in the present lis, to occupants of a Village, which this Court and the honourable Supreme Court has termed as dummy village. This finding of Tact given by the learned Division Bench of this Court fully covers the factual and legal aspect of the present case, because the learned Division Bench after considering various official documents produced by the Government Officials, who are also present Defendants in this lis, arrived at this conclusion. It is necessary to repro duce herein under the relevant portion of the judgment from Ejaz case (given by the learned Division Bench)- "Mr. Pirzada repeatedly argued that the land to the villagers were granted by the Government of Sindh in accordance with their existing Land Grant Policy made under Section 10 of the Colonization of Government Land Act, 1912 through Notification dated 12.01.1980 and the so-called Sanads of the villagers which are placed by the Intervenor M/s. Roshan Associates on recor d also reflects that Deputy Commissioner granted so-called Sanads on the terms and conditions as envisaged in Policy dated 12.01.1980 oblivious of the fact that Clause 5 of the Policy dated 12.01.1980 states that "no land lying within the limits of Karachi Develop ment Authority , Hyderabad Development Authority and Municipal areas, shall be granted without prior approval of the Board" and there is noth ing on record to show that the Board ever accorded such approval. Additionally Clause 11 of the Policy states that "land allotted under the Policy dated 12.01.1980 is to be used for the sole purpose of establishment of Village", Clause 11 reads as follows:- "The land shall be used for the sole purpose of establishment of village and extension of the existing village within such period as may be fixed by the Collector…
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