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Petitioner: MUHAMMAD SAAD and another VS Respondent: AMNA and 27 others
Court Name: Sindh High Court Judge(s): Mushir Alam, Aqeel Ahmed Abbasi Title: MUHAMMAD SAAD and another vs AMNA and 27 others Case No.: H.C.A. No.232 of 2007 Date of Judgment:2013-08-29 Reported As: 2015 YLR 1 Result: Appeal dismissed
Judgment ORDER ' AQEEL AHMED ABBASI, J.---Through instant High Court Appeal, the appellants have assailed the orders dated 19-9-2007 and 22-9-2007, whereby the injunction application i.e. C.M.A. No.2576 of 2007 filed by the appellants was dismissed by the learned Judge in Chambers. 2. Brief facts for the purpose of disposal of instant High Court Appeal are that the appellants filed a suit bearing No.374/2007 seeking declaration and injunction against the answering respondents in respect of land measuring 10-3 Acres in Naclass No.166, Deh Safooran stated to be acquired through registered lease deed dated 17-1-2004 and another piece of land measuring 10-2 Acres from same Naclass acquired through sale deed of the same date. Thereafter the impugned plots were mutated in favour of the appellants in Deh Form-VII vide entries 124 and 125 respectively dated 29-4-2003. It has been further claimed that the possession of the subject land was also handed over to the appellants. Along with plaint of the suit an application under Order XXXIX, Rules 1 and 2, C.P.C. Being C.M.A. No.7576/2007 was also filed by the appellants whereby the plaintiffs sought restraining orders against the defendants from raising any further construction on the suit land as well as from creating 3rd party interest till disposal of the suit. 3. Case of the plaintiffs before the learned Single Judge of this Court was that they have acquired subject land as referred to hereinabove through registered sale deed, whereas the possession was also handed over to the plaintiffs by the official defendants. It has been stated that while visiting the subject land the plaintiffs observed that sign board of proposed construction of Messrs Alpine Towers and Bismillah Towers, were installed at site, whereafter he carried out an inquiry and came to know that the defendants Nos.1 to 23 manipulated entry in the revenue record on the basis of judgment of this Court dated 9-5-1979 in Constitution Petition No.254 of 1974 and thereafter
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transferred some land to defendants Nos.24 and 25. It was contended by the plaintiffs that the defendants have no right in respect of the subject land as they have no clear title and specifically the mutation of 9-8 Acres in Naclass No.166 in their favour is fraudulent. It was further asserted that the construction of multi-storeyed building over the sub-divided plot No.328-A and other on Block- 10, Deh Safooran, Gulistan-e-Jouhar, Karachi, cannot be carried out by the defendants as they are trespasser on plaintiff's land. The defendants including the official defendants have taken the defence that the plaintiff has no right or title over the subject land, and all entries in the record of right relating to plaintiff title are bogus, whereas, all the documents and respective entries in the record of right in favour of the defendants are genuine and legal. It was further stated by the defendants that besides plaintiffs, some government officials have also been booked in some F.I.Rs. For having committed fraud by showing entries in the name of plaintiff. The Mukhtiarkar filed detailed written statement and learned A.A.-G. After having examined the record has also submitted interim charge sheet in F.I.R. No.67/2007, to show that the plaintiffs are wanted by the Police in respect of subject land and they are land grabbers as well fugitive from law. 4. Learned Single Judge, after hearing both the learned counsel for the parties has passed the impugned order dated 19-9-2007 in the following terms:-- "In these circumstances, there is no weight in favour of the plaintiff of all the three factors of injunction while defendants have prima facie case which is being supported through neutral evidence, therefore, if the injunction is granted against them they will suffer irreparable loss hence balance of inconvenience is in their favour." 5. Being aggrieved by such finding of the learned Single Judge in Chambers the appellants have preferred instant High Court Appeal with the prayer to set aside the impugned short order dated 19-9-2007 and the detailed order dated 22-9-2007 and have also sought directions to the effect that the respondents may be directed to maintain status-quo till disposal of the suit. 6. It has been vehemently argued by the learned counsel for the appellants that the impugned order is erroneous in law and fact as the learned Single Judge in Chambers has failed to appreciate that all the ingredients required to be taken into consideration while deciding an injunction application i.e. Prima facie case, balance of convenience and irreparable loss and injury were all in favour of the appellants in the instant case. It is further contended that the respondents were not able to establish their claim or entitlement in respect of subject property on the basis of legal documents, whereas all the ,entries in the record of revenue and the agreements were either erroneous or the same were the result of fraudulent transaction by the respondents to establish their false claim and title over subject property. Per learned counsel, the appellants had produced all the relevant documents and the revenue record before the learned Single Judge in respect of the subject property to show that the appellants were the owner and also V in possession of that property, whereas the respondents had acquired the possession of such land illegally and also raised illegal construction thereon without any lawful authorization. Learned counsel for the appellants while referring to the contents plaint in the suit submitted that appellants came to know about such illegal possession by respondents upon subject land when they noticed construction activity and installation of signboard and hoarding of the project (Bismillah Towers and Alpine Towers) over subject land. However, upon inquiry it is discovered that out of total area of 21-10 acres i.e. The area of impugned land leased to the appellants, an area of 9-10 acres i.e. Disputed portion, has been unlawfully transferred in the name of respondents Nos.1 to 23 vide entry No.22 in Deh Form-II dated 11-3-2004 whereafter it has been allotted survey No.328 in revenue record. Per learned counsel, this transfer of disputed portion of the land was made allegedly on the pretext that one Suleman Haji Tar Muhammad, who was a displaced person, purportedly had an unsettled pending -claim of 25 acres of agricultural land, however, after his expiry during pendency of his claim, his legal heirs viz. The respondents Nos.1 to 23 became his successor-in-interest, whereafter
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such claim was allowed in their favour. Per learned counsel, the entire claim of the respondent was based on erroneous entries and fraudulent transaction shown by the respondents in respect of disputed land, which have been challenged by the appellants by filing a Suit No.374 of 2007 in High Court of Sindh, inter alia, challenging mutation of the disputed portion in favour of respondents Nos.1 to 23 and approval of building plan for raising construction thereon. Per learned counsel, initially, an ad interim order dated 6-4-2007 directing the parties to maintain status-quo was passed by the learned Single Judge of this Court on the appellant's injunction application being C.M.A. No.2576 of 2007, however, when the above said injunction application finally came up for hearing, the same has been dismissed vide impugned order(s) dated 19-9-2007 (being short order) and 22-9-2007 (being detailed order), whereas, per learned counsel, no valid reasons have been assigned by the learned Judge while dismissing injunction application. 7. While making further submissions, learned counsel for the appellants has also referred to the provisions of Evacuee Trust Property Act, orders and letters issued in favour of the respondents in respect of subject land and submitted that the land in dispute which was State land could not be allotted as evacuee land in favour of the respondents, hence mutations and entries in favour of the respondents are illegal and based on managed documents. It has been further contended that the claim of the appellants is based on entries in Government record which have merely been suspended and not cancelled. Learned counsel further submitted that the predecessor of the respondents could not be permitted to take commercial land in lieu of their agricultural land which was allowed to them under judgment dated 6-5-1979 in Constitutional Petition No.D-254 of 1974, whereas, the said order of the Court has been wrongly interpreted by the Government officials, who according to learned counsel for the appellants, are in collusion with the respondents. It has been further contended by the learned counsel for the appellants that while dismissing the injunction application of the appellants the learned Single Judge of this Court failed to appreciate that respondents neither have any prima facie case nor the other ingredients required to be taken into consideration while deciding an injunction application i.e. The balance of convenience and irreparable loss and injury were in favour of the respondents, who according to learned counsel could not establish their entitlement and possession over subject land, and in spite of such fact, they have been permitted to occupy and continue to raise illegal construction upon the subject land. It has been further contended by the learned counsel for the appellants that in the absence of any clear title and lawful authorization by the competent authority in favour of the respondents to raise construction upon the disputed land, instead of dismissing the injunction application of the appellants, appellants could have been directed to maintain status-quo to avoid any further loss and injury to the respondents. In support of his contention, learned counsel for the appellants has placed reliance in the following judgments: (1) Mirza Mehboob Baig and others v. Deputy Settlement Commissioner (Land) and others 2002 MLD 1512 (2) Muhammad Aslam Gatta and another v. Karachi Building Control Authority (KMC), M.A. Jinnah Road, Karachi and 13 others 1998 MLD 544 (3) Muhammad Saleem and 5 others v. Administrator Karachi Metropolitan Corporation, Karachi Building Control Authority (KMC) Karachi and 2 others 2000 SCMR 1748 (4) Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC) and 4 others 1999 SCMR 2883 (5) Syed Saifullah v. Board of Revenue, Balochistan through its Member (RJT) and 4 others 1991 SCMR 1255 (6) Mst. Sardar Begum v. Member (Colonies), Board of Revenue, Punjab, Lahore and 3 others 1994 SCMR 395
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(7) Mooso through Legal heirs and 2 others v. Allah Ditto through legal heirs and 7 others 1999 CLC 798 (8) Syed Mahmood Ali Gardezi and another v. Syeda Rabia Begum and 10 others 1993 MLD 814 (Lahore) (9) Mst. Salma Abbasi and another v. Ahmed Suleman and 2 others 1981 CLC 462 (10) Samar Gul v. Central Government and others PLD 1986 SC 35 (11) Dr. Mrs. Nasreen Qureshi v. Deputy Administrator, Evacuee Trust Property, Karachi and another 1987 CLC 213 (12) Fazalur Reham v. Younis Ali Gilani and 9 others 1999 MLD 1565. 8, Conversely, Mr. Khawaja Shamsul Islam, learned counsel for respondent No.5 has vehemently opposed the contention raised by the learned counsel for the appellants and submitted that the impugned order does not suffer from any illegality, misreading or non-reading of the evidence, hence does not require any interference by this Court. It has been contended by the learned counsel that the scope of deciding a High Court Appeal against an order passed on injunction application is limited, whereas, it has to be examined as to whether while passing an order on injunction application the learned Judge has taken into account all the ingredients required to be considered while deciding injunction application, i.e. Prima facie case, balance of convenience and irreparable loss and injury to the parties. It is contended by the learned counsel for the respondent No.5 that the appellants could not produce any valid title documents in respect of disputed land in their favour nor could establish a prima facie case for grant of injunction in their favour. On the contrary, it has come on record that the appellants approached this Court with unclean hands and by concealing material facts. It is further submitted that the appellants are land grabbers who have been involved in similar criminal activities, whereas several criminal cases have already been registered against them and the officials of revenue department. Per learned counsel, the mala fide on the part of the appellants can be ascertained from the fact that they have approached this Court and filed an injunction application when the project of the respondent was almost completed as about 12 storeys were already raised, whereas, in order to blackmail the respondents, appellants have filed instant suit, without producing any valid title documents in their favour. It has been argued by the learned counsel that admittedly there is no entry in favour of the appellants in the Revenue Record in respect of subject land, whereas no interim relief has been granted to the appellants in their Suit No.389 of 2005 regarding their claim of title over the subject land. Per learned counsel, the claim of the appellants is contrary to the official record, whereas the official respondents have categorically denied the entitlement and possession of the appellants over subject land. Learned counsel also referred to written statement filed on behalf of Mukhitarkar and the learned A.A.-G. To show that the appellants are required by the police in F.I.R. No.67/2007 as they are land grabbers as well as fugitive from law. Per learned counsel, a number of criminal cases have been registered against the appellants and revenue officials on the charges that the appellants, with the connivance of the official respondents, are involved in defrauding and blackmailing the construction companies and builders particularly when their projects are at the stage of completion, by filing frivolous suits and obtaining injunctive orders in their favour on misrepresentation of facts. Per learned counsel, in the instant matter also, the appellants wanted to blackmail the respondents, however, when the respondents refused to accede to their-illegal demands the appellants filed frivolous suits on the basis of forged and managed documents and initially succeeded to obtain interim stay by misrepresentation. However, per learned counsel, when the entire facts were placed before the learned Single Judge of this Court and the documents of title, possession and lawful construction upon subject land were produced by the respondents, the learned Single Judge of this Court, after having examined all such documents and taken into consideration the three basic ingredients required to be examined at the time of
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deciding injunction application, has rightly dismissed the injunction application filed by the appellants through impugned order. Learned counsel has also referred to certain documents filed by the appellants in support of their claim and submitted that the same are bogus and managed documents for which the appellants are being prosecuted in criminal cases. It has been contended that the appellants could not establish a prima facie case in their favour nor could convince the learned Single Judge regarding balance of convenience and irreparable loss and injury for grant of injunction in their favour, whereas, they have raised objections on the title of the respondents and attempt to create doubts with regard to veracity and genuineness of the title documents of the respondents in respect of subject land. Per learned counsel, a party seeking injunctive order in its favour has to establish a prima facie good case on the strength of its own case and not on the basis of weaknesses of the other party, whereas, according to learned counsel, the appellants in the instant matter have throughout either challenged the title of the respondent or the entitlement of their predecessor in respect of subject land. While making further submissions, the learned counsel has referred to the title documents and the official record of the revenue authorities including mutation in the name of respondents to show that the respondents have lawful title, possession as well as authorization to raise construction thereon, which fact, according to learned counsel, has duly been acknowledged by official respondents and can also be verified from the official revenue record. While concluding his arguments, learned counsel for the respondent No.5 has also raised an, objection with regard to laches and argued that the alleged claim of the appellants, besides being false and frivolous, is also barred by limitation and laches, as the entries and documents in favour of the respondents and their predecessors cannot be challenged at this belated stage by the appellants, particularly when the official respondents and the revenue record, do not support the claim of the appellants. 9. Mr. Rashid Anwar, learned counsel for respondent No.24 has also vehemently controverted the contention of the learned counsel for the appellants and supported the impugned order passed by the learned Single Judge. It has been vehemently argued by the learned counsel for respondent No.24 that none of the ingredients which is required to be taken into consideration while deciding an application of injunction i.e. Prima facie case, balance of convenience and irreparable loss and injury, were in favour of the appellants, therefore, the learned Single Judge was right in dismissing such application through impugned order. Per learned counsel, in the absence of any valid title or lawful possession of the appellants over subject land neither the suit filed by the appellants is maintainable nor they are entitled to any interim injunctive relief as sought by the appellants by filing injunction application. Per learned counsel, it has also come on record that the appellants did not approach this Court with clean hands, whereas they are involved in several criminal cases on the charges of blackmailing, cheating the developers and builders.. It is contended by the learned counsel that the appellants are land grabbers, who have also filed similar frivolous suits against other builders and obtained injunctive orders when the projects were almost at the stage of completion and thereafter the appellants by blackmailing the builders and developers, extract illegal money from them, whereafter some of the cases were withdrawn. Per learned counsel, several entries in the revenue record which were managed with the connivance of official respondents in favour of the appellants, have already been cancelled or suspended including the entry in respect of the subject land, whereas, criminal cases are still pending against the appellants and official respondents, who connived with the appellants in such offences. Learned. Counsel further contended that the appellants are claiming title over subject land on the basis of fake entry dating back to 1925 in terms of which one Khan Muhammad was allotted the suit land in lieu of his land which was reportedly acquired by the Government for the Imperial Airship Aerodrome, whereas the falsity of claim can be proved by the fact that Khan Muhammad was actually given total cash compensation in lieu of his land measuring approximately 200 acres
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Rs.50 per acre. Per learned counsel, Khan Muhammad thereafter filed an Appeal J.M. No.489 of 1926 on February 1, 1926 ,in which the Court enhanced the compensation amount by another Rs.6 per acre. Therefore, per learned counsel, the claim of the appellants regarding allotment of the subject land in lieu of acquisition of his land is baseless. Learned counsel has also referred to various other documents through which the appellants have claimed title over the subject land to show that all such documents are forged and managed and were got registered through Sub-Registrar, who did not even have the jurisdiction to register such documents. It has been contended by the learned counsel that none of the document which has been produced by the appellants can be regarded as valid title documents nor did inspire any confidence, therefore, the learned Single Judge was justified to decline interim relief to the appellants. Learned counsel has further argued that the appellants are involved in criminal cases of like nature on the charges of establishing false entries in the revenue record with the connivance of the revenue officials and by filing frivolous suits, wherein injunctive orders are obtained by misrepresentation of facts to blackmail the builders/developers and to extract illegal money from them. According to learned counsel, the appellants have not approached this Court with clean hands, hence not entitled to any equitable relief by way of injunction in their favour. While concluding his arguments, learned counsel has submitted that the scope in High Court Appeal against an order passed on injunction application is limited to the extent of determination as to whether the learned Judge deciding such application has taken into consideration the three basic ingredients i.e. Prima facie case, balance of convenience and injury and irreparable loss to the party, whereas no detailed examination of reappraisal of the evidence is required. Learned counsel also referred to chronology of the events and the documents of title in respect of subject land as well as approved building plan for the projects being constructed thereon to show that the respondents have valid title documents which are duly verified by the official respondents, whereas, according to learned counsel, all such entries can be verified from official record. It has been contended by the learned counsel that unless such documents are declared to be illegal and cancelled by the competent Court/Authority. No adverse inference can be drawn nor the appellants can seek any injunctive relief in the absence of any valid title documents and prima facie case in their favour. Per learned counsel, neither the appellants have any prima facie case nor the balance of convenience is in their favour, whereas, if any interim relief is granted to the appellants the respondents and the innocent third party purchaser will suffer serious injury and irreparable financial loss, hence instant High Court Appeal may be dismissed with cost. In support of his contention learned counsel for the respondents has placed on record in the following judgments: (1) Abdul Ghafoor Memon v. Mohammed and another PLD 1975 Karachi 464 (2) Mst. Najma Rana v. S.M. Maroof and another 1989 MLD 1317 (3) A. E. G Telefunken Pakistan Ltd. v. Electric Concern Corporation 1985 CLC 155 (4) Glaxo Group (Pvt.) Ltd. v. Evron (Pvt.) Ltd. PLD 1991 Karachi 252 (5) MD Anwarullah Mazumdar Tamina Bibi and others 1971 SCMR 94 (6) Qadir Bux through attorney and others v. Government of Sindh through Secretary Board of Revenue and 7 others 2007 YLR 525 (7) Allah Dino v. Haji Ahmed PLD 2006 Karachi 148 (8) Pervaiz Hussain and another v. Arabian Sea Enterprises Limited SBLR 2006 SC 3 (9) Marghub Siddiqi v. Hamid Ahmad Khan and 2 others 1974 SCMR 519 (10) Jawaid Mir Muhammadi v. Haroon Mirza PLD 2007 SC 472 (11) Muhammad Umer Saeed v. Pakistan and others 1969 SCMR 141 (12) Haji Arbab Ali v. Deputy Director Sindh Agricultural Supplies Organization and others 1998 SCMR 1244 (13) Mrs. Shahzadi Baber v. Hina Housing Project (Pvt.) Ltd. And others 1994 CLC 1601 (Karachi).
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10. Mr. Haider Imam Rizvi, learned counsel for respondent No.25 has adopted the arguments of the learned counsel for the respondents as referred to hereinabove and has supported the impugned order passed by the learned Single Judge. 11. Mr. Miran Muhammad Shah, learned Additional Advocate General Sindh and Mr. Khurram Iqbal, learned counsel for the Board of Revenue have also opposed the maintainability of instant High Court Appeal and supported the impugned order. Both the learned counsel have rebutted the contention of the learned counsel for the appellants and submitted that the claim of the appellants is false and contrary to the official record. It has been contended that the appellants do not have .Any valid title documents in respect of subject land, whereas, entries in the revenue record in favour of the appellants have either been cancelled or suspended for being erroneous and based on fake documents. Both the learned counsel argued that the learned Single Judge while deciding the injunction application through impugned order has taken cognizance of…
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