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Official Citation: 2025 CLC 133
Court / Jurisdiction: Sindh High Court
Year of Decision: 2025
Decision Date: 2025-05-23
Parties: Abdul Rehman vs Niaz Ahmed and others
Ruling Summary: This decision was rendered by the Sindh High Court on 2025-05-23, officially reported as 2025 CLC 133. In this matter between Abdul Rehman and Niaz Ahmed and others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2025 CLC 133
Court Name: Sindh High Court Judge(s): Nisar Ahmed Bhanbhro Title: Abdul Rehman vs Niaz Ahmed and others Case No.: Civil Revision No.S-61 of 2019 Date of Judgment:2025-05-23 Reported As: 2025 SHC LAR 1512 Result: Application Disposed of
Judgment
ORDER Nisar Ahmed Bhanbhro, J. Through instant Civil Revision application the applicant has called in question the judgment and Decree dated 05-08-2019 passed by the Court of Learned District Judge-Kashmore @ Kandhkot (Appellate Court), in Civil Appeal No 89 of 2019 Re "Abdul Rehman Versus Niaz Ahmed and others", where by the appeal filed by the applicant was dismissed and judgment and decree dated 25-01-2018 in F,C Suit No 210 of 2017 Re "Niaz Ahmed and others Versus Province of Sindh and others," passed by the Court of Learned Senior Civil Judge Kashmore(Trial Court) was maintained. 2. The facts giving cause to file this revision application are that respondents No.1 to 3 (plaintiffs in suit) and one Sardar Qadir Nawaz Khan (since died) filed suit for declaration, cancellation and permanent injunction against respondents No.4 to 10 and applicant Abdul Rehman (Defendant No 8 in the Suit), in a capacity of office bearers of Citizen Action committee Kashmore. The plaintiffs in the suit sought cancellation of the allotment order dated 13.12.2011 wherein 12000 Sq. Ft. plot situated within the premises of Taluka Hospital Kashmore was granted in favor of applicant. It was averred in the plaint that applicant had illegally occupied over 50000 Sq.Ft plot inside Taluka Hospital Kashmore and started construction work thereon under supervision of respondents No.9 and 10. It was further averred that Respondent No 6 (defendant No.3 in the suit), illegally and unlawfully allotted plot admeasuring 12000 Sq.Ft. vide No.526 dated 13.12.2011 and subsequently, such entry No.50 was kept in the Revenue Record of rights, in favour of applicant, which is illegal, unlawful and liable to be cancelled. The respondents No.1 to 3 and late Sardar Qadir Nawaz, prayed for following relief:
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a) To declare that allotment of plot to defendant No.8, 12000 Sq. Ft. by defendant No.3 from the premises of Taluka Hospital Kashmore for residential purpose but being used for commercial purpose and are constructing about one hundred shops on the plot inside the hospital boundary wall which is illegal and unlawful without any legal and unlawful justification, void, with malafide intention and entry No.50 in Village Form-II of deh Pako Kashmore in the name of defendant No.8 is also illegal and same entry may kindly be cancelled. b) By issuing injunction against defendant No.8 restrain him from raising construction of shop on plot of hospital inside boundary wall of hospital. c) By issuing mandatory injunction direct defendant No.8 through defendant No.9 to demolish the constructions of shops from the plot of hospital. 3. Applicant(Defendant No 8 in the Suit) filed written statement, stating therein that the Respondents No 1 to 3 (plaintiffs) have no personal right or interest in the property, and suit is barred under section39 and 56(k) of Specific Relief Act 1877 (SRA). It is further stated by applicant in Written Statement that plaintiffs/respondents have no locus standi or cause of action to fileinstant suit. He further stated that 12000 Sq. Ft. plot was allotted in his favour as an alternate to earlier allotment of year 1995 which could not materialize. He averred that plot was allotted on completion of all formalities and after measurement of premises of Taluka Hospital Kashmore (THK) which per revenue record comprised of 6 acres and an area of 20 ghunta was lying vacant besides it. He contended that plot was allotted on the basis of no objection certificate tendered by Medical Superintendent (MS) of THK. He prayed for dismissal of the suit being not maintainable. 4. Respondents No 12 to 14 (Defendants No 10 to 12 in the Suit) filed written statement, wherein admitted the claim of Applicant and averred that the suit was barred under the law and liable to be dismissed as allotment of plot was issued by the Competent Authority after completing all legal formalities and the plot was not the part of THK. Revenue Authorities allotted the plot after conducting survey and proper measurement of property at Site. 5. Respondent No 15 (Defendant No 13 in the Suit) MS, THK filed written stamen and submitted that contended that the Suit Property was part of Taluka Hospital Kashmore, the same was illegally allotted to the Applicant by the Deputy Commissioner. The Defendant No 13 averred that Deputy Commissioner Kashmore has allotted plot to the Defendant No 8 (Applicant) in between main Kashmore Kandhkot Road and THK but in fact there is not a single inch lying vacant in between hospital and Road and there was only a pedestrian way in between Hospital and Road. He averred that on the basis of allotment order Applicant has occupied about 12000 Square Feet plot of the Hospital, demolished boundary wall and masjid. 6. From the pleadings of the parties, Learned trial Court framed following issues for determination of the controversy in the Suit: 1. Whether the suit of plaintiff is maintainable according to law? 2. Whether the defendant No.3 had illegally and unlawfully allotted a plot vide No.526 dated 13.12.2011 total area 12000 Sq. Ft. to the defendant No.8, located between main road (Kashmore- Kandhkot) and hospital's wall? 3. Whether the defendant No.8 has illegally occupied an area of 50000 St. Ft. inside the hospital and started illegal construction with the help of official defendants? 4. Whether plaintiffs are entitled to the relief claimed for? 5. What should the decree be? 7. The Plaintiffs in the Suit(Respondents No 1 to 3), examined Niaz Ahmed, Ehsan Illahi, Dr Liaqat Kalwar Medical Superintendent Taluka Hospital Kashmore, Abdul Hameed Kato Mukhtiarkar Revenue Kashmore, Muhammad Kaleem Pathan, Sanaullah Khoso. The Defendant No 8 (Applicant) examined himself and Abdul Hameed Katto (examined twice) thereafter the parties closed side for evidence.
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8. Learned Trial Court after hearing the arguments of Learned Counsel for parties, decreed suit of respondents No.1 to 3 vide impugned Judgment & decree dated 25.01.2018. Applicant filed Appeal No 89 of 2019 before the Court of Learned District Judge Kashmore @ Kandhkot. The Appellate Court after hearing the parties through Learned Counsel dismissed the appeal vide impugned judgment and decree dated 05.08.2019 hence this revision application. 9. M/S Habibur Rehman and Khalid Mustafa Learned Counsel for the Applicant contended that the Applicant was allotted a plot in year 1995 on payment of Rs 81,000, entire amount was paid in Government Treasury vide challan No 328 of National Bank of Pakistan, but the plot which was allotted to the Applicant was already the subject matter of a suit and decreed in favor of other party. The Revenue Authorities assured applicant for allotment of alternate plot. In year 2003 Applicant approached Land Utilization Department for alternate allotment, which was considered and Deputy Commissioner Jacobabad was directed to take necessary action on the request of Applicant. He contended that revenue staff pointed out that a plot ad-measuring 20 ghunta was lying vacant besides THK, such report was placed before Scrutiny Committee, wherein it was decided to allot alternate plot to Applicant in Kashmore Town. He contended that report was called from MS, THK, in its report MS raised no objection if a plot of 12000 square feet was carved out and allotted to Applicant as the same would not hamper the functioning of Hospital. That the then District Coordination Officer called reports from Planning Department, Health Department of Defunct District Government and sent reports to Land Utilization Department for allotment of plot. The Land Utilization Department vide its letter dated 13.12.2011 informed the Deputy Commissioner Kashmore that the Chief Minister Sindh has accorded permission to grant alternate land to the applicant. He contended that on completion of formalities and approval from competent authority alternate land was allotted to the applicant vide letter dated 14.12.2011 and Village Form II was also issued in his name. He contended that allotted plot was not the part of THK and it fell outside the boundary wall of Hospital. He contended that applicant has paid huge amount in year 1995 and allotment of plot was accorded by adopting all the formalities provided under Sindh Colonization and Disposal of Government Land Rules 2005 (SCDGLR). He contended that under SCDGLR Chief Minister Sindh being Chief Executive of the province is competent authority for allotment of land. He contended that the Respondents No 1 to 3 had no right or interest in the Suit Property and they in order to extract money filed instant litigation, which was not maintainable and barred under section 39, 42 and 56 of the Specific Relief Act. He contended that the concurrent findings of Courts below suffered from glaring irregularity, illegality and there was serious misreading and nonreading of the evidence, which required interference of this Court.He contended that the plaint had no evidentiary value as Sardar Qadir Nawaz who signed and verified the pleadings did not come forward to depose. He prayed for allowing of revision application and setting aside the impugned judgment and decree of the Courts below.He placed reliance upon the case of Muhammad Naeem and 38 others versus Federation of Pakistan through Secretary Railways Department and 38 others (2025 CLC 133) on locus standi of the Plaintiff to file Suit, Society Apartments Complex Welfare Association PECHS Karachi Versus Federation of Pakistan through Secretary Ministry of Housing and Works Division Islamabad and others (PLD 2012 Sindh 29) on the point of maintainability of Suit, Federation of Pakistan through Secretary Ministry of Defense and another Versus Jaffar Khan and others (PLD 2010 Supreme Court 604)on the evidentiary value of written statement without examination of the person filing it, Shaikh Akhtar Aziz Versus Mst. Shabnam Begum and others (2019 SCMR 524) on the scope of indulgence by High Court against the concurrent findings of Courts below, Muhammad Siddiq (deceased) through LRs and others Versus Mst Noor Bibi (deceased) through LRs and others (2020 SCMR 483) on section 39 and 42 of Specific Relief Act. Learned Counsel for the applicants has relied upon almost 70 case laws on the aforementioned principles, which for the sake of convenience and repetition are not referred.
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10. Mr Nisar Ahmed G. Abro, Learned Counsel for the Respondents No 1 to 3 contended that the suit property was part and parcel of THK, it was illegally allotted to the Applicant in violation of laws, as amenity plot cannot be allotted for any other purpose. The Respondents No 1 to 3 being citizens of Kashmore City came forward to save the public property and they had locus standi to file the Suit which was maintainable under the law, contrary Applicant had no locus standi for the allotment of plot. He contended that the Respondents No 1 to 3 came to know about the illegal allotment when Applicant occupied the Suit Property and started raising construction on it. He contended that the concurrent findings of Court below were within the premise of law and based upon proper appreciation of evidence and material on record, thus did not warrant interference. He prayed for dismissal of the Revision application. 11. Mr Munawar Ali Abassi, Learned Assistant Advocate General Sindh supported the impugned judgments and contended that the same did not suffer from any illegality or irregularity. He prayed for dismissal of Revision Application. 12. The Learned Counsel for the Applicant has agitated three points in the revision application, Firstly that the plaintiffs were not injured by the allotment of plot as such not competent to file suit for declaration and cancellation within the meaning and definition of Section 39 and 42 of Specific Relief Act, Secondly the Chief Minister being Chief Executive of the Province was competent authority for allotment of plot and thirdly suit property fell outside the boundary of Hospital thus was not a public property. Court will address all these points separately. LOCUS STANDI OF PLAINTIFFS TO FILE SUIT - MAINTAINABILITY OF SUIT FOR CANCELLATION OF ALLOTMENTORDER 13. Learned Counsel for the Applicant has attacked the maintainability of the Suit on the ground that no right or interest of the Respondents No 1 to 3 was involved in the Suit Property, section 39 and 42 of the SRA debarred them from filing of Suit as they lacked character or title in the Suit Property. Respondents No 1 to 3 challenged the allotment of Suit Property on the ground that it was a PUBLIC PROPERTY which fell within the premises and was under the use of THK. The Public Property cannot be allotted or granted or leased out to any private person for residential or commercial use, it will amount to alter its use which is not permissible under the law. Word Public Property has been defined under section 2(O) of the Sindh Public Property (Removal of Encroachment) Act 2010 as under: Public Property means a building, land, place or premises vesting in or under the management or control of Government, local Council, autonomous body or registered cooperative society or such other authority Cambridge Dictionary defines Public Property as Land, Buildings, equipment etc. that are owned by the government Collins Dictionary defines Public Property as land and other assets that belong to general public and not a private owner: Black's Law Dictionary defines Public Property Any Property that is not owned by a private individual or a company. It belongs to the public at large and not to any one person. It covers premises and facilities owned by the government or a community. The general and legal definition of Public Property makes it crystal clear that it is a property owned by public and not by a private person, it is managed and controlled by the Government on behalf of public. Management and Control of the Government is an entrustment as a public trust. Property reserved for public use an Amenity creates right and title in favor of individual. Government is saddled a responsibility to manage and control the property on behalf of Public. If aproperty is reserved for any amenity purposes such like hospital, road, library, park or school the use of such property is restricted to said purpose only, its cannot be changed and converted to residential or commercial purposes.
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14. In the present case, Applicant was allotted a plot measuring 12000 square feet which per Respondents No 1 to 3 formed the part of THK, this allotment in favor of Applicant injured the rights of public at large including that of Respondents No 1 to 3. The allotment order reads as under: The Deputy Commissioner Kashmore @ Kandhkot SUBJECT: APPLICATION MOVED BY ABDUL REHMAN S/O MOULA BUX DASHTI REQUESTING FOR GRANT OF ALTERNATE PLOT MEASURING 81,000 SQ.FT OF PREVIOUS PLOT SITUATED IN KASHMORE TOWN DISTRICT JACOBABAD NOW (KASHMORE @ KANDHKOT) The defunct EDO (Rev) Kashmore at Kandhkot vide his letter No RB/352/2010 on the subject noted above The Competent Authority viz. Chief Minister Sindh has been pleased to grant an alternate land measuring 12000 sq. ft in Deh Kashmore Pacco City Taluka Kashmore District Kashmore at Kandhkot in favor of Abdul Rehman son of Moula Bux Dashti for residential purpose. You are therefore requested to take necessary action in the matter accordingly under intimation to this department. Sd SECRETARY TO GOVERNMENT OF SINDH LAND UTILIZATION DEPARTMENT 15. The allotment order referred supra has been produced on record by the Applicant and is available at page 263 of the Court File. Surprisingly this allotment orderneither contains the date of issuance nor office outward number, even it does not contain the date of approval given by the Chief Minister Sindh. The Deputy Commissioner Kashmore without any wastage of time and verification of record sanctioned the possession of 12000 square feet plot to Applicant situated inside the boundary wall of THK. This written instrument/allotment order was used as a title or license by the Applicant to occupy the Public Property. This allotment letter / written instrument injured the right of every individual in Kashmore City and if not cancelled the allotment order would have granted a right in favor of Applicant to construct a building for which he started demolishing the boundary wall of THK and Masjid located inside it. The Respondents No 1 to 3brought a suit for cancellation of allotment of Amenity Plot to Applicant. Since the property which was allotted to the Applicant was a public property a right and character existed and vested in the Respondents No 1 to 3 to bring a suit within the meaning and definition of Section 42 of SRA which reads as under: 42. Discretion of Court as to declaration of status or right: (1) Any person entitled to any character or any right to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled and plaintiff need not in such suit ask for any further relief. Provided that no Court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title omits to do so. (2) Notwithstanding anything contained in any other law for the time being in force, a suit filed under sub section (1) shall be decided by the Court within Six months and the appellate Court shall decide the appeal not later than ninety days, as the case may be. The use of words "any person", "any right" and "any property" in the above provision of law clarifies the intent of Legislature, that it will include both public and private property and the word right has its broader meaning, because the right to own a public property is vested right granted under the Constitution. Every citizen has a vested right in the public property, this right is unfettered and cannot be curtailed, classified or abridged in any manner. The allotment of Hospital Plot was a denial of right of an individual in the public property. The Respondents No 1 to 3 therefore rightly filed a suit seeking declaration that the Suit property belonged to the public at large and the impugned allotment order injured their rights in particular and of public at large in general. Section
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39 of the SRA envisages that if a written instrument against any person is void and if the same is left outstanding it will cause him serious injury; he may bring his claim for adjudication by the Court of Law. Section 39 of the SRA reads as under: 39. When cancellation may be ordered: Any person against whom a written instrument is void or voidable, who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable, and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. If the instrument has been registered under the Registration Act, the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation. This provision of law further emphasizes that "any person" can bring a suit for cancellation if the instrument is void or voidable and its perpetuity injured his rights. The crux of the above discussion is that a public property automatically grants a character and right to an individual or member of the public.If the public property is misused, misappropriated or its use is altered by operation of any executive order then the said order injures the rights of public and any one from the public may bring a suit under section 39 of SRA seeking cancellation of said void written instrument and under section 42 seek declaration that he has the character and right in the said property and his rights have been down trodden. The suit filed by the Respondents No 1 to 3 was competent under the law and the plaintiffs had a character, right and title in the public property and a locus standi to agitate such claim by way of filing civil suit. The Civil Court being the Court of ultimate jurisdiction can entertain such suit to check that the public functionaries while dealing with the Public Property remained within the bounds of law or transgressed their powers and may grant relief of cancellation if it is found that public property was illegally transferred to an individual for private use. POWERS OF CHIEF MINISTER TO ALLOT AMENITY LAND FOR PRIVATE USE 16. The contention of the Petitioner that he was legally allotted the plot as an alternate to the land which was allotted to him in year 1995 against the payment of Rs 81,000. The Chief Minister being the Chief Executive of Province was competent to allot or grant land. The Colonization & Disposal of Government Lands (Sindh) Act 1912 (CDGLA), rules and policies framed thereunder are the governing laws for the grant of land or plot in the province of Sindh. Section 10 of the CDGLA the Government of Sindh to frame policies, impose statement of conditions for grant of state land for residential, commercial and agricultural purposes. The Government of Sindh has issued policies from time to time but for disposal of plots, through a letter dated 4th August 1972 all the Deputy Commissioners in Sindh were restrained from disposing of sikini/commercial/industrial plots until a statement of conditions was issued. The Government of Sindh Board of Revenue issued another notification dated 24th March 1973, setting forth the guidelines for Deputy Commissioners to forward the references for grant of the plots for Residential / Commercial and Industrial Use, this notification reads as under: LAND UTILIZATION DEPARTMENT Hyderabad the 24th March, 1973 Subject: Grant/ Regularization of Plots for Residential/ Commercial and Industrial Use No. PA /73/3/78/P-VI - Of late it has been observed by the Board of Revenue Sindh with great concern that the proposals from the Deputy Commissioners received on the above noted subjects do not contain full details usually and basically required for arriving at final decisions/conclusions. As a result, this Board is constrained to make back references for supply of additional information/ data.Therefore in order to cut short lengthy correspondences, wastage of public time and in order to finalize the cases expeditiously, the Board of Revenue is pleased to order that the following information / data/ documents should invariably be sent in future without fail.
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(i) City survey number, ward number, Deh, Taluka as the case may be. (ii) Total area involved, and the area required indicating locality in case of plots. (iii) Proposed price as well as the market price in the same locality or in the adjoining localities based on 12 months sale of the preceding year. (iv) Purpose for which the area is required i.e. residential, commercial, industrial, religious or any other public use. (v) Whether the same land stands already earmarked for any public scheme in near future. (vi) Whether the land is government, municipal or belongs to any other department. (vii) Whether the plot required or the area required is under encroachments or unauthorized occupations of any persons. If yes, details of such encroachments with nature and construction etc. (viii) Whether the land is free from all other encumbrances. No objection certificate from the People's Municipality in case of urban area and from the C.O/R.O concerned in case of rural area should be furnished in consultation with these officers. (ix) Medium size sketch duly signed by the gazzetted officer and site inspection note thereon may also accompany the correspondence. (x) Approval of the district town planning whenever necessary may also be obtained and sent to this board. When confronted with the above legal position as to whether the above mandatory requirements were fulfilled by the Revenue Authority while conceding allotment of plot in favor of Applicant, Learned Counsel failed to point out any document placed on record or produced in evidence before Trial Court which may indicate that the required formalities were completed before issuance of allotment Order. Learned Counsel for applicant at this juncture pointed out that the allotment of the plot was approved in year 2011 and by that time the Sindh Colonization and Disposal of Government Lands Rules 2005 (CDGLR) were in force and under the said Rules Chief Minister was competent authority for grant of land or plot.The CDGLR provides that applications for grant of land…
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