PLJ 2005
Present: Shabbir Ahmed, J.
Haji MUHAMMAD HAROON
and others--Plaintiffs
versus
ABDUL GHAFFAR and others--Defendants
Civil Suit No. 132 and C.M.A. No. 784 of 2004,
decided on 4.10.2004.
(i) Transfer of Property Act, 1882 (V of 1882)--
----S. 41--Principle of estoppel--Validity--Provision of S. 41 of Transfer of Property Act, is statutory application of law of estoppel and makes an exception to the rule that a person cannot confer a better title than he has--Principle underlying the provision of S. 41 of Transfer of Property Act, is that whenever one of the two innocent persons has to suffer by of a third persons, he who has enabled the third person to occasion the loss, must sustain it. [Pp. 196 & 197] A & C
(1872) 11 BLR 46 ref.
(ii) Transfer of Property Act, 1882 (V of 1882)--
----S. 41--Transfer of ostensible owner--Pre-conditions--The conditions are necessary for the application of S. 41 of Transfer of Property Act, 1882:--
Transferor was ostensible owner; and he is so by consent, express or implied, of real owner--Transfer is for consideration; and Transferee had acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer.
[P. 196] B
PLD 1983 SC 53; 1976 SCMR 489; 1983 SCMR 1199; 1984 SCMR 1027 & 1987 SCMR 192 rel.
(iii) Land Acquisition Act, 1894 (I of 1894)--
----Ss. 16 & 17--Words and Phrases--Term `vest'--Applicability--Possession of land acquired--Effect--Once possession of land has been taken under S. 17(1) of Land Acquisition Act, the land vests in the Government--Property so acquired, upon happening of certain events, vests absolutely in Government free from all encumbrances--Contemplated by Ss. 16 and 17 of Land Acquisition Act--Property acquired becomes the property of Government without any condition either as to title or possession--Legislature made it clear that vesting of the property is not for any limited purpose--Word `vest' does not have fixed connotation in all cases that the property is owned by the person in whom it vests.
[P. 199] D
AIR 1957 SC 344, rel.
(iv) Land Acquisition Act, 1894 (I of 1894)--
----Ss. 16 & 17--Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2--Specific Relief Act (I of 1877), Ss. 42 & 54--Interim injunction, grant of--Acquisition of land--Suit land was acquired by municipal authorities in the year 1961, for establishing wool washing area--Owners of land received compensation and the possession was handed over to concerned authorities--After acquired land was converted into plots which were auctioned by authorities--Defendants were auctioned purchasers of suit land and after allotment they constructed boundary walls around their plots and fixed steel gates--Plaintiffs claimed to have purchased the suit land from the owners and had also received possession of the suit land--Application for interim injunction was filed by plaintiffs--Validity--Once possession of land had been taken over under S. 17(1) of Land Acquisition Act, the original Khatedaran who accepted the compensation without protest or otherwise had not challenged acquisition proceedings and after about 40 years, the plaintiffs could not challenge the same--Plaintiffs claimed to have purchased suit land through sale-deeds wherein the land sold was not shown to have been bounded by wall with gates--Version given by defendants was supported by the report of Nazir--Plaintiffs were purchasers from the legal heirs of original Khatedaran who had received the compensation--Land had changed its character after acquisition from agriculture to industrial--Sellers had no right in suit property--Plaintiffs had no prima facie case nor balance of convenience was to their favour--On contrary if injunction was granted, the owners of suit land, who had purchased in from the municipal authorities, would suffer and would be more inconvenienced--Application for interim injunction was dismissed. [Pp. 199 & 200] E & F
1991 SCMR 2180; AIR 1926 PC 100; AIR 1927 All. 339; AIR
1914 All. 521; AIR 1914
Mr. Abid S. Zuberi, Advocate for Plaintiffs.
Khawaja Shamsul Islam, Advocate for Defendants Nos. 1 to 5.
Mr. Abbas Ali, Addl. A.-G. for Defendants Nos. 6, 7 and 10.
Mr. Manzoor Ahmed, Advocate for Defendant No. 9.
Date of hearing : 13.9.2004.
Order
This order shall dispose of the application (C.M.A. No. 784 of 2004), filed by the plaintiffs seeking injunctive order against the defendants, their agents, employees, staff, from interfering with the plaintiff's peaceful possession over the land, admeasuring 7.10 acres out of Survey No. 21, Deh Ganghrio, Bin Qasim Town, Karachi, covered by boundary wall (in short the suit land) and not to dispossess them from the suit land forcibly in any manner without the process of law.
The application is supported by affidavit of plaintiff Muhammad Zubair, asserting therein that the plaintiffs have made out a prima facie case, balance of convenience lies in their favour, they are the real owners of the suit-land. The Record of Rights is mutated in their favour, and defendants are trying to dispossess them illegally, unlawfully and forcibly. In case, the application is refused, they shall be seriously prejudiced.
The plaintiff's case as disclosed in the plaint is that
they have purchased suit-land from owners vide registered Sale-Deeds after
legal formalities and the Sellers also handed over the Heirship Certificate
with the copies of the Record of Rights. They have obtained the mutation and
previous owners had handed over the possession of the admeasuring 7.10 Acres
alongwith its boundary wall. It is the further case of the plaintiffs that the
defendants. In collusion with each other, have tried to create hindrance in
their possession. The Survey Superintendent demarcated the Survey No. 21, Deh
Ganghrio. Bin Qasim Town,
(a) To declare that the plaintiffs are the owners of land admeasuring 7 acres 10 Ghuntas adjacent to each other in Survey No. 21, Deh Ghanghrio, Bin Qasim Town, Karachi.
(b) To restrain the defendants, their person/persons, agents, employees, servants, subordinates, relatives, friends, legal heirs, assigns, or anybody else acting through or under them and/or on their behalf not to interfere in the peaceful possession of land in possession of the plaintiffs which is covered by boundary wall, admeasuring 7 acres and 10 Ghuntas on Survey No. 21, Deh Ghanghrio, Bin Qasim Town, Karachi in any manner of whatsoever nature directly and/or indirectly.
(c) To restrain the defendants, their agents, servants, employees, subordinates, relatives, friends, legal heirs, assigns, person/persons or anybody else acting through or under them and on their behalf, not to dispossess the plaintiffs from the above said land illegally, unlawfully and forcibly in arbitrary manner and/or in any manner of whatsoever nature directly and/or indirectly without due course of law.
(d) Any other relief/reliefs which this Honourable Court may deem fit and proper in favour of the plaintiffs under the circumstances of the case.
The application is opposed by private Defendants Nos. 1 to 5, 6, 7, 8, 10, and 9 by filing separate counter affidavits.
The case of the Defendants Nos. 6, 7 and 10 is that the
Survey No. 21 Deh Ghanghrio, measuring about 14.20 acres was acquired for
erstwhile K.M.C. as long back as in the year 1961 under the provisions of Land
Acquisition Act. The original Khatedars, namely, (1) Muhammad son of Anjario,
(2) Usman son of Bakar, (3)
(a) Notification Bearing No. 19/64/61-Rev dated 20.10.1961 was issued under Section 4 of the Land Acquisition Act.
(b) Notification under Section 6 of the Acquisition Act was duly issued.
(c) The award
passed by the Deputy Commissioner,
(d) Statement showing compensation payable to landowner.
(e) Payment orders of compensation to landowners.
(f) Compensation amount paid to the legal heirs of Mooso son of Esso.
It was also pleaded that the previous owners were well aware of the fact that the Survey No. 21 Deh Ghanghario was acquired. No objection to sell or no objection certificate was of no legal effect as one who is not owner cannot sell a land which was not owned by him. They have also denied the issuance of no objection and so the physical possession of the plaintiffs.
The case of the Defendants Nos. 1 to 5 is that the
suit-land is situated in previous Survey No. 21 which was acquired by the
Karachi Metropolition Corporation (now City District Government Karachi) for
Wool Washing Area, Landhi Cattle Colony and after acquiring the same, the
K.M.C. had announced the project of Wool Washing Area and notice was published
regarding auction of the suit property in various newspapers, whereby the
defendants purchased the plots in question in an open auction from K.M.C. In
the year 1972. The auctions were held on 16.1.1971 and 24.10.1971 under the
rules for management and disposal of waste lands within the Municipal limits of
Rejoinder was separately filed, wherein they have maintained that for acquisition of land procedure under Land Acquisition Act has to be followed, no such procedure was ever carried out nor any entry was ever made in the record of right, showing the K.M.C. ever acquired any vested right in the area now being claimed by the defendants as Wool Washing Area. They have denied the K.M.C. acquired the property for consideration from one Usman and the documents annexed with the defendants' counter-affidavit or written statement are to be taken as forged one.
During the hearing, the file pertaining to the acquisition of Survey No. 21 of Deh Gangiaro for "Public purpose" i.e. shifting of Wool Washing Tanneries was produced. Registers of Village Form VII pertaining to the years 1936-37 to 1966-67 and from 1997 to current were also produced and perused. Perusal of file reveals that by Letter dated 15.8.1961 of Mukhtiarkar, Karachi, intimated Deputy Commissioner, Karachi with regard to the handing over of 250-20 acres of land in Deh Gangiaro to KMC, and request of Chairman K.M.C. that Survey No. 21, measuring 14.20 acres inclaved by Government land measuring 250-20 acres be acquired under the Land Acquisition Act and kept at the disposal of the KMC, with detail report with regard to the owners of the land bearing Survey No. 21, required to be acquired and of taking steps for acquiring Survey No. 21 under the Act. There is another letter dated 26.7.1961, containing the facts regarding area required by KMC on the eastern side of the land reserved for cattle colony in the same zone and the details of the land covered by the plane received was as under:--
Deh S. No. Area Name of owners Share Evacuee
involved or Non-
Evacuee
Gangiaro N.C.46 and 246-6 Government -- --
76 2-0
Abondoned 0.14 -- -- --
Road Dharo 2-0
Gangiaro Kabuli 21 14-20 1. Muhammad Angiario 0-4-0 Non-
2. Muhammad Hussain 0-4-0 Evacuee
3. Usman Bakar 0-2-4 "
4.
5. Hawi w/o Bakar 0-0-6 "
0-4-0 "
6. Mooso s/o Isso
Total: 265-0 1-0-0
The Notification No. 19/64/61-Rev, dated 20.10.1961 was issued, whereby the land specified in the schedule annexed is needed for establishment of Wool Washing Godown, Tanneries, Horns etc. for the public purpose. The schedule reads as under:--
SCHEDULE
Taluka Karachi District
Taluka Deh S.No. Total Area Approx. Area
(in acres) required (in
acres)
(Sd. G.A. Madani)
Commissioner
of
It was issued by the then Commissioner G.A. Madani to the Manager, Government Press of Pakistan, Karachi for publication in Karachi Gazette and its copy was also sent to the Chairman, Karachi Municipal Corporation and the Deputy Commissioner, Karachi, followed by the Notification under Section 6 with further direction under sub-section (1) of Section 17, that on expiration of 15 days from the publication of the notice relating to the said land under sub-section (1) of Section 9, the Collector to take possession of all the vest or arable land specified in the Notification.
The Deputy Collector, Land Acquisition, Karachi was
appointed under Clause (C) of Section 3 to perform the functions of Acquisition
Collector for all proceedings to be taken in respect of the land and he was
further directed under Section 7 of the Act to take order for the acquisition
of the said land. Notice under Section 9 of the Act issued, containing the
Schedule, the land acquired to (1) Usman, (2)
The perusal of record also shows that the amount of compensation was received by Mahmood son of Angario, Muhammad Hussain son of Angario, Usman son of Bakar, Basra daughter of Bakar, Hawi wife of Bakar and Mooso son of Isso, on his death, compensation was paid to his legal heirs, namely Qasam son of Husain, Isso son of Husain, Fatima daughter of Husain, Hawa daughter of Husain on 15.8.1963. There is also an undated application by Usman and Qasam, stating therein that they received the compensation awarded under protest with a request that the case may kindly be referred to the Court under Section 18 of the Land Acquisition Act, it contains a submission note that it was filed on 19.6.1966. Matter was not referred under Section 18. No step was taken by the original Khatedars, challenging the, acquisition with regard to the compensation or the area of the land acquired.
Nazir's report dated 24.3.2004 in pursuance of order dated 19.3.2004 is in the following terms:--
"The land about 12 acres was bounded with old boundary walls of which southern side wall was found only half. About 7 acres 10 Ghuntas was in possession of plaintiff, one Haji Yameen was present for them. Two iron big old gates with north sides boundary wall and old room 10 x 10 feet each without plaster were available with the boundary wall of east, north and west. With chapper 75 buffaloes were standing on west portion. Adjacent to the boundary wall of eastern side there was a wall of height of 6 feet of 90 x 20 feet length and width without plaster available. Remaining land was open to sky. The land about 3 acres or moreso out of 12 acres was found open to sky with the possession of Naeem his servant Arif, who was supervising the bifurcating wall between 7 acres 10 Ghuntas and 3 acres or more so which was found at the time of inspection up to the foundation level of which eastern portion about 30 RFT raised up to 5 feet height. The entrance of 3 acres portion is from the portion of 7 acres 10 Ghuntas of the plaintiff."
I have heard Mr. Abid S. Zuberi, learned counsel for the plaintiffs. Mr. Khawaja Shamsul Islam, learned counsel for the Defendants 1 to 5, Mr. Abbas Ali, Additional Advocate-General for Defendant 6, 7 and 10 and Mr. Manzoor Ahmed, learned counsel for Defendant No. 9, who has adopted the arguments of the learned Additional Advocate-General.
The principles for the grant or refusal of temporary injunction are:-
(a) Whether the plaintiff has prima facie good case;
(b) whether the balance of convenience lies in favour of grant of injunction and lastly;
(c) whether the plaintiff would suffer irreparable loss if the injunction is refused.
These principles are to be applied on the basis of facts and circumstances of the case.
Plaintiffs need to establish is that there is a prima facie existence of a right and threatened infringement.
The learned counsel for the plaintiffs in support of the application contended that the plaintiffs are bona fide purchasers from the ostensible owners and they were put in possession was such they have a good prima facie case and his further contention as that the land was not acquired and even if it was acquired, it cannot be said to be legally acquired for want to gazette notifications under Sections 4 and 6 of the Land Acquisition Act. He maintained that in case, the injunction is not granted, the plaintiffs would suffer loss that which cannot be compensated in terms of money.
Opposing the injunction application, learned Additional Advocate-General contention was that the land was acquired for Public purpose in year 1961, compensation was paid to the original Khatedars in the year 1963 for establishment of Wools Washing Area. Godown and tanneries etc., by K.M.C. Once the original Khatedars have received the compensation, no further proceedings were taken by them, land so acquired vest in the Government and subsequently transferred to KMC and original Khatedars have no right nor the legal heirs could have any right in the land so acquired and any mutation in favour of the legal heirs and subsequent sale by them by registered sale-deeds or otherwise will not confer any right and title to the plaintiffs over the land.
Learned counsel for the Defendants Nos. 1 to 5's contention was that the KMC by public auction, auctioned the plots and the defendants purchased the Plots Nos. 75, 76, 77, 88, 89, 90,99, 100, 113, 114 of the Wool Washing Areas, Landhi Cattle Colony, Karachi, total measuring 40,000 sq. yards and all the allottees are relatives inter se, and they chosen to cover all the area with one boundary wall by affixing two iron gates in order to save the property from the land grabbers. He maintained that the defendants were in peaceful possession and they were dispossessed by throwing out the Chowkidar by force. He further maintained that the Revenue staff with collusion with heirs of Usman son of Bakar have manipulated the Revenue record. His submission was that the plaintiffs have no right and title in the property. In case the injunction is granted, the actual owner would suffer and they cannot be compensated in terms of money.
Elaborating first contention, learned counsel for the plaintiffs contended that the plaintiffs have purchased the property from legal heirs, as such, they are protected in terms of Section 41 of the Transfer of Property Act.
Learned counsel for the plaintiffs with vehemence has contended that the plaintiffs have taken all the precaution, they have obtained the Heirship Certificate, mutation is in the name of legal heirs and after obtaining the no objection from the Revenue, have entered into sale transaction through sale-deeds, thus they are protected under Section 41 and his further contention was that even if the land was acquired in absence of Gazette notification under Sections 4 and 6 of the Land Acquisition Act, all the proceedings were nullity in the eye of law and no right of the original owners had extinguished and to support his contention, referred the case of Pakistan through Secretary, Ministry of Defence and others v. Late Ch. Muhammad Ahsan through Legal Heirs and others (1991 SCMR 2180).
Section 41 of the Transfer of Property Act reads as follows:--
"41. Transfer of ostensible owner.--Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith."
Celebrated Author, Mulla in his book "Transfer of Property Act" has pointed out the foundation of this section by referring a passage from the judgment of the Judicial Committee in Ramcoomar v. Macqueen (1872) 11 Bengal Law Report 46"--
"It is a principle of natural equity which must be university applicable that, where one man allows another to hold himself out as the owner of an estate and a third person purchases it, for value, from the apparent owner in the belief that he is the real owner, the man who so allows the other to hold himself out shall not be permitted to recover upon his secret title, unless he can overthrow that of the purchaser by showing either that he had direct notice, or something which amounts to constructive notice, of the real title; or that there existed circumstances which ought to have put him upon an inquiry that, if prosecuted, would have led to a discovery of it."
The section is a statutory application of the law of estoppel and makes an exception to the rule that a person cannot confer a better title than he has. The principle underlying the provisions of the section is "whenever one of the two innocent persons has to suffer by the act of a third person he who has enabled the third person to occasion the loss must sustain it."
The following conditions are necessary for the application of the section, namely:--
(i) the transferor is the ostensible owner;
(ii) he is so by the consent, express or implied, of the real owner;
(iii) the transfer is for consideration;
(iv) the transferee had acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer.
Reference in this behalf can be made to the case of Kanwal Nain and 3 others v. Fateh Khan and others (PLD 1983 SC 53).
Next question is as to whether the plaintiffs are bona fide purchasers and are entitled to the benefit of Section 41 of the Transfer of Property Act. This question came up for consideration in Muhammad Yamin and others v. Settlement Commissioner and others (1976 SCMR 489), wherein it was held that where it was found that the vendor has no right, title or interest in the demised property, no protection can be given to him on the basis of Section 41 of the Transfer Property Act. The same rule was reiterated in (1) Bashir Ahmed and others v. Additional Commissioner and others (1983 SCMR 1199), (2) Manzoor Hussain v. Fazal Hussain and others (1984 SCMR 1027) and (3) Ejaz Ahmed Khan v. Chahat and others (1987 SCMR 192).
Now the question is whether the mutation entries in the Record of Rights creates any title in favour of any person. In Nirman Singh v. Rudra Partab Narain Singh (AIR 1926 PC 100), Judicial Committed held that "mutation proceedings are not judicial proceedings in which title to and proprietary rights in immovable property are determined but that they are much more of the nature of fiscal enquiries instituted in the interest of the State for the purposes of ascertaining which of the several claimants for the occupation of certain denomination of immovable property may be put into occupation of its with greater confidence that the Revenue for it will be paid."
The same view was reiterated in Ram Sarup Rai v. Charitter Rai (AIR 1927 Allahabad 339), Rasulan Bibi v. Nand Lal (AIR 1914 Allahabad 521), Mahadeo Singh v. Jagmohan Singh (AIR 1914 Oudh 235), Mst. Jagrani v. Bisheshar Dube (AIR 1916 Allahabad 1) and Baldeo Singh v. Udal Singh (AIR 1921 Allahabad 248). Judicial Committee reaffirmed its view that "the mutation of names sanctioned by the Revenue Authorities does not confer title and an order passed in mutation proceedings on the basis of an unregistered deed cannot validate the transaction covered by that deed so as to make it admissible in evidence without registration".
The view expressed by the Judicial Committee was also followed in case of Kaniz Fatima v. Member Board of Revenue (PLD 1972 Lahore 495), that the mutation does not create a title in favour of the person and also does not adversely affect the rights of any person. It is only for correcting the entries in the Revenue Record to facilitate the recovery of the land revenue.
In Muhammad Ali v. Hassan Muhammad (PLD 1994 SC 245), the apex Court has approved the view expressed in the above cases that "it is well-settled that entries in the Revenue Record can neither create nor extinguish the title to the property. These entries are maintained mainly for fisal purposes".
Apparently, the conditions 1, 2 and 3 are missing in the instant case, therefore, this plea is not available to the plaintiffs.
The second contention of the learned counsel for the plaintiffs was that in absence of Gazette Notification, the proceedings are illegal and without jurisdiction and the right of the original owner is not extinguished.
Conversely, learned Additional Advocate-General and the learned counsel for the private defendants have with vehemence contended that once the land has been acquired in accordance with the law and the compensation was received by the original owners and the register of village Form-VII pertaining to the years 1936-37 and 1966-67 contains the entries against Survey No. 21, that on verification of record of file, it transpired that Survey No. 21, 14.20 acres, Deh Ghangiaro was acquired for Wool Washing by KMC as per Notification 19/64/61-Rev dated 20.10.1961 of the Deputy Commissioner, Karachi. It was canvassed that under the provisions of Section 129(c) of the Qanun-e-Shahadat presumption is attached to the judicial and official acts that same have been regularly performed and on the basis of presumption of law which has not been dislodged by the plaintiffs, it has to be presumed that the disputed land was acquired after observing all the formalities of law and as such, legal heirs had vested right in the land when the compensation was already received by the actual khatedars. They have also placed their reliance on the judgment referred by plaintiff's counsel.
I have referred the acquisition proceedings taken for the
acquisition of Survey No. 21, Deh Ghanghiaro. The Survey No. 21 was inclaved
with the Government land, which was given to the KMC for Wool Washing and
tanneries purposes. The notifications under Sections 4 and 6 were issued and
sent to the Manager, Government Press of Pakistan,
I am of the view that once possession of land has been taken over under Section 17(1), the original Khatedars accepted the compensation without protest or otherwise have not challenged the acquisition proceedings and after about 40 years, the plaintiffs cannot challenge the acquisition proceedings. It is the case of the plaintiff that suit-land measuring about 7-10 acres was sold to them through two sale deeds, Annexures P-1 and P-14. The perusal of the sale deeds, the land sold was not shown bounded by the wall with gates. The schedule of the first deed is reproduced as follows:--
SCHEDULE REFERS TO ABOVE
Joint and divided shares to the extent of 0-8-0 share admeasuring 7 acres and 6 Ghuntas of the Vendors in all pieces or all portions of Kabooli Land bearing Survey No. 21 Deh Gangiaro share of Khatedars as in the Deed, situated at Bin Qasim Karachi in the territorial jurisdiction of P.S. Sikhan, District Sub-District, City Taluka and Town of Bin Qasim, Karachi.
Whereas the case of the Defendants Nos. 1 to 5 is that they purchased the plot in Wool Washing Area through public auction from KMC and they have raised boundary wall and affixed the gate. The version
given by the defendants is supported by the Nazir's report referred to above that the area covered by the boundary wall is in excess of the area claimed by the plaintiffs. The plaintiffs are purchasers from the legal heirs of original Khatedars who have already received the compensation. The land has changed its character after acquisition from agricultural to industrial. The sellers had no right in the property.
Therefore, I am of the view that the plaintiffs have no prima facie case nor the balance of convenience lies in their favour, on the contrary if the injunction is granted, the owners of the lots, who have purchased in from KMC would suffer and would be more inconvenienced.
In the light of above discussion, I am of the view that the plaintiffs have failed to make out a case for injunction, nor balance of convenience lies in their favour. Consequently, the application is dismissed.
(R.A.) Application dismissed.
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