ORDER SHEET

Order Sheet

IN THE HIGH COURT OF SINDH KARACHI

Constitutional Petition No. D – 934 of 2008

Before :

Mr. Justice Nadeem Akhtar

Mr. Justice Abdul Rasool Memon

Petitioners : Collachi Cooperative Housing Society Ltd.

and Shah Nawaz,

through Mr. Fareed Ahmed Dayo, Advocate.

Respondent No.1 : Government of Pakistan,

through Mr. Saeed Ahmed Memon, DAG

Respondent No.2 : Director General Rangers Sindh,

through Muhammad Ashraf, Law Officer,

Pakistan Rangers.

Respondents 3, 4 & 5 : Province of Sindh through Member Land

Utilization, Board of Revenue,

Executive District Officer (Revenue), and

Survey Superintendent, Govt. of Sindh,

through State Counsel Ms. Ascho Marzia Begum.

Intervenor : Pakistan Progressive Cement Industries Ltd.,

through Mr. Muhammad Shehzad Ashraf

Advocate.

ORDER ON C.M.A. No. 20816 of 2015

NADEEM AKHTAR, J. – This application has been filed by the petitioners praying that they may be allowed to take over peaceful possession of 5-00 acres of land from Naclass No.193 of Deh Okewari under the supervision of the Nazir of this Court. They have claimed that the above land belongs to them, which was under the occupation of respondent No.2. They have stated that their said land has been vacated by respondent No.2 as Government of Sindh has allotted 5-00 acres of land to respondent No.2 in Deh Safooran from Naclass No.198 in lieu of the petitioners’ land, which has been accepted and taken over by respondent No.2. The petitioners have alleged that despite the above, possession of their land has not been handed over to them.

2. At the very outset, we asked the learned counsel for the petitioners to satisfy us as to how this application is maintainable and how the relief prayed for therein can be granted in this petition which was finally disposed of on 12.10.2010. In order to satisfy us on this point, he relied upon the following portion of the aforesaid order dated 12.10.2010 :

“Under the circumstances, we would direct the Revenue Officer to carry out demarcation of the land under NC-193 as claimed by the petitioners and various authorities including Rangers in accordance with law within a period of three months from the date of passing of this order after giving due notice to all the parties claiming land as mentioned in para above. If any party (!) aggrieved by any such demarcation (!) may avail such remedy, as may be available under the Land Revenue Act. It may be observed that such demarcation will not confer any better right, title or interest on any party. All rights and defences as may be available to all parties to the petition, including state and third parties, if any, shall remain intact. Claim of intervenors National Cement Industries (under liquidation) as against the petitioner, which is subjudice in J.M. No. 01/1997 will remain intact. Petition in terms above stands disposed of.”

It was contended by the learned counsel that the above order has been duly complied with by the Revenue Authorities as demarcation has been carried out, whereafter alternate land has been allotted to respondent No.2 in lieu of the petitioners’ land. It was further contended that since respondent No.2 has vacated the petitioners’ land in pursuance of the above, the same ought to have been handed over to the petitioners as their title was not in dispute in these proceedings. He submitted that under its inherent powers, this Court can direct the official respondents to hand over possession of the petitioners’ land to them even after disposal of the petition.

3. Record shows that after final disposal of the petition in the above terms on 12.10.2010, Raja Mushtaque Ahmed and others filed an application under Section 12(2) CPC for setting aside the said final order dated 12.10.2010, which was dismissed on 01.04.2011 for non-prosecution. The above persons then filed CMA No.6299/2011 seeking restoration of their application under Section 12(2) CPC, which was also dismissed for non-prosecution on 01.06.2011. Thereafter, they filed CMA No.10950/2011 praying that the order passed on 01.06.2011 be recalled and their application under Order IX Rule 9 CPC be restored. Their said CMA No.10950/2011 for restoration was disposed of with the consent of all the parties vide order dated 08.11.2012, the operative part whereof reads as under :

“By consent the present application is disposed of by setting the applicants at liberty to approach Survey Superintendent Karachi with their objections to the demarcation that may have been carried out pursuant to order dated 12.10.2010. The applicants shall place before the Survey Superintendent whatever documents they possess in respect of the land they claim to own and the Survey Superintendent in the light of such material prepare an appropriate report, and the applicants may pursue the matter accordingly. The above shall be done by the Survey Superintendent after notice to all concerned.”

4. We have noticed that the prayer for possession of the subject land was not made in the petition by the petitioners. We have also noticed that the above mentioned orders passed in this petition on 12.10.2010 and 08.11.2012 relate only to the demarcation of the land, and the question of possession was not discussed or decided in any of the said orders. Therefore, the relief of possession, being beyond the scope of the prayer made in this petition, cannot be granted through this application especially after final disposal of the petition. The petitioners, however, will be at liberty to seek their remedy before the proper forum as per their entitlement in accordance with law.

5. Foregoing are the reasons of the short order announced by us on 08.09.2016, whereby this application was dismissed with no order as to costs.

J U D G E