ORDER SHEET

Judgment Sheet

IN THE HIGH COURT OF SINDH KARACHI

High Court Appeal No. 133 of 2005

Before :

Mr. Justice Nadeem Akhtar

Justice Mrs. Kausar Sultana Hussain

Appellants : National Logistic Cell (NLC),

through Mr. Abdul Hameed Advocate.

Respondent No.1 : Abdul-e-Rasool Adat, called absent.

Respondent No.2 : Government of Pakistan, through Ministry of

Defence, Islamabad, called absent.

Date of hearing : 26.11.2018

J U D G M E N T

NADEEM AKHTAR, J. – This appeal is directed against the judgment and decree passed by a learned single Judge of this Court in Suit No.806/1995 whereby the said Suit for declaration, possession, compensation and damages filed by respondent No.1 against the appellant / National Logistic Cell (NLC) and respondent No.2 / Government of Pakistan was decreed with costs in terms of prayers (a), (b) and (d) made therein. The above Suit was filed by respondent No.1 with the following prayer :

“(a) A declaration that the plaintiff is lawful owner of suit property viz. plot of land bearing Survey No.61, measuring 01 acre 18 ghuntas situated at Deh Khanto Tapo Landhi, distt Karachi East New Distt. Malir.

(b) A mandatory injunction directing defendants or any other person/s who may be found in possession of suit land to vacate the suit land and hand over its vacant possession to the plaintiff after removing goods, articles or construction made by the defendants.

(c) A money decree in the sum of Rs.8,10,000/- being compensation for use and occupation of the suit property from May 1991 till the date of filing this suit.

(d) Compensation / damages @ Rs.15,000/- P.M. from the date of suit till the possession of the said land is restored to plaintiffs.

(e) Costs of this suit and ,

(f) Any other relief to which the plaintiff may be found entitled to.”

2. The Suit was initially contested by the appellant / defendant No.2 by filing written statement, but respondent No.2 / defendant No.1 did not file its written statement. From the pleadings of respondent No.1 / plaintiff and appellant / defendant No.2, following issues were settled by the learned single Judge :

“1. Whether the plaintiff is the owner of property plot survey No.61, measuring 1.80 acres (suit land) ?

2. Whether the defendant No.2 has trespassed over the land of the plaintiff as alleged by the plaintiff in paragraph No.5 of the plaint ?

3. Whether the plaintiff is entitled for the damages as claimed by him?

4. What should the decree be ?”

3. In his Suit it was the case of respondent No.1 / plaintiff that the lands comprising Survey Nos. 61 (01 acre 18 ghuntas), 50% of 62 (02 acres 22.5 ghuntas), 63 (04 acres 12.5 ghuntas) and 65 (01 acre 01 ghunta), all situated in Deh Khanto Tapo Landhi, Karachi, were purchased by him from the previous owner through a registered conveyance deed dated 13.03.1980 ; the same were transferred and mutated in his name in Deh Form-VII ; after obtaining permission to sell in respect of Survey Nos. 62, 63 and 65 from the Assistant Commissioner concerned in the year 1991, he sold and conveyed the said three Survey numbers ; in May 1991, appellant / defendant No.2 trespassed upon and illegally took over possession of his Survey No.61 (‘suit property’) which was still in his name and was in his possession ; and, when he issued several letters to the appellant to restore his possession, the appellant disputed his ownership and insisted that the suit property was acquired for public purpose. In support of his case, evidence was led in the Suit by respondent No.1 / plaintiff by producing the originals of all title and other relevant documents which were duly exhibited, but he was not cross-examined by any of the defendants i.e. the appellant and respondent No.2. Accordingly, the side of respondent No.1 was closed without cross-examination and the matter was posted for evidence of the defendants after issuance of an intimation notice to the appellant.

4. Record shows that since counsel for the appellant had withdrawn his power, an intimation notice was issued directly to the appellant for the next date when the same counsel appeared before the learned single Judge and filed an application seeking discharge of his power which was allowed by directing the office to issue notice directly to the appellant intimating them that if they fail to appear on the next date, the matter will be posted for arguments ; at this stage another counsel filed power on behalf of the appellant and sought adjournment on the ground that he had been engaged recently, which request was allowed on two occasions ; and thereafter, a request for adjournment was once again made by the said new counsel of the appellant on the ground that he would be filing an application for opening the side of the appellant. Record further shows that this request was rejected by the learned single Judge by observing that respondent No.1 / plaintiff was examined on 08.12.2003 ; his side was closed on 16.02.2004 as he was not cross-examined by the appellant ; new counsel of the appellant was engaged on 15.09.2004 ; instead of taking any step only a statement was made by the said counsel that an application would be filed for opening the side of the appellant ; and, such request was unjustifiable in the above circumstances.

5. It may be noted that at the time of final hearing of the Suit a statement was submitted in writing by the Standing Counsel on behalf of respondent No.2 / Government of Pakistan that he will not make any submissions as Government of Pakistan was a proforma party and no relief had been claimed against it. In the above background, after hearing respondent No.1 and the appellant and examining the material available on record, the Suit of respondent No.1 was decreed in the above terms.

6. Record shows that the originals of all relevant documents in respect of the above mentioned lands including the suit property were produced in his examination-in-chief by respondent No.1 / plaintiff in support of his claim. Such documents, inter alia, were registered sale deed in his favour, mutation in his favour in Village Form, verification of his ownership by the Mukhtiarkar concerned, legal notices by him to the Land Acquisition Officer KDA and his notice / reply, and legal notice by him to the appellant and its reply. All these material documents confirming the title of respondent No.1 in respect of the suit property were exhibited without any objection whatsoever from any of the defendants, particularly the appellant. We are of the view that since these documents in respect of the suit property produced by respondent No.1 were relevant and material to the issues settled in the Suit, the burden to prove the said issues was successfully discharged by him ; and, thereafter the burden had shifted upon the appellant, being the only contesting defendant, but the appellant miserably failed in discharging such burden or in shifting the burden back to respondent No.1 as the appellant not only failed to cross-examine respondent No.1, but also failed to lead any evidence whatsoever in rebuttal to the respondent No.1’s evidence. Thus, the entire evidence produced by respondent No.1 remained unchallenged and un-rebutted which clearly established his title in respect of the suit property beyond any reasonable doubt. In such circumstances, the learned single Judge had no other choice but to accept the claim of respondent No.1 which, even otherwise, appeared to be genuine as the documents produced by him were original registered documents and original extracts and verification from the revenue authorities. Taking note of all the above in the impugned judgment, it was observed by the learned single Judge that the appellant had failed to plead or produce any material to dispute the ownership of respondent No.1, or to pin point any defect in his title.

7. The other important aspect of the case that was specifically noticed by the learned single Judge was that it was argued on behalf of the appellant that the suit property was a Government land, but it could not be established or even shown from the record as to how the land was acquired by the appellant, or whether the land was owned by the Federal or any Provincial Government. In this context, it was observed in the impugned judgment by the learned single Judge that the status of the appellant had already been decided in Raza Enterprises V/S The Assistant Commissioner and others (SBLR 2002 Sindh 1010) wherein it was held by a learned single Judge of this Court that the appellant (NLC) is not an integral part of Pakistan Army and its status is that of a de fecto corporation ; the above view was affirmed by a learned Division Bench of this Court in The Commanding Officer, National Logistic Cell & another V/S Raza Enterprises & others, (SBLR 2003 Sindh 43) ; and, CPLA No.378-K/2002 filed against the above judgments of this Court before the Hon’ble Supreme Court of Pakistan was withdrawn by the appellant on 16.07.2002. We have noticed that the above statement / claim of the appellant that the suit property was a Government land was not made or supported by Government of Pakistan although Government of Pakistan was a party in the Suit. Needless to say that had the above position alleged by the appellant was correct, Government of Pakistan / defendant No.2 would have certainly raised such plea in its written statement and would have led evidence in support thereof. However, Government of Pakistan never filed any written statement in the Suit, let alone making any such claim. On the contrary, a statement was made on behalf of Government of Pakistan before the learned single Judge that the Government of Pakistan will not make any submission to contest the Suit.

8. No valid reason, ground or justification is available on record or has been argued before us as to why respondent No.1 was not cross-examined by the appellant ; why no application was filed by the appellant for opening the side of respondent No.1 although requests in this behalf were made on behalf of the appellant before final hearing of the Suit ; and, why evidence was not led by the appellant in rebuttal to the evidence produced by respondent No.1. Needless to say that the appellant could have cross-examined respondent No.1 in order to dislodge his claim in the Suit, but for the reason best known to him he chose not to do so. Despite the fact that the evidence of respondent No.1 had remained unchallenged and un-rebutted, the plaint and evidence of respondent No.1 and the written statement of the appellant were still examined minutely by the learned single Judge and only after examining the material available on record and keeping in view all the aspects of the case and the above statement made on behalf of respondent No.2 / Government of Pakistan, the Suit was decreed against the appellant in the above terms through a speaking and well-reasoned judgment.

9. In view of the above, we do not find any illegality or infirmity in the impugned judgment and decree which do not require any interference by this Court in our humble opinion. The appeal is, therefore, liable to be dismissed.

10. Foregoing are the reasons of the short order announced by us on 26.11.2018 whereby this appeal was dismissed with no order as to costs.

J U D G E