11 April 2004	Sunday	20 Safar 1425

KARACHI, April 10: A division bench of the Sindh High Court dismissed on Friday an appeal for ownership of 76 acres of coastal land known as 'French Beach'.

The bench, which consisted of Justices Sarmad Jalal Osmany and Amir Hani Muslim, observed that the appellants had failed to establish any right on the land and that their suit was rightly dismissed by Justice Shabbir Ahmed. The land belonged to the provincial government, it declared.

The appellants had challenged dismissal of their suit claiming ownership of the land by inheritance. They said their ancestors were granted the land at Deh Lal Bakhar adjacent to Hawkesbay by the British Indian government in 1871. The property was transferred to them by registration and mutation subsequently.

They claimed that their right was recognized and acknowledged by the successor government of Pakistan. When the provincial revenue commissioner communicated to the collector of Karachi his approval for the sale of 70.28 acres of adjacent land to Quaid-i- Azam Mohammad Ali Jinnah, a 10-acre corridor was demarcated between the two stretches to allow the owners access to a well and enable them to spread out their fishing nets for drying. It was only in July 2000 that they received notices from the Sindh board of revenue that the land belonged to the provincial government and that they should demolish and vacate the huts built by them on the land.

Contesting the claim before the single judge and the appellate bench, Additional Advocates-General Abbas Ali and M. Ahmed Pirzada submitted that the claimants were at best holders of traditional 'khori' rights. Their ancestors were allowed to use the land to dry their nets, stack their haul, spread out their fishing nets and repair their boats on the seashore. Such permission was generally granted to fishermen free of charge. The right is nothing more than a licence under Section 52 of the Easement Act. The heirs of the licencees were, however, using the land as a coastal resort renting out their unlawfully constructed huts to foreigners. That was why the area had come to be known as 'French Beach'.

Justice Shabbir Ahmed, who heard the plaint, observed that the entire claim of the plaintiff was based on a mere licence. 'Licence' has been defined in Section 52 of the Easement Act as 'a grant of a mere right to do upon the property of another something that would, in the absence of such right, be unlawful'. A licencee was by definition ineligible to claim ownership. The suit was dismissed accordingly and the dismissal was upheld by an appellate bench on Friday.

APPEAL ADMITTED: A division bench of the Sindh High Court admitted to regular hearing on Friday an appeal against a single judge's order to the provincial transport department for payment of Rs900,000 as damages to the heirs of a person killed in an accident by a bus belonging to the defunct Karachi Transport Corporation (KTC).

The appeal, moved in 2001, challenges a decree passed by Justice Zahid Kurban Alavi (since retired) in August 2000. It says that the deceased victim of accident was also responsible for the accident. It was a case of contributory negligence and the KTC could not be held liable. The bus was moving in its lane when the victim cyclist suddenly appeared from the opposite side. The driver of the KTC bus applied brakes but could not save the cyclist.

Admitting the appeal, a division bench comprising Justices Shabbir Ahmed and Khilji Arif Hussain suspended the impugned decree and judgment and issued notices to the defendants for a date in office.

The defendants had submitted in their suit through Advocate Nasir Maqsood that they were legal heirs of Sakhi and were dependant on him. He died after being hit by a negligently driven KTC bus at Nazimabad Chowrangi on Jan 6, 1990.