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Petitioner: ABDUL KARIM VS Respondent: BILAL ATIQ and 4 others
Court Name: Sindh High Court Judge(s): Nazar Akbar Title: ABDUL KARIM vs BILAL ATIQ and 4 others Case No.: Suit No,823 of 2008 Date of Judgment:2015-04-15 Reported As: 2015 CLC 1451 Result: No order as to cost
JUDGMENT
JUDGMENT NAZAR AKBAR, J.--- Brief facts of the case are that one Muhammad Ayoob, who possessed, seized and owned a residential double storey bungalow on Plot No,55, Block-A, Sindhi Muslim, Cooperative Housing Society Karachi admeasuring 600 sq.Yards (hereinafter the "suit property") died in 1973 leaving behind Mr. Abdul Karim, Mumtaz Begum, Roshan, Ghulam Kadir, Samina widow of Ghulam Qadir, Hayan Kadir, Tahreen Kadir as his legal heirs. The legal heirs of deceased Muhammad Ayoob in the year 2004 intended to sell the suit property and executed sale agreement with one Dr. Munawar Hassan on 20-4-2004 but due to non-availability of Government extract at the relevant time there was possibility of delay in transfer of title. Therefore, the plaintiff requested the purchaser (Dr. Munawar) that he may pay substantial amount to enable the plaintiff to purchase accommodation for his family. He readily accepted the request on the condition that the plaintiff will execute sale deed in his favour and 10% of the actual sale consideration will be retained by him which will be paid on mutation of suit property in the record of S.M.C.H society after execution of sale deed. However, at the time of execution of sale deed, Dr. Munawar sought execution of sale deed in favour of defendant No,1 and on objection objection by the plaintiff he stated that they are his nephews and for payment of the remaining amount of 10% he executed an undertaking on the stamp paper to the effect that the said amount has been withheld by him to be paid on mutation of the property in the record of the society. In the meanwhile the plaintiff applied for the Government Extract. It was refused on the pretext that the Chief Minister has imposed ban on sale/purchase of properties. The plaintiff filed a Constitutional Petition on 2-2-2005 which was allowed on 24-3-2005 on the statement of Advocate General, Sindh and Lawyer of the Society that there was no ban and the society has already mutated the suit property. As soon as Government
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Extract was obtained, the plaintiff approached defendant No,1 (Purchasers) to transfer/mutated suit property in their name on payment of balance 10% sale consideration. Defendant No,1 avoided to meet him and they never attempted to get the property mutated in their name. The plaintiff as owner received a notice dated 12-5-2005 from the Secretary of the society (defendant No,3) threatening cancellation of lease of the suit property on the ground of illegal demolition of the building on the suit property. Thereafter, defendant No,2 in 2006 approached the plaintiff to accompany them to the Office of the Society for mutation as they have purchased the suit property for sale consideration of Rs,1,50,00000. The plaintiff explained to him that 10% payment towards sale consideration has yet to be paid by defendant No, I. In fact defendant No,2 has demolished the building on the suit property and therefore, the plaintiff got suspicious and moved applications, to the police and to the Chairman of the defendant society on 11-8-2006 and 19-8- 2006 respectively to ensure that no fraud should take place in the society for mutation of the suit property as by that time even 10% of the value of suit property was yet to paid by defendant No, 1. In the year 2008 defendant No,2 in collusion with the other defendants started illegal constructions against the rules and regulations of the society, without following the requirement of transfer and mutation of the suit property in their name. Therefore, the plaintiff filed the instant suit claiming his "charge" on the suit property by 10% of its value and prayed for the following reliefs:--- i. Decree the suit of an amount mentioned as Rs,35,00,000 as calculated the difference of the rate of present price as the property is of Rs,3,50,00,000 with the 20% of rate from issue of extract till the decide of suit. ii. Declare the construction is illegal in the presence of documentary evidence and material facts. iii. Grant injunction permanently and restrain defendant's and any person(s) representation, worker, assigns, agents, relatives and laborers from carry on illegal constructions on the suit plot. iv. Grant of mandatory injunction that whatever the undesired persons have raised illegal construction be ordered to demolish. v. Cost of the suit claim be awarded. vi. Any other relief which court deem fit be awarded. Defendants were served with notices/summons. But the defendant No,1 remained absent and the plaintiff despite service of summons through publication, after going through documents filed by defendants Nos.2 and 5, made one more attempt to summon defendant No,1 as reflected in the order dated 12-10-2010. Defendant No,3 was debarred on 18-9-2009. Defendants Nos.2 and 5 filed their respective written statements and took the common plea that the suit is not maintainable against them under the law and it is bad in law as Dr. Munawar Hassan has not been impleaded, who was necessary party along with other co-owner since he had purchased the suit property jointly from the plaintiff and the other co-owners, who were also necessary party in the proceedings have not impleaded. According to them plaintiff has no cause of action against them and also that the suit is miserably time-barred. Defendants Nos.2 and 5 also averred that the plaintiff and other co-owners had also sworn/executed indemnity bonds, affidavits, undertakings and other documents for completion of the requirements of the society (defendant No,3) for transfer of the suit property in favour of defendant No, 1. The said purchasers/defendant No,1 had sold the suit property and executed General Power of Attorney registered at No,458 dated 13-8-2005 in favour of Fayyaz Ahmed. Soon after, the said Fayyaz Ahmed being, owner and attorney of defendant No,1, sold out suit property to M/s. Abdur Rahim Lakhani and Muhammad Ibrahim, through Sale Agreement dated 24-10-2005. But instead of executing registered Sale Deed in their favour, Fayyaz Ahmed executed Sub-General Power of Attorney in favour of Muhammad Haroon (defendant No,2 herein) registered at No,591 dated 24-10-2005. The demolition permission and approval of building plan was acquired by defendant No,2 on 7-4-2006 and 18-3-2008 from Karachi Building Control Authority. However, on the instructions of Abdur Rahim Lakhani and Muhammad Ibrahim (the purchasers of the suit
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property from Fayyaz Ahmed) the sub-attorney Muhammad Haroon (defendant No,2) had already sold the suit property to M/s. Abdur Rauf, Muhammad Yousuf and two others through registered Sale Deed dated 27-7-2007. It is averred by defendants Nos.2 and 5 that after coming to know about these transactions the plaintiff has started harassment to the answering defendants by moving false and frivolous applications to the society (defendant No,3) and he also lodged a false F.I.R. Defendant No,4 in their written statement has denied all the allegations and further stated that no cause of action arose to the plaintiff against defendant No,4, hence this suit merits dismissal against defendant No,4 as in this matter, no government interest is involved. From the pleadings of the parties following issues were framed on 15-2-2012. 1. Whether the suit is maintainable in its present form? 2. Whether plaintiff is entitled to for the damages as claimed in the suit, if yes, to what extent? 3. What should the 'decree be? The evidence was recorded through commissioner. The plaintiff examined himself and produced documents as Exhs.P/1 to P/33 and relevant exhibits are as follows.--- 1. Photocopy of Sale Agreement dated 12-3-2004 as Exh.P/1. 2 Photocopy of Sale Deed dated 12-10-2004 as Exh.P/2. 3. Photocopy of Undertaking dated 11-10-2004 as Exh.P/3 (Original seen and returned). 4. Photocopy of the Order dated 24-4-2005 in CP No,D-92/2005 as Exh.P/4 (Original seen and returned). 5 Photocopy of Extract issued on 19-6-2005 as Exh.P/5. (Original seen and returned), 6. Photocopy of Application dated 11-8-2006 addressed to S.H.O. By the plaintiff as Exh.P/6. 7 Photocopy of the letter dated 8-12-2007 sent by me to the defendant No,2 as Exh.P/7. 8. Photocopy of the letter dated 19-8-2006 sent by me to the Chairman Sindhi Muslim Co-operative Society as Exh.P/8. 9. Photocopy of the application to the S.H.O. Ferozabad duly received on 1-4-2008 as Exh.P/9. (Original seen and returned). 10. Photocopy of the letter dated 1-4-2008 addressed to Sindhi Muslim Co-operative Society as Exh.P/10. 11. Photocopy of News Item dated 29-4-2008 published in "JANG" as Exh.P/11 and dated 24-8-2006 as Exh.P/12. 12. Photocopy of the letter dated 12-5-2005 sent by Sindhi Muslim Co-operative Society to me as Exh.P/13. (Original seen and returned). 14. Photocopy of the letter dated 22-8-2006 sent to DDO (Revenue) as Exh.P/15. 15. Photocopy of the letter dated 7-4-2006 Demolition letter as Exh.P/16 and approval letter dated 18-3-2008 as Exh.P/17 issued by KBCA regarding the suit property, alongwith photocopy of approved Building plan. 16. Photocopy of the letter dated Nil sent by me to Sindhi Muslim Co-operative Society as Exh.P/18. 17. Photocopy of our Indemnity Bound dated 12-10-2004 as Exh.P/19, 18. My affidavit and undertaking as Exhs.P/20 and P/21. 19. Photocopy of order sheet dated 16-9-2002 and 24-4-2007 as Exh.P/22. 20. Photocopy of registered Power of Attorney having regd. No,458 dated 13-8-2005 as Exh.P/23 and Sub-Power of Attorney having regd. No,591 dated 24-10-2005 as Exhs.P/23 and P/24. 21. Photocopy of legal notice dated 5-7-2006 from defendant No,! To District Officer, Cooperative Housing Society, Karachi as Exh . P/26 . 22. Photocopy of letter dated 25-4-2007 from Defendant No,3 (Society) to defendant No,4 as Exh.P/32.
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The Exhs.P/6, P/7, P/8, P/10, P/15 and P/16 were taken on record under objection from counsel of defendants Nos.2 and 5 which were to be decided at the final hearing but such objections have not been pressed as the learned counsel has not even mentioned about his objections to the production of the said exhibits during his arguments. Defendants Nos.2 and 5 appeared as their own witnesses as DW-1 and DW-6, defendants Nos.2 and 5 both admitted and confirmed contents of Exhs.P/1, P/2, P/16 to P/21 and Ex.P/23 and P/24 and produced Exh.D/2 sale deed of open plot by defendant No,2 in favour of defendant No,5. I have heard arguments of learned counsel and perused the record. My issue wise findings are as follows:- Issue No,1. The Plaintiff has claimed that he alongwith other co-owners has entered into an agreement of sale of their ancestral property as it came to their hand by way of inheritance with one Dr. Munawar Hussain. The said Dr. Munwar taking advantage of our financial circumstances without payment of entire sale consideration got the sale deed executed in favour of defendant No,1 i,e, Bilal Atiq and Faraz Shahid jointly and retained 10% of the sale consideration on the ground that said amount shall be paid at the time of mutation of the property in the record of defendant No,3 i,e, the society. The plaintiff was not expecting any fraud and executed the sale-deed. This is not disputed that the sale deed executed on 12-10-2004 and an undertaking was executed on 11- 10-2004 by Dr. Munawar with whom the sale agreement was entered into by the plaintiff on 12-3- 2004. Since there is no agreement between the plaintiff and defendant No,1 and it was also mentioned in the sale agreement that the sale-deed shall be executed in favour of the buyer or his nominee, therefore, unless beneficiary of sale-deed deny that they were not the nominees of Dr. Munawar it cannot be presumed that defendant No,1 i,e, Bilal Atiq and Faraz Shahid have not acquired the said property from the plaintiff through the said Munawar on the basis of the agreement of sale dated 12-3-2004. Defendants Nos.2 and 5 themselves have conceded in para 3 of their respective written statements that Dr. Munawar had sold the suit property to defendant No 1 and the plaintiff executed sale deed in favour of defendant No,1 at the instance of the said Dr. Munawar. The allegations of the plaintiff that the entire sale proceeding have not been paid by the said Dr. Munawar or even the defendant No,1 has gone unchallenged and of course it does find support from the "undertaking" (Exh.P/3) which is on record. The willful absence of defendant No,1 from proceeding and the very fact that the defendants No,2 has agreed to deposit security in the sum of Rs,35,00,000 in Court in favour of plaintiff to avoid the restraining Orders further confirms that the defendant No,1 i,e, Mr. Atiq and Faraz are and were in contact with defendant No, 2, their sub-attorney. The fact that defendant No,2 is also sub-attorney of defendant No,1 leads us to believe that Defendant No, 1 were duly served and represented through defendant No,2 as para-5 of both the power of attorney and sub-power of attorney reads as follows:-- "To prosecute or defend any suit, Complaint, Application, Petition or any proceeding whatsoever before any Court or Authority, as may be necessary or expedient relating to my Property and for such purpose to appoint an Advocate, Pleader, Sub-Attorney or Agent on my behalf to verify and sign such Plaints, Applications, Petitions, Memorandum of Appeal and Swear such Affidavits as may be necessary therefore, and to Compromise, Compound, Withdraw and or refer to arbitration, legal proceedings in or before any Court or Authority and for such purpose the Said Attorney may accept the Service/Summons or Notices, Writs, Etc, issued against me by the Court of Authority." Therefore, I hold ..That the absence of defendant No,1 in presence of defendant No,2 is not material. The learned counsel for defendants Nos.2 and 5 neither orally nor in his synopsis of written argument has raised any contention about issue No, 1. The burden of issue No,1 was on defendants' to show that how this suit is not maintainable in the present form. Therefore, both an account of my above observations based on the record and evidence and failures of counsel for defendants to
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show any legal infirmity in the plaint, I hold that the suit is maintainable in the present form. The issue No, 1 is answered in affirmative. Issue No,2. The correct language of issue No,2 should have been whether the plaintiff is entitled to the difference of the rate of property and not "for the damages" as used in the proposed. Issue No,2 which was adopted on 15-2-2012. Therefore, this issue is redrafted to be read as under:--- Whether the Plaintiff is entitled for the sum of Rs,35,00,000 as calculated by him equivalent to 10% of the present value of the property which remained unpaid? I have gone through the entire evidence and found that the premises on which the plaintiff has claimed this amount was the very fact that before payment of entire sale consideration, the defendants No,1 within hardly 10 months has sold the suit property for a sum of Rs,1,50,00,000 to defendant No,2 and to conceal the actual sale consideration defendant No,1 executed a General Power of Attorney in favour of one Mr. Fayyaz Ahmed who sold it further and he, too, instead of registered sale-deed, executed a sub-power of attorney in favour of defendant No,2. The case of plaintiff is that the balance sale consideration equivalent to 10% of the agreed value of the suit property was payable by defendant No,1 at the time of mutation in the record of defendant No,3 which the defendant No,1 has wilfully skipped and sold the suit property prior to getting the mutation done. The plaintiff has categorically stated in his cross that:--- "It is incorrect to suggest that sale consideration had been paid to us by Dr. Munawar Hassan". The plaintiff has produced original "undertaking" as Exh.P/3 but no question was suggested in cross to challenge its authenticity. The statement of plaintiff regarding non-payment of 10% sale consideration, in paras-5 and 12 of the plaint and evidence adduced by him were complimenting to each other. In his cross the plaintiff re-affirmed on oath that:- "It is correct to suggest that the defendant No,2 is not the registered owner of the suit property. It is correct to suggest that my entire claim through the present suit is against Dr. Munawar Hussain, Bilal Atiq and Faraz Shahid. Voluntarily says that due to fraud committed by above named three persons against us and without having any lawful title, they had sold the suit property to third person and did not clear about the remaining amount, mentioned above which have to payable before the finalization of sale which was to be payable at the time of transfer/ mutation." Thus it can safely be said that the suit property has not been absolutely transferred to defendants No,1 as long 10% balance sale consideration is not paid by defendant No, 1. Section 54 of the Transfer of Property Act, 1882 defines "Sale" as "Transfer of ownership in exchange for a price paid or promised or part-paid part-promised". The issue of sale consideration was in respect of the suit property and it was liable to be paid by the beneficiary of the sale deed or at least it should have been denied by the beneficiary of the sale deed executed on 12-10-2004. The defendant No,2 who happened to be Sub-Attorney of the Attorney of defendant No,1 in para 3 of his written statement has conceded that the Sale Agreement between the plaintiff and Dr. Munawar dated 2- 3-2004 is the same, which culminated in sale-deed in favour of defendant No,1, then how he can deny "undertaking", Exh.P/3 which is in respect of payment of sale consideration. Admittedly sale consideration on the sale-deed (Exh.P/2) is different than the one mentioned on the sale agreement (Exh.P/1) and defendant Nos.2 and 5 both have admitted and confirmed contents of Exhs.P/1 and P/2, in their evidence thus it was a case of sale in which price was "part paid" and "part-promised" to be paid. The execution of sale-deed is not proof of "Sale" as defined in section 54 of Transfer of Property Act, 1882. The "sale" has to be proved independently by payment of full and final sale consideration. Thus, despite the registered sale-deed, which is not even denied or disputed by the plaintiff, the sale was incomplete until and unless a full and final sale consideration is paid and receipt thereof is issued separately by the seller. Therefore, the suit property continued to be under charge by its original owners (the plaintiff and co-owners) to the extent of 10% of its market value. In coming to this conclusion, I find support from the following case law:--
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i. PLD 1985 Journal 121 (Saffraz Ahmed and 36 others v. Mst. Sakina Ahmed and 36 others). In this case while relying on a judgment of the Hon'ble Supreme Court of Pakistan (1971 SCM R 414) the following observation at page 83 is relevant:--- The question as to whether the non-payment of consideration would render the transaction of sale void, came up for consideration before the Supreme Court in Muhammad Hayat's case cited by learned counsel for the petitioners. Their Lordships observed:- "The onus in this respect, therefore, lay very heavily indeed on the Plaintiff-respondent to prove that the consideration had not been paid. This onus, in our opinion, has not been discharged. Furthermore, on the analogy of the decision reported in I.L.R. 42 Mad. 20, when the matter has passed from the stage of contract to that of an executed conveyance and possession of the property has been given thereunder, even non-payment of consideration will not render the transaction void. The price if not paid, is a charge on the property sold and it can be recovered under the law. Title to the property nevertheless passed on the registration of the sale deed." It is, therefore, clear that in the instant case even if it is conceded that full consideration of the transaction had not passed the title to the property did pass on the registration of the sale deed. The unpaid portion of the price remained only a charge on the property. (Emphasis is provided). ii. 1990 CLC 1591 (Mst. Hussain and 5 others v. Mst. Channo Bi). The Hon'ble Lahore High Court refused to interfere with the annulment of sale deed on finding that the petitioner had failed to establish that sale price was duly paid. The relevant observations from page 1595-96 are reproduced below:- In number of decided cases, it has been held that the acknowledgement of receipt of the whole or part of the sale consideration in a deed of sale is not a term of the deed of sale and oral evidence may be given to show that the amount acknowledged or any part of it was not paid. Decisions reported in Pradyaman Prasad Singh v. Mahadeo Singh and others AIR 1950 Patna 85, Official Receiver of Salem v. Chinna Goundan and another AIR 1957 Madras 630 are in point. When the record is examined from this perspective, it is clear that sufficient evidence was adduced by the plaintiff to prove that the acknowledgement of the sale price and consequent endorsement, on the sale-deed were incorrect and that the vendee had not paid the price to her. Therefore, finding on receipt of price is neither infirm nor faulty. Having decided that consideration was not paid, I shall now advert to the second limb of the point which relates to the effect of non-payment of price on passing of title to the vendee. In terms of section 54 of the Transfer of Property Act, 1882, principles whereof are applicable to the territory in Punjab, price is an essential ingredient in all the sales. Ordinarily, paym ent of consideration is simultaneous with and at the time when the conveyance is executed but in a particular case, parties may deviate from the above Rule. If the parties intend that title shall be transferred upon the price settled between them on the execution and registration of the sale-deed, non-payment of purchase money shall neither arrest nor prevent the transfer of ownership rights. All depends on what is intended by the parties in a particular case. If the intention is that in absence of payment of consideration, ownership should not pass, title will not pass until the consideration is paid. Non-paym ent of consideration is a strong piece of evidence though not conclusive to show that parties did not intend the document to be operated upon. In the case in hand, though the conveyance was executed and registered on 13-11-1976 yet as admitted by the original vendee to the Revenue Officer and supported by evidence led at the trial, consideration was not paid. Furthermore, though the sale-deed was registered on 13-11-1976, yet report to the Patwari for entry of mutation in accordance with it was made on 26-7-1984. Non- payment of consideration coupled with the delayed report for the incorporation of the sale-deed in revenue records seen in the light of evidence led in the suit is sufficient to convince that the plaintiff was tripped up and duped by her cousin who vainly attempted to deprive her of the land without paying consideration for it. Therefore, both equity and law will not assist the petitioners to take the
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property without paying the price for it. In this view, I am satisfied that findings on questions of fact recorded by the Courts below are correct and no interference should be caused with them. Revision petition is dismissed in limine. The plaintiff, in the case in hand, has discharged his burden of proof about non-payment of 10% of the value of the suit property till date. The delay of almost three years by defendant No,1 in obtaining mutation in the record of defendant No,3 further strengthens the case of the plaintiff. In my humble view, since it is possible that in some cases the parties may agree to execute registered sale-deed by deferring the payment of full price or part thereof, therefore, it was incumbent upon respondent No,3 (SMCH Society) to direct the new member (buyer) to furnish a "NO OBJECTION CERTIFICATE" from the outgoing member (sellers) of the society, or produce him before the society before seeking mutation in the record of society in place of outgoing member even on acquiring the property by a "registered instrument" in terms of section 54 of the Transfer of Property Act, 1882. Defendant No,3, in the instant case, despite objection from the recorded owner (plaintiff) and his written intimation to the society that 10% payment of sale consideration was yet to be paid by defendant No,1, waived the basic requirement of producing the recorded owner or his NOC and mutated the suit property in favour of defendant No,1 after three years of sale deed dated 12-4-2004 through Resolution dated 20-4-2007. Defendant No,3 by unlawfully mutating the…
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