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Petitioner: Haji PUNHOO VS Respondent: THE PROVINCE OF SIND and 3 others
Court Name: Sindh High Court Judge(s): Tanzil-ur-Rehman Title: Haji PUNHOO vs THE PROVINCE OF SIND and 3 others Case No.: Constitutional Petition No.S.123 of 1982 Date of Judgment:1989-10-15 Reported As: 1985 CLC 899 Result: Petition accepted
JUDGMENT
JUDGMENT ' The petitioner by this Constitutional Petition filed under Article 9 of the Provisional Constitutional Order, 1981, seeks a declaration that the properties purchased by respondent No.4 from the Settlement Department are the result of fraud and forgery as the properties were not available for disposal on 9-3-1960 for auction and that the documents in relation to the auction were forged. He further seeks a declaration that in absence of the confirmation of the bid by the Additional Settlement Commissioner of an auction no title has passed to respondent No.4 in relation to the said properties and that the Permanent Transfer Deeds issued in favour of respondent No.4 are nullity. The petitioner further seeks a direction from this Court for the disposal of the properties in accordance with law through proper auction with notice. 2. The facts as stated in the petition are that the petitioner being local was in possession of evacuee properties bearing Custodian Nos.254/1-D and 131/1-D at Thatta since before the partition of this sub-continent. The petitioner was, however, transferred house bearing Custodian No.255/1-D situated at Thatta vide Provisional Transfer Order dated 20th October, 1959 by the Deputy Settlement Commissioner, Thatta but subsequently the petitioner surrendered the transfer documents to the Deputy Settlement Commissioner as he was led to believe that a local person having his own house was not entitled to the transfer of the said property. The petitioner, besides house No.255/1-D Thatta did also apply for the transfer of two plots bearing Custodian Nos. 131/1-D and 131/2-D. Plot No.131/2-D was transferred to the petitioner on 25- 12-1959 by the Deputy Settlement Commissioner but with regard to plot No.131/1-D it was disclosed to the petitioner that it was not available for transfer and would be auctioned. 3. It was also alleged in the petition that respondent No.4 by way
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of fraud and misrepresentation and in collusion with the staff of Deputy Settlement Commissioner got certain documents manufactured to be auctioned proceedings and transfer documents in his favour though neither the properties were advertised nor put to public auction. As such the alleged auction proceedings of the properties in favour of respondent No.4 are bogus, illegal and void. It was further stated in the petition that since repeal of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 the petitioner filed a suit in the Court of Civil Judge, Thatta which was dismissed and the petitioner is now seeking his remedy by way of Revision which he has filed in this Court but as the steps are being taken to eject the petitioner, he has filed this petition, after the Settlement Commissioner by his order dated 18-6-1982 informed the petitioner that the Settlement Authorities have become functus officio after the issuance of P.T.D., a remedy can be sought from a competent Court of Law. 4. It may also be mentioned here that the petitioner also filed an application under Order XXXIX, rules 1 and 2 read with section 151, C.P.C. for interim injunction till the pendency of this petition which was refused by this Court by its order dated 24-10-1982. The petitioner being aggrieved by that order filed a petition for special leave to appeal to the Honourable Supreme Court which was also dismissed by its order dated 7-11-1982. 5. Respondent No.4 in his affidavit filed in reply to the averments made in this petition, stated that the petitioner has suppressed and concealed the most material facts from being disclosed in the petition. He, further, stated that the properties bearing Custodian Nos. 255, 255/1-D and Plot No.131/1-D were purchased by him in open auction validly held by the Settlement Authorities in 1960 in respect of which transfer documents were issued to him by the Settlement Authorities. The petitioner was transferred Plot No.131/2-D only and his application for transfer of Plot No.131/1-D was rejected by the Deputy Settlement Commissioner by his order dated 31-5-1963 as it was already transferred to respondent No.4 to whom Final Transfer Order had already been issued. The petitioner did not challenge the transfer order of the said Plot by filing any other proceedings under the law. The petitioner being in possession of plot No.131/1-D became statutory tenant in respect of the said plot about which respondent No.4 served the statutory notice upon the petitioner informing him of such transfer and demanding rent from him therefor according to law. After the service of the said notice the petitioner started paying rent since May, 1962 for the said plot to repondent No.4 acknowledging him as landlord which he continued to pay upto December, 1976, whereafter the petitioner committed default in payment of rent. He, therefore, filed an ejectment case No.15 of 1977 against the petitioner on the ground of default in payment of rent and requirement of the premises for reconstruction which was decreed in his favour by the learned Rent Controller by his order dated 31-1-1978. The petitioner then filed First Appeal bearing No.3 of 1978 against the said order in the Court of District Judge, Thatta which was dismissed by its order dated 24-3-1979. This was followed by a Second Appeal No. 256 of 1979 in the High Curt which was also dismissed in limine, by order dated 10-10-1979. On 20-11-1979 the petitioner filed a Civil Suit in the Court of Civil Judge, Thatta which was registered as Suit No.65 of 1980 for declaration and injunction on the ground of fraudulent transfer of the properties in favour of respondent No.4. This suit was dismissed on 21-8- 1980. Thereafter the petitioner filed Civil Appeal No.17 of 1980 before the District Judge, Thatta which was also dismissed by his order dated 8-12-1981. The petitioner then filed a Revision Application on 24-12-1981 in this Court which was registered as Civil Revision No.3 of 1982. During the pendency of the said Revision Application he filed this Constitutional Petition on 1-8-1982 with an ulterior motive to delay the execution proceedings for ejectment' of the petitioner in ejectment case. 6. I have heard the learned counsel for the parties namely Mr. Mazhar All Chohan for the petitioner, Mr.Muhammad Ibrahim Memon, Additional A. - G. for respondents 1 to 3 and Mr.K.B.Bhutto for respondent No.4.
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7. Both the learned counsel for the respondents took a preliminary objection that this petition was not maintainable as the petitioner not being an aggrieved person as having no vested right in the property in question, has no locus standi to file this petition. During the course of the submissions of learned counsel for the respondents on the preliminary objection Mr.Mazhar Ali Chohan, learned counsel for the petitioner stood up and made a statement at the bar that he restricts his case only in respect of Plot No.131/1-D. 8. Now as the petitioner has withdrawn his objection with regard to other properties it is to examine whether he has any vested right in Plot No.131/1-D. From the documents produced in this petition by theparties it is manifestly clear that the plot in question was transferred to respondent No.4 as long before as 1962. The order dated 31-5-1963 passed by the Deputy Settlement Commissioner is reproduced below:- "No.DSCT/THT/63-641 Thatta, dated 31-5-1963 PLOT NO.131/1-D, THATTA ORDER ' This is an application by Punhoo s/o Allah Waryo for transfer of Plot No.131/1-D Thatta. I have seen the site. This plot already stands transferred to Haji Abdul Wahid to whom final Transfer Order has been issued. On site inspection I found that there is no construction on this plot although the applicant has a Kolhu on it drawn by Camel for extracting oil. As the plot has been transferred to another person it cannot be retransferred to the applicant. Applicant's remedy was to have gone in appeal against the transfer order. ' The only plot transferred to the applicant is 131/2-D for which transfer documents were issued to him on 21-3-1962. Hence his application is rejected. Sd. (S.ABDUL HAI) DEPUTY SETTLEMENT COMMISSIONER. 31-5-1983. ' After the passing of the above order by the Deputy Settlement Commissioner, respondent No.4 took no further steps to vindicate his right, if any, by way of Appeal, Revision or even by filing Miscellaneous Application before the Settlement Authorites. Admittedly, he accepted respondent No.4 as his landlord and started paying rent to him since May, 1962 which he continued to pay till December, 1976. The dispute actually arose when an ejectment application was filed by respondent No.4 against the petitioner in April, 1977. 9. Mr.K.B.Bhutto to support the contention that the petitioner is not an 'aggrieved person', placed his reliance on a number of decisions of the superiors Courts reported as Sh.Barkat Ali v. Additional Settle ment Commissioner 1972 SCMR 293; Noor Muhammad v. Settlement Commissioner and others 1982 CLC 2570; Abdul Hamid Khan v. Settlement and Rehabilitation Commissioner and others 1971 SCMR 711 and Mir Zaman Khan v. Muhammad Ashraf and others 1976 SCMR 319. 10. In the first case 1972 SCMR 293 the Hon'ble Supreme Court refused the petition for special leave to appeal holding that since the petitioner was found not to be entitled to the transfer of the house in question, he did not have any locus standi to challenge the transfer in favour of the respondent. 11. In the second case 1982 CLC 2570 learned Single Judge of this Court held that an opportunity to bid at an auction cannot confer any right to file Constitutional Petition. It was thus observed:- "The last submission made by the learned counsel for the petitioner was to the effect that even if it be found that he was nut entitled to the transfer to the tenement Nc.G-5-A, the said property ought to have been put to auction in which case he would have been entitled to submit his own bid to purchase the said property. This submission of the learned counsel however would not enable him to maintain a petition under Article 199 of the Constitution as a mere chance to bid at an auction
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cannot confer any right upon the petitioner to file petition under the Constitution to challenge the transfer in favour of the respondent No.3 who has been found to be entitled to its transfer and in respect of which the petitioner had already been eliminated before the Settlement authorities." 12. In the third case 1971 SCMR 711 the Honourable Supreme Court consisting of A.R.Cornelius, C.J. and S.A.Rahman, J. held that mere desire to bid for a property in an auction does not carry a vested right to bring such property to auction. They further observed:- "It is difficult to suppose that for property situated in a very central part of Lahore civil lines, where prices rule very high, a person who has been content to occupy an outhouse on the property for many years can have the means, and therefore a bona fide desire, to bid at an auction. It may be safely inferred that the effort is being made on behalf of another or others. The point of locus standi thus gains added weight. It is clear that the petitioner, whose case for transfer of the whole or part of the property, in Settlement, has been finally rejected, has no locus standi to assert any rights in respect thereof." 13. In the fourth case 1976 SCMR 319 the Honourable Supreme Court while dismissing the petition for special leave to appeal again observed:- 14. "The petitioner having failed to prove that he had a legally vested interest in the site, it has been rightly found that he had no locus standi to challenge the transfer in favour of the respondent even if it be assumed that such transfer was not legal. The petitioner was never an allottee of the site". 14. In view of these facts and law the petitioner cannot be said to have any vested right in respect of the plot in question. The mere probability or a chance to bid at the auction of the said plot does not confer any vested right on him. As such the petitioner is not an 'aggrieved person' and he has no locus standing to file this petition. 15. Learned counsel for the respondents also contended that the petition suffers from laches inasmuch as the petitioner has approached this Court after twenty years. Admittedly respondent No.4 was transferred the plot in question in 1962. This petition has been filed on 1-8-1982 i.e. after about twenty years. The delay has not at all been explained. Reliance has been placed on a number of cases decided by our Honourable Supreme Court reported as Muhammad Ismail v. Abdur Rashid and others 1983 SCMR 168; Sh.Muhammad Ehsan v. Settlement Commissioner and others 1970 SCMR 295; M/s. Oxford Knitting Mills v. Sukkur Municipality and others 1970 SCMR 537 and Jahan Khan v. Suleman and others 1969 SCMR 942. 16. In the first case 1983 SCMR 168 the petitioner was in possession of an evacuee shop which was, however, transferred to respondent on 18-11-1959. The petitioner filed a suit for declaration that the transfer in favour of the respondent was void which was dismissed on 27-2-1968. The respondent filed an ejectment case against the petitioner on 17-9-1966 which was allowed on 10-5-1968. Faced with ejectment, the petitioner filed an appeal before the Additional Settlement Commissioner on 21-8-1968 challenging the transfer of shop, who allowed it by condoning the delay and directing disposal of the shop according to law. The respondent filed a Revision against the said order of Additional Settlement Commissioner which was allowed reversing the order of Additional Settlement Commissioner. Then the petitioner filed a Constitutional Petition which was dismissed by the Lahore High Court. The petition for special leave to appeal was also dismissed by the Honourable Supreme Court holding that:- "Even if the transfer order be void, the assumption that a Court must always strike it down regardless of consequences of such decision is, as held in Sharif Ahmed Hashmi v. Chairman Screaning Committee Lahore, a total fallacy. In this connection it was further observed in this cited case that there is also ample authority for the proposition that a writ against a void order may be refused if it was meant to enable the petitioner to circumvent the provisions of a statute of
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limitation or if he was estopped by his conduct from challenging the order or if he has been guilty of laches." 17. In the second case 1970 SC MR 295 the petitioner and respondents were in possession of a Bungalow which was transferred to the respondents. The petitioner preferred an appeal against the said order which was rejected by the Additional Settlement Commissioner. He then filed a Revision which was also dismissed on 7-6-1962, The petitioner then filed a Constitutional Petition on 2-2-1967 (i.e. after four years and eight months) which was dismissed by the erstwhile High Court of West Pakistan, Lahore on the ground of laches which order was upheld by the Honourable Supreme Court and leave to appeal was, therefore, refused. 18. In the third case 1970 SCMR 537 a Constitutional Petition was filed in the High Court of West Pakistan, Karachi Bench against the order of Controlling Authority regarding increase of rate of lease after one year and ten months of the passing of the said order. It was dismissed on the ground of laches, which order was upheld by the Honourable Supreme Court holding that "There is no explanation by the petitioner why they remained idle from January 1967 till Ocwber, 1968. We are satisfied that the writ petition filed by the petitioner suffered from inordinate delay and laches and the High Court was perfectly justified in dismissing it on that ground." 19. In the fourth case 1969 SCMR 942 it was observed that "the petitioner was however, clearly negligent in not seeking this remedy earlier. He has no explanation, therefore, for the inordinate delay that took place in moving the High Court under Article 98. His petition was, therefore, rightly dismissed on the ground of laches and on this short ground alone this petition must also fail. It is accordingly dismissed." 20. On considering the law laid down by our Honourable Supreme Court I am satisifed that the petition suffers from inordinate delay and laches. Respondent No.4 has acquired a benefit which he is enjoying B for the last twenty years of which he cannot be deprived of on account of laches in filing this petition which must fail on this ground, too. 21. Before parting with the case, I .would like to observe that the petitioner is not otherwise entitled to any relief under the Constitutional jurisdiction of this Court as he has suppressed and concealed the material facts from this Court. He did not disclose material facts in this petition which amounts to abusing process of the Court. I would have considered the issuance of a notice for contempt of Court to the petitioner but I did not consider it proper as the petitioner is an illiterate person. 22. For the reasons discussed above, I find no substance in this petition which is accordingly dismissed with costs. Petition dismissed. 1985 CLC 905 [Karachi] Be "ore Haider Ali Pirzada, J EVACUEE TRUST PROPERTY BOARD--Applicant versus MOHAMMAD KHAN and 3 others--Respondents Revision Application No.207 of 1979, decided on 5th August, 1984. (a) Civil Procedure Code (V of 1908)-- --5.115--Revision--Lower appellate Court failing to take into consideration documents produced by applicant--Entire evidence produced by parties, held, would require reappraisal.--[Evidence]. [p.910] A (b) Civil Procedure Code (V of 1908)-- ---5.115--Revision--Concurrent findings--Courts below misreading evidence brought on record and arriving at incorrect conclusion resulting in miscarriage of justice--Decrees of Courts below
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set aside in revision in circumstances.--[Evidence]. [pp. 912, 913] B & G (c) Civil Procedure Code (V of 1908)-- ---S.115--Revision--Question of fact--When misreading of evidence established, High Court in revisional jurisdiction not only competent but duty bound to interfere with such findings of Courts below, no matter such finding may relate to question of fact.--[Question of fact--Evidence]. [p. 913] C PLD 1974 SC 22; 1980 SCMR 760; PLD 1980 B J 29; PLD 1980 Lah. 484; PLD 1964 Kar. 549 and PLD 1980 Pesh. 40 rel. (d) Transfer of Property Act (IV of 1882)-- ---S.53-A--Civil Procedure Code (V of 1908), S.115--Section 53-A, Transfer of Property Act, 1882, available only as a defence and could not be invoked for enforcing a right or in support of title under an uregistered lease. [p. 913] D, E & F- S.H.Mujtaba for Applicant. Kanwar Mukhtar Ahmad for Respondent No.l. Date of hearing: 4th March, 1984. JUDGMENT ' This application under section 115 of the Code of Civil Procedure is directed against judgment and decree of the Ilnd Additional District Judge dated 24-5-1979 passed in Civil Appeal No.66 of 1976 confirming the judgment and decree dated 2-1-1978, whereby he had decreed the suit. ' In order to appreciate the point involved in this application for consideration by this Court it will be necessary to state briefly the facts. The Punjrapore Trust is a religious and charitable Trust which was established in or about 1866 with its main objects to maintain cows and give protection to them. The said trust was managed by a sole trustee who was called trustee Panjrapur Trust. It was on 24-5-1938 Karachi Panjrapur was registered under section 26 of the Companies Act, 1913 as "Karachi Panjrapore Association". In the year 1949 an application was made for declaration of the property belonging to Karachi Panjrapore Association as "Evacuee Property". The Additional Custodian (Judicial), Evacuee Property, Sind, declared as such on 28-1-1950. The Karachi Panjrapore Association went up in revision to the Custodian of Evacuee Property, Sind. The then Custodian by order dated 18-7-1950, accepted the revision and declared the Association non- evacuee and its properties as non-evacuee properties. After the relevant portion of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, was amended in the year 1951, the Rehabilitation Department took action for having the property of the Association declared as evacuee property. The Deputy Custodian of Evacuee Property, Karachi, after making an inquiry into the matter, by an order dated the 18th August, 1953, came to the conclusion that the Association had ceased to function and therefore, its case was covered by clause (d) of subsection (2) of section 2 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949. As a result of this finding the Association was declared to be an evacuee and its property as evacuee property. The Association challenged this order by means of revision but that was dismissed on 19-4-1966. The Association filed a writ petition under Article 170 of the late Constitution which was also dismissed. A Petition for special leave to appeal was then moved before the Supreme Court as well as a writ petition by some of the Hindu residents of Karachi. The Supreme Court granted special leave to appeal and, ultimately came to the conclusion that as the Association had ceased to function and was also being run by persons whose authority has not been approved or accepted by the Custodian, its case fell within the purview of clause (d) of subsection (2) of section 2 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 and therefore, it had become as evacuee and its property as evacuee. The Hon'ble Supreme Court observed that subsection (3) of section 6 of the Ordinance cast a certain duty for finding out what property was held in trust. As a result of those findings, the High Court was directed to issue a writ
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of Mandamus to the Custodian to take action as was provided by subsection (2) of section 6 of the Ordinance. The Custodian Evacuee Property by order dated 26-3-1960 held that the case was clearly covered by subsection (3) of section 7 of Pakistan (Administration of Evacuee Property) Act, 1957 which corresponds to subsection (2) of section 6 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, and declared that the properties numbered in the list annexed to the petition for special leave to appeal had been proved to be the property of Panjrapore Association and it was being used for religious and charitable purposes and recommended to the Central Government for the appointment of fresh trustees. Ultimately the Secretary, Divisional Evacuee Trust Committee took over charge of Panjrapore Trust vide Order No.IX(I)/62, dated 21-1-1963. ' The respondents claimed themselves as lessess of survey numbers 34 and 25 of Deh Babrano, tappo Manghopir by virtue of an ageeement of lease dated 9-7-1961 executed by one Baba Birpuri as sole trustee of Panjrapore Trust. That agreement purported to be for 99 years and had paid a sum of Rs.80,000 to the said Baba Birpuri as lease money. The land was acquired by K.D.A. and since the land was not utilised by K.D.A. the respondent applied for release but K.D.A. directed the respondents to seek declaration and injunction. The applicant filed written-statement wherein they denied claim of the respondents. It was averred that the suit property is an evacuee trust property and as such it is under their control and management. The applicant denied the existence of lease and the payment of lease money and the respondents' possession. It was further submitted that the said land had been acquired by K.D.A. for their Scheme. It is, however, claimed by the applicant that the property belonging to Panjrapore Association including the suit property has been declared as an Evacuee Property and as such it is under the control and management of the applicant. ' On the pleadings of the parties the learned trial Court framed the following issues:- "Issue No.1. ' Whether the plaintiffs have cause of action to file this suit? Issue No.2. ' Whether the suit is barred by Ss.22,25 and 26 of Displaced Persons (Land Settlement Act)? Issue No.3. ' Whether the property in suit is an evacuee trust property under the control and management of the defendants? Issue No.4. ' Whether Shari Mahant Baba was the sole trustee and administrator of the property in dispute and he had granted lease of the same to the plaintiffs for 99 years receiving Rs.90,000 and if so its effect? Issue No.5. ' What should the decree be?" ' The learned IIIrd Senior Civil Judge on the basis of evidence both oral and documentary produced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided issue No.4 in the affirmative and issues 1, 2…
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