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Petitioner: RAGA HUSSAIN through legal representatives and others VS Respondent: MUHAMMAD JUDGMENT
Court Name: Sindh High Court Judge(s): Muhammad Faisal Kamal Alam Title:RAGA HUSSAIN through legal representatives and others vs MUHAMMAD
JUDGMENT
Reported As: 2018 YLR 1053 Result: Order accordingly Judgment JUDGMENT MUHAMMAD FAISAL KAMAL ALAM, J.---The present proceeding is basically a post remand one. Learned Division Bench by its decision dated 19.11.2001 was/is of the view that Respondents Nos.8 and 9 in High Court Appeal No.03 of 1974, who actually are present Defendants Nos. 12 and 13 (Malik Mir Hassan and Malik Mir Hazar Khan), are entitled to contest the present suit on the basis of their plea of bona fide _purchaser of the land in question, for value without notice. This Judgment of learned Division Bench has been reported in 2003 CLC page-2050 Karachi as well, was subsequently challenged before the Hon'ble Supreme Court in C.P.L.A. No.37-K of 2002 by one of the Defendants-Muhammad Khan/Defendant No.1, but the Hon'ble Apex Court maintained the above decision. 2. By this common Judgment both; present tis and Judicial Miscellaneous No. Nil of 2005 will be decided. 3. Considering intricate question of facts and nature of dispute stretching over to past many decades, it is necessary to give a background of the case. 4. Present dispute is with regard to a part of land comprising 900 Acres (approximately) in various survey numbers, situated at Deh Hub, Karachi, which was owned by deceased Mst. Shahar Bano. Initially, the suit was filed by the predecessor-in-interest of present Plaintiff (late) Raza Hussain against the present Defendants Nos.1 to 11, seeking, inter alia, Specific Performance of various agreements claimed to have entered into between predecessor-in-interest of these Defendants, deceased Mst. Shahar Bano, Raes Gul Hassan and Dildar Hussain. The original plaint contains the following prayer clause(s):
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a) Ordering the defendants to specifically perform the agreement dated 18.01.1964 and to do all acts necessary to be performed under the terms of the said agreement of sale and on failure to do so, the Nazir of this Hon'ble Court be ordered to do all things necessary for the specific performance of the said agreement; b) Ordering the defendants to put the plaintiff in full possession of plots Nos.12 to 28, admeasuring 287 acres and 5 ghuntas situated at Hab Naddi, Manghopir, in case this Hon'ble Court comes to the conclusion that the plaintiff is not in possession of the said plots and to do all acts necessary to be done for putting the plaintiff in possession of the said plots; OR ALTERNATIVELY a) For Rs.57,830/- with interest at 6% p.a. from the date of this suit till realization; b) Costs of this suit; and, c) Any other relief which this Hon'ble Court may think fit and proper looking to the circumstances of this case. 5. After being duly served, original Defendants, that is, those, who owned/co-owned the above land, contested the suit, particularly, Defendant No.3 (Yaqoob) and Defendant No.6 (Mst. Janat), who were admittedly brother and sister. For the sale of clarity, the original Defendants will be referred to as the "said Defendants". 6. By the order dated 16.12.1968, present Defendants Nos. 12 and 13 (for the sake of reference, these Defendants be referred to as the "Claimants") were impleaded as Defendants Nos. 12 and 13, as they also claimed to have purchased that portion of lands in question falling to the share of Defendants Nos.3 and 6 (Yaqoob and Mst. Janat). 7. The amendments were made in the pleadings and the amended prayer clause(s) of present suit runs as under:-- (a) ordering the defendants 1 to 11 to specifically perform the agreement dated 18.1.1964 and to do all acts necessary to be performed under the terms of the said agreement of ' sale and on failure to do so, the Nazir of this Court be ordered to do all things necessary for the specific performance of the said agreement; and declaring the sale in respect of the property which is the subject- matter of the suit in favour of the defendants Nos.12 and 13 and null and void and not binding on the plaintiff; (b) ordering the defendants to put the plaintiff in full possession of plots Nos.12 to 28 admeasuring 287 acres and 5 ghuntas situated at Hab Nadi Manghopir; in case this Hon'ble Court comes to the conclusion that the plaintiff is not in possession of the said plots and do all acts necessary to be done for putting the plaintiff in possession of the said plots; OR alternatively a) for Rs.57,830.00 with interest at 6% from the date of the suit till realization; b) costs of this suit, and; c) any other relief which this Hon'ble Court may think fit and proper looking to the circumstances of the case. 8. From the pleadings of the parties, following issues were framed- 1. Whether Mst. Shahar Bano had entered into agreement of sale of land in suit with the plaintiff? If so, whether the said agreements were obtained byfraud or misrepresentation? 2. Whether the defendants 12 and 13 are bona fide purchasers for value without notice? If so, its effect? 3. Whether the relief of specific performance cannot be granted? 4. Whether the plaintiff is entitled to damages, If so, how much? 5. To what relief, if any, is the plaintiff entitled? 9. In the intervening period, Defendants Nos.7 to 10 were dropped from the array of Defendants, as they were not the direct descendants and legal heirs of Mst. Shahar Bano, including the said Dildar
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Hussain from whom the Plaintiff averred to have purchased a portion of the land in question. 10.Exhaustive evidence was led by the parties including newly added Defendants Nos. 12 and 13 {Claimants} in support of their respective claims. 11.Learned Single Judge handed down the Judgment dated 19.02.1973, whereby prayer for Specific Performance was rejected, inter alia, as all the agreements entered into between the Plaintiff and the said Defendants were adversely affected by the Rule of Pardanasheen lady, as Plaintiff failed to discharge the burden of satisfying the Court that all those sale agreements were executed by deceased Shahar Bano with full knowledge and consent. Additionally, relief of specific performance was also refused to Plaintiff because requisite permission for transfer/sale from the concerned Deputy Commissioner was not obtained. However, a decree against Defendants Nos.1 to 6 and 11 to the extent of Rs.4000/- (rupees four thousand only) with interest of 6% per annum, to be calculated from 13.03.1962 till realization, was awarded. It is pertinent to mention here that while discussing Issue No.2 pertaining to Defendants Nos. 12 and 13 (Claimants), that whether or not they were bona fide purchasers for value without notice, learned Judge was of the opinion that since main relief of Specific Performance was declined to the Plaintiffs, therefore, it was not necessary to give a finding on the Issue No.2 as well. 12.The above Judgment was challenged in High Court Appeal No.03 of 1974 and while Appeal was sub judice, a compromise application under Order XXIII, Rule 3 of C.P.C. being C.M.A.No.2777 of 1980, dated 10.08.1980 (available at page-551 of the main file) was jointly moved by the predecessor-in-interest of the present Plaintiffs, viz. late Raza Hussain and Defendants Nos. 1, 2, 4, 5 and 6, excluding present Defendant No.3 (said Yaqoob) as well as the Claimants. 13.Learned Division Bench has passed an order dated 08.10.1980, whereby the matter was deferred to a date in office for hearing. That order was subsequently impugned before the Hon'ble Apex Court, in C.P.L.A. No. 108-K of 1999 and after hearing counsel representing different parties, Hon'ble Supreme Court converted the above Petition into Appeal, set aside the above referred order and remanded the case to the learned Division Bench of this Court for rehearing of the Appeal and decision in accordance with law, as well as observation of the Hon'ble Supreme Court, inter alia, that once a compromise application was filed before the learned Division Bench, it had to be disposed of accordingly. 14.On remand, afore referred order was passed by the learned Division Bench, which was maintained by the Hon'ble Apex Court, hence present proceedings. 15.Looking at the age of the present evidence file was reconstituted/re-constructed in accordance with Rules. I must record my appreciation for all the learned counsel representing the parties for their co-operation in this regard. 16.It is also relevant to discuss undisputed facts for reaching a conclusive finding about the rights and interest of the respective parties to the proceedings. 17.Plaintiffs' side is laying its claim over a portion of the land in survey Nos. 12 to 28, Deli Hub, as mentioned in the compromise application dated 10.08.1980 filed in the afore referred H.C.A. No.03 of 1974, followed by the Compromise Decree of 19,11.2001, whereas Defendants Nos. 12 and 13 (said Claimants) derived their title from a registered instrument; Sale Deed dated 29.05.1968, which has been exhibited during the evidence as Exhibit No.24/21 (available at page-343 [new page 311] of the Evidence File). This Sale Deed has been entered into between Muhammad Yagoob and Mst. Janat (Defendants Nos.3 and 6) as Vendors and predecessor-in-interest of present Defendants Nos. 12 and 13, namely, Malik Mir Hassan Khan and Malik Mir Hazar Khan as vendors. The subject matter of the Sale Deed is agricultural land bearing Survey Nos.7, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 to 27, admeasuring 299 Acres and 35 Ghuntas, situated in Deh Hub, Taluka Karachi, District Karachi. Plaintiffs' claim is on an area admeasuring 287 Acres and 5 Ghuntas, regarding which the above Compromise Decree dated 19th November, 2001 has been passed and subsequently
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through Nazir of this Court, possession was handed over to the Plaintiffs; Nazir Report is of 25.10.2003 (at page-51) of the Execution No.02 of 2003. It is also noteworthy that claim of the Plaintiffs is also in respect of same survey numbers, except survey No.7. Plaintiffs and Defendants at all material times also had knowledge of this Sale Deed as evident form their respective pleadings as well as testimonies. Plaintiffs in their amended plaint had sought declaration that sale in respect of the subject property in favour of said Claimants should be declared as null and void, while further praying that the Plaintiffs' side should be put in possession of plots Nos. 12 to 28, admeasuring 287 Acres and 5 Ghuntas, that is, suit land. The undisputed factual and legal position is also highlighted in the afore-mentioned remand order of learned Division Bench (dated 19.11.2001). Entitlement of Defendants Nos.3 and 6 [Yaqoob and Jannat] have not been disputed by any of the parties, but, only the area of land they have inherited. As per plea of the said Defendants, the afore named Yaqoob and Jannat had jointly inherited 170 acres. 18.The second set of facts is that in the intervening period, Plaintiffs after obtaining compromise decree filed Execution Application No.02 of 2003, after more than a year from passing of the said Compromise Decree. Notices were issued, but it is pleaded by the present Claimants that no notice was issued to them. In this regard, on one of the dates, it was observed by this Court in the above Execution proceeding that counsel for Decree Holder to satisfy the Court that Defendants Nos.8 and 9 (present Claimants) who are contesting the suit will not be affected or have no interest in survey Nos.12 to 28. These survey numbers constitute a larger portion of the subject land in dispute. 19.That on 14.04.2003, the Execution Application was allowed. Thereafter, present Claimants preferred a proceeding under Section 12(2), of C.P.C. by filing a J. M. No. Nil of 2005 and impugned the above order dated 14.03.2003, inter alia, on the ground that Plaintiffs/Decree Holder by playing fraud upon the Court got the above order passed, though the said Compromise Decree was a non-executable one. Office has raised objections to the maintainability of the Judicial Miscellaneous. The said Judicial Miscellaneous proceeding has beer contested by Plaintiffs by filing a detailed Counter affidavit. According to the Plaintiffs' counsel, it is the present Claimants who had obtained a status quo order on 07.03.2008, by misrepresenting the facts before this Court. It would be advantageous to reproduce herein under the relevant portion of the decree that was filed in above Execution proceeding "And whereas the above matter came up on this, 19th day of November, 2001 for Re-hearing before a D.B. consisting of Mr. Justice Sabihuddin Ahmed and Mr. Justice S. Ali Aslam Jafri in presence of Mr. Faisal Khalid Daudpota Advocate for appellant and Mr. G. M. Qureshi, advocate for respondents Nos. ] (a), (c), 2 and 4, it is hereby ordered that appeal is accordingly allowed to this extent that the Compromise dated 08.10.1980 is binding as between the parties thereto, the terms of Compromise dated 8-10-1980 which reads as under: - "TERMS AND CONDITIONS" (1) "That the appellant shall be transferred, assigned ownership of plots Survey numbers 12 to 28 situated in Deh Hab, Tappo Manghopir, District Karachi. The expenses of transfer shall be borne by the appellant. (2) That the Respondents 1, 2, 4, 5 and 6 shall cooperate with the appellant in the transfer assignment and mutation of plot bearing Survey Nos. 12 to 28 in favour of appellant or his nominee. (3) Petitioners shall bear their own costs". However, the respondents Nos.8 and 9 are entitled to contest the suit on the basis of their plea of being bona fide purchasers for value without notice and the suit is remanded to a learned Single Judge on the original side to decide the same on merits." [Underlining for emphasis] 20. In order to decide controversy involved effectively and completely, it would be necessary to
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frame two additional Issues besides retaining the original Issue No.2. Consequently, following are the Issues:-- 1. Whether the defendants 12 and 13 are bona fide purchasers for value without notice? If so, its effect? 2. Whether the compromise application dated 10.08.1980 is a valid one and can have the effect of nullifying the registered Sale Deed dated 29.05.1968? 3. To what relief, if any, the Claimants are entitled to? ISSUE NO. 1: 21. Mr. Khalid Daudpota, learned counsel representing the Plaintiffs, has strenuously argued that the sale transaction in favour of the Claimants by Defendants Nos.3 and 6 is otherwise illegal as at that relevant time a restraining order was in the field and, therefore, subject land could not have been sold to the Claimants. He further argued while referring to record that criminal cases were registered against the parties including the Claimants when the latter attempted to take over the physical possession of the subject land and faced resistance. In this regard, learned counsel has also referred to a Letter Patent Appeal (LPA) No.19 of 1969 preferred by the said Claimants against the injunction order, but the same was also dismissed by learned Division Bench of this Court. Stance of the Plaintiffs is that sale transaction between the Claimants and said Defendants Nos.3 and 6 is hit by Section 52 of the Transfer of the Property Act, 1882 and the Sale Deed [afore mentioned] is an illegal document; that Claimants cannot approbate and reprobate at the same time, by pursuing the present suit and subsequently filing the J.M. No. Nil of 2005; that even otherwise, sale transaction between the Claimants and said Defendants Nos.3 and 5 is of no consequence as the said Defendant No.3 and Plaintiffs already entered into a Compromise by filing a Compromise Application (C.M.A. No. 1081 of 1967) under Order XXIII, Rule 3 of C.P.C., which again has been brought on record through a pending C.M.A. No. 11617 of 2016. Learned counsel representing the Plaintiffs have placed reliance on the reported decisions already mentioned in the opening part of this judgment. 22. No one appeared on behalf of the said Defendants in the present round of proceeding. Messrs Muhammad Ali Jan, Mustafa Lakhani and Yaseen Azad (ASC) have argued on behalf of the Claimants and their present legal heirs. Arguments advanced by Mr. Muhammad Ali Jan, Advocate have been adopted by other two learned counsel, as there is no conflict of interest inter se these- Claimants. 23.Main thrust of the arguments of Claimants is that the Compromise Decree which is based on the Compromise dated 10.8.1980 [supra] is a nullity in the eyes of law, as the land falling in the afore mentioned disputed survey numbers at that relevant time was not owned by those said Defendants who entered into the said Compromise with Plaintiffs, but, the said lands were in fact owned by and in possession of said Defendants Nos. 3 and 6 [Yaqoob and Jannat] in terms of the Partition dated 15-5-1968 [Exhibit 9/1]. The point of law of lis pendens was also rebutted by Claimants' side by invoking the principle of bona fide purchaser without notice, as ownership of land in question was transferred to Claimants by a registered Sale Deed dated 29-5-1968 [Exhibit 24/21]. 24.Number of witnesses were examined by all the Parties. A major portion of evidence relates to the sale transaction through various sale agreements said to have entered between Plaintiffs predecessor-in-interest Raza Hussain (late) and the said Defendants and their predecessor-in- interest (late) Shahar Bano in respect of their various lands in different survey numbers. However, the above sale transaction(s) between Plaintiffs and the said Defendants, was already rejected by this Court vide Judgment dated 19-2-1973, though challenge in afore referred H.C.A. No.3 of 1974, but while the said Appeal was sub judice, the Plaintiffs and the said Defendants excluding Defendant No.3 [Yaqoob] entered in the afore referred Compromise., followed by a Compromise
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Decree in dispute. Thus, I need to discuss only the relevant portion of the evidence necessary for deciding the above Issues. 25. First the objection raised by learned counsel for Plaintiff about the Compromise signed between original Plaintiff (late Raza Hussain) and the said Defendant No.3 [Yaqoob] is to be addressed and answered, as it is directly related to the Issue at hand. In this regard, an Application C.M.A.No.11671/2016 is also filed and pending for decision, through which the purported Compromise dated 23.8.1967 is again brought on record, though the same was already filed many decades back by the Plaintiffs' side in the form of a compromise application being C.M.A. No.1081 of 1967, under Order XXIII,Rule 3 of C.P.C. Undisputedly, this compromise was earlier rejected by this Court while passing Order dated 14.9.1967, which was never challenged subsequently, hence the said rejection order attained finality. Secondly, the afore referred Judgment in this suit and subsequent decision in H.C.A. No. 3 of 1974 has further diluted the above Compromise, while giving an observation [as mentioned in the preceding paragraphs] about the status of Claimants based on registered Sale Deed [of 29.05.1968]. Thirdly, and admittedly, as also observed in the above earlier Judgment passed in this Suit that the said Defendants Nos. 3 and 6 have filed their separate written statement. It means that these two Defendants have taken an independent but different stance from the other Defendants about their sale transaction with Claimants. In addition to this, the said Defendant No.3 [Yaqoob] has specifically stated in his pleading / Written Statement as well as in his testimony about sale of his portion/share of land to the Claimants through the afore referred registered Sale Deed (Exhibit 24/21), hence, the plea of Plaintiffs' Advocate that said Defendant No.3 had already surrendered his right and interest as owner in the lands in question, is misconceived and meritless. Accordingly, C.M.A. No. 11671 of 2016 is dismissed. The next contention of Plaintiffs' side that afore referred Letter Patent Appeal (LPA) filed by present Claimants was dismissed and the sale transaction between them and Defendants Nos. 3 and 6 was/is thus illegal, in my considered view, hardly carries any weight, because in the said LPA, this Court neither gave any conclusive finding about the sale transaction between the above named Parties, nor on the factual aspect of the case, as according to the learned Division Bench, that would have been "contrary to a fair trial of the disputes which were existing between the parties". Secondly, at present, the possession of the lands in question is with Plaintiffs, therefore, the above contention has lost its significance. 26. P.W.-13-Plaintiff himself (Late Raza Hussain) in his cross-in-examination has acknowledged the fact about his knowledge regarding purchase of the subject land by the said Claimants and he himself produced the certified copy of the said Sale Deed as Exhibit 24/1. He has further admitted in his evidence that through the then Revenue Authorities; Deputy Commissioner and Mukhtiarkar, he was informed that a sale permission was given in respect of the subject land for its sale to the said Claimants. To a question, he has admitted that he did not send any notice to the Claimants for not entering into such type of sale transaction. In line 310 of his deposition, to a question, the said Plaintiff had replied that he was not party to the Partition Proceeding, which took place before the Deputy Commissioner, while denying that it was he (the Plaintiff) who drafted a compromise application between himself and Defendant No.3 (Muhammad Yaqoob). 27. A very significant question here would be that whether the subject lands mentioned in the said registered Sale Deed (Exhibit 24/1) were at the relevant time vested in the Vendors, that is, Defendants Nos.3 and 6 (Muhammad Yaqoob and Mst. Janat), when the same were sold out to the Claimants. In this regard, evidence of Muhammad Yaqoob (Defendant No.3), who was witness No.15, is of prime importance. In his examination-in-chief, he has given the facts that how he and his sister Mst. Janat (Defendant No.6) inherited the joint properties which were later partitioned by the then Revenue Authorities upon a joint application filed by other legal heirs, who are the said Defendants. He has further deposed that the Plaintiff (late Raza Hussain) took advantage of his
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position as a Lawyer of the paternal grandmother Mst. Shahar Bano, who actually was owner of a vast area of the land comprising around 900 Acres in various survey numbers in deh Hub. The said Defendant No.3 in his pleadings as well as in his evidence has specifically stated and admitted that he and his sister sold their lands to Malik Mir Hazar Khan (Defendant No.13) for a total sale consideration of Rs.1,09,500/- (Rupees One Lac Nine Thousand and Five Hundred Only) and Sale Deed (ibid) in this regard was signed before the Registrar. About his earlier compromise application filed in Suit, which was admittedly not given effect to, the said Muhammad Yaqoob stated that its contents were not read over to him by Plaintiff (late Raza Hussain). The evidence of - said Muhammad Yaqoob with regard to the Sale Deed remained consistent and unshaken. The evidence file shows that the same witness (Muhammad Yaqoob) also appeared as witness on behalf of other Defendants in another Suit No.224 of 1969, which deposition is available at page- 205 of the evidence file as Exhibit No.9. In his evidence, the said Muhammad Yaqoob (Defendant No.3) has brought on record the official partition of the lands inherited by the said Defendants and Order for the Partition (dated 15.05.1968) is available at page-207 as Exhibit 9/1, wherein various lands in different survey numbers are shown to be partitioned in accordance with the entitlement of the said Defendants including said Defendants Nos.3 and 6. According to this Official Partition these Defendants Nos.3 and 6 (Vendors) have inherited 299 Acres and 35 Ghuntas of land in Survey Nos.7, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 to 27, which, is the subject matter of the Sale Deed. The other significant aspect of this Partition Order is that its opening paragraphs show rather confirm the deposition of said Defendant No.3 [Yaqoob] that in fact a joint application was moved before the Deputy Commissioner by the present said Defendants, who were the legal heirs of Mst. Shahar Bano. It is also an admitted position that no appeal was preferred against this partition order passed by the then Deputy Commissioner. This partition was not a private one as stated by the other Defendants but an official one in terms of Section 135 of the Revenue Law, encompassing all questions including that of ownership/title of respective party/said Defendants. The above partition is a Partition Instrument in terms of Section 145 of the Revenue Law. It is also necessary to observe that even a…
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