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Petitioner: OSMAN YASIN VS Respondent: DEFENCE HOUSING AUTHORITY through Administrator and 7 JUDGMENT
Court Name: Sindh High Court Judge(s): Khadim Hussain Tunio Title:OSMAN YASIN vs DEFENCE HOUSING AUTHORITY through Administrator and 7
JUDGMENT
Reported As: 2018 YLR 3 Result: Suit decreed. Judgment JUDGMENT KHADIM HUSSAIN TUNIO, J.---The plaintiff has filed this suit for declaration, cancellation, possession, damages and permanent injunctions and prayed for following reliefs: 1. "To declare that the plaintiff is the lawful owner of the suit property bearing No, 157, 28th Street, Phase VI, Defence Housing Authority, Karachi, admeasuring 1000 Sq. Yards. 2. To declare that the act of Defendant No,1, transferring the suit property in the name of Defendant No,3, on the basis of forged and fictitious affidavit bearing No, 40749 dated 3rd March 1997 duly supported forged and fictitious NICs of the defendants Nos, 2 and 3, as illegal, unlawful and without any legal force. 3. To pass the judgment and decree against the defendant No, 1, to hand over the vacant peaceful physical possession of the suit property to the plaintiff along with damages of Rs, 5 Million (Rupees Five Million), as compensation/ damages for having illegally, unlawfully and without complying the legal formalities, transferred the suit property in the name of defendant No,3. And also, against the defendants Nos, 2 and 3, for Rupees 5 million each for playing fraud and forgery with the plaintiff, who is a highly respectable professional person. 4. To pass judgment and decree against the defendants Nos,4 and 5, and in favour of the plaintiff for Rs, 2,5 Million each for having involved in the purchase in the suit property by forged and fraudulent transfers. 5. To pass the judgment and decree against the defendant No, 6, and in favour of the plaintiff for Rs, 5 Million as compensation for having committed fraud and forgery by issuing forged NICs bearing Nos, 517-93-148851 and 449-88397134 to the defendants Nos, 2 and 3, on the bases of
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which all the defendants jointly, more particularly defendants Nos, 1, 2, 3 and 6 committed fraud and forgery. 6. To declare that the subsequent sale/purchase/transfer of the suit property from the defendant No,2 to defendant No, 5 is illegal, unlawful and without any lawful authority and the same declared null and void. 7. Cost of the suit. 8.Any other relief/reliefs which this Hon'ble Court deems fit and proper, in the circumstances of this case. " 2. Briefly facts of the instant suit as stated in the plaint are that the plaintiff is a highly skilled professional, having done his graduation in Civil Engineering Technology from NED Engineering University, Karachi and thereafter he did his Masters in Civil Engineering from the University of California Berkley, USA. The plaintiff is registered with the Pakistan Engineering Council as well as State Board of Professionals Registrations, State of California USA. He is lawful owner of a plot, bearing No, 157, 28th Street, Phase VI, Defence Housing Authority, Karachi, admeasuring 1000 Sq. Yards, herein after referred to as suit property, having purchased the same from one Mst. Tayyaba Fuzail wife of Fuzail Ahmed, resident of Bunglow No, 26 - B Block - P, North Nazimabad, Karachi, who was duly registered in category "B" of the defendant No, 1, vide registration No, AM-13505, after completing all the legal formalities as required bye laws and the rules/by laws of the defendant No, 1. It is also pertinent to mention that all the requisite fees/charges of the defendant No,1 were paid by the plaintiff. After completing all the formalities the defendant No, 1, vide their letter No, DHA/Y/AM-16887 dated 29th January 1988, informed the plaintiff that in response to the plaintiff's application dated,14.01.1988 for registration in category "B" he has been duly registered with the Defendant No,1, under category "B", vide registration No, AM-16887, after approval by the Executive board meeting No,1/88, held on 23.01.1988. Accordingly, the Transfer Order was issued by the defendant No,1, in favour of the plaintiff. The purchase of the suit property by the plaintiff was facilitated through the defendants Nos, 7 and 8, in whose knowledge it was that the plaintiff is permanently residing in USA and visits Pakistan very occasionally and that every minute detail was known to them and such a fraud and forgery could not be possible without their connivance and involvement. 3. The plaintiff, being a Pakistani by birth, of and on travelled to Pakistan to meet his relatives and friends, and on 29.12.1986 got married to one Mst. Anila Hashmi daughter of Tanveer Hussain Hashmi, having permanent residence at Lahore. This marriage took place at Lahore. The wife of the plaintiff accompanying him to USA, where the plaintiff was permanently residing and subsequently tie wife also obtained the citizenship of the United States of America. The plaintiff, whenever visiting Pakistan, used to visit the suit property in order to check the same and also to ascertain the market conditions concerning the value of the property, as well as, the possibility of constructing his own house in his native land, more particularly being a father of a minor daughter. On his visit to Pakistan in August 2000, when the plaintiff visited the suit property, to his utter shock and disbelief there stood a complete bungalow (double storey) with a name plate of one Muhammad Tahir, the husband of defendant No, 5 and also a notice that the suit property is FOR SALE and the suit property was locked. The plaintiff, on the next day, dispatched a letter dated 12.08.2000 to defendant No,1 informing them about the illegal and unlawful house constructed upon the property. 4.Later onwards, the plaintiff immediately after submitting his application with the defendant No,1 also met Major (Retd.) Sipra, who after going through the file of the plaintiff told him that the plaintiff in the year 1997 was declared dead by the defendant No, 3, who claimed to be the son of plaintiff and defendant No,2 who claimed to be the widow and mother of the defendant No,3 had given no objection to the defendant No,1 in favour of the defendant No,2 for transferring the suit
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property. The plaintiff submitted an application to SHO Darakshan Police Station, District South, Karachi, with regards to the fraud and forgery committed by the defendants Nos, 1, 2 and 8 and had particularly mentioned defendants Nos, 7 and 8, as strong suspects as they had the access, as well as knowledge of all the documents, as well as the facts. The plaintiff again visited the suit property in the daytime and inquired from the watchman about Muhammad Tahir, husband of defendant No,5. The watchman informed that the illegal and unlawful house is for sale and the person to be contacted was Mr. Humayun. The plaintiff then called Mr. Humayun, who in turn informed the plaintiff that the suit property, along with the illegally and unlawfully constructed bungalow is owned by the defendant No, 5. On the request of the plaintiff, the brother of the defendant No, 5. Namely, Humayun arranged a meeting with his sister in order to verify the papers/file. Consequently a meeting was arranged at the suit property wherein the brother in law of the plaintiff, namely, Iqbal Fazal Butt, accompanied the plaintiff to the suit property, where the husband of the defendant No,5, namely, Mohammad Tahir, his brother in law, namely, Humayun, were already present. The plaintiff showed the original files / papers and informed them that they have defective file. The representatives of the defendant No, 5, namely, Mohammad Tahir and Humayun, her husband and brother, respectively after the meeting promised to contact the plaintiff, but to date neither the defendant No, 5, nor his representatives have contacted the plaintiff, much contrary to the promise made. 5. In other words, the mala fide intentions and ulterior motives on the part of the defendant No, 5, is also evident. Had the hands of the defendant No, 5, would have co-operated with the plaintiff, who by this time had started running from pillar to post to save his life long earnings for his family members. It is needless to mention here, how money is earned in a foreign land, where virtually corruption does not exist and where there is nothing known as easy money. Every penny and every cent is earned through hard labor and nothing else. If cases like this persist, overseas Pakistanis will refrain from investing in their homeland, if there is no safety of their investments. The defendant No,1, vide there letter No, DHA/M/A-7106/Cord dated 25th November 2000, asked the defendant No, 6, to verify the genuineness of the National Identity Card of the plaintiff. The defendant No, 6, in turn, vide letter No, Regn. 107/3/00 Kar (East) T dated 13.02.2000, which in fact should have been 13.02.2001. Nonetheless the letter of the defendant No, 6 has been written in response to the letter of the defendant No,l. 6. One fails to understand, and even otherwise it is a matter of common sense, logically speaking the defendant No, 1 should have verified credentials of the defendant Nos, 2 and 3, who claim to be the wife and son of the plaintiff. Their credentials were never verified for the reasons best known to the defendant No,1 and why the verification of the NIC of the plaintiff, was required by the defendant No, 1, is beyond the imagination and reasonableness,- but again the defendant No, 1, is manned with a battery of cream retired Army personnel, and they know better right and wrong. The plaintiff apart from moving an application with defendant No,1, also moved an application with the Chief Executive of the Islamic Republic of Pakistan, and the Commander V Corp, Karachi, apprising them of the fraudulent transfer of the suit property and praying therein that justice be done to the plaintiff and initiate criminal proceedings against the persons/functionaries involved in this criminal act, but surprisingly to date no action has been initiated against the culprits. The suit property was transferred in the name of the defendant No, 3, on a no objection of the defendant No, 2, by the defendant No, 1, without obtaining any letter of Succession/Administration, and measurably on a bogus affidavit of the defendant No, 2, the suit property was transferred in the name of defendant No, 3. 7. The plaintiff after running from pillar to post managed a letter issued by the defendant No, 1, which is dated 10th March 2001, informing the plaintiff that the suit property was first transferred to the name of defendant No, 3, who claimed to be the son of the plaintiff. The defendant No, 2,
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claimed to be the widow of the plaintiff an the defendant No, 1, without demanding the letter of Administration/ Succession from the defendants Nos, 2 and 3, measurably and barely transferred the suit property on the basis of an affidavit of the defendant No, 2, giving no objection in favour of defendant No, 3. This act of defendant No, 1, is illegal, unlawful, unjustified and against the practice of law which requires obtaining a letter of Succession/Administration which is to be obtained by the legal heirs of the deceased in case of transfer of moveable/immovable transfer of property is involved. 8. In the instant matter, the connivance and involvement of the defendant No, 1, can be well judged from the fact that the defendant No,1, did not even bother to ask a nikahnama or a divorced letter from the defendant No, 2, as the defendant No,2, in her affidavit bearing No, 40749 dated 3rd March 1997 has stated that she is now married with one Muhammad Anwar Baig and prior to this man she was married to plaintiff. The National Identity Card of the defendants Nos, 2 and 3 have been issued by defendant No,6, thereby committing by fraud or forgery, hand in hand with defendant No, 1, so much so, no verification was demanded or carried out by the defendant No, 1, with regard to the NICs of defendants Nos, 2 and 3. The plaintiff, from the letter of the defendant No,1, dated 10th March 2001 that the defendants Nos, 2 and 3 after. active connivance of the defendant No, 1 by playing fraud and forgery, illegally and unlawfully sold the suit property to the defendant No, 5, the present occupant, who has illegally and unlawfully constructed a double storeyed bungalow. 9. The plaintiff has executed a Special Power of Attorney in favour of his brother in law, namely, Jawed Tanveer Hashmi son of Tanveer Hussain Hashmi resident of 222-C, Jauhar Town, Phase I, Lahore, holding NIC, bearing No,267-54-391932 for the purpose of this suit/suit property only. The cause of action accrued to the plaintiff, therefore, he has filed present suit against the defendants. 10.After service of the summons, the defendants Nos, 1, 5, 7 and 8 filed their written statements separately and denied the case of the plaintiff in toto. They submitted that the defendants had not committed any fraud or forgery in respect of the suit property. The suit property was transferred in favour of the plaintiff on the basis of proper documents as well as by adhering to the procedure in vogue for transfer of property to legal heirs after demise of the owner. They have also submitted that the transfer of suit property from the name of plaintiff to the legal heirs as well as subsequent transfer has taken place in accordance with procedure in vogue with the defendant authority. They have further submitted that the plaintiff did not acquire the ownership of the property in dispute at any time. They have further submitted that the plaintiff kept the property for open transfer in terms of rules, regulations and practice of the DHA. Also, that the defendant No, 5 is residing in the disputed property with her husband and children since its construction. The defendant further submitted that the transfer of the suit property in favour of the defendants No, 5 has been acquired lawfully for valuable consideration and in good-faith. The suit against the defendants Nos, 2 to 4 and 7 was ordered to be proceeded ex-parte vide order dated 09.08.2004, 30.08.2004, and 25.10.2004 respectively. 11.The following issues were framed by the court on 19.09.2005. ISSUES 1.Whether the plaintiff is the lawful owner of the suit property? 2.Whether the transfer of suit property by defendant No,1 in favour of the defendant Nos, 2 and 3 was authorized and lawfully made? 3.Whether the defendants Nos, 2 and 3 in connivance with defendant No,1 acquired the transfer of the suit property in their favour by fraudulent means and committed forgery, if so, its effect? 4.Whether the sale transaction as between defendant Nos, 2 and 3 and defendant No, 5 being based on fraud is liable to be cancelled? 5.Whether the defendant No,5 had obtained a registered sub-lease lawfully of the said plot in Form-A from defendant No,1, if so, its effect?
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6.Whether the defendant No, 5 had constructed a double stories bungalow prior of the filing of this suit on the said plot at her own cost in accordance with the plan duly approved by the competent Authority, if so, its effect? 7.Whether the plaintiff is entitled to claim damages from defendants, if so, what amount? 8.What should the decree be? 12. Plaintiff filed his affidavit in evidence. He produced his affidavit in evidence, passport No, 15357806 (first page only), transfer order dated 03.02.1998, photocopy of application for registration as member of DHA dated 24.01.1988, photostat copy of payment receipt No, 264855 dated 22.01.1988, number 264595 dated 18.01.198, photocopies of pay-order No, 158711 dated 16.01.1988 and P.O No, 158710 dated 16.01.1988, drawn on B.C.C.I., photocopy of transfer affidavit, sworn on 16.01.1988 undertaking of Mrs. Tayaba Fuzail wife of Fazail Ahmed (photocopy), photocopy of transfer order dated November-1987 duly cancelled (original in possession of DHA), photocopy of receipt for associate member dated 16.01.1988, photocopy of agreement to sell dated 18.01.1988 executed in between Mrs. Tayaba Fuzail and Osman Yasin, receipt of payment of Rs,4,00,000/1 (Rs, Four Lacs only), and nikah-nama of Mr. Osman Yasin, photocopy of application to the administrator by Osman Yasin dated August, 12, 2000, photocopy of application to SHO Drakhashan P.S. dated 14.02.2001 (all original seen and returned) at Exs. 5 and 5/1 to 5/16 respectively. The plaintiff was cross-examined by the learned counsel for the defendant No,1 and defendant No, 5 respectively. Thereafter, his side was closed. 13. On the other hand, Defendant No,1, DHA, filed affidavit in evidence of administrative office Major (Retd.) Shamim Ahmed Malik. He produced his affidavit in evidence, application submitted by Farooq Osman dated nill for transfer of plot in the name of legal heirs, in affidavit of Farooq Osman, Death certificate of Osman Yasin, Letter/Application dated nill received on 04.02.1997 moved by Farooq Osman for issuance of certified true copy of transfer order, photocopy of affidavit for loss of transfer order, photocopy of NIC of Farooq Osman bearing No, AX212679, photocopy of cuttings of Jasarat newspaper dated 01.02.1997, daily The News dated 1st February 1997, photocopy of letter dated 20 February 1997 bearing file No, DHA / G/A Coord, photocopy of letter dated 07.03.1997 issued by DHA to Farooq Osman along with an affidavit, photocopy of NIC No, BK960837 of Mst. Tahira Anwar, photocopy of transfer order dated 03.02.1988, photocopy of transfer order dated 09.04.1997, photocopy of transfer order dated 24.04.1997, photocopy of pro-forma, photocopy of statement of account, photocopies of NIC AB38476 and NIC AX212679 of Siddique Sharif and Farroque Usman, photocopy of mutation application by Farroque Usman, photocopy of transfer order dated 09.04.1997, Photocopy of transfer affidavit, photocopy of undertaking dated nill, photocopy of transfer order dated 5.5.1997), photocopy of proforma of minutes sheets, photocopy of statement of account, photocopies of NIC of Siddique Sharif and Mst. Yasmin Begum, photocopy of transfer letter in favour of Mst. Yasmin Tahir, photocopy of transfer order dated 22.4.1997, photocopy of affidavit of Siddique Sharif and photocopy of undertaking of Siddique Sharif (all original seen and returned) at Ex.D-6/1 and Ex.D-6/31 respectively. Defendant No,5 filed affidavit in evidence of her attorney and husband namely Muhammad Tahir. He produced his affidavit in evidence, photo-copy of general power of attorney, photo-copy of sale agreement dated 25/-/1997(sic), photocopy of receipt nill of Rs, 10 Lac (Rupees ten Lac), photocopy of transfer affidavit submitted by Siddique Sharif, photocopy of application for mutation/ transfer made of Siddique Sharif, photocopy of Loan affidavit of Siddique Sharif, photocopy of transfer order dated 05/May/1997, photocopy of handing/taking over certificate No, 7106, photocopy of Form A sub- lease in favour of Mst. Yasmin Tahir, photocopy of application for issuance of site plan, photocopy of site plan, photocopy of approval letter dated 02.10.1997, photocopy of regularization dated 22.8.2000 (all original seen and returned) at Ex.D-6/A/1 to D-5/A/14 respectively. They were cross- examined by the Learned Counsel for the plaintiff. Thereafter, their side was closed.
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14.I have heard the learned counsel for the plaintiff, defendant No,1 and defendant No,5. Perused the material available on record carefully with their assistance. 15.Learned counsel for the plaintiff has argued that the plaintiff has proved his case by adducing oral as well as documentary evidence; that the plaintiff has been cross-examined by the Defendants counsel but his evidence has not been shattered by the defence; that the plaintiff produced documentary evidence and oral evidence and proved that he is lawful owner of the suit property; that the Defendants have got transferred the suit property fraudulently by preparing forged and fabricated documents; that the Defendants caused damages to the plaintiff, committed cheating by preparing forged documents and transferred the suit property in their favour; that the Defendants failed to prove that the suit property was transferred in their favour in lawful manner. 16.16. Learned counsel for the Defendant No,1 argued that the plaintiff has not approached the court with clean hands; that the time is not essence of contract; that the suit is bad for necessary party; that the principle of aged person that the plaintiff has made admission in his evidence. He has cited handbook relating to Rules of DHA, Ch. Muhammad Shafi v. Shahmim Khanum (2007 SCMR 838-842), Muhammad Hussain and others v. Dr. Zahoor Alam (2010 SCMR 286-299+, Mst. Maqbool Begum and others v. Gullan and others (PLD 1982 SC 46-48), Lahore Cantt Cooperative Housing Society Ltd. Through Secretary v. Muhammad Anwar and 11 others (2007 CLC 160-162), All Muhammad and 2 others v. Gulfam and another (PLD .1983 Karachi 99-111) and Muhammad Bashir v. Muhammad Shafi 1984 CLC 609 = 1984 MLD 826. 17. Learned counsel for the Defendant No,5 has argued that the Defendant No,1 has transferred the suit property in lawful manner in favour of the Defendant No,5; that the Plaintiff has not made any allegation of fraud, concealment of facts or misrepresentation against the Defendant No,5 in the plaint and evidence; that the plaintiff has not alleged any specific allegation of fraud; that nothing has been brought on record regarding visits made by the plaintiff from time to time to the suit property; that the plaintiff has not approached the Defendant No,1 nor made any payment since 1988 to 2000; that the plaintiff has not disclosed the date of his arrival in Pakistan; that the plaintiff has made many allegations against Defendant No,1 but could not substantiate the same; that the plaintiff has not challenged authenticity or the genuineness of the Death Certificate issued by the KMC; that the Defendant No,5 is bona fide purchaser of the suit property and same is covered by the provision of Section 41 of Transfer of Property Act. The Defendant No,5 has constructed the house within four years during said period plaintiff never contracted with the Defendant No,1 or Defendant No,5. He has cited case law reported in Kanwal Nain and 3 others v. Fateh Khan and others (PLD 1983 SC 53), More Khan and others v. Imam Bur and others (PLD 1959 (W.P) Karachi 767), Mst. Asia Latif v. Tariq Muhammad Khan and 8 others (2007 YLR 1636), Ijaz Baig and 16 others v. Irshad Baig and 2 others (2003 CLC 1805), Muhammad Mashooq and another v. Rehmat Ali alias Ishaq and 14 others (2007 CLC 1679), Talib Hussain v. Babu Muhammad Shafi and 12 others (PLD 1987 Lahore 04) and Atta- ur-Rehman and another v. Abdul Wahab and 13 others (2007 MLD 1605). 18.I have given due consideration to the contentions raised by the learned counsel for the respective parties and carefully considered the material available on record with their assistance. My findings on the above issues with reasons are as under:- FINDINGS Issue No,l. Affirmative Issue No,2. Negative Issue No,3. Affirmative
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Issue No,4. Affirmative Issue No,5. Negative Issue No,6. Accordingly Issue No,7. Accordingly Issue No,8 Suit Decreed with no order as to costs. ISSUE NO.2 'Whether the transfer of suit property by defendant No,1 in favour of the defendants Nos,2 and 3 was authorized and lawfully made?' 19.The burden to prove this issue squarely falls upon the defendants because it (transfer in favour of defendant Nos,2 and 3) has prima facie resulted in instant cause. Before examine the merits of the instant case in search of an answer to above issue, the peculiar facts of instant case ask me to first say that it was/is always the authority (defendant No,1) to examine competence and validity of any move for change of transfer therefore, whenever a question arises with regard to validity of a transfer, the initial burden shall always remain upon authority and beneficiary to establish that it was valid and lawful. The custodian of record of the rights should always establish/prove to have acted bona fide, fairly and judiciously so that this (exercise of procedure) be not made as a tool to defraud or deprive one of his legitimate and lawful right or property. A sense of assurance of proper thrashing / scanning of every single attempt for change of title or right, as per dictates of law, shall surely discourage fraudulent or fictitious application (s). Worth to add that even in absence of relevant rules, the authority shall not stand absolved from establishing good faith, honestly and to have acted within the precincts of the power before insisting validity of an action. Reference may be made to the case of Pir Imran Sajid (2015 SCMR 1257) wherein it is held as:-- "It is now well laid down that the object of good governance cannot be achieved by exercising discretionary powers unreasonably or arbitrarily and without application of mind but objective can be achieved…
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