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Petitioner: Safdar Yar Khan, etc VS Respondent: Mohammad Iqbal Khan, etc
Court Name: Lahore High Court Judge(s): Ahmad Nadeem Arshad Title: Safdar Yar Khan, etc vs Mohammad Iqbal Khan, etc Case No.: Regular Second Appeal No.56 of 2005 Date of Judgment:2023-02-23 Reported As: 2023 LHC 1048 Result: Appeal Dismissed
JUDGMENT
JUDGMENT AHMAD NADEEM ARSHAD, J. Through this Regular Second Appeal appellants have assailed the vires of judgments & decrees of the Courts below dated 26.03.2004 and 07.06.2005 whereby suit of respondent No.1 was decreed concurrently. 2. Tersely, necessary facts forming background of proceedings in hand are that plaintiff/respondent No.1 Muhammad Iqbal Khan (hereinafter referred to as "respondent No.1") instituted a suit for declaration on 09.10.1996 titled "Muhammad Iqbal Khan V. Collector, etc." against the Collector and legal heirs of Muhammad Anwar Khan Lodhi/defendants No.2 to 11/appellants & respondent No.2 (hereinafter referred to as "Appellants") by contending therein that plot No.8(19-20) situated in Block No.E, Khasra No.9976 measuring 06 Marlas & 16 1/2 feet, Dera Ghazi Khan (hereinafter referred to as "suit property") was an evacuee property which came in the custody of Rehabilitation Department and after the diminishing of Rehabilitation Department, ADC(G) is custodian of evacuee properties; that respondent No.1 moved an application to the Rehabilitation Department that the suit property be given to him for consideration and as such he paid an amount of Rs.4770/- and got the suit property; that after making due payment respondent No.1 became exclusive owner of the suit property but appellants, by taking advantage of his absence, illegally occupied over the suit property in the month of May, 1998; that respondent No.1 had appointed predecessor of the appellants namely Muhammad Anwar Khan as his special attorney to look after the affairs of suit property; that from inspection of Rehabilitation record it came to his knowledge that P.T.O was issued in the name of Muhammad Anwar Khan, whereas, it was to be issued in his name; that he felt need of inspection of the record as appellants were adamant to sell the plot upon which he came to know that predecessor of appellants have
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fraudulently got issued P.T.O in his name; that he time & again asked them to get their names deleted from the record of Rehabilitation Department but they refused to do so, which constrained him to institute the suit. 3. Contrarily, appellants contested the suit by filing written statement in contrast whereby they raised certain legal as well as factual objections. They asserted that suit property has been transferred in the name of their predecessor namely Muhammad Anwar Khan through Transfer Order (PTD No.61666 dated 09.01.1974) from Rehabilitation Department; that the Rehabilitation Laws have been repealed since July 1974; that against the Transfer Orders no appeal, revision, review have been filed, therefore, it attained finality, hence, it was a past & closed transaction; that the Court has no jurisdiction to entertain the suit; that respondent No.1 has not challenged Provisional Transfer Order and Transfer Order with regard to the suit property, therefore, suit is not maintainable in its present form; that the plaint does not disclose any cause of action; that Provisional Transfer Order and Transfer Order with regard to suit property was issued in the name of Muhammad Anwar Khan in the years 1960 & 1974, therefore, the suit is not within time; that respondent No.1 has no possession over any portion of the suit property; that the value for the purpose of Court fee and jurisdiction was not correctly assessed; that respondent No.1 is real brother of original allottee Muhammad Anwar Khan and he admitted him owner in possession of the suit property in his lifetime, therefore, he is estopped to file the suit from his own words & conduct; that parties settled their disputes alongwith the dispute of suit property amicably wherein respondent No.1 admitted Muhammad Anwar Khan as owner of the suit property; that the suit is bad due to non-joinder and mis-joinder of parties. While replying on facts, they admitted that suit property is an evacuee property and after diminishing of Rehabilitation Department it was in the custody of Province of Punjab. They further maintained that suit property was rightly transferred in the name of their predecessor and alleged that respondent No.1 did not give any power of attorney to their predecessor with regard to the suit property. Learned Trial Court reduced the controversy in the following issues: ISSUES: 1. Whether the plaintiff is owner in possession of disputed plot No.8 block-E DGKhan city? OPP 2. Whether the plaintiff deposited the sale price of the disputed plot to the rehabilitate Department? If so its effect? OPP 3. Whether the P.T.O issued in the name of Muhammad Anwar (special attorney of the plaintiff) is against facts and inoperative against the rights of the plaintiff? OPP 4. Whether the Civil Court has no jurisdiction to adjudicate the matter? OPD 5. Whether the suit is not maintainable in its present form? OPD 6. Whether the plaintiff has no cause of action to file this suit? OPD 7. Whether the suit is barred by limitation? OPD 8. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 9. Whether the suit is bad due to non-joinder of necessary parties? OPD 10. Relief. 4. After recording evidence of the parties pro & contra, oral as well as documentary, learned Trial Court decreed the suit vide judgment & decree dated 26.03.2004 in the following manner: "...the suit of the plaintiff is decreed to the extent that record of Settlement Department/Revenue Department is required to be corrected in favour of the plaintiff and he is also entitled for its possession. To the extent of mesne profits his claim is rejected and there is no evidence in this respect from his side. The parties are left to bear their own cost." 5. Feeling aggrieved, appellants preferred an appeal which was dismissed by the learned appellate Court via judgment & decree dated 07.06.2005. Being dissatisfied, they approached this Court through Regular Second Appeal which also met the same fate and dismissed through
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judgment dated 26.10.2010. Appellants called into question the vires of the judgment of this Court by preferring Civil Appeal (No.88 of 2011) before august Supreme Court of Pakistan whereby the matter was remanded vide order dated 18.01.2016 with the following observation: "Learned ASC appearing on behalf of respondent No.1 contended that what he is concerned with is final adjudication of the case whether it is done by this Court or on remand by the High Court or even the Notified Officer but in no case its procrastination is in the interest of justice or the parties as it would tend multiply their agonies. In these circumstances, all the learned ASCs for the parties agree that the matter be remanded to High Court for decision afresh by attending to all the questions raised in this case including the application moved by respondent No.2 before the High Court, without creating another occasion for remand of the case. In this view of the matter, and with the consent of learned ASCs for the parties, we allow this appeal, set aside the impugned judgment and send the case to the High Court for decision afresh as hinted to above. Let this case be given priority in view of its age as it was instituted in the High Court in 2005. Needless to say the High Court may examine the original record. As the learned Judge hearing the case earlier, has expressed his view, let this case be listed before some other Judge of the High Court." 6. The Hon'ble Supreme Court of Pakistan while remanding the matter to this Court directed to attend the application moved by respondent No.2 for setting aside of ex-parte judgment and decree. Perusal of record it appears that respondent No.2 did not move any application before this Court for setting aside of ex-parte judgment and decree. The learned trial court proceeded ex- parte against the respondent No.2 vide order dated 27.06.1997 after publication in the newspaper and decreed the suit after full-fledged trial vide judgment and decree dated 26.03.2004. Respondent No.2 (Arshad Yar Khan Lodhi) moved an application on 15.04.2004 for setting aside of the ex-parte judgment & decree dated 26.03.2004 before the learned Trial Court, which was resisted by respondent No.1 through filing its contesting written reply. Learned Trial Court, in the light of divergent stances of the parties, framed issues and invited the parties to produce their respective evidence. During the proceedings of said application, respondent No.2 left to attend the Court, therefore, learned Trial Court dismissed his application for non-prosecution vide order dated 04.12.2012. Respondent No.2 moved an application for its restoration which was allowed vide order dated 19.12.2013 and restored his application. Subsequently said application was adjourned sine- die vide order dated 06.11.2014. When confronted to the learned counsel for respondent No.2 namely Sheikh Muhammad Shafi-ur-Rehman Advocate that how this Court can decide said application of respondent No.2 for setting aside ex-parte judgment and decree of learned trial court pending before the said court. He frankly conceded that this Court has no jurisdiction to set-aside the judgment and decree of learned Trial Court at this stage on the application of respondent No.2 which is pending before the learned trial court. However, he states that respondent No.2 does not press his application for setting aside ex-parte judgment & decree moved under Order IX Rule 13 C.P.C. and seeks to withdraw it if an opportunity of hearing is provided to him, therefore, said application of respondent No.2 is dismissed as withdrawn. 7. I have heard learned counsel for the parties (including respondent No.2) at length and perused the record with their able assistance. In addition to this, I have also summoned the original record of Settlement & Rehabilitation Department and gone through the same carefully. 8. Admittedly, suit property bearing plot No.8 (19-20) situated in Khasra No.9976 measuring 06 Marlas & 16 1/2 feet was an evacuee property which was allotted by Settlement and Rehabilitation Department. The stance of respondent No.1 is that suit property allotted to him against his reservation and he paid the price of the suit property and appointed Muhammad Anwar Khan Lodhi as his special attorney to look after the affairs of the suit property but he fraudulently got transferred the same in his name. Whereas, version of the appellants is that suit property was originally allotted to their predecessor namely Muhammad Anwar Khan through Provisional
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Transfer Order in the year 1960 and thereafter Transfer Order was also issued in his name in the year 1974 and he was remained occupant of the suit property during his lifetime and after his demise appellants being his legal heirs occupied the same. Learned Trial Court with regard to said controversy framed issues No.1 to 3 and decided the same in favour of respondent No.1 and said findings were upheld by the learned first Appellate Court. In order to reach a just conclusion, it is better to evaluate the evidence produced by the parties both oral as well as documentary. 9. From scanning of record it appears that respondent No.1 got recorded his statement as P.W.1 and produced Gull Muhammad Khan as P.W.2. In documentary evidence, he produced thirteen documents as Exh.P.1 to Exh.P.13. On the other hand, appellants produced Sajjad Hussain ASI as D.W.1, Muhammad Shahzad Khan as D.W.2 and one of the appellants namely Muhammad Asif Lodhi appeared as D.W.3. They produced fifteen documents as Exh.D.1 to Exh.D.15. 10. Respondent No.1 while recording his statement as P.W.1 deposed that he is owner of the suit property on the basis of reservation of Rehabilitation Department and he paid Rs.4770/- as its price. He explained that he made partial payment through claim and remaining amount through bank challan. He maintained that Anwar Khan Lodhi was his elder brother who was used to initiate any proceedings or moved any application to Rehabilitation Department on his behalf being his special attorney. Further maintained that he appointed him as attorney because he was not residing there. Respondent No.1 also produced Gull Muhammad Khan as P.W.2 who supported his version. 11. Respondent No.1 produced copy of an application moved to Deputy Settlement Commissioner D.G Khan on 29.09.1964 as Exh.P.1. Perusal of said application it appears that it was moved on his behalf through his special attorney. Said application was moved through signature of Anwar Khan Lodhi. It was disclosed in the said application that property No.19-20/9976, Block No.E, D.G Khan was transferred to him and he showed his intention to pay the balance transferred price of Rs.2826/- towards the said property and wants to clear the total dues vide deed of association and attached CB No.1433. The objection of the appellants is that at the bottom of application words "for Muhammad Iqbal Khan through special attorney" were subsequently interpolated. It is a certified copy issued by relevant department and attached presumption of correctness being a public document. Appellants did not raise any said objection before proper forum, therefore, this objection has no force. 12. Respondent No.1 produced copy of an application dated 06.01.1966 addressed to the Deputy Settlement Commissioner as Exh.P.2 wherein he prayed for issuance of PTO of Plot No.19-20 (Khasra No.9976). Said application was also shown to be moved through A.K. Lodhi, Special Attorney of respondent No.1. The appellants also alleged interpolation in this application by maintaining that words "special attorney and elder brother of the allottee named Muhammad Iqbal Khan Lodhi s/o Muhammad Ayyub Khan resident of House No.9, B.'E' D.G.Khan" were subsequently added. It is a certified copy issued by relevant department and attached presumption of correctness being a public document. Appellants did not raise any said objection before proper forum, therefore, this objection has no force. 13. Exh.P.3 is challan form whereby an amount of Rs.1944/- as outstanding consideration price of plots No.19-20 was deposited by respondent No.1 through Faiz Muhammad Khan. Said payment was made on 28.02.1974. Appellants alleged that it is a forged document. It is a certified copy issued by relevant department and attached presumption of correctness. The Settlement & Rehabilitation Department acknowledged the said deposit, hence, appellant s objection has no force.
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14. Exh.P.4 is also copy of challan form wherein Rs.23.85 were deposited on account of settlement fee of plots No.19-20 Khasra No.9976 from respondent No.1. Said amount was tendered by A.Q. Khan and deposited on 01st April 1965. It is also a certified copy of original record. 15. Exh.P.5 is deed of agreement dated 29.09.1964 which was executed between Muhammad Naeem Khan and respondent No.1 through his special attorney Anwar Khan Lodhi, wherein Muhammad Naeem Khan agreed that the amount of Rs.2826/- deposited by him will be adjusted from CB No..DGK.1433/30607 in the PTD case of House No.153 Block-E D.G. Khan towards the balance of transfer price. Through this document, Muhammad Naeem Khan agreed to give authority to respondent No.1 to use his compensation book towards payment of the price of suit property transferred to him by the Deputy Settlement Commissioner. Appellants denied existence of said agreement. However, it is matter of record that payment of Rs.2826/- was made in the light of said agreement. Predecessor of appellants signed this document on behalf of respondent No.1 as his special attorney. 16. Exh.P.6 is copy of application form for permanent transfer of evacuee property, bearing registration No.6340 dated 31.03.1965, wherein name of respondent No.1 is written as applicant and detail of evacuee property was mentioned as Khasra No.9976 Block No.E, 19-20 D.G. Khan. At the backside of said document price was mentioned as Rs.4770/- and settlement fee Rs.23.85. It is a printed form wherein entries were hand written. 17. Exh.P.7 is an application dated 09.11.1960 moved by A.K Lodhi (predecessor of the appellants) on behalf of respondent No.1 and prayed that suit property be transferred in his name. Appellants also raised objection upon the said Exh.P-7 by maintaining that said application was also interpolated. They alleged that actually first para was written as under:- "I most respectfully submitted that the above plot may very kindly be transferred and reserved in may name...." But after cutting the word "my" word "the" was inserted and words "of Muhammad Iqbal Khan" were added and made this para as under:- "I most respectfully submitted that the above plot may very kindly be transferred in the name of Muhammad Iqbal Khan....." At the bottom "A. K. Lodhi s/o Muhammad Ayyub Khan" was manipulated and made it "A.K. Lodhi s/a for Muhammad Iqbal Khan". It is also a certified copy of a record maintained by public Department. Appellants did not move any objection before the concerned Department for such alleged interpolation. 18. Exh.P.8/Exh.D.10 is Provisional Transfer Order No.090376 dated 31.12.1960 wherein it was disclosed that suit property was transferred to A.K. Lodhi. Said letter was issued by Deputy Settlement Commissioner. 19. Exh.P.9/Exh.D.11 is Transfer Order No.61666 dated 09.01.1974 wherein suit property was transferred in the name of predecessor of the appellants namely A.K. Lodhi. In the said Transfer Order, transfer price Rs.4470/-, Settlement Fee Rs.22/35 total 4492/35 was shown outstanding in the schedule A and in schedule-B it was stated that Rs.1944 was paid in cash, whereas, Rs.2826 adjusted from C.B No.DGK 1433/30607. There are also two cuttings in the said document. "Iqbal" was replaced by "Ayub" and Iqbal was replaced by "Ayub". Spelling of Ayub and handwriting of both the cuttings are different. First cutting was made through black ink with an initial in green ink. Exh.P.9 showing Ayub with spelling of "Ayub", whereas, Exh.D.11 showing spelling as "Ayyub". Whereas, second cutting was cutting was made through green ink and Ayub was also written in green ink. Said cutting were made on 27.11.1980 much after issuance of original Transfer Order which was issued on 09.01.1974. It appears that said cutting were made to accommodate appellants.
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20. Exh.P.10 is an application moved by respondent No.1 to the ADC(G)/DSC D.G Khan for inquiry and correction of Transfer Order dated 22.09.1980 regarding plot No.19-20. On the backside of said application, report was made on 21.10.1996 by Fayyaz Baig, Settlement Clerk, wherein it was disclosed that from the perusal of file it appears that application for transfer of the suit property was moved by Muhammad Iqbal Khan applicant through A.K Lodhi and all dues were paid by said Muhammad Iqbal and application for issuance of P.T.D was also moved on his behalf through his brother A.K Lodhi but for the unknown reasons PTO was issued in the name of applicant s brother. 21. Exh.P.11 is attested copy of register wherein it was disclosed that amount Rs.2826 was adjusted vide CB No.1433/30607 of No.0714D.G K and an amount of Rs.1944/- was paid in cash vide challan No.51 dated 28.02.1974. A note was also given that an agreement regarding compensation book No.DGA-1433 was attached with file which was not allowed and through said agreement amount Rs.2826 was obtained. 22. Exh.P.12 is also attested copy of register wherein at serial No.1384 T.O No.61666, name of A.K Lodhi s/a Muhammad Iqbal Khan with regard to plot No.19/20 was mentioned. 23. Exh.P.13 is copy of special power of attorney dated 24.11.1959 wherein respondent No.1 namely Muhammad Iqbal Khan appointed his real elder brother namely Anwar Khan Lodhi as his special attorney in the following manner:- "By this power of attorney, I, Mohd Iqbal Khan Lodhi s/o late Mohd Ayub Khan resident of Karachi do hereby constitute and appoint my elder (real) brother namely Mr. Anwar Khan Lodhi s/o late Mohd Ayob Khan special attorney for me, in my name and on my behalf in my claim case No.A- SH-155/57 decided by appeal at Sukkur, in the court of By. Claims Commissioner, Sukkur, to conduct the said case, to make statements in the court, to make negotiation, to receive compensation book, to realize compensation, to file and withdraw documents, to engage advocates if necessary, to issue receipts and discharges, and to do all other lawful acts and things in connection with the realization of compensation of the said case as effectually as I could do if I were personally present." Perusal of said special power of attorney it appears that it was notarized by the Notary Public at Karachi. It is evident from the record that respondent No.1 appointed Anwar Khan Lodhi as his attorney in appeal A-Sh-155/57 with regard to claim registration No.7 dated 07.07.1955. Perusal of order dated 08.04.1959 passed by Deputy Claims Commissioner Sukkur (available in the original file), it appears that while deciding review petition moved by predecessor of appellants and respondent No.1 passed certain observations. Said order disclosed that they were declared displaced persons and that their properties were taken by Bharti custodian of Evacuee Property. In pursuance of said order further progress was made for allotment of properties in lieu of their claim form. Suit property was also reserved and allotted in progress of said order. Respondent No.1 appoint Muhammad Anwar Khan his special attorney to pursue the matter. Therefore, it cannot be said that Muhammad Anwar Khan Lodhi was not attorney of respondent No.1 with regard to suit property. It is matter of record that said Muhammad Anwar Khan Lodhi used said special power of attorney in the Settlement and Rehabilitation Department. He posed himself as special attorney of respondent No.1 to get transfer the suit property in his name. 24. In rebuttal, appellants produced D.W.1 Sajjad Hussain ASI who brought record of application moved by respondent No.1 and the proceedings of inquiry conducted upon said application. 25. Muhammad Shahzad Khan got recorded his statement as D.W.2 and deposed that parties are his paternal uncle. He also deposed that with regard to the suit property a Punchayat was convened in their house wherein parties and his father and his paternal uncle Muhammad Nawaz were present and it was settled that suit plot would remain with Muhammad Anwar Khan Lodhi and
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his legal heirs. He further stated that he has seen possession of Muhammad Anwar Khan upon the suit property since his childhood. He disclosed during cross-examination that a compromise deed was executed and he did not know from whose possession now it is. He was unable to tell that from when Anwar Khan was became owner of the suit property. He did not know, why disputes were arisen between plaintiff and Anwar Khan. He further deposed that he was asked by Asif Khan (one of the appellants) to give evidence. One of the appellants namely Muhammad Asif Lodhi appeared as D.W.3 and deposed that suit property is in their ownership and it was reserved to his father Anwar Khan Lodhi and allotted to him in the year 1960. P.T.D was issued in year the 1974. He further deposed that parentage of his father was wrongly written in Transfer Order which was later on corrected. He also deposed that dues of Rehabilitation Department with regard to the suit property were paid by his father. During cross-examination, he deposed that the reservation application was manipulated by respondent No.1. He stated that his father died in the year 1990-91. He stated the suggestion incorrect that price was paid by respondent No.1. 26. Appellants produced copy of application for registration of case moved by respondent No.1 as Exh.D.1, copy of letter qua droppage of inquiry dated 05.06.2000 as Exh.D.2, revise final report as Exh.D.3 (author of said Rapat not produced by appellants and he also did not finally concluded the matter. His report is just his observation), copy of statement of Muhammad Nawaz Khan as Exh.D.4, copy of statement of Muhammad Ejaz Khan as Exh.D.5, copy of statement of Arshad Yar Khan as Exh.D.6 (said statements have no evidentiary value as neither they appeared before the Court to verify its contents nor they faced the music of cross-examination), copy of letter issued by the office of Deputy Settlement Commissioner as Exh.D.7 wherein A.K Lodhi was asked to deposit the remaining amount of Rs.4770 within one month, copy of notice under para 24 of the schedule to the Displaced Persons (compensation & rehabilitation) Act, 1958 and para 2 of Settlement Scheme No.VIII in the name of Anwar Khan Lodhi as Exh.D.8, wherein it was described that property was…
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