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Petitioner: Mst. NASEEM ZEHRA and others VS Respondent: GHAYAZ AHMED and others
Court Name: Sindh High Court Judge(s): Salahuddin Panhwar Title: Mst. NASEEM ZEHRA and others vs GHAYAZ AHMED and others Case No.: Second Appeal No, 52 & 57 of 2018 Date of Judgment:2018-05-31 Reported As: 2019 CLC 1925, PLJ 2019 Karachi 79 Result: answered accordingly
JUDGMENT
JUDGMENT Captioned appeals assail judgment dated 10.04.2018 passed by IIIrd Addl. District Judge, Karachi Central dismissing Civil Appeals No, 147 & 148 of 2016 filed against consolidated judgment and decree dated 09.09.2016 of the trial Court in Civil Suits No, 929/2002 and 620/2007 whereby Suit No, 929/2002 was decreed to the extent of prayer clauses A to F while Suit No, 620/2007 was dismissed. 2. Succinctly , facts leading to filing of these appeals are that plaintif fs Ghayaz Ahmed and Muhammad Sikandar Zulqarnain (respondents herein) filed Civil Suit No, 929 /2002 for possession, declaration, mesne profit and injunction against the appellant and others, while later on plaintif f Mrs. Naseem Zehra (appellant herein) filed civil Suit No, 620/2007 for Declaration, permanent injunction and specific performan ce of contract; both these suits were consolidated vide order dated 24.10.2010 treating Suit No, 929 /2002 as leading one wherein it was pleaded that plaintif fs/respondents are brothers and sons of late Abdul Hakim son of Abdullah who was fully seized and possessed and well sufficiently entitled to a lease hold property bearing No, A-359/12, measuring 200 sq. Yards situated in Scheme No, 16, Federal 'IT Area, Karachi, duly leased out in their favour vide Registration No, 5017 dated 10.12.1982; that late Abdul Hakim during his life time gifted the said properly to the plaintif fs who accepted the said gift and occupied the said property vide Registration No, 164-8 dated 5.5.1 984, the plaintif fs were in lawful occupation and use of the said property since beginning and lived there up to the year 1993 without any obstruction and thereafter due to political crisis in the city of Karachi and especially in the area of Federal B Area where the said property was located, the plaintif fs shifted to Malir and started living therein along with their elder brother , mother; that the plaintif fs while leaving the said property they also left valuable articles therein worth Rs,50,000/- (Rupees Fifty Thousand) and locked the inner doors as well as main gate door of the said property; plaintif fs as routine practice were looking after the said property twice/thrice a month regularly without fail; that on or about 14- 06-1997 Plaintif f No, 1 on usual visit went to the said property and found saw that some unknown persons are
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living in the said property without their consent illegally and unlawfully by breaking open the inner doors locks as well as outer door lock of the said property and after due enquiry made by plaintif fs, it was transpired that the Defendant No, 1 has illegally and unlawfully trespassed into the said property by breaking open the lock and thus committed offence punishable under the law; that Plaintif f No, 1 lodged a complaint on 16.06.1997 against Defendant No, 1, whereupon SHO Gulberg Police Station called the parties in the police station and recorded statements, during enquiry , conducted by the Police officer, the Defendant No, 1 promised to vacate the said property within one month thereof however inspite of the said undertaking failed to honour his commitment to vacate the said property . It was the case of the plaintif fs before the trial Court that they have never appointed any attorney in respect of said property , and the Defendant No, 1 after occupying the said property illegally , made certain changes in the said property resulting thereby impaired its value; that Defendant No, 1 was in unauthorized use and occupation of the said property since 14.6.1997 and is liable to pay compensation/mesne profits to the plaintif fs as well for such un-authorized wrongful use and occupation hence sent legal notice to Defendant No, 1 asking to vacate, and hand over vacant possession of the said property which was not replied hence plaintif fs filed suit for following reliefs;-- (a) A decree for possession be passed against the Defendant No, 1 directing him to hand over the plaintif fs the actual vacant and physical possession of the property bearing No, A-359/12, situated in F.B Area, Karachi, on account of unauthorized occupation and used by the Defendant No, 1. (b) Declaration that the plaintif fs are the absolute owners of the suit property viz. A-359/12, measuring 200 sq. Yards situated in F.B Area, Karachi with its construction thereon and that the Defe ndant No, 1 being in occupation thereof himself or through his men, agents or assigns, attorney , principal, as trespasser liable to be evicted therefrom. (c) A decree for Rs,9000/- being the amount of mesne profit for the period from 14.6.1997 to 31.7.1997, Rs, 6000/- per month against the Defendant No, 1 favour of the plaintif fs. (d) A decree for future mesne profit at Rs,6000/- per month from the date of the suit till the possession of the suit property is delivered by the Defendant No, 1 to the plaintif fs. (e) Permanent injunction restrain the Defendant No, 1 and his agents attorney sub-ordinate, assign, from parting with or handling over, alienating, mortgagee transferring, selling, disposing of the suit property or portion thereof in manner whatsoever which may be preju dice or adversely effect the plaintif fs proprietary or possessory rights in respect of the suit property or any portion thereof. (f) Permanent injunction be issued against the Defendants No, 2 & 3 retraining them from mutation, transferring, registration by themselves or by any other Sub-Registrar subordinate to the Defendant No, 3 of any document including General Power of attorney in respect of the suit or any portion/part thereof effecting tending to effect plaintif fs proprietary and possessory right in respect of the said suit property or ant parts thereof excepting the documents presented registra tion, mutation by the plaintif fs themselves. (g) Costs of the suit, and (h) Any other and/or better relief which this Honorable Court may deem fit and proper under the circumstance of the case. The Defendants No, 1, 2 & 6 filed their written statements, whereas Defendants No, 3, 4 and 5 prefer not to file written statements. The Defendant No, 1 pleaded that the Suit fails for mis-joinder and non-joinder of parties and hit by the provisions of Sections 42 and 56 of the Specific Relief Act, and Section 9, C.P.C. as well Order VII Rule 11 C.P.C.; that the suit is not maintainable in law in as much as it has neither cause of action against the Defendant No, 1 nor there is any balance of convenience in favour of the plaintif fs and it is barred by law and also undervalued; that the plaintif fs have wron gly filed the suit for possession, declaration, mesne profit and injunction against the Defendant No, 1 on false, fictitious and concocted ground with ulterior motives making entirely fraudulent story . It was pleaded that plaintif fs Ghayyas Ahmed and Muhammad Sikander Zulqarnain executed at Karachi, a general power of attorney duly attested by the Additional City Magistrate, Court No, III, Karachi West, on 9.5.1985, in favour of Mst. Rifat Quresi wife of Salauddin Qureshi resident house No, R-114, Habib, Road P.E.C.H
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Society Karachi, with general power to transfer the suit property by way of sale, gift and mortgage etc. to anyone. Simultaneously the plaintif fs Mohammad Sikander Zulqarnain and Ghayyas Ahmed executed a sale agreement, dated, 29.05.1985, the valuable consideration of Rs,5,75,000/- and received the total price of the said house. By virtue of the said agreement, the plaintif fs assured the said purchaser Mst. Rifaat Qureshi that the house was free from all short of claims, liens demands sale, mortgage cases or any other encumbrances of whatsoever nature, that the plaintif fs had delivered the possession of the said house together with all papers, rights, titles, interests and privileges therein over the said house, and that the plaintif fs, (first party) shall keep the second Party (Mst. Riffat Qureshi) indemnify against all losses detriments the first party and any person demanding title from the first party , herein plaintif fs, shall be caused and better and more perfect the said house in favour of the second party , Mst. Riffat Qureshi; that plaintif fs passed on receipt for receiving the payment of Rs,7,75,000/- in respect of the suit premises viz. House No, A-359, Mst. Rifaat Qureshi, the purchaser and general attorney of the plaintif fs, Ghayyas Ahmed and Mohammad Sikander Zulqarnain executed sub-Attorney power in favour of Mohammad Saleem son of Mohammad Naeem duly registered vide Registration No, 131, dated 30.04.1997, with general power to sell, mortgage, etc. and to .execute conveyance deed, sale deed gift deed,. mortgage deed, rectification deed, etc., before the Sub Registrar , simultaneously sale agreement, dated 30.04.1997, was executed between Mst. Rifaat Qureshi and Mohammad Saleem for valuable consideration of Rs,6,90,000/- and the said consideration was received by Mst. Rifaat Qureshi under valid receipt. On 10.05.1997, Mohamm ad Saleem son of Mohammad Naeem being the owner of the suit prope rty executed a sale agreement with Mst. Naseem Zebra wife of Nusrat Rizvi, for 8,50,000/- in respect of the said and paid the entire amount of Rs,8,50,000/- to Muhammad Saleem under valid receipt, dated: 10.05.1997 as full and final settlement for the said house. The seller Mohammad Saleem delivered the peaceful physical possession with original documents and transaction became final. Thus the Defendant No, 1 through his wife came into physical possession the house as rightful owner and he is not the trespasser as fraudulently alleged by the plaintif fs, who have filed the present suit falsely , fraudulently and by clear misrepresentation. Defendant No, 2/KDA filed written statement stating that the suit is incompetent and bad in law for want of statutory notice as required under Article 131 of the KDA Order No, V of 1957, as the same has not been served upon KDA before institution of the above suit and as such the suit is not maintainable and liable to be dismissed; that as per their record, the plot in question stands leased out in the name of Mr. Abdul Hakim son of Abdullah and there is no record in KDA showing relationship exce pt two complaints against unauthorized occupation of the house; that no such documents as stated in the plaint have been submitted by the plaintif f in the office of answering defendant except photocopy of the complaint made to Gulberg Police station. Defendant No, 6 Mrs. Naseem Zebra (appellant herein) in her written statement had pleaded that the suit had no cause of action, not maintainable due to misjoinder and non joinder of parties and is hit by the provisions of Sections 42 & 56 of specific Relief Act and Section 9 CPC as well as Order VII Rule 11, C.P.C. and has wrongly been filed against answering defendant and as against Defendant No, 1 and the plaintif fs has not come to the Court with clean hands; she pleaded that it is an imaginary plea that the plaintif f left the house in question unattended and shifted to Malir after 1993 due to political crises in the city and that it is also a white lie that the plaintif f left the valuable articles valued Rs,50,000/- in the house and was looking after the house in routine from 1993; that no person having common sense can accept this unfounded plea of their leaving the house from 1993 to 1997 when the suit was filed with dishonest and fraudulent intention; that the defendant above named purchased the said house for valuable consideration of Rs,8,50,000/- and invested a lot on incomplete construction and repair occupied the house lawfully as owner thereof along with her husband S. Nusrat and children; she pleaded that plaintif fs had involved the police in the matter to deprive her of her lawful occupation and legal right and to pressurize her husband and harassment by police caused to give undertaking that has had no evidentiary valve in the eyes of law and such statement or undertaking before the police cannot be treated as valid piece of evidence and the same cannot be used against her or her husband; that lodging of police report allegedly on 16.6.1997 against Defendant No, 1 has no concern with subject property and his undertaking keeping in view harassment and fear of police torture his promise to vacate the house as no evidentiary value under the circumstance; she pleaded
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that Defendant No, 1 had nothing to do with the said property and had no right to give any undertaking as the Defendant No, 6 is the owner of the said property and not the Defendant No, 1 at any point of time; that making application to the different departments to desist from giving any facilities/ amenities to Defendant No, 1 or to give application to Defendant No, 2 not to mutate the property in the name of any person , are meaningless and such applications were frivolous as the plaint iffs were not owner at relevant time and it has been sold out to the. Defendant No, 6 lawfully and she had become the owner of said property; she pleaded that Defendant No, 1 has nothing to do with the said property and not at all liable to pay any so called alleged compensation and mesne profits to the plaintif fs as well as for such alleged unauthorized/wrongful use and occupation or any occupation to vacate the house; that the allegations of plaintif fs are misconceived, unfounded false, fraudulent and with ulterior motive; she stated that she is now the owner of subject property and possession thereof is legal and lawful and plaintif fs have no right to claim possession of the property and benefits therefrom; that no notice as alleged was served on proper person viz. the Defendant No, 6, she denied the claim as false and stated that plaintif fs are not entitled to any relief as prayed and prayed for dismissal of suit. 3. Plaintif f Naseem Zehra in her Civil Suit No, 620/2007 pleaded that late Abdul Hakeem during his life time gifted the said property in favour of his two sons i,e, Defendants No, 2 and 3, who accepted said gift and occupied the suit property vide Registration No, 1648, dated 05.05.1984; she submitted in her plaint that on 29.05.1985 the Defendant No, 2 and 3 executed general power of attorney and sale Agreement in favour of Defendant No, 4, received entire sale consideration Rs,5, 75,000/- and handed her all documents and physical possession of the suit property; it was pleaded that on 30.04.1997 Defendant No, 4 executed General Power of Attorney in favour of Defendant No, 1, she executed an agreement of sale in favour of Defendant No, 1; defendant paid her entire sale consideration Rs,8,50,000/- and receive d physical possession of the suit property with documents; that on 10.05.1997 Defendant No, 1 executed an Agreement of sale in favour of the Plaintif f against total sale consideration of Rs,8,50,000/- the plaintif f paid him entire sale consideration .and received physical possession of the suit property without any interception, that just after executing sale agreement Defendant No, 1 went abroad and before executing the sale deed, and had promised to execute the sale deed after return from abroad; that the plaintif f vigilantly watching Defendant No, 1 for execution of sale deed and after long period when in the year of 2006 he came back, the Plaintif f contacted him and requested him execute a sale deed in her favour at the first instance he avoided to meet and then kept the plaintif f in false hopes on one anoth er pretext and lastly 22.03.2007 he demanded enhancement of sale consideration, which the plaintif f refused, then Defendant No, 1 refused to execute sale deed in favour of the plaintif f; it was pleaded that the Plaintif f has paid full sale consideration, received physical possession and entire documents hence denial of Defendant No, 1 to execute the sale deed is illegal, hence prayed:- (a) to declare that the Plaintif f is lawful purchaser of the suit property viz. bearing No, A-359, Block 12, measuring 200 sq.. yards, situated in Scheme No, 16, Federal B Area, Gulberg Karachi. (b) The Defendant No, 1 may kindly be directed to execute sale deed in favour of the plaintif f in respect of the suit property i,e, property bearing No, A-359 Block, 14 measuring 200 Sq. yards, situated in Scheme No, 16 Federal B Area, Gulberg Karachi, and failing which the Nazir of this. Hon'ble Court may kindly be directed to execute sale deed in favour of the Plaintif f on Behalf of the Defendant No, 1. (c) The defendant their legal heirs, all agents/workers, any/all assignees, anyb ody on their behalf may kindly permanently be restrained and debar from interfering and raising obstacles in peaceful and physical possession and, occupation of property bearing No, A-359, Block 12, measuring 200Sq. yards situated in Scheme No, 16, Federal B Area, Gulberg Karachi. (d) Cost of the suit. (e) Any other relief or reliefs which this Hon'ble Court may deem fit and proper under the circumstance of this case. The Defendants No, 2 & 3 filed their written statement while the Defendant No, 1 and 4 chose not to file their written statements and they were debarred from filing written statement dated 23.02.2009; Defendants No, 2 & 3 raised preliminary legal objections that the suit of the plaintif f is false, fabricated, afterthought and not maintainable under the law, that the suit of the plaintif f is barred under Sections 10 & 11, CPC, under the principles of Estoppel
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and Waiver , under the principles of non joinder and misjoinder of the parties, barred by the law of Specific Act. They denied that on 29.05.1985, the answering defendants executed a General Power of Attorney and Sale Agreement in favour of the Defendant No, 4 received entire sale consideration of Rs,5,75,000/- and handed her all documents and physical possession of the suit property . It was submitted that the late Abdul Hakim during his life time gifted the suit property in favour of the answering defendants who accepted the said gift and occupied the suit property vide Registration No, 1648 dated 05.05.1984. That the answering defendants are in lawful occupation and use of the suit property hence beginning and lived therein up to the 1993 without any obstruction and hindrance and thereafter due to political crises in the city of Karachi and especially in the area of Federal B Area, where the suit property was located, the answering defendant shifted to House No, 1 near Masjid Jamia Millia Campus Malir , Karachi and stated living therein along with their elder brother , mother (who dead) and sister therein. That the answering defendants while leaving the suit property they left valuable articles therein worth Rs,50,000/- (Rupees Fifty Thousand) and locked the inner doors as well as main gate door of the suit property . That the answering defendants as routine practice are lookin g after suit property twice/thrice a month regularly without fail. That on or about 14.6.1997 the Defendant No, 1 on usual visit went to the suit property and found/saw that some unknown persons are living in the suit property without their consent illegally and unlawfully by breaking open the inner door locks as well as outdoor lock of the suit property and after duly inquiry made by the answering defendants it was transpired that husband of the plaintif f namely Nusrat Rizvi illegally and unlawfully trespassed the suit property by breaking open the lock and thus committed offence punishable under the law. The Defendant No, 2 after two days i,e, on 16.6.1997 lodged a complaint against the husband of the plaintif f before Gulberg Police Station for necessary action who has committed offence punishable under the law. That on the said complaint, the SHO Gulberg Police Station called the parties in the police station and recorded statements. That during enquiry conducted by other police officer, the husband of tint-plaintif f promised to vacate the suit property within one month thereof. That the answering defendants moved applications to the deferent depart ments concerned to desist upon to give any facilities of amenities to the husband of the plaintif f who is illegally and unlawfully occupied the suit property of the answering defendants. Photo Copies of the said application are annexed P/3 to P/4. That the answering defendants filed applications in the office of then KDA (Now City District Government) not to mutate the name of any person in the record in respect of the suit. They submitted in their reply that the answering defendants have never appointed any Attorney in respect of the suit property . It is further submitted that: the husband of the plaintif f after occupying the suit property illegal and unlawfully made certain changes in the suit property resulting thereby he has impaired the value of the suit property . That the husband of the plaintif f failed to handover the vacant possession of the suit property as per commitment and in failure thereof, the answering defendant filed a Civil Suit No, 997/1997 in this Court against the husband of the plaintif f, KDA and District Registrar , said suit was transferred on the pecuniary jurisdiction increased up to Rs,30 Lacs by the Senior Civil Judge and renumbered as 929/2002 in the Court of IInd Sr. Civil Judge Karachi Central. That during the pendency of suit in this Court, the plaintif f herein, Defendant No, 1 were impleaded as necessary parties and plaint was amended and they were joined as necessary parties and they are still parties in the suit pending in the Court of IInd Senior Civil Judge Karachi; that the alleged Power of Attorney dated 29.5.1985 and sale Agreement undated annexed with the plaint allegedly executed by the answering defendants are forged and manipulated documents hence denied. They denied the alleged signatures on the said Sale Agreement, Receipt and alleged undated General Power of Attorney; they further denied that on 30.4.1997 the Defendant No, 4 executed General Power of Attorney in favour of Defendant No, 1 as alleged, the deed of gift annexed with the plaint was also denied being a forged document; they denied that on 10.5.1997 the Defendant No, 1 executed an Agreement of Sale in favour of the plaintif f against total sale consideration of Rs,8,50,000/- as alleged; it was submitted that the Defendant No, 1 is a fake person who is also a party in the suit filed by the answering defendant and did not appear till now inspite of repeated notices given to her on her given address, it was denied that the plaintif f has paid full sale consideration, received physical possession and entire documents as alleged or otherwise. It was pleaded that the entire documents of the suit property are still with the answering defendants which can be produced at the time of evidence and whatever documents have been filed with the plaint are the documents which were supplied to the husband of the plaintif f at
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the time of complaint before the Police Station Gulberg and further documents annexed with the above mentioned suit and supplied copies thereof to the defendants whom the plaintif f and her husband are parties to that suit. The defendants prayed for dismissal of suit. 4. From the pleadings of the parties following consolidated issues framed were answered by the trial Court as under:-- Issue No.Issues Findings 1 Whether the suit Bearing No, 929/2002 is not maintainable and without any cause of action?Affirmative 2 Whether the Suit No, 620/2007 is not maintainable and not time barred?Affirmative 3 Whether the plaintif f in Suit No, 929/2002 are the absolute owners of the suit property bearing Suit No, A-359, Block No-12 F .B. Area, Karachi by virtue of registered Gift deed?Affirmative 4 Whether plaintif f in Suit No, 929/2002 had not sold the Suit property prior and executed General Power of Attorney dated 29.05.1985 in favor of Mst. Rifat Qureshi, the, defendant ?As discussed 5 Whether Mst. Rif fat Qureshi the. Defendant No, 4, in Suit No, 929/2002, was legally authorized to sell the suit house by appointing Muhammad Saleem the Defendant No, 5, in Suit No, 929/2002 as her registered power of attorney vide General power of attorney dated 24.04.1997.As discussed 6 Whether Mrs. Naseem Zehara alias Shaheen, the Defendant No, 6 in Suit No, 929/2007 and plaintif f in Suit No, 620/2007 is in occupation of the suit property as bonafide purchaser from Muhammad Saleem by virtue of sale agreement dated 10.5.1997?As discussed 7 Whether the plaintif f in Suit No, 620/2007 are entitled to the relief claimed and to what extent?As discussed 8 What should the decree be? As discussed 5. Record reveals that learned Senior Civil Judge vide common Judgments/decre es dated…
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