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Petitioner: Syed SAJID RAZA through Registered Attorney VS Respondent: CITY DISTRICT JUDGMENT
Court Name: Sindh High Court Judge(s): Arshad Hussain Khan Title:Syed SAJID RAZA through Registered Attorney vs CITY DISTRICT
JUDGMENT
Reported As: 2017 YLR 2197 Result: Suit decreed Judgment JUDGMENT ARSHAD HUSSAIN KHAN, J.---This suit was filed on 23.10.1997 against the defendants for Declaration, Cancellation,Damages, Mandatory/ Permanent Injunction with the following prayer:- (a)<i>To declare that the plaintiff above named is bona fide transferee/ lessee and has a valid, lawful existing and binding title upon the defendants in respect of the subject/suit property. (b)To declare that the act of withdrawal of the transfer order dated 13.9.1988 and cancellation of lease deed dated 29.8.1990 with regard to suit property bearing Plot No.A-376, Sector 11-B, North Karachi Township, Karachi, entered into and executed between the plaintiff and the defendant No.1, duly registered with the Sub-Registrar of Properties, Karachi, is unauthoritative, illegal, unlawful, without jurisdiction and void ab initio. (c)To order and direct the defendants to re-call, withdraw and cancel their letter No.KDA/AD(T)/ NK/ 97/48 dated 05.03.1997 and letter bearing No.KDA/L&E/A-376/11-B/ 97/946 dated 17.7.1997. With a further direction and order to defendants Nos. ] and 2 to restore the position and status of suit property as it was prior to 19.08.1996 when the defendants Nos.1 and 2 for the first time issued show cause notice to the plaintiff. (d)To restrain the defendants Nos.1, 2 and 3 collectively as well as individually from further changing the record of rights in respect of the suit property. (e)To grant the permanent injunction, restrain the defendants Nos. ], 2 and 3 individually and as well as collectively, from effecting any further change in their record of rights, effecting the nature, status and be further pleased to restrain them from ejecting, dispossessing and raising
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construction according to the approved building plan by the plaintiff, is in exclusive physical/constructive possession of the subject plot/property i.e. a residential plot of land bearing No.A-376, Sector 11-B, measuring 240 square yards, situated in North Karachi Township, Karachi. (f)To award damages in the sum of Rs.5,00,000/- (Rupees six lacs) only as compensation for the losses, mental torture and physical agonies caused by the defendants to the plaintiff due to their unlawful without jurisdiction and unauthoritative acts and deeds. (g)To award cost of the suit and damages in terms of and for the reasons disclosedin the paragraph 18 of the plaint. (h)To grant any other/further and/or better relief which is deemed fit, proper and appropriate under the facts and circumstances of this case. 2. Briefly the case of plaintiff is that the plaintiff is a lessee in respect of residential plot bearing No.A-376, Sector 11-B, measuring 240 sq. yds., situated in North Karachi Township, Karachi, hereinafter referred to as the 'suit property'. It is also averred that the plaintiff had purchased suit property by way of agreement of sale dated 05.08.1985 from defendant No.5 namely, Muhammad Anis, transferee of the suit property by virtue of pre-lease transfer against the valuable consideration and thereafter by completing all the formalities as required under the rules including the publication, the same was transferred by way of pre-lease transfer vide Transfer Order bearing No.A-376/Sector 11-B/240 Sq. Yds./NKT/Resett-T-Br/258 dated13.09.1988. Subsequently, a 99-years' lease was executed in favour of the plaintiff vide Lease Deed Registered No.4455, Book No.I, dated 29.08.1990, M.F. Roll No.1286 dated 04.09.1990. Thereafter, plaintiff got construction plan approved from concerned authority/office, vide its letter No. KBCA/DCB- V/KDA/284/71/ 81/96 dated 15.02.1996 and raised construction over the suit property as per approved plan. It is further averred that the plaintiff was served with show cause notice dated 29.08.1996 issued by defendant No.2 for cancellation of transfer order and lease with regard to the suit property. The said show cause notice was subsequently, replied to by the plaintiff on 10.09.1996. Further averred that acts and deed of defendant No.3 claiming the title of the suit property by filing false and frivolous applications in the office of defendants Nos.1 and 2 and on other forums, were based on mala fides with ulterior motives and for illegal gains. It is also averred that defendant No.3 in league and collusion with defendants Nos.1 and 2 is bent upon to deprive the plaintiff from his lawful and bona fide right and title in respect of the suit property. The plaintiff apprehending foul play on the part of defendants, through his legal counsel, also served the defendants with a statutory notice under Article 131 of KDA Order No.V of 1957, which notice/letter was never replied by the defendants, however the legal counsel received a copy of the letter addressed to Mr. Khuda Bux by KDA advising him to approach the court of law for redressal of grievances and cancellation of lease of suit property. It is also averred that after service of statutory notice, the plaintiff received letter from defendants Nos.1 and 2, purporting to be a letter for cancellation of Transfer Order and lease of the suit property vide letter of KDA bearing No. KDA/ AD(T)/ NK/ 97/ 48 dated 05.03.1997. The plaintiff filed the present suit challenging the said letter of the defendant-authority being unlawful and uncalled as the defendants are not entitled and competent to cancel the registered lease. 3.Upon service of notice of this suit defendants Nos. 1, 3, 4, 5 and 6 filed their respective written statements. 4.The defendant No.1 (KDA) in its written statement denied the allegations of the plaintiff in the suit. It is stated that suit property was originally allotted to defendant No.3 who got transferred the suit property in the name of defendant No.4 who subsequently sold out the property to defendant No.5 and who further sold the suit property to the plaintiff in whose favour ultimately the lease was granted. Further stated that the pre-lease transfer effected in the name of defendant No.4 from defendant No.3 was in accordance of rules and regulation.</u> It is alleged that first pre-lease
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transfer in favour of defendant No.4 was done through impersonation. Further averred that upon receiving the complaint of defendant No.3, a detailed enquiry was conducted through which it appeared that first pre-lease transfer was obtained through impersonation, hence the defendant cancelled the lease of the suit property. <u>It is also averred that the transfer of the suit property was effected after completing the requisite formalities according to the rules. Further averred that grant of 99-years lease was forged and bogus documents as the same was based on forged transaction therefore, the said lease does not have any legal sanctity and it was rightly cancelled. 5.Defendant No.3 in his written statement has stated that plaintiff obtained the lease deed of the suit property through fraud and mis-representation as defendant No.3 is original allottee of the same. Further averred that he has neither sold his plot (suit property) nor transferred the same to any person(s) at any time, and that he (defendant No.3) is lawful allottee and in lawful possession of the suit property, therefore, the grant of lease in favour of the plaintiff is illegal as the same has been obtained by fraud and misrepresentation of facts on forged and fabricated documents. It is also stated that defendant No.4 namely, Shoukat Ali had managed to obtain transfer of the suit property in his name by fraud, misrepresentation as he arranged a person by the name of Khuda Bux resident of Landhi to impersonate as defendant No.3 (Khuda Bux). Thereafter, defendant No.4 transferred the suit property to one Mohammad Anis on 13.04.1985 and after a lapse of three years the suit plot was transferred in the name of the plaintiff by the said Mohammad Anis on 13.09.1988 and thereafter the lease was executed in favour of the plaintiff. It is also stated that defendant No.3 was allotted the suit property in 1975 and the plaintiff with the connivance and on the basis of forged documents occupied the suit property. Defendant No.3, upon knowledge of the fraud, immediately made complaint to KDA vide letter dated 31.07.1996 and to the Deputy Inspector General of Police, Karachi vide letter dated 19.08.1996 whereby informed them about the fraud committed upon him and in this regard a complaint was also lodged by defendant No.3 with Khawaja Ajmer Nagri Police Station, Karachi. Further averred that defendant No.1 after issuing show cause notice to the plaintiff and after appropriate enquiries cancelled the suit property, which was transferred illegally in the name of the plaintiff. The defendant No.3 also filed an application before the Provincial Ombudsman Sindh at Karachi regarding the fraud and impersonation and the learned Director General of Ombudsman was pleased to issue a letter dated 03.09.1997 to defendant No.2 regarding the position of the suit property and a copy was endorsed to defendant No.3. Learned counsel for defendant No.3 has contended that defendant No.3 as well as defendant No.2 clarified the position of the suit property vide letter dated 12.09.1997 and 31 .10 . 1997 respectively. However, defendant No.2 has with mala fide intention mentioned in the said letter that possession of the suit property is with plaintiff which fact is with defendant No.3. Further, defendant No.3 is in lawful possession of the suit property as he is lawful allottee of the same vide Allotment Order dated 24.06.1975 and Acknowledgment of Possession was issued KDA dated 28.02.1976 on payment of all required dues/amounts to KDA and KMC. The defendant No.3, after obtaining the approved Site Plan and permission from KBCA for ground and first floor, had made construction of boundary wall, two rooms with one bathroom and kitchen. It is also stated that all the original documents of the suit property are with defendant No.3, who has duly made construction thereon and the same is in his lawful possession and all the transfers of the suit property from one name to another were made fraudulently and on bogus documents. It is also stated that KDA had already cancelled the transfer order dated 13.09.1988 issued in favour of the plaintiff. The letter dated 17.07.1997 has been rightly issued by defendants Nos.1 and 2 after having learnt the fraud perpetrated upon defendant No.3. defendant No.3 also prayed for dismissal of this suit with special compensatory costs. 6. Defendant No.4 in his written statement while neither denying nor admitting the contents of the plaint for want of knowledge has stated that he was servant of one Haji Anwar Hassan Khan who
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was running business of Estate Agency, the said Anwarul Hasan Khan obtained the photo stat copy of NIC and got his signature on blank performa. Further he has no knowledge about the number of plot and sale and purchase of the same. 7.Defendant No.5 in his written statement while supporting the claim of the plaintiff has stated that the plaintiff is the rightful owner of the suit property and defendants 1 to 2 have no authority to cancel the suit property. Further the claim of defendant No.3 is false, baseless and based on mala fide intentions. 8.Defendant No.6 in his written statement while taking preliminary legal objections that: (A) suit as framed is not maintainable, (B) suit filed by the plaintiff without cause of action, (C) suit is not maintainable under sections 42 and 56 of Specific Relief Act, 1877 and (D) plaintiff approached this court with mala fide intentions and with unclean hands, has stated that plaintiff misguided this Court as well as defendant No.6 and he had agreed to sell the suit property (which was also cancelled by the concerned authority) through a sale agreement dated 19.11.2006 for a total sale consideration of Rs.15,00,000/-. It is also stated that at the time of execution of sale agreement the plaintiff received Rs.5,00,000/- in his wife's name Mrs. Tanveer Sajid on 09.11.2006 through Pay Order No.1582671, issued by Bank Al-Habib Ltd., Gulshan Chowrangi Branch, Karachi. It is also stated that defendant No.6 paid further part sale consideration amount of Rs.5,00,000/- through Cheque No.3668691 dated 15.01.2007 drawn on the same Bank, in the name of plaintiff, however the plaintiff refused to receive the cheque upon which defendant No.6 paid the plaintiff an amount of Rs.5,00,000/- in cash. Where after, defendant No.6 made several requests to the plaintiff to receive the remaining sale consideration of Rs.5,00,000/- and hand over the peaceful possession of the suit property but the plaintiff failed to fulfill his part of obligation under the above said sale agreement. It is also stated that Para-3 of the sale agreement indicates that the property in question is free from all sorts of lien, demands, claims, etc., and the title of the sale property is in full force and there is no litigation over the same, whereas true fact was different with what has been mentioned in the sale agreement. The plaintiff completely concealed the fact about the present litigation, which came into the knowledge of defendant No.6 in the month of March 2009, upon which he filed intervenor application and got impleaded himself in the present case as one of the defendants. He has prayed for direction for plaintiff to pay Rs.11,00,000/- with 10% markup of very year from payment till the disposal of the suit. 9.Out of the pleadings of the parties the following issues were settled by this Court on 23.08.2004, which are as follows:-- 1Whether the plaintiff is bona fide transferee/ lessee/ owner of plot/ property No.A-376, Sector 11-B, measuring 240 Sq. Yds., North Karachi, by virtue of pre-lease transfer order and lease deed executed and registered vide Registration No. 4455 Book No.1-Addl. dated 29.8.1990 and M.F. Roll No.1286 dated 4.9.1990 by the Defendants Nos.1 and 2/KDA? 2)Whether the Defendant No.3 is the lawful allottee of the suit plot and in lawful possession of the same and made construction thereon? If so, what is the effect? 3)Whether the Defendant No.4 had obtained transfer of the suit plot in his name by fraud and misrepresentation and on forged documents by setting-up a person by the name of Khuda Bux to impersonate the Defendant No.3 for wrongful gain and to obtain pre-lease transfer? 4)Whether the lease dated 29.8.1990 executed in favour of the plaintiff by Defendants Nos.1 and 2 have been rightly, legally and lawfully cancelled? 5)Whether the plaintiff has raised construction to the extent of plinth/ boundary wall including main gate, etc. after approval of proposed building plan approved vide letter No. KBCA/DCB- V/KDA/Prop/96/ 284/71/81/96 dated 15.2.1996? 6)Whether cause of action has accrued to the plaintiff for filing suit against the defendant KDA? 7)Whether the plaintiff was duly served with notice prior cancellation of documents. If so its effect?
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8)Whether the plaintiff is entitled to the restitution of possession of subject property, which was validly in possession at the time of filing of the above suit on 23.10.1997? 9)Whether the plaintiff is entitled for damages to the tune of Rs.6,00,000/- as compensation for losses, mental torture and physical agony caused by the defendants severally and physical agony caused by the defendants severally and jointly i.e. subject to raise in cost of construction and value of adjoining property? 10)What should the decree be? 10.The plaintiff in support of his claim examined himself and filed his affidavit in evidence as Ex.P/1. Thereafter, he was cross-examined by the counsel for the defendants. This witness during his evidence produced following documents: SR.DOCUMENTS EXHIBITS 01Photocopy of Lease Deed dated 04.09.1990 P/2 02Photocopy of Transfer Mutation dated 13.09.1988 P/3 03Photocopy of proposed approved letter plan along with approval letter dated 15.02.1996 P/4 & P/5 04Photocopy copy of Show Cause Notice dated 29.08.1996 P/6 06Photocopy of reply of show cause notice dated 10.09.1996 P/7 07Photocopy of transfer order dated 29.12.1984 P/8 08Photocopy of mutation of Plot No.A/376 P/9
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09Photocopy of notice dated 30.10.1996 under Article 131 of KDA Order V of 1957. P/10 10Photocopy of letter dated 13.08.1997 P/11 11 Photocopy of letter dated 05.03.1997 P/12 11 Thereafter, defendants Nos. 1 and 2 namely, CDGK/KMC filed affidavit-in-evidence of their witness namely, Syed Amir Ali, DDO, (CDGK) as Exhibit DW/1. The witness of these defendants was cross-examined by the learned counsel for the plaintiff and other defendants. SR.DOCUMENTS EXHIBITS 01Photocopy of application dated 31.07.1996 addressed to General, KDA D/2 02Photocopy of show cause notice for cencellation of transfer and lease of plot No.A-376 (suit Property) D/3 03Photocopy of letter dated 05.03.1997 addressed to plaintiff D/4 04Photocopy of letter dated 05.03.1997 addressed to Provincial Ombudsman(Mohtasib) D/4-A 05Photocopy of letter dated 17.17.1997 issued by KDA to defendant No.3 D/5 06Photocopy of compliant dated 19.09.1996 D/6 07Photocopy of letter dated 03.09.1997 issued by Provincial Ombudsman (Mohtasib) D/7
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08Photocopy of letter dated 12.09.1997 addressed to the Provincial Ombudsman D/8 by defendant No.3 09 Photocopy of Allotment Order dated 24.06.1975 D/9
10 Photocopy of Challan dated 23.06.1975 D/10 11 Photocopies of Challans dated 14.01.1988 and 24.02.1988 D/11 & D/12
12 Photocopy of letter dated 02.05.1978 D/13 13 Photocopy of acknowledgment of possession dated 24.06.1975 issued by the KDA D/14 14 Photocopy of Site Plan issued by KDA D/15
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15 Photocopy of booking for proposed suit plot dated 03.03.1988 addressed by KBCA D/16 16 Photocopy of decision of Provincial Ombudsman dated 28.04.1999 D/17 17 Photocopy of electricity bill for the month of October 2003 D/18 18 Photocopy of SSGC bill for the month of October 2003 D/19 19 Photocopy of PTCL bill for the month of September 2005 D/20
12 Thereafter, defendants No.s 1 and 2 namely, CDGK/KMC filed affidavit-in-evidence of their witness namely, Syed Amir Ali DDO,(CDGK) as Exhibit DW/1. The witness of these defendants was cross-examined by the learned councel for the plaintiff and other defendants.
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13 Thereafter Defendant No.6, in support of his stance in the case filed his affidavit-in- evidence as Exhibit D/6. He was cross-examined by the learned counsel for the plaintiff and the counsel for the other defendants. During the evidence, he produced following documents: -- SR.DOCUMENTS EXHIBITS 01Photocopy of agreement dated 09.11.2006 D/7 02Photocopy of receipt of Rs.6,00,000/= in respect of the suit property D/8 03Photocopy of CNIC No.42101- 6456777-3 of Syed Sajid Raza (Plaintiff) D/9 04Photocopy of Pay Order No.1582671 dated 08.11.2006 in the sum of Rs.500,000/= drawn on Bank Al-Habib Ltd. Gulshan Chowrangi Branch 1027, Plot No.FL-3, Block No.3, KDA Scheme No.24, Gulshan-e-Iqbal, Karachi in favour of Sajid D/10 05Photocopy of Cheque No.3668691 dated 15.01.2007 in the sum of Rs.500,000/= drawn on D/11
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Bank No.3, Gulshan-e- Iqbal, Karachi in favour of Syed Sajid Raza 14.Defendant No.4 though filed his affidavit in evidence but he did not come in the witness box for his evidence whereas defendant No.5 neither filed any affidavit in evidence nor came forward for evidence. 15.I have heard learned counsel appearing for the parties and with their assistances also perused the material/ evidence available on record. 16.. Learned counsel for the plaintiff during the course of arguments besides reiterating the contents of the plaint and the affidavit-in-evidence of the plaintiffs has urged that since the sufficient documentary evidence are available on record, which support the stance of the plaintiff in the present case. He further urged that the Plaintiff has filed original registered title documents and other relevant record in the present case, which amply demonstrates the ownership of the Plaintiff vis--vis the suit property. He further urged that after execution of the registered lease in favour of the plaintiff upon the pre-lease transfer order issued by Defendant No.1, the said transfer order subsequently cannot be cancelled. Furthermore, the presumption of truth is attached with the registered and original documents, unless the same are cancelled through competent legal proceedings, which in the present case is admittedly not done by Defendants hence, the registered title documents and other relevant documents issued by the authorities concerned, filed by the Plaintiff in support of his plea in the case, have legal sanctity attached to said documents. In support of his stance in the case, the learned counsel also relied upon following case law:-- 2004 MLD 888 (Muhammad Iqbal and others v. Fakhar-ul-lslam and 3 others). 2004 MLD 963 (Sabir Hussain and 6 others v. Eisa and 2 others) 1994 CLC 247 (Moinuddin Paracha and 5 others v. Sirajuddin Paracha and 22 others) 2002 SCM R 1981 (Muhammad Rafique alias Rafique Ahmad v. Abdul Hameed and 2 others) 2003 SCMR 549 (Talib Hussain and others v. Member, Board of Revenue and others) 1993 SCMR 462 (Mirza Muhammad Sharif and 2 others v. Mst. Nawab Bibi and 4 others) 17. In rebuttal, the learned counsel for the Defendants besides reiterating contents of the written statement and affidavit-inevidence filed on behalf of the Defendants have argued that the plaintiffs have failed to prove their case in the evidence. Mr. Mirza Adil Baig, learned counsel for defendant No.3 urged that the claim of the plaintiff is based on sham transaction hence untenable in law and the allotment and 99-years lease in favour of the plaintiff was rightly cancelled by defendant No. 1. He further urged that it is the settled law that if the basic order is without jurisdiction and withoutlawfulauthority, entire superstructure of orders built thereupon suffers from the same legal defect and infirmity from which the original order suffers. By applying this principle, since the initial pre-lease transfer in favour of defendant No.4 was illegal, therefore, subsequent transfers are also illegal and sham hence not sustainable in law. The learned counsel further argued that the plaintiff in his evidence admitted certain facts regarding ownership of defendant No.3, hence the present case on this count alone is liable to be dismissed. Whereas Ms. Shabana Ishaque, learned counsel for defendant No.6, in support of her stance in the case during the course of her arguments while candidly admitted that defendant No.6 did not file any suit against the plaintiff for specific performance of the sale agreement entered into between him and the plaintiff in respect of suit property, resisted the present suit on the ground the plaintiff committed fraud upon him. The learned counsel in support of her stance in the case also relied upon the following case law:
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2003 SCMR 549 (Talib Hussain and others v. Member, Board of Revenue and others) 18.I have given due consideration to the arguments advanced by the learned counsel for the parities, minutely perused the material/evidence available on record, the applicable laws on the subject and the case law cited at bar. My findings on the issues are as under: 19.Issue No.6: Since this issue is relating to the maintainability of the suit therefore, I will take up this issue first. The preliminary objection taken up by defendant No.1 in its written statement is that no cause of action has accrued to the plaintiff for filing the present Suit against defendant No.1 and further defendant No. 1 has unnecessarily been impleaded as party in the proceeding The Code of Civil Procedure, the procedural law relating to the civil suits, lays down the procedure under Order I, Rule 9 to be followed in cases of non-joinder of parties. For convenience's sake the same is reproduced as under: "ORDER 1: PARTIES TO SUIT Rule 9. Misjoinder and nonjoinder.---No suit shall be defeated by reason of the misjoinder or non- joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it" 20. The presence of opposing parties is one of the essential requirements of any civil suit. But all parties are not necessary for the suit to be adjudicated upon, therefore, 'necessary' and `non- necessary' parties have to be distinguished between. `Necessary Parties' are those parties from whom relief is claimed. Whereas 'Non-necessary parties. are those parties who may be party to the suit, but from whom no relief has been claimed. This aspect has also been defined in various judgments of this court as well as the Hon'ble Supreme Court that a necessary party, is…
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