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Petitioner: MOIZ ABBAS through Attorney VS Respondent: Mst. LATIFA
Court Name: Sindh High Court Judge(s): Salahuddin Panhwar Title: MOIZ ABBAS through Attorney vs Mst. LATIFA Case No.:Suit Nos,429 of 2005 and 115 of 2006 Suit No,429 of 2005 Suit No,429 of 2005
JUDGMENT
Reported As: 2017 YLR 1607 Result: Suit dismissed Judgment JUDGMENT ' SALAHUDDIN PANHWAR, J.---This single judgment shall dispose of the above two consolidated suits. Suit No,429 of 2005 seeks Declaration, Permanent injunction, Possession and Mandatory Injunction, whereas Suit No,115/2006, filed by Mst. Latifa seeks Specific performance, cancellation of deed and Permanent injunction, between plaintiff and defendant on same subject matter property. 2. Tersely, relevant facts of the suit as averred in the plaint filed by plaintiff Moiz Abbas, are that he is owner of house one storey plus ground floor (suit property) which he purchased through registered sale deed; plaintiff had gone to USA with his family in 1981 while asking his elder sister Sakina to look after and take care of the house in his absence. In month of November, plaintiff received a telephone call from his sister Sakina that defendant by deceitful means and by misrepresentation has entered into house and refusing to vacate the same thus, he communicated such grievance with highest executive authority but without success. Plaintiff came to Karachi in month of March, 2004 and on refusal of defendant to vacate suit property, served legal notice upon the defendant, in October, 2004 to which defendant Mst. Latifa replied containing therein that she purchased suit property from sister of the plaintiff Moiz Abbas. The plaintiff Moiz Abbas claiming that suit property could have fetched him monthly rent of Rs,30,000/- per month hence also claimed mesne profit from November, 2000. 3. In such back-ground, the plaintiff Moiz Abbass, sought the following reliefs:-- a) To direct the defendant to hand over the vacant peaceful possession of the suit property bearing No,A-167, Block 'C' North Nazimabad, Karachi to the plaintiff who by way of title deed is exclusive and legal owner of the suit property;
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b) Injunction be issued against the Defendant restraining from creating third party interest in the property or handing over possession or transferring in any way and in any manner the suit property bearing No,C-167, Block 'C' North Nazimabad, Karachi; c) Judgment and decree for Rs,14,50,000/- a mesne profit for illegal use and occupation with effect from December, 2000 till filing of the suit and further mesne profit till the delivery of the possession is given by the Defendant of the suit property to the Plaintiff; d) Cost of the suit; e) Any other relief or reliefs which this Honourable Court may deem fit and proper; 4. In response to notice(s), the defendant Mst. Latifa filed her written statement wherein admitted ownership of plaintiff as owner of the suit property however claimed that house in question was consisting upon ground floor only and the first floor was constructed by defendant under authority and concept of plaintiff through his sister Mst. Sakina Abbas after paying Rs,19,50,000/- to her through cheque dated 02.5.2002. It was further claimed tht plaintiff had visited Pakistan in October, 2000 and executed a Special Power of Attorney dated 27.10.2000 in favour of his sister Mst. Sakina to manage his properties in Karachi, Pakistan including suit property. 5. Defendant filed suit for Specific Performance and Permanent Injunction under said plea but with an addition that in October, 2000 plaintiff (defendant No,1 in Suit No,115/2006) came to Pakistan and negotiated for sale of house to plaintiff through her brother Asghar Ali; an oral agreement for sale was arrived between them and she paid Rs,50,000/- in cash to plaintiff (defendant No,1 in Suit No,115/2006) out of total agreed consideration of Rs,20,00,000/- which was agreed to be paid to Mst. Sakina. Plaintiff (defendant No,1 in Suit No,115/2006) was scheduled to return USA, thus he reportedly executed Special Power-ofAttorney dated 27.10.2000 in favour of his sister Mst. Sakina Abbass. As per defendant Mst. Latifa, she paid Mst. Sakina a sum of Rs,19,50,000 through cheque No,10457852 dated 02.5.2002. She further pleads that with a view to secure her payment Mst. Sakina executed a Tenancy Agreement dated 02.5.2002 which was not meant for use by either of the parties and in said agreement Mst. Sakina acknowledged receipt of Rs,19,50,000/- through cheques possession was handed over to Mst. Latifa by Mst. Sakina and she raised construction on ground floor through M/s AA contractor and continuously residing therein. She pleaded that despite her approaches and requests, her title was not perfected so she in her own suit claimed following relief(s):-- a) That it be declared that by payment of the sum of Rs,50,000/- in cash to the Defendant No,1 in October 2000, and payment of Rs,19,50,000/- to the Defendant No,2 towards sale consideration on 02.5.2002 by the plaintiff and after incurring expenses approx. Rs,20,00,000/- on the renovation and construction of the first floor of the house in question after taking over vacant possession of the house in question and authority given by the Defendants to construct first floor, the plaintiff is the lawful owner of the property in question consisting of ground and first floor of the house bearing plot No,A-167, Block 'C', measuring approx. 208 sq. Yds and situated in Saifee Cooperative Housing Society Ltd. North Nazimabad, Karachi. b) For Specific Performance of the Oral Agreement of Sale dated October 2000 entered into by and between the plaintiff and the Defendants No. 1 and 2 for sale of the house in question by executing a Deed of Conveyance of the suit property in the name of the plaintiff above named. In default, the Nazir of this Hon'ble Court be authorized and directed to execute the necessary Deed of Conveyance of the suit property in favour of the plaintiff; c) For cancellation of the Tenancy Agreement dated 02.5.2002 executed by the Defendant No,2 as attorney of the Defendant No,1 with the plaintiff. d) For Permanent injunction restraining the defendants above named from taking any action for ejectment of the plaintiff from the suit property by themselves or through their subordinates and
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parsons working for and under them and/or disturbing the vacant and peaceful possession of the suit property by the plaintiff. ' Any other relief, which under the circumstances of the case, this Hon'ble Court may deem fit and proper; f) Cost of the suit be also awarded in favour of the plaintiff against the defendants above named. 6. Worth to add here that by order dated 21.05.2007 both suits were ordered to be consolidated and in consequence thereof the following consolidated issues were framed:-- 1. Whether the plaintiff's house is, in illegal possession of the defendant? If so what its effect? 2. Whether Special Power of Attorney executed in favour of Mst. Sakina sister of the plaintiff contains any provision of sale in respect of suit property? If not, its effect? 3. Whether the plaintiff ever entered into any oral sale agreements in respect of suit property with the defendant. If not, its effect? 4. Whether the defendant was authorized to make any further construction over the suit property? If so what is its effect? 5. Whether the defendant and Mst. Sakina, the sister of the plaintiff are in league with each other to defraud the plaintiff from his property? 6. Whether plaintiff received from defendant a sum of Rs,50,000/- in cash as earnest money and the balance sale consideration of Rs,19,50,000/- was agreed to be paid to Mst. Sakina Abbas (defendant No,2 in Suit No,115/ 2006) at the time of execution of sale deed? If yes, its effect? 7. Whether plaintiff promised to send General Power of Attorney from USA authorizing his sister to execute the sale deed? If yes, its effect? 8. What is the effect of acknowledgment, if any, of Rs,19,50,000/- by Mst. Sakina through formal Tenancy Agreement dated 2nd May, 2002? Whether defendant is ranked trespasser and plaintiff is entitled to possession of suit property consisting of ground and first floor and mesne profits as claimed? 10. What should the decree be? 7. The matter was referred to the Commissioner for recording of evidence, before whom the plaintiff submitted his affidavit and of witnesses Aun Gain son of Tahir Ali Gain and Murtaza Ali, and were cross-examined. 8. In rebuttal, the defendant submitted affidavit in evidence of Asghar Ali, Tayab Ali, Tahir Lanewala and Muhammad Ayub who were also cross-examined. In addition to above, Mr. Babar Rafique Mughal, Manager Operations, HBL was also examined. 9. Learned counsel for the plaintiff Moiz Abbas has argued that there has never been any sale transaction between the plaintiff and defendant Mst. Latifa nor Mst. Sakina was ever legally authorized to receive sale consideration or to enter into any sale transaction hence sale transaction, if any, by such person (Mg. Sakina) cannot legally term as a valid sale agreement; there is no proof of oral agreement with plaintiff nor that of payment of advance money. The ownership of the plaintiff is admitted and since the defendant failed in proving his claim of purchase of the suit property through agreement hence the plaintiff Moiz Ali is legally entitled for a decree in his favour. He placed reliance on the case laws, reported as 2008 SCMR 1108; 2009 SCM R 114 and . While concluding prayed for dismissal of the suit, filed by defendant Mst. Latifa. 10. On the other hand learned counsel for Defendant Mst. Latifa argued that the defendant Mst. Latifa established her claim; payment of full consideration; construction by defendant Mst. Latifa and her continuous possession which she took through and under the authority of Mst. Sakina, the sister and attorney of the plaintiff Moiz Ali, hence she is entitled for a decree in her favour. 11. Heard learned counsel for plaintiff and defendants and have also meticulously examined the available material. My findings on the issues with reasoning are as under:--
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{{TABLE}} FINDINGS Issue No,1 'affirmative' Issue No,2 'negative' Issue No,3 'negative' Issue No,4 'negative' Issue No .5 'as discussed' Issue No .6 'negative' Issue No .7 negative. Issue No .8 As discussed Issue No,9 As discussed. Issue No,10 Suit of plaintiff Moiz Ali is decreed while that of defendant Mst. Latifa is dismissed. {{TABLE}} ISSUES NOS.3, 6 AND 7 12. The issues Nos, 3, 6 and 7 are strongly interlinked with each other hence it would be in all fairness to discuss the same jointly. The ownership of the plaintiff Moiz Ali is an admitted fact even by the defendant hence the possession of the defendant Mst. Latifa over subject property would not earn legal status unless it is established by the defendant that same is under some legal authority i,e, alleged sale agreement. Thus, the burden to prove both these issue(s) falls upon the defendant Mst. Latifa. The perusal of the written statement, so filed by the defendant Mst. Latifa, would show that she (defendant Mst.Latifa) did not take the plea of entering into oral agreement with plaintiff Moiz or to have paid him Rs,50,000/- as advance but has taken such plea in her independent suit (Suit No,115 of 2006). The parties legally are to remain within the pleadings and cannot be allowed to prove his/her case beyond the pleadings A as held in the case of Hyder Ali Bhimji y. Vlth Additional District Judge (2012 SCM R 254) that:-- 'The appellant was legally bound by the case set up in his pleadings: He did not have freedom to depart therefrom and raise a different case. Also that in absence of specific pleadings, the court could not allow appellant to grope around and draw remote inference in his favour from his vague expressions.' ' This would require exclusion of the plea of oral agreement with plaintiff and that of payment of Rs,50,000/- as advance to plaintiff but since both the suits were consolidated hence without prejudice to this settled principle, let's examine this plea. The attorney of the defendant Mst. Latifa specifically admitted during his cross-examination that:-- "It is correct that my sister received a notice in October 2004 from Mr. Mioz. It is correct to suggest that the contents of reply as to period of deal is incorrect. It is correct to suggest that whatever is written in the plaint in this regard is correct and the reply to the notice is incorrect.' ' From the above admission, it is clear that the defendant Mst. Latifa acknowledged receipt of notice from Moiz and that she responded the same through a reply but the contents of reply (which is much prior in time to her suit) are not being owned by her (defendant Mst. Latifa) which, she legally cannot, particularly when she acknowledges the document (reply) to be her own. ' It is correct to suggest that the figure as given in the reply to the notice being 19, 50, 000/- in incorrect and the figure of Rs,20,00,000/- as given in the plaint is correct.' It is correct to suggest that the amount of Rs,50,000 as given in advance is not mentioned in the reply to the said notice. ' From the, above, it is clear that in reply she (defendant Mst. Latifa) had not taken the plea of making any payment to plaintiff Moiz nor had taken the plea of oral agreement and even consideration to be fixed as Rs,20,00,000/-. This would conclude that the defendant Mst. Latifa at very first opportunity of bringing her claims did not claim to:-- i) have entered into oral agreement with plaintiff Moiz;
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ii) have paid Rs,50,000/- in cash as advance to plaintiff' Moiz; iii) to have agreed consideration as Rs,20,00,000/-. ' Thus, prima facie the plea of oral agreement with Moiz and payment of advance money of Rs,50,000/- out of agreed consideration of Rs,20,00,000/- is afterthought else this must have come through first opportunity of raising claim i,e, reply to notice of plaintiff Moiz. Thus, the subsequent plea legally cannot be taken as truth or least beyond doubts. I have no hesitation in saying that truth is bound to come to at very first opportunity particularly when question is directly in that regard hence I can safely conclude that had there been any oral agreement with Moiz against payment of Rs,50,000/- as advance money this must have been mentioned in iteply to legal notice of plaintiff Moiz whereby legal . Status of defendant Mst. Latifa was challenged. Reliance in this respect is placed on the case of Mir Akber v. Sher Bahadur and others (2006 SCM R 315) wherein it is held that:- 7. Having said that, the very genuineness of the deed of 1901 is open to doubt. In the first written statement filed by the defendants plea of adverse was taken and neither the sale-deed was mentioned nor did the defendants plead that they had become owners by purchase. It was six months later that the defendants filed amended written statement in which for the firg time they claimed that their forefather had purchased the house through unregistered deed in the year 1902. This plea appears to be an afterthought. Had the property been purchased by the defendants predecessor-in-interest they should at least have mentioned so in their first written statement, even if they had not been in possession of the deed at the time. The defendants, rather in their first statement had taken the plea of adverse possession only. (underlining is provided for emphasis). ' Further, the claim of the defendant Mst. Latifa is that she entered into an oral agreement with plaintiff Moiz on 25th October, 2000 but without any writing to show that it (deal), if any, Was for sale of the subject matter or receipt of advance money although it is claim of the defendant Mst. Latifa and her attorney that plaintiff Moiz was residing in neighbourhood who even remained available there hence silence of the defendant Mst. Latifa in not getting the document in writing is quite illogical rather unbelievable. Further, the defendant Latifa no where claimed that she during this period ever served the plaintiff Moiz with any notice in writing or orally for execution of sale agreement or showing her intention to get title by making payment of remaining sale consideration with reference to oral agreement. Further, the defendant Mst. Latifa in her pleadings did not mention the terms of the oral agreement; the names of the marginal witnesses; period for completion of sale agreement which otherwise was/is the requirement of pleadings particularly in matter of oral transaction because oral agreement though is permissible in law but to prove the same credible and unimpeachable evidence is required. Reference is made to case of Muhammad Nawaz through L.Rs, v. Haji Muhammad Baran Khan through L.Rs (2013 SCM R 1300). Besides, attorney of defendant Mst. Latifa and her witnesses did not describe the terms and conditions of oral agreement hence in absence where plea of oral agreement cannot legally sustain. 13. Be as it may, I proceed further to examine the record. It appears that after 25th October, 2000 (alleged date of oral agreement) there is a pause of more than one and half years i,e, 2nd May, 2002 when payment of Rs,19,50,000/- is claimed to be made to Mst. Sakina, sister of the plaintiff Moiz which (a long pause) itself is sufficient to cause doubt over claim of oral agreement with Moiz on 25th October, 2000. It is the claim of the defendant Mst. Latifa herself regarding entering into 'Tenancy Agreement' with Mst. Sakina hence it would be safe to say that this is her (defendant Mst. Sakina's) document hence contents thereof are to be taken as 'an admission'. This document nowhere supports the status of defendant Mst. Latifa as 'purchaser' rather specifically confines it to that of 'tenant' as is evident from Tenancy agreement which reads as:--
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' 'AND WHEREAS, the landlord has agreed to rent out and the Tenant has agreed to take on rent the above said 'Demised Premises' commencing from 02 May, 2002. ' AND WHEREAS the tenant has paid Rs .19,50, 000/ - (Rupees Nineteen Lacs Fifty Thousands only) as security deposit and which will be adjustable against monthly rent. 3. That the original document of the Tenancy Premises is not made available as the owner is out of Pakistan hence execution and registration of rental lease cannot take place, hence this agreement. ' The above is sufficient to show that defendant Mst. Latifa at such time i.e 2nd May 2002 acknowledged:-- i) status of plaintiff Moiz as landlord; ii) her status as tenant; iii) absence of plaintiff Moiz from Pakistan an excuse not for registration of sale deed but for rental lease; ' The document however makes it clear that: i) it has no reference of earlier oral agreement; ii) it has no reference to earlier alleged advance money of Rs,50,000/-; ' From the above, it is quite obvious that the present defendant herself entered into a written document which document at no material time was claimed to be result of fraud or misrepresentation which even is patent from the term whereby the excuse for 'execution of registered' rental lease is mentioned with specific reference to presence of plaintiff Moiz out of Pakistan. Thus, the defendant Mst. Latifa cannot legally take a plea contrary to her own act (document) and such plea is liable to be excluded else this would not be in line with Article 103 of the Qanun-e-Shahadat Order 1984 which reads as:- "103. Exclusion of evidence of oral agreement. When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last Article, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives-in- interest, for the purpose of contradicting, varying adding to, or subtracting from, its terms:" ' I am guided in such view with the case of Elahi Bakhsh v. Muhammad Iqbal (2014 SCM R 1217) wherein it is held that:- The question that arises for the adjudication of this Court is whether an oral statement of a party to an instrument which varies or tends to vary its terms could be admitted into evidence? The answer to this question is a plumb no because Article 103 of Qanune-Shahadat Order 10 of 1984 excludes oral statement as between the parties to any such instrument or their representatives. The rationale behind this Article is that inferior evidence is excluded in the presence of superior evidence that an agreement finding expression in writing is an outcome of deliberate and well thought out settlement; that a party acknowledging a fact in writing is precluded to dispute it and that an agreement reduced into writing is immune from mischief, failure and lapse of memory. It, therefore, follows that oral statements of P.Ws 1 and P.Ws 2 which tend to vary the terms of the deed mentioned above are inadmissible in evidence. 8. The argument that application of this Article can be attracted to the instrument executed between the parties to the litigation and not their witnesses being against the letter and spirit of the Article cannot be given any weight when the Article clearly provides 'that no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representative in interest for the purpose of contradicting, varying, adding to or subtracting from its terms' Thus if the plea of the oral agreement is excluded then there remains nothing on record which could show that the defendant
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' Mst. Latifa ever entered into any agreement of sale with the plaintiff Moiz; paid any consideration to the plaintiff Moiz; there has been settlement of any terms and conditions between them (plaintiff Moiz and defendant Mst. Latifa) or that possession was handed over by plaintiff Moiz or any person authorized by him to deliver possession with reference to sale. In short, I can safely conclude that plaintiff Moiz never executed or entered into agreement oral or in writing with defendant Moiz regarding sale of suit property. 14. Be as it may, let examine the case from another angle. At this juncture the para-5 of the plaint of the defendant Mst. Latifa (Suit No,115/ 2006) which she even referred in her written statement filed in the suit of plaintiff Moiz thereby acknowledging contents thereof), being relevant is referred hereunder:-- 'That with a view to secure the plaintiff towards payment of the balance sale consideration for sale of the house in question, the Defendant No,2, as attorney of the defendant No,1, executed a Tenancy Agreement dated 02.05.2002 which was not meant for use by either of the parties and in the said Agreement, the Defendant No,2 acknowledged the receipt of Rs,19,50,000/- through Cheque No,10457852 drawn on PLS Account No,10334-7, Habib Bank Ltd. Kehkashan Branch, Karachi. A photo copy of the Tenancy Agreement dated 02.05.2002 is filed herewith and actually paid by the plaintiff to the Defendant No,2 towards balance sale consideration for sale of the house in question' . ' Accordingly, the defendant Mst. Latila was required to prove said plea/fact but evidence brought on record is otherwise. Before proceeding further, it must be kept in mind that the date of execution of said Tenancy Agreement and encashment of Cheque, referred in said para and Tenancy Agreement even, is one and same i,e, 02.5.2002 hence the natural witnesses of such transaction (fact) must have been those who witnessed (attested) such document but none from attesting witnesses of such document (Tenancy Agreement) has been produced/examined by the defendant Mst. Latifa which legally permits to draw an adverse inference against the defendant Mst. Latifa that had those witnesses been produced they would not have supported the contradictory plea of the defendant Mst. Latifa that 'it was not a Tenancy Agreement but part payment of earlier oral sale transaction'. This is in line with Article 129(g) of Qanun-e-Shahadat Order 1984. The witnesses of the defendant Mst. Latifa (examined/produced) though, claimed to have witnessed the payment of Rs,19,50,000/- to Mst. Sakina through cheques but does not own least knowledge of Tenancy Agreement so is evident from their evidences:- ' Asghar Ali (attorney of defendant Mst. Latifa) ' 'I cannot say that my sister entered into any agreement of tenancy in respect to the said property. I cannot say that my sister entered into any agreement of tenancy in respect of the said property.' ' Tayab Yahya (witness of defendant Mst. Latifa) ' I am not aware of any tenancy agreement between Mst. Latifa and Mr. Moiz Abbas or Mr. Wali Khan. I put it to you that a sum of Rs,19,50,000/- is mentioned in the agreement referred as the witness has already stated that he is unaware of any agreement. ' Tamir Ali (witness of defendant Mst. Latifa) 'I am not aware of any tenancy agreement between Mst. Sakina…
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