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Petitioner: Shahimah Sayeed VS Respondent: Base Commander, PAF and 3 others
Court Name: Sindh High Court Judge(s): Muhammad Faisal Kamal Alam Title: Shahimah Sayeed vs Base Commander, PAF and 3 others Case No.: Suit No. 436 of 1993 Date of Judgment:2021-02-26 Reported As: PLD 2022 Sindh 186 Result: Suit decreed
JUDGMENT
JUDGMENT MUHAMMAD FAISAL KAMAL ALAM, J.---Plaintif f has filed the present action at law in respect of an Immovable Property , seeking the following relief. "The Plaintiff therefore prays for Judgment and Decree against the Defendants as follows: - A. A declaration that the Plaintiff being the lessee is legally entitled to the 20 acres under reference and that the Defendants have no right to the 20 acres or any part thereof of the land measuring 20 acres bearing Plot No.22 out of K-28, Trans Lyari Quarters, Hawks Bay Road, Karachi-W est,. Karachi as specifically shown in the photocopy of the Lay-out Sketch Plan being annexures "A" and "G" hereto; B. A Permanent Injunction restraining the Defendants, their associates, employees, servants, agents, subordinates and/or anybody or person(s) claiming or acting through or under them from directly or indirectly disposing of and/or alienating and/or interfering with possession of the Plaintiff and/or from continuing trespass in regard to the Plaint(ff's possession of the land described above and duly specified in the Suit; C. Any other relief(s) which this Honourable Court may deem fit and proper in the circumstances of the case; D. Costs of the Suit." 2. Upon issuance of Summons, the claim of Plaintif f was contested by Defendant No.1 (Base Commander PAF Base Masroor), and Defendant No.3-Federation of Pakistan, through Ministry of Defence; whereat, present Defendants Nos. 2 and 4 (Deputy Commissioner and Province of Sindh through Secretary Land Utilization Department), in their Written Statements have acknowledged the fact that land in question was given to Plaintif f. The Written Statement filed by Province of Sindh (earlier impleaded as Defendant No.6 and later after the filing of amended title it became Defendant No.4) has stated that in the intervening period, the Suit land was cancelled but subsequently regularized in favour of Plaintif f. In paragraph-7 it is stated by the Sindh Government, that land in question belongs to the Province of Sindh-Defendant No.4 and has been rightly allotted and subsequently
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regularized in favour of Plaintif f upon receiving differential price (malkano). It is categorically stated in the Written Statement that there is no record in favour of Defendant-P AF. 3. The dispute is about Plot No.22, measuring 20 acres, claimed to be owned by Plaintif f, carved out from K-28, Trans L yari Quarters, Hawks Bay Road, District W est, Karachi-the Suit Land. 4. Following Issues were framed by the Court vide order dated 16.04.1995 "1. Whether the suit is maintainable against Defendants Nos.1, 2 and 3? 2. Whether the Plaintif fs are lawful owners in possession of the plot of land as described in Suit? 3. Whether the Suit land was granted to the Plaintif f by the Board of Revenue, Sindh? 4 Did the Plaintif f in terms of the allotment of lease effect requisite full payment of Rs.24,20,000/- for the aforementioned plot of land as described in Plaint? 5. Was possession of the Suit land duly handed over to the Plaintif f? 6. Did the Plaintif f with requisite approval ef fect sub-division of the aforementioned plot? 7. Does the P .A.F. Masroor Base (Defendant No.1) have any lawful right to the aforementioned Suit land? 8. To what reliefs) are the parties entitled?" 5. Vide, order dated 20.08.2009, the following Additional Issue was framed. "9. Whether the Suit has been filed unauthorizedly?" . 6. Plaintif f and contesting. Defendant-P AF led the evidence in respect of their claims. On behalf of Plaintif f, her husband [Ashraf All Saeed] as Attorney testified as P-1/1 and produced his Power of Attorney , P-1/29), whereas, Nizam-ud-Din Shaikh [Officer Incharge Work and Revenue Squadron Base Headquarters PAF Base Masroor Karachi] deposed as authorised representative of Defendant-P AF. 7. Mr. Muhammad Vawda, Advocate, representing the Plaintif f, has argued that Plaintiff is a bona fide owner of the Suit land, which was granted to her by Defendants Nos.2 and 4, for the sake of reference be referred to as the 'Sindh Government'. Contended that Defendant No.1 (PAF) has illegally encroached upon a portion of the Suit land and when Plaintif f was threatened by some of the representatives of Defendant No.1, it compelled the Plaintif f to file the present /is with the above Prayer Clause. 8. The above stance of Plaintif f was refute d by Mr. Mohammad. Asif Malik, Advocate appearing for Defendant No.1 and supported by Mr. Ghulam Mohiuddin, learned Assistant Attorney General, who represents Defendant No.3 (Federation of Pakistan). One of the main arguments of Defendants Nos. 1 and 3 is that present suit is not maintainable, because no Board Resolution is appended with the plaint or produced in the evidence, as mandatorily required by Order XXXIX of C.P.C., because the land in question (Suit Property) has been purportedly granted in the name of a Company-Supercon Private Limited by the Defendant- Sindh Government. 9. Arguments heard and record perused. 10. Learned counsel for Plaintif f has referred to the following orders of this Court and observations made therein are mentioned below_ i. Order dated 20.08.2009; the relevant portion of this order is that "Nazir's Report was taken on record and Plaintif f was allowed to complete the boundary wall all around the suit land measuring 20 acres under the supervision of Nazir and it is observed that this fencing would not pre judice the right and contention of either party". ii. Order dated 12.04.2010; inter alia, learned Advocate for Plaintif f complained that the disputed area of 2.27 acres, which is claimed by Defendant-P AF in the 20 acres (of the suit land) regarding which effective fencing was raised by the Plaintif f, has been demolished by Defendant No.1 and its representatives and the said disputed area has been occupied in breach of undertaking given by them to this Court on 15.01.2009 and thus Defendants have committed contempt of Court. However , learned Advocate for Defendant-P AF argued that since at the relevant time land was under occupation of Armed Forces for a joint operation exercise, which was likely to be called off on or before 13.05.2010 and thereafter Defendant-P AF would vacate the disputed land. Mr. Nizamuddin Shaikh, Officer Incharge Works and Revenue Squadron Base Headquarters PAF Base Masroor , Karachi, was also present on the above date and given his Statement in writing in this regard. Mr. Nizamuddin Shaikh is the officer of Defendant- PAF, who has also testified in the present proceeding.
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iii. Order dated 25.05.2010; it was brought to the notice of this Court that Defendant No.1 has vacated the disputed portion of suit land, that is, 2.27 acres and Plaintif f was directed to rebuild the demolished portion of the boundary wall. iv. Vide order dated 08.10.2020, official of Defendant-P AF, namely , Wing Commander Shahbaz Ashraf tendered an unconditional apology before this Court and stated that Air Headquarters was ready and willing to compensate for the damages caused at the Suit Land. It was directed that the cost of reconstruction of damage portion of boundary wall shall be assessed by the Nazir of this Court and be payable by Defendant-P AF to Plaintif f. 11. It is pertinent to mention that when the matter was finally heard although Karachi Port Trust (KPT) was not present but in the intervening period filed a Statement along with order of Hon'ble Supreme Court passed in Constitution Petition No.47 of 2011, Notifi cation nil, dated 05.10.1991 and other decisions. This record furnished by KPT, cannot be considered, as earlier an Application for becoming a party in the present Lis, C.M.A. No.13015 of 2010, filed by KPT , has already been dismissed on 08.09.2020 by this Court. 12. Findings on the issues are as follows: ISSUE NO.1 Affirmative ISSUE NO.2 Affirmative. ISSUE NO.3 Affirmative. ISSUE NO.4 Affirmative. ISSUE NO.5 Affirmative. ISSUE NO.6 Accordingly . ISSUE NO.7 Negative. ISSUE NO.8 Suit decreed. ISSUE NO.9 Negative REASONS ISSUES NOS. 1 AND 9. 13. Both these Issues relate to maintainability of the present suit and are thus decided first. Gist of the case law relied upon by Plaintif f's counsel is that instrument of governm ent grants is not required to be compulsorily registrable under Section 90 of the Registration Act. 14. Crux of the case law cited by the learn ed Advocate for Defendant-P AF is, that when a plaint is filed on behalf of a Company without a resolution of the Board of Directors, then it is an illegality and the proceeding/suit is not maintainable; even a Board Resolution authorizing a person to file a suit on behalf of a Company , should be passed by a duly convened meeting of Board of Directors; non-filing of either Articles of Association of a Company or resolution either with the plaint or in the evidence in a suit preferred by a corporate entity would be fatal and not a curable defect. A lessor in order to grant a lease or sub-lease of 99 years must have with him the authority and similar right to lease or vested with a perpetual ownership to transfer land to other; mere entry in the record of rights cannot be equated with owners hip/title; non-registration of a document which requires compulsory registration under Section 17 of the Registration Act, 1908, carries no legal value and does not transfer any valid right and interest to a transferee/claimant under such document [instrument]. 15. Learned Advocate for Plaintif f has referred to the original plaint in which the original Defendants were Base Commander (Defendant No.1), Wing Commander-Malik. Altaf (Defendant No.2) and Flight Lieutenant-A yub (Defendant No.3). Subsequently vide order dated 15.01.2009, the erstwhile Defendants Nos. 2 and 3 were dropped. Since main dispute is between Plaintif f and Pakistan Air Force, which is impleaded through its Base Commander , therefore, the present suit is maintainable against Defendant No.1. Hence, Issue No.1 is answered in Affirmative. Adverting to Issue No.9 . It is vehemently argued by learned Advocates for Defendant No.1 (PAF) and learned Assistant Attorney General for Pakistan, representing Defendant No.3 (Federation of Pakistan ), that since land was allotted in the name of a Company , there fore, there should be a Board Resolution authorizing the present Plaintif f to proceed with the matter , failing which, the present suit is hit by Order XXIX, Rule 1 of Civil Procedure Code
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(C.P.C.), as compliance whereof is mandatory . Learned counsel for Plaintif f has refuted the above line of arguments and has referred to various documents produced in the Evidence. The Written Statement of Defendant- Sindh Government has stated that the suit plot was granted to "Plaintif f Shahimah Sayeed ", while disputing the claim of present Defendant-P AF over the Suit Property . Following documents, which were produced in the evidence by Plaintif f witness are relevant for deciding this Issue_ i. Allotment Order dated 29.09.1992- Exhibit P-1/2 , wherein it is stated, inter alia, the Suit Property has been leased out on 99 years lease "in favour of Director , Supercon Private Limited". ii. Agreement Deed is produced as Exhibit P-1/3. This document mentions the Plaintif f so also that she is Director of Supercon Private Limited. It is executed between the official of Sindh Government (Defendant No.4) and Plaintif f in her personal capacity . iii. Possession Order is produced by the Plaintif f as Exhibit P1/4. It mentions the name of Plaintif f and Director of above Company . It is executed by Plaintif f in her personal capacity and City Surveyor (official of Defendant No.4), confirming the handing over of physical possession of suit land to Plaintif f. iv. Mutation Entry in the name of Plaintif f in the Record of Rights is produced is Exhibit P-1/5. v. Post regularisation extract of ownership was issued, viz. Form 2, showing the name of Plaintif f as Director of above Company . This document is exhibited as P-1/9(b). All the above documents are part of the official record and has not been questioned by the official Defendants Nos.2 and 4, rather acknowledged by them. In the above documents it is not mentioned that the suit land belongs to the SUPERCON (Pvt.) Limited. vi. Record of Wealth Tax for the Assessment Year 1999-2000 has also been produced in the evidence. Order of the Deputy Commissioner of Incothe Tax and Wealth Tax has been exhibited as Exhibit P-1/24, in which the Suit Land is mentioned at serial No.2 as personal property of Plaintif f. vii. Wealth Tax Returns of subsequent years were also produced in the evidence, showing that the Suit Land has been mentioned as one of the personal assets of present Plaintif f. These Wealth Tax returns and order passed thereon by the competent authority are exhibited as P-1/25, P-1/27 and P1/28. 16. hi order to substantiate his arguments, learned counsel for the Plaintif f has also referred to the documents filed by the above named Company Supercon Private Limited with the competent Autho rity-The Security and Exchange Commission of Pakistan [SECP]. These documents are produced as part of Exhibit P-1/28 (as endorsed by the learned Commissioner before whom evidence was recorded). The Form 29 in which particulars of Directors and officers of a Company are mentioned has been exhibited as P-1/30 , showing Plaintif f is/was a Director at the relevant time, (of Supercon), which had a Board of Directors comprising of three Directors, namely , (i) Ashraf Ali Sayeed, who is the husband of present Plaintif f and has also testified on her behalf; (ii) Shahimah Sayeed-the Plaintif f herself and (iii) Ms. Nadia Sayeed, the daughter of Plaintif f. Counter-af fidavit of Defendant-P AF filed in the present Lis to one of the interlocutory applications of Plaintif f, has also been referred to by her counsel in support of his arguments and to highlight the contradictory stance of Defendant-P AF This counter-af fidavit has been exhibited as P1/33, wherein the Defendant-P AF has basically challenged the allotment of suit land in favour of Plaintif f and not the above named Company of which Plaintif f was one of the Directors. 17. The authenticity of the above documents (except for Exhibit P-1/3), have not been challenged by the contesting Defendants, which clearly show that Plaintif f was/is a Director of a family owned Company . Stance of Defendant- PAF about the above referred document, Exhibit P-1/3 will be discussed in the paragraph to follow . Secondly , the above evidence also proves that Suit Land was allotted in the personal name of Plaintif f and not the Company , as also admitted in the Written Statemen ts of Defendants Nos. 2 and 4 {Deputy Commissioner and Sindh Government}, which allotted and subsequently regularised the Suit Land. Thirdly , if the allotment would have been made in the name of Company/the said SUPERCON (Pvt.) Limited, then the above documents relating to the suit land including the Allotment Order [exhibit P-1/2] should have mentioned the name of above Company only and not Plaintif f as Director of the said Company . Fourthly , the original and the amended Written Statements filed by Defendant- PAF have been examined. In both Written Statements, contesting Defendant-P AF has questioned the maintainability of present /is on the ground of applicability of Articles 173 and 274 of the Constitution and Section
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56(d) and (j) of Specific Relief Act, [applicability of these Articles and provisions will be discussed in the following paragraphs] but no plea with regard to applicability of Order XXIX, Rule 1 of C.P .C. is mentioned. 18. In view of the above, the arguments of legal team of contesting Defendant-P AF and Federal Government are misconceived in nature and cannot be accepted. Consequently , Issue No.9 is answered in Negative, that for filing the present Lis, no prior authorization was required by the Board of Directors of Supercon Private Limited, as the official documents show that the allotmen t was made in favour of Plaintif f and not the said Company . However , it is clarified that this Issue is decided without pre judice to the findings on other Issues, particularly , that it is yet to be decided/determined that whether the claim of Defendant-P AF with regard to the Suit Land is genuine or of Plaintif f. ISSUES NOS.2,3 AND 7. 19. In the Written Statement, stance of Defendant-P AF is that suit land is part of the PAF Masroor Base, which is on an area of 5510 Acres. This entire Base land belongs to Ministry of Defence, Government of Pakistan- Defendant No.3 and was requisitioned by the erstwhile Government of India during World War-II for the efficient operational use of Air Force (the then Royal Air Force) and subsequently it is in present use of Defendant-P AF. It is further averred that Defendant-Sindh Government has no jurisdiction to allot the Suit Land to any private person as after its requisitioned it was permane ntly transferred vide Governor General Order No.15 of 23.07.1948 {Establishment of the Federal Capital} and subsequently by the Presidential Order No.9 of 1961 dated 29.06.1961, viz. West Pakistan Administration (Merger of the Federal Territory of Karachi). It is claimed that land which is situated between Survey Pillar Nos.46, 47 and 48 is part of the Masroor Base of Defendant-P AF, hence, part of suit land belongs to Defendant- PAF. Possession of the Plaintif f is also disputed. To augment the afore referred stance, the learned counsel for Defendant-P AF has cited the case-law Supra; prcis of which is that pleadings/W ritten Statement even containing an admission does not carry evidential value, without examining the concerned party; a suit if it is proceeded ex-parte against defendant, yet burden to prove is on plaintif f to succeed in his claim, specially when he is claiming title over a property; no statutory presumption of correctness is attached to "khasara girdawari". Learned defence team has also cited the three judgments relating to K-28 Trans-L yari, two of which are reported decisions already mentioned in the opening part of this decision, viz. Metalex and Shehri: CBE cases and third one is an unreported judgment of this Court given in Suit No.843 of 2004 - Mohammed Zahir Shah v. Province of Sindh and others , is enclosed with the written arguments of learned counsel for Defendant-P A F, available in the record. The last mention decision in which Karachi Port Trust (KPT) was also one of the defendants, was decreed by this Court, inter alia, while rejecting the claim of KPT in respect of K-28 Trans-L yari (where the present suit land exists) and allotment of plaintif f given by Government of Sindh in Phase-2 of K- 28 was upheld; whereas, in Metalex case (ibid), this Court has, discussed the Article 172 of the Constitution and explained the concept of continental shelf and held that a dry land, reclaimed through receding sea should belong to the Province, while holding that in terms of Sections 3, 25, 26 and 27 of the KPT Act, inter alia, prescribing the territorial limits of KPT, does not confer proprietary rights of all that land which falls within the jurisdiction of KPT but such limits is a functional jurisdiction. It was held that Phase 1 of K-28 Trans Lyari Quarter Hawke's Bay Road,. District West Karachi is not owned by KPT but by Government of Sindh [present Defendant No.4]; whereas the Sherri: CBE case handed down by the learned Division bench of this Court has dismissed the petition of the petitioner (Shehri : CBE) together with their claim in respect of KDA Scheme 42. Learned counsel has relied upon the recommendations of Chief Secretary which was incorporated in the above reported judgement, that the K-28 area is not feasible for industries; but on the other hand, the said recommendation of the Committee headed by Chief Secretary as mentioned in the above judgment, inter alia, states that Scheme 42 and K-28 are separately located, where factories, godowns, warehouses and residential houses, exist. In this judgment learned Division Bench has dilated upon the issue of entitlement of a person in terms of Colonization Act. It is held that "subsection (4) of Section 10 directs that no person shall be deemed to be a tenant or to have acquired any right, title or interest in, the land allotted in his/its favour until such a written order has been passed by the Board of Revenue/Provincial Government and he/it, has taken over possession of the land with permission of the collector ...".
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Evidence evaluated. The geographical location of the suit land has not been disputed; which abuts on main Hawks Bay Road, on the opposite side of which is the P AF Masroor Base. 20. It appears that contesting Defendant-P AF has changed its stance in respect of area of the suit land, because in their Written Statement, they have questioned the entitlement of Plaintif f with regard to the suit land but in due course as the above Orders show , that they have limited their claim only to the extent of 2.27 Acres (of the Suit Land). 21. To prove her claim, Plaintif f has produced the following documents relating to the suit land, which have been duly exhibited: i. Allotment Order dated 29.02.1992- Exhibit P-1/1, stating that an area of 20 acres from K-28, Trans Lyari Quarters, main Hawks Bay Road, Karachi-W est, Karachi is allotted in favour of Director Supercon Private Limited for Industrial/Commercial purpose. ii. Agreement Deed- Exhibit P-1/2 , executed between Mukhtiarkar West, Karachi, one of the officers of Defendant No.4-Sindh Government and the Plaintif f herself. Salient feature of this Agreement Deed is that it states about the occupancy value and 99 years lease. This document also contains a site sketch, which shows that the suit land is abutting on 300 ft. wide Hawks Bay Road. iii. Possession Order- Exhibit-P-1/3 (as already discussed above). iv. Extract of ownership with a caption "PROPER TY REGISTER FOR THE CITY OF KARACHI? containing the entry in respect of the suit land in favour of Plaintif f. v. A notice dated 06.06.2002- Exhibit P-1/5 by Defendant No.4 (from the Land Utilization Department) informing the Plaintif f that her allotment has been cancelled in exercise of power under Section 3 of the said Ordinance III of 2001. Plaintif f was called upon to appear before the Committee. vi. Correspondence of 04.12.2003 from Defendant No.4 (Land Utilization Department)- Exhiblt-P-1/6 , addressed to Plaintif f, whereby she has been offered to pay a differential price as assessed by the Committee under the above Ordinance III of 2Q01, for regularization of allotment. vii. Document dated 10.12.2007- Exhibit P-1/7, issued by Defendant No.4 (Land Utilization Department), wherein it is mentioned that Government of Sindh (Defendant No.4 herein) has been pleased to regularize / restore the suit land on payment differential sale price (differential malkano ) of Rs.10,580,000/- (rupees ten million five hundred eighty thousand only ) paid by the Plaintif f. viii. Extract of ownership of subsequen t date, that is, 23.05.2008, issued by Mukhtiarkar working under the supervision and control of Defendants Nos. 2 and 4 (Deputy Commissioner and Government of Sindh) to Plaintif f on her application. These documents FORM NO.2 are exhibited as P-1/9(a), (b), (c), (d) and (e). In the remarks column, it is stated by the official, that in pursuance of the order of the Government of Sindh Land Utilization Department dated 10.12.2007 (which is referred hereinabove), and on payment of annual ground rent from the period of 1991 to 2008, the mutation entry is hereby regularized/ restored . In this FORM NO.2 in Column No.4, Plaintif f is mentioned as Owner and Column No.14 relating to period of lease, it is stated that "99 years from 29.02.1992". ix. The document captioned 'Pay Order Confirmation' issued by the Royal Bank of Scotland (RB S), which has been exhibited as P1/20, addressed to Plaintif f (in person) and is of 03.02.2009, wherein the RBS has confirmed that an amount of Rs.10,580,000/- (rupee s ten million five hundred eighty thousand only) has been issued in the name of Board of Revenue Sindh dated 22.07.2006 from the Bank Account of Plaintif f. x. Plaintif f's attorney has produced a Statement filed in the proceeding on behalf of Defendant-P AF, as Exhibit-P- 1/12. With this Statement, various correspondences are enclosed showing that Defendant -PAF has called upon Defendant-Government of Sindh for allotment of land. These documents for the sake of reference be referred to as second set of exhibits, which are mentioned below a) Correspondence dated 23.06.2003 from Ministry of Defence (Defendant No.2)…
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