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Petitioner: TARIQ IKRAM and 4 others VS Respondent: Lt. MOHAMMAD SOHAIL ANJUM KHAN and 9 JUDGMENT
Court Name: Sindh High Court Judge(s): Abdul Maalik Gaddi, Muhammad Mazhar Ali Title:TARIQ IKRAM and 4 others vs Lt. MOHAMMAD SOHAIL ANJUM KHAN and 9
JUDGMENT
Reported As: 2019 YLR 1080 Result: Appeal dismissed Judgment JUDGMENT ABDUL MAALIK GADDI, J.--- Being aggrieved and dissatisfied with the judgment and decree dated 15.08.2002 passed by the learned Single Judge of this Court in Civil Suit No,1298 of 1989, whereby the suit filed by the respondents Nos, 1 to 7 for declaration, permanent injunction, mandatory injunctio n, possession, mesne profit and rendition of accounts against the appella nts has been decreed. The appellants have preferred the instant High Court Appeal with the prayer to set aside the impugned judgment and decree and allow the appeal with costs. 2. Briefly the facts of the instant case as stated in the appeal are that plot on which the subject property is constructed, was allotted to late Abdul Ghafoor Khan (hereinafter referred as A.G. Khan) by PECHS/Respondent No,9 under Allotment Order No,1623 dated 14.05.1950 followed by sub-licence in Form 'A' dated 27.3.1955. Late A.G. Khan had constructed house on the said plot and had obtained loan of Rs,13,000/- from the House Building Finance Corporation Karachi for such purpose. Late A.G. Khan had refunded the HBFC loan as per the prescribed schedule. Since late A.G. Khan was unmarried at the relevant time, he had nominated the Respondent No,8, his real brother Abdul Rasheed Khan (hereafter referred as A.R. Khan) (since deceased) as his nominee. In paragraph 3 of the plaint, it was averred that A.G. Khan had expired at Islamabad on 09.04.1973 leaving behind him the Respondent No,2 as widow and Respondents Nos,1 and 3 to 7 as minor children. It was further alleged in para 3 of the plaint that during his lifetime, late A.G. Khan, used to pay all the rates and taxes of the subject property , to collect rent from the tenants inducted by him and to manage the subject property as its owner and landlord. Late A.G. Khan, at the time of his demise, was posted as Accountant in the Federal Ministry of Food and Agriculture. It was averred in paragraph 4 of the plaint that the Respondent No, 2 was Parda Observing/ not much literate, whereas, the Respondents Nos,1 and 3 to 7 being minors could not safeguard and pursue their interest in the subject property . The Respondent No,8, A.R. Khan being real brother and nominee of late A.G. Khan took undue
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advantage of the absence of respondents Nos, 1 to 7 and got mutation of the subject property in his own name in the record of respondent No,9, PECHS and other authorities and had, thus, committed fraud by suppressing the fact of Respondents Nos, 1 to 7 succeeding late A.G. Khan as his legal heirs. In paragraph 5 of the plaint it was averred that in furtherance of the fraud committed by late A.R. Khan, he had executed registered general power of attorney on 10.10.1973 in favour third real brother , namely , K.M. Ikram (predecessor in interest of the appellants). In the year 1976, the. Respondent No,2 had come to know about the fraudulent acts of late A.R. Khan and late K.M. Ikram, both real brothers of late A.G. Khan, against the interest of Respondents Nos, 1 to 7 and she "started making representations and complaints ' to the Federal Ministry of Works as well as PECHS against the abovenamed brothers of late A.G. Khan calling upon the authorities and PECHS to change mutation from the name of late A.R. Khan to the names of Respondents Nos, 1 to 7 but the Ministry of Works and PECHS did not perform their obligation and statutory duties. In para 6 of the plaint it was averred that after the demise of A.G. Khan, his brothers A.R. Khan and K.M. Ikram had started receiving rent from the tenants of ground floor and first floor premises which was misappropriated to the detriment of respondents Nos, 1 to 7. In the year 1976, K.M. Ikram had expired leaving behind him the appellants and respondents Nos, 10 (since deceased) as his legal-heirs. Late K.M. Ikram was himself allottee and owner of adjacent House No,123-B, Block-2, PECHS, Karachi, admeasuring 300 Sq. Yards, and lived there with his family . The Appellants Nos, 1 to 3 and respondent No,10 had joined hands with late A.R. Khan to materialize the fraud in usurping the subject property and continued to collect the rental income thereof. It was averred in paragraph 7 of the plaint that as a result of interventi on and persuasion by common relatives, late A.R. Khan and repented his fraudulent acts had surrendered his status as a nominee and executed a Surrender Deed/Af fidavit dated 05.10.19 83 addressing an application to PECHS for mutation of record of the subject property in favour of respondents Nos, 1 to 7. It was specifically averred that despite such application., PECHS did not change the 'record rectifying mutation in their favour . It was furthe r averred in paragraph 8 of the plaint that in September , 1989, the respondent No,1 was posted at Karachi in Army Aviation Squadron and learnt that the appellants and respondent No,10 had obtained ejectment order of first floor tenant, namely , Mrs. Manzoor Siddiqui and had themselves trespassed into the said tenement. In para 9 of the plaint it was averred that section 27 of the Cooperative Societies Act, 1925, postulating transfer of share in favour nominee, could not override Muslim Personal Law of Inheritance and while the respondents Nos,1 to 7 were entitled to mutation of record pertaining to the subject property in their favour , the appellants and respondent No,10 are liable to pay mesne profits from September 1989 till handing over physical possession of first floor of the subject property to respondents Nos, 1 to 7. In paragraph 10 of the plaint the cause of action for filing the suit was claimed to have arisen on or about 13.11.1989 upon refusal by PECHS to rectify its record despite submission of representations, surrender deed of late A.R. Khan, and finally , in the month of September 1989 when the respondents Nos, 1 to 7 came to know about authorized occupation of first floor premises by the appellants and respondent No,10. 3. It appears from the record that on 19.02.1990, appellants, respondents Nos, 8 and 10 filed their joint written statement and specifically denied the case and claim of the respondents Nos, 1 to 7/plaintif fs. By way of preliminary objections, it was urged that the respondents Nos, 1 to 7 had no cause of action and the suit was barred by limitation besides waiver , estop pel, laches and acquiescence. While denying various adverse allegations it was averred that late A.G. Khan did not have enough financial resources and his real brother late K.M. Ikram had helped him in obtaining the plot on which subject property is constructed by paying membership fee, share money and other amounts. Late A.G. Khan was not in a position to raise construction and, therefore, had applied to HBFC for house building loan which was granted to the extent of Rs,13,000/- against equitable mortgage of the subject property . Notwithstanding the release of house building loan partly (Rs,5000/-), he was unable to commence the construction work with the result that the plot of land on which subject property is constructed, was agreed to be sold by late A.G. Khan to his brother late K.M. Ikram for a total consideration of Rs,12,000/- through sale agreement dated 30.03.1957. The construction of the subject property , as per approved building plan, was undertaken and completed by late K.M. Ikram who had paid entire sale consideration of Rs,12,000/- to late A.G. Khan and had redeemed mortgage dated 18.04.1956 executed by late A.G. Khan in favour of HBFC by payment of entire loan amount by late K.M. Ikram. The said mortgage was redeemed finally on 03.12.1975. The possession of
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the subject property was exclusively with late K.M. Ikram in pursuance of sale agreement dated 30.03.1957. The nomination of late A.R. Khan dated 07.04.1949, was continued with mutual consen t of late A.G. Khan and late K.M. Ikram in terms of the sale agreement dated 03.03.1957 and, the appellants and Respondent No,10 were in possession of the subject property as heirs of K.M. Ikram, who was bona fide purchaser . It was further averted in the written statement that late A.G. Khan had never inducted any tenant in the subject property nor had received rent or managed the subject property at any stage. The construction was completed by late K.M. Ikram from his own funds. In paragraph 3 of the written statement, the names of various tenants who had occupied ground floor and first floor portions of the subject property were clearly stated. According to the written statement, late K.M. Ikram had proclaimed and exercised exclusive rights of ownership in respect of the subject property openly since 1957. While stating respective ages of respondents Nos, 1 to 7, it was specifica lly pleaded that the respondent No,2 was under no disability and being widow could have initiated proceedings for asserting the alleged rights as successor of late A.G. Khan despite knowledge about adverse ownership of the subject property having been proclaimed and asserted by late K.M. Ikram, admittedly , since the year 1976. Late A.G. Khan did not remain owner defacto nor had any interest left in the subject property since the year 1957, which was reflected from the various acts of late A.G. Khan as narrated in paragraph 4 of the written statement. As regards surrender-deed/af fidavit, in paragraph No,7 of written statement, it was averred that in particular , by late A.R. Khan that the respondent No,1, taking advantage of his position in Army , the same was got signed using undue pressure, influence and threat to life. Similarly , application was also got signed through use of force. Thus, claim of respondents Nos, 1 to 7 was denied in its entirety pleading absence of cause of action. 4. From the pleadings of the parties, the learned Single Judge framed the following issues:-- i. Whether the plaintif fs have any cause of action to initiate these proceedings? ii. Whether the suit is barred by law, particularly , the doctrine of waiver , estoppel, latches, acquiescence and law of limitation? iii. Whether the deceased K.M. Ikram constructed the house on plot No,123-A, Block No,2, PECHS, Karachi, repaid the loan to FIBFC and got the property redeemed out of his own funds and resources. If so, to what ef fect? iv. Whether the deceased Abdul Ghafoor Khan, at the time of his death, had any right, title or interest in the suit property . If no, to what ef fect? v. Whether the defendants are in possession of the suit property in their own right since 1957. If so, to what ef fect? vi. Whether the Sale Agreement dated 30.03.1957 between Abdul Ghafoor Khan and K.M. Ikram is a genuine and valid one. If so, whether any legal right to the suit plot stands transferred or conveyed to K.M. Ikram under such Sale Agreement? vii. What is the legal ef fect of the General Power of Attorney dated 10.10.1973? viii. Whether the Defendant No,1 execut ed the surrendered Deed/af fidavit dated 5.10.1983 with respect to suit premises in favour of the plaintif fs. If so, what is the ef fect? ix. What is the legal effect of the mutation of the plot made in favour of the Defend ant No,1 by the Defendant No,8 on the basis of Nomination? x. Whether the Plaintif fs are entitled to mutation of the suit plot in their names, as the legal heirs of the allotee/sub- lessee Abdul Ghafoor Khan in the record of the Defendant No,8? xi Whether the Defendants Nos, 2 to 7 are liable to pay mesne-profit at the rate of Rs,2000/- per month from September , 1989 till the delivery of vacant possession of first floor of the suit house to the plaintif f? xii. Whether the Defendants Nos,1 to 7 are liable to render accounts in respect of the rental income of the suit house received by them to the plaintif f? xiii. What should the decree be? 5. It reveals from the record that in order to prove his case, the respondents Nos, 1 to 7 had only filed affidavit-in- evidence of respondent No,1, Lt. Sohail Anjum Khan son of late A.G. Khan at Ex.5 of the Evidence File and produced certain of documents, which need not to be reiterated here as the same are available in evidence file as Ex.5/1 to Ex.5/ 10 respectively . In his affidavit-in-evidence, the said witness has reiterated the same facts and grounds as agitated in the memo of plaint. This witness has been cross-examined by the counsel for the
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appellants/defendahts. As against this, the appellants/defendants had filed only affidavit-in-evidence of Muhammad Tariq at Ex.6, who also Produced number of documents available in evidence file at Ex.6/ 1 to 6/49 respectively . This witness had also been cross-examined by the counsel for the respondents/plaintif fs. 6. It is contended by learned counsel for the appellants that the impugned judgment and decree passed by the learned Single Judge of this Court is against law and facts. Per learned couns el, the impugned judgment and decree are based on mis-reading and non-reading of evidence as well as based on mis-appreciation and non- appreciation of relevant provisions of statutory law as well as settled precedents of the superior Courts on the subject under reference. Per learned counsel, various contentions on behalf of appellants, were not strictly challenged in the cross-examination yet the learned Single. Judge in chamber has not given any weight to such state of affairs. Per learned counsel, the learned Single Judge in chamber ignored the appellants' contentions, particularly in respect of thirty (30) years old sale agreement duly supported by a power of attorney as well as supported by the proof of construction of entire bungalow by late K.M. Ikram, payment of entire loan amount to the HBFC, Deed of Redemption acquired by K.M. Ikram the installation of electricity and gas by and in the name of K.M. Ikram, the existence of one bungalow/construction on plot Nos,123-A, and 123-B, having common walls without there being marks of any separate construction on both the plots existence of one septic tank for the entire construction on both the plots, common flooring and common roof of the entire construction and beside that, the production of all original documents including allotment order lease-A, and other documents relating to P,E.C.H.S. Karachi and HBFC, construction, tenancy agreements and whatever documents could be available with true owner were produced by the appellants, but no weight whatsoever was given thereto by the learned Single Judge in chamber . Per learned counsel, A.G. Khan predecessor of respondents Nos,1 to 7 had sold out the subject property to his brother K.M. Ikram predecessor of the appellants through an agreement to sell dated 30.03.1957 in the sum of Rs,12000/- and total amount was paid to him, but the said agreement to sell neither challenged by the deceased A.G. Khan during his life time nor respondents Nos,1 to 7 till today and the legal heirs of K.M. Ikram are in possession of the subject property , therefore, according to him, the suit filed by respondents Nos,1 to 7 was barred by law of limitation as well as waiver , estoppel and acquiescence. He further conte nded that respondent No,8 A.R. Khan was nominee of A.G. Khan, predecessor of respondents Nos,1 to 7 in the record of P.E.C.H.S./respondent No,9 and after the death of A.G. Khan, the subject property was transferred and mutated in the name of A.R. Khan on the basis of nomination. He further contended that having transferred the subject property in the name of A.R. Khan (respondent No,8) being nominee respondents Nos,1 to 7 have no right or locus standi to file the instant suit. Learned counsel for the appellants further contended that respondents Nos,1 to 7 did not seek declaration in respect of their own right or character over subject property , therefore, the suit of respondents Nos,1 to 7 was barred by Section 42 of the Specific Relief Act, 1877. Learned counsel for the appellants during the course of arguments, has also reiterated the same facts and grounds, which he has urged in the memo of appeal and the written arguments along with certain case laws which have been perused and considered by us. For the sake of convenience, the case laws cited by learned counsel for the appellants in support of his arguments, is reproduced as follows:-- (i) Syed Hakeem Shah through L.Rs, and others v . Muhamad Idrees and others reported as. 2017 SCMR 316 ; (ii) Rehmat Ali Ismailia v . Khalid Mehmood reported as 2004 SCMR 361 ; (iii) Haji Rehmadil v . The Province of Balochistan and another reported as 1999 SCMR 1060 ; (iv) Abdul Sattar v . Mst. Sardar Begum and 12 others reported as 1992 SCMR 417 ; (v) Karim v . Hajyam Hanifa and 4 others reported as PLD 1970 Karachi 613 ; (vi) Ilyas Ahmed v . Muhammad Munir and 10 others reported as PLD 2012 Sindh 92 ; (vii) Chiiya Corrugated Board Mills Limited v . M. Ismail and another reported as 1992 CLC 2524 ; (viii) Habib Bank Limited v. Paragon Industries (Pvt.) Limited through Chief Executive , and 5 others reported as 2009 CLD 1346 ; 7. Conversely , learned counsel for the respondents Nos, 1 to 7 have supported the impugned judgment and decree by arguing that the impugned judgment and decree has been passed by the learned Single Judge after due appreciation of pleadings of the parties, documents and evidence on record. Per learned counsel, A.G. Khan
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predecessor of respondents Nos,1 to 7 was the owner of the subject property and during his life time, he did not make any agreement to sell in favour of K.M. Ikram predecessor of appellants and the same is forged and fabricated document. He further argued that A.R. Khan was the nominee of A.G. Khan predecessor of respondents Nos,1 to 7 in the record- of P.E.C.H.S/re spondent No,9 and after the demise of A.G. Khan, he fraudulently got mutated the subject property in his name on the basis of nomination and conceal ed the facts about legal heirs of A.G. Khan and K.M. Ikram also in his life time never agitated the enforcement of the sale agreement besides according to him, A.R. Khan in his life time, has also executed the Surrendered Deed dated 5.10.1983 in favour of legal heirs of A.G. Khan, therefore, under the law, there was no need to seek declaration regarding title or legal character of respondents Nos, 1 to 7 over subject proper as they being legal heirs of the A.G. Khan are entitled to inherit the subject property in their names, therefore, suit of the respondents Nos,1 to 7 is maintainable under the law. In support of his arguments, learned counsel for the respondents Nos, 1 to 7 has also filed his written brief synopsis by agitating the same facts and ground which he has urged in the memo of plaint and also relied upon the following case laws. (i) Ali Muhammad v . Hussain Bakhsh and others reported as PLD 1976 SC 37 ; (ii) Mst. Amtul Habib and others v . Mst. Musarrat Parveen and others reported as PLD 1974 SC 185 ; (iii) Yousuf Ali v. Muhammad Aslam Zia and 2 others reported as PLD 1958 SC (Pak) 104; (iv) Mrs. T ahira Dilawar . and 6 others v . Ghulam Samdani and 4 others reported as 1995 SCMR 246 . (v) Fazal Shah v . Muhammad Din and others reported as 1990 SCMR 868 ; (vi) Kamal Alzal Farooqui represented by Legal Heirs v . Begum Shahzada Farooqui reported as 1989 CLC 1 10; (vii) Mst. Rehmat Bibi and others v . Punnu Khan and others reported as 1986 SCMR 962 ; 8. We have given our anxious thoughts to the contentions raised at the bar and have gone through the pleadings of the parties, documents and evidence on record and after going through the record the points for determination to decide this appeal is as under:-- 1. Whether the suit of respondents Nos,1 to 7 was not maintainable and barred by any law? 2. Whether the alleged sale agreement dated 30.03.1957 between A.G. Khan and K.M. Ikram confers any right in favour of K.M. Ikram? 3. Whether the nominee A.R. Khan of deceased A.G. Khan was entitled to becom e owner of the subject property on the basis of nomination and what is the legal value of alleged agreement dated 10.10.1973 and alleged power of attorney allegedly executed between A.R. Khan and K.M. Ikram? 9. POINTS NOs. 1 TO 3. Since the whole controversy of the case revolves towards the points Nos,1 to 3 and these points are interlinked with each other , therefore, we would like to decide the same together . 10. There is no denial to the facts that subject property was originally allotted to the deceased A.G. Khan- predecessor of respondents Nos,1 to 7 on 14.05.1950, sub-license was also executed in his favour on 29.03.1955. It is also matter of record that A.R. Khan, respondent No,8 (brother of A.G. Khan) was the nominee of A.G. Khan in the record of P.E.C.H.S. It appears from the record that A.G. Khan was died on 09.04.1973. leaving behind the respondents Nos,1 to 7 as his legal heirs, thereafter , it also appears from the record that A.R. Khan got mutated the subject property in his name in the record of P.E.C.H.S. It further reveals from the record that respondents Nos,1 to 7/ plaintiffs being legal heirs of deceased A.G. Khan filed Suit for Declaration, Permanent Injunction, Mandatory Injunction, Possession and Mesne Profit and Rendition of Accounts with the prayer that after the demise of A.G. Khan, respondent No,8/A.R. Khan had fraudulently got mutated the subject property in his name which is liable to be cancelled and further prayed that respondent No,9/P.E.C.H.S. be directed to transfer the subject property in their names. As regards to the contention of the learned counsel for the appellants in respect of alleged sale agreement, it goes without saying that title in immovable property cannot be claimed merely on the basis of an agreement to sell as the same does not confer any right, title or interest in the property. Apart from above, record transpires that deceased A.G. Khan predecessor of respondents Nos,1 to 7 was died on 09.04,1973, while as per appellants, A.G. Khan had executed the alleged agreement to sell in favour of K.M. Ikram on 30.03.1957, but nothing on record to show that K.M. Ikram had filed any suit for specific performance of alleged agreement to sell during the life time of deceased A.G. Khan. Not only this, record of the case is also
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silent as to why K.M. Ikram during his life time and his legal heirs/ appellants after his death remained kept mum regarding enforcement to alleged agreement to sell till filing of the suit by respondents Nos, I to 7. In view of the above, suffice it to say that alleged agreement to sell on the basis of which appellants have asserted their rights in the subject property has no value in the eye of law, therefore, question of limitation, waiver, estoppel or acquiescence on the part of respondents Nos,1 to 7 for not challenging the alleged said agreement does not arise at all. 11. As regards to the next contention of learned counsel for the appellants that respondent No, 8, A.R. Khan was nominee of A.G. Khan predecessor of respondents Nos,1 to 7 in the record of P.E.C.H.S/respondent No,9 and after demise of , A.G. Khan, subject property was transferred and mutated in the name of A.R. Khan/respondent No,8, therefore, respondents Nos,1 to 7 have no right or cause of action to file this suit. The contention of the learned counsel for the appellants seems totally misconceived, because nomination of a member under Section 27 of Co- operative Societies Act, 1925, neither operates as a gift nor as a will; nor can the making of a nomination give the right to the nominator at his own choice to change the law of succession which would otherwise be applicable in the case of his death. The status of a nominee is merely that of a trustee of the owner of the property and after the death of owner , nominee remains accountable to the heirs of the owner; therefore, nominee of the deceased could not claim any right in the property of nominator which is otherwise vested in his legal heirs in accordance with of their personal law. As regards to the contention of learned Counsel for the appellants regarding non-seeking of declaration by the respondents No,1 to 7, needless to say that upon death of a Muslim owner , this moveable or immovable property devolves on his legal heirs which is to be distributed or transferred in accordance with Muslim Law of inheritance and for such purpose, his legal heirs need not to seek any authorization or declaration. In this connection, reference can be made to the case titled as Muhammad Nawaz and others v. Fateh Sher and others reported as 2008 SCMR 1658 wherein at paragraph No,7, the Hon'ble Supreme Court held that:-- "It is worth mentioning at this stage that according to Muhammadan Law, upon death of -an owner , devolution of lands, properties or assets automatically takes place, as the succession opens at that time…
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