Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Mst. SALMA ABBASI AND ANOTHER VS Respondent: AHMED SULEMAN AND 2 OTHERS
Court Name: Sindh High Court Judge(s): Ajmal Mian Title: Mst. SALMA ABBASI AND ANOTHER vs AHMED SULEMAN AND 2 OTHERS Case No.: Suit No. 52 of 1975 Date of Judgment:1980-06-03 Reported As: 1981 CLC 462 Result: Suit dismissed
JUDGMENT
JUDGMENT This is a suit for the recovery of mesne profits and for possession. The facts leading to the filing of the above suit shortly as disclosed in the plaint are that Survey No, 616 situated in Deh Gujro Taluka Karachi, measuring one acre stands jointly in the names of defendant No. 1 and others including Hindu Visram Nursymal and others in the record of rights and that the share of Hindu in the above survey number was 0-4-3/4 paisa which comes to about 10 ghuntas (1210 sq. Yds). It has been averred that the above evacuee interest was transferred to one Ebrahim Raj Mohammad in lieu of his claim for Urban Agricultural land under the provisions of the Displaced Persons (Land Settlement) Act, 1958, and that Deputy Commissioner and Additional Settlement Commissioner (Land) and Chairman, Allotment Committee, Karachi on 15-7-1971 issued Parchi (Taqseem), Khatooni and that the possession thereof was given to said Ibrahim Raj Mohammad by the Rehabilitation, Mukhtiarkar. It has been further averred that subsequently the Rehabilitation, Mukhtiarkar also divided the survey number in the 2 sizes i.e, evacuee and non-evacuee as per partition order attached to the plaint. It has also been averred that the plaintiffs purchased the aforesaid share of Ibrahim Raj Muhammad in the aforesaid survey number. It has further been averred that the land being used by the defendants for growing grass and also for commercial purpose, and that defendant No, 2 is running a hotel in the semi- pucca building, and that the defendants started constructing shops. It has also been averred that the plaintiffs are entitled to get the possession of the disputed land of the 10 ghuntas (1210 sq. Yds.) of the above survey, and that they are also entitled to recover mesne profit at Rs, 500 per month from 15-7-1971, but they are claiming for the period from 1-1-1972 to 31-12-1974 only amounting to Rs, 18.000. On the basis of the
---
## Page 2
above averments the plaintiffs have claimed the above reliefs and have also claimed further mesne profit at the rate of Rs, 500 from 1-1-1975 till possession. 2. (a) Defendants Nos. 1 and 2 have filed a joint written statement, wherein it has been averred that originally the survey number of the suit land was 213 measuring 15 acres and 6 ghuntas, and that defendant No. 1 owned an undivided share of 0-6-01/8 in the said survey number and that the remaining share in the said survey number was owned by the following persons :- (1) Haji Haroon 0-5-3. (ii) Visram Nursymal (Hindu) now evacuee 0-2-8(1/2). (iii) Seth Dayaldas Amarnath (Hindu) 0-2-4(1/2). (iv) Ghulam Dastageer 0-0-8(1/8). It has also been averred that subsequently by a sale deed dated 17th May, 1946 duly registered with the Sub Registrar, Karachi as document No, 939 at pages 122 to 129 Vol. 741 of book No. 1 on 21st June, 1946, the aforesaid undivided 0-1-4f share of the above Hindu Co-owner Seth Amar Nath Dayaldas was purchased jointly by defendant No. 1 and other co-owner Ghulam Dastagir, and that thereupon, defendant No. 1 became the owner of undivided share of 0-6-8f in the said survey number and that the remaining share in the said survey number was owned by the following persons in the following proportion :- (1) Haji Haroon 0-5-3. (ii) Visram Nursymal 0-2-8(1/2). (iii) Ghulam Dastageer 0-1-4(1/2). (b) It has been further averred that the Government had acquired out of the aforesaid survey number 213 a portion measuring 14 ghuntas for Railway, 29 Ghuntas for Sui Gas Pipe Line and 2 acres and 7 ghuntas for Road, and that after the above acquisition the aforesaid survey number was partitioned into following 3 survey numbers :- (i) Survey No, 213 measuring 4 acres 13 ghuntas. (ii) Survey No, 56 measuing 6 acres and 19 ghuntas. (iii) Sutvey No, 616 measuring 1 acre. ' It has also been averred that defendant No. 1 owned an undivided share of 0-6-81 and that the remaining shares in the said survey number is owned by the following persons :- (i) Haji Haroon 0-5-3. (ii) Visram Nursymal (Hindu) now evacuee 0-2-81. (iii) Ghulam Dastageer 0-1-4k. It has also been averred that defendant Nos. 1 and 3 are in physical' possession of the suit land since last 50 years and that the share of the Hindu co-owner in the land in suit was to the extent 0- 2-81 which was declared evacuee. It has further been averred that the land in question was declared as a building site, and, therefore, could not have been transferred to Ibrahim Raj Muhammad against the claim for agricultural land and that defendant No. 1 was entitled to the transfer under the Martial Law Regulation No, 86. It has been denied that the possession of the suit land was given to said Ibrahim Raj Muhammad by the Rehabilitation Mukhtiarkar. It has been averred that the alleged partition carried out by the Rehabilitation Mukhtiarkar is illegal and is not binding and that it was one-sided arbitrary and partial. It has also been averred that the alleged transfer of the ownership of 10 Ghuntas in the land in suit in favour of Ibrahim Raj Muhammad was illegal. It has also further been averred that defendants Nos. 1 and 2 have constructed 2 shops which they have been using. Whereas defendant No, 3 has constructed 5 shops. It has been denied that the defendants are in possession illegally or unauthorisedly of any portion of the land. It has also been denied that plaintiffs are entitled to recover possession or mesne profits. 3. Defendant No, 3 has also filed a written statement, wherein it has been denied that the possession of the suit land was given to Ibrahim Raj Muhammad by the Rehabilitation Mukhtiarkar.
---
## Page 3
It has been further averred that defendants are in possession of the suit land for the last 50 years. It has also been averred that the answering defendant has constructed 5 shops on the land of defendant No. 1 with his prior permission on the basis of settlement between them. It has been denied that the plaintiffs are entitled to recover possession or mesne profit. The. Above defendant has also raised additional pleas to the effect that the suit is not competent, that the suit is misconceived as the legal partition between the plaintiff and the other co-owners has not been made, and that the suit is mala fide. It has also been averred that defendant No, 3 also claims ownership by adverse possession. 4. On the basis of the above pleadings, the following issues were framed: "(1) Whether the defendant No. 1 owns 0-6-81 in a rupees share in the land in suit as alleged by him ? (2) Whether the evacuee share in the land in suit is 0-2-8} as alleged by the defendants Nos. 1 and 2 or 0-4-01 as alleged by the plaintiff? (3) Whether the ownership of the evacuee share in the land in suit was transferred to Ibrahim Raj Muhammad as alleged by the plaintiff? (4) Whether the alleged transfer of the evacuee share in the land in suit in favour of Ibrahim Raj Muhammad is illegal? (5) Whether the transfer of share in excess of 0-2-8i in the land in suit in favour of Ibrahim Raj Muhammad is illegal? (6) Whether the possession of any portion of the land in suit was delivered by the Rehabilitation authorities to Ibrahim Raj Muhammad? (7) Whether the alleged partition of the evacuee share in the land in suit by the Rehabilitation Authorities is illegal and incompetent? (8) Whether the alleged purchase of the alleged evacuee share by the plaintiffs from Ibrahim Raj Muhammad is illegal and does not confer any right on any portion of the land in suit on the plaintiff ? (9) Whether the defendant No, 2 has been impleaded without any cause whatsoever ? (10) Whether the suit is incompetent, bad in law and partition of the alleged share of the plaintiffs in the land in suit? (11) Whether the plaintiffs are entitled to claim occupation charges for their alleged share in the land in suit from the defendants ? If so, at what rate and for what period ? (12) Whether defendant No, 3 is owner of the land in his possession by adverse possession ? (13) To what relief, if any, are the plaintiffs entitled ? My findings on the above issues are as follows: 5. Issue No, I.-It is an admitted position that defendant No. 1 has not produced any documentary evidence to prove that he owned the land in the Suitvey number in question to the extent of 0-6-8} in a rupee. However, Mr. Ashiq Abdullah, learned counsel for defendants Nos. 1 and 2 has relied upon the statement of Haider D. W. Exh. 7 to the effect that "it is correct that my father was paid compensation for the above land to the extent of 6 annas 1/8 pie". It has been urged by Mr. Ashiq Abdullah that since the above reply was given by the above witness in reply to the suggestion made' eye the learned counsel for the plaintiffs. The above suggestion amounted to an admission on the part of the plaintiffs that defendant No. 1 owns to the extent of 6 annas 1/8 pie. In my view no such inference can be drawn. Even otherwise defendant No. 1 was to prove that he owned 0-6-81 share in a rupee in the land and not 0-6-1/8 as was suggested in the above question by the learned counsel for the plaintiff. The burden of proof of the above issue was on defendant No. 1, which he has failed to discharge. On the contrary the documents on the record Exhs. 6/1 and 6/6 indicate that defendant No. 1 owns to the extent of 6(1/2) annas. My finding on the above issue is in the negative.
---
## Page 4
6. (a) Issue Nos. 2 to 5.-Issues Nos. 2 to 5 can be taken up conveniently together. It has been vehemently urged by Mr. Ashiq Abdullah that from the record it has been proved that the plaintiffs' predecessor in interest had acquired share to the extent of 0-2-8(1/2) and not 0-4-(3/4), whereas it has been urged by Mr. Azhar Ali Siddiqui that it has been proved that in fact the plaintiffs' predecessor in-interest had acquired the share in the suit land to the extent of 0-4-3/4. In this regard Mr. Azhar All Siddiqui has referred to Exhs. 6/1, 6/2, 6/5, 6/6, 6/9, 6/10 and 7/1. It may be observed that Exh, 6/1 is a provisional partition order dated 8th October 1975 passed by the Rehabilitation Mukhtiarkar and Assistant Settlement Commissioner (Land), Karachi, suggesting the partition of the survey in question and inviting the objection from the Muslim Co-owners namely, MIS Ahmed Suleman Baluch (defendant No. 1) Haji Abdullah Haroon and Ghulam Dastgeer. In the above provisional partition order the following shares of the various co-owners are shown: Survey No. Deh Area Name of Co-SharerExtent ShareAre of Share 1 2 3 4 5 6 616 Gujro 1-0 Acre Visram Nursymal & others Ahmed Suleman Baloch Haji Abdullah Haroon Ghulam Dastageer s/o Ahmedshah0-4-3/4
0-6(1/2)
0-5-3
0-0-8(1/2)Acre- Ghantas 0-10-5/32
0-15-5/192
0-13-1/2
0-1-133/192 It may be observed that the evacuee interest shown in the above order was to the extent of 0-4- 3/4. Exh. 6/2 is the corrigendum dated 8th October 1974 correcting the mistake about the descriptions of the colour in respect of the Muslim Owners. Whereas, Exh. 6/6 is the final partition order wherein, in para. 5 at page 1, it has been stated that notice has been issued in compliance with the direction of the Hon'ble High Court dated 28-5-1975 in Suit No, 52/74 (i,e, the instant suit). The notice was served on all the co-owners. After perusing the objections filed by defendant No. 1 the Rehabilitation Mukhtiarkar and Assistant Settlement Commissioner (Land) Karac hi, in his detailed order confirmed the aforesaid provisional partition order. Whereas Exh. 6/8 is Parchi Taqseem Khatooni. In the above document two survey numbers are mentioned i,e, Survey Nos. 213/616 and 2/3/563 and the area shown above two survey numbers is 10 and 21 Ghuntas respectively. Whereas in the column of the owners, against the name of Visram Nursymal share to the extent of 0/2/8(1/2) is mentioned and whereas against Mewa Ram Jetharam the share to the extent of 0/1/4(1/2) is shown, thus making a total of 4,3/4 annas of the evacuee interest. Whereas Exh. 6/9 is form 7 from the revenue record of rights. In the above document in the column of the transfer of the interest, the name of Visram Nursymal and another is mentioned. However, the entry relating to the extent of share i,e, 0-2-8(1/2) has been crossed out without any initial. However, the area transferred shown in favour of Ibrahim Raj Muhammad is 10 ghuntas. Exh. 6/10 is a photostat copy of another form 7 indicating the transfer of 10 ghuntas in favour of the present plaintiffs out of survey No, 616. Whereas Exh. 7/1 is variation form (Ghat Wadh Jo form) indicating the areas of the 3 new survery numbers carved out from the original Survey No, 213.
---
## Page 5
(b) It has been urged by Mr. Ashiq Abdullah, learned counsel for defendants Nos. 1 and 2 that from Exhs. 6/8 and 6/9, it is evident that the plaintiffs' predecessor in interest was transferred only to the extent of 10-2-81and that the description of the area as 10 ghuntas has been given by mistake. Whereas it has been urged by Mr. Azhar Ali Siddiqui learned counsel for the plaintiffs that the evacuee interest was to the extent of 4 annas paisa, which was owned by two evacuees namely, Visram Nursymal and Mewaram Jetharam. The contention of Mr. Azhar Ali Siddiqut seems to be correct. If we read the above documents together, it becomes clear that the evacuee interest in the survey number in question was to the extent of 4 annas 3/4 paisa, which was owned by the two above evacuees in proportion of 2-2-8(1/2) and -/1/4 respectively. It is true that in Exh. 6/9 the scoring out of the figure 0-2-8(1/2) has not been initialed in the column of the transfer, but at the same time in the above column the name of Visram Nursymal and the word "another" is mentioned against the survey number in question, and therefor; the share of Visram was only to the extent of 0-2-8(1/2), and whereas the share of the another Hindus evacuee was 0-1-4(1/4). Furthermore, the area given is 10 ghuntas, which works out 4 annas 3/4 paisas. It may be pertinent to observe that the partition order Exh. 6/6 is a very detailed order containing history of the various survey numbers and the description of the respective share of the various co-owners. It has been urged by Mr. Ashiq Abdullah that since the above partition orders Exhs. 6/1 and 6/6 are without jurisdiction, they cannot be looked into. I will advert to the above aspect while dealing with issue No, 7 hereinbelow. However, it will suffice to observe that even if we ignore Exhs. 6/1 and 9/6, there is sufficient other documentary evidence on the record to conclude that the evacuee interest was to the extent of 4 annas 3/4 paisas. (c) It may be observed that it was urged by M/S Ashiq Abdullah and Umrani, that as the survey number in question was declared as building site, any portion of the same could not have been transferred to Ibrahim Raj Muhammad against his claim for urban Agricultural land. In this regard Mr. Ashiq Abdullah has referred to a notification dated 2-5-1964, but has not produced the same, and, therefore, there is nothing on the record to conclude with the survey number in question was declared as a building site. On the contrary in the above aforesaid partition order dated 12-9-1975, it has been clearly mentioned that the land in suit was never declared as a building site. Be that as it may in my view even otherwise. I cannot go into the above question since the order of the transfer has become final under the relevant provisions of law. If defendant No. 1 or any other person aggrieved by the aforesaid transfer in favour of Ibrahim, he could file an appeal/revision and or other appropriate legal proceeding in this regard. But this Court cannot go into the above question in view of section 25 of the Displaced Persons (Land Settlement) Act, 1958. My finding on issues Nos. 2, 3, 4 and 5 are accordingly that Ibrahim Raj Mohmed was legally transferred evacuee interest to the extent of 10 ghuntas equivalent to 4 annas and 3/4 paisas in the survey number in question. (7) Issue No, 6.-In para. 4 of the plaint the plaintiffs have averred that after the transfer the possession was given Ibrahim Raj Mohomed by the Rehabilitation Makhtiarkar, Karachi. It has been submitted by Mr. Azhar Ali Siddiqui, learned counsel for the plaintiffs that in fact constructive possession was given and not physical possession. From the evidence on the record it is clear that no physical possession was given to Ibrahim Raj Mohomed. However, by virtue the transfer of the evacuee interest in an undivided survey number, he became joint-sharer and shall be deemed to be in constructive possession. My finding on this issue is accordingly that no physical possession was given to Ibrahim Raj Muhammad, but he shall be deemed to have acquired constructive possession. 8. (a) Issue No, 7.-This appears to be a very important issue, it has been urged by Mr. Ashiq Abdullah that the alleged partition effected by the Rehabilitation Mukhtiarkar is without jurisdiction. In support of the above contention he has referred to the case of Abdal Ghani v. Settlement and
---
## Page 6
Rehabilitation Commissioner, Hyderabad and Khairpur and 5 others (1) and also unreported judgment dated 13-9-1978, in the case of Channan and others v. Settlement Commissioner (Land), Sind, Hyderabad and others given by my learned brother Nusrat J. In Constitution Petition. No, 709/1973. In the above Karachi case of 1971, a Division Bench Comprising Inamullah and Wahiduddin JJ. (as their Lordships then were) have held that the Settlement Authorities are not competent to partition property jointly owned by evacuee and non-evacuee and that the only remedy is either to arrive at a private partition or to have recourse to a Civil Court, It may be observed that the above case related to an urban immovable property and not agricultural land. The above judgment was upheld by the Supreme Court in Civil Appeal K-222 of 1966 by a judgment dated 24th January 1969, Whereas my learned brother Nusrat J. In Constitution Petition No, 709/73. Relating to agricultural land, held that the partition affected by the Settlement Department was without jurisdiction. The reliance was placed on the above D.B. Karachi case and the aforesaid Supreme Court judgment. (b) Whereas Mr. Azhar Ali Siddiqui learned counsel for the plaintiffs has urged that the above Karachi case is not applicable to the instant case inasmuch as the aforesaid case related to urban immovable property which is the subject-matter of a different enactment, and, whereas the instant suit pertains to agricultural land, which is governed by the Displaced Persons (Land Settlement) Act, 1958. His further submission was that under para. 15 of the Scheme I, relating to agricultural land, it has been expressly provided that the competent Rehabilitation Authority will have the power of partition of non-evacuee and evacuee interest in the agricultural land, and, therefore, Exhs. 6/1 and 6/6 are legal orders. It may be advantageous to reproduce the above para. 15 which reads as follows :- "15. Partition of joint khatas or joint allotmentse-The competent Rehabilitation Authority will partition joint khatas of Muslims and non-Muslims in West Pakistan in the manner prescribed below where there is no hissadari qabza and allot evacuee area of the partitioned land to the claimant under the Rehabilitation Settlement Scheme :- (1)A Rehabilitation Authority may either of its own motion, or on an application made to it in this behalf, order in writing the partition of the shares of an evacuee out of joint property. It has been urged by Mr. Ashiq Abdullah learned counsel for defendants Nos. 1 and 2 that the above para. Can be pressed into service before evacuee land in question was transferred by the Settlement Department, and not after its transfer. It may be observed that in the present case Paichi Taqseem Khatooni was issued on or about 15-7-1971, whereas first provisional partition order is slated 12-9-1975. In sub-para. 2 at page 5 in the aforesaid final partition order Exh. 6/6, it has been stated that defendant No. 1 submitted his objections dated 5-7-1971 before the Rehabilitation Mukhtiarkar, and Assistant Commissioner (land) who had passed the order No, DSC/L/1627/71 dated 31-9-1971, partitioning evacuee and non-evacuee share. From the above order, it appears that before Parchi Taqseem Khatooni Exh. 6/8 was issued, there were proceedings for partition pending, which culminated in the order dated 31-7-1971 referred to in the aforesaid order dated 12- 9-1975. The above order dated 31-7-1971 is not on the record, and therefore, it cannot be said, what was the contents of the said order. In the above judgment of my learned brother Nusrat, J. Dated 13-9-1978, the effect of the above para. 15. Bas not been considered nor it has been referred to. Whereas the above Karachi case related to an urban immovable property, and, therefore, the above case is also distinguishable from the instant case. (c) Mr. Umrani, learned counsel for defendant No, 3 has referred to the case of S. Anwar Husain v. Sarfraz Ahmed, (1) and the case of Roshan Ali v. Settlement Commissioner Khairpur Division (2). In the above Supreme Court, it was held that after the issuance of the P. T. D. (Permanent Transfer
---
## Page 7
Deed) Settlement Authority became functus officio, to deal with the property. The same view was taken in the aforesaid Karachi case after referring to the aforesaid Supreme Court's case. It may be observed that the aforesaid two cases related to urban immovable properties and not agricultural land. However, the question which requires consideration is, as to whether under para. 15. Of the aforesaid scheme I, the power of partition can be exercised by the Competent Rehabilitation Authority at any time or only before the evacuee interest is transferred. In my view learned counsel for defendants Nos. 1 and 2's contention seems to be correct that after having transferred the evacuee interest. The Rehabilitation Mukhtiarkar could not have exercised the power of partitioning under aforesaid para. 15 of the scheme as the evacuee interest stood transferred to Ibrahim Raj Muhammad. It may again be observed that the two partition orders on the record are dated 8th October 1974 and dated 12-9-1975, which have been passed after several years from the date of the transfer of the above land to Ibrahim Raj Muhammad (which was transferred in July 1971), and, therefore, they are prima facie without jurisdiction, and this court cannot enforce the same . The partition order dated 31st July 1971 would have been on different footing as it was passed in the proceedings which were pending prior to the transfer of the evacuee interest in question to aforesaid Ibrahim Raj Muhammad. Since there is no such order on the record, it cannot be relied upon nor it has been in fact relied upon in the plaint or by P. W. 1 or by the learned counsel for the plaintiffs. My finding accordingly on the above issue is that the two partition orders Exhs. 6/1 and 6/6 are not legal. 9. (a) Issue No, '8'.-The learned counsel for defendants have urged that the plaintiffs have not acquired any interest in the suit plot prior to the filing of the suit as the sale deed Exh. 6/7 was registered by the Sub-Registrar on 29-1-1975, and, whereas the present suit was filed on 25-1-1975, and, therefore, the suit is liable to be dismissed. Whereas it has been urged by Mr. Mbar Ali Siddiqui, learned counsel for the plaintiffs that the above sale deed was executed on 7th July 1975 and was presented to the Sub-Registrar on the same day, and that after the registration of the above sale deed, it was effective with effect from the date of execution. In order to appreciate the respective contentions of the learned counsel for the parties, it will be necessary to refer to sections 47 and 49 of the Registration Act, 1908, which read as follows :- "Section 47.-A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration. 49. No document required to be registered under this Act or under any earlier law providing for or relating to registration of documents shall- (a) operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, to or in immovable property, or (b) confer any power to adopt, unless it has been registered." (b) A plain reading of the above-quoted section 47 indicates that the operative date of a registered document is the date of the execution and not the date of registration. Section 49 speaks of a case in which a document…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.