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Petitioner: (1) Zain Khan (2) Taj Roshan & another VS Respondent: (1) Taj Roshan & another (2) Province of Sindh & others
Court Name: Sindh High Court Judge(s): Adnan Iqbal Chaudhry Title:(1) Zain Khan (2) Taj Roshan & another vs (1) Taj Roshan & another (2)
Province of Sindh & others Case No.: (1) Suit No. 533 of 2016 (2) Suit No. 858/2017 Date of Judgment:2018-04-16 Reported As: 2018 SHC 627 Result: Suit dismissed Judgment ADNAN IQBAL CHAUDHR Y J.- Subject matter and overview: 1. The land that is subject matter of these two suits is Survey No.s 5, 8, 223, 224, 225, 258, 259, 260, 261, 262 and 263 in Deh Lal Bakhar ,Hawksbay area, District West, Karachi, hereinafter the 'Subject Survey No.s .One version is that the Subject Survey No.s measure 44 20acres, while another version is that they measure 41-6 acres. 2. The Subject Survey No.s are presently held by Pakistan Baoxin Metal Industry Co. (Pvt.) Ltd. (hereinafter 'Pakistan Baoxin'), a defendant in both suits. Pakistan Baoxin claims registered title to the Subject Survey No.s from Muhammad Khan, who claimed to have derived it from Taj Roshan.Zain Khan (plaintif f of Suit No.533/2016) claims a sale agreement from Taj Roshan for 6 acres 7 ghuntas of Survey No. 262,which is one survey number out of the Subject Survey No.s. Taj Roshan is a defendant in Suit No.533/2016 and plaintif f in Suit No.858/2017. Taj Roshan denies having conveyed title to Muhammad Khan and therefore disputes the title of Pakistan Baoxin. She affirms the sale agreement with Zain Khan, and asserts her ownershipover the remaining Subject Survey No.s. The Lyari Development Authority [LDA], which is a defendant in both suits, disputes the title of Taj Roshan to the Subject Survey No.s and that of her predecessors-in-title, and claims that the land of the Subject Survey No.s vested in the Karachi Development Authority [KDA] and now in the LDA. 3. Vide CMA No.66/2017 in Suit No.533/2016 and CMA No.5381/2017 in Suit No.858/2017, the plaintif fs pray that pending suit the defendants be restrained from creating any further third party interest in the Subject Survey No.s. By an interim order dated 3-1-2017 passed in Suit No.533/2016, the parties were directed to maintain status quo, and by an interim order dated 3-4-2017 passed in Suit No.858/2017, the parties were restrained from creating any further third party interest in the Subject Survey No.s. On 15-2-2018, since CMA No.66/2017 in Suit No.533/2016 was not listed in the order sheet for hearing, the office was ordered to do so for the next day. On the next day, CMA
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No.66/2017 was again not listed, but on the request of all learned counsels, it was taken up for hearing along with other matters listed in the order sheet. Chronology: A chronology of the competing events and documents as gleaned from the record and perused with the assistance of the learned counsels is as follows. 4. Per notification dated 12-7-1984 issued by the KDA, published in the Sindh Gazette, an area of 20,900 acres at Hawksbay-Buleji, District West Karachi, was declared as 'Controlled Area' within the meaning of the KDA Order , 1957 for the purposes of making a development scheme. Such area included: "1- ....................... . 2- Deh Lal Bakhar No.I, T appa Gabopat (in full) unsurveyed Deh; 3- Deh Lal Bakhar No.2, T appa Gabopat (in part) unsurveyed Deh" The notification also read that "No person,.....any Local or Provincial or Federal Authority shall be permitted to undertake any sale, lease, sub division, consolidation, conversion, construction....without permission of the ..... KDA 5. Per notification dated 2-8-1984 issued by the KDA,published in the Sindh Gazette, "....it is notified for public information that KDA has framed a Development Scheme under Article 37 of KDA Order 1957....to be called KDA Scheme No.42 Hawksbay Buleji Housing and Recreational Scheme in the area comprising unsurveyed Dehs Lal Bakhar No.1 & 2 and Deh Moach, Tappo Gabopat and Hawksbay area District West, Karachi, measuring 11,450 acres..." - which is hereinafter referred to as "Scheme No.42 Hawksbay" . 6. Vide letter dated 11-11-1986, the Commissioner Karachi,on the orders of the Governor and Chief Minister Sindh in recognition of KDA's Scheme No.42 Hawksbay , directed the Deputy Commissi oners and the District Registrar "that no further leases should be issued in these areas and no mutation, transfer of the land and conveyance deeds should be permitted" . 7. Vide letter/order dated 16-11-1992, the Secretary Land Utilization Department,while taking notice of rampant land grabbing by way of bogus claims of HaqQabza, particularly in Districts East and West of Karachi,prohibited all entries in Village Form VII on the basis of HaqQabza and directed Revenue Officials to treat such land as State Land, except where claims of HaqQabza were substantiated by genuine documents registered as per Rules prior to the year 1947. Revenue Of ficials were specifically restrained from certifying any HaqQabza . 8. By letter dated 6-7-1994, the Deputy Commissioner Karachi West reported to the Deputy Secretary Land Utilization, Board of Revenue Sindh, that khatedars of the Subject Survey No.s find mention in the HaqQabzaY adashat (Village Form VI) on the basis of long standing possession and that the said khatedars now request that their names be entered in V illage Form VII. Per the letter dated 6-8-2015 of the MukhtiarkarMauripur, the said khatedars had entered Village Form VI on 6- 8-1986 on the basis of HaqQabzaand their possession was subsequently recognized as ownership on 19-4- 1995by entering their names in Village Form VII as owners of the Subject Survey No.s,which was so done pursuant to a letter of the Deputy Secretary, Land Utilization Department. The said khatedarswere the ones who subsequently transferred the Subject Survey No.s to Taj Roshan. 9. Vide registered General Power of Attorneys dated 23-8-1995 and 18-1-1996, the aforesaid kahtedars of the Subject Survey No.s are said to have appointed Akram Khan as their Attorney for inter alia selling/transferring the same. Akram Khan is the husband of Taj Roshan. He is a defendant in Suit No.533/2016 and plaintif f in Suit No.858/2017. 10. On 2-9-1996,in a meeting Chaired by the Secretary Housing& Town Planning Sindh between officials of the KDA, LDA, Commissioner Karachi, Land Utilization Department, Survey Department and other Revenue officials, it was decided that allotments of land in Deh Lal Bakhar made by the Board of Revenue on the basis of HaqQabza will not be entertained as no agricultural land was available in Deh Lal Bakhar . It was also decided that if any land of Scheme No.42 Hawksbay remains to be handed over to the LDA, thatshould be done. 11. Vide notification dated 11-1-1996, Scheme No.42 Hawksbay was transferred to the LDA. 12. Form VII issued on 23-8-1999 showsT aj Roshan as transferee/owner of the Subject Survey No.s,said to have been purchased by her from the aforesaid khatedars vide registered conveyance deeds dated 2-7-1995 and 27-11-
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1997. However , the said conveyance deeds are not on record. 13. Per the plaintif fs of both suits, on 5-11-1998, Taj Roshan executed a registered Mukhtarnama (a Power of Attorney in the vernacular)at Takhtbai,Mardan, appointing her husband Akram Khan as her Attorney ,authorizing him inter alia to sell the Subject Survey No.s. 14. On18-8-2003, 7 co-owners (namely Iqbal& others) of an unspecified area in the Subject Survey No.s (except Survey No.s 5, 8 and 259), are said to have appointed Akram Khan as their registered Attorney ,authorizing him to sell theirland. This General Power of Attorney is not on record but it finds mention in the sale deed dated 12-4-2004 discussed infra. 15. Vide registered sale deed dated 12-4-2004 the aforementioned 7 co-owners (Iqbal& others) are said to have conveyed only half acre (2420 sq. yds.) land to Taj Roshan. On behalf of the said vendors, the sale deed is executed by their Attorney ,Akram Khan, whose signature appears also for the vendee, Taj Roshan.Per Form VII (at page 233 of Suit No. 533/2016) it appears that these 7 co-owners had inherited a small area in some of the Subject Survey No.s. By a registered Power of Attorney dated 17-4-2004executed at Karachi, Taj Roshan is said to have appointed Akram Khan as her Attorney for the aforesaid half acre conveyed to her by the aforesaid 7 co-owners. 16. On 14-3-2006, one Abdul Razzak filed Suit No. 316/2006 in this Court against Taj Roshan for specific performance of an oral sale agreement coupled with a receipt dated 4-2-2005,allegedly made with Akram Khan as Attorney of Taj Roshan,for the sale of 36-20 acres out of the Subject Survey No.s. Such agreement is denied by TajRoshan and Akram Khan. 17. Per the plaintif fs of both suits, on 9-5-2008,Akram Khan as Attorney of Taj Roshan,entered into a sale agreement with Zain Khan(plaintif f of Suit No.533/2016) agreeing to sell him 6 acres 7 ghuntas of Survey No. 262(out of the Subject Survey No.s). This sale agreement is in the vernacular and is said to have been executed by the parties at Mardan. 18. Civil Petitions No.446-K, 447-K and 473-K of 2008 before the Supreme Court of Pakistan are inter alia challenges by Shehri, the LDA and the erstwhile CDGK to the authority of the Government of Sindh to make allotments of land in Scheme No.42 Hawksbay and that too at throw-away prices. In the said proceedings, the HonourableSupreme Court by order dated 4-12-2008and again on 19-2- 2009restrained the creation of third party interest in the land of Scheme No.42 Hawksbay . The aforesaid petitions before the Supreme Court arose to challenge an order dated 5-09-2008 passed by the High Court of Sindh in C.P. No.D 1277/2003 dismissing the petition before it while observing that the KDA was not the owner of the land of Scheme No.42 Hawksbay . Per learned counsels for the LDA the said restraining orders passed by the Honourable Supreme Court are still operating. 19. In Suit No.316/2006 (discussed in para16 above), on 1-11-2010 this Court directed the parties of the said suit to maintain status quo (in respect of the Subject Survey No.s). Apart from Taj Roshan, the other defendant in the said suit was the Province of Sindh sued through the Secretary Land Utilization Department, albeit it was ex-parte. Per Taj Roshan, she remained unaware of Suit No.316/2006.While orders dated 2-4-2007 and 1-11-2010 passed in Suit No.316/2006 record the presence of an Advocate said to be representing the 'defendant No.1' therein, vizTajRoshan, it was contended by learned counsel for the plaintif fs that Taj Roshan never appointed such Advocate. It appears that the vakalatnamaof such Advocate was subsequently discharged on 15-12 2010. Be that as it may, the order of status quo dated 1-11-2010 passed in Suit No.316/2006 was scribed by a note on 5- 10-201 1, in the record of rights of the Subject Survey No.s as is evident from Form VII on the record (at page 249 Part II of Suit No.533/2016). 20. Per the defendantsTajawal Khan and Muhammad Khan, vide a General Power of Attorney dated 18-4- 2011registered on 6-5-2011(under Registered No.1347, Sub-Registrar Gadap Town, Karachi), TajRoshanhad authorized Tajawal Khan to sell/transfer the Subject Survey No.s, which he did to Muhammad Khan by a lease deed dated 27-8-2011(registered on 22-9-2011 under Registered No.994, Sub-Registrar Kemari Town, Karachi), followed by a Rectification Deed dated 8-2-2012(bearing Registered No.115, Sub-Registrar Kemari Town, Karachi).Taj Roshan denies that she executed any General Power of Attorney in favor of Tajawal Khan.
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Interestingly , Muhammad Khan to whom Tajawal Khan had sold the Subject Survey No.s, was also one of the marginal witnesses to the General Power of Attorney said to have been executed by Taj Roshan in favor of Tajawal Khan. 21. By a MukhtarnamaKhas (a Special Power of Attorney made in the vernacular) dated 18-5-2013, Akram Khan acting as Attorney of Taj Roshan pursuant to the Mukhtarnama dated 5-11-1998(discussed in para13 above),is said to have appointed Aain Khan,the son of Zain Khan, as Sub-Attorney of Taj Roshan but only to the extent of 6 acres 7 ghuntas of Survey No.262(i.e. the land of the sale agreement dated 9-5-2008). This Special Power of Attorney is said to have been executed at Takhtbai, Mardan; it is not registered, and it appears to authorize Aain Khan only to deal with litigation in respect of the said 6 acres 7 ghuntas. 22. On 5-9-2015, Pakistan Baoxin filed Suit No.1531/2015 before the Senior Civil Judge Karachi West against the LDA to challenge charges being claimed from it by the LDA for granting permit s to construct on a part of the Subject Survey No.s. In the said suit, the application of Pakistan Baoxin to restrain the LDA was dismissed,so also an appeal, because Pakistan Baoxin was unable to demonstrate its title to the Subject Survey No.s, which title as noted infra was conveyed to it subsequently .When the LDA tried to stop Pakistan Baoxin from raising unauthorized construction on part of the Subject Survey No.s, FIRs were lodged by both sides against use of unlawful force. 23. On 5-11-2015, Suit No.316/2006 (discussed in paras16 and 19 above) filed by Abdul Razzak against TajRoshan,was withdrawn unconditionally , and with that the status quo order dated 1-11-2010 passed therein came to an end. Per learned counsel for the plaintif fs, the timing of the withdrawal of this suit and the immediate conveyance of the Subject Survey No.s manifests collusion between the said Abdu l Razzak, Muhammad Khan and Pakistan Baoxin. 24. By a sale deed dated 13-11-2015registered on 7-12-2015 under Registered No.412, Book No.I, Sub-Registrar Kemari Town, Karachi,Muhammad Khan conveyed the Subject Survey No.s to Pakistan Baoxin. This conveyance is challenged by the plaintif fs. Suit No.533/2016 and Suit No.858/2017 and the case of the plaintiff therein 25. On 29-2-2016, Zain Khan filed Suit No.533/2016for the relief of specific performance against Taj Roshan and her Attorney Akram Khan in respect of the sale agreement dated 9-5-2008 (discussed in para17 above), which is for 6 acres 7 ghuntas of Survey No.262 (one of the Subject Survey No.s), along with possession of such land. This sale agreement is in the vernacular and is said to have been executed by the parties at Mardan. Per the sale agreement, the total sale consideration agreed was Rs.17,74,000 of which Rs.12,00,000 was paid, and the balance of Rs.5,74,000 was payable on the conveyance of the land to Zain Khan, the date for which was fixed as3 months from the date of the sale agreement (i.e. on or about 9-8-2008). It is Zain Khan's case that it was in December 2015 when Akram Khan (Attorney of Taj Roshan) agreed to perform the sale agreement and that is when the parties thereto discovered that on the basis of a fake General Power of Attorney purporting to have been executed by Taj Roshan in favor of Tajawal Khan, Tajawal Khan executed a sale deed conveying the Subject Survey No.s, which included the land of the sale agreement,to Muhammad Khan, who then executed a sale deed conveying the same to Pakistan Baoxin (as detailed in paras 20 and 24 above). Therefore, Zain Khan also prays for cancellation of the General Power of Attorney allegedly given by TajRoshan to Tajawal Khan. It is not the case of Zain Khan that he was ever put in possession of the land of his sale agreement. 26. On 31-3-2017, Taj Roshan and her Attorney Akram Khan, filed Suit No.858/2017. Taj Roshan denies that she executed any Power of Attorney in favor of Tajawal Khanand thus prays for its cancellation along with a prayer for declaration of her title to,and possession of the Subject Survey No.s. She also prays that the conveyance of the Subject Survey No.s by Tajawal Khan to Muhammad Khan and by him to Pakistan Baoxin be declared fraudulent. Mr. Imran Chawla, the Chief Executive of Pakistan Baoxin has also been sued in his personal capacity , as it is the case of the plaintif fs that he (Imran Chawla)is the master-mind behind the alleged fraud. Suit No.858/2017 has been filed by TajRoshan and Akram Khan themselves, not through any Attorney , and they had appeared in person to verify the plaint. TajRoshan and Akram Khan admit the sale agreement dated 9-5-2008 with Zain Khan. Therefore, they support the case of Zain Khan in Suit No.533/2016.
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27. Mr. Ahmed Hussain, Advocate for the plaintif fs in both suits,submitted that the following demonstrates that the General Power of Attorney alleged to have been executed by Taj Roshan in favor of TajawalKhan is fake: (a) that the Subject Survey No.s comprise of 41-6 acres and not 44-20 acres as stated in the impugned General Power of Attorney; (b) that TajRoshan being a purda observing lady, could have never interact ed with a na-mehram Tajawal Khan, so as to give him the impugned General Power of Attorney; (c) that the CNIC purporting to be of Taj Roshan attached to the impugned General Powe r of Attorney is fake which is evident from the expiry date mentioned therein, which expiry date is different from the one appearing in TajRoshan' s real CNIC; (d) that though Taj Roshan remained unaware of Suit No.316/2006 (discussed in paras16, 19 and 23 above), the status quo order dated 1-11- 2010 passed therein was scribed by a note in the record of rights of the Subject Survey No.s,and inspite of knowledge of such status quo order ,the MukhtiarkarMauripurissued his NOC to the sale/transfer of the Subject Survey No.s, thereby allowing Tajawal Khan to convey the same to Muhammad Khan vide sale deed 27-8-201 1. Mr. Ahmed Hussain concluded that this was a fit case to exercise suomoto powers of appointing a Receiver over the Subject Survey No.s as was done in the case of Ehsanullah Khan Afridi v. Province of Sindh , 2007 YLR 2204 which was upheld in PLD 2007 Kar 527 . Case of the defendants Tajawal Khan,Muhammad Khan and Pakistan Baoxin 28. Mr. Mukesh Kumar Karara, Advocate for Tajawal Khan, Muhammad Khan and Toor Khan (the latter being one of the marginal witnesses to the General Power of Attorney impugned by TajRoshan), contended that Mukhtarnama and Power of Attorney said to be executed by Taj Roshan in favor of Akram Khan,and the sale agreement dated 9-5 2008 in favor of Zain Khan (documents discussed in paras 13, 15 and 17 above), are all fabricated documents; that Taj Roshan was a resident of Karachi, not Mardan; that TajRoshan was not a parda observing lady and had appeared in person before the Sub-Registrar to execute the General Power of Attorney in favor of Tajawal Khan authorizing him to sell the Subject Survey No.s. He therefore contended that the conveyance/transfer of the Subject Survey No.sby Tajawal Khan to Muhammad Khan, and then by the latter to Pakistan Baoxin were all beyond doubt. Mr. Mukesh Kumar Karara Advocate then argued that before adverting to any other issue, Suit No.533/2016 by Zain Khan has to be first tested on the main relief prayed therein which was for specific performance of the alleged sale agreement dated 9-5-2008. He subm itted that the said sale agreement shows that a date of 3 months had been fixed therein for its performance, thereby attracting the first part of Article 113 of the Limitation Act, 1908 and making Suit No.533/2016 hopelessly time barred. In support of such submission he relied on the cases of Muhammad Ramzan v. Muhammad Qasim (2011 SCMR 249);Haji Abdul Karim v. Florida Builders (Pvt.) Ltd. (PLD 2012 SC 247 ); and MaulanaNur Ul-Haq v . Ibrahim Khalil (2000 SCMR 1305 ). 29. Despite challenges to its title and its possession over the Subject Survey No.s, Pakistan Baoxin has chosen to remain away from these proceedings, even after the Nazir of this Court inspected the land in its possession. Only when bailable warrants for the presence of its Chief Executive, Mr. Imran Chawlawere issued on contempt applications moved by the plaintiffs, did he appear in Court.While he filed a counter-affidavit to the contempt application, he did not file any reply on behalf of Pakistan Baoxin. Case of the L yari Development Authority (LDA): 30. Mr. Ishrat Zahid Alvi, learned counsel for the LDA in Suit No.533/2016, after taking me through the documents discussed in paras4 to 7and10 and 11 above, contended that the land of Scheme No.42 Hawksbay , which includes the Subject Survey No.s, vested in the KDA ever since notifications dated 12-7-1984 and 2-8-1984; that the notification dated 12-7-1984 had categorically prohibited any sale of the said land without permission of the KDA; that vide letter/order dated 11-11-1986 the Commissioner Karachi on the orders of the Governor and Chief Minister Sindh, had acknowledged KDA's title to the land of Scheme No.42 Hawksbay , and had prohibited the Deputy Commissioners and the District Registrar from recording any mutation, transfer or conveyance of such land; that pursuant to notification dated 11-1-1996, the land of Scheme No.42 Hawksbay now vests in the LDA; therefore none of the other parties to the suits can claim any title to the Subject Survey No.s and the question of specific performance of the sale agreement betwe en Taj Roshan and Zain Khan cannot arise until the title of Taj Roshan is
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decided. He prayed that pending decision in these suits, the land of the Subject Survey No.s be preserved and all documents purporting to create or record any title thereto should be impounded. 31. Mr. Ali Akbar Poonawala, learned counsel for the LDA in Suit No.858/2017, adopted the arguments of Mr. Ishrat Zahid Alvi Advocate. After taking me through the documents discussed in paras7, 8, 10 and 12 above, he submitted that the khatedars who sold/transferred the Subject Survey No.s to Taj Roshan, were only occupants thereof and not owners, who had been entered in the record of rights on the basis of claims of HaqQabza which was unlawful, especially when by an earlier letter/ord er dated 16-11-1992 the Secretary Land Utilization Department had prohibited all entries in Village Form VII on the basis of HaqQabza . Therefore, he submitted that since the khatedars of the Subject Survey No.s had no title to the Subject Survey No.s they could not have passed on any title to Taj Roshan, and all subsequent transfers of the Subject Survey No.s was unlawful. To support a restraint on any further transfer of the Subject Survey No.s, Mr. Ali Akbar Poonawala also relied on the proceedings and orders of the Honourable Supreme Court discussed in para18above. Findings/decisionin Suit No.533/2016: 32. For Taj Roshan' s title to 6 acres 7 ghuntas of Survey No.262, that was agreed to be sold to him vide sale agreement dated 9-5-2008, Zain Khan relies on a registered sale deed dated 12-4-2002 (discussed in para15 above). But that sale deed only conveyed half acre (2420 sq. yds) land to Taj Roshan. It is strange that Zain Khan entered into a sale agreement without having any clue of the title of Taj Roshan, so also that TajRoshan and Akram Khan do not object to the suit for specific performance by Zain Khan after nearly 8 years when they were not paid the agreed sale consideration in full. Be that as it may, since the sale agree ment had fixed a date for its performance, which was 3 months from the date of the sale agreement, and Suit No.533/2016 for its specific performance was filed on 29-2-2016, Mr. Ahmed Hussain Advocate was asked to explain how the relief for specific performance was within time when Articl e 113 of the Limitation Act, 1908 prescribes a limitation of 3 years from "The date fixed for performance...". The replies/submissions of Mr. Ahmed Huss ain Advocate, and my findings thereon are as follows. 33. Mr. Ahmed Hussain' s first submission was that the period of 3 months fixed in the sale agreement dated 9-5- 2008 did not commence from the date of the sale agreement but from the date the seller was ready with the documents of conveyance, which readiness was expressed by Akram Khan as Attorney of Taj Roshan in December 2015 - hence the suit was within time. To support such submission he relied upon the case of InamNaqshband v. Haji Sheikh Ijaz Ahmed (PLD 1995 SC 314), in the facts of which case the Honourable Supreme Court had observed that the mention of "one week" in the sale agreement for the performance thereof would not be a "date fixed" within the meaning of Article 113 of the Limitation Act, 1908. But the facts of that case were that the seller did in fact perform his promise by executing the sale deed within one week as agreed , but its registration could not go through due to the refusal of the Sub-Reg istrar on the ground that by that time the father of the seller had sued the seller for a declaration that the property in question was of the father , not of the seller , and the sale of the property was stayed. The purchaser then appeale d the refusal of the Sub-Registrar which was dismissed. The purchaser then waited for a decision in the father 's suit, and when that was eventually dismis sed, the purchaser filed suit for…
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