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Petitioner: UMAR FAROUK SHEIKHothers VS Respondent: Mst. SHAZIA UMAR and 2 otherss
Court Name: Sindh High Court Judge(s): Aziz-ur-Rehman Title: UMAR FAROUK SHEIKHothers vs Mst. SHAZIA UMAR and 2 otherss Case No.: Suit No,468 of 2008 Date of Judgment:2013-05-13 Reported As: 2013 YLR 1917 Result: Suit decreed
JUDGMENT
JUDGMENT ' AZIZ-UR-REHMAN, J.---Initially the above suit was filed on 28-3-2008 for declaration regarding possession, direction to the defendant No, 1 for handing over of vacant possession of property viz. Sea View Apartment No, 3, Ground floor, Block 40, Sea View Township, Phase V (Extension) DHA, Karachi and car garage bearing No,GF-3/40, both measuring 2100 sq. Yards+ 200 sq. Ft. (herein- onward referred to as the 'Subject Property') to the plaintiff, permanent injunction and mesne profits. 2. Upon service the defendant No, 1 filed her written statement wherein she claimed the ownership of the 'subject property' through gift deed dated 31-3-2005 allegedly executed by the plaintiff. Per averments of defendant No, 1 the aforesaid gift deed was executed by the plaintiff in presence of witnesses in favour of defendant No, 1 voluntarily, with free consent, without any duress, coercion fraud and/or mis representation and after completing all the formalities of an enforceable Gift. 3. Upon receipt the copy of the written statement of defendant No,1 the plaintiff in view of defendant No,l's surprising claim of ownership filed an application under Order VI Rule 17 read with section 151, C.P.C. [C.M.A. No,3532 of 2009] for seeking amendments and relief for declaration in terms as below:-- (13) .That the plaintiff has neither gifted nor ever intended to Gift the subject property to defendant No,1. The Plaintiff is permanent employee of Orix Leasing Pakistan Limited since year 1991 and has never been engaged in any business abroad. The Plaintiff since almost three decades has not left Pakistan and has always remained in Pakistan except his brief visit to UAE in November, 2007 i,e,, after divorce with the defendant No, 1. True copies of Plaintiff's Employers letter dated 8-8-2008; expired passport and current passport are attached as annexure "LI " to" L3"
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(17) That the cause of action for filing the above suit against defendant No, 1 firstly accrued to the plaintiff on expiry of Iddat period i,e,, 24-8-2007 secondly on 17-12-2067 when the plaintiff was not allowed to enter. In the subject property by the defendant No, 1 thirdly after expiry of seven days from the date of the legal notice dated 17-3-2008 was served on the defendant No, 1 and after filing of written statement by the defendant No,1 whereof purported Gift Deed dated 31-3-2005 has been filed which still continue day to day till filing of this suit. (i) Declare that the Gift Deed dated 31-3-2005 in respect of Plaintiff's subject property, addressed as Seaview Apartment No, 3, Ground Floor, Block No, 40. Seaview Township. Phase (Extension), D.H.A, Karachi is forged and fabricated hence void and liable to he cancelled. 4. The aforesaid application [C.M.A. No, 3532 of 2009] for amendments in the plaint was granted with the consent of the learned counsel for defendant No,1 on 24-4-2009. 5. Pursuant to order dated 24-4-2009, amended plaint was filed on 7-5-2009. In response to the amended plaint, defendant No,1 also filed her amended written statement on 23-4-2010. 6. The prayers sought in the amended plaint filed pursuant to order dated 24-4-2009 run as under:-- "(i) Declare that the Gift Deed dated 31-3-2005 in respect of plaintiff's subject property, addressed as Seaview Apartment No, 3, Ground floor, Block No, 40, Seaview Township Phase V (Extension), DHA, Karachi is forged and fabricated hence void and liable to be cancelled; (ii) Declare that the possession of the plaintiff's subject property, addressed as Seaview Apartment No, 3, Ground floor. Block No, 40 Sea View Township, Phase 5 (Extension) DHA, Karachi and car garage No, GF-3/40, both measuring 2100+200 Sq.Ft, by the defendant No,1 is illegal, mala fide and without lawful authority; (iii) Direct the defendant No, 1 to hand over the vacant and peaceful physical possession of the subject property to the plaintiff with police aid/assistance of defendants Nos. 2 and 3; (iv) Direct the defendant No, 1 to pay mesne profit @ Rs,40,000 per month from 24-8-2007 and continue to pay till the possession of the subject property is handed over to the plaintiff by the defendant No, 1; (v) Permanent injunction restraining the defendant No,I from leasing, forcibly entry, hindering, hampering, abrogating, determining, publishing or threatening to do so the plaintiff's lawful subject property and enjoyment of the same; (vi) Any other, better or further relief(s) which this Hon'ble Court may deem fit to grant in the facts and circumstances of the case. (vii) Cost of the pat; 7. The relevant facts in the background leading to the above prayers are as follows. 8. The plaintiff, per assertion in the plaint, is working as Assistant General Manager in Orix Leasing Pakistan Limited at Karachi and has earned good reputation in the Banking and Security Circle. 9. Per assertions, the plaintiff is the owner of the subject property i,e,, Seaview Apartment No, 3, Ground floor, Block 40 Seaview Township, Phase V (Extension) DHA, Karachi and car garage bearing No,GF-3/40, both measuring 2100 + 200 sq. Ft. 10. According to the plaintiff the 'subject property' is owned by him through a declaration of oral Gift Deed dated 18-8-2003 made by his father in his favour. The defendant No,2 (DHA) has also issued mutation letter dated 7-11-2005 in the name of the plaintiff. Per plaintiffs assertion the Cantonment Board Clifton (CBC) has also confirmed the entry regarding the 'subject property' in the 'Record of Rights' in the name of the plaintiff. 11. Defendant No,1, per averments in the plaint is ex-wife of the plaintiff. The plaintiff and defendant No,1 contracted marriage vide Nikahnama dated 11-6-1986. However, subsequently due to the strained relationship between the plaintiff and defendant No,1, the plaintiff ultimately pronounced divorce (Talaq-e-Biddat) vide Divorce Deed dated 24-5-2007. The agreed `Haq-e-Mehar' in the
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sum of Rs,20,000 (Rupees twenty thousand only) has also been paid to and received by defendant No,l. 12. Per averments, Confirmation Certificate of Divorce' vide letter dated 8-10-1987 has also been issued by the Chairman, Arbitration Council, Cantonment Board, Clifton, Karachi. 13. Out of the wedlock, the plaintiff and defendant No,1 were blessed two sons viz. Umair Farouk Sheikh and Zain-ulQadir Sheikh who are residing willingly with the plaintiff in the house of plaintiffs father. All the expenses of education etc. Are exclusively borne by the plaintiff. 14. Defendant No,1 after divorce, per averments, was permitted to live in the 'subject property' however, for 'Iddat period' only. Since expiry of the 'Iddat Period' the defendant No, 1 still continues to occupy the 'subject property' illegally and without any lawful authority. Despite time and again requests, defendant No,1, is avoiding to vacate the 'subject property'. All the household fittings, furniture, appliances, TV, Air-conditioners, cooking range, crockery, items of all decoration etc. In the 'subject property' have been purchased and are belonging to the plaintiff. 15. According to the plaintiff, defendant No, 1 owns Flat No, 6, 2nd floor, Ammat, Plot No, 63, Jami Commercial Street No, 7, Phase VII, DHA, Karachi but she still continues to occupy the 'subject property' belonging to the plaintiff, of course, unlawfully and illegally. The plaintiff has no other property except the 'subject property' in his name. 16. The plaintiff has specifically denied the alleged gift in favour of defendant No, 1. In para 13 of the plaint it has been categorically averred by the plaintiff that neither he has gifted nor ever intended to gift the 'subject property' to defendant No, 1 as besides sentimental attachment, the plaintiff and his two sons have no other property/house as his own to live therein. 17. Owing to the illegal occupation of the 'subject property' by defendant No,1, the plaintiff and his sons are left with no permanent abode and are thus residing with the father/grandfather. The plaintiff is continuously suffering from mental torture, agony, physical and monitory losses on account of illegal occupation of the 'subject property' by defendant No, 1. The plaintiff thus claims and is entitled for rental income/mesne profit from defendant No,1 for the entire period of illegal occupation. 18. On refusal of vacating the 'subject property', the plaintiff was constrained to serve a legal notice dated 17-3-2008 upon defendant No,1, inter alia, requesting her vacate the 'subject property' within seven days failing which the plaintiff will be compelled to file suit.' 19. No response from defendant No, 1 was received by the plaintiff hence instant suit was filed on 28-3-2008. 20. On the other hand, defendant No,1 has forcefully denied the ownership of the plaintiff over the 'subject property'. Per defendant No,l's assertions 'subject property' indeed was originally belonging to the father of the plaintiff, however vide Gift Deed dated 18th August, 2003 the father of the plaintiff had gifted the same to the plaintiff. The 'subject property', per version of defendant No,1, was gifted to her by the plaintiff vide Gift Deed dated 31-3-2005. Per assertions the Gift Deed in favour of defendant No,1 besides valid is well enforceable in law as having been executed voluntarily and without any coercion and/or pressure. Per assertions of defendant No,1, the possession of the suit property was also handed over to her at the time of execution of gift deed dated 31-3-2005.The defendant No,1 since then is enjoying and using the 'subject property' in her capacity as donee/owner of the 'subject property'. 21. The factum of divorce by the plaintiff through 'divorce deed' dated 24-5-2007 has not been denied. So also the receipt of payment of Haqq-e-Mehar' has also not been denied by defendant No, 1. ' The defendant No,1 has further asserted that all the fittings, fixtures, furniture etc., in the 'subject property' are exclusively belonging to her, and the plaintiff is not within his rights to make any claim over the aforementioned articles, goods etc. The 'subject property' is being furnished, renovated
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and maintained by the defendant No, 1 in her own right as owner of the 'subject property' through gift deed dated 31-3-2005 without any help of the plaintiff. 22. The allegations of strained relationship between the plaintiff and defendant No,1 has been vehemently denied. The payment of 'utility bills', 'property tax' etc. By the plaintiff 'to some extent has also been disputed. The registration of utilities bills in the name of plaintiff per defendant No,1, is not enough for establishing the ownership over the 'subject property'. Lastly, defendant No, 1 has asserted that the plaintiff is not entitled to any of reliefs as claimed in the suit. Per defendant No, l's averments the suit as framed and filed is liable to be dismissed with cost. 23. Along with the plaint an application, under Order XXXIX Rules 1 and 2, C.P.C. Read with 151, C.P.C. [C.M.A. No, 2631 of 2008] was also filed with the prayer as below:-- "the defendants Nos. 1 and 2 to maintain status quo of plaintiff's property addressed as Seaview Apartment No,3, Ground floor, Block No, 40, Seaview Town-ship, Phase-V (Extension), DHA, Karachi and Car Garage No, GF-3/40 both measuring 2100+200 Sq.Ft. (subject property) and restore the possession of the subject property in favour the plaintiff who is the lawful owner of the subject property, being illegally occupied by the defendant No,1. " 24. On 1-4-2008 when the aforesaid application came up before the court, apart from notice to defendants, an order for maintaining 'status quo' regarding subject property/suit properly was also passed. The operative part of order dated 1-4-2008 reads as under:-- "Considering the above facts, argued by the learned counsel, it is ordered that status quo should be maintained in respect of the suit properly till 11-4-2008." 25. On a statement, filed by defendant No,3/S.H. 0., Darrakhshan Police Station, [wherein defendant No, 3 has shown his no concern with the factual position involved in the suit], the name of defendant No,3 from the array of defendants was deleted vide order dated 11-4-2008, however, with direction not to involve himself in private dispute. 26. From the record it further reveals that defendant No,2 (DHA) instead of filing any 'written statement' had merely filed a 'statement' on 13-5-2008. The 'statement' filed on behalf of defendant No, 2-DHA is available at page 55 of the court file which reads as follows:-- 'It is respectfully stated on behalf of defendant No,2 (DHA) that suit property is a 'B' Lease, and therefore, DHA has no hold on leased property, as the owner can dispose of the property on the authority of sale/Conveyance deed without knowledge of defendant No, 2 (DHA). Military Estate Officer, Karachi and Sub-Registrar-1, Clifton Town, Karachi are the competent authority to confirm/intimate the correct ownership of the suit property". 27. Insofar as the injunction application [C.M.A. No, 2631 of 2008] is concerned vide order dated 29- 4-2008 status quo was ordered to be maintained till decision of the suit. The relevant and operative part of order dated 29-4-2008 reads as follows:-- "So far as C.M.A. No, 2631 of 2008 is concerned, it is therefore, ordered that status quo order shall be maintained till decision of suit." 28. The parties went on trial and on 24-2-2010 out of the adverse pleadings, the following consent issues were settled:-- (a) Whether the gift deed dated 31-3-2005 is a forged document? If so, what is its effect? (b) Whether the plaintiff is entitled to the relief sought for? (c) What should. The decree be? 29. Under the same consent order of 24-4-2010. Mr. Dilawar Hussain, Advocate was appointed as Commissioner for recording the parties evidence through affidavit-in-evidence'. The learned Commissioner after recording of plaintiff's evidence submitted his report of 7-8-2010. The aforesaid report of the learned Commissioner when came up before the court on 25-8-2010 besides taking the same on record the following order thereon was passed:--
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"1. The Commissioner has submitted his report that the evidence of the plaintiff has been completed but the defendant No, 1 has only filed affidavit-in-evidence. Thereafter, she failed to appear for the cross-examination and after waiting for a long time, the Commissioner has returned the same in the office with his report. The learned counsel for the defendant No,1 submits that one last chance may be granted to the defendant No,1 to appear for the purposes of cross- examination by the plaintiff. The learned counsel for the plaintiff opposed this request and submits that for the last two years the defendant No, 1 is dragging this case for one and the other reason and his client is suffering. ' After hearing the arguments of both the learned counsel, let last and final chance may be allowed to the defendant No, 1 to appear before the Commissioner on the next date and complete her cross-examination by the learned counsel for the plaintiff. By consent, matter is fixed before the Commissioner on 4-9-2010 at 12-30 p.m. On which date the plaintiff's counsel shall be present for the cross-examination and the learned counsel for the defendant No,1 undertakes to call the defendant No, 1 before the Commissioner, for cross-examination. In case the defendant No,1 fails to appear before the Commissioner, the Commissioner shall be entitled to close her side and return the Commission to this court, immediately thereafter the office will fix the matter for arguments. 30. In terms of the aforesaid order, the matter was referred to the learned Commissioner for cross- examination of defendant No,1 by the learned counsel for the plaintiff. Despite 'last' and 'final chance' under order dated 7-8-2010, however, the defendant No, 1 again failed and/or ignored to appear before the learned Commissioner for adducing her 'evidence' and/or 'cross-examination' by the learned counsel for the plaintiff. The learned Commissioner in view of such position submitted his 2nd report dated 21-9-2010. The report so submitted was taken on record vide order dated 27-10-2010. Being relevant order passed on 27-10-2010 is reproduced as under:-- "Per report dated 6-8-2010 the learned Commissioner had reported the matter to the court stating therein that defendant No, 1 is delaying the process of commission and is not cooperating to adduce her evidence. Such report was taken up by the court and vide order dated 25-8-2010 last chance was granted at the request of learned counsel for defendant No,1 to appear for cross- examination before the learned Commissioner. It further appears that defendant Nod's witness did not appear before the learned Commissioner hence report dated 21st September, 2010 has been submitted by the learned Commissioner stating therein that due to failure on the part of defendant No, 1 to adduce evidence her side has been closed. In the circumstances, Commissioner report is taken on record and the learned Commissioner is directed to return the commission duly executed whereafter office to fix this matter for arguments as per roster." 31. Evidently, before the learned Commissioner, the plaintiff besides filing of his 'affidavit-in- evidence' had also filed 'various documents' along with it. On 5-4-2010 plaintiff's 'deposition' was recorded. In his 'deposition' the plaintiff produced his 'affidavit-in-evidence' as Exh.'P/1' and other documents as Exh.'P/2'to Exh.'P/26' respectively. The said witness was also 'cross-examined' by the learned counsel for defendant No, 1. 32. On the other hand, defendant No, 1 though had filed her 'affidavit-in-evidence' before the learned Commissioner however, she failed and/or avoided and/or ignored to come forward for leading evidence and surrendering herself for 'cross-examination' in rebuttal and/or in support of her stand taken in the written statement. 33. I have heard Mr. Rafiq Ahmed Kalwar, learned counsel for the plaintiff and Mr. Aijaz Mubarak Khattak, learned counsel for defendant No, 2 and with their able assistance also scrutinized the available record minutely. 34. Mr. Rafiq Ahmed Kalwar, learned counsel for the plaintiff strenuously argued that the plaintiff is the owner of 'subject property' i,e,, Seaview Apartment No, 3, Ground floor, Block 40, Sea View
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Township, Phase-V (Extension) DHA, Karachi and car garage bearing No, GF-3/40, both measuring 2100 + 200 sq. Ft. Per learned co tinsel, originally the 'subject property' was owned by the father of the plaintiff, however, the same was subsequently gifted to the plaintiff vide gift deed dated 18-8- 2003 (Exh. P/2). Upon such gift of the 'subject property' mutation in the Office of the Military Estate Officer Karachi Circle, Karachi Cantonment was also effected in the name of the plaintiff vide Letter No, K-15/PDSO/SVA/454/4 dated 24-2-2004 [Exh.P/3]. Mr. Rafiq Ahmed Kalwar, learned counsel for the plaintiff in support of the plaintiff's ownership made reference to declaration of oral gift deed dated 18-3-2003 [Exh. P/2] mutation letters dated 24-2-2004 [Exh. P/3] and 7-11-2005 [Exh. P/4] issued in favour of the plaintiff and Extract from General Land Register Cantt. 2-A (I) of 24-2-2004 [Exh. P/5] and CBC letter CBC/RS/0846 dated 24-12-2007 [Exh. P/6]. Learned counsel for the plaintiff forcefully contended that all the above documents have gone unchallenged/unquestioned. Per learned counsel defendant No, 1 is the 'ex-wife' of the plaintiff and the marriage of plaintiff and defendant No, 1 was contracted in the year, 1986. Out of the wedlock, the plaintiff and defendant No, 1 have two sons. Per learned counsel children are willingly residing with the plaintiff at the house of their grandfather. 35. Learned counsel for the plaintiff further urged that owing to unpleasant/ constrained relationship between the plaintiff and defendant No,1, the plaintiff ultimately pronounced divorce [Talaq-eBiddat] to defendant No,1 vide 'divorce deed' dated 24-5-2007 [Exh. P/8]. Per learned counsel, agreed 'Haq-e-Mehar' in the sum of Rs,20,000 [Twenty thousand only] has also been paid to defendant No,1. The 'divorce deed' (Exh. P/10] also acknowledges such receipt of 'Haq-e-Mehar'. Per learned counsel the Chairman Arbitration Council Cantt. Board Clifton has also confirmed the factum of divorce between the plaintiff and defendant No,1 by issuing 'confirmation certificate of divorce' on 8-10-2007. [Exh. P/10]. 36. Learned counsel for the plaintiff also contended that 'telephone connection' to the 'subject property' till to date is registered in the name of the plaintiff. However, the registered consumer of 'Sui gas' and 'KESC' are still in the name of the plaintiff's father who had gifted the subject property to the plaintiff vide 'gift deed' dated 18-3-2003 [Exh. P/2]. Per learned counsel, it is the plaintiff who is paying all the utility bills to the utility departments. The plaintiff besides producing the utility bills of PTCL, SSGC Ltd., pertaining to the year 2008 as Exh. P/11 and P/12 has also produced consumer statement issued by KESC as Exh.P/13 with a view substantiate his ownership over the 'subject property'. 37. Learned counsel further contended that the ex-wife of the plaintiff is illegally and unlawfully occupying the subject property. Many times requests for vacating the same was made to her but defendant No, 1 besides ignoring has avoided to vacate the 'subject property'. The defendant No, 1, per learned counsel was permitted to occupy the 'subject property' only during her 'Iddat period'. Mr. Rafiq Kalwar next argued that the plaintiff has no other abode except the 'subject property'. The plaintiff and his two sons under compelling circumstances are living in the house of father/grandfather of the plaintiff and sons. 38. The 'subject property' was never gifted by the plaintiff in favour of defendant No, 1. The alleged gift deed of 31-5-2005 is a manufactured and forged document and the same has never been signed and/or executed by the plaintiff. Even the alleged gift deed of 31-5-2005 besides not properly stamped does not contain any 'acceptance' by the donee. Per learned counsel the alleged gift deed dated 31-5-2005 as being an un-registered document is void. ' According to the learned counsel for the plaintiff gift deed regarding immoveable of value more than Rs,100 is compulsorily registrable under law. The learned counsel for the plaintiff emphatically argued that 'possession' of the 'subject property' was never delivered to the defendant No, 1 in consequence of any alleged gift. The so-called gift deed of 31-5-2005 besides forged is void and thus not enforceable under law.
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39. Per learned counsel, the plaintiff since, 1991 is a permanent employee of Orix Leasing Pakistan Ltd., and has never been engaged in any business abroad. The certificate issued by Orix Leasing Pakistan Ltd., in this regard has also been produced by the plaintiff as Exh.P/16. 40. The learned counsel for the plaintiff also made reference to Exh.P/17 whereby 'property tax' for the year, 2009 regarding the 'subject property' was paid by the plaintiff to Cantonment Board Clifton (CBC). 41. Per learned counsel since 2003, the subject property is mortgaged with Orix Leasing Pakistan Ltd. The outstanding loan against the 'subject property' as on 30-6-2009 is Rs,3,022,148. The relevant document (Exh.P/9' to Exh.'P/23] pertaining to availment of loan etc., have already been produced by the plaintiff in his evidence. The plaintiff has also produced copy of his expired passport as Exh.P/24 with a view to establish that since 1992, he has not left Pakistan for abroad except for brief visit to UAE in November, 2007, i,e, after pronouncement of divorce to the defendant No, 1 as is evident from Exh.P/25. 42. Mr. Rafiq Ahmed Kalwar next contended that the contents of all documents [Exh.'P/2' to Exh.'P/25'] produced by the plaintiff in his evidence including legal notice as Exh.P/26 have gone unchallenged. On the other hand neither the forged gift deed of 31-5-2005 has been produced nor the alleged witnesses thereon have been examined by the defendant No,1 . Under circumstances, per learned counsel, the suit filed by the plaintiff deserves to be decreed as prayed. 43. Learned counsel for the plaintiff in support of his arguments has placed reliance on the following cases:-- (i) NIJAT ALI V. SHARIF KHAN [REPORTED IN 2012 CLC 1333]. (ii) MST. RAZIA BEGUM AND OTHERS V. ISMAT KHAN [REPORTED IN PLD 2011 PESHAWAR 10]. (iii) SYED ABDULLAH ABIDI V. MST. HIJRA ABIDI AND ANOTHER [REPORTED IN PLD 2009 KAR 252]. (iv) HAFIZ TASADDUQ…
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