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Petitioner: PAKISTAN RAILWAYS through Chairman and 2 others VS Respondent: Mst. NOOR JAHAN JUDGMENT
Court Name: Sindh High Court Judge(s): Aziz-ur-Rehman Title:PAKISTAN RAILWAYS through Chairman and 2 others vs Mst. NOOR JAHAN
JUDGMENT
Reported As: 2015 YLR 456 Result: appeal dismissed Judgment JUDGMENT ' AZIZ-UR-REHMAN, J.---By means of this 2nd Appeal No,28 of 2010 under section 100, C.P.C., the appellants [defendants] have assailed the impugned judgment dated 21-12-2009 and decree dated 24-12-2009 passed in Civil Appeal No,65 of 2008 [The Chairman Pakistan Railway and another v. Mst. Noor Jehan Begum] by 2nd Additional District Judge, Karachi, East, whereby he upheld the judgment dated 25-1-2003 and decree dated 31-1-2003, passed by the learned Trial Court - VIth Sr. Civil Judge, Karachi, East, in Civil Suit No,714 of 1996 [Mst. Noor Jahan Begum v. The Chairman Pakistan Railway and another], filed by the respondent [plaintiff] and consequently Civil No,65/2008 filed by the appellants was dismissed however, with no order as to costs. 2. The precise facts leading to the filing of the instant 2nd Appeal are as follows:-- 3. Respondent, is widow of late Bashir Ahmed Khan who per averment made in the plaint, was allotted plot bearing No,245-1-G, Block 6, measuring 1000 s.Yds, PECHS, Karachi [hereinafter means the 'subject plot'] by Pakistan Employees Cooperative Housing Society Ltd [hereinafter means 'the Society'] vide allotment, Order No,5928, Share Receipt No,1475 on 16-12-1964. Per averments, 'the Society' had also issued a 'site plan' of the aforesaid plot with complete description of measurement and area on 30-4-1966 in favour of respondent's husband viz. Late Bashir Ahmed Khan. Upon the death of the husband of respondent [Mst. Noor Jehan Begum] the record of the 'subject plot' was also mutated in her name on 15-7-1976. Per averments, later on 'the society' had also executed on 'form-A' a sub-lease deed dated 5-12-1988 of the 'subject plot' in favour of respondent [Mst. Noor Jehan Begum].
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4. Respondent, per averments, is the absolute owner/sub-lessee with possession of the 'subject plot' since its allotment on 16-12-1964 in favour of her husband late Bashir Ahmed Khan. According to the 'lay, out plan and demarcation' many other plots, on eastern and western side of the 'subject plot' have also been allotted by 'the Society' in favour of other allottees/ sub-lessees in the same area. 5. The respondent in her capacity as a lawful owner of the 'subject plot' besides raising a boundary wall had also built a Katcha room for Chowkidar on the 'subject plot'. Per averments, on 11-3-1976, the respondent signed and executed a General Power of Attorney in favour of one Sultan Ahmed son of Muhammad Afaq constituting him as her attorney who since then is looking after/safeguarding the interest of the respondent in respect of the 'subject plot'. Accordingly, the attorney obtained a letter/order dated 10-14996 relating to the proposal of building over the 'subject plot' from KDA. 6. Upon getting the approved building plan, excavation work/ground breaking for raising the construction over the 'subject plot' was started on 20-7-1996. Nevertheless, on 15-8-1996, when the construction work was in full progress at about 2:00 O'Clock in the afternoon about 15 persons came there in a truck and abruptly they started demolishing of the boundary wall from two sides [eastern and western side]. Per averments made in the plaint, on such occasion people of the locality/area had also assembled. Such incident was also brought in the knowledge of the attorney of respondent by Chowkidar of the 'subject plot' and thereafter, a Report/F.I.R. 'about such incident was promptly lodged at Police Station Ferozabad. Upon reporting the incident, respondent's workers/labourers again thereafter raised the boundary wall and proceeded with the construction work further according to the approved building plan. 7. On 18-8-1996 however, heavy contingent of persons armed with 'Lathis' and 'Iron Rods', came there again and thereafter while, issuing threats to the labourers disclosed their identity as persons/officials from the railway's department. One of them, disclosed his identity as Supervisor and without any hesitation, openly stated that they are under direction of G.M. Qureshi to demolish the construction work over the 'subject plot'. Again the incident was reported at Police Station Ferozabad on 18-8-1996. Per averments, the incident had taken place at the instance of appellants [defendants]. 8. Under the aforesaid scenario, the respondent filed a Civil Suit No,714/1996 for permanent injunction under section 54 of the Specific Relief Act (I of 1877] r/w section 151, C.P.C. [Mst. Noor Jehan Begum v. The Chairman Pakistan Railways and another] before the Court of VIth Sr. Civil Judge, Karachi, East, with the following prayers:-- " (a) that a permanent injunction may be granted against the defendants/ restraining them not to interfere with the construction of the plaintiffs property. (b) to restrain them from acting illegally with mala fide intention and refrain from interfering within the peaceful possession of the plaintiffs property. (c) cost of the suit; and (d) any other relief/reliefs which this Hon'ble Court may deem fit and appropriate under the circumstances of the case." 9. Upon service, the appellants [defendants], filed their written statement, taking therein inter alia legal objections regarding maintainability of the suit filed by the respondent [plaintiff] under section 54 of Specific Relief Act. In the written statement, it was further alleged that the suit as framed and filed is suffering from misjoinder and/or non-joinder of necessary party. Per written statement, the chunk of land, lying alongside the railway's track near Channasar Halt Railways Station, is belonging to the appellants as the same, was granted to Pakistan Railways in 1940, by the then Government, for the use/utilization of railways. Per assertions, the land since then is in the possession of Pakistan Railways. According to the appellants, at the time of creation of P.E.C.H.S.
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['the Society'], the said piece of land was not included in their 'master plan' thus it can never be deemed as handed over to the P.E.C.H.S. By KDA or Government of Sindh. 10. Per appellants' contentions 'the society' had no right to allot/sublease any plot including 'subject plot' out of the railways' land to late Bashir Ahmed [husband of respondent] and/or anyone else. The allotment dated 16-12-1964 in favour of the husband of respondent and/or the subsequent 'sub-lease' dated 5-12-1988, executed by PECHS in favour of respondent besides void ab-intio are illegal and not binding. Per claim in the written statement, the 'subject plot land' is in 'physical possession' of the Pakistan Railways i,e, to say before partition. Further respondent by manipulation the things has obtained, only 'paper possession' and not 'actual physical possession'. In the written statement, it was further averred that Pakistan Railways had in fact built stores and other infrastructure over the 'subject plot' but the respondent with the help of Ghunda associates not only demolished railway's structure/stores but had also taken away valuable materials from the site. Per averments, Pakistan Railways after getting knowledge about such incident, no doubt, had taken necessary steps for safeguarding its 'property but such action was taken in accordance with rules. According to the appellants [defendants] since, the land is belonging to Pakistan Railways, therefore, respondent [plaintiff] has no 'locus standii' and/or 'cause of action' for the filing of the Suit No,714/1996 [Mst. Noor Jehan Begum v. The Chairman Pakistan Railways and another] against the appellants [defendants]. 11. In view of 'pro' and 'contra' pleas raised by the parties, the learned trial court, out of the pleadings of parties to the suit, settled the following issues:-- "(1) Whether the suit is not maintainable and is hit by the provisions of sections 10 and 11 of the Central Government Lands (Recovery of Possession) Ordinance, 1965 and whether it is also hit by sections 79/80 of C.P.C. And section 54 of Specific Relief Act? (2) Whether the suit is bad for misjoinder and non joinder of necessary party? (3) Whether the plaintiff was in possession of the suit plot and was raising construction according to approved plan? (4) Whether the land/plot in question is owned by the PECHS, if yes, whether the plaintiff is bona fide owner of the same having allotted by the Society? (5) Whether the plaintiff is entitled for the claim? (6) What should the decree be?" 12. In support of their respective contentions, respondents' sub-attorney viz. Naeem Ilyas son of Rana Muhammad Ilyas was 'examined'/'cross examined' on 16-11-2002. The said witness in his 'deposition' produced Power of Attorrney as Exh.'P/1', Allotment Order in favour of husband of respondent as Exh.'P/2', Site Plan issued by 'the Society' as Exh.'P/3', Transfer Letter as Exh.'P/4', sub- lease in favour of the respondent as Exh.'P/5', Copy of General Power of Attorney in favour of Sultan Ahmed as Exh. P/6'. Besides, the sub-attorney had also produced the Approval Letter from K.B.C.A. With approved plan as Exh.'P/7' and Exh.'P/8' respectively. The respondent's attorney had also produced copy of Reports/F.I.Rs, as Exh.'P/9' and Exh.'P/10' lodged at Police Station Ferozabad. Upon conclusion of 'cross examination' of the witness [T.W.1 1, the plaintiffs side of evidence was closed. 13. Thereafter, from the appellants' [defendants]' side their Asst. Engineer viz. Ali Imran Khokhar son of Ghulam Abbas was'examined'/'cross examined' on 3-12-2002. The said witness [DW-1], in his 'deposition' produced photocopy of 'approved plan' as Exh.'D/1' and Authority Letter as Exh.'D/2'. On conclusion of his evidence, the appellants' [defendants] side was also closed thereafter. 14. Upon hearing of arguments advanced by learned counsel for the parties, the learned VIth Sr. Civil Judge, Karachi, East, after reaching the conclusion that the suit as filed was competent/maintainable [under Issues Nos.1 and 2] and the respondent [plaintiff] is the bona fide owner of the 'subject plot', [under Issues Nos.3 and 4], was pleased to decree the suit in favour of respondent [plaintiff] however, leaving the parties to bear their own cost.
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15. The operative part of judgment dated 25-1-2003 [under Issues Nos.5 and 6] reads as follows:-- "In view of my findings on above issues it is proved that plaintiff is the bona fide owner of the suit plot having allotted by the Society, therefore, she is entitled for the relief of the injunction as prayed. The defendants are however, are not debarred from taking any legal action according to law with regard to their claim, if any on the suit plot. The suit is accordingly decreed leaving the parties to bear their own cost. [Underlining is mine]. 16. The appellants, upon feeling aggrieved by the judgment dated 25-1-2003 and decree dated 31- 1-2003, passed by learned VIth Sr. Civil Judge, Karachi, East, preferred Civil Appeal No,65/2003 [The Chairman Pakistan Railways and another v. Mst. Noor Jahan Begum], before the Court of 2nd Additional District Judge, Karachi, East. On hearing of the arguments, the learned 2nd Additional District Judge, Karachi, East, nevertheless upon reaching the conclusion that the impugned judgment and decree passed by the trial court suffer from no any irregularity and/or illegality was also pleased to dismiss Civil Appeal No,65/2003 [The Chairman Pakistan Railway and another v. Mst. Noor Jahan Begum] vide judgment dated 21-12-2009 and decree dated 24-12-2009 however, with no other as to costs. 17. The operative part of the judgment dated 21-12-2009 passed by 2nd Additional District Judge, Karachi, East, reads as follows:-- "In view of the above I find no irregularity and illegality in the impugned order of the trial court. I therefore, dismiss the present appeal with no order as to cost." 18. Against such judgment and decree passed by the learned Appellate Court, on 3-2-2010 the instant 2nd Appeal was filed in this court. On 11-12-2013, I finally heard Mr. Latif-ur-Rehman Khan Survery, learned counsel for appellants and S. Ali Bin Adam Jafri, learned counsel for respondent and also with their valuable assistance perused the record available before me. 19. Learned counsel for the appellants vehemently submitted that in fact the suit bearing No,714 of 1996 filed by the respondent besides, incompetent in law was not maintainable. Elaborating his arguments, learned counsel argued in vehemence that no 'notice' as required under section 80, C.P.C. Was served upon the appellants [defendants]. Per learned counsel, in the absence of such notice and/or non-joining of the Federal Government in the array of defendants, the suit as framed and filed was bad in law and in view of sections 79 and 80, C.P.C. The same was liable to be dismissed with costs. 20. Mr. Latif-ur-Rehman Khan Survery, learned counsel for appellants further contended that the judgment and decree passed by both the courts below suffer from mis-reading and/or non- reading of the evidence/materials on record. Per learned counsel, both the impugned judgment and decree beside illegal are null and void as the same have been passed without proper application of judicial minds. Learned counsel for appellants, also contended, that the impugned judgment and decree are against the law and record and actually are based on assumption/imaginary and artificial grounds as such, the same are liable to be quashed under circumstances of the case. 21. Learned counsel for appellants, next contended that the 'subject plot'/'land' is belonging to Pakistan Railways and P.E.C.H.S., has nothing to do with the 'subject land'/'plot'. Per learned counsel , the allotment order dated 16-12-1964 [Exh. P/2] in favour of late Bashir Ahmed Khan [husband of respondent] and subsequent mutation of 15-7-1976 [Exh. 'P/4'] and sub-lease dated 15-8-1988 [Exh. 'P/5'] by 'the Society', in favour of respondent, are absolutely bogus documents. 22. Mr. Latif-ur-Rehman Khan Survery, learned counsel for appellants while, continuing his arguments further submitted that the 'approval letter' [Exh. 'P/7'] and 'approved plan' [Exh. 'P/8'] obtained by respondent from KBCA are of no worth/avail, as the same are based on manipulated/forged documents i,e, allotment order [Exh. 'P/2'], site plan [Exh. 'P/3'], mutation letter
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[Exh. 'P/4'] and sub-lease on Form 'A' [Exh. 'P/5'] issued/executed by 'the Society' in favour of respondent [Mst. Noor Jehan Begum]. 23. Lastly, learned counsel for the appellants forcefully contended that both the judgments and decrees impugned, are erroneous as such the same be set aside and the appeal as prayed be allowed. 24. Against this, S. Ali Bin Adam Jafery, learned counsel for respondent while, controverting the arguments advanced by the learned counsel for appellants inter alia contended, that the suit as framed and filed by the respondent besides, competent was well maintainable in law. Neither the suit filed by the respondent was bad for any non-joinder [i,e, of Federal Government] or otherwise, the suit as alleged, was liable to be dismissed for want of any notice in terms of section 80, C.P.C. Per learned counsel, in a suit against the Pakistan Railways for permanent injunction under section 54 of the Specific Relief Act [I of 1877], the Federal Government, is not a necessary party. While, elaborating his arguments S. Ali Bin Adam Jafery, further submitted that the provisions of sections 79 to 82, are not mandatory in nature. S. Ali Bin Adam Jafery, forcefully submitted that the reliance placed on sections 79 and 80, C.P.C., under circumstances of the case, is not only mis-conceived but also misleading. 25. According to the learned counsel, the main purpose and object of section 80, C.P.C., is only to afford an opportunity to the Government and/or public officer at the highest level to consider/appreciate the matter in dispute before filing of the suit. Per learned counsel, in view of the acts of the officials of demolishing of the boundary wall/construction and their continuous threats regarding demolishing of the construction work further, the swift filing of the suit was not only necessary, but also imminent. Per learned counsel, the appellants even otherwise, were on notice as about the incident of demolishing F.I.Rs,/Reports had already been lodged at Police Station Ferozabad. Was in their knowledge. In this regard, reference was also made to F.I.Rs,/Reports [i,e, Exh. 'P/9' and Exh. 'P/10'] duly produced in evidence. Such loding of the Reports/ F.I.Rs, amounts to notice. 26. S. Ali Bin Adam Jafery, learned counsel for respondent, next argued that the filing of the suit without 'notice' at the most would disentitle the plaintiff to the grant of cost. Moreover, the court shall allow not less than three months' time to the government for submitting its 'written statement' i,e, to say in absence of any such notice. In the instant case, after evidence, concurrent judgments have been passed 'indeed' on merits, therefore, such objection raised at this stage by the learned counsel for the appellants besides frivolous is not relevant in circumstances of the case. Further the suit filed by the respondent does nothing 'with the affairs' of the Pakistan Railways. Rather it is in respect of wrongful acts of Pakistan Railways' officials who had demolished the construction raised by the respondent over and around the 'subject plot'. 27. Heard arguments and perused the record. 28. The 'subject plot' admittedly stands in the name of the respondent, therefore, the appellants' claim over the 'subject plot' without challenging the title of the respondent by way of filing a separate suit for cancellation of documents and/or declaration thereof as null and void is meritless. The allotment order and other documents i,e, transfer order, mutation, sub-lease etc to the knowledge of appellants are still intact. Not only this the 'subject plot' is in possession of the respondent since, 1964 who no doubt, has constructed RCC double storey building thereon. 29. From para 4 of the written statement, it reflects that Pakistan Railways had purportedly initiated some action against P.E.C.H.S. Relating the allotment of the plots made by 'the Society' but no proof has been placed on record to show/establish that the title of the 'subject plot'/land' was ever decided in favour of the appellants. In view of such position, until the allotment/ sub-lease made in favour of the respondent by P.E.C.H.S are finally declared as null, void and unlawful by the competent court of law till then, respondent cannot be dispossessed from the 'subject plot', much-
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less in a manner not permissible under law. Besides under circumstances of the case the appellants were also not justified in their acts of demolishing the construction and/or advancing the threats. 30. Being relevant as far as maintainability of the suit under section 54 of Specific Relief Act (I [I] of 1877] of 1877) is concerned at this juncture I would like to refer to the case of Fakirbhai Bhagwandas and another v. Maganal Haribhai and another [AIR (38) 1951 Bombay 380 [C.No,80] wherein it was observed as follows:-- "MI The position as it obtained at the date when the suit was filed was that the plaintiffs were in possession of the land by virtue of the title which they had obtained under the grant of 29-101942 and the transfer which had been made by Capt.Ansell in their favour. In order to entitle the plaintiffs to obtain the relief which they had prayed for in the plaint, viz. Injunction against defendants 1 and 2 it would not be strictly necessary for them to prove their title to the suit land, because under S.54. Specific Relief Act, even if they proved that the defendants. Invaded or threatened to invade their enjoyment of property, the Ct. Would grant a perpetual injunction in the cases therein mentioned. Mr. A. G. Desai for the appellants. Drew our attention to a decision of their Lordships of the P.C. In Ismail Ariff v. Mahmed Ghous, 20 Cal. 834; (20 I. A. 99 P.C.) where it was held that lawful possession of land was sufficient evidence of right as owner, as against a person who had no title whatever, and who was a mere trespasser. The fanner could obtain a declaratory decree, and an injunction restraining the wrong doer. The ratio of the judgment of their Lordships of the P.C. Is to be found in the passage at p.842: "It appears to their Lordships that there is here a misapprehension of the nature of the plaintiff case upon the facts stated in the judgment. The possession of the plaintiff was sufficient evidence of title as owner against the defendant. By S.9, Specific Relief Act(1 [I] of 1877] of 1877), if the plainitff. Had been dispossessed otherwise than in due course of law, he could by a suit instituted within six months from the date of the dispossession, have recovered possession, notwithstanding any other title that might be set up in such suit. If he could thus recover possession from a person who might be able to prove a title, it is certainly right and just that he should be able, against a person who has no title and is a mere wrong-doer, to obtain a declaration of title as owner, and an injunction to restrain the wrongdoer from interfering with his possession. The Appellate. Courts in accordance with the judgment above quoted has dismissed the suit. Consequently, the defendant may continue to wilfully, improperly and illegally interfere with the plaintiff's possession, as the learned Judges say he has done, and the plaintiff has no remedy. Their Lordships are of opinion that the suit should not have been dismissed: and that the plaintiff was entitled in it to a declaration of his title to the land. It was not necessary for him to negative that the land was dedicated to religious or charitable purposes, a question upon which the Original and Appellate Courts have differed, and which as the only defendant was not entitled to maintain the Wakfnama, and other persons would not be bound by an adverse decision, their Lordships do not decide." This decision of their Lordships of the P. C. Lays down that it is not necessary for the person claiming injunction to prove his title to the suit land. It would suffice if he proves that he was in lawful possession of the same and his possession was invaded or threatened to be invaded by a person who had no title whatever. It would, therefore, be necessary to determine what was the nature and extent of the right, if any, which defendant I had acquired to the alluvial land under the terms of the consent decree obtained by him in Suit No,44 of 1941 on 14-4-1943. [Underlining is mine]. 31. Before proceeding further I would also like to reproduce herein the Nazir's Report dated 14-11- 2003 which was prepared by him in compliance with court's order dated 7-1-2003. The report so submitted by the Nazir reads as follow:-- "In compliance of the order of the honourable Court dated 7-1-2003, the undersigned Commissioner/ Nazir, District and Sessions Courts, Karachi-East with due notice to both the counsel
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for the parties and the Engineer, PECHS, Karachi, reached along with Mr. Naeem Ilyas, Sub-Attorney of Mr. Sultan Ahmed on behalf of the plaintiff and Mr. Jawwad, Asstt: of Mr. Ali Bin Adam Jaffer, advocate for the plaintiff at site in dispute i,e, Plot No,245-1-G, Block-6, PECHS, Karachi on 10-1-2003 ,at about 3:00 p.m. ' Following persons were also present at the site:- (1) Mr. Ali Imran Khokhar, Asstt: Engineer, Pakistan Railway (2) Mr. Pir Moinul Haq, Inspector of Works; Pakistan Railway (3) Mr. Nazir Hussain, Asstt: Executive Engineer, PECHS Society, Karachi I conducted the inspection and ' found that the plot in dispute is situated at North-West side. There is a double storey (Ground plus one) RCC. Constructed building having a big hall, Two Wash-rooms and a small hall on the back side at ground floor while Three rooms along with bath-room and kitchen are existing on the first floor. [Underlining is mind. ' It is noted that there is Row of Plots from No.245-I -A to 245-1-Z with the boundary wall of Railway Station at the distance of 20 ft. (approx.) and all are duly constructed except the Plot No.245-1-E and 245-1-F. The Plot No.245-1-F is adjacent to Suit plot and Plot No.245-1-E is adjacent to Plot No.245-1-F. ' Further details given by Mr. Nasir Hussain, Asstt: Executive Engineer separately along with copy of Layout Plan and copy of Lay-out Plan produced by the defendants side are submitted herewith for kind perusal of the honourable Court accordingly. Karachi; Dated: -14-1-2003 . SD/- COMMISSIONER/NAZIR, District and Sessions Courts, Karachi-East." 32. Besides, the physical survey report annexed with the aforesaid Nazir's report is also reproduced herein-below:-- "PHYSICAL…
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