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Official Citation: 2024 IHC 180710
Court / Jurisdiction: Islamabad High Court
Parties: Muhammad Yasir Ishaq vs Muhammad Dawood etc
Ruling Summary: This decision was rendered by the Islamabad High Court, officially reported as 2024 IHC 180710. In this matter between Muhammad Yasir Ishaq and Muhammad Dawood etc, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Islamabad High Court (Honourable Mr. Justice Miangul Hassan Aurangzeb) AUTHOR JUDGE: Honourable Mr. Justice Miangul Hassan Aurangzeb DECISION DATE: 25-JUL-2024 CASE NO: Civil Revision-386-2019 CITATION: 2024 IHC 180710 PARTIES: Muhammad Yasir Ishaq VS Muhammad Dawood etc LAW / SECTION: - SUBJECT: Against Judgement & Decree, REMARKS: Against impugned judgment & decree dated 16.9.19 passed by the Learned ADJ-West whereby appeal against consolidated judgment dated 12.4.19 passed by the Learned Civil Judge-West, ICT has been dismissed. (suit for declaration) ============================================================ JUDGMENT SHEET IN THE ISLAMABAD HIGH COURT, ISLAMABAD JUDICIAL DEPARTMENT C.R.No.386 of 2019 W.P. No.3364 of 2013 Muhammad Yasir Ishaq Versus Muhammad Dawood and others Akhtar Hussain Shah Versus Oil and Gas Development Company Limited and another
Dates of Hearing: 18.01.2022, 20.0 1.2022, 01.02.2022, 01.03.2022, 25.04.2022, 17.10.2022 13.12.2022 and 24.07.2024. Petitioner by: M/s Rana Abid Nazir Khan and Ak htar Hussain, Advocates. Respondents by: M/s Muhammad Zeesha n Babar Awan and Malik Karim Bukhsh Awan, Advocates for respondents No.1 and 11. M/s Arif Khan and Waseem Sajjad Zafar, Advocates for respondent No.2. Mr. Hasnain Haider Thaheem, Advoca te for respondents No.15 and 19 along with Mahmood-ul-Hassan, Deputy Director, BCS, CDA. M/s Shahmeer Shahid and Muhammad Naeem Ashraf and Syeda Itra t Batool, Advocate for respondent No.18 along with Adil Javed, Assistant Director (Legal), PTA. Ex-parte:- Respondents No.3 to 10, 12, 13 and 17. _____________________________________________________________________ MIANGUL HASSAN AURANGZEB, J :- Through the instant civil revision petition the petitioner, Muhammad Yasir Ishaq, impugns the judgment and decree dated 16.09.2019 passed by the Court of the learned Additional District Judge, Islamabad-West whereby his appeal against the judgment and decree dated 12.04.2019 passed by the Court of the learned Civil Judge was dismissed. Vide the said consolidated judgment and decree dated 12.04.2019, the learned civil Court dismissed the two suits instituted by the petitioner while partially decreed the two separate suits instituted by respondents No.1 and 2. 2. This case involves rival claims of proprietary rights over the roof top area of the four -storey building constructed over Plo t No.44-West, Aalay Plaza, Fazal -e-Haq Road, Blue Area, Islamabad (“Aalay Plaza”). 2 C.R.No.386/2019
3. The facts essential for the disposal of the instant petition are that on 20.01.2010 , the petitioner instituted suit No. 109/2010 for declaration, mandatory injunction and recovery of rent for the roof top rights of Aalay Plaza. In the said suit , the petitioner claimed that vide registered sale deed No. 890, dated 16.04.2002 he had purchased roof top area measuring 12 x 20 feet with roof top rights from the vendors , Rab Nawaz Raja and Makhdoom Hussain (respondents No.4 and 5) and that in violation of his proprietary rights and without his permission, respondent No. 11, Muhammad Adeeb, allowed respondent No. 16, M/s Wi -tribe Pakistan Limited, to install Base Tower Station (“ BTS”) antenna for which they are liable to pay him rent. The said suit was contested by respondents No.11 and 16 and the trial culminated in the judgment and decree dated 13.05.2015 passed by the learned civil Court whereby the suit of the petitio ner was decre ed. Respondent No. 11‟s appeal against the said judgment and decree was dismissed vide judgment and decree dated 15.10.2015 passed by the learned Additional District Judge , Islamabad . Respondent No.11 then assailed the said appellate judgment in civil revis ion petition before this Court. The said civil revision was allowed vide judgment dated 07.11.2017 passed by this Court. The operative portion of the said judgment dated 07.11.2017 reads thus:- “23. Resultantly, petition is allowed. Impugned Judgments and Decrees dated 13.05.2015 & 15.10.2015 are set aside. Application filed by the petitioner/defendant No.1 for production of additional document before learned Appellate Court stands allowed. The case is remanded to the learned Trial Court for decision afresh after allowing the parties to produce additional documentary evidence and to arrange spot inspection for determining the ground position and to consider applicable byelaws of CDA. No order as to Costs.”
4. In the meanwhile three more suits , i.e. Suit No. 208/2015, Suit No.527/2017 and Suit No. 417/2019 involving roof top rights of Aalay Plaza were instituted. A brief description of the said suits is as follows:- (i) On 13.07.2015 respondent No.1, Muhammad Dawood, who claims to own Flat No.1 on the fourth floor of Aala y Plaza instituted Suit No.208/2015 inter alia against the petitioner. In 3 C.R.No.386/2019
the said suit , respondent No.1 essentially challenged the title of the petitioner over roof top area to be defectiv e to the extent that it overlapped respondent No.1‟s t itle which is based on documents executed earlier in time. (ii) On 08.12.2017 respondent No.2, Muhammad Shafique, who claims to be owner of flats No. 2, 3 and 14 of Aalay Plaza , instituted Suit No.527/2017 inter alia against the petitioner and respondent No.16. In the said suit , respondent No.2 essentially challenged the title documents of the petitioner and respondent No.16 over roof top area being in contravention of Admission Deed No.2020 , dated 17.06.1981 and the Residential Sectors Zoning (Building C ontrol) Regulations, 2005 ( “the 2005 Regulations”). (iii) On 14.01.2019 , the petitioner instituted another Suit No.417/2019 against respondent No.1. In the said suit , he claimed that respondent No.1 only purchased Flat No.1 and the title document of respo ndent No.1‟s vendor was forged to include roof top area. 5. During the post -remand proceedings , vide order dated 23.05.2018, the learned trial Court appointed the local commission for spot inspection. On 29.09.2018 , the said commission submitted its report. The petitioner filed objections to the report which were dismissed vide order dated 10.12.2018 passed by the learned trial Court. On the said date , the learned trial Court also commenced consolidated proceedings in the above mentioned four civil suits an d framed the following consolidated issues:- “i) Whether the plaintiff is entitled for decree of declaration, mandatory injunction and recovery of rent as prayed for? OPP ii) Whether the suit of the plaintiff is liable to be dismissed in the light of preliminary objections of written statement of defendant No.1? OPD-1 iii) Whether the defendant No.3 is entitled for decree of declaration, cancellation of documents and injunction as prayed for? OPD-3 iv) Whether the suit of defendant No.3 is hopelessly time b arred? OPD-4 v) Whether the suit of defendant No.3 is liable to be dismissed in light of preliminary objections raised by the plaintiff and defendant No.4 in their written statements? OPP & OPD-4 4 C.R.No.386/2019
vi) Whether defendant No.5 is entitled for decree of declara tion and injunction as prayed for in his suit? OPD-5 vii) Whether the suit of the defendant No. 5 is false and vexatious and filed with malafide intention, hence liable to be dismissed with special costs? OPD-1 viii) Whether the suit of defendant No.5 is badly time barred? OPP ix) Relief.”
6. Furthermore on 08.04.2019, the learned trial Court framed the following additional issues:- “VIII-A Whether the plaintiff is entitled for a decree of declaration, cancellation, permanent and mandatory injunction as prayed for? OPP VIII-B Whether the suit of plaintiff is liable to be dismissed in light of preliminary objections raised by defendant No.1 in his written statement? OPD-1”
7. After recording the evidence and hearing the parties, the learned trial Court, vide consolidated judgment and decree dated 12.04.2019, dismissed the two suits instituted by the petitioner and partially decreed the suits instituted by respondents No.1 and 2. The petitioner‟s appeal against the said consolidated judgment and decree was dismissed vide the impugned judgment and decree dated 16.09.2019 passed by the learned Additional District Judge, Islamabad-West. Hence, through the instant civil revision petition, the petitioner assails the said concurrent judgment s and decrees passed by the learned Courts below. 8. Learned counsel for the petitioner , after narrating the facts leading to the filing of the instant petition, submitted that while dismissing the petitioner‟s suit the learned Courts below erred by placing reliance on the provisi ons of the 2005 Regulations which came into effect after the roof top rights were purchased in the year 2002; that the 2005 Regulations came into effect on 17.03.2005 and did not have retrospective effect; that the impugned judgments and decrees were passed without taking into account si gnificance of sale deed No.1801, dated 11.07.1989 (Exh.D -5) executed in favour of Syed Tariq Abbas Shah from whom respondent No.1 draws title; that the said sale deed dated 11.07.1989 is clearly a forged document because thr ough the said document , Flat No.1 was sold „WITHOUT ROOF‟ but the said words were crossed and replaced with words “WITH ROOF; ” that the said overwriting is not compatible with the 5 C.R.No.386/2019
remaining contents of the said document; that the learned trial Court did n ot appreciate the import of remand order dated 07.11.2017 passed by this Court; that the learned Courts below did not scrutinize the contents of the Sale Deed dated 11.07.1989 (Exh.D -6); that the learned Court s below ignored that the respondent s‟ suit was not maintainable under the principles of constructive res judicata; and that the Capital Development Authority‟s Regulations in vogue prior to enforcement of the 2005 Regulations did not prohibit sale and purchase of roof top rights. Learned counsel for th e petitioner prayed for the instant civil revision petition to be allowed in terms of the relief sought therein. 9. On the other hand , the learned counsel for respondent s No.1 and 11 opposed the instant revision petition and submitted that the first owners of Aalay Plaza who had built the said building had executed Admission Deed dated 17.06.1981 (Exh.D -4) whereby not only the shares of the co -owners were determined but it was also settled that the roof top rights would belong to the owners of the flats on the fourth floor; that the petitioner claims to have purchased the roof top rights with a store room from Rab Nawaz Raja and Makhdoom Hussain through registered sale deed dated 16.04.2002; that the said Rab Nawaz Raja and Makhdoom Hussain , vide registered sale deed dated 31.0 3.1997 (Exh.D -9), purchased an office on Mezzanine Flo or of Aalay Plaza and store room at top; that the said vendors , Rab Nawaz Raja and Makhdoom Hussain , themselves not being the owners of the roof top rights could not have transferred the same to the petitioner; that no one can transfer a better title than he himself possesses; that in the petitioner‟s title document , a store room was sold to him but no room exists on the roof top of Aalay Plaza instead on the said roof top , there exists a mumty (constructed over the stairs of the building), a water tank and lift space; that the allegation of forgery with regard to Exh.D -6 is baseless because Exh.D -5 and Exh.D-6 have same contents; that the said documents being registered documents , presumption of correctness is attached to them which was never dislodged by the petitioner through evidence; that the Islamabad Residential Sectors Zoning (Building Control) 6 C.R.No.386/2019
Regulations 1993 restrict the construction on the roof top only to those mentioned in Regulation 11 of the said Regula tions; that in the approved layout plan of Aalay Plaza which w as produced in evidence as Exh. D-7, there exist no store room on the roof top; and that the easement rights of the owners of the flats on the fourth floor cannot be dislodged. Learned counsel for respondents No.1 and 11 prayed for the revision petition to be dismissed. 10. Learned counsel for respondent No.2 beside reiterating the submissions made by the learned counsel for respondent s No.1 and 11 also submitted that in terms of Section 6 of the Transfer of Property Act, 1882, an easement right cannot be transferred to the detriment of dominant heritage; and that the flats are the dominant heritage while the roof top rights are an easement which could not have been sold to the petitioner. 11. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant revision petition have been set out in suffic ient detail in paragraphs 3 to 7 above and need not be recapitulated. 12. Since the dispute in the instant case pertains to a claim regarding proprietary rights over the roof top of Aalay Plaza, it is essential in the first instance to consider the docu ments which form the basis of the private rights in Aalay Plaz a. Conveyance Deed dated 06.06.1981 (Exh.D-3) was executed between the CDA and (i) Brigadier (Retired) Mansoor Ahmed , (ii) Major (Retired) Manzoor u l Hassan, (iii) Mst. Hamida Khanum, (iv) Maqso od ul Hassan, and (v) Mst. Wajia Begum (hereinafter referred to “primary purchasers”). The contents of the said Conveyance Deed inter alia show that vide allotment letter dated 28.07.1976 issued by the CDA, the primary purchasers were put in possession of plot No.44 (Western Half) measuring (48 x 112) 597-3/9 square yards situated at Blue Area (between F -6 and G -6), Islamabad for constructing a five -storey building for the commercial purposes, i.e. commercial / residential; that the primary purchasers constructed the building in accordance with the Islamabad Building Regulations and Islamabad Sector G -6 Zoning Regulations . The 7 C.R.No.386/2019
primary purchasers undertook to abide by the provisions of the Islamabad Building Regulations and Islamabad Zoning Regulations. 13. The next document which also carries significance is the Admission Deed dated 17.06.1981 (Exh.D -4). Through this document , the primary purchasers decided inter alia “to sell basement, shops on the ground floor and excluding 225 sft, the remainder of mezzanine floor, except all the remaining Floors, i.e., First, Second, Third and Fourth and Fifth.” The first to fifth floors of the building were agreed to be divided among the primary purchasers in terms of Clause-1 of the said deed. For the purposes of this c ase, I deem it appropriate to reproduce the terms in which they decided to divide the fifth floor of Aalay Plaza which consists of the roof top, it reads thus:- “FIFTH FLOOR. The roof of 5 th Floor shall belong to the respective Flat owners according to the area of their respective flats and they would be entitled to raise any construction thereon if they so desire as permissible by CDA Regulations in force, without affecting the rights of other co -owners of the building. The present construction existing on the 5 th Floor on the common area would fall to the share of all the flat owners on the fourth floor and would serve to provide access to their respective roof tops.”
14. This clause shows two things, one that the primary purchasers did not intend to sell the roof top rights independent ly of the flats on the fourth floor. Secondly, no construction other than common access existed on the roof top . This fact is substantiated by Exh.D -7 according to which roof plan of Aalay Plaza is such that only a stair access exists from the fourth floor to the roof top. 15. Now through the concurrent judgments and decrees , the learned Courts below have done two things , i.e. they cancelled the sale deeds Exh.D -7 and Exh. P-2 dated 31.03.1997 and 16.04.2002, respectively after holding the said sale deeds to be in contravention of the above mentioned Admission Deed (Exh.D -4) as well as Regulation 2.1.5.1 of the Islamabad Residential Sectors Zoning (Building Control) Regulation 2005 . It is through the said cancelled sale deeds that the petitioner claims title to the roof top rights. 16. The petitioner claims to have purchased a store room on the fifth f loor of Aal ay Plaza with roof top rights but neither do the abovementioned documents , i.e. Conveyance Deed and Admission 8 C.R.No.386/2019
Deed nor does the Building plan / approved map with the CDA provide for a store room on the fifth floor. Therefore, I do not see any error committed by the learned Courts below in this regard. 17. The learned trial Court , vide its judgment and decree dated 12.04.2019, only partially decreed the suit s instituted by respondents No.1 and 2 in that they were held entitled to use of roof top rights in accordance with the CDA Regulations which is not in conflict with the agreement between the primary purchasers record ed in Clause -1 of Admission Deed. Since the said Admission Deed (Exh.D -4) clearly provides for the use of roof top area as permissible under the CDA Regulations in force, the petitioner‟s contention about applicability of the 2005 Regulations lacks merit. 18. The petitioner has also assailed maintainability of the suits instituted by respondents No.1 and 2 on the ground that the same are barred under the principle of constr uctive res judicata. He in this regard has referred to the suit for permanent and man datory injunction instituted on 11.09.2008 by one Muhammad Sharif Muhammadi against Muhammad Ishaq Khan (father of the petitioner). According to the petitioner , his title over roof top of Aalay plaza was the subject matter of the said suit. The said suit w as dismissed vide judgment and decree dated 12.12.2012 passed by the learned civil Court and the appeal there against was also dismissed vide judgment and decree dated 15.05.2014 passed by learned Additional District Judge, Islamabad-West. Res judicata is a principal of proced ural law which is based on old Latin maxim “res judicata pro veritate accipitur” and applies where a decision on merits of a case has already been rendered by a Court of competent jurisdiction on a matter in issue between the same parties or between the parties under whom they or any of them claim, litigating under the same title . In the present matter, since the parties in the previous suit were not same and it has not been demonstrated before this Court that the parties were litigating under the same title as of the plaintiff in the previous suit, the principle of res judicata is not applicable. 19. Additionally this Court , in exercise of its revisional jurisdiction under Section 115 of the Code of Civil Procedure, 1908 ( “CPC”), is not 9 C.R.No.386/2019
called upon to re -appraise and re -evaluate the merits of evidence of the parties in the absence of any illegality or non -reading / misreading of evidence and in revisional jurisdiction re -examining the entire evidence, to find support for another possible view albeit different from the conclusion of the learned Courts below is not permissible .1 Additionally, in the case of Sardar Muhammad Kamal-Ud-Din Khan Vs. Syed Munir Syed 2, the Hon‟ble Supreme Court held that “the exercise of revisional power is circum scribed by section 115 of the Code. Clauses (a) and (b) are attracted when jurisdiction, which is vested in a court, is not exercised or when jurisdiction is not vested in a court yet the court assumes jurisdiction. And, clause (c) is with regard to a court exercising jurisdiction illegally or with material irregularity. Conversely, when the order of a subordinate court is within its jurisdiction and such court has not exercised jurisdiction illegally or with material irregularity revisional jurisdiction ca nnot be exercised. The power of revision cannot be used by a higher court to substitute its own discretion or authority…” 20. In view of the above, the essential pre -requisites for exercise of the revisional jurisdiction in the instant matter are not fulfi lled and I have not found a legal or jurisdictional error or omission warranting interference in the impugned concurrent judgments and decrees. Consequently, the instant civil revision petition is dismissed. Since the instant revision petition does not app ear to have been filed without a reasonable or probable cause, therefore, I do not deem it appropriate to award costs in the instant matter.
(MIANGUL HASSAN AURANGZEB) JUDGE
ANNOUNCED IN AN OPEN COURT ON 25.07.2024.
(JUDGE)
1 Hazara Vs. Muhammad Yar (2011 SCMR 758) 2 Sardar Muhammad Kamal-ud-Din Khan Vs. Syed Munir Syed (2022 SCMR 806) 10 C.R.No.386/2019
Sultan(U)*