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Petitioner: EHSANULLAH KHAN through Legal heirs and 11 others VS Respondent: Syed ZIA-UD-DIN JUDGMENT
Court Name: Sindh High Court Judge(s): Syed Saeeduddin Nasir Title:EHSANULLAH KHAN through Legal heirs and 11 others vs Syed ZIA-UD-DIN
JUDGMENT
Reported As: 2015 YLR 1141 Result: Suit decreed Judgment JUDGMENT SYED SAEEDUDDIN NASIR, J.--- This suit has been filed by the plaintiff against the defendants for Declaration, Cancellation of Documents, Damages and Permanent Injunction with the following prayers:- "(a) to declare that the lease obtained by the defendant No.1, in respect of the suit property is forged, fabricated, manure and illegal and not in accordance with the law and as such merits to be cancelled for which the defendant No.5, be directed to effect such cancellation in the record. (b) to declare that due to the illegal acts of the defendants, inactive collusion and connivance with each other, the plaintiff has suffered physical and mental tortures besides mental agony, monetary losses and waste of time and energy, for which the defendants be directed to pay to the plaintiff Rs.5, 000,000 (Rupees five Million only) as damages; (c) Perpetual inunction permanently restraining the defendants and/or any person or persons inclusive of their agents, servants, associates, masters, contractors, employees, executants, whomsoever claiming through or under them from interfering into legal possession of plaintiff in respect of the suit house/plot and/or creating any third party interest in respect of the plaintiff's house/plot bearing old No.164 New No.225-A, Upper Gizri Village, Sheet No.3, Katchi Abadi, Gizri Karachi; (d) Any other relief or reliefs, which this Hon'ble Court may deem fit and proper in the circumstances of the case, be granted. (e) Costs of the suit be also awarded.
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2. The brief facts as narrated in the plaint are that the plaintiffs is the owner of old plot No.164 (new No.225-A) Upper Gizri Village, Sheet No.3, Katchiabadi, Gizri, Karachi (hereinafter referred to as "suit property") and is residing at the said plot with his family since last more than 44 years. 3. During the year 1976 the area known as "Upper Gizri Village" was notified as Katchiabadi whereby all the old, continuous and undisturbed occupants on KMC land in Upper Gizri Village were to be regularized under the provisions of Katchi Abadi Act, and in this regard the Director, Katchi Abadis and Evaluation, Karachi Metropolitan Corporation wrote a letter dated 25-2-1980 along with proposed plan of Upper Gizri prepared by the Directorate of Katchi Abadis, and in this connection a notification bearing No.S.R.O. 104(1)/84 dated 28-1-1984 was also issued by the Government of Pakistan, Ministry of Defence, inter alia, excluding area of Qayyumabad and Upper Gizri including Machi Para and Gora Bagh Colony from the limits of Clifton Cantonment, subsequently Government of Sindh, Housing and Town Planning, Local Government and Rural Development Department issued notification bearing No. S .0 . (VI)1-16/84 dated 15-9-1988, thereby including Upper Gizri area within the limits of Corporation, and it is for these obvious reasons that the Government of Pakistan, Ministry of Defence (ML&CD) Rawalpindi issued a notification dated 15-5- 1979, mentioning therein all the Katcha Abadis on Defence land, however, the Upper Gizri area is not mentioned within the limits of Defence land, the Deputy Commissioner (South) clearly mentioned that the area in which the House of plaintiff is situated is not within the limits of Defence Society. The plaintiff has mentioned in the plaint that at some point of time the plaintiff was also convener of Anjuman-e-Ittehad Millet which Anjuman was established in the year 1971. It is stated in the plaint that said Anjuman used to collect "Chanda" for The welfare of the area and the plaintiff also used to pay said "Chanda". 4. In the month of November 1995, a SITE camp was set-up by the Director, Katchi Abadis and Evaluation to grant leases to the residents of Upper Gizri Village and challans were distributed to the area people, but when the plaintiff went to collect the challan, the Staff of the Director, Katchi Abadis and Evaluation demanded bribe of Rs.60000 from the plaintiff, which the plaintiff refused to pay, therefore, the challans were not issued to the plaintiff. Thereafter the plaintiff moved several representations to Director, Katchi Abadis and Evaluation and KMC, even to the Prime Minister of Pakistan, but no heed was paid to his genuine request. When the plaintiff requested for issuance of the Land Regularization and Development Plan of the area, he was supplied the same, in which he, for the first time came to know that the number of his plot has been substituted by new No.225-A, however, the staff of Director, Katchi Abadis for Evaluation and KMC again refused to issue lease challans to the plaintiff. The plaintiff was also threatened by the said staff that they would get the house of the plaintiff demolished. 5. It is further averred by the plaintiff in his plaint that in the above circumstances the plaintiff was constrained to file a suit bearing No.1346/1995 in the Court of VII Senior Civil Judge (South) Karachi for declaration and injunction against the Director, Katchi Abadis and Evaluation as well as KMC in which the said learned Court appointed Mr. Zahid Hamid, advocate as a Commissioner, who inspected the suit property on 6-4-1998 and submitted his report in the aforesaid suit wherein the said Commissioner stated that the plaintiff was in possession of the suit property for 40-years. On 25-1-2001, the Presiding Officer of the Court of VII Senior Civil Judge (South) Karachi also inspected the suit property who also submitted the inspection report to the effect that the plaintiff is in possession of the suit property for 35-40 years. In the year 1999 the plaintiff also filed a Constitutional Petition bearing No.D-773 of 1999, which petition was allowed by this Court. In the aforesaid suit the defendant No.3 admitted that the suit plot belongs to KMC, however, the representative of Director Vigilance, Defence Housing Authority came to the house of the plaintiff and threatened him that he would be dispossessed from the said plot of land. The plaintiff was told that his plot has been included in Defence Housing Authority and was given plot No.19. Therefore,
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the plaintiff filed a suit bearing No.40/1994 against the Defence Housing Authority, which was decreed in favour of the plaintiff vide judgment dated 30-8-1999. It is further stated in the plaint that after three long rounds of litigation lastly, the defendant No.3 executed lease in favour of the plaintiff on 30-9-2004. 6. On 24-16-2007, one person who introduced himself as Ghulam Nabi, the Recovery Officer of defendant No. 2, came to the house of the plaintiff and told the chowkidar of the plaintiff that the house/plot of plaintiff is mortgaged with Faysalbank by the owner and that he has committed default in repayment of loan advanced to him by Faysalbank. When the sons of the plaintiff contacted the Manager (South) Commercial Banking and SME Group and some other officials of Faysalbank, they were told that one person namely Syed Ziauddin son of Syed Iftikharuddin the defendant No.1 in the present suit, has committed fraud and has obtained loan on the property in question. The bank officer assured the family members of the plaintiff that an inquiry will be conducted as to how or in which manner the property was inspected and without verifying the position as to who is in possession the loan was extended to the defendant No. 1 by the bank. Finally on 1-11-2007 the bank officer told the sons of the plaintiff that defendant No.1 had taken loan of Rs.8-million, out of which he has returned Rs.3-million, and if the plaintiff wanted to redeem the property in question he should make payment of Rs.5-millioin to the bank as the property is mortgaged with the bank, and in case of failure to do so, they will put the suit property in auction. The plaintiff obtained certified copy of the so-called lease in the name of defendant No.1, which revealed that neither the same was maintained in the Micro Filming Department record nor the copy of the same is available in the record of the defendant No.3. The land in question could only be granted to those persons of Katchi Abadis who have built their houses and are in possession of the plot in question whereas the defendant No.1 neither resided on the suit plot nor was in possession thereof and nor any of the utility bills are in the name of the defendant No.l. Beside this, nobody in the locality knows him, therefore, the defendant No.1 does not fulfil any of the contentions for the grant of lease in Katchi Abadi. 7. The plaintiff has averred in the plaint that the forged lease was executed by the defendants Nos.3 and 4 in collusion with the defendant No.1 and subsequently in connivance with the officials of defendant No.2 i.e. Faysalbank, loan was obtained on the suit property. The officials of the Faysalbank never made a visit to the said property in order to ascertain as to whether or not the defendant No.1 is in possession of the same, which proves without any doubt that the bank officials were equally involved in the said conspiracy. 8. In view of the above circumstances, the plaintiff sent a legal notice to the defendant No. 2 dated 5-11-2007, inter alia, calling upon the defendant No.2 to supply complete set of documents on the basis of which loan was approved in favour of the defendant No.1 and also disclose the names of the authorities who sanctioned the loan in question and pay the damages to the plaintiff, however, the defendant No.2 even after service of the aforesaid legal notice, did not supply any document to the plaintiff and levelled more allegations on the plaintiff vide their reply dated 12-11-2007, the documents mentioned in the reply to the legal notice of the plaintiff dated 12-11-2007 were (a) Lease Deed dated 6-10-1996 in the name of defendant No.1 (b) Search Certificate Nos.95, 148 and 223. (c) Permission to mortgage by Deputy Officer (Revenue) Katchi Abadis, CDGK KMC SITE Report (e) Bank Challan of Rs.3,67,982 dated 5-1-1985 & (t) 03 Memorandums of Deposit of title documents signed by the defendant No.1. 9. The defendant No.1 filed his written statement on 10-12-2009 wherein all the averments, allegations and claims made by the plaintiff in the plaint, were specifically and vehemently denied. In the first paragraph of the written statement defendant No.1 has frankly admitted that according to site inspection on the backside of the plot in question there is construction in a dilapidated condition as such the plaintiff never resided at plot No.255-A with his family and that the plaintiff is
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not in possession of the said plot. In paragraph 3 of the written statement defendant No.1 has admitted that the plaintiff filed Suit No.1346/1995 before the VIIth Senior Civil Judge (South) Karachi, however, the defendant No.1 has denied that the plaintiff filed Constitutional Petition bearing No.D- 773/1999. The defendant No.1 further averred in the written statement that the defendant was not a party to the aforesaid suit, and the plaintiff obtained an ex parte judgment and decree in the same by misguiding and misleading the Court and, therefore, the same has no value in the eyes of law. The defendant No.1 has further stated in the written statement that the plaintiff on the basis of an ex parte decree got illegal lease executed in his favour, as such it has no sanction of any land, and that actually the defendant No.1 was given the suit plot bearing No.225-A, Sheet No.3, Upper Gizri Karachi by Karachi Metropolitan Corporation on lease. The defendant No.1 further stated that it is an admitted position that the lease in question could only be granted to those persons of Katchi Abadi who were found in possession of the plots situated therein, and since the defendant No.1 was in possession of the suit plot, it was leased out to him by Karachi Metropolitan Corporation and, therefore, he is legal and lawful lessee of the suit plot. The defendant No.1 denied that all this was done inactive collusion and connivance of the defendants with each other. The defendant No.1 denied that lease deed dated 6-10-1996 in the name of the defendant No.1, Search Certificate No.95, 148, 223 and 229(c), permission to mortgage by the Deputy District Officer (Revenue) Katchi Abadi, CDGK, KMC site report and bank challan of Rs.3,67,983 dated 5-1-1995 and 03 memorandum of the deposit of title deeds by Syed Ziauddin are bogus, false, manipulated and forged ones. The defendant No.1 submitted that all the aforesaid documents are valid and legal and their genuineness cannot be challenged by the plaintiff. It is further stated that suit is mala fide and has been filed with ulterior motives to blackmail the defendant No.1 and usurp the land of the plot as well as plaintiff has no locus standi for such claim as he is not the lessee of the suit plot. It is further stated that suit is barred under sections 42 and 56 of the Specific Relief Act and plaintiff is not entitled for any claim of damages as no injury has been caused to him and the documents referred to in the plaint cannot be cancelled as all are genuine and valid. The defendant No.1 asserted that prayer made in the plaint by the plaintiff cannot be granted as it is irrelevant and mala fide and without mentioning any cogent reason, same is baseless and without any sound foundation, therefore, the suit is liable to be dismissed with compensatory cost or any other relief which this Hon'ble Court deem fit and proper. 10. The defendant No.2 filed his written statement stating therein that it is quite evident from the record that defendant No.1 had obtained a registered Lease on 6-10-1996 in his favour from the concerned department much earlier to the lease of the plaintiff dated 30-9-2004 in respect of plot/House No.225-A, Sheet No.3, Upper Gizri, Karachi and it is also quite apparent that prior to these proceedings plaintiff never questioned/challenged the said lease before any forum or Court of Law. It is further stated that Messrs National Exports had valid Modaraba Finance Facility from the answering defendant and the defendant No.1 executed a registered Mortgage Deed in favour of the Faysal Bank Limited on 2nd April 2003 and also executed equitable mortgage by execution of Memorandum of Deposit of Title Deeds and Supplementary Memorandum of Deposit of Title Deeds duly signed by the defendant No.1 and also submitted Lease Deed dated 6-10-1996 in respect of House No.225-A, Sheet No.3, Upper Gizri, Karachi in favour of the defendant No.1, Search Certificate Nos.95,148,223 and 229, Permission to mortgage by Deputy District Officer (Revenue) Katchi Abadi, CDGK dated 24-2-2003 in favour of the defendant No.1, KMC Land Surveyor's Site Report in favour of the defendant No.1 and Bank Challan of Rs:367,982 dated 5-1-1995. It is further stated in his written statement that the defendant No.2 had taken all possible and appropriate steps to secure/protect the said finance and accepted the said security documents after having a legal advise/ recommendation in respect of the said proposed security documents from Muhammad Yaqub Kapadia, advocate vide his letter dated 24-5-2002 and Messrs Akbani and Jawed Associates had
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also submitted a Valuation Report dated 19-3-2003 on the request of the defendant No.2 based on physical inspection in respect of house/plot in question. The defendant No.2 further stated in his written statement that all the allegations levelled by the plaintiff against the answering defendant in the suit plaint are absolutely false, frivolous hence denied. The defendant No.2 has also vehemently denied that there was any collusion on the part of the defendant No.2 with the defendant No.1 but it appears that the plaintiff deliberately and intentionally in connivance with the defendant No.1 and the said borrower are trying to defeat the mortgage debt. It is further contended that defendant No.2 is legally and lawfully entitled to have all the documents referred under para in reply, in its exclusive possession till the satisfaction of the claim of the Messrs Faysal Bank Limited/ mortgage money is paid, the said security/charged documents were validly executed as surety of repayment of the finance availed by Messrs National Exports. The defendant No.2 denied the contents made in para-13 to be false and frivolous, specifically denied that any cause of action ever arose against the answering defendant for filing this suit. 11. That, the defendants Nos.3 and 4 has filed their written statement on 13th January, 2009 wherein it is stated that the relevant file of the lease in the name of Syed Ziauddin son of Iftikharduddin dated 6-10-1996 in respect of Plot No.225-A, Sheet No.3, Upper Gizri, Karachi is not available on record maintained by this office and in case the same is granted, it would be treated as void, ab- initio, coramnon-judice and ultra vires and unlawful as the same was probably granted without constructive occupation supported by the documentary evidence prior to March 1985 such as utility bill etc. In the name of its lease according to Katchi Abadis Bye Laws and rules. It is further stated that no cause of action has accrued to the plaintiff, therefore, he is not entitled to the relief prayed for and the suit is liable to be dismissed. 12. The defendant No.5 has also filed written statement wherein specifically denied the contents of Para-12 of the plaint. It is clarified by the defendant No.5 that as per record of this office, the lease deed in question was registered in this office by the then Sub-Registrar as per Registration Law. 13. The defendant No.6 i.e. City District Government Karachi, filed its written statement wherein admitted to the extent that the lease to the plaintiff was granted on the basis of crystal clear constructive occupation based upon the sufficient convincing and valid documentary evidence and on completion of all codal formalities which was relied upon the judgment passed in Suit No.1346/1995, and Execution No.05/2001 dated 15-10-2001 by the order of VIIth Senior Civil Judge (South) Karachi. 14. Upon pleadings of the parties 7 issues were framed by the Court vide order dated 21-5-2010, which are as follows:-- (A) Whether the defendant No.1 had deposited the title deeds of the property bearing No.225-A, Sheet No.3, Upper Gizri, Karachi, creating an equitable mortgage? If so, to what effect? (B) Whether the defendant No.2 was justified in searching out defendant No.1 at his given address? If so, to what effect? (C) Whether the plaintiff has suffered any damages as alleged due to any unlawful act of defendant No.2? If so, to what effect? (D) Whether defendant No.2 after examining the title deeds of the property in question had stopped pursuing the recovery of the finance provided to defendant at the address of the plaintiff? If so, to what effect? (E) Whether the lease obtained by defendant No.1, in respect of the suit property is not forged, fabricated, maneuvered, illegal and not in accordance with the law? Whether such lease does not merit to be cancelled? (F) Whether due to the acts of the defendants the plaintiff has not suffered physical and mental tortures, besides mental agony, monetary losses and waste of time and energy? If so, the plaintiff is not entitled for the damages?
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(G) What should the decree be? 15. The plaintiff filed his affidavit-inevidence and examined himself and produced his affidavit-in- evidence as exhibit 'P' wherein he has stated that he is the owner of plot No.164 (new No.225-A), Upper Gizri Village, Sheet No.3, Katchi Abadis, Gizri, Karachi (hereafter called as the said property/plot) and is residing at the said plot with his family since last more than 46 years. He also produced copy of old Ration Card in the name of his father as exhibit P/1, KW&SB bills as exhibits P/2 to P/5, copies of some amenities bills as exhibits P/6 to P/10, copies of certificates issued by previous Counselor and the Member Advisory Council as exhibits P/11 and P/12, letter dated 25-2- 1980 issued by the Director, Katchi Abadis and Evaluation, Karachi Metropolitan Corporation with proposed concept plan of Upper Gizri as exhibit P/13 and in this connection a notification bearing No.S.R.O. 104(I)/84 dated 28-2-1984 issued by the Government of Pakistan, Ministry of Defence, as exhibit P/14, Notification No.SO(VI)1-16/84 dated 15-9-1988 excluding the Upper Gizri area from the limits of Clifton Cantonment produced as exhibit P/15, Government of Pakistan, Ministry of Defence (ML&C Department) Rawalpindi Notification dated 15-5-1979 produced as exhibit P/16 mentioning all the Katchi Abadis on defence land except the Upper Gizri area, the chanda receipts of Anjuman- e-Ittehad Millat produced as exhibits P/17 to P/20, birth certificates of children of the plaintiff produced as exhibits P/21 and P/22, KMC taxes pertaining to the year 1962 produced as exhibit P/23, letter issued in the year 2000 of Excise and Taxation Department bearing No. ETO/PT/C/338/2000 levying taxes on the plaintiff produced as exhibit P/24, PTI in the name of the plaintiff as exhibit P/25, copies of representations to the Director Katchi Abadis and Evaluation, Karachi Metropolitan Corporation and the Prime Minister produced as exhibits P/26-A to P/26-D, original plan mentioning the number of the plot of the plaintiff as 225-A, produced as exhibit P/27, Development Plan of the area as exhibit P/27-A, Commissioner's Inspection Report in Suit No.1346/1995 dated 6- 4-1998 as exhibit P/28, second inspection report dated 25-1-2001 produced as exhibit P/29, order in Constitutional Petition No.D-773/1999 produced as exhibit P/30, application to Director of D.H.A. As exhibit P/31, certified copies of judgments and decrees in Suit No.1346/1995 and No.40/1997 against DHA produced as exhibits P/32 to P/35, Indenture of Lease executed by the defendant in favour of plaintiff produced as exhibit P/36, certified copies of lease in the name of defendant No.1 produced as exhibit P/37, Legal Notice to the defendant No.2 as exhibit P/38, reply of defendant No.2 dated 12- 11-2007 as exhibit P/39, reply to the same by the plaintiff as exhibit P/40, copy of application with defendant No.1 's CNIC as exhibits P/41 to P/43, Voters' list showing the name of defendant No.1 in District Central Karachi produced as exhibit P/44. The plaintiff was cross-examined by the advocate for the defendant No.2 in which he maintained the same facts as asserted by him in the plaint. 16. The plaintiff was cross-examined by the learned counsel for the defendants Nos.1 and 2. The plaintiff also examined one Atta Muhammad as P.W.2, who has filed his affidavit-in-evidence wherein he has stated that he knows the plaintiff since last more than 45 years and also knew father of the plaintiff who used to live with his family on the suit plot which is the sole and absolute property of the plaintiff, wherein the plaintiff is now residing with his family. The plaintiff was also elected as BD member from our area in the days of President Muhammad Ayyub Khan. The said P.W.2 has categorically stated in his affidavit-in-evidence that Syed Ziauddin son of Iftikharuddin never remained in our area nor he had any time possession of the suit plot. In the examination in chief, the said P.VV.2 has reiterated that he knows the plaintiff for more than last 45 years and that it is correct that Syed Ziauddin never lived in the area or ever was in possession of the suit property. As no other defendant was present the aforesaid P.W.2 was not cross-examined by any one and side for any further cross-examination of P.W.2 was closed. 17. Thereafter, the plaintiff produced D.D.O. Saddar Town as P.W.3, who in his Examination in Chief categorically stated that "I see lease dated 30-9-2004. It is correct that it is in the name of
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Ehsanullah Khan, the plaintiff exhibit P-36. It is correct that the land belongs to the plaintiff and others have nothing to do with it as per our record. The lease is correct and genuine. There is judgment in favour of Mr. Ehsanullah in Suit No.1346/1996 dated 31-1-2001". The aforesaid witness of the plaintiff P.W.3 was not cross-examined by the counsel for the defendants Nos.1 and 2. The defendant No.1 also filed affidavit-inevidence wherein he has depicted the contents of his written statement. In his Examination in Chief the defendant No.1 produced as exhibits D-1 to D-8, which are written statement, copy of indenture of lease dated 6-10-1996, challan, newspaper cutting of daily DAWN dated 22-9-1996, press release dated 16-9-1996, letter dated 17-9-1996, NBP receipt dated 18-1-1995, Mortgage Deed dated 2-4-2003, MODTP dated 29-4-2003, letter dated 4-6-2002, Search Certificate dated 4-9-1997, Search Certificate dated 4-8-2001, Search…
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