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Official Citation: 2024 IHC 187962
Court / Jurisdiction: Islamabad High Court
Parties: Muhammad Zubair vs CDA through its Chairman etc.
Ruling Summary: This decision was rendered by the Islamabad High Court, officially reported as 2024 IHC 187962. In this matter between Muhammad Zubair and CDA through its Chairman 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: 01-OCT-2024 CASE NO: Writ Petition-306-2024 CITATION: 2024 IHC 187962 PARTIES: Muhammad Zubair VS CDA through its Chairman etc. LAW / SECTION: - SUBJECT: Miscelleneous, Other REMARKS: Challenges sub-division of plot in E-7 by CDA and impugned transfer of allotments in the names of respondents etc. ============================================================ JUDGMENT SHEET IN THE ISLAMABAD HIGH COURT, ISLAMABAD JUDICIAL DEPARTMENT W.P.No.306 of 2024 W.P. No.3284 of 2021 W.P. No.3364 of 2013 Muhammad Zubair Versus The Capital Development Authority and others Shams ul Islam and others Versus Federation of Pakistan and others Akhtar Hussain Shah Versus Oil and Gas Development Company Limited and another
Dates of Hearing: 25.09.2024 and 01.10.2024. Date of Decision: 01.10.2024. Petitioner by: Barrister Asim Muzaffar Khan. Respondents by: M/s Muhammad Nazir Jawad and Iqbal Hassan, advocates for the CDA. Mrs. Afshan Ghazanfar, advocate for respondent No.4. Respondent No.4 in person. ________________________________________________________________________
MIANGUL HASSAN AURANGZEB, J:- Through the instant writ petition the petitioner, Muhammad Zubair, impugns the letter dated 09.08.20 02 issued by the Capital Development Authority (“CDA”) whereby Plot No.121 measuring 1 ,000 square yards situated in Street No.11, Sector E-7, Islamabad was sub-divided into two plots each measuring 500 square yards and allocated Plots No.121 and 121-A. The petitioner also impugns the letters dated 21.08.2002 and 23.06.2016 whereby Plot No.121 -A was first transferred to respondent No. 3 ( Mst. Zeenat Zia) and thereafter to respondent No.4 (Mst. Bushra Andrabi). 2. The petitioner’s case as gathered from the contents of the writ petition is that on 05.09.2000, the petitioner had filed civil suit No.50/2000 for partition and permanent injun ction with respect to a number of properties which included “House bearing No.121/A .” Apparently, a preliminary decree was passed in the said suit on 23.11.2018. A final decree in the said suit has not been passed as yet. It has also been pleaded that when the said suit was filed, Plot No.121 measuring 1,000 square yards had not been sub -divided, and that House No.121/A built on 500 square yards had been purchased by the petitioner’s brother in 1999. In paragraph 4 of the writ petition, it has been pleaded that the petitioner had claimed House No.121/A by asserting that it was a legacy of his late father, 2 W.P.No.306 of 2024
Ghazanfar Hassan. Apparently, in civil suit No.50/2000, an order to maintain status quo was passed on 05.09.2000. In paragraph 6 of the writ petition, it i s pleaded that in civil suit No.50/2000 the petitioner’s claim on the said House was based on the fact that his elder brother, Hameed Ullah , was owner in possession of the said House having purchased the same. It has also been pleaded that Hameed Ullah did not transfer the property in his own name but instead sold the same in connivance with respondent No.2, Major (Retired) Ghulam Moh iyuddin, to respondent No.5, Mst. Saeeda Aftab Cheema. It has also been pleaded that at the time of the purchase of the said House by respondent No.6, Hameed Ullah, Plot No.121 measuring 1000 square yards had not been sub -divided and that the said House had been constructed on the un divided plot. In paragraphs 10 and 11 of the writ petition , it has been pleaded inter alia that one House constructed on the un divided Plot No.121 was held in the name of respondent No.5, Mrs. Saeeda Aftab Cheema and the other in the name of respondent No.2, Major (Retd.) Ghulam Mohiyuddin. It has also been pleaded that respondent No.2, Ghulam Mohiyuddin, was the resident of House No.121/A whereas respondent No. 5, Mst. Sa eeda Aftab Cheema , was the resident of House No.121/B, and that the undivided Plot No.121 was jointly held in their names. It is also the petitioner’s case that respondent No.6, Hameed Ullah , did not have the requisite funds to purchase House No.121/A, and that the purchase had been made with the funds provided by his late father, Ghazanfar Hassan. 3. In paragraph 28 of the writ petition, it has been pleaded that on 07.10.2023, the petitioner had filed a civil suit for the cancellation of the allotment letter of Plot No.121/A in favour of respondent No.4, Mst. Bushra Andrabi. It has also been pleaded that the plaint in the said suit was rejected on the ground that the plaint had not disclosed a cause of action. Despite the said order dated 07.10.2023, the petitioner filed the instant writ petition to challenge the bifurcation / sub-division of Plot No.121 which was several years prior in time to the allotment of Plot No.121/A in favour of respondent No.4, Mst. Bushra Andrabi. 3 W.P.No.306 of 2024
4. Barrister Asim Muzaffar Khan appeared for the petitioner and submitted that the petitioner’s brother, Hameed Ullah did not have any funds to purchase House No.121/A on the undivided Plot No.121; that Hameed Ul lah purchased House No.121/A constructed on half of the undivided Plot No.121 prior to its sub -division with funds from the legacy of his late father, Ghazanfar Hassan; that after the said purchase, House No.121/A was in occupation of Hameed Ullah; that th e said plot was amongst the properties of late Ghazanfar Hassan with respect to which suit No.50/2000 had been filed for partition and permanent injunction; that on 05.09.2000, the learned Civil Court had issued a status quo order; that the sub - division of Plot No.121 was carried out by CDA on 09.08.2002 during the subsistence of the status quo order; that Hameed Ullah had sold House No.121/A without transferring it in his own or his father’s name; and that since House No.121/A had been purchased with funds from the petitioner’s father, and since the said house is the subject matter of a preliminary decree passed in civil suit No.50/2000, learned counsel for the petitioner sought for the instant writ petition to be allowed in terms of the relief sought therein. 5. Mrs. Afshan Ghazanfar, Advocate appeared for respondent No.4, Mst. Bushra Andrabi , who is presently registered as owner of Plot No.121 having purchased the same from Mst. Zeenat Zia on 23.06.2016, who in turn had purchased it from Major (Retired) Ghulam Mohiyuddin. She submitted that earlier the petitioner had filed civil suit No.363/2023 before the Court of the learned Civil Judge, Islamabad for the cancellation of the transfer / allotment letter dated 23.06.2016, whereby House No.121, Street No.11, Sector E-7, Islamabad was transferred in favour of respondent No.4, Mst. Bushra Andrabi; that the plaint in the said suit was rejected by the learned civil Court vide order and decree dated 21.11.2023; that a regular first appeal was preferred by the peti tioner against the said decree but the same was dismissed as withdrawn vide order dated 28.11.2023 passed by the Court of the learned Additional District Judge, Islamabad; that for all intents and purposes, the order and decree dated 21.11.2023 passed by t he learned Civil 4 W.P.No.306 of 2024
Court has attained finality; that the said order dated 21.11.2023 was passed after the learned Civil Court summoned the record from the CDA and satisfied itself that Plot No.121 was not part of the legacy of late Ghazanfar Hassan at any st age; that although the instant writ petition was filed after the order and decree 21.11.2023 but the petitioner has not mentioned the factum of the said decree in the certificate attached with the instant writ petition; and that since the learned civil Cou rt has clearly held that Plot No.121 was not part of the legacy of late Ghazanfar Hassan, the petitioner has no right whatsoever to question the sub -division of Plot No.121 measuring 1,000 square yards into Plot No.121 and Plot No.121 -A after a lapse or mo re than twenty one years. Learned counsel for respondent No.4 prayed for the writ petition to be dismissed with a befitting penalty. 6. Mr. Muhammad Nazir Jawad, Advocate tendered appearance on behalf of CDA and made submissions consistent with those of Mrs. Afshan Ghazanfar, Advocate. He submitted that as per the record maintained by CDA, at no material stage had the petitioner, his brother (Hameed Ullah) or his late father (Ghazanfar Hassan) remained owners of Plot No.121 prior to and after its sub -division. He further submitted that the learned civil Court had rejected the plaint in the petitioner’s civil suit No.3 63/2024 after going through the entire record maintained by CDA with respect to Plot No.121 ever since 1975. Learned counsel for CDA prayed for the writ petition to be dismissed. 7. 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 petition have been set out in suffi cient detail in paragraphs 2 to 3 above and need not be recapitulated. 8. As mentioned above, the petitioner has challenged letter dated 09.08.2002 from the Estate Management Directorate of CDA, whereby Plot No.121, measuring 1,000 square yards in Sector E-7, Islamabad was sub -divided into two plots each measuring 500 square yards. Plot No.121 was stated to be in the name of 5 W.P.No.306 of 2024
respondent No.2, Major (Retired) Ghulam Mohiyuddin, whereas Plot No.121-A was in the name of respondent No.5, Mrs. Saeeda Aftab Cheema. The said letter is addressed to respondent No.2 as resident of House No.121 -A and to respondent No.5 as resident of House No.121-B. 9. The instant writ petition primarily concerns House No.121/A built on 500 square yards which was owned by respondent N o.2 at the time of the sub -division on 09.08.2002. The said House was allocated Plot No.121 after its sub-division. 10. Believing that House No.121-A had been purchased by respondent No.6, Hameed Ullah with the funds of late Ghazanfar Hassan, who was the petitioner and respondent No.6’s father, the petitioner had filed civil suit No.50/2000 on 05.09.2000 before the Court of the learned Civil Judge, Islamabad. Through the said suit, the petitioner had sought partition of a number of properties including House No.121/A so that they are divided amongst Ghazanfar Hassan’s legal heirs. A preliminary decree in the said suit is said to have been issued on 23.11.20 18. The list of properties mentioned in the said decree, includes House No.121 /A, Street No.11, Sector E-7, Islamabad. 11. It is an admitted fact that respondents No.1 to 5 were not parties in the said suit for partition. When the said suit was filed, Plot No.121 measuring 1,000 square yards was in the joint names of respondent No.2, Major (Retired) Ghula m Mohiyuddin and respondent No.5, Mst. Saeeda Aftab Cheema. Half the share of the undivided Plot No.121 had been transferred in the name of respondent No.2, Major (Retired) Ghulam Mohiyuddin on 05.11.19 81 and the other half in the name of respondent No.5, Mst. Saeeda Aftab Cheema on 08.03.1990. It was on the joint request of respondents No.2 and 5 that Plot No.121 measuring 1000 square yards was sub -divided by CDA vide letter dated 09.08.2002 into Plots No.121 and 121 -A each measuring 500 square yards. Plot No.121 (i.e. House No.121/A) measuring 500 square yards was transferred in the name of respondent No. 2, Major Retired Ghulam Mohiyuddin whereas Plot No.121 /A (i.e. House No.121/B) measuring 6 W.P.No.306 of 2024
500 square yards in the name of respondent No.5, Mst. Saeeda Aftab Cheema. 12. Respondent No.2 transferred Plot No.121 to respondent No.3, Mst. Zeenat Zia on 21.08.2002, who transferred the same to respondent No.4, Mst. Bushra Andrabi on 23.06.2016. 13. On the basis of the preliminary decree dated 23.11.20 18, the petitioner filed suit No.363/2023 on 07.10.2023 before the Court of the learned Civil Judge, Islamabad against CDA and respondent No.4, Bushra Andrabi seeking the cancellation of the allotment letter dated 23.06.2016, whereby Plot No.121 measuring 500 square ya rds was transferred in favour of respondent No.4, Mst. Bushra Andrabi. Respondent No.4 had filed an application under Order VII, Rule 11 CPC seeking the rejection of the plaint in the said suit. Vide order and decree dated 21.11.2023, the said application was allowed and the plaint in the said suit was rejected. Perusal of the said order and decree shows that the learned Civil Court called for a report pertaining to Plot No.121 from CDA in order to satisfy itself whether there was any basis for the petition er’s claim in the said suit. After going through the necessary record, the learned civil Court satisfied itself that at no material stage had the petitioner remained owner of any part of the undivided Plot No.121. For the sake of brevity, the relevant port ion of the order dated 21.11.2023 setting out the sequence of the transfer before and after the sub -division of Plot No.121 ever since 29.09.1975 is set out herein below:- “Further report of CDA is also available on record and according to report plot No. 121, Street No.11 Sector E -7 Islamabad initially allotted in the name of Senator Sania Usman on 29.09.1975. On dated 30.09.1981 the same plot was transferred in the name of Abdul Majeed. It was further transferred jointly in the name of Major ® Ghulam Mohi ud Din and Miss. Noureen Aslam on 05.11.1981. Miss Noureen Aslam transferred her share in the property in the name of Raja Muhammad Ishaq on 20.12.1982 while Major ® Ghulam Mohi ud Din remained the co -allottee of the plot in question. Raja Muhammad Ishaq transferred his share in the name of Sheikh Nawab ud Din on 19.07.1983 and Sheikh Nawab ud Din transferred his share on 11.08.1983. Nouman Ahmed transferred his share to Miss Syeda Aftab Cheema on 08.03.1990. On dated 09.08.2002 on the joint request of Maj or ® Ghulam Mohi ud Din and Mrs. Syeda Aftab Cheema the plot was formally sub divided in equal share of 500 Sq Yards and they were numbered as 121 & 121A respectively. The property No.121A was transferred in the name of Mrs. Syeda 7 W.P.No.306 of 2024
Aftab Cheema while the property No.121 was allotted in the name of Major ® Ghulam Mohi ud Din who transferred his property in the name of Miss. Zeenat Zia on 21.08.2002 and on dated 23.06.2016 Zeenat Zia transferred property No.121 in the name of Miss. Bushra Andrabi defendant No.2 and at present according to record of CDA defendant No.2 is the owner of property of No.121 measuring 500 Sq Yards, Street No.11, Sector E -7 Islamabad and according to record of CDA since 29.09.1975 till today this property was never remained in the name of plaintiff or his predecessor late Ghazanfar Hassan.
(Emphasis added)
14. The petitioner preferred an appeal against the said order and decree before the Court of the learned Additional District Judge, Islamabad. Vide order dated 28.11.2023, the said appeal was dismissed as withdrawn. With the withdrawal of the said appeal, the order and decree dated 21.11.2023 attained finality for all intents and purposes. What also attained finality is the finding of the learned civil Court that the petitioner or hi s father had never remained the owner of the property that had been transferred by respondent No.2, Major (Retired) Ghulam Mohiyuddin on 21.08.2002 to respondent No.3, Mst. Zeenat Zia and further to respondent No.4, Mst. Bushra Andrabi on 23.0 6.2016. In th e presence of such findings, the petitioner has no legal basis to call in question the sub - division of Plot No.121 measuring 1,000 square yards carried out through CDA’s letter dated 09.08.2002. 15. Although in paragraph 28 of the instant petition, the pet itioner has made reference to the fact that the learned civil Court had rejected the plaint in the petitioner’s suit challenging the allotment letter in favour of respondent No.4, Mst. Bushra Andrabi but he has failed to disclose the fact that the appeal a gainst the order and decree dated 21.11.2023 had been dismissed as withdrawn vide order dated 28.11.2023. 16. True, there may have been a preliminary decree issued by the learned civil Court on 23.11.2018 in a suit for partition etc., but the said suit is still pending and respondents No.2 to 5 herein are not parties in the said suit. Therefore, such decree would not be binding on any of the said respondents. The said preliminary decree cannot 8 W.P.No.306 of 2024
operate to take away the ownership rights of parties who have n ot been impleaded as defendants in the suit. It is well settled that in the absence of the necessary party, no effective decree or order can be passed. Adjudication in the absence of the necessary party is a nullity and of no legal effect. 17. The petitioner has chosen not to make any mention of the fact that he had withdrawn the appeal against the order and decree dated 21.11.2023 whereby the plaint in his suit was rejected not due to insufficient court fee but because the learned civil Court satisfied itself that in the record of the CDA, the petitioner’s brother, Hameed Ullah or his father had not remained the owners of Plot No.121 either before or after its bifurcation/sub -division. As mentioned earlier, the petitioner’s challenge to the transfer letter dated 23.06.2016 issued in favour of respondent No.4, Bushra Andrabi had failed with the passing of the order and decree dated 21.11.2023. The petitioner wants to now indirectly challenge the said transfer letter by challenging the bifurcation / sub -division of Plot No.121 carried out by the CDA through letter dated 09.08.2002. In the presence of the said order and decree dated 21.11.2023 and the order dated 28.11.2023 for the withdrawal of the appeal against the said order and decree, the instant petition must fail. The impugned sub-division was carried out more than twenty one years prior to the filing of the instant writ petition. Learned counsel for the petitioner did not come up with any plausible explanation for the inordinate delay in the filing of the instant writ petition. 18. In view of the above, the instant petition is dismissed with costs. Additionally, for embroiling respondents No.2 to 4 in wasteful litigation, costs of Rs.50,000/- are imposed on the petitioner in terms of Section 35(1)(iii) of CPC which was inserted through the Cost of Litigation Act, 2017. 19. Before parting with this judgment, I deem it appropriate, to mention that on 25.09.2024 after the arguments of the learned counsel for the contesting parties were heard, it was announ ced in open Court that the writ petitio n is dismissed with costs. After the learned counsel for the respondents left the Court room, learned 9 W.P.No.306 of 2024
counsel for the petitioner came to the rostrum and sought the withdrawal of the instant petition. When asked to fil e an application for withdrawal, he informed the Court Associate that he would not do so. In these circumstances, this Court vide order dated 25.09.2024 again fixed the matter for 01 .10.2024 with the direction to inform the learned counsel for the contesti ng parties as to the said date. Today i.e. 01.10.2024, an objection case was fixed before this Court containing application of the petitioner for the transfer of the instant petition to some other Bench. Since I had already announced my decision, the request for the transfer of the case cannot be entertained.
(MIANGUL HASSAN AURANGZEB) JUDGE
Sanaullah*