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Petitioner: Abdul Sattar Shaikh VS Respondent: Adeel Zahoor Malik and others
Court Name: Sindh High Court Judge(s): Muhammad Faisal Kamal Alam Title: Abdul Sattar Shaikh vs Adeel Zahoor Malik and others Case No.: Civil Suit No.1767 of 2014 Date of Judgment:2019-05-30 Reported As: 2020 CLC 984 Result: Suit decreed
JUDGMENT
JUDGMENT MUHAMMAD FAISAL KAMAL ALAM, J.---- The present action at law is brought against Defendants and primarily against private Defendants Nos.1 and 2, inter alia, seeking cancellation of Sale Agreement. The Plaint contains the following relief_ "It is, therefore, prayed on behalf of the above named Plaintif f that this Honourable Court may be pleased to pass the judgment and decree in favour of the plaintif f as under: - i. To direct the defendants Nos.1 and 2 to remove the illegal construction of the Plaintif f plot bearing No. B- 2 at measuring 400 S. Yards situated at Block No.10, Gulistan-e-Johar , Karachi and handed over the peaceful vacant possession of the said plot to the plaintif f. ii. To direct the defendant to pay a sum of Rs.1,00,00,000/- (One Crore Only) damages on account of causing distress, anxiety and mental torture. iii.To direct the defendant to pay Rs.5000/- per day mesne profit to the plaintif f from 13 March 2013 to 31st August 2014 total comes to Rs.26,50,000/- and future mesne profit with effect from 1st September 2014 till the recovery of the possession of the suit property . iv.To restrain the defendants Nos.1 and 2, his agent successors, survivor , agent, attorney person or persons in respect of plot bearing Plot No.B-2, admeasuring 400 Sq. Yards, situated in Block-10, Gulistan- e-Jauhar Karachi and to restraint the Defendants Nos.1 and 2 not to sell out, transfer and create third party interest in the said property till the final disposal of the case. v. To direct the defendants Nos.4 and 5 not to execute, sale deed, transfer or mutate the said plot to the defendants Nos.1 and 2 or any other person till the finalize of the above suit. vi. To declare the so-called sale agreement is forged, fabricated and fictitious documents and the same has been preferred by the defendant No.2 to usurp the Plaintif f property and the same may be cancelled.
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vii. Cost of the suit. viii. Any other relief or reliefs which this Honorable Court may deem fit and proper circumstances of the case." 2. The case of Plaintif f, as argued by his Advocate, Ms. Uzma Khan, is that the Plaintif f purchased the open Plot No.B-2, measuring 400 Square Yards, situated in Block-10, Gulistan-e-Johar , Karachi (Suit Plot') from one Naseeruddin Humayon and mutation was also done in favour of Plaintif f in the record of Defendant No.4. It is further averred that since the Plaintif f used to live abroad in connection with his employment, when he came back in the year 2013, more particularly , in the month of March, the latter visited the suit plot and was shocked to see that it is in illegal possession of Defendant No. 1. Subsequently , when Defendant No.2, who is real father of Defendant No.1, was impleaded vide order dated 29.08.2016, latter produced a Sale Agreement between Plaintif f and the said Defendant No.2, regarding which the Plaintif f then amended the pleadings and also sought relief of cancellation of this Agreement dated 15.12.2008 { the impugned Sale Agreement }. 3. On the other hand, Mr. Muhammad Shahid Qadeer , the learned counsel representing the Defendants Nos.1 and 2, has argued that the claim of Plaintif f is time barred as the present /is is filed in the year 2014 and after making amendments in the pleadings, the relief of cancellation of the Sale Agreement dated 15.12.2008, has been sought. It is further averred that private Defendants Nos.1 and 2 are in lawful possession of the suit plot and subsequently a further development has taken place, when the area in which suit plot was located, was resumed by the Board of Revenue and was declared as Chishti Nagar Goth' (the Goth}, with the effect that ownership of Plaintif f ceases to exist. 4. Defendant No.4 in its Written Statement has narrated the history of suit plot that it was earlier allotted to Nasiruddin Humayon vide Allotment Order No.641 dated 18.06.1981 through ballot and physical possession was also handed over to the said allottee and subsequently the suit plot was transferred in the name of Abdul Sattar son of Abdul Qayyum; that is, the present Plaintif f. 5. Following Issues were framed on 12.09.2017 by the Court, where after parties led their evidence "i. Whether the Plaintif f is legal and lawful owner of the Plot No. B-2 admeasuring 400 square yards, situated at Block-10, Gulistan-e-Jauhar , Karachi? ii. Whether the suit plot is still exist in the name of the Plaintif f in the record of CDGK? iii. Whether the so-called alleged agre ement filed by the Defendant No.2 along with his application under Order I, Rule 10, C. P .C. is a false, forged, fictitious and fabricated documents? iv. Whether the Defendants are illegally and- unlawfully occupied the said plot and raised illegal construction on it? v. Whether the Plaintif f is entitled for mesne profit at the rate of Rs.5000/- per day from March, 2013 till the recovery of the possession of the suit plot? vi. Whether the Plaintif f is entitled to recover damages Rs.10,00,000/- from the Defendant? vii. Whether the Defendant No.2 has purchased the suit property from Plaintif f vide sale agreement dated 15.12.2008 and has been taken over possession from the Plaintif f as part performance of contract? (sic) ix. Whether the Board of Revenue has declared Block No.10 and 11 as the (Chishti Nagar Goth) situated in N.C. No.166, Deh Safoora Karachi vide letters dated 19.08.2013 and 23.08.20 13 issued by the Government of Sindh? x. What should the decree be?" 6. The Plaintif f has examined himself as PW-1 and other two witnesses as PW-2 and PW-3, namely , Musaddaq Ashraf Arain and Aftab Ahmed Khan, respectively; whereas, the contesting Defendants Nos.l and 2 have examined Defendant No.2 as DW-1, namely , Zahoor Ahmed Malik and one more witness, namely , Malik Muhammad Rabnawaz as DW -2. 7. The Court record shows that a site inspection was directed vide order dated 17.10.2014 and the learned Official Assignee submitted his Reference No.1 of 2014, conclusion of which is that Plaintif f was / is not in physical possession of the suit Plot. In paragraph-2 of the said Reference, it is observed that the Assistant Director Land of
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Karachi Development Authority (KDA) Wing, Karachi, also appeared before the learned Official Assignee on 30.10.2014 and produced original title document of suit plot showing the title of Plaintif f. This Report / Reference has not been objected to by any of the Parties. 8. The Issue-wise finding is mentioned herein under: Issue No.i : Affirmative Issue No.ii : Affirmative Issue No.iii : Affirmative Issue No.iv : Affirmative Issue No.v : As under Issue No.vi : As under Issue No.vii : Negative Issue No.viii : Negative Issue No. ix : Suit is decreed. Discussion / Reasons of the Issues.
ISSUES NOS. (i) and (ii). 9. The Plaintif f with his Affidavit-in-Eviden ce / Examination-in-Chief has produced the Sale Agreement of the year 1993 between the above named earlier allotee and the Plaintif f, which was marked as "X" because it was a photocopy . The Plaintif f has also produced Transfer Order dated 04.12.1995 of suit plot in the name of Plaintif f, which has been exhibited as Exhibit-P/2 . The Allotment Order in favour of original allotee, namely , Nasiruddin Humayun as Exhibit P/3, acknowledge of payment and occupancy value by official Defendant No.4 (KDA) as Exhibits P/4 and other payment receipts as Exhibits P/5 to P/7. The said witness has produced the site plan issued by Engineer Wing of Defendant-KDA as Exhibit P/8 (available at page-53 of the Evidence File). Possession Order in favour of above named original allottee, Nasiruddin Humayun, is produced as Exhibit P/10. Acknowledgment of Possession as Exhibit P/11. The Complaint dated 20.05.2014 to Superintendent of Police (SP) Gulshan-e-Iqbal, Karachi for re-possession of suit plot by Plaintiff is produced as Exhibit P/12. The Plaintiff has also produced the relevant pages of his Passport and entries mentioned therein as Exhibit P/14 and the Legal Notice to private Defendants Nos.1 and 2, as Exhibit P/15. 10. It is the case of private Defendant s that they have purchased the suit plot by a Sale Agreement dated 15.12.2008 for a total sale price of Rs.35,75,000/- (Rupees Thirty Five Lac Seventy Five Thousand only) from Plaintif f. Thus ownership of Plaintif f in respect of suit plot has not been disputed by contesting Defendants. Primarily the case of Defendants is that after receiving part payment of Rupees Two Million, the vacant and physical possession of the suit plot was handed over to them (Defendants Nos.1 and 2), by Plaintif f. The other two witnesses of Plaintif f, namely , Musaddaq Ashraf Arain and Aftab Ahmed Khan have also supported the version of Plaintif f. PW-2 (Musaddaq Ashraf Arain) who is a doctor by profession, stated that he knows the Plaintif f for the past 25 years and the suit plot was purchased in his presence. He has further corroborated the evidence of Plaintif f that he returned from Saudi Arabia after 25 years of service and has deposed that he has seen the original documents of suit plot. With regard to testimony of Plaintif f about the ownership, the same has not been questioned by the contesting private Defendants Nos.1 and 2. Rather the Defendant No.2 in his testimony has admitted the fact that the suit plot still exists in the name of Plaintif f in the record of KDA. No one has come forward to testify on behalf of Defendant No.4-KDA, but in their Written Statement it has been categorically mentioned that present Plaintif f is the transferee . Even though the Written Statement by itself does not have any evidentiary value, unless, deponent of pleadings (plaint or Written Statement), enters the witness box to lead the evidence, but at the same time, it is a matter of record that the factum of ownership of Plaintif f has also been mentioned in the afore-referred Reference of learned Official Assignee, to which no objection has been filed. Thus the fact about ownership of Plaintif f in respect of the suit plot and its still in the name of the latter , is an undisputed fact. Hence, Issues Nos.(i) and (ii)
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are answered in Affirmative that Plaintif f is lawful owner of suit plot and the mutation in favour of Plaintif f in the official record is still intact. ISSUES NOS. (iii), (iv) and (vii). 11. The Issues are interlinked and pivotal for deciding the present controversy . Mr. Muhammad Shahid Qadeer , Advocate, has also raised a question. of limitation in respect of the Sale Agreement dated 15.12.2008, produced by the Defendant No.2 in his evidence as Exhibit D/2 (the impugned Sale Agreement ). The learned counsel further elaborates that the Agreement is of 15.12.2008 and its cancellation is sought on 17.11.2016 when the Plaintif f filed amended plaint in compliance of order dated 04.11.2016. Further contended that even if the original plaint is seen, through which the present lis was instituted on 13.09.2014, no relief of cancellation is mentioned in the prayer clause and thus in terms of Article-91 of the Limitation Law, the Plaintif f is debarred from seeking cancellation of the impugned Sale Agreement. 12. On the other hand, Ms. Uzma Khan, the learned counsel for Plaintif f states that it has been specifically pleaded in the amended plaint (by the Plaintif f) in paragraph-4, that only on 29.08.2016 when the Defendant No.2 filed an application under Order I, Rule 10 of C.P.C., for the first time Plaintif f came to know about the copy of the impugned Sale Agreement, as it was appended with the said Application. It is further averre d that on the date mentioned in the impugned Sale Agreement, Plaintif f was not in Pakistan, therefore, it is a bogu s document. Findings on these Issues will also decide the objections of Defendants about the time barred claim. 13. The Plaintif f in his Affidavit-in-Evidence / Examination-in-Chief has specifically denied that he has ever signed the impugned Sale Agreement and it is a forged and fabricated document and further deposed that on a particular date h was out of Pakistan. Plaintif f has produced relevant pages of his Passport (an official,document) as Exhibit P/14. The learned counsel for Plaintif f has invited the Court attention to the endorsement regarding entry and exit on the Passport to show that on 14.11.2008, the Plaintif f made entry into Pakistan and on 06.12.2008 he again exited from Pakistan. The next entry stamp on the Passpor t is of 08.12.2009, that too at Islamaba d Airport, whereas the impugned. Sale Agreement bears the date of 15.12.2008, signed at Karachi. The Defendants Nos.1 and 2 through their Advocates, in cross-examination put questions that entries of the Passport are overlapping and is result of a collusion between Plaintif f and F.I.A. Department, but Defendants failed in their attempt to impeach the authenticity of the above endorsements on the Passport and could not falsify the evidence of Plaintif f. These entry and exist stamps are relevant fact in view of Article-49 of the Evidence Law. Passport being an official document and the entries made therein by a comp etent Government Agency , viz. Federal Investigation Agency (FIA), carry presumption of genuineness attached to an official document and the Official acts as envisaged in Articles 90, 92 and 129 (e) and (f) the Evidence Law is attracted to the above Passport entries. The negative assertions of Plaintif f in his evidence about the impugned Sale Agreement could not be disproved in his cross-examination. He has firmly denie d the suggestion that he has received any amount of Rupees Two Million as part payment in lieu of handing over possession of the suit plot to Defendant No.2 or any balance amount remains to be paid at the time of execution of Sale Deed. He reiterated his denial that due to increase in market value, he is denying the existence of Sale Agreement. Plaintif f in his deposition has specifically mentioned .that he acquired the knowl edge about the impugned Sale Agreement on 29.08.2016 when the Defendant No.2 filed an Application under Order I, Rule 10 of C.P.C. It has been specifically stated that since Defendants Nos.1 and 2 are the owners of adjacent Plots Nos.B-3 and B-4 at which they are operating their CNG Station, therefore, the suit plot was also illegally occupied by these private Defendants. In his cross-examination, the Plaintif f has stated that though he does not know the exact date when the private Defendants Nos.1 and 2 dispossessed the Plaintif f from the suit plot, but he (Plaintif f) approached and met the said Defendants in the months of March and April, 2014 and requested them to handover the vacant possession of Plaintif f's plot. As against that the Defendant No.2 in his Affidavit-in-Evidence/Examination-in-Chief, has specifically stated that he has purchased the suit plot for a total sale consideration of Rs.35,75,000/- (Rupees Thirty Five Lacs Seventy Five Thousand only) and reiterates his stance that the impugned Sale Agreement was executed between him and the Plaintif f and at the time of signing of the Sale Agreement, he paid a sum of Rs.20,00,000/- (Rupees Twenty Lacs
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only) in cash to Plaintif f but the remainin g amount could not be paid as Plaintif f disappeared. Defendant No.2 on behalf of private Defendants Nos.1 and 2 testified, that since they have paid a huge amount to Plaintif f, therefore, the vacant possession of the suit plot was also handed over to them (the said Defendants). The Defendant No.2 further deposed that he has invested a huge amount of Rs.34,85,200/- (Rupees Thirty Four Lacs Eighty Five Thousand Two Hundred) on the construction of the building, underground Water Tank, Car Wash portion and Tyre Shop together with Bathrooms and Labour rooms, but has acknowledged in his cross-examination that no details of expenses as purportedly incurred for raising construction at the suit plot has been produced in the evidence. In his cross-examination, he has admitted that suit plot is still in the name of Plaintif f in the record of KDA and status of the plot is residential . He has denied that the suit plot is used as a CNG Station. He has acknowledged that the original documents of the suit plot are in possession of Plaintif f while further admitting that marginal witnesses of impugned Sale Agreement, Receipt and Possession Letter , are employees of Defendant No.2. The said witness/Defendant No.2 has not denied the suggestion in his cross-examination that the Plaintif f possessed a Computerized National Identity Card (CNIC). This question of Computerized National Identify Card was specifically put to weaken the authenticity of the impugned Sale Agreement because in the said Sale Agreement, the old number of National Identity Card (NIC) of Plaintif f is mentioned. The said defence witness acknowledged that the impugned Sale Agreement was signed at the premises of Defendant No.2, that is, at the CNG Station (SIMRA CNG Station). With regard to payment mode, the said Defendant No.2 deposed that he paid Rupees Two Million in cash, while further accepting the suggestion in cross-examination, that he has not filed any application for mutation / transfer of the suit plot in KDA or any Government Department, while voluntarily stating , that it is to be done after payment of balance amount. To a suggestion the said Defendant No.2 has admitted that no letter or notice sent to Plaintif f for receiving the balance amount and completing the sale transaction nor the latter (Defendant No.2) has instituted any legal proceeding against the Plaintif f. He has further admitted that when the parties signed the Agreement, it was not before the Notary Public. In response to a question, he stated in his cross-examination, that first time he met with Plaintif f in Novembe r, 2008 and second time in the first week of December , 2008. He further acknowledged the fact that no sale notice was given in any Newspaper about transaction in question. Since the authenticity of the impugned Sale Agreement is seriously disputed, thus, onus is on Defendant No.2 to prove the impugned Sale Agreement, inter alia, by at least examining the two C attesting / marginal witnesses, but he did not examine both marginal witnesses, but only one, the above named Malik Muhammad Rabnawaz (DW-2), who admittedly is the Manager of Defendant No.2, and thus is an interested witness. The said Muhammad Rabnawaz has basically corroborated the version of Defendants about execution of impugned Sale Agreement. In his Evidence, the said DW-2 has testified that the impugned Sale Agreement was executed before him, however , in his cross-examination, he did not dispute the suggestion that Plaintif f possesses a new CNIC. In his cross- examination, the said DW-2 (one of the marginal witnesses) has not disputed that the Plaintif f was residing abroad. He further admits that he never went at the given address of the Plaintif f, mentioned in the impugned Sale Agreement. 14. The learned counsel for the Plaintif f has relied upon the reported decisions of Anwar and Yousuf (ibid) , in support of her arguments, gist of which is that failure to examine two witnesses is fatal to the claim of a party , who is claiming his / her entitlement under a Sale Agreement, besides, it is also necessary to prove signature of the opponent. In order to exhaustively address this Issue the two reported decisions of the Hon'ble Supreme Court handed down in Farzand and Hafiz cases (supra); [PLD 2015 Supreme Court 187 and PLD 2011 Supreme Court 241], provide a guidance and are relevant. In both these Judgments, the Hon'ble Apex Court has held that questioned/disputed sale agreement, if only one attesting witness is examined instead of both, then it is fatal to the case of a party , who has given the evidence in support of the execution of Sale Agreement. 15. Since burden is on said Defendant No.2 to prove the execution of the impugned Sale Agreement, as it is a disputed document, and his (Defendant No.2) failure to examine the second attesting witness, which though was his employee, as admitted by him in his cross examination, is fatal to the case of said Defendant No.2, because no plausible reason has been given for not examining the second marginal witness. Hence, said contesting Defendant No.2 has failed to prove the execution of Sale Agreement (impugned ). The reported Decision of Yousaf Case
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(ibid) has been correctly relied upon by Plaintif f's Advocate. In addition to the above, the impugned Sale Agreement bears the old NIC number of ' Plaintif f, although it is not denied, by the Defendant No.2 in the evidence, that at the relevant time Plaintif f was already in possession of his new CNIC, because, the Plaintif f in his evidence has produced his CNIC bearing the date of issue as 22.08.2003, as Exhibit P/13; this has further impeached the authenticity of the impugned Sale Agreement. Moreso, instead of making part payment through some negotiable instrument or banking channel, which is a usual current market practice, part payment is made by cash, as deposed by the said Defendant No.2, which is denied by Plaintif f in his testimony . The other factor going against the stance / pleadings of Defendant No.2 about execution of impugned Sale Agreement, is that till date he has neither initiated any proceeding for enforcement of the impugned Sale Agreem ent, nor, admittedly serve the Plaintif f with any Legal Notice. In addition to the above discussion, it is also a matter of common knowledge that the price of suit plot, even in the year 2008, considering that it is a 400 Square Yards residential plot in a develope d scheme, is much higher than the purported sale consideration of Rs.35,75,000/-. Consequently , the version of contesting private Defendants Nos.1 and 2 cannot be believed. The said Defendants No.1 and 2 have failed to prove the payment of sale consideration and cash amount of Rs.20,00,000/- (Rupees Twenty Lacs only) as part payment to plaintif f by Defendant No.2. Moreso, the passport entries of Plaintif f carry much weight, as already discussed in the afore-referred paragraphs. From the passport endorsement/entries, Plaintif f has proved that he was not in Pakistan on the date mentioned in the impugned Sale Agreement, that is, 15.12.2008 and thus the signatures of Plaintif f on the said impugned sale agreement have been forged, as well as on the receipt and Possession Letter of same date; Exhibits D/3 and D/4, respectively . Testimony of Plaintif f has remained consistent with his pleadings, unlike that of Defendant No.2. The impugned Sale Agreement dated 15.12.2008-Exhibit D/2, is a bogus and fabricate d document and the Defendant No.2 has not purchased the suit property from Plaintif f and thus there is no question of taking over physical possession of suit property as part performance of the contract. Adverting to the arguments of learned counsel for private Defendants, that the claim is time barred as hit by Article- 91 of Limitation Law relating to cancellation of a document. Per learned counsel for the Defendants Nos.1 and 2, the impugned Sale Agreement of 15.12.2008 cannot be cancelled in the presen t proceeding, because relief of cancellation has been included subsequently , on 17.11.2016 when the Plaintif f filed the amended plaint. On the other hand, learned Advocate for Plaintif f has controverted the arguments, as already mentioned in the forgoing paragraphs. Since it has been proven that the impu gned Sale Agreement has not been signed / executed by the Plaintif f, therefore, obviously he has no knowledge of its existence. Per undisputed record of the present proceeding, the impugned Sale Agreement first time surfaced when it was filed as Annexure with the Written Statement of Defendant No.1, which was filed on 19.09.2015, in reply to the original plaint. The said Written Statement of Defendant No.1 is available at page-191 of the main Court File and the impugned Sale Agreement is at page-203, therefore, in fact on 19.09.2015, the Plaintif f acquired the knowledge about existence of the impugned Sale Agreement and its cancellation was sought in the amended plaint filed on 17.11.2016. Period prescribed in Article- 91 of the Limitation Law, for bringing an action at law for the cancellation of an instrument is three years; whereas, consequently , cancellation in the present case has been sought after fourteen months, therefore, this relief is not time barred. It would be illogical to believ e the version of said Defendant No.2, that even after passage of more than a decade {15-12-2008, when the impugned Sale Agreement alleged to have been signed), Parties here to have done…
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