HCA
No.78 of 2013
Present: Ghulam Sarwar Korai, J.
Naimatullah Phulpoto, J.
Appellant: Muhammad Haroon, through
Abdul Waheed Kanjoo, Advocate
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Respondent: Abdul Qayyum Ansari, through Ms. Riffat Bano, Advocate
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Date of
hearing: 21.08.2013
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JUDGMENT
The
captioned appeal has been filed against the impugned order dated 02.05.2013,
passed by the learned Single Judge in Chambers in SMA No.Nill of 2011 in
respect of estate of immovable property of deceased Haji Muhammad Ibrahim son
of Haji Muhammad Yaqoob, whereby SMA No.162/2012 was disposed of in the
following terms:
“In view of above admitted fact of declaring the property
No.9-D/18, Orangi Town inheritable in SMA No.9/2005 and documents produced by
the learned Counsel for the petitioner, apparently, the objector Muhammad
Haroon has got the property No.9-D/18, Orangi Town leased in his favour from
City District Government in the year 2012, keeping the other legal heirs of
deceased Haji Muhammad Ibrahim in dark. To a query by this Court learned
counsel for the Objector has stated that subject property is an open plot and
Muhammad Haroon after execution of lease deed in his favour has sold the same
to third party but due to stay order operating in Civil Suit No.281/2012 the
sale deed has not been registered and it is lying under objection with the
Sub-Registrar of concerned area. However, since the property
No.9-D/18, Orangi Town, Karachi measuring 200 Sq. Yds. is subjudice in Civil Suit No.281/2012 therefore Letter of
Administration in respect of said property cannot be issued till the matter is
finally decided by the competent Civil Court. In the circumstances, in order to
protect the rights of other legal heirs of deceased Haji Muhammad Ibrahim the
Nazir is appointed to take over the possession of property No.9-D/18, Orangi
Town also and if possible rent out the same, however, distribution of rent and
mutation of said property in favour of all the legal heirs of course would be
subject to result of Civil Suit No.281/2012. Nazir’s fee is fixed at Rs.20,000/- to be paid by the each party, proportionately.”
Learned
counsel for the Appellant has contended that learned single Judge had no jurisdiction
to pass the impugned order as the Suit No.281/2012 is pending before the Civil
Court. He has further submitted that right over the property in dispute is yet
to be determined by the Civil Court. He has further submitted that the
appellant has already sold out the property and third party interest has been
created and appointment of Nazir by the learned single Judge was contrary to
the law.
Learned
counsel appearing on behalf of the respondent argued that the properties left
by deceased father Haji Muhammad Ibrahim are to be distributed among his legal
heirs as per their respective share and appellant had dishonestly sold one of
the properties of the deceased and he is responsible to account for the said property.
Lastly, it is submitted that the appeal is misconceived.
We
have carefully heard the learned counsel for the parties and perused the
relevant record.
The
record reflects that deceased Haji Muhammad Ibrahim at the time of his death
had left three properties mentioned in the impugned order and petitioner
applied for letter of administration, enabling him to get the said three
properties mutated in favour of all the legal heirs of the deceased as per
their respective share. By consent of both the parties the properties shown at
Serial No.1 and 2 of the schedule of properties have been ordered to be taken
by the Nazir of the Court, who shall collect the rent of the said properties
and distribute the same among the legal heirs as per their respective share so
far the property at Serial No.3 is concerned. Order of learned Single Judge
reflects that property No.9-D/18, Orangi
Town inheritable in SMA No.9/2005 and documents produced apparently revealed
that objector Muhammad Haroon has got the property No.9-D/18, Orangi Town
leased in his favour from City District Government in the year 2012, keeping
the other legal heirs of deceased Haji Muhammad Ibrahim in dark. Learned single
Judge has rightly observed that to protect the rights of other legal heirs of
the deceased Haji Muhammad Ibrahim, Nazir has been appointed to take over the
property No.9-D/18, Orangi Town, Karachi and if
possible rent out the same. Observation of the learned single Judge is very
much relevant and lawful that distribution of the rent and mutation of the
property in favour of all the legal heirs, of course, would be subject to final
result of Civil Suit No.281/2012. Moreover, observations of the learned single
Judge are tentative in nature, the same would not cause any prejudice to any of
the party nor the Civil Court would be influenced by such order. The impugned
order is based upon sound reasons and requires no interference.
For
the aforesaid facts and reasons there is no merit in this appeal, which is
accordingly dismissed.
JUDGE
JUDGE
Gulsher/PA