IN   THE   HIGH   COURT   OF   SINDH   AT  KARACHI

Suit No. 1218 of 2004

 

Plaintiff:-                        1)       Ayesha Muzahir

                                                W/o S.A. Muzahir

                                                through her attorneys

                                                (i) Syed Nasrullah Shah

                                                S/o Syed Azmatullah Shah and

                                                (ii) Akhtar Elahi    S/o Karam Elahi

 

2)                 Muhammad Faisal Ahmed

          S/o Muhammad Umer

                                                through Mr.Muhammad Shahzad

                                                Ashraf, Advocate.

 

Defendants:-                  Manzar Ahmed Mekri S/o Muhammad Ahmedullah Mekri and others,

                                      None present for the defendant.

                                     

Date of hearing       22.04.2010

Date of Judgment   04.05.2010

 

J U D G M E N T

 

SYED HASAN AZHAR RIZVI, J          The brief facts of the case are that the plaintiffs have filed the present suit for cancellation of documents, injunction and damages. The plaintiff No.1 claims to be the allottee/transferee by way of gift of land admeasuring 80 acres in Survey No.376, Naclass No.82, Deh Phihai, Taluka and District Karachi East having being acquired by her through oral gift duly confirmed by Registration No.2808 to 2812 dated 19.6.1993 from different owners. The defendant No.1 is a private person, the defendant No.2 and 3 are public servants working under the control and supervision of defendant No.4. As per record of defendant No.4 the subject land was duly transferred as per Orders No.PS MBR/(LU)/3594/92 dated 11.10.1992 followed by execution of lease agreements in favour of each granted in share of 16 acres each. The land had been allotted for 99 years and the same could be used for industrial/residential purpose. The plaintiff No.1 after receipt of physical possession and the property having been mutated in the record of rights in Deh Form No.II, applied to the competent authority for layout plan for the total chunk of land in the name of Indus Builders and Developers which was allowed vide letter issued by the then D.C. In the meantime the defendant No.1 filed C.P. No.D-554/2004 against the plaintiff No.1 and certain Police Officials claiming about 30 acres of land out of the chunk of land allotted to the plaintiff No.1 for which decree has been obtained by plaintiff No.2 for 33.15 acres since 2003, on the basis of Sale Deed stated to have been executed between defendant No.1 and the Secretary, Live Stocks Sindh, Karachi  and thus through active connivance of defendant No.2 the work of boundary wall was thwarted. The Sale Deed bearing Sr. No.3518 dated 6.4.1991 (M.F. Roll No.B-168, IInd) dated 25.7.1991 before the Sub-Registrar 'T' Division-II, Karachi on verification from Micro Filming Officer, had been found to be fake/forged. The aforesaid Constitutional Petition was disposed of by this Court vide order dated 22.9.2004. The defendant No.1 according to the plaintiff propagated on the basis of fake/forged Sale Deed led claim over 30 acres of land out of the land in question and as such unless the said documents so appeared are cancelled and delivered up were likely to be misused against the interest of the plaintiffs and the plaintiffs filed the present suit in this Court against the defendants with the following prayer:-

i)                    "It be declared that the purported sale deed bearing Serial No.5318 dated 6.4.1991 (M.F. Roll No.B-168, IInd) dated 25.7.1991 before the Sub-Registrar 'T' Division-II, Karachi is a forged and fake document and direct the defendant No.1 to deliver up the same and after adjudging it cancelled the same.

 

ii)                  Defendant No.5 may be directed to issue challan for differential amount to be paid to them for regularization of the land measuring 46.25 acres in favour of the plaintiff No.1 and for 33.15 acres in favour of plaintiff No.2.

 

iii)                Permanent injunction may be granted against the defendants restraining them, their servants, subordinate and all other persons acting for and on their behalf from interfering in the peaceful possession of the plaintiffs in the property i.e. land admeasuring 80 acres in Survey No.376, Naclass No.82, Deh Phihai, Taluka and district Karachi East and also from disturbing in the lawful raising of boundary around the suit property and/or otherwise acting in a manner which may be detrimental to the interest of the plaintiff.

 

iv)                Grant damages to the tune of Rs.40 lacs to be paid by the defendant No.1 to 3 jointly and severally to the plaintiff No.1 and 2 for causing monetary loss and mental agony/torture and committing acts of trespass etc.

 

v)                  Any other relief deem fit by this Honourable Court in the circumstances of the case.

 

vi)                Cost of the suit."

 

2.         Summons issued by this Court were duly served upon the defendants Nos.1, 2 and 3, they filed their respective written statements in the present suit.

3.         In pursuance of the order dated 7.3.2005 of this Hon'ble Court the learned Advocate General Sindh was directed to ensure an inquiry which was accordingly conducted by the Revenue Authorities and report was submitted on 19.12.2005 specifying the status of the plaintiff as owner of the subject land which was specifically mentioned in the report, that the land had not been regularized, the land in question does not stand in the name of defendant No.1, he claimed ownership in the land on the basis of encroachment and forged documents. The learned Additional Advocate General appearing for defendants Nos.2, 4 and 5 before this Court on 27.4.2006 submitted that the suit land stands in the name of the plaintiff as per the record of Mukhtiarkar (Revenue) Korangi Town, CDGK, which subject to regularization on payment of the differential charges amounting to Rs.5,87,26,400/- (Rupees five crores eighty seven lacs twenty six thousand four hundred only), which had been paid by the plaintiffs and the land stood regularized in her name. In pursuance of Section-5 of the Ordinance, the Government of Sindh had regularized/restored the lease in favour of the plaintiff vide letter dated 18.1.2006 and learned Additional Advocate General Sindh requested to disposed of the suit against the defendants Nos.2, 4 and 5. By this order dated 27.4.2006 the defendant No.1 ordered to be proceeded exparte and the learned Advocate appearing for the plaintiff did not press for relief, claim in the form of damages against defendants Nos.2, 4 and 5 and the suit against the defendants Nos.2, 4 and 5 stood disposed of in terms of prayer clauses (i), (ii) and (iii) and the prayer clause (iv) declined. On 27.2.2007 this Hon'ble Court on the basis of pleadings parties framed the following two Issues:-

 

1.                  "Whether the plaintiff is the owner of the property in question?

2.                  What should the decree be?"

 

The matter was directed to be fixed for recording evidence on 21.3.2007 with further direction to the parties to file affidavit-in-evidence before that date. Muhammad Faisal Ahmed plaintiff No.2 filed affidavit-in-evidence. On 30.10.2008 this Hon'ble Court has observed in the Order Sheet that in the Sale Deed of the property in question which has been filed as annexure P-8 with the plaint, the description of the seller is given as "Live Stock Sindh at Karachi through its Secretary". No address of the seller is given. The Sale Deed had been signed on behalf of Live Stock Sindh by one Saghir Ahmed Jafferi S/o Haider Ahmed Jaffery. Vide Order dated 30.10.2008 The Secretary Live Stock Department, Government of Sindh was directed to appear on the next date alongwith all record pertaining to the suit land. On 20.11.2008 the learned A.A.G. does not wish to cross-examine the witness of the plaintiff No.2. No one was present for the defendant No.1. The counsel for the plaintiffs stated that he does not press the suit against the defendant No.3 and the suit against the defendant No.3 was dismissed as not pressed. Dr.Abdullah, Officer Incharge of Live Stock Department, Government of Sindh made a categorical statement before the Court that no one by the name of Saghir Ahmed Jaffery has remained as Secretary or employee of Live Stock Department and the Sale Deed annexure P-6 has not been executed or registered by the Live Stock Department. On 18.2.2009 the matter was fixed for recording of defendants' evidence except for defendant No.1 the suit against the defendants Nos.2 to 5 already stands dismissed. Neither counsel for the defendant No.1 nor the defendant No.1 himself was in attendance in Court on that date despite of call.

4.         The plaintiff No.2 filed the affidavit-in-evidence and has produced the following documents as exhibits:-

            "Photocopy of Irrevocable Sub-General Power of Attorney dated 20.10.2004 as Ex-5/12. Photocopy of letter dated 2.8.1993 of Deputy Commissioner, Karachi-East as Ex-5/3. Photocopy of letter dated 7.7.1996 of KBCA as Ex-5/4. Photocopy of letter dated 9.7.1996 of Deputy Director Co-Ordination, Directorate of Industries, Government of Sindh as Ex-5/5. Photocopy of letter dated 20.7.2002 of Secretary Land Utilization Department, Government of Sindh as Ex-5/6. Photocopy of letter dated 18.1.2006 of the Secretary Land Utilization Department, Government of Sindh as Ex-5/7. Photocopies of three registered conveyance deeds dated 20.2.2006 as Ex-5/8 to 5/10. Photocopy of registered conveyance deed dated 3.6.2006 as Ex-5/11. Photocopy of the report of A.G. Sindh dated 19.12.2005 as Ex-5/12. Photocopy of registered sale deed dated 6.4.1999 as Ex-5/13. Photocopy of letter dated 24.8.2004 of Mukhtiarkar Revenue, Korangi Town as Ex-5/14. Photocopy of letter dated 21.9.2004 of Photo Registrar regarding verification of documents as Ex-5/15."

 

5.         The evidence of the plaintiff No.2 was recorded before this Court on 20.11.2008 the learned A.A.G. Sindh did not wish to cross-examine the witness none was present for the defendant No.1 on the said date. The plaintiff No.2 stated in his affidavit-in-evidence that the plaintiff No.1 is allottee/ transferee by way of gift of land admeasuring 80 acres in Survey No.376, Naclass No.82, Deh Phihai, Taluka and District, Karachi-East having been acquired by her through Oral Gift duly confirmed by the Registration No.2808 to 2812 dated 19.6.1993. The plaintiff No.1 after receipt of physical possession of the of the subject land having been mutated in the record of rights in Deh Form No.II, applied to the competent authority for lay out plan for total chunk of land in the name of Indus Builders and Developers which was allowed vide letter dated 2.8.1993 by the Deputy Commissioner, Karachi-East. The defunct KDA had approved the lay out plan for the said land and in further compliance, NOC was also obtained from Directorate of Industries, Government of Sindh, Karachi, for earmarking of land in question as industrial plots. As the scheme for building industrial zone did not succeed, the plaintiff No.1 scraped the same and out of the said land sold 33.15 acres of land to the plaintiff No.2 vide compromise decree dated 10.9.2003 passed in Suit No.948 of 2003. In 2001 Sindh Government Land (Cancellation, Allotment, Conversion and Exchanges) Ordinance, 2001 was promulgated and by virtue of Section 3 the entire Sindh Government lands allotted in exchange or converted to other purposes, stood cancelled with effect from 1.1.1985 and a Committee was constituted to look into the individual case for regularization of allotment, conversion and exchange etc after payment of differential amount, determined by the Committee. On 20.7.2002, the Secretary, Government of Sindh Land Utilization Department, Karachi, issued letter to the plaintiff No.1 directing her to pay differential amount worked out by the Committee. The plaintiff No.2 paid the differential amount of Rs.5,87,26,400/- as determined by the Committee and the Government of Sindh under Section-5 of the Ordinance, 2001 regularized/restored the lease vide letter No.02-48-02/SO-I/62 dated 18.1.2006.

6.         The side of the defendant No.1 was closed and the matter was fixed for hearing of arguments. On 26.1.2010 when the matter was fixed for hearing of arguments the learned counsel for the plaintiff has referred a report dated 19.12.2005 submitted by Mr.Anwar Mansoor Khan the then Advocate General Sindh in compliance of the order dated 7.3.2005 passed by this Hon'ble Court which is produced as Ex-5/12 in the evidence file. The learned Advocate General Sindh alongwith in that report has enclosed and submitted the statement of Mukhtiarkar (Revenue) Korangi Town, CDGK, Rasheed Ahmed Baloch and Inquiry Report submitted by Mr. Abbas Ali, the then learned Additional Advocate General Sindh, Karachi While recording statement on oath the Mukhtiarkar (Revenue) Korangi Town CDGK stated that "from the record of N.C. No.82 & 376 the land allotted to 5 parties for industrial/ residential purpose in Deh Phihai was gifted by all parties to Mst:Ayesha Mazahir, who is plaintiff. The land claimed by the plaintiff is the same land. It is still in the name of Mst: Aysha Mazahir-------------------. I categorically submit that no portion of this land was/is in the name of Manzar Ahmed Mekri. If he is in possession of any land or documents, the same is encroached and documents manipulated/forged." Vide Ex-5/15 produced by plaintiff No.2 the Micro Filming Officer and Photo Registrar Karachi verified that the attached photocopy of Sale Deed at No.3518 dated 6.4.1991, M.F. Roll No.B-168-II dated 25.7.1991, Sub-Registrar T. Division-II,  the seal and signatures of Microfilming Officer on the Sale Deed are fictitious and the documents in question have not been microfilmed by that unit.

7.         Vide Ex-5/7 the letter dated 18th January, 2006 by the Secretary to Government of Sindh to the Executive District Officer (Revenue) City District Government, Karachi it is confirmed that differential amount of Rs.5,87,26,400/- has been paid by the plaintiff No.1 through her Attorneys and in pursuance of Section-5 of the Ordinance, the Government of Sindh has been pleased to regularize/restore the subject land. The subject land of the present suit was declared free from ban imposed by the Government vide letter dated 22.12.2000.

8.         I have perused and examined the record of the present suit and has gone through the evidence of the plaintiff No.2. Vide letter dated 27.4.2006 the present suit has already been disposed of against the defendants Nos.2, 4 and 5. On 20.11.2008 learned counsel for the plaintiff stated before the Court that he did not press the suit against the defendant No.3. None has appeared for the defendant No.1 to challenge, controvert or deny the averments of evidence adduced by the plaintiff No.2. The defendant No.1 has failed to lead any evidence or to cross examine the prlaintiffs and none has appeared for the defendant No.1 in the present suit after 7.11.2007. The plaintiff has produced the title documents and other relevant documents pertaining to the suit property establishing their ownership and has proved beyond any shadow of doubt that the plaintiffs are owner of the subject property of the present suit. It has also been brought on record vide Ex-5/15 that the Sale Deed bearing at Sr. No.5318 dated 6.4.1991 M.F. Roll No.B-168-II dated 25.7.1991 before the Sub-Registrar "T" Division-II, Karachi which is sought to be cancelled in the present suit is forged and fake document. The plaintiffs have not pressed the prayer clause-iv in the memo of plaint for damage. The defendant No.5 has already regularized the subject property of the suit.

9.         In view of the facts, circumstances and legal position the prayer
clause-(i) is allowed as prayed for, the prayer clause-(ii) has become infructuous as the defendant No.5 has regularized the subject land in favour of the plaintiffs, the prayer clause-(iii), the subject land is in undisturbed possession of the plaintiffs and the defendants are restrained from interfering in the peaceful possession of the plaintiffs. The learned counsel for the plaintiffs has not pressed the prayer clause-(iv) of the plaint.

            The suit is decreed in favour of the plaintiffs against the defendant No.1 with costs in the above terms.

JUDGE