JUDGMENT SHEET
HIGH COURT OF SINDH CIRCUIT COURT HYDERABAD.
R.A.NO.11 OF 2009.
Muhammad Ayub. . . . . . .Applicant.
Versus.
Barkat Shaikh and others. . . . . .Respondents.
Applicant: Through Mr. Hassan Mehmood Baig, Advocate.
Respondent No.1: In person.
Respondents No.2 to 5. Unrepresented.
Respondents No.6 to 8: Through Mumtaz Alam Leghari, A.A.G.
Date of hearing: 25.10.2010.
Date of judgment: 05.11.2010.
J U D G M E N T.
IRFAN SAADAT KHAN,J.- This Civil Revision has been filed against the judgment and decree dated 24.12.2008, passed by the learned III-Additional District Judge, Hyderabad.
2. Briefly stated, the respondent No.1 had filed a suit for declaration, possession and injunction against the applicant claiming that he is the bonafide owner of shop bearing No.A-1695, situated near Market Tower, Hyderabad, which was transferred in his name by the Settlement Department through PTD No.19521 dated 13.8.1963. The respondent No.1 got admission for Higher Studies in University of Grenoble France and proceeded abroad on 24.9.1973. At that time, the respondent No.2 was his tenant of the said shop by virtue of an oral agreement as he was a friend of the late father of the respondent No.1. However, when the respondent No.1 returned back on 23.7.1977 he found, to his utter surprise, that respondent No.3 was enjoying the possession of the said shop. When the respondent No.1 made inquiry he came to know that the said respondent No.3 purchased the said shop from respondent No.2 on 25.10.1975. The respondent No.1 also came to know that the said purchase was made through an alleged forged gift deed prepared on a non-judicial stamp paper of Rs.5/- dated 08.6.1975, which was duly attested by the Notary Public. On the basis of the said gift deed the respondent No.2 got the said shop mutated in his name from City Surveyor showing him to be the owner of the said shop. The respondent No.2 on the basis of this alleged gift deed sold the said disputed shop to respondent No.3 through a sale deed. Being taken aback by this situation the respondent No.1 filed an application before the Martial Law Administrator but as at that time the respondent No.1 had not completed his higher studies he again went back for his studies on 17.9.1979. The respondent No.1 came back on 4.1.1980 and thereafter proceeded to India for seeing his relations and came back on 3.3.1980. On return he found the respondent No.4 to be in occupation of the said shop, who informed him that he had purchased the same from the respondent No.3, through a registered sale deed dated 3.7.1978. Finally during the pendency of a civil suit, filed by the respondent No.1 against the applicant and the other respondents, respondent No.4 sold the disputed shop to respondent No.5 Noor Muhammad and the said respondent No.5 thereafter sold out the said shop to the present applicant Muhammad Ayub through a registered sale deed dated 12.6.1994. The respondent No.1 had been pursuing the matter before different authorities, who finally advised him to seek the remedy through Civil Court and thereafter a civil suit was filed by the respondent No.1 claiming that the gift deed dated 08.6.1975 is a forged and fabricated document and all the subsequent gift deeds and mutations are also illegal being based on a document which was forged and fabricated hence all the subsequent gift deeds are illegal, contrary to law and of no legal effect.
3. The IIIrd Additional District Judge, Hyderabad after hearing the parties through an elaborate, exhaustive and erudite judgment decided the suit in favour of the respondent No.1 by holding that the present applicant fraudulently purchased the suit property from the respondent No.5 Noor Muhammad who was in perfect knowledge that the suit property does not belong to the said respondent. It is against this judgment that the applicant has filed the present revision application.
4. Mr. Hassan Mehmood Baig, learned counsel appeared on behalf of the applicant submitted that in view of the facts of the present case the applicant could not be penalized as he has purchased the suit property through a registered gift deed and even as per the record of the City Surveyor he is the owner of the suit property, hence no adverse inference could be drawn against him. The learned counsel further submitted that the doctrine of lis pendence is not applicable to the present case and in support thereof has relied upon 2003 C L C 250 and 2003 M L D 1970. As per the learned counsel the learned Judge has neither considered the provisions of Section 51 of the Transfer of Property Act nor has considered the real facts of the case in their true perspective and in a way had condemned the applicant unheard. In support of his submission he relied upon the decision reported as 2008 S C M R 352. The learned counsel further submitted that this is a fit case of remand and the matter be remanded back for rehearing as the impugned judgment suffers with some patent illegalities, which needs to be redressed. In support of his contention the learned counsel also relied upon A I R 1919 MADRAS 685. Learned counsel further submitted that the applicant had spent substantial amount on the property and if for argument’s sake it is accepted that the present applicant is not the owner of the suit property he may be amply compensated for the amount spent by him on the construction made by him on the disputed shop/land. In support of his contention he relied upon A I R 1929 Lahore 825. The learned counsel further submitted that in the examination-in-chief and in the deposition made by the respondent No.1 not a single word has been uttered against the applicant, which proves beyond any doubt that the respondent No.1, has no grievance against the present applicant and hence the present suit may be allowed. The learned counsel in the end submitted that the applicant was not aware of the pendency of the suit hence no adverse inference in this regard could be drawn against him and in support thereof relied upon 1985 S C M R 345, P L D 1992 S.C. 180, 1990 C L R (Karachi) 47 and 1997 SCMR 284.
5. Respondent No.1 Mr. Barkat Shaikh present in person submitted that both the lower Court have given decisions in his favour after detailed deliberation. He further submitted that the entries in the revenue record are in his favour which have neither been challenged nor cancelled. He further submitted that no building plan is in favour of the applicant and hence whatever construction has been made is without proper approved plan. So far as the question raised by the applicant regarding compensation the respondent No.1 submitted that there is no question of the same as the applicant has raised an illegal construction and hence is obliged to remove the same at his own expense from the premises owned by him.
6. The learned A.A.G. supported the contentions of the respondent No.1 and submitted that the gift deed is a fake and forged document as apparent from the bare perusal of the said gift deed. He submitted that the signature of the respondent No.1 has been made on the said gift deed in Urdu and there could hardly be a question the respondent No.1 signing the same in Urdu, as he is a highly educated person. He further submitted that the Notary Public, who had endorsed the said gift deed, has also admitted that the executant of the said gift deed did not appear before him and in support thereof relied upon P L D 2008 (Lahore) 51. He submitted that the concurrent findings of the two Courts below are impeccable and self explanatory and hence these findings may be affirmed and in support thereof relied upon the decision reported as P L D 1994 S.C. 291.
7. Mr. Anwar, City Surveyor present in Court alongwith the original record submitted that as per the record the applicant is the owner of the said shop.
8. There is no appearance on behalf of the respondents No.2 to 5 inspite of the fact that service has duly been made upon them through all modes, including publication, but they chose not to appear on the respective dates. Hence service made on the said respondents is held good and matter is to be decided against them exparte.
9. I have heard the counsel for the applicant, respondent No1 in person and the A.A.G. representing the respondents No.6 to 8 at some length and have also perused the record and the case law relied upon by the learned counsel and my findings are as under:-
10. It is an admitted position that the respondent No.2 by way of a fraudulent gift deed, which was not denied by the present applicant, got the said shop transferred in his name. The said shop was transferred in the name of respondent No.1 way back in 1963. When the respondent No.1 left Pakistan for higher studies admittedly respondent No.2 was the tenant of the said shop owned by respondent No.1, who took advantage of the situation by preparing a false gift deed and illegally getting the said shop transferred in his name. The respondent No.2 thereafter sold the same to the respondent No.3, who in turn sold the same to respondent No.4, who then to respondent No.5 and finally the said shop was sold to the present applicant. The respondent No.1 filed a Civil Suit No.58 of 1992, which was allowed by the learned trial Court vide order dated 16-04-2002. The applicant thereafter filed a Civil Appeal No.172 of 2002 against the said order passed by the trial Court and this appeal also was decided against the applicant vide order dated 24-12-2008, against which the present Civil Revision has been filed.
11. It is a trite proposition of law that if the basic structure is illegal, all the super structure built thereupon is also illegal. There is no denial of the fact that the applicant acquired the property during the pendency of the suit, hence, he could not claim that he was not in the knowledge of the fact that he had purchased a property which is in dispute, hence I do not agree with the averments made by the learned counsel for the applicant that doctrine of lis pendens is not applicable to the present case. I have noted from the decisions given by the two authorities below that the orders had been passed after considering every nook of the case and after verifying the evidences in an exhaustive manner. A perusal of the gift deed depicts that who ever had signed the same, as respondent No.1 had signed the same in Urdu. It is beyond comprehension that such a highly qualified person would sign this document alone in Urdu whereas he had been signing all the other documents in English. In examination-in-chief also the said respondent has categorically mentioned that he used to sign in English and not in Urdu. It is seen that the Notary Public who attested the said gift deed Mr. Saeeduddin Qazi, was also examined as a witness in the case, candidly conceded and deposed that he did not know the plaintiff personally and at the time of the attestation the executant of the document was not available. Though the matter was not referred to the hand-writing expert however, it is interesting to note that the learned counsel appearing on behalf of the applicant has not said a single word about the genuineness or otherwise of the said gift deed but has only pleaded that he being a bonafide purchaser no adverse inference could be drawn against him. In my view as per the fact that when the person alleged to have executed the said gift deed had denied making of the said gift and in view of the fact that the Notary Public had affirmed that the executant of the said gift deed had not signed the same in his presence the factum of the said gift had become dubious. In such situation when the respondent No.1 is stating on oath that he had not launched the said gift in favour of the respondent No. 2, this gift could hardly be accepted as a valid legal document especially in view of the admitted position that respondent No.1 left Pakistan for higher education on 24.9.1973 and came back on 23.7.1977. Whereas the said alleged gift deed was that of 8.6.1975 when respondent No.1 was admittedly not in Pakistan. Hence question of any valid gift in the present circumstances hardly arises. There are plethora of judgments given by the superior Courts that if the basic structure is illegal, all the super structure built thereupon crumbles to the ground. Hence in my view, the rule of lis pendens is squarely attributed to the present case. I have also considered case laws relied upon by the applicant and have found them to be quite distinguishable.
12. Perusal of the record further reveals that the applicant was in knowledge, while entering into the purchase transaction with the respondent No.5 that the property is in dispute and a suit is pending hence, the applicant took a calculated risk in purchasing the said property. It is a well settled proposition of law that it is always the buyer who has to be aware (caveat empter) and in such situation, the respondent No.1 was not legally obliged to have served a notice upon the applicant who purchased the property and is in full knowledge of the facts of the case, which is also proved from the fact that the P.T.D. is in favour of the respondent No.1.
13. Apropos the claim of the applicant with regard to the compensation, suffice to say that it is the applicant who illegally made construction upon the disputed property and if any compensation is demanded the applicant should have, if so advised, filed a suit against the respondent No.5 in this regard for the alleged playing fraud with him and for recovery of the amount spent by him on the said construction. No amount in this regard could be claimed from the respondent No.1, as in my view the applicant does not raise the construction in good faith and or with the bona fide and honest impression that the property acquired by him is free from disputes hence he in the given circumstances could not claim any compensation for such improvements. Therefore, relief sought under section 51 of the Transfer of Property Act is not available to the applicant. Moreover the learned counsel for the applicant has, in my view, failed to point out any legal infirmity in the findings recorded by the two Courts below. It is a well settled proposition of law that when the concurrent findings recorded by the Courts do not suffer from any legal infirmity, no interference in this regard is required. Reference in this regard may be made to P L D 1994 S.C. 291, wherein the Honorable Supreme Court of Pakistan observed as under:-
“It is well-settled law that a concurrent finding of fact by two Courts below cannot be disturbed by the High Court in second Civil Appeal much less in exercise of the revisional jurisdiction under section 115, C.P.C., unless the two Courts below while recording the finding of fact have either misread the evidence or have ignored any material piece of evidence on record or the finding of fact recorded by the two Courts below is perverse”.
14. In view of the above findings, this revision application being devoid of any merit is hereby dismissed alongwith the listed as well as pending applications, if any. However, there shall be no order as to costs.
JUDGE