Judgment  Sheet

 

IN THE HIGH COURT OF SINDH AT KARACHI

 

Suit No. 1469 of 2010

 

       Present :

       Mr. Justice Nadeem Akhtar

                                                                       

 

Date of hearing      :   31.10.2012.                               

 

Plaintiff                     :    Mst. Afshan, through Mr. Ghulam Mujtaba 

                                         Phull Advocate.

 

Defendants              :   Syed Kamran Ali Shah and others,  ex-parte.

 

 

J U D G M E N T

 

NADEEM  AKHTAR, J.-            This Suit has been filed by the plaintiff for possession, mesne profits and injunction against the defendants, in respect of the ground floor of the building constructed on Plot No.183/15, Block No.3, Sharfabad, Karachi, admeasuring 275 sq. yds., hereinafter referred to as  “the Suit property”.  There is a chain of events that took place in the past in respect of the suit property resulting in multifarious litigation, a summary whereof has been given below as the same is relevant and necessary for the just and proper conclusion of this Suit.

 

2.        One Mr. Waris Hassan Shah was the real father of the plaintiff, and her real mother was Mst. Hafeeza Bai. The mother of the plaintiff passed away on 12.12.1987, and her father had pre-deceased her mother. The late parents of the plaintiff purchased Plot No.183/15, Block No.3, Sharfabad, Karachi, admeasuring 275 sq. yds., in the name of the plaintiff’s  mother, late Mst. Hafiza Bai, and constructed a building thereon during their lifetime. The building consisted of a ground floor (the suit property),  a first floor, and one room on the roof top.  At the time of her death, the mother of the plaintiff was living with the plaintiff in one of the portions of the building, and the remaining tenements were occupied by three different tenants.  The ground floor was occupied as a tenant by one Shah Ali Mardan, the father / predecessor-in-interest of the defendants herein, but he never paid any rent to the plaintiff’s late mother / landlady.  The plaintiff was only ten (10) years old in December 1987 when she became an orphan upon the death of her mother.  Since there was no one to take care of the plaintiff, all three tenants, including the defendants’  father, through a written application dated 16.02.1988 applied to the Chairman, Kaashan-e-Atfaal,  to take over her custody.  Accordingly, the plaintiff, being an orphan and destitute of tender age, was shifted and confined to the care and protection of Kaashan-e-Atfaal.

 

3.        After many years, all of a sudden several proceedings were initiated by different persons claiming their alleged shares in the building / property left by plaintiff’s late mother, Mst. Hafeeza Bai.  One Abdul Razzaq claiming to be the real brother of late Mst. Hafeeza Bai, filed before this Court a pauper Suit bearing J.M. No.03/1990 against his brother Abdul Aziz alleging that Abdul Aziz had not inherited any share in the property left by late Mst. Hafeeza Bai, as she had gifted the property to him (Abdul Razzaq) during her lifetime. The said J.M. No.03/1990 was dismissed on 14.01.1992.  Thereafter, the said Abdul Aziz, also claiming to be the real brother and the legal heir of late Mst. Hafeeza Bai, filed S.M.A. No.108/1992 before this Court, claiming his share in the building / property left by Mst. Hafeeza Bai.  The said S.M.A. No.108/1992 was dismissed on 18.08.1992.  None of the above orders of dismissal were challenged, and as such the same attained finality.

 

4.        After failing in achieving his purpose, the said Abdul Aziz filed Suit No.79/1996 before this Court for declaration and injunction against the plaintiff herein and the ex-wife of his brother Abdul Razzaq.  The plaintiff herein was cited as defendant No.1 and was sued as she had claimed that her mother, Mst. Hafeeza Bai, had gifted the entire property to her during her life time in the presence of witnesses, who incidentally were all the three tenants including Shah Ali Mardan, the father of the present defendants.  Mst. Rehmat Bai, the ex-wife of his brother Abdul Razzaq, was joined by Abdul Aziz as defendant No.2, as Abdul Razzaq had died in the meantime. His         ex-wife had claimed her share in the property through Abdul Razzaq on the basis of an alleged gift by Mst. Hafeeza Bai in favour of Abdul Razzaq.  In his Suit No.79/1996, Abdul Aziz had challenged that the property was not gifted by Mst. Hafeeza Bai to her daughter / the present plaintiff, and/or to Abdul Razzaq, and also that being the divorcee of Abdul Razzaq, Mst. Rehmat Bai had no share or interest in the property. Abdul Aziz had prayed in his said Suit for declarations that he was the  owner of 50% of the property with the present plaintiff, and that the alleged gift in favour of Abdul Razzaq was void.  A decree for partition of the property was also sought by Abdul Aziz. 

 

5.        During the aforementioned period, while the plaintiff was confined at Kaashan-e-Atfaal,  Abdul Aziz and Abdul Razzaq, and after his death his ex-wife, were busy litigating in order to lay their hands upon the property left by Mst. Hafeeza Bai.  In order to safeguard the interest of the plaintiff, the management of Kaashan-e-Atfaal conducted an inquiry, which revealed that all the original title documents of the property were in the custody and possession of Shah Ali Mardan, the father of the present defendants.  When Shah Ali Mardan refused to hand over the documents to the management of Kaashan-e-Atfaal, they reported the matter to the Deputy Commissioner / District Magistrate, Karachi East, who issued a notice dated 19.08.1992 directing Shah Ali Mardan to surrender the documents, which he did not comply with.  In view of the above, an Order was passed by this Court on 13.10.1996 in Suit No.79/1996 filed by Abdul Aziz, directing Shah Ali Mardan to deposit all the original title documents with the Official Assignee.  The said Order of this Court was also not complied with by Shah Ali Mardan, and instead he filed an application on 24.12.1996 under Order I Rule 10 CPC for becoming a party in Suit No. 79/1996 filed by Abdul Aziz.

 

6.        In his application under Order I Rule 10 CPC, Shah Ali Mardan alleged that the suit property was gifted to him by the plaintiff’s  mother, late Mst. Hafeeza Bai. On the basis of the alleged gift, he claimed ownership of the suit property, that is, the ground floor which was in his possession. The stance taken in his affidavit by Shah Ali Mardan was very important and relevant.  He alleged that Mst. Hafeeza Bai gave him the portion which was in his occupation, but in the same breath he admitted that Mst. Hafeeza Bai had gifted her entire property to her daughter / the plaintiff herein, and that the decision of Mst. Hafeeza Bai to allow him to occupy the suit property was valid only during his lifetime.  Shah Ali Mardan also admitted that all the original title documents of the property were handed over to him by Mst. Hafeeza Bai with the instructions to look after and manage the property on behalf of the plaintiff, who was a minor at that time. In view of the assertions made by Shah Ali Mardan, and as he was admittedly in possession of the suit property and the original title documents thereof, his application was allowed and he was impleaded as defendant No.3 in Suit No.79/1996 filed by Abdul Aziz.

 

7.        Because of the increase in the pecuniary jurisdiction of this Court, Suit No.79/1996 filed by Abdul Aziz was transferred from this Court to the Court of VIIth Senior Civil Judge, Karachi East, and was renumbered as Suit No.961/2002.  Meanwhile, both Abdul Aziz (the plaintiff) and Shah Ali Mardan (defendant No.3) died, and their respective legal heirs joined the Suit in their places to pursue the same.  Before the trial court, the widow of Abdul Aziz examined herself on behalf of all the plaintiffs / legal heirs of Abdul Aziz. The plaintiff herein examined herself as defendant No.1.  One of the sons of Shah Ali Mardan examined himself on behalf of all the legal heirs of Shah Ali Mardan / defendant No.3.  By a detailed and well-reasoned judgment delivered on 28.07.2010, the learned trial court dismissed Suit No. 961/2202 (old Suit No.79/1996) filed by Abdul Aziz with compensatory costs of Rs.25,000.00.  A decree was prepared accordingly.

 

8.        Through the aforementioned judgment and decree, it was declared by the learned trial court that the claim of Abdul Aziz for his share in the property was false.  It was further declared by the learned trial court that the claim of the gift of the suit property (ground floor) in his favour by Shah Ali Mardan was also false.  It was held  inter alia  by the learned trial court that the plaintiff herein, being the legal heir of her deceased mother and the donee of the property, is the sole and exclusive owner of the entire property and is entitled to the possession and all the rents thereof ;  that Shah Ali Mardan, and after his death his legal heirs (the defendants in the instant Suit), were in illegal possession of the suit property ; that they were not only trespassers, but have also tried to usurp the suit property on the basis of a false and fabricated claim ; that the legal heirs of Shah Ali Mardan (the defendants in the instant Suit) were liable to handover the possession and original title documents of the suit property to the plaintiff herein, and also pay the rent and utility charges in respect thereof to the plaintiff herein for the entire period of their illegal possession. The decree passed by the learned trial court in the above terms is still in the field, as it has not been suspended or set aside.

 

9.        The instant Suit for possession, mesne profits and injunction has been filed by the plaintiff in the above background against the defendants, who are the legal heirs of Shah Ali Mardan, praying  inter alia  that they may be directed to handover the peaceful possession of the suit property to her ; to handover the original title documents of the suit property to her, or to deposit the same with the Nazir as per the direction given by this Court vide Order dated 13.10.1996 passed in Suit No.79/1996 ; to pay mesne profits at the rate of Rs.10,000.00 per month and utility charges and taxes at the rate of Rs.5,000.00 per month to her, with effect from 26.06.2005 when Shah Ali Mardan died ; and to restrain them from interfering in the plaintiff’s rights to the enjoyment, use or transfer of the suit property. 

 

10.      As the summons issued to the defendants returned served, the Additional Registrar (O.S.) held the service good on them on 29.10.2010, and directed them to file their written statement within four weeks.  It was noted by the Additional Registrar (O.S.) that an application under Section 148 CPC was filed before him on 29.10.2010 by defendant No.1 on behalf of all the defendants seeking enlargement in time for filing the written statement. The said application is on record, and the fact of its filing was recorded in the Order passed by this Court on 28.09.2011, when two weeks’  further time was granted to the defendants to file the written statement.  The defendant No.4 filed an application praying that her name may be deleted from the array of the defendants on the ground that she was settled in USA and was not in possession of the suit property.  By consent, her application was allowed and her name was ordered to be deleted.  Thereafter, as defendants 1 to 3 and 5 to 7 did not file their written statement, they were declared ex-parte  vide Order dated 03.09.2012. 

 

11.      In support of her case, the plaintiff filed her affidavit in ex-parte  proof and examined herself.  She produced as Exhibit PW-1/3 the original certified copy of the judgment and decree passed on 28.07.2010 by the VIIth Senior Civil Judge, Karachi East,  in Suit No. 961/2202 (old Suit No.79/1996). She also produced copies of the application filed by Shah Ali Mardan under Order I Rule 10 CPC, and the letter dated 13.08.2010 addressed to the Official Assignee by her counsel. The plaintiff was not cross examined as the defendants remained absent. 

 

12.      In her evidence, the plaintiff strongly relied upon the judgment and decree passed on 28.07.2010 in Suit No. 961/2202 (Exh.P-1/3),  and reiterated the stand taken by her before the learned trial court.  She further reiterated that the entire property was gifted to her by her late mother ; that the suit property was never gifted by her late mother to Shah Ali Mardan ; that the original title documents of the property were in the custody of Shah Ali Mardan, and after his death, the defendants have retained the same illegally ; that Shah Ali Mardan never paid any rent to her late mother, and after his death the defendants also never paid her the rent, the utility charges and taxes in respect of the suit property ; that she herself had/has been paying the utility bills and taxes in respect of the suit property ; that after the death of Shah Ali Mardan, the possession of the defendants is illegal ; that the defendants are liable to handover the possession and the original title documents of the suit property to her, and to pay the mesne profits claimed by her.

 

13.      It is an admitted position that the property in question was owned by Mst. Hafeeza Bai, the late mother of the plaintiff.  It is also an admitted position that the plaintiff was a minor and was sent to Kaashan-e-Atfaal  when her mother had passed away.  The history of this case shows that after the death of Mst. Hafeeza Bai, three (03) different persons claimed that the property was gifted by Mst. Hafeeza Bai to them, to the exclusion of any of the other alleged donees or any other person.  (i) The first person was Abdul Razzaq, whose pauper Suit bearing J.M. No.03/1990 was dismissed by this Court, and the order of dismissal attained finality.  (ii) The second person was Shah Ali Mardan, the father of the present defendants, who and his legal heirs (the present defendants) have been declared in Suit No. 961/2002 by the learned trial court as trespassers and illegal occupants of the suit property, and have been directed to handover the possession and original title documents of the property to the present plaintiff.  The claim of Shah Ali Mardan, and then by the defendants, regarding the alleged gift of the suit property by Mst. Hafeeza Bai in favour of Shah Ali Mardan, has also been declared as false in Suit No. 961/2002.  (iii)  The third person was/is the plaintiff herein, the real daughter of Mst. Hafeeza Bai, who has been declared in Suit No. 961/2002 as the lawful and exclusive owner of the entire property.  In addition to the aforementioned three persons claiming gift in their favour, there was a fourth person, Abdul Aziz, who claimed 50% share in the property.  His S.M.A. No.108/1992 was dismissed by this Court, and the order of dismissal attained finality.  He then filed Suit No. 961/2002 (old Suit No.79/1996), which was also dismissed with costs by the learned trial court on 28.07.2010.

 

14.      Therefore, it has now been established that the plaintiff is the sole, exclusive and lawful owner of the entire property, including the suit property (ground floor), which was in the possession of Shah Ali Mardan and now the defendants are in possession thereof. The defendants have no right to claim ownership, or even the possession, of the suit property, as Shah Ali Mardan (their father / predecessor-in-interest) had admitted in Suit No. 961/2002 (old Suit No.79/1996) that Mst. Hafeeza Bai had gifted her entire property to her daughter / the plaintiff herein ; that the decision of Mst. Hafeeza Bai to allow him to occupy the suit property was valid only during his lifetime ; and that all the original title documents of the property were handed over to him by Mst. Hafeeza Bai with the instructions to look after and manage the property on behalf of the plaintiff, who was a minor at that time.  The defendants also have no right to retain the original title documents of the suit property.

 

15.      In her evidence, the plaintiff has produced the application filed by Shah Ali Mardan under Order I Rule 10 CPC, wherein he had made all the aforementioned important admissions about the plaintiff’s  ownership.  The plaintiff has also produced as Exhibit PW-1/3 the original certified copy of the judgment and decree passed on 28.07.2010 in Suit No. 961/2002 (old Suit No.79/1996), whereby it was held  inter alia  on the basis of the said admissions that Shah Ali Mardan, and after his death the defendants herein, were in illegal possession of the suit property ; that they were not only trespassers, but they also tried to usurp the suit property on the basis of a false and fabricated claim ; and that the defendants herein were liable to handover the possession and original title documents of the suit property to the plaintiff herein, and also pay the rent and utility charges in respect thereof for the entire period of their illegal possession.  In addition to the above documents, the plaintiff has throughout maintained and reiterated that she is the lawful and exclusive owner of the property, and that the defendants are liable to handover the possession and the title documents of the suit property to her, and to pay the mesne profits claimed by her.  The defendants were all along aware of this Suit filed by the plaintiff, as they had filed an application on 29.10.2010 seeking enlargement in time for filing the written statement.  However, they chose to remain absent and not to cross examine the plaintiff.  Therefore, the claim of the plaintiff and the entire evidence produced by her have remained unchallenged and unrebutted.

 

16.      The plaintiff has successfully proven her case, and as such she is entitled to a decree as prayed for in this Suit.  The mesne profits claimed by her at the rate of Rs.10,000.00 per month are not only very reasonable, but in fact are much less than the rate of rent of premises equivalent to the suit property prevailing during the last three years.  Similarly, the amount of Rs.5,000.00 per month claimed on account of utility bills and taxes paid by her, also appears to be reasonable keeping in view the charges of utilities and rates of taxes.  However, the amounts claimed by the plaintiff towards mesne profits, utility bills and taxes can be granted to her for a maximum period of three years in view of the Law of Limitation.

 

17.      In the cases of money decrees, the biggest and the most difficult task for the decree holder is to trace out the whereabouts of the judgment debtor and to furnish the particulars of his assets for the purpose  of execution of the decree.  Most of the money decrees become in-executable and the execution proceedings are frustrated for want of the above.  In order to avoid such a situation and to safeguard the interest of the plaintiff, the Court has inherent power to attach the property of the defendant so that the same remains available for realization of the decretal amount.  This view expressed by me is fortified by the law laid down by the Bench of four learned Judges of the Hon’ble Supreme Court in the reported case of  Mohiuddin Molla  V/S  (1) The Province of East Pakistan, (2) Abdus Sobhan, and (3) Ketab Ali , PLD 1962 Supreme Court 119.  The relevant portion of this authority is reproduced below :-

 

“ The Court has inherent jurisdiction to preserve the property of the judgment-debtor in order that it may be available for realization of the decretal amount.  This principle has been recognized in Order XXXVIII rule 5 of the Civil Procedure Code which empowers the Court to attach the property of the defendant in order that any decree that is passed in the suit may be satisfied by sale of the attached property.  …………”  

(‘A’ at page 123)

 

18.      The defendants and their father / predecessor-in-interest have remained in illegal possession of the suit property since long admittedly without paying any rent, utility charges and taxes to the plaintiff.  Therefore, in my humble opinion this is a fit case in which this Court can exercise its inherent powers by ordering attachment of the articles / properties of the defendants, as once they vacate the suit property or if they are evicted therefrom, their whereabouts and the particulars of their assets will not be traceable. 

 

19.      In view of the reasons discussed above, this Suit is decreed in favour of  the plaintiff, jointly and severally against all the defendants, in the following terms :

 

A.        The defendants are liable to immediately handover to the plaintiff the physical, vacant and peaceful possession and all the original title documents of the suit property ; namely, the ground floor of the building constructed on Plot No.183/15, Block No.3, Sharfabad, Karachi, admeasuring 275 sq. yds.   The Nazir of this Court is directed to take over the actual, physical and vacant possession and all the original title documents of the suit property from the defendants, and to hand over the same to the plaintiff within fifteen (15) days without any further Order.  In case of any type of resistance by the defendants, the Nazir shall be fully authorized to seek assistance of Police, and to take all such measures that may be required to comply with this decree in letter and spirit.

 

B.        The defendants are also liable to pay to the plaintiff mesne profits at the rate of Rs.10,000.00 per month, utility charges and taxes at the rate of Rs.5,000.00 per month with effect from 25.09.2007, with profit thereon at the rate of 14% per annum.

 

C.        All the assets and articles lying in the suit property, except the books, clothes, shoes and linen, but  including all valuable articles such as gold, silver, all types of jewellery and ornaments, cash, foreign exchange, prize bonds, saving certificates, share certificates, etc., and other articles,  appliances and fixtures such as mobile phones, wrist watches, clocks, televisions, DVD players, audio systems, microwaves, refrigerators, deep freezers, airconditioners, washing machines, all kitchen gadgets and appliances, and all the furniture, belonging to the defendants, are hereby attached.

 

D.        The Nazir shall ensure that none of the aforementioned attached articles and valuables are taken away or removed by the defendants when the possession of the suit property is taken over from them. To ensure compliance of this decree, the Nazir shall visit the suit property, without notice to the defendants, with sufficient police aid / party of the concerned Police Station comprising of lady police officers as well.  The Nazir shall first prepare an inventory of all the attached valuables, assets, articles, appliances, furniture, etc., lying in the suit property.  After preparing the inventory, all the valuables shall be kept by the Nazir in his safe custody, and the remaining assets, articles, appliances, furniture, etc., shall be sealed by him in a separate room within the suit property. 

 

E.        The entire exercise of preparing the inventory ; taking over the valuables ; sealing the remaining assets, articles, appliances, furniture, etc. in a separate room ; and taking over the possession and all the original title documents of the suit property from the defendants, shall be completed by the Nazir on the same day.  The fee of the Nazir for the entire exercise is fixed at Rs.25,000.00 (Rupees twenty five thousand only), which shall be initially paid by the plaintiff, but will be added in the costs of the Suit.  The Nazir shall submit the compliance report to this Court through Member Inspection Team (M.I.T.) within three weeks.

 

F.        The defendants are permanently restrained from claiming or asserting any right, title or interest in the suit property, or from interfering in the ownership rights and peaceful possession of the plaintiff in any manner whatsoever.

 

G.        The costs of the Suit are also awarded to the plaintiff.

 

 

 

      J U D G E

 

*Suit No. 1469 of 2010 - Possession-Mesne Profits/Judgments Single/Court Work*