IN THE HIGH COURT OF SINDH AT KARACHI
C.P.No.D-2274 of 2010
Muhammad Anwar.
Versus
Haq Nawaz & others
BEFORE:
Mr. Justice Mushir Alam, CJ
Mr. Justice Mohammad Shafi Siddiqui
|
Date of Hearing: |
27.11.2012 |
Petitioner: Through Mr. Shamshad Ali Qureshi Advocate
Respondent No.1: Through Mr. Munir-ur-Rahmn Advocate.
Respondent No.2 Through Mr. Qamar Zaman Advocate
Muhammad Shafi Siddiqui, J.- The dispute raised by the petitioner is with regard to the identity of the plot as it is claimed by the petitioner that pursuant to the execution of the decree in Execution Application No.13/2003 filed in respect of Plot No. 37/F, the Bailiff had executed the said writ of possession in respect of Plot No. H-31, Block-F Sadat Cooperative Housing Society, Karachi which is claimed by the petitioner and as such the petitioner was dispossessed from his plot No. H-31 wrongly.
The brief facts of the case leading to the filing of this petition are that one Haq Nawaz filed ABN Case No. 100/2002 before the Registrar’s nominee, Karachi. In terms of the award, Haq Nawaz was declined entitlement in respect of Plot No. 37/F, measuring 80 square yards situated in Sadat Cooperative Housing Society, Karachi. However, on preferring appeal the said relief was granted to him which is followed by the execution proceedings filed in the Court of IXth Senior Civil Judge, Karachi East. During the execution proceeding the petitioner filed an application under section 12(2) CPC stating therein that he is a lawful owner of Plot No. H-31, Block-F, Sadat Cooperative Housing Society, Karachi by virtue of registered Sale Deed dated 19.8.2003, registration No. 879 by the Sub Registrar T .Division-III, Karachi which was leased out in the name of his real mother Mst. Shakori Begum wife of Noor Muhammad by the Cooperative Housing Society. It was contended that on 10.11.2006 the Bailiff of the trial Court came for the execution of a decree in respect of Plot No.37-F, Sadat Cooperative Housing Society, Karachi and he was misguided by the respondent Haq Nawaz whereby the plot of the petitioner bearing No. H-31 was identified as Plot No. 37/F. He urged that the decree was wrongly claimed to be executed on petitioner’s plot and as such an application under section 12(2) CPC was filed by the petitioner. Consequently the said application was dismissed by IX-Senior Civil Judge, Karachi (East) vide order dated 09.2.2007 in terms whereof it is observed that:
“------The Intervener in the instant application has claimed the ownership of the suit property and stated that he is lawful owner of Plot No. H-31, Block-F, Sadat Cooperative Housing Society, Drig Colony, Karachi also declare that the D.H is lawful owner/allottee of plot/suit property. The documents produced by the intervener has not pertain the suit property.
It is pertinent to mention here that there is no provision to file the present application in the present execution application as the judgment was passed by the District Officer Cooperative Societies City, Karachi in A.B.N. No.100/2002 and this Court has only executing Court to execute the Award.
In view of above circumstances the application in hand considered no merits, hence dismissed.”
Thus it was clarified to the petitioner that the Decree Holder intend to execute the decree in respect of Plot No.37/F and not H-31. It appears that despite such order the writ of possession was executed on his plot i.e. Plot No.H-31 instead of 37-F. Subsequently the petitioner filed an application under section 151 CPC who claims to be son of the sub lessee Mst. Shakori Begumk, (owner of Pot No. H-31). The said application was moved by the petitioner for restoration of the plot in question and for conducting inquiry which was wrongly taken over in pursuance of the decree passed in respect of Plot No. F-37.
The said application in fact is nothing but seeking inquiry in terms of his bonafide claim and entitlement in respect of Plot No. H-31.
The said application was dismissed by order dated 20.8.2008 with the observation that the property in question has been voluntarily handed over and that earlier application under section 12(2) CPC was dismissed and this application has been filed to mislead the Court. The petitioner filed a revision application in pursuance of the order dated 20.8.2008 bearing Civil Revision Application No. 43/2008 praying therein that a proper enquiry be conducted to ascertain the dispute of the identity of two plots as the same plot is being claimed but with different plot numbers by both the petitioner and the respondent Haq Nawaz. The said revision application was dismissed vide order dated 27.5.2010 by Vth Additional District Judge (East), Karachi with the observation that the application under section 151 CPC for the restoration of the suit property was filed after 1 ½ years without any lawful authority which is not maintainable and that he failed to point any irregularity exercised by the trial Court in the impugned judgment and with these observations the revision application was dismissed.
Aggrieved with this order dated 20.08.2008 in the Revision Application No.43/2008, and the executing order dated 06.7.2006 passed by the IXth Senior Civil Judge, Karachi (East) in Execution Application No.13/2003, this petition has been preferred on the ground that in compliance and under the garb of a decree passed in ABN Case No.100/2002 on account of mistaken identity either deliberate or none deliberate, the petitioner has been dispossessed from his property.
In response to this petition, the respondent society have filed a statement along with copy and site plan of Plot No. H-31, Block-F and provisional allotment.
In similar way respondent No.1 has also filed objections to the petition along with documents of Plot No.37-F and allotment order, acknowledgement of possession dated 25.12.1985 and approved plan along with electricity bills and gas bills for the month of February 2012 to November 2012 respectively.
We have heard the learned Counsel and perused the record. It appears from the record that the respondent No.2 executed sub-lease in favour of one Mst Shakori Begum wife of Noor Muhammad in respect of Plot No. H-31 which is available at page 87 along with the site plan and apparently seems to be a three sides corner plot in terms of the site plan attached. Petitioner also filed a challan in respect of Karachi Electricity Supply Corporation (as it then was) in respect of Plot No.31-H which appears to be a security deposit for the installation of electricity meter and the petitioner also filed copies of the challan dated 28.8.1988 in respect of Plot No.H-31 and copies of the monthly electricity bills for the month of February 2006, Sui Southern Gas Company dated 06.9.2006, KW&SB bills and challan issued by SSGC. It appears that lessee Mst. Shakori Begum wife of Noor Muhammad sold the subject property to her son Muhammad Anwar son of Noor Muhammad vide Sale Deed dated 19.8.2003 duly registered before the Sub Registrar vide registration No.879, MF Roll No. 56273. The petitioner also filed verification of Plot No.H-31 issued by Sadat Cooperative Housing Society, Karachi confirming to Muhammad Anwar (petitioner) that on the basis of Lease Deed the subject plot was allotted and sub leased. We have also perused the writ of possession which is available at page 63 and it is apparently in respect of Plot No.37/F, Sadat Cooperative Housing Society, Drig Colony, Karachi with the permission to break open the lock. It appears that the writ of possession which was issued for Plot No.37/F was executed on Plot No. H-31.
Vide order dated 17.10.2012 this Court observed that the decree/Award in respect of Plot No. 37/F was passed and executed and the petitioner was dispossessed from Plot No. H-31. The application under section 12(2) CPC and subsequent application under section 151 CPC was dismissed on the reasoning that the execution application does not pertain to the subject property i.e. H-31 and the revision application also met the same fate. The attention of the Secretary of the Society namely Abbas Hussain was drawn to identify the two plots i.e. 37/F and H-31 in the plan of the Sadat Cooperative Housing Society, Karachi, but he was not able to identify the plot of the petitioner on the site plan which was produced by him along with the statement and he requested for some time to streamline the record and assist the Court. On subsequent date he was absent. However, later-on when the notices were issued to him through Court he appeared again but was still not able to identify any plot which is a corner plot and open from three sides as claimed by petitioner regarding which lease has been executed. The record of the society appears to be in complete disarray as far as identity of these two plots are concerned. It is also not clarified with certainty that in fact it was same plot with different plot numbers which is claimed by both the petitioner and the respondent No.1.
We have perused the record and there is no denial on the part of the society that no such lease in favour of the predecessor of the petitioner was executed. The original layout plan for the reasons not known has not been filed which could further elaborate and specify the two plots that are being claimed by the petitioner and the respondent No.1. Be that as it may, since it is a question which ought to have been resolved by way of conducting a detail inquiry we consider that the applications filed by the petitioner could not have been disposed of summarily. At one hand the executing Court observed it that the execution of Award/decree is not in respect of the property which is being claimed by the petitioner and on the other hand the writ of possession was executed in respect of the plot of the petitioner which is claimed by him in terms of the sub lease executed in favour of his mother and subsequent Sale Deed executed in his favour by Mst. Shakori Begum wife of Noor Muhammad. The plot claimed by petitioner in terms of lease as bounded under:-
1. On the North by Plot No. H-32
2. On the South by 20 ft wide land
3. On the East by 8 ft wide land
4. On the West by 20 ft wide land
Whereas the respondent’s plot apparently bounded as under:
1. On the North by Plot No. 36
2. On the South by Plot No. 38
3. On the East by Plot No. 32
4. On the West by 20’ wide Road
There is thus apparently not even remote resemblance in the two plots in terms of above. It is pertinent to point out that the documents which have been submitted by the respondent No.1 contains only allotment order and acknowledgement of possession along with utility bills whereas the petitioner has filed indenture of sublease in favour of her mother.
Both the petitioner and the respondent No.1 have filed certain bills issued by the KESC, SSGC, KW&SB etc. of the respective plots which apparently shows that these two plots are different and distinct from each other. However a significant thing that has been observed from the bills of electricity that has been placed on record by both the petitioner and the respondent No.1 that same Consumer No. AL905190 and Meter No. 057597 appears to have been installed/assigned at Plot No. H-31 and Plot No. F-37 but with different names of consumers. The earlier bill was issued in the name of Noor Muhammad (Father of petitioner) whereas the subsequent bill was issued in the name of Muhammad Shahid.
In the said application the petitioner has raised many questions including but not limited to the scope of Section 12(2) and Order XXI rule 97 and 99 CPC. Some of the questions which have been raised by the petitioner are as under:
1) Under what law and authority the decree holder/ respondent No.1 occupied the plot/house of petitioner being No.H-31 while the executing orders were issued in respect of Plot No.37-F?
2) Whether the judgment debtor respondent No.2, have performed their duty while identifying the plot of petitioner and respondent No.1?
3) Whether the decree holder/respondent No.1 malafidely executed the decree.
4) That the petitioner/applicant is legal and lawful owner of plot No. H-31, Block-F, Saadat Colony, Drig Road, Karachi and not liable to be dispossessed.
Such intricated questions of resistance or obstruction to possession of immovable property can at best be determined under Order 21 of Rules 97 & 99 Code of Civil Procedure. In terms of Rule 97 of Order 21 CPC such decree of possession of immovable property can be resisted or obstructed by any person obtaining possession of the property by moving an application to the Court. On moving such application the Court in terms of Rule 99 decide the fate of said application if filed in good faith claiming possession of the property on his own account or on account of the person other than the JD. Such claim of title to obstruct the decree can be entertained by the executing Court in terms of Rule 99 of Order 21 CPC subject to satisfying the Court that such person claiming possession of the property in good faith in his own account or on account person other than JD.
Such claim in the aforesaid terms prima facie has been made out which warrants inquiry and/or investigation and these are not just mere allegations. Apparently it seems that it requires probe into the question of facts and law which cannot be brushed aside summarily.
The petitioner has based his prayer for conducting inquiry in respect of the allegations on the basis of following grounds:-
“I) That the petitioner is legal and lawful owner of plot No. H-31, Block-F, Saadat Colony, Drig Road, Karachi
II) That the plot No. H-31, Block-F, Saadat Colony, Drig Road, Karachi, is leased plot in favour of applicant, which cannot be cancelled without proper order of any competent authority.
III) That the possession of Decree Holder over the plot No. H-31, Block-F, Saadat Colony, Drig Road, Karachi, through the orders of executing Court is null & void in eye of law, and can not effect the rights of petitioner, who is legal and lawful owner.
IV) That the order has not been executed in letter and spirit.
V) That the judgment debtor society failed to point out the two different plots in the master plan.
VI) That earlier application under section 12(2) CPC was dismissed with assurance that the writ of possession was issued in respect of Plot No.37-F and not H-31.
Such valuable property could not be taken away by the respondent No.1 through a process of law which process was not meant for plot No. H-31 and was executed in compliance of the decree in A.B.N. Case No.100/2002 for plot No. 37/F. The manner in which the respondent No.2 conducted itself is very objectionable as primarily it is they who are responsible for this mistaken identity and it is the society itself to clarify the ambiguity in respect of the claim of the petitioner and the respondent No.1. Though they have executed the lease in favour of Mst. Shakoori Begum which is claimed by the petitioner but they failed to point the plot in the revised layout plan. All along litigation the petitioner was satisfied by the Courts below that no decree will going to be executed against Plot No. H-31 and ultimately it was executed against his plot.
We, therefore, allow this petition and remand the case to the learned trial Court to conduct a detail and exhaustive enquiry after summoning the concerned witnesses from the Cooperative Housing Society to produce the original record since the inception of such society and all original layout plans so that the issues could thrashed out in the light of that original record. We would leave it to the Court which conduct inquiry to adopt requisite procedure to its entire satisfaction in order to regulate its proceedings keeping in view the nature of allegations in the case.
Judge
Chief Justice