IN THE HIGH COURT OF SINDH AT KARACHI

C.P. No. D-7743 of 2015

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Date Order with Signature of Judge

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Before : Mr. Justice Nadeem Akhtar

Mr. Justice Fahim Ahmed Siddiqui

Muhammad Javed and others..………………...…………………..Petitioners

Versus

Karachi Cooperative Housing Society and others…………….Respondents

Date of Hearing: 13.05.2017

Mr. Zia-ul-Haq Makhdoom, advocate for the petitioner

Mr. Haroon Shah, advocate for respondent No.2

O R D E R

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FAHIM AHMED SIDDIQUI, J: Through the instant petition, the petitioners are seeking the following reliefs:-

A) That the petitioners are entitled to carry out construction upon the residential Plot No.13/89, measuring 300 square yards, situated at Block No.3, Maqbool Cooperative Housing Society, Karachi (hereinafter referred to the ‘said society’) in accordance with the approved plan dated 07.01.2015.

B) That the act of harassment and interference in his smooth work without any notice of respondent No.4 SBCA is illegal and misuse of official powers.

C) That the (i) Impugned Show Cause Notice dated November 20, 2015 (ii) Impugned Withdrawal Order dated December 03, 2015 and (iii) Impugned Sealing Order dated December 04, 2015 are without lawful authority and jurisdiction having no legal effect and set aside the same.

D) Direct the respondent No.2 for implementation of the order dated December 06, 2013 (page No.77) by the competent authority namely, respondent No.3 in a manner that the mutation of the property is finally recorded in the name of the petitioners.

2. It is the case of the petitioners that they are the owners of the said property, which was originally allotted to Mr.Zulfikar Zaib as a plot and subsequently sublease was issued in his favour, who constructed a house on the said plot. The said property was, later on, sold out to Mrs. Rabia through registered sale deed dated 11.10.2004, and it was further sold out to Mr.Sharif Hussain through registered sale deed dated 13.03.2005 and mutated in his name on 31.10.2008. The petitioners became owners of the said property by purchasing the same from the said Mr. Sharif Hussain through registered sale deed dated 07.06.2013 and it was mutated in their names by the lessor i.e., Ministry of Housing and Works (respondent No.3) vide their letter dated 06.12.2013.

3. The petitioners demolished the old structure after completing all the legal formalities and obtaining the requisite permission from SBCA, and started construction work as per approved plan of SBCA. The staff of SBCA (respondent No.4) started frequent visits and causing harassment without any reason and created hurdles and also damaged some portion of plinth and pillars. Meanwhile, respondent No.2 filed a Civil Suit No. 263/ 2016 before the original side of this Court against the petitioners with a prayer for stopping them to raise construction on the said property. It has come to the knowledge of the petitioners through the plaint of the aforesaid suit that SBCA had withheld/withdrawn the approved building plan of the petitioners’ through letter No.SBCA/DD/(Gulshan Town-II/2015/ 1056 dated December 03, 2015 (‘impugned withdrawal letter’). It has also come to the knowledge of the petitioners through the plaint of the aforesaid suit that under Sealing Order dated December 04, 2015 (‘impugned sealing order’), the petitioners’ property was ordered to be sealed by SBCA (respondent No.4).

4. During the pendency of the instant petition, the respondent No.2 succeeded in its above mentioned suit in getting an ad-interim injunction against the petitioners from raising further construction on the said property. The petitioners challenged the said ad-interim injunction order through HCA No. 40 of 2016, which is also pending before us along with the instant petition. The said HCA was already disposed of in the light of the short order dated 13.05.2017 passed by us in the instant petition.

5. The learned counsel for the petitioners argued the matter at length. He submits that the petitioners are lawful owners of the property and the respondent No.2 (Maqbool Cooperative Housing Society) and respondent No. 4 (SBCA) are unauthorizedly creating hurdles in the way of enjoyment of the petitioners from their own property. According to him, the petitioners are in possession of the entire chain of documents and they have purchased the property from the lawful owner of the same. The property has been mutated in the names of the petitioners by the lessor and they have obtained the requisite permission for demolition as well as reconstruction from the competent authority in accordance with the approved plan.

6. The learned counsel for the respondent No.2 opposes the instant petition by submitting that the basic document i.e., Power of Attorney issued by the original allottee in favour of Mrs. Rabia is a dubious document as such, the subsequent sale deeds are also under clouds. According to him, the respondent No.2 are the custodians of the plot holders in the said society and they have to protect the interest of their members.

7. We have heard the arguments of the respective parties and have gone through the relevant record in the light of the arguments advanced. It is the case of the petitioners that they are the lawful owners of the property in question and they are in possession of all the original documents. The property was initially allotted to Mr. Zulfikar Zaib who subsequently sold out the same to Mrs. Rabia, and a power of attorney was executed in her favour. The said power of attorney is a registered document and the same has been utilized by entering into a sale agreement with Mr. Sharif Hussain for whom she executed a sale deed dated 13.03.2005 and the property was mutated in the name of Mr. Sharif Hussain on 31.10.2008. Since 2005, the respondent No.2 remained silent, even they did not object when the petitioners became owners by purchasing the said property from Mr. Sharif Hussain through registered sale deed dated 07.06.2013 and the said property was also mutated in their names by the lessor i.e. Ministry of Housing and Works (respondent No.3).

8. The petitioners are holding a ‘registered sale deed’ in their favour in respect of the said property. Under the law, a registered document operates from the date of its execution and until and unless the same is cancelled through another registered document and/or through a declaration of court, then the sanctity of a registered document in our view cannot be doubted or questioned. A registered document is always presumed and/or deemed to be genuine, binding and enforceable under the law. In this respect, we would also like to take reliance of a judgment of Division Bench of this Court reported as Dr. Abdul Wahab v. Samina Maqsood and others (2014 MLD 1086), wherein it is held as under:-

“There is no cavil to the legal proposition as argued by the learned counsel for the appellant that there is legal presumption in favour of a registered document and unless, such document is cancelled and proved to be illegal, no adverse inference can be drawn regarding validity of such document and entitlement of the person in whose favour such document has been executed. Mere allegations, unless proved to be correct through evidence, cannot be treated at par with the evidence in the shape of a registered document.”

9. It is worth mentioning that the respondent No.2 (Maqbool Cooperative Housing Society) has nothing to do in respect of mutation of the property as the land of the society is not owned by them. At the most, their status is limited to the development and providing certain municipal services within the society. It is an admitted position that there is a chain of registered documents which are still in field. The petitioners acquired the proprietary right on the said property through a registered sale deed from the previous owner (Mr. Sharif Hussain) in whose name the property was mutated in the year 2008 on the basis of the registered sale deed executed in his favour in the year 2005. It is also an admitted position that neither the original allottee nor the subsequent owner has challenged the title of the petitioners and the present objector (respondent No.2 Maqbool Cooperative Housing Society) is a third-party as far as the right of ownership in the said property is concerned. The title/document in the name of the previous and present owners are admittedly still intact and as long as they are in existence, the petitioners have every right to enjoy their property without any hindrances created by a third party.

10. In view of the above discussion, we are of the opinion that as the petitioners are still enjoying the status of the owners of the property in question, therefore, they continue to enjoy from their property as permissible under the law. They may raise construction as per approved plan solely on their risk as to costs and consequences of any future development regarding the same. With these observations, the instant petition is allowed with no order as to cost.

11. The above are the reasons of our short order dated 13.05.2017 whereby this petition was allowed.

J U D G E