IN THE HIGH COURT OF SINDH, KARACHI
High Court Appeal No.34 of 2003
High Court Appeal No.64 of 2003
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Date Order with Signature(s) of Judge(s)
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Present:
Muhammad Ali Mazhar, J.
Abdul Maalik Gaddi, J.
HCA No.34/2003
Fahim Saeed …………. Appellant
Versus
Mst. Yasmeen
& 03 others …………. Respondents
&
HCA No.64/2003
Mst. Yasmeen
& 03 others …………. Appellants
Versus
Fahim Saeed …………. Respondent
Syed Aijaz Hussain Shirazi, Advocate for the Appellant in HCA No.34/2003 & for Respondent in HCA No.64/2003 alongwith Fahim Saeed.
Mr. Suleman Hudda, Advocate for the Appellants in HCA No.64/2003 & for Respondents in HCA No.34/2003 alongwith Mst. Yasmeen.
Dates of hearing: 12.1.2017, 20.1.2017, 27.1.2017 & 03.2.2017.
J U D G M E N T
Abdul Maalik Gaddi, J. Through this common judgment, we intend to decide the captioned High Court Appeals, as these appeals relate to same subject matter involving common questions of law and facts.
2. Through these appeals, both the appellants are aggrieved by the judgment and decree dated 19.12.2002 passed by the learned Single Judge of this court in Civil Suit No.93 of 1997 (Re: Fahim Saeed v. Mst. Yasmeen and others) filed by Fahim Saeed through his father/attorney namely Saeed Ahmed, whereby the learned Single Judge of this court after recording the evidence and hearing the parties, out of eight issues, six had decided in favour of Mst. Yasmeen except issue No.6, but still suit had been decreed as mentioned in issue No.8, to the extent of prayer clauses ‘A’ and ‘B’ of the suit with the condition that Fahim Saeed was entitled to take possession of the suit property subject to payment of Rs.300,000/- to Mst. Yasmeen.
3. As both the parties have filed High Court Appeals against the impugned judgment and decree, as such, for the sake of brevity and convenience, it would be appropriate for the purpose of this judgment to refer Fahim Saeed as appellant, who was plaintiff in the aforesaid suit, and Mst. Yasmeen and others as respondents, who were defendants in the suit.
4. Briefly stated the facts of the case are that appellant Fahim Saeed instituted the Civil Suit No.93 of 1997 on 23.01.1997 before the learned Single Judge of this court sitting on original side, against the respondents for declaration, permanent injunction, possession, mesne profit and damages being owner of the property bearing House No.206-A, City Survey No.233, measuring 600 square yards at Sindhi Muslim Cooperative Housing Society Limited, Karachi. The appellant purchased this property from Shahid Hafeez, the husband of respondent No.1 (Mst. Yasmeen) alongwith other co-sharers through registered Sale Deed dated 11.10.1993, which was subsequently rectified through registered Deed of Rectification dated 07.02.1994. It is averred in the plaint by the appellant that after registration of Sale Deed and Rectification Deed, his name was mutated in the record of right in the office of Assistant Commissioner (East), Karachi and he was also issued property extract card namely P.T-1 in his favour and he purchased the property legally through aforesaid registered Sale Deed with valuable consideration as agreed upon by the parties. It is also averred that respondent No.1 (Mst. Yasmeen) is Ex-wife, whereas, the respondents No.2 to 4 are the daughters of one of the co-sharer and seller Shahid Hafeez, who promised to vacate the first floor of the said property occupied by them but failed to do so inspite of service of legal notice, hence, the appellant filed aforesaid suit with the following prayers:-
A) Declaration that the plaintiff is the lawful owner of the suit property by way of valid and subsisting sale deed registered at No.4003 Book No.Ist Addl: at pages 54 to 56 Volume 176 in the office of Sub-Registrar T Division Karachi on 11.10.1993 followed by a Rectification Deed with construction registered No.505 Book Ist Addl: at pages 24 to 28 Volume 1765 in the office of the Sub-Registrar T Division Karachi on 07.02.1994, in favour of the plaintiff with full description of the suit property i.e. all that pieces and parcel of land bearing Plot No.206, Block-A, City Survey No.233, measuring 600 square yards situated at S.M.C.H.S, Karachi with construction of ground and first floor with fixture and fitting etc.;
B) Decree for possession against the defendants directing them to handover and deliver to plaintiff the vacant and physical possession of the entire first floor of the plaintiff’s property bearing No.206, Block-A, City Survey No.233, situated at S.M.C.H.S, Karachi;
C) Decree for mesne profit at the rate of Rs.15000/- per month right from 21.08.1993 for the use and occupation of the suit property i.e. the first floor of the premises by the defendants unauthorizedly, amounting to Rs.600,000/- for the period from 21.08.1993 to the date of filing the suit and also onwards until the delivery of possession of the Ist floor premises to the plaintiff;
D) Decree for damages and compensation in the sum of Rs.10,00,000/- against the defendants for mental torture and material loss to the plaintiff and his property on account of illegal and mischievous acts done by the defendants;
E) Permanent injunction be issued against the defendants restraining them from stopping the plaintiff and the occupants of the ground floor to attend to over-head tank and gyser on the terrace, disturbing the water connection, throwing dirty water and rubbish from the first floor to the ground floor, causing nuisance and disturbance to the occupants on the ground floor of the suit property;
F) Decree for Rs.20,000/- being dues for the use of water, electricity, sui gas, property tax and conservancy charges paid by the plaintiff;
G) Any other relief or reliefs which this Hon’ble Court deems fit and proper in the circumstances of the case be granted;
H) Cost of the suit be awarded.
5. The respondent (Mst. Yasmeen) contested the case by filing her written statement and disputed the case and claim of the appellant (Fahim Saeed) and submitted that the suit filed by the appellant was not maintainable and he was not bonafide purchaser of the disputed property and the entire transaction in between the appellant and co-sharers was shady and no consideration was paid in respect of disputed property and that her ex-husband Shahid Hafeez had already been relinquished his share in her favour in writing in the suit property on 09.08.1991 on receipt of Rs.300,000/-, as such, he cannot sold this property.
6. The learned Single Judge of this court on the basis of pleadings of the parties framed the following issues:-
(1) Whether the plaintiff is the owner of the suit property by reason or Conveyance Deed in his favour?
(2) Whether the defendant is unauthorized and illegal possession of the first floor of the suit property?
(3) Whether the plaintiff is entitled to mesne profit in the sum of Rs.15,000/- per month for the unauthorized use and occupation of the first floor of the suit property with effect from 21.08.1996?
(4) Whether the husband of defendant No.1 (Shahid Hafeez) has relinquished his share in favour of defendant No.1 vide relinquishment deed dated 09.08.1991? If so, what is its effect?
(5) Whether Sale Deed dated 22.07.1993 and its rectification dated 07.02.1994 in respect of suit property is collusive, fraudulent, bogus and without consideration?
(6) Whether the plaintiff is entitled to Rs.20,000/- towards conservancy, electricity and property tax paid for first floor of the suit property?
(7) Whether the plaintiff is entitled to damages and compensation in the sum of Rs.10,00,000/- as claimed?
(8) What should the decree be?
7. In order to prove his case, the appellant Fahim Saeed through his attorney namely Saeed Ahmed has filed Affidavit-in-Evidence as Ex.5, reiterating the facts as mentioned in the plaint alongwith copies of General Power of Attorney dated 27.03.1996, Sale Deed dated 11.10.1993, Deed of Rectification with consideration dated 07.02.1994, Extract from property register, Extract P.T-1 register showing mutation of property, Legal Notice dated 03.07.1996, Statement of various taxes, Bills of Sui-Southern Gas Company, Family Suit No.308 of 1991, Execution No.03 of 1992 alongwith order passed thereon and Order dated 04.03.1997 passed in Suit No.308 of 1991, as Exhibits No.P/1 to P/11. Mst. Rehana Farooq Shahbaz and Shahid Hafeez Khan had also filed their Affidavit-in-Evidence as Exhibits No.6 and 7 and they were duly cross examined by the counsel for respondent Mst. Yasmeen.
8. On the other hand, in order to prove her case, the respondent Mst. Yasmeen had also filed her Affidavit-in-Evidence as Exhibit No.8 alongwith copies of Relinquishment Deed, Notices dated 31.08.1991 and 18.08.1991, Letter dated 10.05.1991 alongwith postal receipt, Order dated 13.07.1994 in Suit No.1497 of 1993, Judgment dated 28.02.1994 in F.A. No.63 of 1992, Order dated 04.07.1994 in Civil Petition for leave to appeal, Family Suit No.308 of 1991 and Execution No.03 of 1992, Warrant of Arrest and order passed in Suit No.308 of 1991 as Exhibits No.8/1 to 8/14. Respondent No.2 Miss Shirmin was also filed her Affidavit-in-Evidence as Exhibit No.9 and supported the contentions of her mother. These witnesses have also been cross examined by the counsel for the appellant Fahim Saeed. Thereafter, parties have closed their sides.
9. As per record, it appears that the learned Single Judge after recording the evidence of both the parties decided issues No.1 to 5 and 7 in favour of respondent Mst. Yasmeen, but still suit was decreed in favour of the appellant Fahim Saeed to the extent of prayer clauses ‘A’ and ‘B’ as supra. Furthermore, it was observed that possession of the first floor of Mst. Yasmeen was not unauthorized and she had not damaged the suit property. However, issue No.6, which relates to entitlement of Rs.20,000/- towards conservancy, electricity and property tax paid for first floor of the suit property was decided in favour of the appellant (Fahim Saeed).
10. Syed Aijaz Hussain Shirazi, learned counsel appeared on behalf of appellant (Fahim Saeed) has submitted that though the suit of the appellant had been decreed only to the extent of prayer clauses ‘A’ and ‘B’ of the suit but the findings of the learned Single Judge on issues No.1 to 5 and 7 are contrary to facts, law, documents and evidence on record, as the same have been decided against the appellant on mere surmises and conjectures, which are liable to be set-aside, as according to him, there was enough cogent/documentary evidence on record before the learned Single Judge to decide these issues in favour of the appellant, but he did not take it appropriate to decide the same in favour of the appellant without assigning any good reason, but decreed the suit as mentioned above. During the course of arguments, he draws our attention towards the evidence of appellant and his witnesses and documents produced by them and contended that the appellant purchased the property in question from Shahid Hafeez, the ex-husband of respondent No.1 alongwith co-sharers for valuable consideration. The property was purchased through registered Sale Deed dated 11.10.1993, which was rectified through Deed of Rectification dated 07.02.1994 and on the basis of these documents, the name of the appellant had been mutated in the record of right and he is paying property tax and so also electricity and conservancy charges, as such, through these documents, the appellant has become exclusive owner of the property. Per learned counsel that the appellant sent legal notices to the respondents to vacate the first floor of the property, but she did not vacate the same by taking a false plea that her ex-husband Shahid Hafeez had already been relinquished his share against the sum of Rs.300,000/-, as such he cannot sold the property. Learned counsel also draws our attention towards the evidence of Shahid Hafeez, wherein he stated that he alongwith other co-sharers sold the subject property through Sale Deed and Deed of Rectification to the appellant and also denied the relinquishment of his share in favour of respondents. According to him, the case of the respondents is only based upon alleged Relinquishment Deed dated 09.08.1991, which was neither registered nor any attested witnesses signed the same or even the property was not transferred in her favour as per law. Per learned counsel, the alleged relinquishment deed is simple hand written paper on the basis of which the respondents is claiming ownership, which has no legal basis and even the property was not charged through any legal process, but the learned Single Judge has wrongly held that the property in question was under charged. Per learned counsel, the respondents is residing in the first floor unauthorizedly, therefore, she is not entitled for any protection under Section 53-A of the Transfer of Property Act, 1882. Per learned counsel, the learned Single Judge has erred in law and facts while observing in issues No.1 and 5 that the registered sale deed and rectification deed in favour of the appellant are collusive and have been obtained by means of fraud, are based upon misreading and non-reading of evidence and documents available on record. Per learned counsel, these documents are registered documents against valuable consideration in accordance with the Registration Act, 1908 and it is well settled law that the presumption of truth is attached to the registered documents as per Article 129(e) of the Qanoon-e-Shahadat Order, 1984. These registered documents have not been objected/challenged by the co-sharers who executed the same; therefore, the respondents have no right to dispute the transactions in between the appellant and co-sharers of the property in question. Per learned counsel, the respondents are in illegal possession of the property since 11.10.1993 and the appellant is the lawful owner of the property in question and according to him, the respondents have damaged the walls, doors and other installations in the house, therefore, the appellant is entitled for damages and mesne profit as well. Thus, the findings of the learned Single Judge on issues No.1 to 5 and 7 are against law and facts liable to be set-aside and these issues may be decided in favour of the appellant as per evidence on record. Per learned counsel, although the impugned judgment delivered by the learned Single Judge is contradictory on material facts and he has not appreciated the evidence in its true prospective, but he was of the view that the case may not be remanded to the learned Single Judge for rewriting the judgment. Per learned counsel that this court being an Appellate Court has fully empowered under Order 41 Rule 24 of the Code of Civil Procedure, 1908 to decide the case finally as there is/was no further evidence is required in this case by either side and the matter pertains to year 1997 as twenty years has already been expired in the litigation. During the course of arguments, learned counsel has also reiterated the same facts and grounds, which he has urged in the memo of appeal as well as in his written synopsis and prayed that appeal of the appellant may be allowed as prayed and the appeal filed by Mst. Yasmeen may be dismissed being devoid of any merits. In support of his arguments he has also relied upon the following case laws:-
i) Abdul Jabbar and others v. Mst. Maqbool Jan and others reported as 2012 SCMR 947;
ii) Mst. Shahida Zareen v. Iqrar Ahmed Siddiqui reported as 2010 SCMR 1119;
iii) Muhammad Mukhtar and others v. Muhammad Sharif and others reported as 2007 SCMR 1867;
iv) Abbas Ali Shah and 5 others v. Ghulam Ali and another reported as 2004 SCMR 1342;
v) Mst. Rasheeda Begum and others v. Muhammad Yousaf and others reported as 2002 SCMR 1089;
vi) Roazi Khan and others v. Nasir and others reported as 1997 SCMR 1849;
vii) Sher Muhammad and others v. Jamadar Ghulam Ghaus (represented by heirs) reported as 1983 SCMR 133;
viii) Ali Raza v. Muhammad Shoaib and 2 other reported as 2014 CLC 1343;
ix) Ashiq Ali and others v. Mst. Zamir Fatima and others reported as PLD 2004 SC 10;
x) Mt. Mahaderi Kunwar v. Padarath Chaube and another reported as A.I.R. 1937 Allahabad 578;
xi) Gopinath Sarma v. Hangsanath Sarma and another reported as A.I.R. (37) 1950 Assam 129.
11. Mr. Suleman Hudda, learned counsel appearing on behalf of respondents (Mst. Yasmeen) has supported the findings of the learned Single Judge on issues No.1 to 5 and 7 and submitted that though these issues have been decided in favour of Mst. Yasmeen but still suit was decreed in favour of the appellant (Faheem Saeed) to the extent of prayer clauses ‘A’ and ‘B’ of the suit without appreciating the evidence on record and wrongly relied upon the case of Habib-ur-Rehman and others v. Mst. Wahdania and another reported as PLD 1984 SC 424. Per learned counsel, suit filed by the appellant was not maintainable in law as no cause of action accrued to the appellant, who was defecto owner as one of the shareholders of the suit property who had signed the conveyance deed (Shahid Hafeez) was having no interest in the suit property as he had already relinquished his share in writing in favour of Mst. Yasmeen on 09.08.1991 on receipt of Rs.300,000/-, as such, the sale transaction in between the appellant and other co-sharer was not recognized by the concerned housing society; that civil suit has been filed by the appellant at the instance of Shahid Hafeez, the ex-husband of respondent No.1 malafidely for the purpose of defeating the decree of maintenance passed by the Family Court in Family Suit No.308 of 1991 in favour of the respondents, which was maintained up to the level of Hon’ble Supreme Court; that the appellant is not bonafide purchaser of the disputed property but the entire transaction in between the appellant and co-sharers is/was shady and no consideration is paid in respect of disputed property. The conveyance and rectification deed are bogus documents and are liable to be disbelieved; that ex-husband, Shahid Hafeez himself relinquished/transferred his share in favour of respondent in writing on 09.08.1991 upon receipt of Rs.300,000/- in respect of the property in question and the execution of said relinquishment deed was admitted by the Advocate for the Shahid Hafeez in reply to legal notice dated 31.08.1991 and this document is still in field and the respondent is in possession of first floor, therefore, according to him, Section 50 of the Registration Act, 1908 and so also Section 53-A of the Transfer of Property Act, 1882 are fully applicable thereto. Per learned counsel, though the issues No.1 to 5 and 7 have been decided in favour of the respondents, but the suit has been decreed wrongly without considering the evidence and documents on record to the extent of prayer clauses ‘A’ and ‘B’ in favour of the appellant (Faheem Saeed), and so also the findings on issue No.6 has not been based on any evidence, thus, he was of the view that the findings of the learned Single Judge of this court are self-contradictory, therefore, either the case be remanded to the learned Single Judge of this court for rewriting of judgment afresh after hearing the parties on the basis of evidence and documents on record or the appeal of Mst. Yasmeen be allowed having proved her case through documents and oral evidence on record and the appeal filed by the appellant Faheem Saeed be dismissed as he failed to establish his title over the property in question. Learned counsel for the respondents has also filed his written synopsis alongwith certain case laws, which are as follows:-
i) Inayat-ur-Rehman v. Shah Jahan reported as 2014 YLR 1978;
ii) Mrs. Sherbano v. Kamil Muhammad Khan reported as PLD 2012 Sindh 293;
iii) Khushi Muhammad v. Noor Din and others reported as PLD 2002 SC 702;
iv) Fazla v. Mehr Din reported as NLR 1997 Civil 257;
v) Hikmat Khan v. Shamsur Rehman reported as 1993 SCMR 428;
vi) Naib Subeder Taj Muhammad v. Yar Muhammad Khan and 6 others reported as 1992 SCMR 1265;
12. After hearing the learned counsel for the parties and on perusal of record including impugned judgment, it is evident that the findings of the learned Single Judge are contradictory to grant relief in favour of the appellant as mentioned in issue No.8, whereas, other issues have been decided in favour of respondents (Mst. Yasmeen) except issue No.6, therefore, according to the learned counsel for the respondent that the learned Single Judge has not appreciated the evidence on record in its true prospective and matter may be remanded to the learned Single Judge for rewriting the judgment. Reverting to the contention of the learned counsel, it is suffice to say that the parties are in litigation since 1997 and these appeals pertain to year 2003, almost twenty years have been lapsed and this court being an Appellate Court has fully empowered under Order 41 Rule 24 of the Code of Civil Procedure, 1908 to decide the appeals on merits, as here in this case, no further evidence is required and there is sufficient evidence and documents are on record to decide the controversies finally in between the parties. We, therefore, while relying upon the cases of Mst. Shahida Zareen v. Iqrar Ahmed Siddiqui reported as 2010 SCMR 1119, Ashique Ali and others v. Mst. Zamir Fatima and others reported as PLD 2004 SC 10 and Roazi Khan and others v. Nasir and others reported as 1997 SCMR 1849, intend to decide these appeals finally to avoid further delay and so also to avoid the torture of another round of litigation. Thus, the points for determination to decide these appeals are as under:-
1) Whether the appellant Faheem Saeed is the owner of the suit property through registered Sale Deed dated 11.10.1993 followed by Rectification Deed dated 07.02.1994 purchased the same from Shahid Hafeez and other co-sharers against valuable consideration?
2) Whether Shahid Hafeez, the ex-husband of Mst. Yasmeen had relinquished his share in her favour in the sum of Rs.300,000/- vide Relinquishment Deed dated 09.08.1991, if so, what is its effect?
3) Whether the respondent (Mst. Yasmeen) is in unauthorized and illegal possession of the first floor of the suit property, if so, whether the appellant is entitled for his possession alongwith mesne profit from the date of registration of sale deed i.e. 11.10.1993, electricity and property tax as claimed by him?
13. We have heard the learned counsel for the parties at length and have perused the pleadings of the parties, evidence, documents on record as well as the impugned judgment. Our findings on the above points with reasons are as under:-
(i) POINTS NOS.1 & 2. Since the whole controversy of the case revolves towards the points No.1 and 2, therefore, we would like to decide the same together. To prove the contention, the father/attorney of the appellant namely Saeed Ahmed deposed his evidence as Exhibit No.5 in the suit file and has produced/exhibited certain documents showing the ownership of the appellant in respect of the property in question, as stated in the preceding paragraph No.7 of this judgment, therefore, need not be reiterated here. The appellant has also examined the co-sharers/vendors of the property as witnesses namely Mst. Rehana Farooq Shahbaz and Shahid Hafeez as Exhibits No.6 and 7 respectively of the suit file, who have supported the version of the appellant Faheem Saeed. The attorney of the appellant has also stated in his deposition that appellant had purchased the suit property through registered Sale Deed dated 11.10.1993 followed by Rectification Deed dated 07.02.1994 from its previous owners on payment of full consideration amount as evident from registered documents and the suit property was also mutated in his name and the appellant was also paying the electricity, gas and water conservancy charges, but the respondent Mst. Yasmeen is in illegal possession on first floor of the suit property without paying any charges of her occupation, though legal notice was issued to her for vacation of the same but she did not vacate the same. On the other hand, the respondent Mst. Yasmeen has taken the plea in her written statement as well as in her evidence as Exhibit No.8/1 that on 09.08.1991, her ex-husband Shahid Hafeez, one of the co-sharer of the suit property had relinquished his share in writing in her favour on receiving of Rs.300,000/-, which is on record as Exhibit No.8/2 of the suit file and this fact has been proved through legal notice dated 31.08.1991 as Exhibit No.8/3 and the relinquishment deed had not been challenged by the appellant despite of his knowledge, therefore, the transaction in between the appellant and co-sharers are result of fraud and she is one of the co-sharer in the suit property. Miss Shirmin, daughter of Mst. Yasmeen has also been examined in the case. She has stated that her father Shahid Hafeez had relinquished his share in favour of her mother Mst. Yasmeen in writing in her presence.
As the appellant (Fahim Saeed) is claiming ownership of the suit property through registered Sale Deed followed by Rectification Deed dated 11.10.1993 and 07.02.1994 respectively, which are on record at Exhibits 5/2 and 5/3 respectively, showing that not only these documents are registered before the Sub-Registrar T.Division-1, Karachi, and the same have been executed by Shahid Hafeez and other co-sharers of the property in question in favour of the appellant Fahim Saeed. These documents are registered documents against valuable consideration in accordance with the Registration Act, 1908. Neither these registered documents have been cancelled before any competent court of law as required under Section 39 of the Specific Relief Act, 1877 nor it has been challenged/objected to by any co-sharer of the suit property, and the property in question had also been mutated in the record of right, on the contrary, there is only oral version of the respondent in this regard. It is settled law that documentary evidence always prevail upon oral evidence. Reliance is placed in the case of Abdul Ghani and others v. Mst. Yasmeen Khan and others reported as 2011 SCMR 837. There is no convincing/cogent evidence on record to hold that registered Sale Deed followed by Rectification Deed are collusive and result of fraud, therefore, the said registered Sale Deed and Rectification Deed are valid, intact and still hold field, even otherwise, it is well settled law that the presumption of truth is attached to a registered document as per Article 129(e) of the Qanun-e-Shahadat Order, 1984. In this respect, we are supported with the cases of Muhammad Ali and 25 others v. Hassan Muhammad and 06 others reported as PLD 1994 SC 245 and Fazal Mahmood v. Sardar Khan and 03 others reported as PLD 1996 Karachi 475. Therefore, under the aforementioned facts and circumstances, the respondents have no right to dispute the transactions in between the appellant and co-sharers of the property in question as she has not filed any suit for cancellation of these documents, but the learned Single Judge without assigning any good reason or supported by any law while deciding issues No.1 and 5 holding that the registered Sale Deed and Rectification Deed in favour of the appellant are collusive and have been obtained by means of fraud. For the sake of convenience, it would be proper to reproduce the relevant para of the findings on the said issues, which are as under:-
“In view of above discussion, it appears that the Conveyance Deed and rectification deed was executive in collusive, fraudulently as the plaintiff has not come with clean hands which fact is also crystal clear from the deposition of the attorney of the plaintiff in which in reply to a question he has stated, “I am not aware that litigation in respect of suit property was pending in court between defendant No.1 and her husband.” However, to another question he replied “It is correct to suggest that rectification deed was got executed after filing of suit by the defendant No.1 against her husband in respect of share in the suit property.” This shows that the plaintiff being well aware of the fact that the property is disputed entered into a transaction with the co-sharers of the suit property to save the suit property from the attachment in execution.
In view of the above both the issues are decided in favour of the defendants and the statement of the attorney of the plaintiff is contradictory which is not confidence inspiring.”
From perusal of above findings of the learned Single Judge, it reveals that the same have been given on the basis of surmises and conjectures and it is an admitted fact that when respondent (Mst. Yasmeen) filed Family Suit No.308 of 1991 and Suit No.1497 of 1993 against her ex-husband Shahid Hafeez, who was admittedly co-sharer of the property in question and had sold his share alongwith other co-sharers to Fahim Saeed through registered Sale Deed followed by Rectification Deed, which have not been challenged by any of the co-sharers. It is also immaterial to consider here that the Rectification Deed was executed after four months of registration of Sale Deed. Perusal of record further shows that the property in question was never remained in attachment in Family Suit No.308 of 1991 (Execution Application No.03 of 1992) and this fact is evident from the order dated 04.03.1997 passed by the learned XIIth Civil and Family Judge, Karachi (South), which is available in evidence file at Exhibit 5/11. Under the circumstances, the findings of the learned Single Judge on issues No.1 and 5 are without any basis and against the law are liable to be set-aside. We, accordingly set-aside the same and hold that the appellant Fahim Saeed is the bonafide and exclusive owner of the suit property on the basis of registered Sale Deed followed by Rectification Deed.
As observed above that on one hand, the learned Single Judge had observed that registered Sale Deed and Rectification Deed are collusive and the result of fraud, but on the other hand, while deciding issue No.8, had decreed the suit in favour of the appellant Fahim Saeed with the following findings:-
“In view of the above discussion and findings on issues No.1 to 7 and the law laid down on one hand the plaintiff is entitled to relief of declaration while defendant No.1 being in possession against value as laid down in the case discussed above is entitled for return of her amount, as well as the close relationship between the parties it is difficult to presume that the plaintiff was entirely unaware of the strained relationship of defendant No.1 with her husband and refusal of defendant No.1 to vacate the premises and the reasons thereof, the suit is decreed only to the extent of prayer clause ‘A’ and ‘B’ subject to payment of Rs.300,000/- to defendant No.1 but with no orders as to mesne profit or costs.”
After going through the above findings, though the suit had been decreed with direction to respondent to handover the vacant possession in her occupation, but we could not understand how the learned Single Judge passed order directing the appellant to return the amount of Rs.300,000/- to the respondent when he did not receive the same in lieu of possession.
As far as, the alleged Relinquishment Deed dated 09.08.1991 as Exhibit 8/2 relied by the respondent (Mst. Yasmeen) is concerned, it is suffice to say that the same is comprising only four lines hand written on plain paper and allegedly signed by her ex-husband Shahid Hafeez, the same is also unregistered. For the sake of convenience, it would be proper to reproduce the same as under:-
“I relinquished my share in the house no.206-A., SMCHS, Karachi in favour of Mst. Yasmeen Shahid against 3 lacs Rs. received.
-Sd/-
at 3.10 p.m.
(Friday)”
From perusal of above alleged Relinquishment Deed, it appears that the same is not a legal document for the purpose of alienating the share of co-owner Shahid Hafeez in the suit property to the respondent, as such, the same is not binding upon the appellant under the law because the ownership of the property can only be transferred under the following modes:-
“i) through registered sale deed as provided under Section 54 of the Transfer of Property Act, 1882;
ii) through registered gift deed as provided under Section 122 of the Transfer of Property Act, 1882 or under Islamic law;
iii) through registered exchange deed as provided under Section 118 of the Transfer of Property Act, 1882; or
iv) by way of inheritance on the death of muslim owner to his legal heirs under Islamic Law.”
Obviously, the case of the respondent (Mst. Yasmeen) does not fall within any of the aforesaid categories. It is an admitted position that there is no registered release/relinquishment deed except a hand written paper without any stamp or witness.
In view of the above, the question of protection of Section 53-A of the Transfer of Property Act, 1882 in favour of respondent does not arise. We have gone through the case law cited by the learned counsel for the respondent on the point of Section 53-A of the Transfer of Property Act, 1882 and so also on other points are found inapplicable to the facts of the present case, hence, not helpful for him.
As far as question of maintainability of the suit filed by Fahim Saeed before the learned Single Judge is concerned, though, this point has not been agitated before us by the respondent, but in this regard, we noticed that the learned Single Judge has elaborately addressed this point and found that the suit of the appellant Fahim Saeed was maintainable while relying case law reported as Ghulam Nabi and others v. Seth Muhammad Yaqub and others reported as PLD 1983 SC 344 and we also concur with the findings of the learned Single Judge on this point.
As a result of above discussion, points No.1 and 2 are decided in favour of the appellant Fahim Saeed and there is no legal effect of the Relinquishment Deed as relied by the respondent Mst. Yasmeen.
POINT NO.3. As the points No.1 and 2 have been decided in favour of the appellant Fahim Saeed by declaring that the he is the exclusive owner of the suit property through valid registered Sale Deed dated 11.10.1993 followed by Rectification Deed dated 07.02.1994 and it has also been established that Relinquishment Deed dated 09.08.1991 relied by Mst. Yasmeen has no legal effect. Appellant is claiming possession of first floor occupied by Mst. Yasmeen alongwith mesne profit at the rate of Rs.15000/- per month with effect from 11.10.1993 and so also damages, electricity and property tax. Appellant Fahim Saeed through convincing and reliable evidence on record and on becoming exclusive owner of the suit property with effect from 11.10.1993 has proved that the respondent Mst. Yasmeen is in unauthorized occupation of the appellant’s property, therefore, the respondent Mst. Yasmeen is directed to vacate and handover the vacant peaceful possession of the first floor of the suit property to the appellant Fahim Saeed within three (03) months from the date of order of this court. As far as, the grant of mesne profit in favour of the appellant is concerned, we noticed that the learned counsel for the appellant had filed application under Section 151 of CPC, supported by an affidavit (CMA No.152 of 2003) in High Court Appeal No.34 of 2003 for direction to the respondent to deposit and continue to deposit Rs.15000/- per month as mesne profit and the said application by consent of the parties counsel was allowed as prayed vide order dated 05.11.2003. At the movement, we are dealing the appeals against the impugned judgment and decree and in case the appellant (Fahim Saeed) feels any violation or non-implementation of the said order, he may file appropriate application in his appeal as accordingly, no mesne profit was allowed by the learned Single Judge in the impugned judgment nor any evidence was led in this regard. It is also evident from the record that the appellant Fahim Saeed is paying electricity and property charges to the concerned Government Departments and as observed above that issue No.6 in this connection has already been decided in favour of the appellant by the learned Single Judge. We have gone through the findings on issue No.6 recorded by the learned Single Judge and say that the findings on this issue are appropriate and in accordance with the evidence on record and maintained the same. As far as, the question of entitlement of the damages to the property in possession of the respondent and compensation as claimed by the appellant are concerned, we also noticed that in order to substantiate this plea, the appellant has failed to give any description or particulars as to how the property has been damaged. There is only oral version of the appellant, which has not been supported by the witnesses of the appellant; therefore, no question arises for grant of damages and compensation to the appellant.
14. Since the learned Single Judge already decreed the suit in terms of prayer clause (A) and (B) of the suit, therefore, High Court Appeal No.34 of 2003 is allowed to the extent of findings in point for determination No.1 to 3 and impugned judgment and decree is modified accordingly, while High Court Appeal No.64 of 2003 filed by Mst. Yasmeen is dismissed. Since the learned Single Judge directed to Mst. Yasmeen to vacate and hand over the premises in question to Fahim Saeed, therefore, in the interest of justice and to afford reasonable opportunity to make alternate arrangement, three (03) months’ time is allowed for this purpose subject to payment of all utility bills/charges.
Karachi.
Dated:
JUDGE
JUDGE
Faizan A. Rathore/PA*