J U D G M E N T

MAHMOOD AHMED KHAN – J : This is a suit for specific performance, declaration and mandatory injunction.

2. Abridging but with the required details as per the contents of the plaint, it is contended that in the year 1994 mother of defendants 1 to 4 during her life time gifted the suit property bearing Plot Nos.689-690, Block-2, Azizabad, Federal “B” Area, Karachi, to her son Raeesuddin. Subsequently Karachi Development Authority mutated the suit property in the name of said Raeesuddin after recording the statement of his mother. That in the year 1998 the defendants filed a Civil Suit bearing No.133/1998 against their brother Raseemuddin Khan and Karachi Development Authority for cancelation of mutation in respect of the suit property. That during pendency of the said suit the defendants requested the plaintiff to resolve the family dispute between them and their real brother Raeesuddin and for such purpose they appointed the plaintiff as sole Arbitrator. Said Raeesuddin Khan who is brother-in-law of the plaintiff executed General Power of Attorney in favour of the plaintiff and authorized him to settle the dispute in any manner. Thereafter the defendants withdraw the said suit and the plaintiff gave his Award which has been accepted by the defendants and their brothers Raeesuddin Khan and Sami Khan and in terms of the Award said Raeesuddin Khan gifted the suit property jointly in favour of the defendants and thus they become the joint owners of the suit property. That thereafter the defendants decided to dispose of the suit property and divided the sale consideration among all the sisters and brothers including another brother Saghir Ahmed, but defendants 3 and 4 not willing for sale of the suit property for a sum of Rs.1,500,000/- as offered by the state agent and again a dispute had cropped up between real sisters. The plaintiff came forward to resolve the dispute and suggested them that instead of selling the suit property he will pay them Rs.1,600,000/- for the same and as such an agreement dated 28.06.2000 was executed in between the plaintiff and defendants 1 to 4. According to said agreement a net amount of Rs.1,240,367/- was payable by the plaintiff to the defendants and their brother Saghir Ahmed in equal share and that either each defendant shall receive an amount of Rs.248,734/- as share out of the sale consideration or in lieu of cash amount the defendants will get a flat in the proposed building which the plaintiff going to construct after demolishing the old structure of the suit property. That in terms of the said agreement dated 28.06.2000 the plaintiff paid Rs.248,734/- each to defendant No.4 and Saghir Ahmed Khan, whereas handed over flat No.6 to defendant No.1, flat No.13 to defendant No.2 on third floor. He temporarily handed over flat No.2 on ground floor to defendant No.2 as at the relevant time flat No.13 was under furnishing stage and also paid an amount of Rs.63,000/- to defendant No.1. After completion of the building in the month of May 2001, the plaintiff requested defendant No.2 to vacate flat No.2 on ground floor and shifted in flat No.13 on third floor in the same building, which was allotted to her as per agreement, but she refused to do so. That in the month of October 2002 when the plaintiff requested the defendants to transfer the suit property in his favour according to the terms of agreement dated 28.06.2000, defendants 1 and 2 avoided to perform their part of obligations and demanded further amount from him, whereas defendants 3 and 4 agreed to transfer their shares in the suit property in favour of the plaintiff. Defendants 1 and 2 also threatened to file a suit for cancellation of the said agreement in case further amount is not paid to them. Said defendants 1 and 2 filed a civil suit bearing No.289/2003 against the plaintiff and defendants 3 and 4 for cancellation of agreement dated 28.06.2000. Hence the plaintiff filed this suit with the following prayers :-

A) Judgment and decree for Specific Performance directing the defendants to transfer the property bearing No.689/690, Block-2, situated at Azizabad, Federal “B” Area, Karachi, measuring 240 Square Yards, and in case of their failure the Nazir of this Hon’ble Court may please be directed to complete the transfer formalities of the said property for and on behalf of the defendants required by KDA for transfer of pre-lease properties for the transfer of property in favour of plaintiff.

B) Declaration to the effect that defendant No.2 is entitled to occupy only the flat No.13, 3^rd floor of property bearing No.689/690, Block-2, situated at Azizabad, Federal “B” Area, Karachi in terms of Agreement dated 28.06.2000.

C) Mandatory injunction directing the defendant No.2 to vacate flat No.2 ground floor of property bearing No.689/690, Block-2, situated at Azizabad, Federal “B” Area, Karachi.

D) Mandatory injunction directing defendant No.5 City District Government (K.D.A. wing) to effect the necessary mutation of property No.689/690, Block-2, situated at Azizabad, Federal “B” Area, Karachi in the name of the plaintiff.

E) Cost of the suit.

F) Any other relief or reliefs which this Hon’ble Court may deem fit and proper in the circumstances of the case.

3. The defendants 1, 2 and 4 in their written statement objected to the proceedings on the ground of jurisdiction of this Court and that the suit is barred under Article 113 of the Limitation Act and the present suit is a counter blast to the suit earlier filed by defendants 1 and 2 bearing suit No.389/2003. It is further alleged that transfer of the suit property in the record of City District Government was effected in the name of Raeesuddin on the basis of false and fabricated documents of gift as such defendant No.1 being the attorney of her late mother Mst.Hamida Khatoon filed civil suit No.133/1998 against her brother Raeesuddin. It is further alleged that all the brothers have duly received their respective shares from the Bungalow of deceased father Zaheeruddin and claim of Raeesuddin was false and baseless. Consequently, said Raeesuddin Khan had surrendered the alleged false gift and a compromise was concluded in the said suit and the suit property was finally got mutated in the names of defendants 1 to 4 in the record of Karachi Development Authority. It is submitted that defendant No.3 is the wife of the plaintiff and the plaintiff was the attorney of defendants 3 and 4 in suit No.289/2003 filed by defendants 1 and 2. That due to continuous persuasion as well as being orphan ladies and unaware of the construction affairs, defendants 1 to 4 have entered into an agreement for construction with the plaintiff. The entire drama of alleged Arbitration prayed by the plaintiff and the alleged Arbitrator subsequently gave an award which was admittedly not made Rule of the Court and the same has no legal sanctity. The plaintiff taking undue advantage of relationship executed the said agreement of construction dated 28.06.2000 in order to usurp lacs of rupees by the pugree/goodwill and rent from the various tenants after constructing the building on the suit property. It is further submitted that the agreement dated 28.06.2000 is only a Construction Agreement and nor for the alleged sale. It is denied that the defendants 1 and 2 have received any alleged share to the rune of Rs.248,734/- for the alleged sale consideration and that Saghir Ahmed is in equal share in the property. It is also submitted that according to the construction agreement the plaintiff had to construct the building on the suit property himself and entire investment was to be made by him, but in violation of the said construction agreement he on the contrary entered into another agreement of construction on behalf of defendants 1 to 4 with one Saeed Khan son of Jahangir Khan on totally different terms and conditions falsely representing himself as their registered lawful General Attorney without any lawful authority from them and without their knowledge or information. It is alleged that the plaintiff has failed to complete the construction of the building according to the said construction agreement dated 28.06.2000. It is also submitted that on 10.07.2001 Karachi Building Control Authority through its demolition squad and the then area S.D.M. demolished the incomplete upper portion of the building unauthorizedly constructed by the plaintiff without permission and without any approved plan. It is further stated that after 10.07.2001 and onward all the actions taken by the plaintiff in respect of construction of the building, selling, renting out the flats against huge amount of pugree/goodwill and rent form the nine tenants of the building at the relevant time without any sort of permission or consent of defendants 1 to 4 who are the co-owners was absolutely unlawful and unauthorized. They prayed for dismissal of the suit.

4. Defendant No.3 was served, but she has failed to file her written statement as such on 18.01.2005 she was debarred from filing the written statement. Defendant No.5 also failed to file written statement. Vide order dated 16.01.2006 suit was ordered to be proceeded exparte against defendant No.5.

5. On 26.04.2010 following issues were framed by this Court;

1. Whether the suit is barred by time ?

2. Whether any cause of action has accrued to the plaintiff to file present suit ?

3. Whether suit is over valued and was not entertainable on the original side of this Court ?

4. Whether agreement dated 28.08.2000 is a contract awarded for construction of building on the suit property and/or an agreement to sale in favour of the plaintiff ?

5. Whether the plaintiff is entitled for any relief ?

6. What should be the decree ?

On 03.02.2014 following issue was added :-

7. Whether the defendant No.4 is the Executant of any of the documents in favour of the plaintiff ?

6. The plaintiff Muhammad Aslam examined himself as PW-1, who produced his affidavit-in-evidence as Ex:P, certified copies of transfer/mutation order dated 27.04.2000 as Ex-P/1, agreement dated 28.06.2000 as Ex-P/2, receipt as Ex-P/3, possession letter as Ex-P/4, judgment dated 24.07.2009 passed in suit No.289/2003 as Ex-P/5, decree dated 24.07.2009 as Ex-P/6, affidavit-in-evidence of Mst.Naseem Dil Afroze filed in suit No.289/2003 as Ex-P/7, deposition of Mst. Naseem Dil Afrozeas Ex-P/8, affidavit-in-evidence of Jamil Ahmed filed in suit No.289/2003 as Ex-P/9, deposition of Jamil Ahmed as Ex-P/10, affidavit-in-evidence of Muhammad Nasir filed in suit No.289/2003 as Ex-P/11, deposition of Muhammad Nasir as Ex-P/12, affidavit-in-evidence of Muhammad Aslam Khan filed in suit No.289/2003 as Ex-P/13, deposition of Muhammad Aslam Khan as Ex-P/14, affidavit-in-evidence of Mst. Tasneem Aslam filed in suit No.289/2003 as Ex-P/15, deposition of Mst. Tasneem Aslam as Ex-P/16, affidavit-in-evidence of Syed Sami Khan filed in suit No.289/2003 as Ex-P/17, deposition of Syed Sami Khan as Ex-P/18.

The defendant No.1 Mst. Naseem Dil Afroze examined herself as DW-1, who produced her affidavit in evidence as Ex:D-1/D, certified copies of transfer/mutation order dated 27.04.2000 as Ex:D-1/D-1, application dated 28.11.2002 to Councilor as Ex:D-1/D-2, six applications dated 10.07.2004, 12.05.2003, 25.11.2002, 27.11.2002, 18.08.2004, 28.11.2002 and 20.08.1984 as Ex:D-1/D-3 to Ex:D-1/D-8, two paid challans dated 06.06.1992 and 20.08.1984 as Ex:D-1/D-9 and Ex:D-1/D10, seven paid challans dated 31.08.1974, 20.08.1986, 30.08.1983, 13.09.1971, 27.10.1987, 22.02.1974 and 12.06.1969 as Ex:D-1/D-11 to Ex:D-1/D-17, two KDA receipts dated 09.07.1971 and 05.05.1972 as Ex:D/1/D-18 and Ex:D-1/D-19, paid challan dated 18.03.1972 as Ex:D-1/D-20, and application dated 23.09.1969 as Ex:D-1/D-21.

The defendant No.2 Mst.Gulnar also examined herself as DW-2, who produced her affidavit-in-evidence as Ex:D-2/D, certified copies of transfer/mutation order dated 27.04.2000 as Ex:D-2/D-1, application to councilor dated 28.11.2002 as Ex:D-2/D-2, six applications dated 10.07.2004, 12.05.2003, 25.11.2002, 27.11.2002, 18.08.2004, 28.11.2002 and 20.08.1984 as Ex:D-2/D-3 to Ex:D-2/D-8, two paid challans dated 06.06.1992 and 20.08.1984 as Ex:D-2/D-9 and Ex:D-2/D10, seven paid challans dated 31.08.1974, 20.08.1986, 30.08.1983, 13.09.1971, 27.10.1987, 22.02.1974 and 12.06.1969 as Ex:D-2/D-11 to Ex:D-2/D-17, two KDA receipts dated 09.07.1971 and 05.05.1972 as Ex:D-2/D-18 and Ex:D-2/D-19, paid challan dated 18.03.1972 as Ex:D-2/D-20, and application dated 23.09.1969 as Ex:D-2/D-21. Mst. Gulnar also examined being the attorney of defendant No.4 and produced her affidavit-in-evidence as Ex:D-4/1, special power of attorney as Ex-D-4/2.

The above witnesses were cross-examined by the other sides.

7. Contentions of learned counsel for the plaintiff were recorded on 20.03.2018, for the sake of continuity reads as under;

“Learned counsel for the plaintiff refreshes the arguments according to which the plaintiff is entitled to the title of the whole of the plot and possession of the ground floor, flat No.2. The said flat is in possession of defendant No.2 whereas she has also in possession of flat No.13 on the third floor. The learned counsel has referred to the issues framed on 26.4.2010 and 03.02.2014. Further he has referred to the evidence as present in the matter and has pointed out that no receipt of any amount have been brought forward on the part of the defendant in support of their contention that the agreement in the matter was only relating to the construction.”

Contentions of learned counsel for defendants 1, 2 and 4 were recorded on 29.03.2018, for the sake of continuity reads as under :-

“Learned counsel for defendants 1, 2 and 4 contends that the agreement relied upon by the plaintiff is a forged and fabricated document wherein attesting witnesses have not been examined. It is further contends on part of learned counsel for the said defendants that the plaintiff has admitted in his cross examination that he is not the builder as he has not produced any document in that respect. Learned counsel further contends that the plaintiff was required to raised construction on the suit plots and that the agreement as relied upon cannot be entertained. Learned counsel further submits that in respect of dismissal of suit No.289/2003 appeal bearing No.259/2009 has been preferred and that suit No.350/2012, which was filed by the defendants for cancellation of documents, was dismissed for non-prosecution by order dated 23.02.2016.

Learned counsel for the plaintiff in rebuttal contends that the defendants had not denied the agreement rather the contents of the same are interpreted as are being alleged. It is further contended on part of learned counsel for the plaintiff that no evidence has been brought up in respect of the claim made and as such the suit is liable to be decreed.”

8. Having heard the counsels and gone through the record before continuing further, I would prefer to recast the issues give my findings thereto and where after the grounds/reasons fallow as under;

1. Whether the suit is maintainable? …………Negative.

2. Whether the plaintiff is entitled to specific performance? If so what terms and conditions? …………………………… Affirmative and as discussed

3. What should the decree be? ……………... Suit of the plaintiff decreed with
costs as discussed.

Issue No.1; Whether the suit is maintainable? The suit is opposed on the ground of limitation, presence of an earlier suit and for specific performance on the basis of the agreement in question not being open to specific performance. The first two are dealt here where as to the matter of specific performance the same is dealt under the second issue. It is stated in the plaint the that the agreement dated 28^th June, 2000 was agreed to between the parties which was refused for specific performance and the defendant Nos.1 & 2 filed suit baring No.289/2003. It is however a matter of record that the defendant Nos.1 & 2 had filed the earlier proceedings for cancellation of agreement referred above (which otherwise stood dismissed on 24-7-2009). The present suit filed on 17-8-2004 as such cannot be said to time barred as the suit of the contesting defendants was filed in the year 2003 establishing refusal. As such findings to this issue are determined in negative.

Issue No.2; Whether the plaintiff is entitled to specific performance? If so what terms and conditions? The agreement dated 28^th June, 2000 is the root of controversy between the parties. According to the plaintiff this is an agreement of sale whereas the contesting defendants see the same as an agreement of construction only. Having gone through the agreement it is apparent that the same is indeed an agreement of construction, but with right and consideration/s agreed to therein for the plaintiff to have a benefit and interest of permanent nature i.e. to alienate the flats constructed thereon (naturally except the flats to be acquired by the other-side). According to the said agreement the contesting defendants are entitled to one flat on upper three stories or the amount agreed (clause 10 irrespective to the cutting/s as the words to this effect are clear) for the plaintiff to build the flats on the subject plots. In my humble understanding in presence of the admitted position coming out of record that the flats indeed stands constructed the controversies as are being raised by the defendants are irrelevant especially to the extent of the plaintiff was himself not the builder as no evidence has been brought for making any payment to the alleged actual builder in order to claim failure of consideration present on part of the plaintiff. The allegations as to failure of timely delivery cannot be entertained in view of Ex.P/4 which stands un-denied. The other objections already stand decided by the judgment referred above.

The defendants have even taken over the possession of the flats, as such the controversy left in the matter is only to the extent of the title/authority and ability of transfer for the flats acquired in consideration of raising the building and the two flats in possession of the defendant No.2. One bearing No.2 on the ground floor and other No.13 being on the 3^rd floor whereas the said defendant is entitled to only one. In the agreement dated 28^th June, 2000 the only restriction to the complete alienation of rights of the subject property is restricted to the roof of the proposed building which is restrained along with the flats as available on the upper three stories and allocated to the relevant defendants. As such it is determined that the plaintiff is entitled to specific performance of the agreement dated 28^th June, 2000 by way of acquiring sub-leases for flats on the ground floor along with the left over flats but subject to the said restraint along with possession of Flat bearing No.2 on the ground floor. The findings to this issue as such in found in affirmative and as discussed. This entitlement shall however be subject to the building control laws and does not entitle the plaintiff to any right in violation thereto.

Issue No.3; What should the decree be ? On account of the findings as found above the suit of the plaintiff stands decreed with costs for specific performance as given under issue No.2 against defendant Nos.1, 2 & 3 and it is further ordered that in case the defendants fail to execute the said sub-lease the plaintiff is entitled to obtain the same from the Nazir of this Court, against subject to the requirements of the building control laws.

The office to prepare a decree accordingly, the suit stands disposed of.

J U D G E