Order Sheet
IInd Appeal No.223 of 2020
[Zulqarnain
vs. The Registrar Cooperative Housing Societies & others]
Syed Masroor Ahmed, advocate for the appellant.
Mr. Khalique Ahmed Siddiqui, advocate for
respondent No.6.
Ms. Deeba Ali Jaffri,
AAG Sindh.
Date of Hg. & Order
10.02.2026.
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ARSHAD HUSSAIN KHAN, J. The Appellant
through instant IInd Appeal has assailed the judgement dated 12.10.2020 and decree dated 14.10.2020, passed by the learned IX-Additional District & Sessions Judge
(MCAC), Karachi-East in Civil Appeal No.164 of 2017, which was dismissed by
maintaining the judgment and decree dated 29.05.2017,
passed by the Vth Senior Civil Judge, Karachi (East) whereby the suit of
the appellant was dismissed. Above
said judgments and decrees hereinafter referred to as the impugned judgment.
2. Briefly stated,
facts giving rise to the present Appeal are that the appellant’s late father, Muhammad Mobin S/o Muhammad Yaseen, was a
member of the M/s Lucknow Co-operative Housing Society (respondent No.2) and
was allotted Plot No.547-C, measuring 160 sq. yards, situated at Korangi,
Karachi (the “subject property”), vide Allotment Order No.301 dated 01.09.1965,
after payment of the entire consideration. It is alleged that despite repeated
requests, respondent No.2 failed to issue a possession certificate. After the
death of the appellant’s father, the matter could not be pursued promptly due
to family circumstances. According to the appellant, all development charges
had been paid and no dues were outstanding. In July 2008, the appellant claims
to have discovered that respondent No.2 had sold the subject property to
respondent No.6, who had taken possession and initiated construction in
collusion with respondents No.1 to 5. It is further alleged that the property
was unlawfully transferred among respondents No.3 to 7. Consequently, the
appellant filed Suit No.1255 of 2008 for declaration, possession, cancellation
of documents, and permanent injunction. The suit was dismissed on 29.05.2017 by
the learned Vth Senior Civil Judge, Karachi-East. Civil Appeal No.164 of 2017
was also dismissed on 12.10.2020 by the learned IXth
Additional District & Sessions Judge, Karachi-East. The present Second
Appeal challenges these concurrent findings.
3.
Learned counsel for the appellant contends that
the impugned judgments passed by both the Courts below suffer from legal
infirmities and have resulted in a miscarriage of justice. He submits that the
subject property was duly allotted to the appellant’s deceased father, who had
paid all development charges as demanded by respondent No.2, and that no
arrears were outstanding. He further argues that no notice of cancellation of
allotment was ever issued to the deceased, and that these material facts were
not properly appreciated by the Courts below. It is further contended that the
impugned judgments were rendered without proper application of judicial mind
and without due consideration of the oral and documentary evidence produced by
the appellant, and are thus contrary to law and the record. Lastly, learned
counsel submits that the case involves substantial questions of law within the
meaning of Section 100 CPC; therefore, this Second Appeal warrants interference
and the concurrent findings are liable to be set aside.
4.
Learned counsel for respondent No.6, while
supporting the impugned judgments of the Courts below, contends that the
appellant’s deceased father failed to clear outstanding dues despite repeated
demands by respondent No.2, whereupon the allotment was lawfully cancelled and
the plot was re-allotted to other allottees in accordance with law and
procedure. He submits that respondent No.6 is presently the lawful owner of the
subject property and is in possession thereof, holding all relevant title
documents. It is further contended that the appellant has approached the Court
with unclean hands and has concealed material facts. Learned counsel maintains
that the concurrent findings are well-reasoned, based on proper appreciation of
oral and documentary evidence, and suffer from no legal infirmity. He lastly
prays that the present Second Appeal be dismissed with costs.
5.
Learned AAG Sindh supported the impugned judgments of both
the Courts below and submits that the same are well-seasoned and in accordance
with law and no illegality or irregularity is appearing therein, which warrants
interference. She prays for dismissal of the appeal.
6.
Heard learned counsel for the parties and perused the
material available on the record.
A perusal of the material
available on record reflects that the subject property was initially allotted
to the deceased father of the plaintiff. However, the allotment was cancelled
by respondent No.2, namely M/s Lucknow Co-operative Housing Society, under
Section 18(2) of its by-laws and the terms and conditions of the allotment
order, on account of non-payment of dues from July 1995 to July 2008, despite
issuance of several notices, including a public notice published in the daily Jang
dated 24.10.2007, as well as a cancellation letter dated 14.11.2007. Subsequent
to such cancellation, the property was allotted to respondent No.3, Umar Daraz, who sold it to respondent No.4, Nizamuddin.
Thereafter, respondent No.4 transferred the same to respondent No.5, Nawab Ali,
in whose favour the Society effected transfer.
Respondent No.5 obtained approval of the site plan from the Karachi Buildings
and Control Authority on 01.07.2008 and later sold the property to respondent
No.7, Muhammad Sajid S/o Muhammad Sadiq, through a registered conveyance deed.
Respondent No.7 subsequently transferred the property in his name and
thereafter sold it to respondent No.6 through a registered sale deed.
Respondent No.6, after completing all formalities, got the property transferred
in his favour by the Society vide Transfer Order
dated 14.07.2008. The record further shows that the appellant instituted Suit
No.1255 of 2008, inter alia, for cancellation of the subsequent allotments,
transfers and registered instruments. After a full-dress trial, the learned
trial Court dismissed the suit vide judgment and decree dated 29.05.2017. Civil
Appeal No.164 of 2017, preferred against the said judgment, was also dismissed
vide judgment dated 12.10.2020. The appellant has now impugned the decisions of
the courts below in the present proceedings.
7.
From a perusal of the judgments impugned in the present
proceedings, it appears that both the Courts below thoroughly examined the
evidence led by the parties and reached a concurrent conclusion that the appellant
miserably failed to establish his case by producing any
positive or cogent evidence. The record also transpires that during
cross-examination the appellant made several material admissions. He conceded
that no payment receipt was produced showing payment to the Society after
12.02.1995, and that no dues had been paid for the preceding twelve years. He
further admitted that he had not received any demand notice prior to
cancellation, and that he was unaware whether the registered A.D. notice dated 16.03.1998
had been received by Mst. Rizwana
(sister of the deceased allottee). The appellant also acknowledged that he had
not filed any power of attorney on behalf of his other legal heirs in respect
of the suit, and that although his letter of administration had been cancelled,
he was unaware of the date of such cancellation. He admitted that the Society
had published a general notice dated 24.10.2007 in the daily Jang
regarding outstanding dues. He further stated that his father had expired in
2002, yet no intimation of his death was given to the Society, nor was any
inquiry made regarding outstanding dues. He also admitted that no
correspondence was produced to show that his deceased father remained in
contact with the Society from 1995 to 2002.
8. It is well settled that a second
appeal lies before the High Court only on limited grounds, namely: (a) where
the impugned decision is contrary to law or usage having the force of law; (b)
where a material issue of law or such usage has not been determined; or (c)
where there exists a substantial error or defect in procedure, as prescribed by
the Code of Civil Procedure or any other law for the time being in force, which
may have materially affected the decision on merits. In the instant case, however, none of the aforementioned
statutory grounds is attracted.
9. It
is also well settled law that concurrent findings of facts by the courts below
cannot be disturbed by the High Court in the second appeal, unless the courts
below while recording the findings of fact have either misread the evidence or
have ignored the material piece of evidence[1]. Besides, the concurrent findings of fact recorded by the two courts
below are entitled to deference and cannot be interfered with in the absence of
any legal infirmity, jurisdictional error, or misreading of evidence. Learned
counsel for the appellant has failed to point out any such material
irregularity.
Foregoing are the reasons of my short order dated
10.02.2026 whereby this second appeal was dismissed being
devoid of any merit.
Naveed PA
[1] Keramat Ali and another v. Muhammad Yunus Haji and another (PLD 1963 SC 191), Phatana v. Mst. Wasai and another (PLD 1965 SC 134) and Haji Muhammad Din v. Malik Muhammad Abdullah (PLD 1994 SC 291).