ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

SUIT No. 538 of 2002

                                                                                                                                               

            Date                                 order with signature of Judge                                                

 

1.         For hearing of CMA No.3168/02

2.         For hearing of CMA No.3773/02

3.         For hearing of CMA No.4589/03

4.         For issues

 

07.11.2008

 

Mr. Mirza Sarfraz Ahmed Advocate for the plaintiff.

M/s. Suhail H.K. Rana and Suhail Zafar Advocates for defendant No.1.

M/s. Khizar Askar Zaidi A.A.G and Ahmed Pirzada Advocate for the defendants No.4 to 6

 

Mr. Shehzad Shahani Advocate for the defendants No. 9 to 11

 

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(2)&(3):           These are two applications U/O VII Rule 11 CPC for the rejection of the plaint respectively filed by defendants No.1 and 3. No objection to these applications has been filed by the plaintiff. The defendant No.3 in its application has raised the following objections.

 

   “(a)               That the land in suit viz. S.No.2,3,4, 5 & 6 Deh Songal claimed by the plaintiffs on the basis of lease from Pinjrapur Trust Karachi who has no right, title and interest therein as held by this Court in 1982 CLC 1175 (copy enclosed). The present suit is not maintainable and barred by the principle of res judicata.

 

(b)        That the land vests in Federal Government and has been under the control and management of Evacuee Trust Property Board who in pursuance of the orders of this Court in C.P. No. D-744/1989 leased it along with S.No.7 in favour of defendant No.1 for the consideration of Rs.2,79,68,000/- for a period of 99 years by means of registered Sale Deed bearing registered No.3874 dated 11.9.1999 and possession was also delivered to them (copies enclosed).

 

(c)                That the suit is barred under Section 14 of the Evacuee Trust Properties (Management & disposal) Act XIII of 1975 as well as MLR-57.

 

(d)               That the claim of the plaintiffs based on Lease Deed by unauthorized person Mr. Chatroomal, is fraudulent and unlawful.”

 

 

The Counsel for the defendant No.1 has argued that the plaint is liable to be rejected as the plaintiffs have no cause of action for the suit. In his submission, he has supported the objections contained in the application of defendant No.3 and relied upon the judgment in the case of Madhavji Dharasibhai Vs. The Karachi Panjrapur Association (PLD 1957 SC 83) and Shiri Mahant Bawa Manobhagir Mangalgir Vs. Divisional  Evacuee Trust Committee (1982 CLC 1175) and the order dated 01.6.1995 passed in C.P No. D-744/1989. Against this, the only submission made by the learned Counsel for the plaintiffs is that the plaintiffs claim themselves to be the owners of the suit land by virtue of two Lease Deeds both dated 08.12.1998 signed and registered by Trustees, Pinjrapur Karachi in favour of the plaintiffs, photocopies of which have been filed as annexures ‘A’ and ‘B’ to the plaint.

 

No submission was made by the learned A.A.G or by Mr. Ahmed Pirzada Advocate for defendants No.4 to 6 nor by Mr. Shehzad Shahani learned Counsel for the defendants No.9 to 11.

 

The plaintiffs in the plaint has claimed that there is an agricultural land in Survey Nos. 2,3,4,5 & 6 in Deh Songal, District Malir, Tapo Gujjro belonging to the defendant No.8 the Panjrapur Trust Karachi which is non Evacuee Trust property. The defendant No.8 through two registered lease deeds both dated 08.12.1998 has leased to the plaintiffs total area of 34.02 acres from the said survey numbers and that occupancy value and ground rent in respect of the two lease deeds have been paid and annual rent is to be paid for 99 years. It is alleged that the plaintiffs attempted to obtain mutation on the basis of the two lease deeds but could not succeed in it. It is alleged that the defendant No.8 has assured the plaintiffs that the leased property is non evacuee property and referred to the judgment of the Hon’ble Supreme Court in Civil Appeal No.4/1957 reported in PLD 1957 SC 83 and to Suit No. 760/1995, copy of which are enclosed to the plaint as annexures C & D. It is alleged that when the plaintiff No.1 approached the office of the Mukhtiarkar on 17.2.2002 for mutation and demarcation of the leased land, he was informed that the suit land had already been sold by the defendants No.2 & 3 to the defendant No.1 of which mutation has already been made. It is alleged that the plaintiffs informed of the situation to the defendants No.9 to 11 co-owners who declined to join the plaintiffs against the defendant for filing the suit. It is alleged that the cause of action arose to the plaintiffs finally on 17.4.2002 when they learnt of selling of the suit land by the defendants No.2 and 3 to the defendant No.1.

 

The first question that needs to be considered is that what is the status of the suit land which is claimed by the plaintiffs on the basis of two registered lease deeds. In the judgment reported in PLD 1957 SC 83 as noted above, the question was about the determination of the status of Karachi Pinjrapur Association formed by Hindu citizens of Karachi under a license granted by Central Government which was registered under the Companies Act with object of promoting religion, charity or any other useful object which prohibits the payment of any dividend to its members. The Hon’ble Supreme Court came to the conclusion that Karachi Panjrapur Association is an evacuee but on account of its objects in terms of section 6 of Pakistan (Administration of Evacuee Property) Ordinance, 1949 the property of the association shall vest in the Custodian temporarily till such time fresh trustees are appointed in the manner provided by law and pending such appointment, the trust property and the income thereof has to applied for carrying on the purpose of the trust and an investigation be made as to the nature of the properties held the association and the manner in which the income derived there-from was spent. In the case reported in 1982 CLC 1175 which is a Division Bench judgment of this court, the petitioner Shiri Mahant Bawa Manobhagir Mangalgir had challenged two orders, one dated 22.1.1978 of the Chairman, Evacuee Trust Board and the other dated 29.7.1978 of the Joint Secretary, Ministry of Religious and Minority Affairs by a constitution petition. By these two orders agricultural lands bearing Survey Nos. 361 to 367 and 176 to 178 of Deh Gujro, Tapo Songal and Survey Nos.2,3,4,5,6 and 7 of Deh Songal were held to be in the name of Trustees Pinjrapore and treated as Evacuee Trust Properties belonging to Karachi Pinjrapore Association. The contention of the petitioner that the properties mentioned in the two orders were not possessed by the association and were not the Trust properties was answered by the court as follows:

 

“ This contention of the learned counsel has no force. It is admitted before us that right from the very beginning the status of the Association as an evacuee was under dispute and the controversy was set at rest finally by the order of the Supreme Court dated 31.1.1957 in the case of Mahadavji Dharsibhai v. K.P.A., where the association was held to be an evacuee. The result of the above order of Supreme Court clearly was that all the properties held by the association were treated as evacuee properties. Apart from it, the Custodian of Evacuee Properties, by his order dated 26.3.1960, held that all the properties belonging to association were evacuee trust properties. This order, it is admitted before us, was not challenged by the present petitioner at any time. The present petitioner, who alleges to have the control and management of the agricultural land, made an application on 25.4.1977, to the Chairman, Evacuee Trust Board, complaining of alleged interference with his right of management and praying for deletion of these properties from the list of evacuee trust properties. The Chairman, Divisional Trust Committee took up the matter and after holding enquiry came to the conclusion that Prinjapore Association and Trustees, Pinjrapore, are one and the same and that the properties which are shown in the name of Trustees Pinjrapore, are in fact the properties belonging to Karachi Pinjrapore Association. The revision petition filed by the petitioner against the above order also failed. We have not been able to discover anything in these orders which could render them either illegal or orders without jurisdiction. The clear import of the order of Custodian dated 20.3.1960 was that all the properties held by the Association were treated as Evacuee Trust Properties and by the impugned orders the Chairman, Divisional Evacuee Trust Committee and Joint Secretary, Ministry of Religious Affairs and Minorities Affairs, also took the same view. The findings of the respondents Nos.2 and 3 that Trustees, Pinjrapore and Karachi Pinjrapore Association are one and the same is based on cogent reasoning and find full support from the order of Custodian of Evacuee Property, dated 26.3.1960. There is no merit in this petition, which is dismissed summarily.”

 

 

As regards Suit No.760/1995, it appears that it is a copy of order dated 30.11.1973 of the Custodian B.P.Sindh, Hyderabad, whereby the application of Shiri Mahant Bawa Mangalpuri for deletion of Wadho Akharo and Pinjrapore Trust Properties from the record of Evacuee Trust Board was disposed of being without jurisdiction with observation that applicant should approach the Chairman Evacuee Trust Properties Board.

 

From the unreported order dated 01.6.1995 in a C.P. No. D-744/1989 which is of Division Bench of this Court, it appears that the respondent No.3 in the said petition namely the Deputy Administrator Evacuee Trust property had advertised in daily Dawn and Jang offering 99 years lease of some land. The petitioner who is defendant No.1 in this suit made offer for purchasing of compact block of land of 73.01 acres comprising of survey Nos. 2 to 7 (Deh Songal, Tappo Songal, Karachi District Malir) which was accepted by the respondent No.3 but the transaction was annulled under MLR 57 and through this constitutional petition, petitioner sought declaration that MLR 57 was ultra vires of the constitution. An observation is made in this order that M/s. Lawvin Traders Limited and Syed Abdul Majeed had also purchased some land from the respondent No.3 and their cases finally reached the Hon’ble Supreme Court where the respondents had agreed to transfer the land to the two purchasers on the present market value which was accepted by the Hon’ble Supreme Court and the matter was remanded to the High Court for determination of the market price. The respondents in this constitutional petition also offered to sell the land to the petitioner  on the market value determined by the Court. The Court as it appears, followed the order of the Hon’ble Supreme Court in the case of M/S Lawvin and Syed Abdul Majeed and proceeded to determine the market value of the land and directed that on payment of the balance sale price the respondent shall transfer the lease hold rights of the subject land to the petitioner and disposed of the petition. Upon this order, lease deed of absolute ownership of the land in the petitioner was executed, registered and mutation was also made.

 

So far the land, which is claimed by the plaintiff to have been leased to them by Trustees Pinjrapore Karachi, it may be noted that in the two reported judgments, one of Hon’ble Supreme Court and the other of Division Bench of this court, as noted above, it has been held that Karachi Pinjrapore Association is an Evacuee and its properties are evacuee trust properties. In the reported judgment of this court, as noted above, the land claimed by the plaintiff was specifically involved and the court has held it to be an evacuee trust property with further observation that Karachi Pinjrapore Association and Trustees Pinjrapore are one and same and the properties, which are shown in the name of Trustees Pinjrapore, are in fact properties belonging to Karachi Pinjrapore Association. Section 6 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 (the Act) provides that all evacuee trust properties shall vest in the Federal Government. Section 4(1) of the Act provides that general supervision and control of all evacuee trust properties shall, subject to any direction that may be given by Federal Government vest in the Board and the Board shall take such action as it deems fit for the proper management, maintenance and disposal of such property  in accordance with provision of this Act and the rules, scheme, directions made or issued thereunder.  Clause (d) & (e) of sub section (2) provides for the disposal of the property and these clauses are as follows:

 

“(d)                  to sell, dispose of, or transfer to such person or body, and on such terms and conditions, as the Federal Government may direct or, with the prior approval of the Federal Government, make an endowment of, or otherwise manage, evacuee trust property consistent with the objects of this Act or a Scheme or for any other object approved by the Federal Government;

 

(e)                 to mortgage or lease any evacuee trust property in accordance with the instructions of the Federal Government;”

 

 

In the face of above provision of law regarding the disposal of the evacuee trust property, the two leases of the land, which is claimed by the plaintiff to have been leased to them by Trustees Pinjrapore, does not appear to have any ground to stand on as the land being evacuee trust property, Trustees Pinjrapore had no authority to sell or lease the same to the plaintiffs and defendants No.9 to 11. Nothing has been pleaded in the plaint to show as to how Trustees Karachi Pinjrapore became entitled to lease the suit land to the plaintiffs and defendants No. 9 to 11 which was an evacuee trust property as per the two reported judgments, as noted above. The Act specifically states that all evacuee trust properties shall vest in the Federal Government and the Board has been constituted for the general supervision and control of the evacuee trust properties and it has also provided the manner, in which, Board can dispose off such properties, which is on such terms and conditions as the Federal Government may direct or under instructions of Federal Government. The two leases, upon which plaintiff has based its claim in the suit in their favour and in favour of defendant No. 9 to 11, are apparently of evacuee trust property vested in the Federal Government, which could not have been leased to the plaintiffs and defendant Nos. 9 to 11 by Trustees Pinjrapore. The leases are contrary to the provision of Evacuee Trust Properties (Management and Disposal) Act, 1975, and therefore, void instrument and can not be allowed to remain in the field as in the terms of section 39 of the Specific Relief Act, both the leases have to be cancelled. The transaction of the land claimed by the plaintiff on the basis of two leases being contrary to the provision of the Evacuee Trust Property (Management and Disposal) Act 1975, the plaintiffs cannot have a cause of action for the suit which is based upon leases which are patently illegal and not sustainable in law nor do such leases confer any right in the properties mentioned therein in favour of the plaintiffs. The net result of it is that the applications under Order VII Rule 11 CPC are liable to be allowed and plaint rejected. All other pending applications are also disposed off. The copy of this order with photocopies is two lease deeds both dated 08.12.1998 shall be sent to the Registrar of Assurances for making necessary note of cancellation of the said two leases in the book.

 

            The matter, however, does not end here, as it requires further deliberation of circumstance under which the lease of the land came to be made by Javed Bashir son of Chodhry Bashir Ahmed, Assistant Administrator, Evacuee Trust Board in favour of defendant No.1 namely the Professional Builder. As noted above, in the reported judgment of Hon’ble Supreme Court, Karachi Pinjrapore Association and its properties were held to be evacuee and in terms of sub-section (2) of Section 6 of Pakistan (Administration of Evacuee Property) Ordinance, 1949 was vested in the Custodian only temporarily till such time as fresh trustees are appointed in the manner provided by the law. In the latter reported judgment of Division Bench of this court the leased lands were specifically held to be evacuee trust properties in which a portion of Custodian order dated 26.3.1976 has been reproduced which is as follows:

 

“ For the reasons given above, disagreeing with the views expressed by the Additional Custodian in his report dated the 11th June, 1959, I hold that the case is clearly covered by subsection (3) of section 7 of the Act, and, therefore, until the appointment of new trustees, the properties held by the Karachi Pinjrapore Association and their income will have to be applied, as far as possible for fulfilling the purposes of the trust. The order dated the 18th August, 1953, passed by the Deputy Custodian Karachi, is, therefore, modified accordingly.”

 

Such order of Custodian was in the field until the judgment dated 20.10.1981 was delivered by the Division Bench of this court in the reported case. Further, as noted above, the Board was authorized to sell or lease the evacuee trust properties, only on the terms and conditions as may be directed by the Federal Government or in accordance with the instructions of Federal Government, which is not mentioned at all in the lease. The court, which has passed the order dated 01.6.1995 in C.P.No. D-744 of 1989 was not at all apprised of two reported judgments one of Supreme Court and other of Division Bench of this Court in which it is noted that the properties of Karachi Pinjrapore Association or Trustees Pinjrapore being Hindu religious trust are temporarily under the management and control of the Custodian until the appointment of fresh trustees in accordance with law. The Evacuee Trust Board apparently was not competent to sell or lease the properties of the Hindu religious trust more-so when there appears to be no direction with terms and conditions nor instructions of the Federal Government to do so. It only smacks of collusion and fraud and needs rectification by following the legal provisions. The Chairman Evacuee Trust Board is directed to take immediate action in this regard and communicate the same to MIT of this court within a period of three months. A copy of this order be sent to Chairman Evacuee Trust Board, Islamabad for necessary compliance.

 

 

 

J U D G E