IN THE HIGH COURT OF SINDH AT KARACHI
SUIT NO. 741 / 2003
M/s Trans Asia……………….……………………………….Plaintiff
Vs
Atique Saeed through legal heirs………………….Defendant(s)
For hearing of CMA No. 4956 of 2015.
Date of hearing: 03.04.2015
Mr. Mansoor ul Arfain Advocate for plaintiff.
Mr. Rizwana Ismail Advocate for Defendant(s).
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Through listed application the Defendant No.1(ii) on behalf of the Defendant(s), who are all legal heirs of Defendant No.1, has sought restraining order(s) against the Nazir of this Court from taking further steps for Execution of Judgment dated 2.6.2006 and Decree dated 21.6.2006 in the instant Suit. Learned Counsel for the Defendant(s) has contended that instant Suit was decreed vide aforesaid judgment and thereafter decree was prepared against which High Court Appeal No. 352 of 2006 was preferred which has also been dismissed vide judgment dated 30.12.2014 against which the Defendant(s) have not preferred any further appeal. Learned Counsel for the Defendant(s) has contended that in view of judgment dated 2.6.2006 passed by the learned Single Judge in the instant matter, the Commissioner was appointed to inspect the site in question, who had submitted his report on 26.8.2006, whereby, certain steps were required to be taken for division of the property in question, therefore, the Nazir who intends to proceed in the matter after passing of judgment dated 30.12.2014, in High Court Appeal No. 352 of 2006, be restrained from proceeding any further until physical verification of the Suit property is carried out. Per learned Counsel, the Nazir intends to execute Sale Deed even in respect of the area, which is not part of the agreement in question and is beyond the mandate of the judgment and decree passed in the instant matter.
2. Conversely learned Counsel for the plaintiff has contended that insofar as the Suit property is concerned, the same does not require any physical verification, as the property in question purchased by the plaintiff was on the basis of lease deed dated 12.8.1985 along with Site Plan issued / executed in favor of the predecessor of interest of Defendant No. 1 (since deceased) issued by the then Karachi Development Authority, wherein the area of the property in question was clearly mentioned and demarcated. Per learned Counsel such documents were Exhibited as P/11 and available in the evidence file at page 59. Learned Counsel has also referred to para 12 of the judgment dated 30.12.2014 passed in High Court Appeal No. 352 of 2006. In view of such submissions learned Counsel has prayed for dismissal of instant application.
3. I have heard both the learned Counsel and perused the record. Insofar as the facts in the instant matter are concerned, they are not in dispute, as the plaintiff had filed instant Suit seeking specific performance of Agreement of Sale dated 4.2.2003, which was allowed vide judgment dated 2.6.2006 and decree dated 21.6.2006 against which two separate High Court Appeals were preferred by the legal heirs of Defendant No.1, namely one Mr. Umair S/O Atiq Ahmed bearing No. 360 of 2006 which was dismissed by a learned Division Bench of this Court vide judgment dated 1.12.2014, whereas, the other appeal filed by the siblings of the other appellant bearing HCA No. 352 of 2006 has also been dismissed vide judgment dated 30.12.2014. Insofar as High Court Appeal No. 360 of 2006 is concerned, the same was dismissed on the ground of limitation, whereas, High Court Appeal No. 352 of 2006 has been dismissed by the learned Division Bench on merits of the case. Insofar as the case of the plaintiff is concerned, the Plaintiff is seeking Execution of Sale deed through the Nazir of this Court on the basis of prayer clause “(c)” in the instant Suit, which has been decreed in their favour by the learned Single Judge vide judgment dated 2.6.2006 which reads as under:-
“On the failure of Defendant(s) to comply with the aforesaid direction the Nazir of this Hon’ble Court be directed to get the sale deed executed before the Sub-Registrar and the property be mutated / transferred in the record of Defendant(s) No. 2 and complete all formalities as required by Defendant(s) No. 2 and to put the plaintiff into physical possession of the property.”
4. Similarly in para 3 of the decree dated 21.6.2006 the following directions have been recorded:-
“The failure of Defendant(s) No. 1 to comply with the aforesaid direction the Nazir of this Hon’ble Court be and is hereby directed to get the sale deed executed before the Sub-Registrar and the property be mutated / transferred in the record of Defendant(s) No. 2 and to put the plaintiff into physical possession of the property.”
5. Thereafter, on dismissal of High Court Appeal No. 352 of 2006, at the request of the plaintiff, the Nazir has initiated the process of executing the Sale deed in favor of the plaintiff and the objections raised on behalf of the Defendant(s) have been dismissed by the Nazir against which instant application has been filed on behalf of the Defendant(s). The precise objection being raised on behalf of the Defendant(s) is to the effect, that in view of the findings of the learned Single Judge in judgment dated 2.6.2006 with regard to issue No. 3, the plaintiff is only entitled for an area admeasuring 4081.94 square yards having construction of 6200 square feet, in respect of the property in question, whereas, the total area of the property in question is 5251.8 square yards having constructed area of 11450 square feet as reported by the learned Commissioner in his report dated 16.8.2006 prepared on the directions contained in the aforesaid judgment. It is the case of the Defendant(s) that since the area of the property in question exceeds the area for which the plaintiff is entitled pursuant to judgment and decree as referred to hereinabove, and if the sale deed is executed by the Nazir, the same will also include the area for which the plaintiff is not entitled. On perusal of the record and the judgment dated 02.06.2006 and decree dated 21.06.2006 passed by the learned Single Judge it appears that the learned Single Judge in the judgment dated 02.06.2006, while recording finding with regard to issue No.3, had also disposed of CMA No. 6996 of 2004 filed on behalf of Defendant(s), through which a request was made to the Court to appoint a Commissioner for the purposes of ascertainment of the exact area of Suit Property in question. It would be advantageous to refer to the findings of the learned Single Judge in this regard which reads as under.
Issue No. 3: The agreement of sale Ex. P/4 is not disputed. The defendant No. 1 has also not disputed the receipt of Rs. 12,80,000/- and Rs. 4,00,000/-. The defendant No. 1 has disputed the area of plot and construction raised thereon. According to sale agreement the area of plot is 4081.94 square yards and the constructed area is 6200 square feet. The defendant No. 1 in written statement submits that the area of plot is 5016 square yards and constructed area is more than 10000 square feet. The burden is upon defendant No. 1 to prove this factual controversy through evidence, inspiring confidence. The defendant No. 1 produced copy of allotment order, copy of site plan, copy of authority for execution of lease, copy of search certificate, copy of lease, copy of sale deed, copies of receipts for payment made to KDA and copy of transfer / mutation letter as Ex. D/3 to D/11. In all these documents the area of plot is mentioned as 4081.94 square yards. The plaintiff has produced copy of NOC (Ex. P/10), copy of acknowledgment of possession (Ex. P/13), which contains the area of plot as 4081.94 square yards. The plaintiff has also produced copy of PT-I as Ex. P/16, which contains the area of plot as 4081 square yards with constructed area of 6200 square feet. The above documents clearly established that the area of plot is 4081.94 square yards and the constructed area is 6200 square feet. The defendant No.1 has pleaded a fact which is in contradiction of the documents produced by him and the burden is upon him to prove. The oral assertion of defendant No. 1 is not tenable and oral evidence cannot be looked into in presence of undisputed documentary evidence. In his cross examination the witness of the defendant No. 1 could not dispute the area of plot and the area of conduction. In cross he deposed that “the property is not divisionable [sic] and in case it is divisible I am ready to convey the property to the plaintiff. If the entire property is taken I will sell it for three crore rupees. If the law permits I will convey the property in accordance with the sale agreement and title documents.” From the above it is clear that there is a binding contract between the parties and the defendant No. 1 is liable to perform the same.
The defendant No 1 filed CMA No. 6996 of 2004. By order dated19.1.2006 it was ordered that application be taken up along with arguments. The defendant No. 1, by the application, had prayed for appointment of commissioner to find out the area / size of plot and the construction thereon and to submit report whether the plot and construction can be partitioned. The plaintiff has filed counter affidavit and opposed the inspection of the plot.
It is an admitted position that the plaintiff has purchased the plot having area of 4081.94 square yards together with 6200 square feet constructed area. The plaintiff is only entitled to specific performance of agreement to the extent of area mentioned in the sale agreement. If the plot has any area in excess of what is mentioned in the agreement the plaintiff has no right to claim and defendant No.1 is at liberty to use the same. The inspection report cannot be substitute of evidence. However, the same can be used in aid of evidence. The defendant No. 1 has not produced any evidence in this regard. However, in the interest of both the parties and to avoid any controversy at execution stage I appoint a Commissioner to inspect the site and to submit his report as under:-
1. To submit the report with regard to the area of plot in question.
2. To submit the report with regard to the constructed area of plot.
3. In case the area of plot is more than 4081.94 square yards and constructed area is more than 6200 square feet submit a plan showing partition / division of the plot in question. While making a plan the learned Commissioner may provide independent entrance for both the plots.
Mr. Yousuf Moulvi, Advocate, having office at Court Chambers, is appointed Commissioner to carry out the inspection and to submit his report as above. The fee of the Commissioner will be Rs. 15,000/- to be paid directly by the plaintiff to the Commissioner who will inspect the site after notice to both the parties and their learned counsel and submit his report within fifteen days from the date of receipt of this order. The application is disposed of in the above terms.”
6. Therefore, once the Court had come to a definite finding with regard to the total area and size of the property in question and had also observed that “the Plaintiff is only entitled to specific performance to the extent of area mentioned in the Sale Agreement” and further that “the inspection report cannot be a substitute of evidence and can only be used in aid of evidence” and that “the Defendant had failed to produce any evidence in this regard”, there was no occasion left for carrying out or ordering any inspection and to seek a report in this regard to have any assistance from it at the time of execution stage. The final judgment was passed prior to any inspection, whereas, the decree was required to be prepared on the basis of judgment and at the execution stage, even if the report suggested otherwise, the executing Court cannot go beyond the judgment and decree which had already been passed before any inspection could be carried out and a report be prepared. Therefore, reliance now being placed on the report of Commissioner by the learned Counsel for the Defendant(s), at this stage of the proceedings is of no help and is rather misconceived. Even otherwise, on perusal of the record, it appears that objections were filed on the report of the Commissioner on behalf of the Defendant(s) on 26.09.2006, however, with respect; I may observe that instead of raising any relevant or substantial objections, including the one which is now being raised through listed application, the learned Counsel then appearing on behalf of the Defendant(s) had ventured into raising legal objections in respect of the entire Suit and even the judgment which had already been passed in the matter, whereas, an objection was even raised on the authority of the Commissioner, to suggest a course, including any partition of the property, as according to the learned Counsel the Commissioner had no commission in that regard. On the contrary, through listed application, an altogether opposite stance has been taken on behalf of the Defendant(s), being oblivious of the fact that the Commissioner’s report had already been disputed by them vide objections dated 26.09.2006.
7. Further, on perusal of cross examination of Defendant(s) witness namely, Abdullah Saeed S/o S. Muhammad Saeed (Attorney / Brother) of Defendant No.1, it is noticed that the said witness had admitted that as per Sale Agreement (Exh: P/4), the area of the property in question was 4081.94 Sq.Yds. with a covered area of 6200 Sq.Ft. The witness had further stated that he is approaching KDA for regularization of extra land and construction. Finally the witness had stated that the property in question is not divisible, and if divisible then I am ready to convey the same to the Plaintiff. However, such assertions of the witness were verbal and without producing any supporting documents and the witness had failed to bring in his evidence any such material or document which could substantiate the claim of the Defendant(s) regarding area of the property in question.
8. Moreover, the learned Division Bench while deciding HCA 352 of 2006 has also taken note of the issue of the alleged excess land as contended by the Defendant(s) through listed application and it would be advantageous to refer to the finding of the learned Division Bench in its judgment dated 30.12.2014 in High Court Appeal No. 352 of 2006 wherein at Para 11 & 12 of the judgment the same has been discussed in the following manner:-
“11. Perusal of agreement Exhb. P/4 reveals that description of the property is given in the agreement of sale available at page No. 71 of the appeal i.e. “ALL THAT piece and parcel of Industrial Plot of land bearing No. 8/2-B, Sector 17, measuring 4081.94 Square Yards, Korangi Industrial Area, Karachi together with covered area of 6200 square feet” while the sale consideration of Rs. 12,800,000/- (Rupees twelve million eight hundred thousand only) with part payment made is written in clear terms. It is pertinent to note that at no stage the appellant / Defendant(s) No. 1 had denied execution of the agreement the plea of difference in area of the plot and covered area for the first time is raised in written statement for which local Commissioner Advocate Yousuf Molvi was appointed for the purpose of avoiding any controversy at execution stage, who submitted his report dated 16.8.2006 available at page 101 of the R & Ps. According to this report the area of the plot on measurement was found as 5251.8 square yards and constructed area about 11,450 square feet.
12. In sale of immovable property cases obviously the detail in respect of the area of the property is always provided by the Vendor as he is the one who is holding the title document detailing the description of the property. In the instant case, the lease deed and other title documents describing the property in possession of the appellant clearly reflects the area of the property as 4081.94 square yards which was sold to the respondent in its entirety and the appellants / vendor has sold all that what he had to respondent / vendee. The difference between the leased area of land and the actual area found is also immaterial as the excess area is the State Land which at he best could be allotted to the lessee of the adjoining land which in this case was the appellant / vendor but once he has sold the leasehold rights in respect of the plot through which he could have sought regularization of the excess land then he has also sold the right for getting that portion regularized. The plea in the circumstances is totally malfide and afterthought. Now we come to the difference between actual covered area and the one found mentioned in the agreement which again is immaterial as it was not the case of the appellant that he intended to retain certain portion of the constructed area which even otherwise was not possible for the vendor as he had sold the entire leased land to the respondent / vendee. The PTI exhibited details covered area as 6200 square feet which was sold in entirety it was the vendor who knew about the actual constructed area and it is not the case of the appellant that he intended to retain certain portion or the sale consideration was agreed on the basis of per square feet and wrong calculation has effected the sale price the agreement reflects the sale price is in lump sum and the appellant / vendor had sold out whatever the land along with construction he had. For the purpose of issue No. 2 we find agreement containing material facts, therefore, findings of the trial Court to this issue calls for no interference.”
9. From perusal of the aforesaid finding of the learned Division Bench, there is nothing left in the matter with regard to the dispute of excess area, if any, which is now being raised on behalf of the Defendant(s) as the learned Division Bench has categorically held that in fact there is no dispute with regard to the area of the property in question and even if there is any extra land, the same is the State Land, for which the Defendant(s), after selling the property in question, now has no right to claim or have it regularized in its favor. It is further noted that in fact the plaintiff has sought specific performance of agreement dated 4.2.2003 in respect of property bearing No. 8/2 B, Sector-17, measuring 4081.94 square yards Korangi Industrial Area, Karachi, together with covered area of 6200 square feet which the deceased father of the Defendant(s) had acquired from one Syed Ahmed Irfan S/O Capt. S. Muhammad Irfan vide Sale Deed dated 23.11.1989, Registered No. 5208, Book No. 1, Sub-Registrar T-Division XV, Karachi dated 23.11.1989, M. F. Roll No. 1154 Photo Registrar, Karachi dated 30.11.1989. On perusal of the agreement as aforesaid and the sale deed exhibited in the evidence along with the site plan, it appears that at the very first instance the area of the land in question already stood demarcated by KDA and therefore, with utmost respect, there was no need to appoint any Commissioner in the instant matter, whereas the plaintiff has also through its pleadings and during hearing of instant application, has made submissions that the Plaintiff is not seeking Execution of Sale Deed in respect of any excess area and is only entitled for execution of Sale Deed in respect of the plot / property as stated in the Sale Agreement 4.2.2003 and Sale Deed dated 30.11.1989 which already stands demarcated and does not require any further physical inspection or other verification.
10. It may also be pertinent to observe that much stress has been laid on the Commissioner’s report dated 16.08.2006 on behalf of the Defendant(s), whereby some suggestion were submitted to the Court to have the property partitioned or bifurcated, however, firstly it may be noted that a Commissioner’s report prepared on the directions of the Court, is not necessarily to be acted upon by the Court mandatorily. The Court has to and must examine the report and secondly, as already observed by the learned Single Judge in its judgment dated 02.06.2006, that a Commissioner’s report is not a substitute of evidence on record and can only be an aid in evidence, whereas the Defendant(s) have failed to lead any evidence which could corroborate with the pleadings and documents on record, foremost being the Sale Deed and the Site Plan. Therefore, this Court cannot act upon the Commissioner’s report in the given facts and circumstances of the instant case.
11. In view of hereinabove facts and circumstances of the instant case and the findings of the learned Division Bench in High Court Appeal No. 352 of 2006 as referred to hereinabove, I am of the view that the listed application is misconceived in facts and law, whereas the Defendant(s) have not been able to bring before this Court any supporting material or evidence which could compel this Court to exercise any discretion in favor of the Defendants at this stage of the proceedings as the Judgment and decree in the instant matter has attained finality after dismissal of High Court Appeal, against which no further Appeal has been preferred by the Defendant(s). Accordingly, listed application was dismissed by means of a short order on 3.4.2015 and above are the reasons for such short order.
J U D G E
ARSHAD/