کوئی بھی فرخنگی اگر بغير نعم البدل کے ہوئی ہو تو ایسی فروختکی غیر قانونی ہو گی۔
2018 YLR Islamabad 2452
(a) Specific Relief Act (I of 1877)---
----Ss. 42 & 39---Suit for declaration and cancellation of document---Sale---Proof---Requirements---Contention of plaintiff was that suit property had been transferred without her knowledge and through fraud---Suit was decreed by the Trial Court---Validity---Factum of payment of sale consideration had not been proved through confidence inspiring evidence by the defendant---Any sale without consideration would be void---Burden to prove the contents of a document in addition to proving execution thereof was on its beneficiary who was required to provide reliable, cogent and confidence inspiring evidence to prove its contents even though execution of document might not be in dispute---Execution of document and its contents were distinct items---Neither payment of consideration nor contents of transfer letter were proved in the present case---Alleged sale of suit property and its subsequent transfer stood vitiated in circumstances---Appeal was dismissed in circumstances.
Ahsan Ali and others v. District Judge and others PLD 1969 SC 167; Sahdeo Mauar v. Pulesar Nonia AIR 1930 Patna 598; Suresh Chandra Dam v. Sm. Marani Dassi AIR 1936 Calcutta 378; Ramchandra Rambux v. Cham-Pabai and others AIR 1965 SC 354; Muhammad Anwar v. Muhammad Aslam and others 2012 SCMR 345; Ahsan Ali and others v. District Judge and others PLD 1969 SC 167; Tariq Mahmood v. Muhammad Asghar 1990 CLC 1214; Mst. Zaiton Begum v. Nazar Hussain and another 2014 SCMR 1469 and Feroze Din v. Abdul Sattar and 4 others PLD 2003 Lah. 204 ref.
Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Muhammad Shafi and others v. Allah Dad Khan PLD 1986 SC 519; Siraj Din v. Mst. Jamilan and another PLD 1997 Lah. 633; Mst. Jannat Bibi v. Faqir Muhammad 1998 MLD 837; Mst. Rasheeda Bibi and others v. Mukhtar Ahmad and others 2008 SCMR 1384 and Ghulam Rasool and others v. Noor Muhammad and others 2017 SCMR 81 rel.
(b) Administration of justice---
----When basic order was without lawful authority the superstructure built thereon would fall to the ground automatically.
Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104; Muhammad Nadeem Arif and others v. Inspector-General of Police Punjab, Lahore and others 2011 SCMR 408; Executive District Officer (Edu), Rawalpindi v. Mst. Rizwana Kausar and 4 others 2011 SCMR 1581; Nazir Ahmed Panhwar v. Government of Sindh through Chief Secretary, Sindh and others 2005 SCMR 1814; Executive District Officer (Education), Rawalpindi v. Muhammad Younas 2007 SCMR 1835 and The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 rel.
Sh. Khizar Ur Rashid, Advocate Supreme Court for Appellants.
Ch. Muhammad Jehangir, AHC, Mosin Khan Abbasi, AHC and Jam Khursheed Ahmed AHC for Respondents.
Date of hearing: 9th May, 2018.
ORDER
ATHAR MINALLAH, J.---Through this consolidated judgment we intend to dispose of the instant appeal and the other two connected appeals i.e. R.F.A. No.105/2015 'Mst. Sumera v. Muhammad Iftikhar Alam' and R.F.A. No.142/2015 'Muhammad Iftikhar Alam v. Mst. Sumera. The said appeals have arisen from the consolidated judgment, dated 30-04-2015, passed by the learned Civil Judge 1st Class (West), Islamabad. The impugned judgment stems from Civil Suit No.602/2011 'Mst. Sumera wife of Khan Say Thong v. Zaitoon Jan wife of Muhammad Umar Farooq and 2 others' (hereinafter referred to as the 'First Suit') and Civil Suit No.458/2012 titled 'Muhammad Iftikhar Alam son of Muhammad Ashraf v. Mst. Sumera wife of Khan Say Thong' (hereinafter referred to as the 'Second Suit').
2.The First Suit was filed seeking a declaration, cancellation of document, permanent and mandatory injunction, while through the Second Suit the plaintiff had sought possession and recovery of arrears of rent from 01-06-2011 till the passing of the decree. The dispute between the parties is in respect of House No.145, Street No.73, Sector G-9/3, Islamabad (hereinafter referred to as the 'Property). In the First Suit the defendants, Muhammad Umar Farooq and Ms. Zaitoon Jan, are husband and wife respectively. The latter is step sister of Khan Say Thong son of Khan Souk who is married to the plaintiff in the First Suit, namely, Ms. Sumera. Muhammad Iftikhar Alam son of Muhammad Ashraf, who is the plaintiff in the Second Suit, asserts his right on the basis of transfer of the Property vide transfer letter dated 31-05-2011. The Capital Development Authority (hereinafter referred to as the Authority'), which was arrayed as one of the defendants in the First Suit, has been established under the Capital Development Authority Ordinance, 1960. The Authority exclusively regulates matters relating to the Property. Muhammad Umar Farooq, arrayed as defendant No.2 in the First Suit, was serving as Deputy Director and was later promoted to the post of Director in the Authority when the events giving rise to the cause of action had taken place. The husband of the plaintiff in the First Suit, namely Khan Say Thong, was living abroad to earn a livelihood and had returned to Pakistan in the year 2002. The plaintiff in the first suit, namely Ms. Sumera, asserted in the plaint that she was not literate and that her status was that of a house wife. She had filed her suit on 11-06-2011.
3.The Property was initially owned by Ms. Sumera's mother, namely Ms. Najma Mushtaq, and after she passed away it was transferred in the name of Ms. Sumera pursuant to a settlement between the siblings i.e. the legal heirs. It is not disputed that the building was old and, therefore, Ms. Sumera initially decided to construct an additional storey but, on the advice of Muhammad Umar Farooq, she decided to construct a new house. It is the former's case that, placing reliance on the advice, she had taken this decision in 2003 and that the latter had assured her that he would arrange finances for this purpose. Ms. Sumera's husband had lived almost all his life abroad and was not familiar with the languages of Urdu and English when he returned in 2002. As already noted, all matters relating to the Property are exclusively regulated by the Authority. It is not in dispute that Muhammad Umar Farooq had extended help and assistance to Ms. Sumera in demolishing the old structure and reconstructing the new house. Moreover, according to the version of Ms. Sumera, the understanding was that the financial contribution by Muhammad Umar Farooq was to be reimbursed in monthly installments. An amount of Rs.7.750 million is asserted to have been paid in installments pursuant to this settlement. It is further noted that during the period of construction Ms. Sumera had moved to a rented house with her children and after completion she shifted to the Property in 2004. Ms. Sumera claimed that she came to know in 2011 that the Property had been transferred in the name of Ms. Zaitoon Jan vide transfer letter, dated 25-11-2004, and later in favour of her husband Muhammad Umar Farooq vide transfer letter dated 02-06-2008. Ms. Sumera, therefore, filed the First Suit on 11-06-2011, alleging that the Property had been transferred without her knowledge and through fraud. It was her case that neither was any agreement executed nor was the purported transfer made for consideration. After the First Suit was filed it came to the plaintiff's knowledge that Muhammad Umar Farooq Khan had sold his leasehold rights to Muhammad Iftikhar Alam, i.e. the plaintiff in the Second Suit, vide transfer letter dated 31-05-2011, issued by the Authority and, therefore, the suit was amended.
4.It is an admitted position that Ms. Zaitoon Jan and her husband Muhammad Umar Farooq Khan had a close and cordial relationship with Ms. Sumera. While Ms. Sumera's husband was abroad, Muhammad Farooq Umar Khan and his wife were frequent visitors to the house of the former. Ms. Sumera was a housewife and claims to be illiterate and, therefore, according to her assertion she had reposed trust and confidence on Muhammad Farooq Umar. Muhammad Umar Farooq Khan, who also appeared as attorney for Ms. Zaitoon Jan, admits that on his advice Ms. Sumera had decided to demolish the old building and reconstruct a new house. It is his case that Ms. Sumera could not repay her debts and, therefore, she had decided towards the end of 2004 to sell the Property and in this regard a sale consideration of Rs.15 million was paid and receipt Exh.D-1 was executed by her. The receipt bears the signatures of Khan Say Thong, husband of Ms. Sumera, and Faheem Athar son of Athar Ali. The latter had entered the witness box as DW-4. The Property was initially transferred in the name of Mst. Zaitoon Jan vide transfer letter, dated 30-11-2004, and later in favour of Muhammad Umar Farooq Khan vide transfer letter dated 02-06-2008. The defendants in the First Suit assert that Ms. Sumera and her husband Khan Say Thong had voluntarily attended the relevant office of the Authority and after completion of the requisite formalities, inter alia, affixing thumb impressions and signing several documents, the Property was transferred in the name of Ms. Zaitoon Jan. Payment of Rs.65,000/- per month till the month of June 2008 is admitted by both the parties. However, Ms. Sumaira asserts that it was repayment of the cost of construction to Muhammad Umar Farooq Khan while the latter took the plea that it was payment of rent as had been agreed between the parties. Furthermore, the Property was sold by Muhammad Umar Farooq Khan to the plaintiff of the Second Suit, pursuant to an agreement to sell, dated 28-05-2011. The Property was transferred in the name of the latter by the Authority vide transfer letter, dated 31-05-2011. The Second Suit was filed by Muhammad Iftikhar Alam on 06-06-2012. The First Suit was amended with the permission of the Court on 10-03-2012. The First Suit and the Second Suit were consolidated on 06-02-2013 and thereafter thirteen consolidated issues were framed by the learned trial Court which had emerged from the divergent pleadings. Four witnesses appeared on behalf of Ms. Sumera while thirteen entered the witness box in support of the contesting parties. Some documents were admitted in evidence and marked as 'exibits' while others were placed on record as 'marks'. After affording an opportunity of hearing to the parties, the learned trial Court, vide the impugned judgment and decree, dated 30-04-2015, dismissed the First Suit while the Second Suit was decreed. Consequently, Muhammad Iftikhar Alam was declared as entitled to recover possession of the Property and payment of arrears of rent for such period and at the rates as are mentioned in the decree. The instant appeal has been filed by Ms. Sumera.
5.Sheikh Khizar Ur Rashid, ASC, has appeared on behalf of Ms. Sumera and has contended that; the latter had unequivocally denied selling her rights relating to the Property in favour of the defendants; neither was any agreement executed regarding the sale of the Property nor was consideration paid or received pursuant thereto; Ms. Sumera had a close relationship and reposed trust and confidence in Ms. Zaitoon Jan and particularly in her husband; the husband of Ms. Sumera had lived abroad for more than twenty years and in his absence she had reposed trust and confidence in Muhammad Umar Farooq Khan; the latter was an official of the Authority and was dealing with all matters relating to the Property; he had also obtained permission to demolish the old building and approval of building plans etc.; Muhammad Umar Farooq Khan, by taking advantage of the relationship of trust and confidence, had obtained signatures on blank papers besides getting thumb impressions of Ms. Sumera and her husband; the only document in respect of the purported sale is Exh. D-1; the execution of the said agreement could not be proved nor its contents thereof; assuming that the execution of Exh.D-1 stood established, still the onus was on the defendants in the First Suit to prove payment of consideration; Faheem Athar, who was one of the witnesses of the document Exh. D-1, had unambiguously stated that payment was not made in his presence; it was mandatory to produce two witnesses so as to prove execution of document Exh.D-1; Ms. Zaitoon Jan could not prove payment of sale consideration; the latter also did not appear as a witness; her appearance through her husband as her attorney is sufficient to establish that the factum of payment of consideration could not be proved; the Property was transferred in the name of Muhammad Umar Farooq Khan without consideration; the latter had admitted during cross-examination that he was not aware as to who had prepared the document Exh.D-1; the amount of Rs.77.500 million was paid to Muhammad Umar Farooq Khan as repayment of loan; issues Nos. 2 and 3 were not properly drafted since any dispute relating to rent matters is within the exclusive jurisdiction of the learned Rent Controller; an eviction petition was filed by Muhammad Iftikhar Alam; the learned trial Court erred while deciding issue No. 4 by relying on documents which had been placed on record as marks; disputes relating to rent matters could not have been determined by the learned trial Court and, therefore, issues Nos. 5 and 7 have been wrongly decided by the learned trial Court; the learned trial Court was required to decide each issue separately as is provided under Order XX, Rule 15 of the C.P.C.; the separate issue regarding payment of sale consideration had not been framed; no suggestion was made regarding payment of sale consideration during the cross-examination of Ms. Sumera or her husband Khan Say Thong; Ms. Zaitoon Jan was a house wife; the photograph of Ms. Sumera on Exh.D-1 is not original but a scanned copy; Exh.D-1 does not mention any date; the latter does not pay any income tax and the same is in the case of her husband; Muhammad Umar Farooq Khan had taken the plea of collecting the amount of sale consideration from his relatives and then paying it in cash to Ms. Sumera; it was admitted by Muhammad Umar Farooq Khan that Exh. D-4 was not an attested document; Muhammad Iftikhar Alam is engaged in the business of 'property dealing' and that he is incarcerated being nominated in a criminal case registered under section 302 of Pakistan Penal Code; DW-5, namely Mian Muhammad son of Noor Ahmed, could not name the relatives from whom the amount which was paid as sale consideration had been collected; possession throughout has remained with Ms. Sumera; an eviction petition was filed by Muhammad Iftikhar Alam and was later withdrawn.
6.The counsel who appeared on behalf of the respondents, namely learned advocates Ch. Muhammad Jahangir and Mohsin Khan Abbasi, have argued that; the case of the latter is entirely based on documentary evidence particularly the documents issued and maintained by the Authority; a presumption of truth is attached to the documents issued by the Authority; the plea taken by Ms. Sumera and her husband besides being unbelievable could not be proved; the learned trial Court had properly assessed and evaluated the evidence; the conclusion drawn in the light of the recorded evidence does not suffer from any misreading or non-reading; the suit of Ms. Sumera was rightly dismissed; Ms. Sumera was not able to establish her case by producing confidence inspiring evidence; Ms. Sumera had surrendered all her original titled documents at the time when the Property was transferred in the name of Ms. Zaitoon Jan; the plaint in the First Suit is silent regarding the document Mark-V; the document Mark-V was produced by the officials of the Authority and, therefore, sanctity is attached thereto; the appellant has paid water-allied charges and property tax after 2004 in the name of defendants, as is evident from the document placed on record as Mark-M; from December 2004 till May-2011 an amount of Rs.5.5 million was paid by Ms. Sumera; the said amount was paid on a monthly basis as rent; neither Ms. Sumera nor her husband have denied their signatures on Exh.D-2; the evidence of Ms. Sumera and her husband is not confidence inspiring; the plea that they had signed blank papers is absurd and unbelievable; the Property was sold to Ms. Zaitoon Jan because Ms. Sumera and her husband were facing a financial crisis; DW-5 is the brother of Khan Say Thong, who has confirmed the stance of the defendants; Ms. Sumera and her husband have admitted their signatures on Exh.D-1, D-2 and Mark-R; the onus to prove the plea of fraud was on Ms. Sumera; Reliance has been placed on the case titled "Ahsan Ali and others v. District Judge and others" [PLD 1969 SC 167]; valuable rights have accrued in favour of the defendants; the evidence brought on record contradicts the assertion that Ms Sumera is an illiterate; Ms. Sumera had admitted during cross-examination that she had sold and purchased other properties and was also operating a bank account; she had also lived in Switzerland; she was familiar with the formalities and procedure relating to transfer of land or property by the Authority; on the date when the Property was transferred in the name of Ms. Zaitoon Jan, Ms. Sumera was accompanied by her husband; all documents were signed and thumb impressions were affixed on the documents at the time of transfer of the Property; the fact that Ms. Sumera is not an illiterate stands established from the evidence brought on record; the transfer of Property in the name of Ms. Zaitoon Jan has been confirmed by the Authority; Muhammad Iftikhar Alam has the status of a bona fide purchaser; the latter had proved that the Property was transferred in his name by Muhammad Umar Farooq Khan for valuable consideration. In support of their contentions the learned counsel have relied on the cases "Sahdeo Mauar v. Pulesar Nonia" [AIR 1930 Patna 598], "Suresh Chandra Dam v. Sm. Marani Dassi" [AIR 1936 Calcutta 378], "Ramchandra Rambux v. Cham-Pabai and others" [AIR 1965 SC 354], "Muhammad Anwar v. Muhammad Aslam and others" [2012 SCMR 345], "Ahsan Ali and others v. District Judge and others" [PLD 1969 SC 167], "Tariq Mahmood v. Muhammad Asghar" [1990 CLC 1214], "Mst. Zaiton Begum v. Nazar Hussain and another" [2014 SCMR 1469] and "Feroze Din v. Abdul Sattar and 4 others" [PLD 2003 Lahore 204].
7.The learned counsel have been heard and the record perused with their able assistance.
8.The controversy between the parties is regarding the sale and transfer of,the Property, initially in the name of Ms. Zaitoon Jan, followed by subsequent transfers in favour of Muhammad Farooq Umar and Muhammad Iftikhar Alam respectively. It is an admitted position that Muhammad Umar Farooq Khan, at the relevant time, was a senior official of the Authority. It is also not denied that all matters in respect of the Property are regulated and dealt with by the Authority. The close relationship between the parties is also not denied. The status of Ms. Sumera as housewife is not denied and her educational qualification being matriculation could not be established by Mohammad Farooq Umar Khan. The latter's advice to construct a new house instead of constructing an additional storey having been acted upon by Ms. Sumera despite financial constraints is also admitted. Ms. Sumera had unambiguously deposed that she had reposed trust i.e. on Mohammad Farooq Umar while the latter during cross-examination had stated;
Ms. Sumera's reliance, credence, trust or confidence relating to Mohammad Farooq Umar also finds support from reading the evidence as a whole and the attending circumstances. The latter's occupation, expertise and the role of the Authority highlights the significance of this reliance, trust and confidence reposed by Ms. Sumera. The husband of Ms. Sumera, who had little familiarity with the languages of Urdu and English, affirms the importance of Mohammad Farooq Umar's role while dealing with the matter. All these factors placed the latter in a position where he ought to have exercised diligence, since a relationship of reliance, trust and confidence gives rise to a duty of care. It is admitted by both the parties that Ms. Sumera had not intended to sell the Property nor did her financial status allow her to construct a new house. After the completion of the house, Ms. Sumera shifted there with her family in 2004. Both the parties admit that till July 2008 Ms. Sumera had made payments on a monthly basis. The latter, however, asserts that she had been paying installments even later as reimbursement of the contribution by Mohammad Farooq Umar towards the cost of construction. There is no document brought on record to show that there was a written rent agreement till July 2008. A few days before the filing of the First Suit an agreement to sell in respect of the Property was executed between Mohammad Iftikhar Alam and Mohammad Umar Farooq Khan. At that time Ms. Sumera was in possession of the Property and living there with her family. A portion was also rented out vide agreement exhibited as Ex P 4, 5 and 6. Admittedly, despite the Property having been in possession of Ms. Sumera and her family, Mohammad Iftikhar Alam went ahead with the transaction without any attempt of making Ms. Sumera privy to the agreement to sell, dated 28-05-2011, or to seek her written consent for vacating the Property. Mohammad Iftikhar Alam admits to have been engaged in the business of construction and dealing with matters relating to real estate. Moreover, the Property was not put on the market for sale but rather Mohammad Iftikhar Alam asserts that Zulfiqar Ahmed (Dw-2) who had experience of property dealing for more than fifteen years had been informed by his brother in law, a colleague of Mohammad Farooq Umar regarding the latter's intent of sale.
9.There was no written agreement regarding the sale of the Property between Ms. Zaitoon Jan or her husband and Ms. Sumera. The only written document relied upon by Mohammad Umar Farooq is a receipt which was produced in evidence and marked as Ex D-1. It bears the signatures of Ms. Sumera and two witnesses, namely Khan Say Thong (PW 2) and Faheem Athar (DW 4). The date recorded by the signatories is 25-11-2004. It is an acknowledgment by Ms. Sumera of receiving Rs. 15 million from Ms. Zaitoon Jan as consideration for the sale of the Property and that, in presence of the witnesses, having written the receipt. Neither Ms. Zaitoon Jan nor Mohammad Umar Farooq Khan are signatories of the document Ex D-1. It also has a scanned image of a photo of Ms. Sumera. The latter and her husband explicitly denied having executed such a document. They took the plea that, reposing trust and confidence in Mohammad Umar Farooq, they had signed and affixed thumb impressions on several papers because the latter was dealing with matters relating to the Authority. However, they unequivocally denied executing any document having the contents stated in the receipt, Ex D-1 or receiving the amount mentioned therein. Mohammad Umar Farooq deposed that receipt Ex D-1 was prepared by Khan Say Thong. Faheem Athar (Dw 4) stated that he had signed the said document in the 'drawing room' of Mohammad Umar Farooq's house but could not give a plausible explanation as to how his CNIC number was printed on it. He had unambiguously stated that payment was not made in his presence. Except for this unusual document there is no other written understanding between the parties. During cross-examination Faheem Athar had deposed as follows:--
10.It is obvious from the above that this witness was not sure whether Ms. Sumera was present at the time of execution of the document Exh. D-1. Muhammad Umar Farooq Khan had entered the witness-box as DW-6. A plain reading of his examination in chief and cross-examination shows that he had laften a specific plea of paying an amount of Rs.15 million as consideration for the sale of the Property. According to his deposition the payment was made in cash. He claimed that he had collected the amount from his relatives whom he could not identify. His wife Ms. Zaitoon Jan was a house wife and did not have an independent source of income. Mohammad Umar Farooq Khan could also not bring on record any document to show sources of income other than his salary as an official of the Authority. He also could not bring on record any document to establish that, as an official of the Authority, he had declared the Property in his statement of assets. The plea of Ms. Sumera on the other hand was to the effect that there was no sale and, therefore, the question of payment or receiving sale consideration did not arise. The plea taken by Muhammad Umar Farooq Khan that the sale consideration was paid in cash inevitably became critical in the peculiar facts and circumstances of this appeal. A heavy onus had shifted on him to prove the payment of sale consideration in cash. We are afraid that the deposition, particularly the cross-examination of Mohammad Umar Farooq does not inspire confidence, while on the other hand Ms. Sumera (PW-1) and Khan Say Thong (PW-2) were consistent and their version remained unshaken despite protracted cross-examination. It is settled law that without consideration any sale is void. The august Supreme Court in case titled "Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi" [PLD 1990 SC 1] has observed and held that section 25 of the Contract Act, 1872 declares all those agreements void which are without consideration except the exceptions which have been created by the law itself. The august Supreme Court in the case titled "Rehmatullah and others v. Saleh Khan and others" [2007 SCMR 729], placing reliance on an earlier judgment reported as [PLD 1986 SC 519] rendered in case titled "Muhammad Shafi and others v. Allah Dad Khan", has held that there is no sale in the eyes of law if payment of sale price to the original owner cannot be proved.
11.Ms. Sumera had denied the sale itself let alone the receiving of any sale consideration. The factum of payment of sale consideration was therefore to be proved by Muhammad Umar Farooq Khan or his wife, namely Ms. Zaitoon Jan. This had become inevitable in the backdrop of the nature of the relationship of reliance and trust reposed by Ms. Sumera and, above all, the position of Mohammad Umar Farooq Khan in the Authority. We are afraid that the factum of payment of sale consideration in cash could definitely not be proved through confidence inspiring evidence. The deposition of Mohammad Umar Farooq was uncertain and dicey. When a seller denies sale and receiving of consideration, the purchaser is heavily burdened with the onus to prove, fulfilling his or her obligation, if the plea is that of payment of a substantial amount in cash, that too in absence of any written understanding and sufficient sources of income. It becomes pivotal when there is a relationship of trust and confidence, more so when the beneficiary also holds a responsible position in the organization which regulates matters relating to the concerned property. Mohammad Umar Farooq Khan and Ms. Zaitoon Jan had totally failed to prove that the amount mentioned in the document Ex D-1 i.e. Rs 15 million was paid to Ms. Sumera in cash. There was, therefore, no sale in the absence of payment of sale consideration. Consequently the transfer vide letter dated 25-11-2004 and the proceedings relating thereto were void and stood vitiated. The relationship of the parties was such that Mohammad Umar Farooq Khan owed a duty of care towards Ms. Sumera. The latter placed reliance and had reposed trust and confidence in the former. The learned counsel for the respondents have heavily relied on the actual transfer of the property from the name of Ms. Sumaira to Ms. Zaitoon Jan. They have also placed reliance on the receipts of property tax issued by the Authority. In the peculiar facts and circumstances of the instant case, particularly when Mohammad Umar Farooq Khan was holding a responsible position in the Authority and there was a relationship of trust and confidence, the latter owed a duty of care. He was required to have clearly informed Ms. Sumaira regarding the purpose of her presence in the Authority. The time when necessary permissions were being sought from the Authority for demolishing the old building and construction of a new house was the same. There is nothing on record to show that any person other than Mohammad Umar Farooq was dealing with the authority on behalf of Ms. Sumaira. Hence, proof of payment of sale consideration was the most crucial factor in the peculiar facts and circumstances of this case.
12.There is also another important dimension relating to the document Exh. D-1. This is the sole written document relied upon by Mohammad Umar Farooq Khan and Ms. Zaitoon Jan which had led to the alleged transfer of the Property in favour of the latter. The signatures were not denied by the signatories. However, its contents were explicitly denied by Ms. Sumera and her husband while the same could not be proved by Ms. Zaitoon Jan or her husband Muhammad Umar Farooq Khan. It is settled law that the execution of a document and its contents are distinct. The burden to prove the contents of a document in addition to proving the execution thereof is on the beneficiary of such a document. The beneficiary is required to provide reliable, cogent and confidence inspiring evidence to prove its contents even though its execution may not be in dispute. Proof of execution has been held as not being synonymous with proof of its contents. Reliance is placed on the cases titled "Siraj Din v. Mst. Jamilan and another" [PLD 1997 Lah. 633] and "Mst. Jannat Bibi v. Faqir Muhammad" [1998 MLD 837]. The judgment of the Lahore High Court rendered in the case of Siraj Din v. Mst. Jameela and another" supra was cited with approval by the august Supreme Court in the case titled "Mst. Rasheeda Bibi and others v. Mukhtar Ahmad and others" [2008 SCMR 1384]. The burden to prove the contents of the document Exh. D-1 was on Ms. Zaitoon Jan and Muhammad Umar Farooq. The former did not personally enter the witness-box and was represented by the latter as an attorney. However, the contents could not be proved.
13.We therefore hold that neither the payment of consideration nor the contents of the document exhibited as Ex. D-1 could be proved and thus the puported sale of the Property was void and the transfer of the Property in the name of Ms. Zaitoon Jan and subsequent transfers stood vitiated. It is settled law that if the foundation is void then the superstructure also falls to the ground. Reliance is placed on.
14.We now advert to the plea taken by Muhammad Iftikhar Alam. i.e. being a bona fide purchaser. The Property was transferred in his name by the Authority vide letter dated 31-05-2011, pursuant to an agreement to sell, dated 28-05-2011, executed with Muhammad Umar Farooq Khan. The former had entered the witness-box as DW-1. He deposed that he had visited the Property and had met Ms. Sumera in the presence of Zulfiqar Ahmed DW-2. he had also the presence of Zulfiqar Ahmed DW-2. He had also deposed that Ms. Sumera had given him an assurance that she would vacate the Property. These assertions were expressly denied by Ms. Sumera. It is also in evidence that no rent was paid to Muhammad Iftikhar Alam and that he filed the Second Suit on 06-06-2012. The august Supreme Court, in the case titled "Ghulam Rasool and others v. Noor Muhammad and others" [2017 SCMR 81], has described the essential ingredients regarding a bona fide purchaser and the same in the language of the august Court are as follows:--
"The essential ingredients of this section are, (a) that the transferor was the ostensible owner; (b) that the transfer was made by consent express or implied of the real owner; (c) that the transfer was made for consideration; and (d) that the transferee while acting in good faith had taken reasonable care before entering into such transaction. These four imperative/ essential ingredients must co-exist in order for a person to takes the benefit of the equitable principle, however, merely on account of some error committed by the revenue staff in the revenue record unintentional or deliberate or motivated which excludes the name of the lawful owner of the property therefrom and the property, shown to be in the name of some other person who is not the owner of the whole or a part thereof by itself shall not deprive and denude the true and actual owner from the title of the property and this by no means can be construed that the transfer to the person claiming protection of the rule of equity ibid by a person who actually is not the owner is being made by consent express or implied of the real owner."
15.Admittedly, Muhammad Iftikhar Alam, at the time of executing the sale agreement dated 28-05-2011, had been engaged in the business of construction for a considerable time. He had entered into the transaction through Zulfiqar Ahmed DW-2, who had experience of more than fifteen years as a property dealer. Ms. Sumera was in possession and was living with her family in the Property. She had also rented out a portion of the Property. No prudent and experienced person engaged in the business of construction and dealing with real estate would have taken the risk of entering into the sale agreement without either making Ms. Sumera privy thereto or obtaining her written consent. Moreover, entering into an agreement to sell only a few days before the filing of the First Suit raises questions regarding the conduct of Mohammad Iftikhar Alam as a bona fide purchaser. He had deposed that he had taken the responsibility of vacating the property. We are afraid that, in the facts and circumstances narrated above, the latter had failed to take reasonable care before committing himself. Moreover, the transfer of the Property in his name was based on the purported title of Ms. Zaitoon Jan which has already been declared as void. It is settled law that when the basic order is without lawful authority then the super structure built thereon also falls to the ground automatically. Reliance is placed on the cases titled "Rehmatullah and others v. Saleh Khan and others" [2007 SCMR 729] and "Yousaf Ali v. Muhammad Aslam Zia and 2 others" [PLD 1958 SC 104], 'Muhammad Nadeem Arif and others v. Inspector-General of Police Punjab, Lahore and others' [2011 SCMR 408], 'Executive District Officer (Edu), Rawalpindi v. Mst. Rizwana Kausar and 4 others' [2011 SCMR 1581], 'Nazir Ahmed Panhwar v. Government of Sindh through Chief Secretary, Sindh and others' [2005 SCMR 1814], 'Executive District Officer (Education), Rawalpindi v. Muhammad Younas' [2007 SCMR 1835] and 'The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin' [PLD 1992 SC 207].
16.For what has been discussed above we hold that the transfer of the Property in the name of Ms. Zaitoon Jan, vide letter dated 25-11-2004 and all subsequent orders and transactions based thereon void and, therefore, of no legal effect. Consequently, R.F.A. No. 104/2015, titled "Ms. Sumera v. Ms. Zaitoon Jan and 3 others" and R.F.A. No. 105/2015, titled "Ms. Sumera v. Muhammad Iftikhar Alam" are allowed, having the effect of setting aside the impugned judgment and decree, dated 30-4-2015, R.F.A. No. 142/2015, titled "Muhammad Iftikhar Alam v. Ms. Sumera" fails and is accordingly dismissed. The First Suit is decreed in favour of Ms. Sumera. The office is directed to draw the decree sheet accordingly.
ZC/71/Isl Order accordingly.
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