PLJ 2023 Lahore (Note) 42
Civil Procedure Code, 1908 (V of 1908)--
----O.VII R. 11--Specific Relief Act, (I of 1877), S. 8--Suit for possession and damages was partially decreed to extent of possession--Suit property was purchased by predecessor of appellants--Inheritance mutation was sanctioned in favour of legal heirs--Transfer of suit land was challenged--Question of transfer of suit property was decided up to level of Supreme Court--Concealment of previous litigation by appellants--Application for rejection of plaint--Allowed--Appeal--Challenge to--Ownership of suit property has finally and conclusively been determined in favour of respondents uptill level of August Supreme Court of Pakistan and High Court or Court below has no lawful authority to revisit matter--Suit property was allotted to Dr. Ghulam Mohy-ud-Din and subsequently devolved upon respondents through process of law--Appellants concealed previous litigation between parties and tried to protect their possession by filing a fresh suit, they were not entitled for any relief from trial Court--It is a settled principle of law that who comes to Court must come with clean hands therefore, they were not entitled for any relief from learned trial Court.
[Para 15, 16 & 22] A, B & C
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11--Rejection of plaint--A trial Court while deciding application under Order VII rule 11 of, CPC not only rely upon contents of pleadings as well as documents appended with plaint but can also rely upon documents, which are submitted by defendants and are not denied by plaintiffs’ side--Appeals dismissed. [Para 22] D
Mr. Muhammad Ilyas Sheikh, Advocate for Appellants.
Mr. Kalim-ud-Din Malik, Advocate for Respondent No. 2.
Mr. Pervaiz Ahmad Awan, Advocate for Respondent No. 1.
Date of hearing: 18.10.2016.
PLJ 2023 Lahore (Note) 42
[Rawalpindi Bench, Rawalpindi]
Present: Muhammad Ameer Bhatti and Atir Mahmood, JJ.
Mst. NASIRA MASHOOD etc.--Appellants
versus
MUHAMMAD AHSAN BASHIR etc.--Respondents
R.F.A. No. 143 of 2012, decided on 18.10.2016.
Judgment
Atir Mahmood, J.--This judgment shall dispose of R.F.A. No. 143 of 2012 and R.F.A. No. 273 of 2013 as common questions of law and facts are involved in both these appeals.
2. Through this regular first appeal, the appellants have impugned the judgment and decree dated 27.03.2012 passed by learned Civil Judge 1st Class, Rawalpindi, whereby the suit filed by the plaintiffs-respondents-plaintiffs for damages and possession was partly decreed.
3. At the very outset, it was submitted by the learned counsel for the appellants in R.F.A. No. 143 of 2012, that due to recent amendments in Section 18 of the Civil Court Ordinance, 1962, pecuniary jurisdiction of the District Court has been enhanced and this appeal be transmitted to the learned District Court to decide the same on merits. On the other hand, learned counsels Tor the respondents submitted that the valuation of the connected appeal i.e. RFA No. 273 of 2013 is Rs. 10,000,0000/-and the same could only be decided by this Court, therefore, sending this appeal to the District Court will not serve any lawful purpose.
4. Admittedly, the property which is subject matter of both these appeals is the same and the points involved in both these appeals are also the same which is with regard to the title/ownership of the suit property. Under Section 24 of the CPC, this Court has ample power to withdraw any suit, appeal or other proceedings pending before any subordinate Court and can dispose of the same by itself. The R.F.A. No. 143 of 2012 was filed before this Court according to the pecuniary jurisdiction of this Court at the relevant time. Though on account of .subsequent amendments in Section 18 of the Civil Court Ordinance, 1962, ordinarily this appeal would have been transmitted/ sent to the concerned District Court but in the present case the connected RFA No. 273 of 2013 can only be heard and decided by this Court within its pecuniary jurisdiction.
5. As above-mentioned, the suit property in both these appeals is the same and the points involved in both these appeals are also the same, therefore, we are of the considered opinion that sending the R.F.A. No. 143 of 2012 to the learned District Court will be a’ futile exercise and there may be a conflict of judgments. When the learned counsel for the appellants was confronted with this legal proposition, he opted to argue the case on merits.
6. The brief facts of the case are that the respondents-plaintiffs (hereinafter referred as respondents) filed a suit for damages and possession against the appellants-defendants (hereinafter referred as appellants) alleging therein that they are successor-in-interest of Muhammad Bashir Ali, Advocate (deceased) who became owner of the suit land by virtue of its allotment by the Settlement Authority fully described in Para No. 1 of the plaint after slashing from evacuee property House No. BB/654, Eidgah Road, Rawalpindi which was allotted to Dr. Ijaz-ul-Haq Khan on the basis of permanent transfer deed and according to the settlement scheme he was allowed to retain three time of plinth area of the house and remaining excess land measuring 6 kanals 5 marlas bearing Khasra No. 7017/2963 and 7016/2963 was resumed by Settlement Authorities as Urban Agriculture Land which was allotted and transferred to one Dr. Ghulam Mohy-ud-Din and his legal-heirs sold the property to one Fazal Ahmad, who further sold it to Muhammad Bashir All, Advocate (deceased) vide Mutation No. 8717 dated 24.02.1968, the predecessor of the present appellants Muhammad Bashir Ali, death an inheritance mutation in favour of his legal heirs was sanctioned and subsequently his widow namely Mat. Quresh Akhtar also died and her share was further inherited by her legal heirs i.e. Plaintiffs Nos. 1, 2 and 4 to 6. It was also alleged in the suit that after sale of one kanal piece of land out of total property by Muhammad Bashir Ali to Lt. Col. (R) Javaid Sultan Butt, Plaintiff No. 7, Dr. Ijaz-ul-Haq Khan, predecessor-in-. interest of Defendants Nos. 1 and 2 challenged the allotment and transfer of suit land to Ghulam Mohy-ud-Din claimant vide RL II No. 237 dated 12.05.1964 before the Settlement Authorities and having failed to get any relief, he unsuccessfully approached Lahore High Court twice in writ jurisdiction and also could not succeed in August Supreme Court in appeal and review petition was also rejected vide order dated 18.01.1981. Thus, the matterjbecame conclusive as between Dr. Jjaz-ul-Haq und successor-in-interest of Ghulam Mohy-ud-Din, the priginal transferee. Another episode started whom son-in-law Of Dr. Ijaz-ul-Haq aamely Mashood Ahmad Khan, deceased husband of Mst. Nasira Mashood, Defendant No. 1 launched baseless proceedings in Courts of law and also moved the Board of Revenue for cancellation of original allotment of Dr. Ghulam Mohy-ud-Din. However these proceedings before the Member, Board of Revenue/ Settlement Commissioner were quashed by the Lahore High Court, Rawalpindi Bench, being coram-non-judice vide its order dated 05.06.1994 which was challenged by said Mashood Ahmad and on his death by his widow present Defendant No. 1 before the August Supreme Court of Pakistan. The Hon’ble Supreme Court of Pakistan vide its order dated 18.11.2000, dismissed the appeal of Defendant No. 1. There-after, the defendants started negotiation with the respondents for purchase of the suit land but the price offered by them was far below the market value, hence, their offer was rejected.
7. The suit was contested by the Defendants Nos. 1, 2, 2-A to 2-E by filing their written statement alleging therein that the respondents have concealed the material facts from the learned trial Court, hence they are not entitled to any relief under the law. Out of the divergent pleadings of the parties, the following issues were framed:-
1. Whether the plaintiffs are entitled to get the possession of suit land? OPP;
2. Whether the plaintiffs are entitled for initial damages for trespassing to the tune of Rs. 2,00,000/-from the defendants? OPP
3. Whether the plaintiffs are entitled for recurring damages worth Rs. 10,00,000/- per annum till vacation of suit land? OPP
4. Whether the plaintiffs have no cause of action to file , the instant suit against the answering defendants? OPD
5. Whether plaintiffs have not come to the Court with clean hands and they are not entitled for relief? OPD
6. Whether the plaintiffs have not affixed the proper Court fee. If so what would be the value of the Court fee? OPD
7. Whether suit is bad for mis-joinder and non-joinder of necessary parties? OPD
8. Whether suit property was allotted to the predecessor in interest of the answering defendants on 30.03.1963? OPD
9. Whether predecessor in interest of defendants and thereafter defendants have raised construction over the suit property. If so its effect to the case? OPD
10. To what relief, if any, are the plaintiffs are entitled.
The parties led their respective evidence. After hearing the arguments of the learned counsel for the parties and perusing the record, the learned trial Court partially decreed the suit filed by the respondents only to the extent of recovery of possession subject to costs of the suit while remaining claim of the respondents is discarded vide judgment and decree dated 27.03.2012. Hence these appeals.
8. Learned counsel for the appellants submitted that the judgment of the learned trial Court is not sustainable as it suffers from material misreading and non-reading of evidence; that the learned trial Court failed to frame the proper issues as there was a question of limitation regarding which neither any issue was framed nor there is any finding of the learned trial Court in that regard; that the possession of the property remained with the predecessor of the appellants i.e. Dr. Ijaz-ul-Haq since its allotment in the year 1963; that the suit was liable to be dismissed on account of non-joinder of necessary party as all the legal heirs of Dr. Ijaz-ul-Haq were not impleaded as defendants; that the appellants have constructed the suit property after obtaining the due sanction from the concerned authorities and the site-plan produced as Exh.D9 is sufficient; proof to establish the possession of the appellants over the suit property before the year 1995.
9. On the other hand, learned counsel for the respondents vehemently opposed this petition and emphasized that the question of ownership of the property has finally and conclusively been decided upto to the level of August Supreme Court in the earlier round of litigation and the only dispute which arose subsequently was the possession of the property which was forcibly taken over by the appellants in the year 2003.
10. Arguments heard. Record perused.
11. There are two points for determination by this Court. Firstly, as to whether, the suit\property is owned by the respondents and the question of ownership has finally and conclusively been decided by the August Supreme Court of Pakistan and secondly, as to whether, the suit was barred by time and no relief could be given to the respondents on the basis of a time barred claim and in this regard a specific issue was to be framed by the learned trial Court.
12. First question is the pivotal question qua the status of the parties and in this regard it is an admitted fact between the parties that the suit, property was originally part of an evacuee House No. BB 654, Eidga Road, Rawalpindi (“The House”) which was allotted to Dr. Ijaz-ul-Haq, the predecessor-in-interest of the present appellants evacuee from Azad Jammu and Kashmir. Admitted position is that excessive area from three times of plinth area of the allotted house to Dr. Ijaz-ul-Haq after slashing there-Prom measuring 6 kanals and 5 marlas bearing Khasra No. 7017/2963 and 7016/2963 was resumed allotted/transferred to Dr. Ghulam Mohy-ud-Din by the Settlement Authorities vide order dated and after his death his legal heirs sold the property to one Fazal Ahmad, who further sold it to Muhammad Bashir Ali, Advocate vide Mutation No. 8717 dated 24.02.1968. After the death of Muhammad Bashir Ali, Advocate his legal heirs inherited the property and out of the total property an area of one kanal was sold to Lt. Col. (R) Javaid Sultan Butt, the predecessor of present Respondents Nos. 7 to 10. The respondents filed their separate written statement. The Petitioner No. 1/Defendant No. 1 denied that the Settlement Authorities ever resumed excess area attached with the house. However, the allotment in favour of Dr. Ghulam Mohy-ud-Din was never denied rather it was averred that the subsequent mutations in the names of the respondents or their predecessors were result of mala fides on the part of the Settlement Department and Muhammad Bashir Ali, Advocate in collusion with the attorney of Ghulam Mohy-ud-Din. The Defendants No. 2 and 2-A to 2-E while filing their written statements asserted that there was no excess area with the house and the entire property was bound with the wall and remained in their possession since the allotment to their predecessors.
13. From the perusal of the pleadings bf the parties, it comes on the surface that the claim of the respondents was over an area of 6 kanals, and 5 marlas but in the written statements, the defendants did not specify the area in their possession through allotment by the Settlement Department. It is an admitted fact that the allotment and transfer of the suit property to Dr. Ghulam Mohy-ud-Din (vide RL II No. 237 dated 12.05.1964 was challenged by Dr. Ijaz-ul-Haq, predecessor of the appellant its before the Settlement Authorities and the matter went up to the Hon’ble Supreme Court of Pakistan in Civil Appeal No. 48-19.95 which was decided vide judgment dated 10.10.2000.
14. In the said judgment, the description and question of ownership of the suit property was decided. The relevant extracts from the said judgment are reproduced as under for ready reference:
“7. It will be pertinent to highlight at this stage the main features of the first round of litigation between Dr. Ijaz-ul-Haq and Dr. Ghulam Mohy-ud-Din. The property in dispute adjoins a house which was transferred by the Deputy Settlement Commissioner Rawalpindi in favour of Dr. Ijaz-ul-Haq vide PTO No. 733857 dated 28.11.1963, When the property in dispute was allotted on 12.05.1964 by the Chairman Allotment Committee under the Displaced Persons (Land Settlement) Act, 1958 to Dr. Ghulam Mohy-ud-Din the allotment order was challenged by the said Dr. Ijaz-ul-Haq through an application under Sections 10/11 of the Displaced Persons (Land Settlement) Act 1958 on the ground that the allotted land was a part and parcel of his house bearing No. BB-654 and not agricultural land and as such was not available for allotment against an agricultural claim. The application was dismissed on 29.06.1971 by the Additional Settlement Commissioner (Land) Rawalpindi with the observations that the allotment having been made against a verified claim could not be disturbed. The appeal arising therefrom was also dismissed on 1.7.1973 by the Additional Commissioner/Settlement Commissioner (Land) Rawalpindi Division. Thereafter, a writ petition was filed by Dr. Ijaz-ul-Haq which was dismissed in limine on 31.05.1974 with the following observations:
“I have not come ‘across” any illegality in the orders impugned so as to render them to be without lawful authority”
Civil Petition for leave to appeal was dismissed by this Court on 2.2.1980 and leave was declined.
8. From the above resume, it is obvious that during the first round of litigation over the land in dispute the Settlement Authorities had fully supported the allotment in favour of Dr. Ghulam Mohy-ud-Din and it was neither alleged at any stage nor brought to the notice of any forum that the allotment had been challenged on the ground of fraud by Mashood Ahmad Khan through an application which was pending adjudication. Had the allotment been challenged by Mashhood Ahmad Khan the matter would have definitely surfaced during the first round of litigation. We are convinced that Mashhood Ahmad Khan had not challenged the allotment in favour of Dr. Ghulam Mohy-ud-Din in any manner before the repeal of the evacuee laws and after the dismissal of the position of Dr. Ijaz-ul-Haq by this Court some paper work was done through machination of Dr. Ijaz-ul-Haq and his son-in-law Mashhood Ahmed Khan to re-open a past and closed transaction and nullify the effect of the judgment of this Court. The machination stands established in view of two intriguing letters available on record and the glaring fact that the application attributed to Mashhood Ahmed Khan is admittedly not available on record……..
11. There are yet other aspects of the matter to which it is necessary to refer to. The genuineness of the verified claim of Dr. Ghulam Mohy-ud-Din has not been challenged and the grounds of fraud are restricted to its adjustment at Rawalpindi instead of Hyderabad and the stance of the legal heirs of Dr. Ghulam Mohy-ud-Din. Mashhood Ahmed Khan had not claimed allotment of the land in dispute and the stance attributed to the legal heirs of Dr. Ghulam Mohy-ud-Din is immaterial as they had not only sold the land in dispute to Fazal Ahmed vide Mutation No. 8371 dated 23.10.1966 but had also not challenged the same or disowned the allotment in favour of their predecessor-in-interest in writ petition N0.939/R/73 wherein they were impleaded as respondents by Dr. Ijaz-ul-Haq. It is thus too late in the day for them to strike a discordant note.
For the foregoing reasons, the appeal is dismissed. Parties to bear their own costs”. (Emphasisprovided)
15. Bare perusal of the above-referred paragraphs makes it abundantly clear that the ownership of the suit property has finally and conclusively been determined in favour of the respondents uptill the level of the August Supreme Court of Pakistan and this Court or the Court below has no lawful authority to revisit the matter. Furthermore, the respondents led their evidence as PW1 Muhammad Ahsan Bashir and PW2 Dr. Khalid Javed appeared in the witness box and categorically deposed inline with the averments of the plaint, in cross-examination, no suggestion was put to both these witnesses that the suit property was different from the property already adjudicated upon uptill the level of August Supreme Court of Pakistan. In rebuttal, the appellants produced DW1 Sharjeel Ahmad Khan, who in his cross-examination admitted the stance of the plaintiffs in the following manners:
"وہ دستاویزات PTD اور ہائیکورٹ اور سپریم کورٹ کے فیصلے ہیں جو کہ میرے خلاف معزز سپریم کورٹ ریویو میں گئے جو کہ ہمارے خلاف فیصلہ ہوا یہ وہی زمین ہے جو کہ ہائیکورٹ اور سپریم کورٹ میں زیر تجویز رہی تھی۔ یہ بات درست ہے کہ اس میں غلام محی الدین کی الاٹ منٹ چیلنج کی تھی۔ یہ درست ہے کہ میں نے ہائیکورٹ اور سپریم کورٹ کے فیصلے پڑھے ہیں۔"
He further admitted the stance of the plaintiffs in the following manners:
"یہ بات درست ہے کہ معاملہ ملکیت کا ہے۔ غلام محی الدین اور اعجاز الحق اور شیخ بشیر ہائیکورٹ اور سپریم کورٹ تک گئے۔ یہ بھی درست ہے کہ وہ معاملہ ہمارے خلاف سپریم اورہائیکورٹ میں ہوا۔ یہ بات درست ہے کہ اسکے خلاف نظر ثانی اور ریویو بھی ہمارے خلاف ہوا اور خارج ہوا۔"
DW2 Nadeem Akhtar (special attorney of Nasira Mashhood, the Defendant No. 1) deposed that the suit property is a house and it was never under cultivation nor there was any demarcation of the property. He stated that they are in possession of the suit property. He further deposed that Muhammad Ahsan Bashir PW2 is trying to usurp the property on the basis of a bogus claim. In cross-examination, he admitted that the matter regarding the’ownership of the property in between Dr. Ghulam Mohy-ud-Din, Ijjaz-ul-Haq and Sheikh Bashir went upto to the level of Hon’ble Supreme Court of Pakistan. He also admitted that the decisions of the August Supreme Court and the High Court were against them. He also admitted that Mashhood Ahmad Khan is his brother-in-law (بہنوئی). He admitted that the decision of the High Court was challenged by Nasira Mashhood in the August Supreme Court of Pakistan and the appeal was dismissed by the August Supreme Court on 18.11.2000.
16. In the above evidence, there cannot be any other conclusion that the suit property measuring 6 kanals and 5 marlas of land was allotted to Dr. Ghulam Mohy-ud-Din and subsequently devolved upon the respondents/plaintiffs through process of law.
17. The second question is that of limitation, though no issue was framed in this regard but evidence was led by both the parties. PW1 in his examination-in-chief deposed that Riffat Mahmood and Nasira’ Mashhood illegally occupied the suit property in October, 2003 and the suit was filed in the next month. This statement of PW1 remained uncross-examined. PW2 also deposed in the same manner that the defendants got the possession of the property in the year 2003. He was also not cross-examined in this regard.
18. In rebuttal, DW1 Sharjeel Ahmad Khan stated that the area of the suit property is 6 kanals 5 marlas which is in the shape of a house and that is in their possession from the lifetime of his grandfather namely Dr. Ijaz-ul-Haq Khan. He however, denied the suggestion that they forcibly took over the possession of the property in October, 2003. DW2 Nadeem Akhtar (Special Attorney of Defendant No. 1) in his examination-in-chief controverted the statements of the PWs and to the extent of their possession over the suit property, he deposed that the respondents have concocted a story that they were in possession of the property from 1958 to 2003. In cross-examination, he denied the suggestion that Dr. Ijaz-ul-Haq Khan had never been in possession on the suit property. He also denied the suggestion that they took over the possession forcibly in the year 2003.
19. Keeping in view the evidence of the parties, it can safely be held that both the parties were well-aware about the question of limitation and evidence was led in this regard by both the parties, therefore, in our view non-framing of issue of limitation is not fatal as it has not caused any prejudice to any of the parties.
20. Even otherwise the earlier round of litigation concluded in favour of the respondents on 08.11.2000 when the judgment was announced by the Apex Court in Civil Appeal No. 48 of 1995 and the respondents were conclusively held to be the lawful owners of the suit property. Articles 142 to 144 of the Limitation Act, 1908 provide the period of limitation as 12 years and in our considered opinion, the suit was filed within time. Learned counsel for the appellants heavily stressed upon Exh.DS to Exh.D7 which are copies of registers of Excise and Taxation Department. In column No. 6 of Exh.D3 total area of site-plan has been written as 6 kanals and size of the building on the site according to the plinth area has been written as 10 marlas whereas in Exh.D4 total area of site-plan has been written as 3626 and in column No. 7, the size of the building on the site according to the plinth area has been written as 2720 (it has nowhere been mentioned whether these are square feet or square yards). However, when the area of 2720 is converted into marlas then it becomes 10 marlas which correspond with the entry No. 7 of Exh.D7, therefore, total area of land mentioned in Exh.4 as 3626 could only be considered in square feet. Furthermore, the documents Exh,D2 to D7 are not conclusive proof of the ownership of the property. In view of the ownership of the property and the contradictions as above-mentioned, the appellants could have proved the contents of those documents through production of original record from the lawful custody of the Department of Excise and Taxation but the said documents i.e. Exh.D3 to Exh.D7 have been produced in the statement of learned ‘counsel for the appellants, which cannot be relied upon.
21. Now we will come to the merits of R.F.A. No. 273 of 2013. The appellants filed a suit for declaration against the respondents with the following prayer:
“In view of the above, it is earnestly prayed that a decree for declaration to the effect that the plaintiffs are lawful owners-in-possession of Evacuee Property No. BB/654 (Full Unit) Eidgah Road, Rawalpindi, being successbr-in-interest of their predecessor-in-interest late Dr. Ijaz-ul-Haq Khan son of Muhammad Tufail Khan, by virtue of Provisional Transfer Order No. 733857 dated 28.11.1963 and subsequently Transfer Order No. 28542 Dated 27.2.1992 respectively issued by Deputy Settlement Commissioner, Rawalpindi (Defendant No. 8) and defendants have absolutely no concern being fake and false allottee by way of adjustment of their bogus claim over apportion Court-yard of the suit land, their claim is sham, false, fictitious, illegal and without lawful authority, and issuance of perpetual injunction by way consequential relief to restrain them from claiming any right/title over the suit land, and interfering in the peaceful ownership-in-possession of the plaintiffs in respect of the suit property and also alienating any part of the suit land by any mode whatsoever, be passed in favour of the plaintiffs and against the defendants, with costs of the suit”. (Emphasis provided).
There-after, the respondents/Defendants Nos. 1 and 2 filed an application under Order VII rule 11 of CPC for rejection of the plaint under the plea that that matter has already been conclusively decided between the predecessor-in-interest of the plaintiff and Defendants Nos. 1 to 7 filed separate application under Order VII rule 11 of CPC for rejection of the plaint. The learned trial Court after hearing the arguments rejected the plaint vide impugned order dated 20.11.2012. The appellants filed the appeal before this Court, which was admitted for regular hearing and to be heard alongwith RFA No. 273 of 2013. The crux of the arguments of the learned counsel for the appellants was that principle of res judicata could not be applied by the learned trial Court and only contents of the plaint can be considered. On the other hand, learned counsel for the respondents vehemently opposed the arguments of the appellants and submitted that the appellants are guilty of concealment of facts and filing of the present suit was nothing but misuse of process of law.
22. We have already, discussed above that the question of ownership of property was finally and conclusively decided in the favour of the present respondents upto to the Apex Court. The subject matter of the suit is just the same. The appellants concealed the previous litigation between the parties and tried to protect their possession by filing a fresh suit, therefore, they were not entitled for any relief from the learned trial Court. It is a settled principle of law that who comes to the Court must come with clean hands therefore, they were not entitled for any relief from the learned trial Court. Further, the documents which have been relied upon by the respondents but the copies of the admitted documents including the judgment of Apex Court passed in Civil Appeal No. 48 of 1995 and it is now a well settled principle of law that a trial Court while deciding the application under Order VII rule 11 of CPC not only rely upon the contents of the pleadings as well as the documents appended with the plaint but can also rely upon the documents, which are submitted by the defendants and are not denied by the plaintiffs’ side. The learned trial Court has not committed any illegality while rejecting the plaint of the appellants.
23. In view of the above discussion, both these appeals being bereft of any merits are hereby dismissed.
(Y.A.) Appeals dismissed
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