HAMID HASAN Versus SALEHA BEGUM

1. The case of the plaintiffs is that their mother Mst. Saleha Begum was owner of a piece of agricultural land measuring 36 Kanals and 11 Marlas situated in Mouza Taraf Ravi, Beroon‑e‑Hudood Committee, Multan, which was transferred to her on verification of her claim in lieu of the properties abandoned in India under the Settlement Scheme. Mst. Saleha Begum died intestate in London. She had never executed any power of attorney, nor sold the land to any one including the Defendants. However, the plaintiffs have come to know that on 3‑7‑1973 a fietieious power of attorney was forged on behalf of Mst. Saleha Begum in favour of Defendant No.3 Taj Mohammad, which was attested by Taj Mohammad and Sher Mohammad Defendants Nos.3 and 4 at Lahore. Thereafter, it was presented for registration and registered at Karachi. The identification was done falsely by Shakil Ahmad Defendant No.2 as her brother and Dawood Khan Defendant No.6, an Advocate, who claimed to have identified Shakil Ahmad and registered b~ Sub‑Registrar Ozair Ahmad Siddiqui, On, the basis of this forged Power of Attorney, Defendant No.3 Taj Mohammad executed Sale Deed in favour of Defendants Nos.8 to 12 and purported to sell the above plot to them and got it registered at Multan. The plaintiffs have prayed for a declaration that Defendant No.1 was not the real Salcha Begum, nor Defendant No.2 was brother of Mst. Salcha Begum and both of them had impersonated; that the said General Power of Attorney was false, fcticious and forged, and that the Defendant No.3 had no authority to sell the land to Defendants Nos.8 to 12; and for possession of the agricultural land mentioned above as well as mesne profits and cost of the suit.

2. Defendant No.6, Mohammad Dawood Khan, Advocate has filed written statement, but has not controverted the plaint materially except that he had stated that he had identified Defendant No.2 in good faith, who claimed to have identified Mst. Saleha Begum as his sister. Defendants Nos.8 to 12 have contested the suit and have filed written statement wherein they have raised preliminary objections as to the jurisdiction of the Court, non joinder and mis-joinder of the parties and the suit being barred by Limitation Act. It was denied that Mst. Saleha Begum, the mother of the plaintiffs, had died on 6‑8‑1972. The Defendants Nos.8 to 12, however, claimed to have purchased the land bona fide without notice of the title of the plaintiffs. It is also alleged that houses have been built on the land by vendees of Defendants No.8 to 12, while no site plan showing these constructions has been annexed to the plaint: It was alleged that after 6‑8 1972, the alleged date of her death, Mst. Saleha Begum had sold this land to one Shams Din which shows that she was alive at that time. It was, however, admitted that Mst. Saleha Begum was allotted the above land. She was also alleged to be alloted another piece of agricultural land measuring 40 kanals in Mouza Chak Gagra. It is asserted that the sales in favour of the Defendants No.8 to 12 were genuine, perfectly valid and in order. It was also asserted that the Power of Attorney was genuinely executed by Mst. Saleha Begum, the original owner of the suit land and that the allegations made by the plaintiffs are false. The other defendants did not file any written statement and have chosen to remain absent.

3. The following issues were framed:‑

(1) Whether Saleha Begum wife of llafiz Hassan died on 6‑8‑1972 in London?

(2) Whether Power of Attorney granted by the defendant No.1 to dafendant No.3 is forged and fabricated document and liable to be cancelled?

(3) Whether defendant No.1 impersonated herself as the mother of the plaintiffs before the Sub‑Registrar in order to register a fabricated document?

(4) Whether the sale‑deed executed and registered by defendant No.3 in favour of defendants No.8 to 12 is without authority and liable to be cancelled?

(5) Whether the plaintiffs are entitled to mesne profits from defendants, If so how much?

(6) Whether the plaintiffs are entitled to possession of suit property?

(7) Whether this Court has jurisdiction to order for mesne profits?

(8) Whether the suit is barred by time?

(9) Whether this Court has jurisdiction to entertain and try the instant case pertaining to possession of land situated in Multan?

(10) Whether the suit is bad for non‑joinder of necessary parties and bad for misjoinder of causes of action?

(11) Whether the defendants No.8 to 12 and subsequent vendees are bona fide purchasers?

(12) Whether the plaintiffs are estopped from making the present claim by their conduct and without submitting the site plan showing constructions of houses built by vendees from defendants No.8 to 12?

(13) Whether the suit has been incorrectly valued for the purpose of court fees?

(14) What should the decree be?

4. The plaintiffs examined Hamid Hassan as P.W. 1 (Ex. 5), Muzaffar Hassan as P.W. 2 (Ex. 6) and Shaikh Abdul Haq as P.W. 3 (Ex. 7) and closed their side.

5. Hamid Hassan has repeated the same which has been stated in the plaint. Hence his evidence needs not to be the reproduced. He has produced Parchi Taqseem Khatooni (Ex. 5/1) copy of `Naqsha‑e‑Taqsecn ArazT (Ex.5/2), General Power of Attorney (Exs. 5/3, 5/4 and 5/5). He then produced true copy of the disputed Registered Power of Attorney purported to have been executed by Mst. Saleha Begum in favour of Taj Mohammad. Muzaffar Hassan has also deposed on the same lines as that of Hamid Hassan. Shaikh Abdul Haq is an acquaintance. of the plaintiffs and deceased host. Saleha Begum. He .has stated that Mst. Saleha Begum had died in 1972 and he had attended her funeral.

6. In view of the preliminary objections taken by the Defendants No.8 to 12, I have decided to take up issues Nos.7 and 9 at the very outset.

7. I SSUES NOS. 7 AND 9 :

8. It is contended on behalf of Defendants Nos. 8 to 12 that this Court has no jurisdiction to grant the basic relief of declaration as to title and possession of the land in. suit and mesne profit because it is admittedly situated in Multan District (Punjab) which is outside the jurisdiction of this Court. 1n this connection reference was made to Section 16 of Civil Procedure Code which reads as under:‑

9. "16. Suit to be instituted where subject‑ratter situate .‑‑‑Subject to the pecuniary or other limitations prescribed by any law, suits:

(a) for the recovery of immovable property with or without rent or profits,

(b) for the partition of immovable property,

(c) for foreclosure, sale or redemption in the case of a mortagage of or charge upon immovable property,

(d) for the determination of any other right to or any interest in immovable property,

(e) for compensation for wrong to immovable property,

(f) for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate or in the case of suits referred to in clause (c) at the place where the cause of action has wholly or partly arisen:

10. Provided that a suit to obtain relief respecting or compensation for wrong to, immovable property held ‑by or on behalf of the defendant may, where the relief, sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate or, in case of suits referred to in clause (c) at the place where the cause of action has wholly or partly arisen, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain."

11. Reference was also made to the following provisions of Punjab Tenancy Act 1887;

12. "S.14. Payments for land occupied without consent of landlord .‑‑‑Any person in possession of land occupied without the consent of the landlord shall be liable to pay for the use or occupation of that land at the rate of rent payable in the preceding agricultural year, or, if rent was not payable in that year, at such rate as the Court may determine to be fair and equitable:"

77. Revenue Courts and suits cognizable by them .‑‑‑(1)When a Revenue Officer is exercising jurisdiction with respect to any such suit as is described in subsection (3) or with respect to an appeal or other proceedings arising out of any such suit, he shall be called a Revenue Court.

(3) The following suits shall be instituted in, and heard and determined by, Revenue Courts, and no other Court shall take cognizance of any dispute or matter with respect to which any such suit might be instituted:

13. Provided that:‑‑

14. Procedure where revenue matter is raised in a Civil Court .‑‑(1) Where in a suit cognizable by and instituted in a Civil Court it becomes necessary to decide any matter which can under this subsection be heard and determined only by a Revenue Court the Civil Court shall endorse upon the plaint the nature of the matter for decision and the particulars required by Order VII, Rule 10, Civil Procedure Code, and return the plaint for presentation to the Collector;

(2) on the plaint being presented to the Collector, the Collector shall proceed to hear and determine the suit where the value there of exceeds rupees ten thousand or the matter involved is of the nature mentioned in section 77 (3), First Group of the Punjab Tenancy Act, 1887, and in other cases may send the suit to an Assistant Collector of the Ist Grade for decision." '

THIRD GROUP

15. "(n) Suits by a landlord for arrears of rent or the money equivalent of rent, or for sums recoverable under section 14."

16. It was, therefore, contended that the combined effect of the aforesaid provisions was that the suit for possession of land in dispute which is situated in the Distt. of Multan, Province of Punjab cannot be entertained by this Court on account of lack of jurisdiction. It was further contended that as the remaining reliefs sought by the plaintiffs are also connected directly with the land in dispute, hence this Court has no jurisdiction to grant the said relies as well. The suit for recovery of mesne profits of the land in Punjab has to be entertained by Revenue Courts of Punjab and not by Civil Court as provided by Sections 14 and 77 of Punjab Tenancy Act. Hence this Court cannot entertain the suit for mesne profits of the land in dispute. Reliance in this connection was placed on P L D 1954 Balochistan 18 (the Eastern Express Co. Ltd., Karachi v. Haji Abdul Ghafoor and others), 1979 CLC 186 (Muhammad Jewan and another v. Syed Abdul Qasim and 3 others); and AIR 1935 Nagpur 250 (G.T. Firm and others v. D.J. (Bombay).

17. The facts of the case "The Eastern Express Co. Ltd. v. Haji Abdul Ghafoor" are that the plaintiffs had imported certain crockery from Japan. They appointed M/s. Grindlays Bank Ltd. Quetta as their agent, who in their turn appointed the Eastern Express Co. Ltd., Karachi as Clearing Agents in Karachi. On arrival of the goods in question in Karachi heavy demurrage charges were incurred and the defendants declined to deliver the crockery in question pending the settlement of the outstanding demurrage charges which they had paid on behalf of the plaintiff. It was held as follows:‑

18. "It is clear from the wording of section 20 of the C.P.C. that this section will only apply subject to the limitations previously enumerated in the preceding sections. In general terms section 20 C.P.C. allows for the institution of a suit under three separate and distinct conditions; the first being that a suit may be instituted in a Curt within the local limits of whose jurisdiction the defendant resides or carries on business. The second condition is that a suit can similarly be instituted with the permission of the Court where any of the defendants resides etc. and thirdly, a suit can be instituted in a Court within whose jurisdiction the cause of action wholly or in part arises.

19. The facts of this case, however, indicate that the defendant/petitioners have distrained in Karachi certain property to which the plaintiffs/respondents lay claim. Whether they have done so legally or illegally is no concern of this Court but this act clearly indicates that section 16 (f), C.P.C. will apply.

20. 'In the light of these circumstances, I am of the opinion that no Court in Balochistan has jurisdiction in this case and the order of the lower Court must be set aside on the ground that it has exercised jurisdiction in this case which is not vested in it by law."

21. In the case of "Muhammad Jewan and another v. Syed Abdul Qasim and 3 others" the facts are very similar to the facts of the present case. The plaintiffs had filed a suit against the Defendants for declaration I hat they wefe owners of 32 kanals of land situated in village Sikandarpur District Kasur and that a Power of Attorney executed by Defendant No.l in favour of Defendant No.4, a decree passed in favour of Defendants No.2 and 3 and a Registered Sale‑Deed based on the aforesaid decree and the Power of Attorney A‑crc liable to be cancelled for being void and ineffective. By way of consequential relief, they also prayed for perpetual injunction restraining the defendants from claiming ownership or taking possession of the land in dispute. The Civil Judge, Lahore dismissed the suit on the ground that the land in dispute was situated in Kasur, and therefore, in view of Section 16, C.P.C. he had no jurisdiction to try the suit. It was held by a learned Single Judge of Lahore High Court as under:‑

22. "5. Learned counsel for the petitioners contends that since the suit was for cancellation of three documents, it could, under section 20 of the Code, be tried by the Court at Lahore because all the defendants are residents of the Lahore District. He relied on the case of Mst. Zeenat Bibi and 3 others v. Mehr Din and another (PLD 1978 Lah. 249), Daibakilal Basak v. Iqbal Ahmad Oureshi and another (PLD 1965 Dacca 439), Mafizuddin Khan v. Jadu Pramanik and others (P L D 1960 Dacca 103), Nur Muhammad v. Mst. Karim Bihi (PLD 1959 Lah. 932) and Janandasundari Shaha v. Madhahbhandra Mala (AIR 1932 Cal. 482) to support his contention. I am unable to uphold the plea raised by the learned Counsel for .the petitioners. It is not disputed that the land in dispute is in the District Kasur. The petitioners are primarily seeking a declaration to the effect that they are the owners of the said land. Thus, their suit is for determination of their "right and interest in immovable property" and falls within the purview of clause (c) of section 16 of the Code. This view is also supported by the fact that they are claiming a permanent injunction with a view to guarding against any interference in their use and occupation of the land in dispute. No doubt they have also (I should say incidentally) sought a declaration to the effect that certain documents relating to the land in dispute are of no legal effect, but taking their prayer as a whole, their suit attracts the provisions of clause (c) of section 16 of the Code. It is not their plea that the suit falls within the ambit of the proviso to section 16. Their sole contention is that it could be instituted at Lahore, under section 20 of the Code. The provisions of section 20 can, however, be pressed into service only if a suit is not hit by the limitations laid down in the earlier provisions of the Code, including Section 16. Since the suit does not get out of the teeth of section 16, the provisions of section 20 cannot be made use of by the petitioners."

23. Ilyas, J. distinguished all the above authorities and observed:

24. "As for the authorities relied upon by the learned counsel for the petitioners, they are distinguishable on facts. In the case of Mst. Zeenat Bibi and 3 others, the plaintiffs had the option to file suit at one place or the other which is not true of the case in hand. As for the cases of Daibakilai Bask, Nur Muhammad and Jandasundari Shaha the questions decided therein were other than the one in respect of the territorial jurisdiction of the Court. All the authorities relied upon by the learned counsel for the petitioners are, therefore, of no help to him."

25. In the third case i.e. "G.T. Firm and others v. D.J. Co. Bombay" it was held that "a suit for sale on a mortgage cannot be regarded as a suit in person to recover a debt because the decree which is passed in such a suit directly affects the title to and disposition of the land mortgaged. Hence a suit on a mortgage is one for land and is, therefore, excluded from the cognizance of the Court other, than the Court where the mortgaged property is situate.

26. The plaintiffs' counsel was not able to controvert the above legal contention raised on behalf defendants Nos. 8 to 12. This Court has also taken the same view in the case of Haroon Ayoob Karim v. Suleman Ahmed 1983 C L C 162 where it was held by Saleem Akhtar, J. as follows:

27. "It is not every action where mere presence of the defendants within the jurisdiction of the Court vests the Court with jurisdiction to pass a decree in respect .of properties situate outside the jurisdiction. The account relates to a company which has its branch office at Rangoon. All the records of business were at the material time at Rangoon except the copies of the balance sheets which are available at Karachi and have been filed in Court. In 1963 the Government of Burma took over the company and the entire record and properties arc in its possession. 1n the circumstances even by obedience of the defendants no effective order can be passed. In the present suit no fiduciary relationship between the parties has been established nor the defendants are liable' to render accounts. In these circumstances the Court will have no jurisdiction to interpose its authority on the defendants in respect of matters and properties which are situated outside the jurisdiction of the Court which are not in the control and possession of the defendants and arc in possession of person which is not a party to the suit.

28. In the absence of any fiduciary relationship between plaintiff and defendants and there being no equity between the parties arising from contract, fraud or trust the Court cannot exercise its jurisdiction in personam in the matter particularly when partly the claim relates to ` ' claim in which foreign immovable properties are also involved."

29. I am, therefore, of the clear view that no suit for determination of any right or interest in an immovable property can be instituted in a Court other than the Court within the local limits of whose jurisdiction the property is situated and that the provisions of section 20, C.P.C. would not help the plaintiffs so long as there is a prayer for recovery of possession of an immovable property with or without rents or for the determination of any right or interest therein which can be adjudicated only by Court within the local limits of whose jurisdiction the property is situated. Hence I have not the least hesitation to hold that this Court has not jurisdiction whatsoever to entertain the suit.

30. In view of my findings on the above issues, it will be redundant and futile to express findings on other issues. 1, therefore, order that the plaint be returned H under Order VII, Rule 10 C.P.C. for presentation on to the proper Court after making endorsement as provided under sub‑rule (2) of Rule 10 of Order VII of C.P.C.

31. A.A./H‑200/K Order accordingly.