Mst. MARYAM MIRZA Versus M. M. KAZI

1. This is a suit by the plaintiff against the defendants for declaration, possession, cancellation of documents and injunction.

2. The plaintiffs case is that she was allotted by the Mysore Cooperative Housing Society Ltd., Karachi, a residential plot of land bearing No.13, iii Block No.12, K.D.A. Scheme No.16, Federal "B" Area, Karachi, measuring 541.41 square yards. The plaintiff paid all charges and dues to the Society and the K.DA. and the said plot has been confirmed and leased in favour of the plaintiff by the Karachi Development Authority vide registered sale-deed dated 14-1-1975 and registered with the Sub-Registrar of properties-T, Division III. Karachi on 15-1-1975. The plaintiff was issued a receipt. The plaintiff did not collect the lease deed from the office of the Sub-Registrar as she left for London. It is alleged in the plaint that she handed over the receipt to her uncle Bashir Ahmed Mughal for collecting the same but he could not collect the lease deed from the office of the Sub-Registrar. In about the 3rd week of April 1978 the uncle of the plaintiff came to know that someone attempted to unauthorisedly occupy the said plot; whereupon he made enquiries from the concerned authorities and it was gathered that the original lease deed was fraudulently taken away from Sub-Registrar's office by defendant No.1, by forgery. It was then also gathered that the defendant No.1, had fabricated forged power of attorney and an agreement of sale, both dated 1st March, 1975 which the plaintiff never executed. It is the further case of the plaintiff that throughout the period between 18-1-1975 and 17-4-1975 she was in England. The defendant No.1 sold the plot in suit to defendant No.2 for a sum pf Rs.50,000 by using forged power of attorney. The defendant No.2 who in turn sold the said plot to defendant No.3 for a sum of Rs.80,000. It is alleged in the plaint that alleged sales and transfers are invalid and null and void and they are liable to be called up and cancelled.

3. The defendants filed their separate written statements. The defendant No.1 pleads that the plot in suit was allotted to one Miss Maryam Mirza and not to the plaintiff. The defendant No.1 contends that he purchased the plot in suit from the said lady for a valuable consideration on the basis of the original title deed viz. lease deed. The said lady executed power of attorney authenticated by a Notary Public, a sale agreement and receipt acknowledging payment of valuable consideration to her by the defendant No.1. It is also pleaded that the defendant No.1 sold it to defendant No.2. The defendant No.2 sold it to the defendant No.3.

4. The defendants Nos.2 and 3 filed separate written statements. They plead that defendants 2 and 3 were bona fide purchasers. The defendant No.3 contends that he filed a Suit No.1042/78 before the XVIIth Civil Judge, Karachi. The defendants 2 and 3 have not admitted the plaintiffs identity and title to the plot in suit.

5. On the pleadings of the parties, the following issues were framed:-

(1) Whether the Geneal Power of Attorney and Agreement of sale dated 1 st March, 1975 arc forged and invalid documents? If so, what is its effect?

(2) Whether this defendant No.1 had collected the original lease decd of the subject plot of land from the office of the Sub-Registrar by practising fraud and forgery?

(3) Whether the sale and transfer of the subject plot of land by the defendant No.1 to defendant No.2 and then by defendant No.2 to defendant Nu.3 arc valid in law? If not, what is its effect?

(4) Whether the plaintiff is owner of the subject plot of land and entitled to reliefs claimed by her'?

(5) What should the decree be ?

6. The plaintiff has given evidence as P.W.5, Ex.

11. She as examined six witnesses namely, P.W.1 Gul Rehman S.H.0. of Gulberg P.S. as Ext. 7, P.W.? Abdul Hamid Qureshi, Assistant Director, K.D.A. as Ext.8, P.W.3 Muhammad Siddiq Merchant, Notary Public as Ext.9, P.W.4 Ghulam Muhammad Clerk from the Office of Sub-Registrar as Ext.10, P.W.6 Bashir Ahmed Mughal. uncle of the plaintiff as Ext.12 and P.W.7 Ghulam Abbas Jafari, handwriting expert as Ext.13.

7. D.W.2 defendant No.3 has examined as Ext.l5. Defendant No.3 has examined D.W.1 Mr. Shamsul Arfin, Assistant Director, K.D.A. as Ex.14. The defendants Nos.1 and 2 neither cross-examined the plaintiff and her witnesses nor gave evidence on their own behalf.

8. ISSUE No.1.

9. Mr. Abdul Aziz Khan, the learned counsel for the plaintiff has relied upon the depositions of P.Ws. 2, 3, 4, 5, 6 and 7. The defendant No. 1 alleged in his written-statement that the plot in suit was not allotted to the plaintiff but it was allotted to Miss Maryam Mirza by Mysore Co-operative Housing Society and the plaintiff has mis-represented herself as the said land and has instituted the present suit. It is further alleged that the defendant No. 1 was introduced to Miss Maryam Mirza (not the plaintiff) and he purchased the plot in suit from the said Miss Maryam Mirza who executed a general power of attorney authenticated by a Notary Public, a sale agreement and a receipt acknowledging payment of valuable consideration to her by the defendant No. 1. The Plaintiff has stated in her examination-in-chief that she is known as Maryam Mirza and she purchased the plot No. B-13 in Block No.12, K.DA. Scheme No. 16, Federal "B' Area, Karachi. The lease deed was executed on 14-1-1975 and presented for registration on 15-1-1975. It bears her signature. The Sub-Registrar issued a receipt (Ext. 10/1) which bears her signature. She handed over the receipt to her uncle Bashir Mughal (Ext. 12). The Plaintiff has stated that she had gone to London on 18-1 1975 and she handed over the receipt for collection of lease deed from the office. of the Sub-Registrar. The plaintiff has stated that she returned to Karachi on 17 4 1978. She produced photostat copies of passport as Ext. 9/t and 9/2.

10. The Plaintiff has stated that power of attorney dated 1-3-1975 executed in favour of defendant No. 1 does not bear her signature. The plaintiff has stated that sale agreement dated 1-3-197.5 (Ext. 7/4) does not bear her signature. The Plaintiff has stated that specimen signature appearing on Exts. 7/6-A bear her signatures.

11. P.W. No. 1 Gul Rehman (Ext. 7) was S.H.O. of Gulberg Police Station at the relevant time. He has stated that he sent Exts. 7/3, 7/4, 7/5/, 7/6-A to 7/6-F to the Handwriting Expert Ghulam Abbas Jafri for comparison with the questionable signatures on documents Exts. 7/3 and 7/4.

12. PW. 7 Ghulam Abbas Jafri, the Handwriting Expert has states: that he compared the specimen signatures given on Exts. 7/6, 7/6-A, 7/6-B, 7/6-C, 7,/6-D, and 7/E with the disputed signatures on Exts. 7/3 and 7/4. This witness has stated that after examining and comparing the disputed signatures on Ext. 7/3 and 7/4 with the admitted signatures of the Plaintiff with the aid of different equipments, he has found that the prominent characteristics of the disputed signatures marked as A/1 and B/a by him were not in agreement with those of the specimen signatures marked as QV/ and R/I to R/7. He produced his opinion as Ext. 7/5.

13. P.W. 6, Bashir Ahmed (Ext. 12) is the uncle of the plaintiff. This witness has stated that plaintiff after executing lease deed on 15-1-1975 left for London ::R 18-1-1985. This witness has stated that the plaintiff entrusted receipt Ext.10/1 to him for collecting lease deed from the office of the Sub-Registrar but the same could not be collected. This witness has stated that the plaintiff after having gone to London never came to Pakistan until April 1978. This witness has stated that documents Exts.7/3 and 7/4 do not bear the signatures of the plaintiff. This witness has stated that he is acquainted with plaintiff's signature and writing. The plaintiff denied the suggestion in cross-examination that the signatures appearing on lease deed as EXt.7/1, Ext.7/3 and 7/ 4 are similar.

14. P.W.No.3 Muhammad Siddiq Merchant (Ext.9) Notary Public has stated ,hat the executant of the power of attorney was not known to him personally. He has further stated that even the attorney was not known to him. He has stated that none of the parties including witnesses to the power of attorney and the sale agreement was identified before him by any person. He has stated that they appeared before him in person and disclosed their identity. This witness admitted that "all of them then signed the respective documents in my presence. There is no endorsement on the documents. There is no specific endorsement on the documents that the executants had put their signatures on them in my presence".

15. In cross-examination he stated that "I cannot say if the photos on passport are of the lady Mst. Maryam ;who had appeared before me".

16. Apart from this, P.W.7 Jafri is attached with the Police Department of Karachi. He compared the admitted signatures of the plaintiff on specimen signatures appearing on Exts.7/6, 7/6-A, 7/6-B, 7/6-C, 7/D, 7/E with the questioned signatures on Ext.7/3 and 7/4. It is seen from the evidence of P.W.1 Gul Rehman, S.H.O. that he had taken these specimen signatures before the Magistrate First Class on 8-6-1978. In Ext.7/5 he has given detailed reasons in support of his opinion in regard to the signatures on Ext.7/3 and 7/4. He opined that the prominent characteristics of the disputed signatures marked as A-1, B-1 are not in agreement with those of the specimen routine signatures marked as QV, R-1, R-2, R-3, R-4, R-5, R-6 and R-7. Nothing has been elicited in the course of his cross-examination to show as to why his opinion should not be accepted.

17. I have considered the evidence on the record and reached the conclusion that the statement of the hand-writing expert is cogent or convincing enough to lead to a definite conclusion. He admitted that signatures on the disputed documents i.e. Exts.7/3 and 7/4 are not in agreement with those of the specimen signatures on Exts.7/6 6-A to 7/6, 7/D and 7/E. The fact is not denied that normal signatures of the plaintiff depart from the normal signatures on Exts. 7/3, and 7/4 and the admitted signatures on documents 7/6-A to 7/6-C, 7/D1, 7/E1, 7/2 plaint Ext. 1 and vakalatnama and a cursory examination of these documents would bear out the obvious disparities between the signatures on Exts.7/3 and 7/4 and the admitted signatures of the documents.

18. Section 67 of the Evidence Act provides that if a document is alleged to be signed or to have been written wholly o: in part by any person, the signature or handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. Section 47 of Evidence Act lays down the mode of proving such signature or writing. It provides that when the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by who it is supposed to be written or signed by that person, is a relevant fact. The explanation to this section clarifies as to who can be said to be acquainted with the handwriting or signature of another person. According to this explanation, a person may be acquainted with the handwriting of a person in three ways: (i) when he has seen a person writing, (ii) when he has received documents purporting to be written by himself, (iii) when in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.

19. P.W.6 Bashir Ahmed Mughal has stated in his examination-in-chief that he is acquainted with the hand-writing and signatures of the plaintiff.

20. It is pertinent to note that these two witnesses namely the plaintiff and her uncle were cross-examined by the learned counsel for the defendant No.3 at length. The learned counsel for the defendants Nos.1 and 2 did not cross-examine the plaintiff and her uncle. Nothing has been asked in cross-examination from P.W.6 Bashir Mughal by the learned counsel for the defendant No.3 in regard to his acquaintance with the signature and writing of the plaintiff. It is a settled position in law that if some fact is deposed to m Examination-in-Chief which is not questioned in cross-examination, the presumption is that the part of the.! evidence is deemed to have been accepted by the party against whom that evidence has been given. Acting on this principle I accept the evidence of Bashir Mughal is respect of his acquaintance with the signature and handwriting of the plaintiff Exts. 7/3 and 7/4 do not bear the signatures of the plaintiff and that the plaintiff was not in Karachi on 1-3-1975.

21. The learned counsel for the defendant No.3 has contended that comparison of handwriting as a mode of proof is hazardous and the learned counsel should not have placed any reliance on the opinion of the handwriting expert. The handwriting expert who has been examined in this case appears to be a man of considerable experience. He has given detailed reasons for reaching the conclusion that the disputed signatures are not in the same hand as admitted signatures of the plaintiff.

22. Nothing has been elicited in the course of the cross-examination of the handwriting expert or his impartiality. Further, there is also the. evidence of plaintiffs uncle who is acquainted with the handwriting of the plaintiff to show that the disputed signatures on the power of attorney, sale agreement and receipt are not those of the plaintiff.

23. Having regard to all these circumstances, I am unable to accept the contention on behalf of defendant No.3 that the disputed signatures on these documents are in the handwriting of the plaintiff.

24. It is admitted position in the case that in spite of appropriate opportunities granted to the defendant No.1, no evidence was examined on his behalf and therefore the pleas raised in the written statement Gled by him remained un-supported. It is well-settled that the written statement is not substantive evidence in a suit and if the defendant does not appear to support the please raised in the written statement and offer himself for cross-examination on facts stated in the written statement the please and/or contentions raised in the written-statement cannot be relied upon (reference may be made to the case of Mst. Khair -ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others reported in P L D 1972 S C 2.5.

25. The defendant No.1 pleaded in his written statement that the plot in suit was allotted to one Miss Maryam Mirza by the Mysore Co-operative Housing Society and the KDA. leased out the plot to the said lady and not to the plaintiff who has misrepresented herself as the said lady Miss Maryam Mirza. The defendant No.1 pleaded that he was introduced to the said lady and purchased the plot in suit from that lady and the said lady executed power of attorney, a sale agreement and a receipt acknowledging payment of consideration. The Plaintiff gave evidence in support of the case that she is also known as Maryam Mirza and she never executed the power of attorney Ext.7/3, sale agreement Ext.7/4 and these documents do not bear her signatures. The defendant No.1 did not cross- examine the plaintiff and her witnesses and did not give evidence. Now with regard to the allotment of plot to one Miss Maryam Mirza and the sale thereof to the defendant No.1, through Ext.7/4 and execution of power of attorney Ext.7/3. 1 It is sufficient to observe that if the plot was not allotted to the plaintiff or that he purchased the plot from Miss Maryam Mirza (not plaintiff) it was incumbent upon the defendant No.1 to cross-examine the plaintiff and to give evidence in support of his pleas raised in the written statement. Having failed to do so it is open to me to treat his evasive denial as to the identify of the plaintiff as Maryam Mirza and she was out of Pakistan from 18-1-1975 to 17-4-1978 and the documents Exts.7/3 and 7/4 do not bear her signatures as stated in the plaint as correct. In this regard reference may be made to Order VIII, Rule 5, C.P.C. and see Ruther v. Tregent (18791 12 Ch.D.2.58.

26. The defendant No.1 has not ventured into the witness-box to contradict the evidence of the plaintiff and her witnesses.

27. I am of the opinion that it is the bounden duty of a party personally knowing the whole circumstances of the case to cross-examine the plaintiff and her witnesses and to give evidence on his own behalf and to submit to cross- examination. His nor.-appearance as a witness would be the strongest possible circumstances going to discredit the truth of the case.

28. The failure of the defendant No.1 to go into the witness-box without any explanation whatsoever at once puts him out of Court.

29. Adverse inference can be drawn against him, that is, the documents Exts.7/3 and 7/4 are forged documents and that these documents were not executed by the plaintiff and the plaintiff never entered into any agreement of sale and the plaintiff is known as Maryam Mirza.

30. Mr. Aziz Khan has made strong comments on the absence of defendant No.1 from the witness-box and contended that because of such absence I ought to presume that he kept himself away from the witness-box in order to prevent the truth coming out from his lips. Before the Court can be called upon to make any presumption of the kind it is for the plaintiff to satisfy the Court prima facie that she has made out a case. The question then is what is prima face case. All the evidence of ownership and non-execution of power of attorney, sale agreement and receipt is there. It is surely prima facie evidence. The distinct charge in the evidence from the witness-box is (1) that the plaintiff is real allottee and lessee of the plot in suit and (2) that the documents Exts.7/3 and 7/4 are forged documents. That is the prima facie case. The defendant does not come himself nor calls any witness to deny these serious allegations of fact. Whether the Judge should believe one witness or another or one case or another in such a context of facts is not then a question of prima facie case. It is then a question of the weight of evidence and its credibility. The very fact that the defendant No.1 neither came to the witness-box himself nor called any witness to contradict evidence given on oath against him shows that these facts cannot be denied. What was prima facie against him became conclusive proof of his failure to deny.

31. For these reasons on the evidence as a whole and on the evidence of individual witnesses, I hold that the plaintiff is Maryam and she did not execute the power of attorney Ext.7/3 and agreement of sale Ex.7/4. I, therefore, hold that documents Exts.7/3 and 7/4 do not bear the signatures of the plaintiff and are forged and invalid documents and I accordingly answer issue No.1 in the affirmative.

32. ISSUE N0.2.

33. The learned counsel for the plaintiff has contended that the lease deed was executed on 14-1-1975 and presented for registration on 15-1-1975. It bears the signature of the Plaintiff. A receipt Ext.10/1 was issued by the Sub-Registrar Office for registration of the lease deed. The lease deed was not collected by the plaintiff as she left for London on 18-1-1975 after handing over to her uncle Bashir Mughal. The learned counsel for the plaintiff has placed relied on the evidence of plaintiff Maryam, her uncle Bashir Mughal and P.W.4 Ghulam Muhammad (Ext.10) clerk from the Office of Sub-Registrar No.8, at Karachi. On the basis of this evidence, the learned counsel for the plaintiff has submitted that lease deed (Ext.7/1) was not delivered to the plaintiff or to her uncle. In my view the receipt Ex. 10/ 1 was not surrendered by the plaintiff or her uncle but the lease deed was obtained by the defendant No.1 practising fraud and forgery.

34. I, therefore, hold that lease deed (Ext.7/1) was obtained by the defendant No.1 from the office of the Sub-Registrar by practising fraud and forgery and I accordingly answer the issue No.2 in the affirmative.

35. ISSUES NOS.3 & 4.

36. As I have held that the plot bearing No.B-13, Block 12, K.D.A. Scheme No.16, Federal "B" Area, Karachi was allotted to the Plaintiff, the lease deed (Ext.7/1) in respect of the plot in suit was given to the Plaintiff by the K.D.A. It was executed on 14-1-1975 and presented for registration on 15-1-1975. I find that the plaintiff is the owner of the plot in suit and the plaintiff never sold the same to the defendant No.1. I have held that power of attorney and sale agreement are forged and these documents do not bear the signatures of the plaintiff and the plaintiff never sold the same to the defendant No.1.

37. The plot in suit could not be transferred in favour of the defendant No.1. In this view of the matter the defendant No.1 had no authority to sell or transfer the plot in suit to defendant No.2 and the defendant No.2 in his own turn had no authority to sell the same to defendant No.3. 1, therefore, hold that the sale of the plot in suit by the defendant No.1 in favour of defendant No.2 is not valid as h had not derived any title from the plaintiff. The same position is also in respect o the sale in favour of defendant No.3. Issues are accordingly decided.

38. Mr.Abdul Aziz contends that the present case falls under section 39, Specific Relief Act, as regards the relief by way of cancellation of these documents and deeds and under section 42 of the Act as regards the declaratory relief sought.

39. Now the relief as to cancellation of an instrument is, as pointed by storey, founded upon the administration of the protective justice for fear that the instrument may be vexatiously or injuriously used by the defendant against the plaintiff when the evidence to impeach it may be lost or that it may throw a cloud of suspicion over his/her title or interest. Section 39, Specific Relief Act, is based upon the same principle, and under that section three points have to be borne in mind: (1) the written instrument in question is either void or voidable as against the plaintiff, (2) who may reasonably apprehend serious injury from the instrument being left outstanding, (3) in view of all the circumstances of the case, the Court considers it reasonable and proper to administer the protective and preventive justice asked for. The relief the Court can grant is of a limited character. The reliefs are (1) adjudge that the instrument is void or voidable, (2) Order it to be delivered up and cancelled.

40. The question then is whether the Plaintiffs case satisfies these three conditions. 1 will assume that the Power of Attorney (Ext.7/3) Sale agreement ,i (Ext.7/4), Sale-Deeds dated 4-2-1978 (Exts.7/2 and 15/2) and sale-deed dated 25-3-1978 (Ext.15/1) are void or voidable against the Plaintiff. But what is the serious injury which the Court can say was reasonably apprehended by the Plaintiff? The Plaintiff apprehends serious injury from the documents and instruments being left outstanding. The Plaintiff proved that the documents (power of attorney and sale agreement) do not bear her signatures and these documents are forged. By these forged documents the defendant No.1 admittedly got the plot in suit. In fact he got promptly sold to defendant No.2. The case comes within section 39, Specific Relief Act.

41. The next relief sought is one for declaration under Section 42 of the Act.

42. The question is whether the conditions under that Section are satisfied. I assume that the conditions exist as there is infringement or threatened infringement of her right to the plot in suit, in other words, a cloud must be cast on her title before she can ask for its removal. She has alleged and proved hostility on the part of the defendants.

43. ISSUE N0.5.

44. There will, therefore, in my opinion, the Plaintiff be entitled to the following reliefs: -

(a) the plaintiff is the lawful leasehold owner of the residential plot of land bearing No.B-13, Block No.12, K.DA. Scheme No.15, Federal "B" Area, Karachi.

(b) the defendant No.3 shall deliver possession of the above plot., too the plaintiff within one month from the date of this judgment.

(c) deliver up and cancel the following documents:-

(i) General power of attorney dated 1-3-1978 purported to be executed by the plaintiff in favour of the defendant No.1.

(ii) Sale-deed executed on 4-2-1978 in respect of the aforesaid plot registered on 4-2-1978 as registered No.656 at pages 74 to 78, Volume 237 of Book Additional at the Office of Sub-Registrar VII, Karachi.

(iii) Sale agreement dated 1-3-1978 purported to be executed by the plaintiff in favour of the defendant No.1.

(iv) Sale-deed executed on 4-2-1978 in respect of the aforesaid plot registered on 4-2-1978 as registered No.655 at pages 70 to 73, Volume 237 of Book Additional at the Office of Sub-Registrar-VII, Karachi.

(v) Sale-deed executed on 25-3-1978 in respect of the aforesaid plot registered on 25-3-1978 as registered No.1614 at pages 14 to 16, Volume 263 of Book No.1 Additional at the Office of Sub-Registrar-VII, Karachi.

(vi) The defendants Nos.1, 2 and 3 or anyone else claiming through or under them are restrained from interfering with the lawful title, claim and enjoyment of the plaintiff over the aforesaid plot.

(vii) The plaintiff shall also be entitled to costs of the suit against the defendants.

45. The Registrar is directed to send a copy of the decree to the Sub Registrar-VII, Karachi who shall note in the book that the instruments have been delivered up and cancelled.

46. AA./M-496/K Suit decreed.