ZAFAR ALI BHUTTO Versus HABIBULLAH SIAL

ORDER

1. TANZIL-UR-REHMAN, J.- -This is a constitution petition under Article 199 of the Constitution of Pakistan, 1973. The petitioner claims ownership in respect of a shop bearing No.TCD-2, situated on Plot No.C-905, by virtue 'of purchasing the plot from Washdeve alias Washoram and his mother Duwarki Bai, by registered sale-deed, dated 11-11-1987 and from Chohrarmal, Hakumat Bai and others by an agreement dated 17-10-1965. His grievance is that he has been unlawfully dispossessed from the shop and the mercantile goods lying therein were seized by Mukhtiarkar and 1st Class Magistrate on 25-6-1988 at 10.00 a.m. at Dharaki. The Chairman Twon Committee Dharaki has filed a counter affidavit of one Pervez Ali Town Officer, Town Committee Dhaharki District Sukkur for and on behalf of respondent No.2 wherein it has been specifically averred that Shop No. TCD is property of the Town Committee which was initially in the year `1974 let out to one Munir Ahmad son of Ali Ahmad. Later on, Mohammad Bashir was accepted to be co-tenant with him. A true copy of the agreement of Tenancy has also been annexed to that counter-affidavit. It is further averred in the said counter affidavit that the aforesaid tenant not only committed default in payment of rent for over eighteen months but also illegally and unauthorisedly handed over possession to one Mohammad Rasul. The Town Committee, therefore filed an application before Mukhtiarkar/Tribunal Dharaki for ejectment and possession of the shop which is public property. It is further averred that the petitioner is the Medical Officer in the service of Sind Government and posted in Rural Health Centre Dharaki. He is neither the owner nor has ever been in the business or in occupation of the shop in question. It has further been averred that the sale deed, and agreement are manipulated documents. The executant had long back migrated to Bharat. An extract from Deh Form No.2 has also been annexed with the counter-affidavit.

2. Mr. Nooruddin Sarki, learned counsel for respondent No.1 submits that the petitioner did file another C.P.No. D-728 of 1988, wherein draft of proposed FIR was filed by one Haji Mohammad Hasul, attorney of the petitioner, in respect of unlocking the shop and getting back the shop in question. The said petition was, however, dismissed as infructuous on the admission of the Counsel for the petitioner by order dated 15-8-1988, passed by another Division Bench.

3. We heard Mr. Nasiruddin and Mr. Nooruddin Sarki, at some length. It is noticeable that the alleged sale-deed Ex.C.1 Annex A/2 shown to have been executed in the month of November 1987, has been challenged by the Town Committee as a fabricated document, for the Hindu owners had a long ago migrated to Bharat. Furthermore, another document which is described as sale deed by the petitioner is cot a sale-deed. It appears to be an agreement on Rs.5 non-judicial stamp paper. Evidence will be required to resolve the question of title.

4. It also appears from the record that Muhammad Munir and Bashir were the tenants of the Municipal Committee since 1974 and Hasul, father--of the petitioner under some deal unauthorisedly occupied the shop and, therefore, notice was issued against the said tenants through Hasul, who was shown in unauthorised occupation of the said shop for non-payment of rent due to the Town Committee; action was taken under Sind Public Property (Removal of Encroachment) Act, 1975. This will require evidence on possession, we feel that the matter involves disputed question of facts as to the title and possession of the shop in question which cannot be resolved in a Constitution petition.

5. For the above-said reasons, the petition is dismissed in limine.

2. In view of the above order C.MA. No.189 of 1988 is also dismissed, as infructuous.

6. H.B.T./Z-95/K

7. Petition dismissed.