Qazi AZIZ-UL-HASSAN NIZAMI Versus MUHAMMAD ZAMIN NIZAMI
ORDER
ZULFIQAR AHMAD KHAN, J.--- Facts giving rise to the instant revision application are that the Applicant filed Suit No.941/93 in the Court of 1st Sr. Civil Judge West, Karachi, for perpetual injunction and cancellation of documents (in the name of the current respondent - his uncle), where the court decreed the suit vide judgment/decree dated 25.11.2003, which was challenged by the current respondents; allowed on 26.04.2004 setting aside judgment/decree passed by the lower court, against which the applicant has preferred this revision. Detailed legal history of the instant revision is that:
(a) the applicant filed Suit No.716/91, which was later withdrawn by him;
(b) the applicant then filed Suit No. 942/92, which was disposed of on 29.11.1993 holding that "since no title documents have been produced by the plaintiff showing that the property has been transferred to the plaintiff by the Competent Authority or possessions have been given to him, therefore I am of the opinion that a person who has no title documents even if he is in occupation shall be deemed to be a trespasser. A trespasser has no legal right and as such he cannot file this suit. I, therefore, reject the plaint of the plaintiff under Order VII, rule 11, C.P.C. as the present suit is not maintainable and is also incompetent as is evident from the plaint itself with no order as to costs."
(c) This order was challenged in C.A. No. 88/93 before 1st ADJ West, which was dismissed vide judgment dated 16.2.1997 with the following observation that "it is settled principle of law that for the purpose of deciding application under Order VII, rule 11, C.P.C., only the averments made in the plaint are considered and nothing else. But the appellants (present applicant) have only produced bills etc. after the year 1992 though he has claimed possession since 1965 but not produced bills of 1965, therefore Suit of applicants is barred under section 42 of Specific Relief Act. Furthermore, the defendants have title documents of the disputed plots and produced their title document on record, prior to the trespassing of the applicant. Moreso, the appellant has forcibly trespassed on the plots and recently raised construction over the said plots under the garb of status quo obtained by the Court and in this respect report of the Commissioner is also clear. So appellant has not shown and discussed cause of action in the plaint. Learned Trial Court has rightly rejected the plaint and there is no illegality in the order and it is passed according to law, therefore the same is maintained. Further, the appellant has filed Suit only for permanent injunction and not sought any consequential relief. So suit under section 42 of Specific Relief Act is not maintainable. The learned Trial Court has passed order legally and gave reasonable ground for it. I do not find any illegality in the impugned order and the same is not required for any interference. So I maintained the said impugned order. Consequently, the appeal stands dismissed."
(d) Revision No.142/97 was subsequently filed in High Court by the present applicant which was dismissed for non-prosecution on 21.11.2000 and ultimately dismissed as time barred. The said impugned order was not challenged in Supreme Court.
(e) Per the respondent's counsel, while in such circumstances it was necessary to seek declaration at the time of filing the fresh Suit No.941/93 or if filed earlier, by filing amendment of pleadings during pendency of suit, plaint should have amended. The Civil Judge accepting the legal infirmity decreed the suit on framing issue No.8 about the illegality of providing documents of title which documents had been accepted as genuine till the stage of High Court in the above said Revision No.142 of 1997 could not be declared as bogus. The Civil Judge decreed the suit on this issue mainly vide judgment dated 25.2.2003.
(f) The judgment and decree passed in Suit No.941/93 was assailed in C.A. No.78/2003 in the Court of IInd ADJ West, who set aside the Trial Court Decree by his Judgment dated 26.4.2004 on the grounds of Res-judicata under section 11, C.P.C. and non-maintainability under section 42 of Specific Relief Act by holding that "without seeking declaration, respondent No. 1 (present applicant) filed suit before the Trial Court without title or legal character, even then he had not filed suit for declaration........ even otherwise no one has opportunity to file several suits in respect of the same property and on same issue in spite of that, the Trial Court has given opportunity to try the present suit though suit was not maintainable under section 42 of the Specific Relief Act, and hit under section 11 of C.P.C. ..... on issue No.8 burden lies on the plaintiff to prove and not on the respondents. As such allowed the appeal and set aside the Trial Court decree.
(g) With regards Issue No. 8 (the bone of contention in the above Suit No.941/93), the counsel for the respondents informed the Court that the said issue is about the allotment order bearing Serial No.305 dated 15.9.1965 issued by KDA and as relied upon defendants/respondents Nos.1 to 3. The issue raised by the Court is whether the said document is false, bogus or fabricated? While the Trial Court held accordingly but appellate Court reversed the findings by its Judgment dated 26.4.2004 to the effect that on issue No.8, the Trial Court has given findings that respondent No.1 has proved that allotment order at Serial No.2909 and Survey Slip Book No.305 Serial No.12, Book No.30 vide Ex.D/3 and D/14 dated 15.9.1965 issued by KDA relied upon by the defendants Nos.1 to 3 are bogus and fabricated documents and it was observed by the Trial Court that the applicant also failed to examine the author of the said Survey Slip as well as they have not made prayer to call for the office record from the office of KDA to establish that said Survey Slip as a genuine besides the allotment order, "I have gone through issue No.8 and issue No.8 was framed by the Trial Court after perusal of the plaint filed by the Respondent No.1. Therefore, burden lies upon respondent to prove the issue No.8. Burden does not lie on appellant to prove issue No.8 in his favour...... I have already discussed above that suit of the respondent was barred by section 42 of the Specific Relief Act and it was also hit by Res-judicata when the suit of the respondent No.1 is not maintainable under the law and it was not sound by the law, therefore suit of the respondent No.1 could be dismissed, but in spite of that, Court has partly decreed the suit. Therefore, the Judgment of the Trial Court is not maintainable on issue No.8 and liable to be set aside...in view of the above the finding of the learned trial Court on issue No.8 is not sustainable and reversed. Hence appeal is allowed."
Contention of the counsel for the respondents was also that in spite of the fact that the Suit No.941/93 filed in Trial Court was not maintainable under sections 42 and 56 of Specific Relief Act, and hit by Res-judicata under section 11, C.P.C., one more aspect of the case is that the said suit was filed in 1993 and sub-lease of the subject plot has been obtained fraudulently and by misrepresentation in 1997 making it an admitted position that the applicant has obtained the lease from KMC during pendency of the said suit but failed to move any application for amendment of pleading and suppressed this fact and thus applicant has not come in Court with clean hands. It is strangely stated, on one hand the learned Judge is referring Commissioner Report (page 37) which says, plaintiff (current applicant) is trespasser and on the other hand, he says, his possession is proved but in what capacity? Thus the finding of Trial Court is silent, and as such, hits the rights of applicant and the Trial Court should have cancelled the illegally gotten lease. More so, the subject property is not the property of Katchi Abadi, it is regular allotted property which is still intact without any cancellation thereof in the name of original allottee Muhammad Ahmad. The act of the applicant is hit by the doctrine of Lis Pendens which provides that "during the pendency in any court of any suit or proceeding where any right to immoveable property is directly or specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose." This principle is upheld in various court judgments including 1993 MLD 312 holding that no right to immovable property could be transferred pending suit related thereto and no decree could be successfully executed. Thus, the counsel contended, the so-called lease obtained during pendency of suit and without permission of the Court by the applicant, is unlawful and has no legal sanctity. On the basis thereof the Trial Court held his possession as rightful is prima facie illegal and the possession of trespasser could not be accepted as legal possession and the Trial Court should have declared as such.
On the other hand the counsel for the applicant contended as per the following:
(i) The learned appellate judge has wrongly observed in his judgment that the applicant has not sought declaration. In clause B of the prayer, a declaration has been prayed regarding the document of Plot No. L-289/6-F, Orangi Town, in custody of the Defendant, are bogus.
(ii) That the learned Appellate Court failed to appreciate that in prayer clause C of the plaint, direction have been sought against the KMC authority to complete the process of lease as per paid challan in account of KMC as such at this stage declaration of the ownership could not be prayed in the plaint.
(iii) That the learned Appellate Court has illegally held that the judgment of the learned Trial Court is not correct on issue No.8 and liable to be set aside. The counsel contended that the fact is that KDA never issued allotment order but issued Survey slip for plot No.280 only and Respondent manipulated it.
(iv) That the learned Appellate Court simply and summarily passed judgment on 26.04.2006 holding that issue No.8 is liable to be set aside without discussing the documents produced by the Applicant and without perusal of the document produced regarding issue No.8 and without taking consideration of facts of the case.
(v) This Hon'ble Court would appreciate that the relief of declaration is not necessary in such cases where title documents are fully proving exclusive title of the Applicant and that the KMC the City District Govt. Karachi has directly issued a lease deed in favour of the Applicant registered on 28.06.97 in the name of Applicant and after this document, nothing more is required for seeking a declaration in respect of title of the Applicant in the disputed Plot No.289, Sector 6-E, Orangi Town, Karachi.
In the light of the foregoing controversy, when we compare the two judgments before us, the following questions come to our mind, which we will also answer simultaneously:
1. Whether the Suit No. 941/93 filed by the applicant without declaration, hits under sections 42 and 56 Specific Relief Act when there was (and still remains) a dispute as to the ownership of the same property in-between the same parties? We hold that the applicant made a willful default by not disclosing findings of the court, therefor the said suit was rightly bared and hit by Res-judicata and barred under section 11, C.P.C. where the same controversy on the same issues and between the same parties was before the court.
2. Whether the burden of proof lies on the plaintiff/applicant on the issue of survey slip and allotment, whereas the respondents seemingly have discharged their burden by producing a number of documents already exhibited in evidence? Yes, we agree that the burden of proof is always on the person who makes any allegations so it was for the applicant to discharge this onus. However while considering this issue, we also cannot ignore the judgment in the case of Suit No. 942/1992 where the court in respect of the same property held the present applicant to be a trespasser. While the applicant is vehemently bent upon to have title of the respondents declared bogus, he has not shown any document prior to the year 1997 (when the suit was already pending between the parties - thus barred by the doctrine of Lis Pendens) to prove any right, title or interest in the disputed property to which he claims to have been enjoying since 1965.
3. Whether the learned appellate court filed to give any lawful grounds for reserving Issue No.8? In our view this contention of the counsel for the applicant that the appellate court arbitrarily decided Issue No.8 in the respondent's favor is not correct. A mere review of the judgment, where the learned judge has deliberated on Issue No.8 depicts how comprehensively the issue has been dealt with. Portions of the judgment regarding the said issue are reproduced in the following:
(a) In relation to issue No. 8 being "Whether the allotment order of serial No.305 dated 15.9.1995 as issued KDA as relied upon defendants Nos.1 to 3 are false, bogus and fabricated documents? If so whether the same are liable to be cancelled?" the trial court recorded evidence of the respondents P.W.1 vide Ex.P/1, he produced original challan amount to Rs.12,792 as Ex.P-1/A, Photostat copy of payment money for lease purpose as Ex.P-1/B, Surety slip as Ex.P-1/C and allotment order as Ex.P-1/D, Original Survey Slip as Ex.P-1/F.P.W.1 was cross-examined. Thereby side of the respondent was closed.
(b) In rebuttal appellant No.1 examined himself as D.W.1 vide Ex.D/2. He produced documents Original Survey Slip as Ex.D/3, certified true copy of allotment as Ex.D/4, certified true copy of receipt of part payment as Ex.D/5, Original payment receipts of further payment as Ex.D/6- A and Ex.D/6-B, certificate issued by Educational officer in respect of Nationalization as Ex.D/7, payment of rent receipt paid by the Government as Ex.D/8, Certified true copy of heir-ship as Ex.D/9, certified true copy of general power of attorney in favour of plaintiff executed by the mother as Ex.D/10, certified true copy of NIC of the plaintiff and his mother showing their residence as Ex.D/11, certified true copy payment of pay his transfer order and retirement order of the plaintiffs father as D/12 to D/14, copy of applications filed by the people of Mohalla as Ex.D/15 to D/17, copy of publication as Ex.D/18-A and D/18-B, copy of the Newspaper as Ex.D/19, copy of the suit No.941/1992 as Ex.D/20, certified true copy of the plaint bearing suit No.942/92 as Ex/21, Commissioner's Report as Ex.D/22, certified true copy of order in CS.941/92 as Ex.D/23, certified true copy of order in C.S 942/92 as Ex.D/24 to D/26, certified true copy of judgment in Civil Appeal as Ex.D/29 and D/30, copy of order in Civil Revision as Ex.D/31 to D/34, reply of the KDA as Ex.D/35, copy of objection filed before KMC as Ex.D/36, Bills of KESC as well as KMC Tax payment as Ex.D/37 and D/38 and also produced Electric Bill, Gas and Water and Sewerage Bill as Ex.D/39 to D/41, Mutation in favour of defendant father Muhammad Ahmed as Ex.D/42 and in respect of plot No.282 as Ex.D/43 and its payment as Ex.D/43-A, notice issued by the KDA as Ex.D/44, and so also another notice as Ex.D/45 certified true copy of lease of plot 288 and 289 as Ex.D/46 and D/47, application filed before the administrator KMC as Ex. D/48, Original Sketch of Maderassa Madinatul Uloom as Ex.D/49, marriage card of the plaintiffs sister as Ex.D/50, counsel for the plaintiff cross-examined the said witness.
(c) I have already discussed in above that court has decided 8 issues and issue No.8 decided by the trial court in favour of the plaintiff/respondent No.1. In the present case trial court has decided issues Nos.1, 2 and 3, which are legal issues, but findings of the trial court are silent on the all three issues. No proper finding was given by the learned trial Judge. After perusal of the record it appears that respondent No.1 filed suit in respect of the property in question i.e. Suit No.716/1992 and Suit No.942/1992 prior to the Suit No.941/1993, but all the suit were decided against respondent No.1, even plaint of the Suit No.942/1992 was rejected and said order maintained up to the level of Hon'ble High Court, therefore, the suit filed by the respondent No.1 before trial Court being suit No.941/93 is barred under section 11 of the C.P.C. and respondent No.1 has no right to file present suit with the trial court without seeking declaration.
(d) Even otherwise no one has opportunity to file several suits in respect of the same property and on same issue inspite of that trial Court had given opportunity to try the present suit though suit was not maintainable under section 42 of the Specific Relief Act and hit under section 11 of C.P.C.
(e) On issue No.8 the trial court has given findings that respondent No.1 has proved that allotment order at serial number 2909 and survey slip book No.305 serial No.12 Book No.30 vide Ex.D/3 and D/4, dated 15.9.1965 issued by the KDA relied upon by defendants Nos.1 to 3 are bogus and fabricated documents and it was also observed by the trial court that the appellant also failed to examine the author of the said survey slip a well as they have not made prayer to call the office record from the office of the KDA to establish that said survey slip as a genuine besides the allotment order. I have gone through issue No.8 and issue No.8 was framed by the trial court after perusal of the plaint filed by the respondent No.1. The entire burden lies upon respondent to prove the issue No.8. Burden does not lie on appellant, to prove issue No.8 in his favour. I have already discussed above that suit of the respondents was barred by section 42 of the Specific Relief Act and it was also hit by res-judicata. When the suit of the respondent No.1 is not maintainable under the law and it was not sound by the law, therefore, suit of the respondent No.1 could be dismissed, but inspite of that court has partly decreed the suit, therefore, the judgment of the trial Court is not sustainable on issue No.8 and liable to be set aside. In view of the above the finding of the learned trial court on issue No.8 is not sustainable and reversed. Hence appeal is allowed.
As it could be seen from the foregoing portions of the judgment, the learned Appellate Court has fully deliberated on Issue No.8 and has given judicious reasons to reach to the conclusions, therefore the assertion of the learned counsel of the applicant that Issue 8 was arbitrarily decided are unfounded in this respect.
To us, the point to ponder is that the trial court made grave error while considering the lease documents created by the present applicant (and her mother) in the year 1997 to tilt the balance in their favour, when a dispute in respect of the said plots was already pending and under adjudication before the same court. Such determination is in complete disregard to the doctrine of Lis Pendens (1992 CLC 1288) which is a general rule recognized in all regular systems of jurisprudence, meaning that during the pendency of an action, of which the object is to vest the property or obtain the possession of real estate, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. It is embodied in the form section 52 of the Transfer of Property Act, 1882 which provides as under:-
52. Transfer of property pending suit relating thereto.
During the pendency in any Court having authority in Pakistan, or established beyond the limits of Pakistan by the Federal Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
As it could be noted from the above, the very intent of the said doctrine is for the better and more regular administration of justice and its substance is not only based on equity but also on good conscience and justice (2012 SCMR 983) and if a party to any suit or proceeding pending adjudication engineers title documents in respect of the disputed property and attempts to tilt the balance in his favour, this amounts to short-circuiting the system of administration of justice and the Trial Court ought not to have accepted the documents produced by the present applicant in respect of the property in dispute. Such view has been upheld by the Apex court in a number of cases including 2005 SCMR 1395 and 1999 SCMR 2874.
Also of relevance is the study of work of John Bennett on Lis Pendens (A Treatise on the Law of Lis Pendens by John I. Bennett) where he observes that the decree or judgment (coming out in such disputes) to be final must be of "such a character as puts a conclusion to the matters in question in the suit. Since the vacuum created by the judgment of the Trial Court in respect of the title of the properties in question is still haunting courts, we do not see any conclusivity in these orders.
Having re-examined the material on file and in the light of the submissions of the learned counsel, being cognizant of the fact that revision being not an appeal is a limited jurisdiction and the Court can only see whether the order passed is within the jurisdiction or there is any miscarriage of justice; we are of the view that the Trial Court Judgment (of 1st Senior Civil Judge, Karachi West) suffers from inherent legal infirmity where fraud and misrepresentation was committed by the present applicant and the impugned judgment was obtained through concealment of facts. Notwithstanding therewith, while in respect of issues 1-3 findings of the trial court are silent; in respect of issue 4 the court without touching merits, has acknowledged possession of the present applicant; in respect of issues 5, 6 and 7 the court went into grave error and accepted the lease obtained by the present applicant during pendency of the trial as legit; and per issue 8 the court declared respondent's documents bogus - all in one breath. We view these findings unlawful having no legal sanctity and, inter alia, contrary to the doctrine of Lis Pendens described hereinabove, thus liable to be dismissed. Whereas the judgment in appeal does not suffer from any material irregularity and there appears no jurisdictional error or failure of proper appreciation of evidence on record; thus liable to be maintained and no interference is called for, therefore, making the instant revision liable to be dismissed.
This revision is thus dismissed. Cost of Rs. 5,000 is imposed which shall be paid by the applicant for obtaining judgment/decree in the earlier suit on the grounds of fraud and concealment of facts.
ZC/A-39/Sindh Revision dismissed.