S. M. IQBAL Versus Mst. ROSHAN ARA

ORDER

ADNAN IQBAL CHAUDHRY, J.--- The plaintiffs 1 to 3, 5 to 7 and the defendants are siblings. The plaintiffs 4(i) and (ii) are children of their deceased sister, The Suit is essentially one for administration of immovable properties left behind by their parents. The suit has been filed by the plaintiff No.1 (S.M. Iqbal) for self and as Attorney of the other plaintiffs.

2. Amongst the properties that are subject matter of the suit is one House No.R-732, on a plot measuring 120 square yards, Block 16, Federal 'B' Area, KDA Scheme No.16, Karachi, comprising of ground plus two storeys (hereinafter 'House R- 732'). The father of the parties (Syed Muhammad Suleman, 'the Deceased') had become owner of House R-732 in the year 1991 when it comprised of a ground floor only. He passed away on 21-11-2002. The defendant No.2 claims that the Deceased had gifted House R-732 to him during his lifetime; that such gift was recorded vide a Declaration of Gift dated 20.12.1997 duly registered (the date on the Declaration of Gift appears to be 22-7-1998); that the mutation of House R-732 had been effected in his favour by the erstwhile CDGK vide Transfer Order dated 17-12-2007 (on record); and that it was he (the defendant No.2) who thereafter constructed the upper floors of House R-732 from his own funds. By this suit, the plaintiffs pray inter alia for a cancellation of the said Declaration of Gift.

3. There is some history of litigation between the parties. The record shows that the defendant No.3 had filed Suit No.1020/2015 against the other parties herein before the VIth Senior Civil Judge Karachi Central, asserting inter alia that as legal heir of the Deceased she is a co-sharer in House R-732 and praying for protection of her erstwhile possession of the ground floor of House R-732. Suit No.1020/2015 was allowed to be withdrawn unconditionally on 5-8-2017 and the application of S.M. Iqbal and S.M. Furqan (defendants 6 and 8 in that suit and plaintiffs 1 and 2 in this suit) to be transposed as plaintiffs in that suit, was dismissed simultaneously. Such order of the VIth Senior Civil Judge was challenged by S.M. Iqbal and S.M. Furqan (plaintiffs 1 and 2 herein) by Revision Application No.61/2017 which was dismissed by the VI Additional District Judge Karachi Central, and thereafter by a Constitution Petition No.D 7883/2017 which was not pressed on 28-11-2017 so as to avail alternate remedy. The defendant No.2 also filed a Constitution Petition No.D-2113/2017 seeking protection against harassment by the plaintiffs 1 and 4(i) herein, and for recovering possession of the 1st and 2nd floor of House R-732 from them - the latter prayer being dropped so as to raise it before the proper forum. Thereafter, the defendant No.2 proceeded to file Criminal Complaint No.40/2017 under the Illegal Dispossession Act, 2005 before the VI Additional District and Sessions Judge Karachi Central alleging that the plaintiffs 1 and 4(i) (herein) are in illegal possession of House R-732. In filing Constitution Petition No.D-2113/2017 and Criminal Complaint No.40/2017 the defendant No.2 claimed exclusive ownership of House R-732 on the strength of the registered Declaration of Gift in his favour. On being confronted with proceedings under the Illegal Dispossession Act, 2005, the plaintiffs 1 and 4(i) along with the other plaintiffs filed the instant suit praying inter alia for cancellation of the said Declaration of Gift.

4. Vide C.M.A. No. 409/2018, the plaintiffs have made two prayers; the first, to restrain the defendants from dispossessing the plaintiffs from House R-732; the second, to restrain the defendants from creating any third party interest in House R-732 and the other properties subject matter of the suit. However, while arguing the said application, the plaintiffs' counsel confined himself to the first prayer only, and since only the plaintiffs 1 and 4(i) and (ii) (out of the parties to the suit) are said to be presently residing in House R-732, the said application is a matter only between them and the defendant No.2.

5. Learned counsel for the plaintiffs 1 and 4(i) and (ii) contended that they came to know of the Declaration of Gift in favour of the defendant No.2 only when he filed it in Criminal Complaint No.40/2017 (proceedings pending under the Illegal Dispossession Act, 2005). He contended that the fact that the Declaration of Gift has been produced by the defendant No.2 much after the death of the Deceased, and that the mutation of House R-732 was effected in the year 2007, after the death of the Deceased, indicates that the Declaration of Gift is fabricated. He contended that all legal heirs of the Deceased had contributed to constructing the upper floors of House R-732. He further contended that even if the Declaration of Gift is assumed to have been executed by the Deceased, neither the Deceased (donor) nor the defendant No.2 (donee) were in possession of House R -732 at the time so as to give and take possession thereof, thus making the gift invalid. He therefore contended that House R-732 remained the property of the Deceased until he passed away and thus all his legal heirs inherit in it.

6. On the other hand, learned counsel for the defendant No.2 contended that the said Declaration of Gift being a registered instrument is beyond doubt; that the plaintiffs were all along aware of the said gift and the subsequent mutation of House R -731 to his name thus making the suit time-barred; that the building permit to construct its upper floors (on record) was issued in his name where after he constructed the same with his own funds and let the ground floor of House R-732 to tenants; that he had permitted the plaintiffs 1 and 4(i) and (ii) to reside in the 1st and 2nd floors respectively for a temporary period; that the plaintiff No.1 was then living in a flat and had requested the defendant No.2 for the use of the 1st floor of House R-732 for his daughter's wedding; and that when the defendant No.2 desired House R-732 for his personal need and asked the plaintiffs 1 and 4(i) and (ii) to vacate it, not only did they refuse to do so, they also forced the tenants out of House R-732. Learned counsel for the defendant No.2 contended that the suit has been filed to perpetuate unlawful possession and to hinder the proceedings initiated under the Illegal Dispossession Act, 2005. When learned counsel for the plaintiffs was queried as to the manner in which the plaintiff No.1 came into possession of House R-732, he frankly conceded that it was on the request of the plaintiff No.1 for his daughter's wedding, but he submitted that as co-sharer he was entitled to its possession anyways.

7. The facts and law that go against the plaintiffs 1 and 4(i) and (ii) are as follows in the earlier Suit No.1020/2015 a written statement had been filed which appears to have been verified by S.M. Iqbal (the plaintiff No.1 herein and defendant No.6 in that suit), who in para 2 thereof appears to have denied that House R-732 vested in the Deceased at the time of his demise. Even if that is taken to be a case of bad drafting, the fact of the matter remains that there is a Declaration of Gift duly registered of House R-732 in favour the defendant No.2, followed by a mutation order and a building permit in his favour. In my view, until the Declaration of Gift is proved to be fabricated or invalid on the trial of the suit, it is an embodiment of the exclusive ownership of the defendant No.2 of House R-732, and till such time the plaintiffs 1 and 4(i) and (ii) cannot assert any ownership in House R-732 and consequently cannot preserve their possession thereof on that plea. This brings us to the question of the-nature of the possession of the plaintiffs 1 and 4(i)&(ii). Both in Constitution Petition No.D-2113/2017 and in Criminal Complaint No.40/2017 it is defendant No.2's own case that he had allowed the plaintiffs 1 and 4(i) to reside in House R-732 in the years 2012 and 2010 respectively albeit temporarily. The fact that they came into possession of House R-732 after the death of the Deceased is not denied by the plaintiffs 1 and 4(i) and (ii), nor is it their case that they were given possession for consideration. In the circumstances, I am of the view that the plaintiffs 1 and 4(i) and (ii) occupied House R-732 only as licensees of the defendant No.2 which license was revoked by the defendant No.2 at least by conduct, and on such revocation the defendant No.2 is entitled to seek possession by use of means available to him under law. It is not the case of the plaintiffs 1 and 4(i) and (ii) that the defendant No.2 is seeking to dispossess them from House R-732 without due process of law, but that for such purpose he has invoked the provisions of the Illegal Dispossession Act, 2005. The question whether the defendant No.2 qualifies for possession of House R-732 under the Illegal Dispossession Act, 2005 or not, is a question that is to be decided by the Court seized of those proceedings. The case law cited by the learned counsel was on the validity or invalidity of a gift under Muhammadan Law and on the limitation of a suit for cancellation, but of which, in the circumstances of this case, are questions of fact to be decided after evidence.

8. For the foregoing reasons, C.M.A. No. 409/2018 is dismissed but in the above terms. However, the observations or findings herein shall not be used in influence proceedings pending in Criminal Complaint No. 40/2017 under the Illegal Dispossession Act, 2005.

ZC/S-23/Sindh Order accordingly.