1. ' This Revision Application arises out of an order dated 12-2-1999 passed by the learned 1st Additional District Judge, Karachi Central, in Civil Miscellaneous Appeal No.1996, upholding the order dated 23-10-1996 passed by the learned Vth Civil Judge, Karachi Central, in Execution Application No.26 of 1996, (Civil Suit. No.1079 of 1985, Old No.2271 of 1970). The learned Civil Judge by said order rejected the objections on said Execution Application filed by the Third Party/ Objector (present applicant) and allowed the execution in favour of the applicant/Decree-holder.
2. ' Briefly the facts of the case is that the respondent No.1 (Noor Muhammad/ plaintiff) has filed a Civil Suit bearing No.1079 of 1985 (Old No.2271 of 1970) against No.2 (Syed Muhammad Naqvi/ defendant) with the following prayer:
(a) That the defendant be ejected from Quarter No.21/106, 11-G Area, 7, New Karachi and the possession of the said Quarter may please be given to him.
(b) Cost of the suit be awarded to him.
(c) Any other relief the Court deem fit and proper may please grant to him.
3. ' The learned Civil Judge framed the following issues:
1. Whether the suit is not maintainable?
2. Whether the plaintiff is the same person to whom the quarter in dispute was allotted?
3. Whether the plaintiff was in possession of the quarter in dispute?
4. Whether the plaintiff was dispossessed by the defendant without his consent otherwise than in due course of law?
5. What should the decree be?
4. ' Both the parties contested the case for about 16 years and evidence of both sides was recorded by the learned Civil Judge. The learned Civil Judge by giving strong reasons decided all the issues in favour of the respondent No.1 and decreed the case in favour respondent No.1/ plaintiff, by the judgment dated 1-3-1986. This judgment was not challenged by way of appeal before any forum/Court of law by the respondent No.2/judgment-debtor.
5. ' The present applicant of this application filed his objections as Objector under Order XXI, rules 26, 58, 97, 99 and 103, C.P.C. Read with section 151, C.P.C. Before the learned Civil Judge in Execution Application No.26 of 1986 filed by the respondent No. 1/Decree-holder against respondent No.2 judgment-debtor. The said application was dismissed on 17-10-1987 on merit after framing issues and recording evidence by the learned Civil Judge. Against the order dated 17-10-1987 the objector filed an appeal which was allowed by the learned 3rd Additional District and Sessions Judge, Karachi Central, by the order dated 28-8-1998. The operative Para of order is reproduced hereasunder: "I have gone through the order passed in Execution Application No.26 of 1986 dated 17-10-1987 on the application of the Claimant. The point of the controversy is in between claimant, (appellant) and Respondent that who is actual owner of Quarter No.106/21. The main witness in this case K.D.A.
6. But trial Court has not examined the K.D.A. To come on the conclusion that the documents produced by the claimant, are Forged and manipulated.
7. ' Admittedly the appellant is enjoying the possession of the disputed quarter at present and he has produced the title i.e. K.D.A. With the application. I am, therefore, of the constant view that (sic) it whether the documents produced by the claimant are manipulated and these are not genuine. I therefore, set aside the order of the lower Court and remand back the case to record the evidence of the K.D.A. As it will be proper to decide the controversial issue in between the parties. Appeal is allowed with no order as to costs."
8. ' The respondent No.1/decree-holder has filed civil revision application between Honourable High Court against the said order dated 28-8-1988 of learned 3rd Additional District Judge, Karachi Central vide Civil Revision Application No.3 of 1989. The learned Judge of this Court had refused to interfere vide order dated 31-1-1993 and observed as under: ....Mode and manner in which Muhammad Ehsan admittedly, came into possession were thoroughly irregular and besides there were contradictions in the evidence led from the side of said Muhammad Ehsan. These facts, to my mind, would have required a closer examination to determine whether or not the referred Muhammad Ehsan came into possession of the disputed property through judgment-debtor, Syed Muhammad Naqvi, and that precisely is what would be projected if the order of remand of the learned Additional District Judge in C.M.A. 102 of 1987 is duly given effect to.
9. ' In the foregoing circumstances, I see no cause of interference and direct that upon remand, the learned Civil Judge would proceed expeditiously in disposing of the matter of claim of Muhammad Ehsan, aforesaid, in the maximum period of 4 months from the date this order is communicated."
10. ' The case was remanded to the trial Court with the above observation of learned Judge of this Court for compliance of order of learned 3rd Additional District Judge, Karachi Central and order of this Court dated 31-1-1993. The Civil Judge, in compliance of above orders, proceeded the matters and examined the officer of K.D.A and heard the learned counsel of both the sides and counsel of objector/intervenor. The Civil Judge has examined the case from all the four corners, has gone in depth to dig out the real and true owner of this quarter. The learned Civil Judge has passed the order on 23-10-1996 which reproduced hereasunder:- "Heard the learned Advocate for the parties and perused the record of the case, the parties also filed their written arguments as well. The case of the intervenor is that he came in possession of suit property since before 1978, when respectable persons through one Muhammad Ismail gave him possession of his request when he was in need of house. Thereafter, he submitted application in K.D.A. To allot said house in his favour and K.D.A issued allotment. The claimant/intervenor further deposed that he had no knowledge that it was allotted to any other. In cross- Examination the intervenor/ claimant admitted that before shifting in suit property he was living in same locality where he lived four/five years. He further submitted that while he was in need of a house Ismail told him that it is disputed house and he shifted at his own risk."
11. ' The above evidence of claimant/ intervenor when scrutinized keeping the evidence of K.D.A.
12. Recorded on 17-8-1996, producing documentary evidence on record shows material contradiction.
13. The simple nature of allotment of suit plot by K.D.A in his name as claimed by intervenor in execution proceedings seems to be more complex and do not appear to be synchronised with the plea of the claimant/intervenor. The record of K.D.A. Shows that one Mr. Umer Farooq son of Abdul Sattar filed a statement on oath produced by K.D.A. Witness as Exh.-4.A. (ii) purportedly executed by decree-holder by affixing his thumb's impression in favour of said Umer Farooq. No date of execution is available on the said statement. Its contents do not disclose that the subject-matter i.e. Suit property was sold out to Umer Farooq, who is said to be residing with said Noor Muhammad son of Ghulam Rasool. Further it is stated in said statement on Oath that executant delivered all documents as well as possession of suit property to him. He also authorized him to correspond with K.D.A. For transfer and lease. On the basis of this statement on Oath the intervenor executed sale agreement produced as Exh.4.A. (vii) with said Umer Farooq on 7-7-1978 in respect of suit property.
14. In the said agreement intervenor admittedly the ownership to Umer Farooq by virtue of sale agreement with the original allottee of suit property namely Noor Muhammad son of Ghulam Rasool. The claimant/ intervenor execution indemnity bond and affidavit in favour of K.D.A and produced as Exh.- 4.A.(iv) and 4.A(v) respectively. Exh.4-A.(iv) an indemnity bond do not disclose the date of execution but it was solemnized before Notary Public on 3-12-1985, wherein, he claimed to be prospective transferee of suit property by virtue of occupation of this quarter since long. No exact date of occupation was disclosed in it. In other affidavit date Nil but attested on 3-12-1985 the claimant/ intervenor stated that there is no dispute whatsoever in any Court, over the ownership of this quarter. It is surprising to note that K.D.A. Authorities how treated this statement true and correct when their own witness produced a document as Exh.-4.A(vi) a summon of own witness produced a document as Exh.-4.A.(vi) a summon of Suit No.2271 of 1990 issued by the Court of XXVth Civil Judge Karachi, directing the Administrative Officer of K.D.A. To appear in Court on 27-8- 1980 for evidence. Record shows that one S. Ali Shamshad, Administrative Officer North Karachi, K.D.A. Appeared and recorded his evidence in Civil Suit at Exh.-P.8, Mr. Rehanul Hassan Farooqui Advocate cross-examined the witness on 28-10-1981.
15. ' The claimant/intervenor in his evidence has admitted that Ismail told him that it is disputed property but nature of dispute was not informed. The intervenor who by occupation is a businessm an as disclosed in his evidence without enquiring about nature of dispute occupied the suit property at his own risk as admitted by him in his cross-examination. However, the witness of intervenor had admitted that in 1970 decree-holder had filed the suit for possession against Mr. Naqvi judgment-debtor but he do not know that Naqvi lost his suit. This statement of C.W.2 Ismail when seen along with the statement of claimant/intervenor who states that Ismail informed him that there is a dispute in respect of house but he occupied it at his own risk, brings a true picture on record.
16. ' Mr. K.A Wahab, Advocate on behalf of the applicant in support of his arguments has relied upon the case of Iqbal Sultan v. Miss Chand Sultan (1990 CLC 366).
17. ' On the other hand the case of decree-holder is that said quarter was allotted to him before 20/22 years. Noor Baba was residing with him. Upon the death of Noor Baba the decree-holder was busy in general arrangement the judgmentdebtor/defendant arrived in his house and illegally and occupied his quarter. He filed the present suit against him. He produced allotment order as Exh.-P- 9, as well as copy of N.I.C. To the fact that he is Noor Muhammad son of Ghulam Rasool P.W.3, A.O.
18. Of K.D.A. Has confirmed that quarter was allotted to decree-holder Noor Muhammad. The K.D.A.
19. Witness examined at Exh-4-A (I) who also admitted that there is no record in K.D.A. File which may show that K.D.A. Has cancelled the allotment of Noor Muhammad. He further admitted that K.D.A.
20. Did not issue any notice to Noor Muhammad when Ehsan appeared for the allotment and lease before K.D.A. The said witness of K.D.A. In his evidence deposed that one Umer Farooq approached K.D.A. And filed statement on Oath purportedly executed by and bearing thumb-impression of Noor Muhammad that possession of said quarter has been handed over by Noor Muhammad to Umer Farooq and said Umer Farooq executed sale agreement with intervenor and on these documentation along with affidavit and indemnity bond of intervenor the said quarter was allotted to him. The learned counsel for intervernor in his cross-examination did not challenge the Sale Agreement dated 7-7-1978 between Umer Farooq and intervenor. He did not put a single question regarding the validity of both documents. Further the said K.D.A. Witness admitted that usual routine in K.D.A. Is that whosoever purchases the property he files documents viz; statement/ agreement/purpose. Thus this Sale Agreement was also treated to be filed by intervenor along with other documents and on the basis of these documents K.D.A. Mutated the suit quarter in the name of intervenor. The K. D. A . Witness brought new facts before this Court which are not pleaded and/or concealed by intervenor in his application under section 12(2), C.P.C. In such circumstances this Court may presume existence of certain facts when the intervenor who took a long period from 1978 to 1986 while negotiating with K.D.A. As admitted by him in this cross-examination. What resulted in 8 years negotiations that two documents produced as Exh-4-A (ii) and Exh-4-A(vii) on record by K.D.A. Have been concealed and had not been brought on record by intervenor. Under Article 129 of Qanun-e-Shahadat, this Court may presume that intervenor did not purposely produced documents as he wanted to show that he had no knowledge about the original ownership of suit plot in the name of decree-holder; which will link him with the judgment-debtor from whom he received possession. It is observed by the learned trial Court in his order dated 23- 10-1996 as under: "It is admitted fact that possession of suit quarter was delivered to the claimant by said Naqvi judgment-debtor/defendant. D.W.2 Muhammad Sharif and D.W. Inayat Ali confirmed this fact in their statement. They have also confirmed that decree-holder is Noor Muhammad and not Jamal Ahmed, as Exh-9 is proof of this fact. The claimant/intervenor on other hand has produced his N.I.C.
21. Issued on 17-12-1986, bearing the address of suit quarter, as Exh-C-5. The signature on this N.I.C. Is similar to signature available on Exh.4.A (vii) i.e. Sale Agreement executed on 7-7-1978 by Umer Farooq and intervenor. Since the intervenor has relied upon his N.I.C. 503-85-2266017, issued on 17- 12-1985, with endorsement of another N.I.C. Issued to him bearing No.449-29- 77502, no cogent reason is on record for revising the old NIC on 17-12-1985. Inference cannot be taken from the N.I.C.
22. That intervenor is residing at this address since 1978 as he claimed in his Examination-in-Chief. Had he produced his old N.I.C. That would have been helpful to the intervenor to show to this Court that his present address of suit quarter is on record of (N.I.C.) since date of issue or even before."
23. ' I am of the firm opinion that claimant has no legal status on the suit quarter as he was in search and need of house so he illegally and deliberately obtained its possession from defendant. He also in collusion with K.D.A. Obtained/ fabricated documents which are filed in present proceedings.
24. According to K.D.A. Witness Agha Sikander Ali, K.D.A. Issued allotment to intervenor on the basis of Exhs-4.A.(ii) and 4-A.(vii) and other documents. Both exhibits are not part of intervenor's pleadings.
25. Hence any order of K.D.A. On the basis of these documents, to whom intervenor do not owe, he cannot claim any benefit out of it, and same cannot be relied upon by him. Hence they are of no legal effect.
26. "I concur with my learned predecessor that Order XXI, rule 26, C.P.C. Reveals that it deals with such decree which has been sent to the Court for execution. In present case it is not so. So far as other rules are concerned, the evidence produced by the parties, as well as evidence of K.D.A. Witness recorded by this Court in compliance of direction of Hon'ble IIIrd Additional District and Sessions Judge, Karachi Central and Hon'ble High Court of Sindh, the intervenor has no legal right and claim on the disputed quarter. Hence application filed by the claimant/intervenor is not jnaintainable and is dismissed with costs. I order to issue such Writ of ejectment against judgment-debtor on costs. The Writ should be returned to this Court on 28-11-1996 . "
27. ' In view of this position, the said order dated 23-10-1996 of learned Civil Judge passed in Execution Application No.26 of 1986, after remand of the case from Additional District Judge and High Court, is an order which have left no room to attack on it. The reasons, grounds, justifications given in order are so strong which prove that the documents produced by the objector are manipulated by the objector/intervenor in collusion with judgment-debtor and officials of K.D.A. There is no reason to upset the said order dated 23-10-1996 of the learned Civil Judge. The learned 1st Additional District and Sessions Judge, Karachi Central has also rightly upheld the said order of learned Civil Judge in Civil Miscellaneous Appeal No. 017 of 1996 by passing order dated 12-2-1999 with the following observation: "After hearing arguments of the parties, I have gone through the record and proceedings of the case, I find that the appellant has not come to the Court with clean hands as the appellant for the first time appeared before the Court on 7-5-1988 by filing an application under section 12(2), C.P.C.
28. In which he stated that he is transferee owner of Quarter No.106/21, Sector 11-G New Karachi by virtue of Registered conveyance lease deed bearing Reg. No.4485, dated 19-11-1985 when the litigation between the respondents was pending before the Court and it is well-settled law that the status of the disputed property cannot be changed during the pendency of the litigation. It is also an admitted position that the litigation between the respondents is pending since 1970 but the appellant first time appeared in the year 1988. He did not disclose that as to why he remained silent for a long period. Moreover, the respondent No.1 has been condemned unheard by K.D.A. As admitted by the K.D.A witness Agha Sikandar Ali, examined at Exh.4/A(I) of the case, under the direction of the High Court dated 31-1-1993 that no notice for cancellation of allotment was issued to Noor Muhammad when the appellant applied for allotment and lease of the suit property which is allotted and leased to the appellant during the pendency of the litigation in respect of the property. Hence the grant of allotment and lease in favour of the appellant has no value in the eye of law.
29. ' Keeping in view the entire facts, circumstances and evidence adduced by the parties and K.D.A.
30. Witness I am of the firm opinion that the order passed by the trial Court is quite legal proper and in accordance with law and requires no interference, the trial Court has rightly dismissed the claim of the appellant. Consequently the appeal is dismissed with no order as to costs."
31. It is very surprising that the applicant entered in the case after about 16 years, when the execution application was proceeding against judgment-debtor/ respondent No.2 before the Civil Judge. It is evident from the record and evidences deposed before the learned Civil Judge, that the possession of title documents of said quarter was manipulated by the applicant in collusion with the officials of K.D.A. It is also proved that the possession of said quarter was handed over to the applicant/ intervenor by the judgment-debtor/ respondent No.2 with the intention to give defeat to the order and decree passed in favour of Noor Muhammad/respondent No.1. The possession of applicant of said quarter is not lawful and title documents of said quarter were obtained by the applicant/intervenor from K.D.A in collusion with officials of K.D.A. The applicant was not in possession from 1978, if he was in possession he could join the proceeding at very early stage. By scrutinising the record and evidence it is admitted that the possession of said quarter was handed over to applicant by the judgment-debtor/respondent No.2 in view of the above discussion I am of the opinion that this civil revision has no force at all.
32. ' The orders of learned Civil Judge and Additional District Judge are based on sound reasons and the same cannot be altered/amended or set aside as neither the orders are perverse nor orders suffer from non-reading or misreading of evidence. The holder of fabricated/manipulated title documents of quarter issued in collusion with authority, cannot create any legal right in favour of the holder of such title documents. Hence he has no right to retain possession of said quarter anymore which was fraudulently given to him by the judgment-debtor/respondent No.2.
33. ' The upshot of the above discussion is that the revision fails and accordingly this civil revision application is dismissed along with all the listed-applications with no order as to costs.
34. ' The executing Court is directed to issue writ of attachment without notice and police aid as the judgment-debtor and objector/intervenor have already enjoyed illegal possession of said quarter for more than 35 years.