1. ' NADEEM AZHAR SIDDIQI, J.--- The plaintiff has filed this suit for declaration and cancellation of instruments. The facts as pleaded in the amended plaint dated 25-10-2004 are that the father of the plaintiffs, namely, Sher Ali Muhammad (hereinafter referred to as the deceased) was the lawful owner of Plot No,1-26/1, Ghulam Hussain Qassim Road, Punjabi Club, Kharadar, Karachi, (hereinafter referred to as the said property). The said deceased expired in the year 1985 leaving behind the plaintiffs and two sons, namely, Dost Muhammad Sher Ali and Muhammad Hussain Sher Ali as his surviving legal heirs. The deceased did not leave any Will and the legal heirs inherited the property according to Sunni Muslim Law of Inheritance. Muhammad Hussain Sher Ali one of the legal heirs of the deceased and husband of defendant No,1 expired on 2nd July, 1991, issueless and according to the Law of Inheritance the share of defendant No,1 in the subject property was limited to 1/4th from the share of her husband and rest of the share of late husband of defendant No,1 devolved towards the plaintiffs being the other legal heirs. After the death of the husband of defendant Nol . The husband of plaintiff No,4 has paid a sum of Rs,10,00,000 in 1997 to defendant No,
1. The defendant No,1 on false pretext by committing fraud and misrepresentation got her name mutated in the Record of City Surveyor, South Karachi. At the time of death of deceased the original documents of the said property were with the defendant No,1 in trust who fraudulently mutated the property in her favour and in collusion with other defendants executed a registered General Power of Attorney in the name of defendant No,2 who executed a conveyance deed in favour of defendant No,3. The defendant No,3 further executed a registered power of attorney in favour of defendant No,2 who are now claiming to be the owner of the said property. The market value of said property has been claimed as Rs,1,44,00,000. The mutation was made in the office of defendant No,4 in favour of defendants Nos.1 to 3. The General Power of Attorney executed by defendant No,1 in favour of defendant No,2, the conveyance deed executed by defendant No,2 as attorney of defendant No,1 in favour of defendant No,3 and power of attorney executed by defendant No,3 in favour of defendant No,2 are void. The plaintiffs sent legal notice to the defendants which was replied by defendant No,2.
2. ' After service of the notice the defendant No,1 filed her written statement wherein she has pleaded that the deceased was the owner of the said property but during his lifetime he had given this property to the husband of defendant No,1 who paid him the entire consideration and her husband became the owner of the said property and the document conveying the property was to be executed and registered at the convenience of father (deceased) of the husband of defendant No,1 but, in the meanwhile, the father (deceased) of the husband of defendant No,1 expired. She further submits that since at the time of death, the deceased was not the owner of the said property there remains no question of leaving behind the legal heirs. She further submits that since her husband has paid entire consideration in cash to the deceased and acquired the property and the defendant No,1 being legal heir of the son of the deceased inherited the property and became full- fledged real owner of the said property. She has denied that the husband of plaintiff No,4 had paid Rs,10,00,000 to her. She also denied that she has committed fraud and misrepresentation and submits that the original documents were in her possession because before the death of the deceased he handed over all original documents by promising to execute necessary documents at his convenience. She denied the entitlement of the plaintiffs in the said property and has submitted that the mutation was not fraudulent and collusive and the execution of the power of attorney by her in favour of defendant No,2 is not denied and has confirmed that she has sold the property to defendant No,3. She also denied the value of the property and has denied that she in collusion with defendants Nos.2 to 4 has attempted to deprive the plaintiffs from their alleged right.
3. She has not denied the service of notice and has submitted that the plaintiffs have no cause of action to file the present suit.
4. ' The defendants Nos.2 and 3 have filed their joint written statement and have also filed amended written statement on 27-11-2004 wherein they have denied the ownership, death of deceased and inheritance of the said property by the plaintiffs. They have also denied the date of death of husband of defendant No,1 and submit that they have purchased the property on the basis of entry in the record of City Survey Office. They submit that the final entry in the record of City Deputy Collector clearly indicates that Mst. Fatima Bai (defendant No,1) was the owner of entire property and that entry remained unchallenged for long period and now the same cannot be challenged as it has become time-barred. They have denied to have committed any fraud and misrepresentation. They further submit that the possession of original documents with defendant No,1 gives presumption that she was entitled to the property. They submit that at present defendant No,2 is the owner of the said property. They also denied the value of the property as assessed by the plaintiffs and claimed themselves to be rightful owners of the said property.
5. ' The defendant No,4 in its written statement has not denied that the deceased was the owner of the said property and submitted that the mutation was made on the basis of prescribed procedure of recording of the statement of one of the legal heirs supported by the statements of two witnesses and publication of notice in the daily newspapers. The plaintiffs have neither filed objection nor availed the legal remedy prescribed under sections 161 and 164 of the Land Revenue Act, 1967.
6. ' From the pleadings of the parties following issues were framed on 11-3-2002:--
(1) Whether the record of the City Survey Office/City Deputy Collector in respect of the subject property of the suit is correct and since what time has the entries in respect to the husband and the defendant No,1 has been made therein?
(2) Whether the suit property was owned/purchased by the husband of the defendant No,1 from its owner and was to be owner of the same at the time of his death?
(3) Whether the defendant No,1 has executed the registered power of attorney in the name of defendant No,2 without any authority in this respect?
(4) Whether the defendant No,2 has executed the sale-deed in respect to the suit property in the name of defendant No,3 without any authority in this respect?
(5) Whether the documents of registered power of attorney and sale-deed are liable to be cancelled in facts and circumstances of the matter?
(6) What should the decree be?
7. ' On behalf of the plaintiffs Shamsul Arfin was examined as Exh.4 who produced his affidavit-in- evidence as Exh.5. Mehmood Nanji was examined on behalf of the plaintiffs as Exh.6 who produced documents from Exhs.6/1 to 6/4 and also produced one document marked as X.1. The plaintiffs have also examined Muhammad Ramzan, City Surveyor, Saddar Town, as Exh.7 who produced documents from Exhs.7/1 to 7/8.
8. ' Defendant No,1 examined herself as Exh.D.1 and has produced documents from Exhs.D.2 to D.3.
9. Defendant No,3 Aazar Abbas Haideri was examined as Exh.D./14 who produced document as Exh.D./15.
10. ' The defendant No,3 Mst. Bushra Shahid was examined as Exh.D./1 who produced documents from Exh.D./2 to D./12.
11. ' My findings on the above issues are as under:-- Issue No,1 ' The plaintiffs have claimed that the said property was owned by the deceased and the entry in the name of defendant. No,1 was fraudulently and collusively obtained by defendant No,l. It is an admitted position that the property was in the name of the deceased who expired in 1985 leaving behind the plaintiffs, husband of defendant No,1 and one Dost Muhammad Sher Ali as his surviving legal heirs and on his death the said property devolves upon the above legal heirs. The defendant No,1 claims that her husband who expired in 1991 had purchased the said property from the deceased and her husband also expired issueless in the year 1991 and-she became an exclusive owner of the said property. Even if the contention, of defendant No,1 is taken to be true that her husband had purchased the said property from the deceased during his lifetime since her husband died issueless she is not entitled to inherit the whole property and in accordance with the Law of Inheritance in Islam her share will be only 1/4th and the remaining will go to the brothers and sisters of her deceased husband. Muhammad Ramzan, City Surveyor, Saddar Town, Karachi, has produced the application on the basis of which the property was mutated in the name of defendant No,
1. This application says that the deceased died in the year 1965 and left behind his only one son Muhammad Hussain who also died issueless on 2-7-1991 leaving behind him his only widow (defendant No,1). She has also recorded her statement before the concerned officer narrating the same fact. Abuzar Shahid, Bushra Shahid and Qaiser Parveen have also given the statements before the concerned officer and have confirmed the statement made by defendant No,1 before the officer concerned and on that basis first name of Muhammad Hussain, husband of defendant No,1, was entered in the record of rights on 29-4-1999 and then on 8-6-1999 the name of defendant No,1 was recorded in the record of rights and then the name of defendant No,3 was recorded on 30-8-1999 and lastly the name of defendant No,2 was recorded. From the proceedings before the City Survey Office it appears that the entry was recorded in favour of defendant No,1 on the basis of inheritance and not on the basis of alleged purchase of said property by the deceased husband of defendant No,1 from the deceased.
12. ' From the application filed before the City Survey Officer and the statements recorded before him it is clear that the defendant No,1 while obtaining mutation in her favour has suppressed the other legal heirs of the deceased and the defendants Nos.2 and 3 have helped her in getting the mutation in her favour by suppressing the other legal heirs of the deceased. The defendant No,1 has also failed to produce any evidence to show that the deceased has sold the said property to her husband during his lifetime. From the application of defendant No,1 made before the City Survey Officer it is clear that story of alleged purchase from deceased has been concocted as an afterthought. Mere possessing the original title documents of the said property does not confer any title upon the defendant No,1 or her late husband. The defendant No,1 or her late husband may have come in possession of the title documents after the death of the deceased.
13. ' In view of the above discussion I hold that the entries in the record of City Survey Office/City Deputy Collector in respect of the said property in the names of defendant No,1 and her husband are not correct and have been obtained in 1999 by concealment of other legal heirs and have no legal value.
14. Issue No,2 'The burden to prove this issue is upon the defendant No,l. Except her oral assertion the defendant No,1 has failed to produce any evidence to show that her husband had purchased the said property from the deceased. In her cross-examination she admits that she cannot produce the documents showing sale of the suit property from her father-in-law to her deceased husband and further admit that she cannot produce any receipt of the transaction as the transaction was between father and son. The defendant No,1 in her application before the City Survey Officer has not claimed the purchase of said property from the deceased and the entries in the record of rights in her name and in the name of her husband were recorded on the basis of inheritance. Mere possession of property and its title documents are not sufficient to hold that the property was sold by the deceased to his deceased son, the husband of defendant No, 1.
15. ' In view of above I hold that the husband of defendant No,1 had not purchased the said property from the deceased.
16. Issue No,3 ' In view of my findings on Issue No,1 it is clear that defendant No,1 was not the exclusive owner of the said property and is not entitled to execute registered general power of attorney in favour of defendant No,2. The execution of general power of attorney by defendant No,1 in favour of defendant No,2 is in excess of her authority and has no legal effect.
17. Issue No .4 ' Since the defendant No,1 was not the exclusive owner of the property she has no lawful authority to execute general power of attorney in favour of defendant No,2 and the defendant No,2 has no lawful authority to execute sale-deed in favour of defendant No,3 on the basis of said power of attorney and the sale-deed executed by defendant No,2 in favour of defendant No,3 was without lawful authority and has no legal value.
18. Issue No,5 ' In view of findings on Issue No,1 the defendant No,1 was not the exclusive owner of the said property and the mutation recorded in her favour was illegal and has no legal effect and all the documents executed by the defendant No,1 in favour of defendant No,2 and thereafter execution of sale-deed by defendant No,2 in favour of defendant No,3 and subsequent transfer of property in favour of defendant No,2 are of no legal effect and the same are liable to be cancelled.
19. Issue No,6 ' In view of above the suit of the plaintiffs is decreed in terms of prayer clauses of amended plaint filed on 25-10-2004 with cost. Office to prepare decree.