1. ' KHALID ALI Z. QAZI, J.--- This is a suit for declaration, grant of permanent injunction, cancellation of documents, filed by the plaintiff and prayed for the following relief as under:--
(a) It be declared. That the defendant No,1 have had no locus standi to transfer the six on visages Trust Properties for any consideration to any person in violation of the provisions contained in section 92, C.P.C. And registered settlement deed.
(b) It be declared that the defendant No,2 was and still not the owners, valid transferees and/or vendees of the six immovable properties recorded in the sale-deed, dated 9-9-1980.
(c) That the defendant No,1 (viz. The Trust and the Trustees) as well as defendants Nos.2 and 3 have played fraud throughout in the sale and purchase of the six properties.
(d) that the suit properties belong to the Government in terms of Article 172 of the Constitution of the Islamic Republic of Pakistan, 1973.
(e) That the acts of demolition renovation, domain over the six trust properties, administration, control and management etc. By the defendants Nos.2 and 3 was a biotic void, illegal, bad in law and based on principles of antinomy.
(t) It be declared that the responsible officers/personnels and institutions have not performed their functions and duties in perspicuous manner.
(g) It be declared that the sub-Registrar under the active control, administration and supervision of the District Registrar, Karachi registered as sale-deed in respect of six immovable.
(h) It be declared that the plaintiffs have the legal right as defined under Article 126 of the Qanun- e-Shahadat, 1984.
(i) Order be passed for the grant of compensation, damages and costs throughout against the defendants to be reimbursed and paid to the plaintiffs with bank rate interest from the day of the institution of the suit until realization together with such other relief(s) and benefits as this Honourable Court be pleased to give and grant under the circumstances.
(j) Grant permanent injunction to the plaintiffs against the defendants to keep themselves away and divested from the business and corpus of the six immovable properties and take no action, charge, domain over and existence etc. Of the six immovable properties and properties surrounded in the vicinity on any pretext until disposal of the suit and termination of the proceedings.
(k) The sale-deed dated Nil of six trust properties be cancelled. Office has raised the following objections.---
(1) It appears that plaintiffs have no legal character or rights in respect of the suit properties; suit is hit under Article 115 of the Qanun-e-Shahadat Order, 1984; and barred under sections 42 and 56 of the Specific Relief Act, and the plaintiffs have not stated in the plaint on what basis they have filed the suit.
(2) Let the separate court-fees to be paid as provided under section 17 of the Court Fees Act as the six immovable properties are disputed and relief for declaration of the above-noted properties as averred in para.2 of the plaint and the three shops being shops Nos.3, 4 and 10 of Plot No,SB-5- 26/2-A, Saddar Karachi in the name of the plaintiffs as mentioned in the title page of the plaint.
(3) Let the nomenclature of defendant No,6 to be corrected.
(4) Let the section 79, C.P.C. To be complied with in respect of defendants Nos.9 to 11 and 14.
(5) Let the list of legal heirs of the plaintiffs to be filed as provided under Order VII, rule 26, C.P.C.
(6) Separate affidavits in support of each application to be filed.
(7) Let the blanks to be filled in para. No,4 of the plaint and para.6 of the affidavit.
(8) Annexures to be properly marked.
(9) Paging to be done.
(10) Cost, copies and draft summons to be supplied.
2. The Additional Registrar (O.S.) in his objection has specifically mentioned that plaintiffs have no legal character or rights in respect of the suit properties; suit is hit under Articles of the Qanun-e- Shahadat Order, 1984; and barred under sections 42 and 56 of the Specific Relief Act, and the plaintiffs have not stated in the plaint on what basis they have filed the suit. Learned Additional Registrar has also raised objection that the separate court-fees to be paid as provided under section 17 of the Court Fees Act as the six immovable properties are disputed and relief for declaration of the above noted properties as averred in para.2 of the plaint and the three shops being Shops Nos.3, 4 and 10 of Plot No,SB-5- 26/2-A, Saddar Karachi in the name of the plaintiffs as mentioned in the title page of the plaint.
2. ' Mr. Faizuddin learned counsel for the plaintiff filed written reply to the office objections which is reproduced as under:-- Answer of objection No,l.
3. ' It is stated that the learned Additional Registrar (O.S.) is not a Court. "Court" has been defined under Article 2(a) of Qanun-e-Shahadat Order (10 of 1984), as under:- "Court" includes all Judges and Magistrates and all persons except arbitrators, legally authorized to take evidence.
4. ' It is stated that the word "Evidence" has been defined under Article 2(c) of Qanun-e-Shahadat Order (10 of 1984) as under:-- "Evidence" includes---
(i) all statement which the Court (and not the Additional Registrar-- 0.S.) permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; and
(ii) all documents produced for the inspection of the Court; such documents are called documentary evidence; and
(iii) The word fact asseverated (sic) in (c)(i) has been defined in Article 2(d) "fact" includes---
(i) anything state of things or relation of thing capable of being perceived by the senses; and
(ii) any mental condition of which any person is conscious.
5. ' It is further stated by the learned counsel that there are five illustrations (not reproduced) hereinabove.
6. ' It is further stated that the learned Additional Registrar has exceeded his limits and took for granted that he was a Court (although he was not). He has thus, presumed that fact that the plaintiffs were tenants of somebody and referred to Article 115 of Qanun-e-Shahadat Order (10 of 1984). He has presumed without recording of Evidence that the plaintiffs appears (how and on what basis) to have no legal character (disregarding the right of adverse possession which was perfected in or about the year 1959 upon exodus/migration from Bharat/India) or right in respect of the suit pronerties. The plaintiffs have relied upon codified law (reserved during 1989 upon vicissitude resultant from Muslim/ Islamic Laws) in the plaint. The construction on the plot of land invariably belonged to the plaintiffs. In order to augment the excellence of my right I have relied upon citation reported in PLD 1970 Kar. Page No,10 by His Lordship Mr. Justice Nawabzada Qadeeruddin Ahmed. "quiequid inmedificature sole, solo, cedit" 2 ' According to which it was amplified that a person can be the owner of a plot of land but a different person can be the owner of superstructure.
7. ' It is further contended that at least the legal right of the two plaintiffs (and many others not now before the Court) was thus, recognized. The plaintiffs owned the superstructure which was found built on the plot belonging to a Trust (defendant No,2), Under such circumstances the plaintiff had a right in rem per se right and right in personum which was perfected some times in the year 1959.
8. According to the relief provided under sections 42 and 56 of the Specific Relief Act (No,I of 1877) was available to them. The plaintiffs (and many others) was the Muslim-Mohajir and attended congregation in a mosque which was demolished by Sirajuddin Paracha without obtaining permission for demolition either from K.D.A. Or K.B.C.A., for the grant of permission. That roads, lanes, streets, street-lights, corpus adjacent to the principle properties cannot be cast as under. There is always a right of easement even in, upon, over and to the properties which are Tom Tiddler's Grond or Bona Vacantia. The provisions of section 157 of the Specific Relief Act I of 1877 are very much attracted.
9. ' It is stated that moreover the Trust Properties cannot be sold, let out, mortgaged or exchanged in terms of section 92(f), C.P.C. (Act No,V of 1908) without first obtaining a verdict of a competent Court of law. A decree is a must under the circumstances. Moreover the Advocate-General is to be apprised of the impendihg transaction of sale, alienation, letting out, mortgage and exchange etc. Among other rulings at least two are cited for perusal.
10. ' 2004 CLC Page No,1723 (Lahore)
11. "Sale of Trust Property in disregard and violation of mandatory provision, held---Not valid.
12. ' PLD 1994 (June, C.P.C. (V of 1908) order; 'Synagogue was place of Jewish Worship at Jamila Street. It was a Trust Property. The property was not allowed to be alienated.
13. ' Supreme Court p.588 ' Present Ajmal Mian, Sajjad Ali Shah and Saleem Akhtar, JJ. Civil Petition No,21-K of 1994 decided on 22-3-1994. Leave to appeal was refused.
14. ' Aftabuddin Qureshi v. Mst. Rachal Josep.
15. ' The properties which were trust properties and sold by defendant No,1 to Messrs Standard Hotel (Pvt.) Limited (a private limited company) was not valid. Article 103 of Qanun-e-Shahadat Order (10 of 1984) comes in mischief. Even otherwise the impugned sale-deed was immediately defective and did not create any right in rem, right per se and/or right in personum. The wisdom of cavit emptor was avoided en passant. Under the circumstances the property which was sold in 1980 by registered instrument belongs to the Government of Sindh for all purposes and intents.
16. ' 1994 CLC (February) Index P.No,15 Lahore Before Abdul Majid Tiwana Muhammad Sadiq---- Petitioner v. Taj Muhammad and 2 others ' Although there was no proposition to thwart the impugned judgment in the Courts below, yet the Judge had ordered that the suit properties were to be cheated and the Deputy Commissioner was charged to seize the property on account of Provincial Government of Punjab.
17. Answer of Objection No,2 ' The learned Additional Registrar (0.S.) could not appreciate the meanings of Word "Maximum" and "Minimum". The plaintiffs have borne out and paid the maximum court-fee and were not required to pay any additional court-fee for the causes of action. However, it may be decided as to what amount of further court-fee should be paid. The assessment needs be made by the Additional Registrar (O.S.) on his own understanding and not concomitant upon codified law.
18. Answer of Objection No,3 ' Nomenclature is simply not the counterpart of the name. The objection is redundant. The Karachi Development Authority was an Authority before repealment. It has been properly impleaded. It is a pro forma party and not a perspicuous litigant for relief. However, if so construed the Court (and not the Additional Registrar 0.S.) can add and delete proper down by Articles 22 and 24 of Qanun- e-Shahadat (0.10 of 1984). The provisions of order No,I, rule 10 are quite in vogue.
19. Answer of Objection No,4 ' The learned Additional Registrar (O.S.) is a victim of Cavils, rigmarole and confusion. The description and designation of defendants Nos.9, 11 and 14 are formidable and correct. None of them is either a Federal Government of Pakistan or Provincial Government as defined under Articles 90 and 129 respectively.
20. Answer of Objection No,5 ' List of Legal Heirs of both the plaintiffs has been prepared, typed out and copy is being furnished in compliance.
21. Answer of Objection No,6 ' There is no provision in the law and rules framed thereunder that separate affidavits may be given for each interlocutory application. Interlocutory applications containing facts are to be augmented by affidavits. Affidavits can be given only for facts which are biotic. It has been so done.
22. Answer of Objection No,7 ' In case blanks are left out they do not demolish the wisdom of the plaint. The left out blanks if omitted would not defeat and destroy the truth and composition of the plaint. It is not always necessary to submit thinks upon proplepsis to state and fill up the blanks.
23. Answer of objection No,8 ' Annexures shall be marked properly as and when the suit filed is made available to plaintiff upon explicit request.
24. Answer of objection No,9 ' Paging shall be done in due course. Answer of objection No,10 ' Costs, copies and draft summons shall be supplied promptly if the plaint is admitted.
25. ' Mr. Zafar Iqbal Dutt learned counsel for the defendants Nos.2 and 3 stated that two trustees signed in Rome Embassy and one has given authority to execute in Karachi and plaintiff has come after 27 years he has no legal right with the property. Mr. Zafar has relied upon the case of Anjuman Araian, Bhera v. Abdul Rashid and others PLD 1982 SC 308. Mr. Zafar stated that plaintiff is neither in possession nor any interest is involved in the property.
26. ' Mr. Ahmed Pirzada, A.A.-G. Stated that it is in respect of public charity in section 92, C.P.C.
27. Advocate-General's permission is required but in this case High Court has given permission in J.M.
28. No,12 of 1996 on that sale-deed was executed.
29. ' Mr. Tahawar Ali Khan, Advocate for C.D.G.K. And Mr. Iqbal Memon, Advocate for K.B.C.A., they have stated that this is a private dispute and they have no concern in this matter.
30. ' I have heard the learned counsel for the parties, perused the record, relevant law and case-law cited at bar. In the present case important questions have been raised which will have far reaching consequences in their nature and impact on the community as a whole. All these contentions require deeper appreciation of evidence which properly be thrashed out at the time of trial.
31. ' In view of the above, at present, the office objections are overruled subject to all just exceptions.
32. ' Office is directed to assign the number of the suit.
33. Office objection overruled.