MAULVI ANWARUL HAQ, J. - On 3.2.1988 Mst. Asghari Begum the deceased respondent No. 1 (now represented by her L.Rs. Hereinafter to be referred as the plaintiff) filed a suit against the appellant and the other respondents. It was stated in the plaint, that respondent No. 4 is a registered Cooperative Society. The plaintiff was member of the said Society and held a share vide certificate issued on 16.3.1943. Vide resolution dated 18.4.1943 she was allotted a plot measuring ,6 kanals bearing No. 10-A Model Town, Lahore (hereinafter to be referred as the suit plot). She paid the price and was delivered possession. The plot was demarcated on her application on 23.5.1962 and she constructed a wall after permission accorded by respondent No. 4 on 14.2.1974. In para-4 of the plaint it was explained that after independence of the country the Cooperative Model Town '
Society was declared to be evacuee vide order dated 6.9.1960 of the Custodian of evacuee property but it was directed that a new Society be formed and respondent No. 4 was registered accordingly, in the year 1962. The appellant started claiming the title in the suit plot declaring that the same has been transferred to him under Displaced Persons (Compensation and Rehabilitation) Act, 1958. He also approached respondent No. 4 for transfer, of the plot n his name and to be. Registered as shareholder in place of the plaintiff. He was. Provisionally admitted as a member but all this was done without any notice to or knowledge of the plaintiff. Reference was made to letter issued by respondent. No. 2 on 15.7.1986 verifying the transfer of the suit plot to the appellant. She filed an application before respondent No. 2 for recalling the orders. Her plea was that the documents being relied upon by the appellant are forged and fabricated, as corresponding entries in the relevant register were not available. Respondent No. 2, however, disposed of the matter holding that he has no jurisdiction and that the plaintiff may approach the Civil Court. Thereafter several reasons have been stated alleging that documents of transfer are fabricated documents. She then filed Writ Petition No. 95-R-87 in this Court, which was withdrawn, as matter was sub-judice in the Civil Court as she had already filed a suit for permanent injunction to protect her possession. Temporary injunction was issued in the suit filed on 10.12.1986 but she was dispossessed on 22.1.1987. Learned counsel state that the contempt proceedings are pending and had been adjourned sine die. A decree for declaration and permanent injunction; and possession was accordingly prayed for. The respondent No. 4 filed a written statement taking ah objection that statuary notice under Section 70 of the Cooperative Societies Act, 1925 has not been served and Court has no jurisdiction in view of Section 7Q-A of the said Act. However, the fact that the plaintiff was a member holding a share and that she was transferred the suit plot was admitted. It was also admitted that that the appellant was admitted as member provisionally and ultimately the transfer was effected on the basis of P.T.D. Issued in his favour.
2. The appellant in his written statement questioned the jurisdiction of Civil Court. According to him the plot was transferred to him vide P.T.D. Dated 21.10.1962. It was explained that the plot was put in auction and was purchased by him and that he is in possession since 2110.1962. This written statement was filed on 5.6.1988. Later he amended his written statement with permission of the Court and amended written statement was filed on 2.7.1991. In this written statement it was stated that plaintiff had sold the suit plot to Maya Devi on 14.7.1947 'and it was transferred in favour of the said vendee and as such constituted evacuee property when Maya Devi left Pakistan.
3. I may note that a preliminary issue was framed regarding the object to jurisdiction which was answered in favour of the plaintiff on 30,2.1990. Thereafter following issues were framed:-
(1) Whether the suit is barred by time? OPD
(2) What is the nature of property in dispute? Evacuee or not? It effect? OP Parties.
(3) Whether the defendant No. 4 is entitled to special costs? OPD
(4) Whether no notice under Section 70 of Cooperative Societies Act, 1925 was served, If so its effect? OPD.
(5) Whether the jurisdiction of this Court is barred under Section 70-A of Cooperative Societies Act, 1925? OPD.
(6) Whether the plaintiff has no cause of action against the defendant No. 3? OPD
(7) Whether the plaintiff is owner of the property in question? OPP
(8) Whether the plaintiff is entitled to the possession of suit property? OPP
(9) Relief.
Evidence of the parties was recorded. The learned Trial Court answered all the issues in favour of the plaintiff and decreed the suit on 19.5.1994.
4. Learned counsel for the appellant contend that the property, having been treated as evacuee expressly by the Custodian under Administration of Evacuee Property Act, 1957, Civil Court has no jurisdiction. According to them even if, it be found that the treatment was erroneous, Civil Court will be lacking jurisdiction. Rely on the case of Muhammad Din and 8 others v. Province of the Punjab through Collector and others (PLD 2003 Lahore 441); that the jurisdiction of the Civil Court was additionally barred under Section 70-A of the Cooperative Societies Act, 1925 and suit itself was not competent in the absence of notice under Section 70 of the said Act. On merits it is argued that lawful transfer of the property in favour of the appellant stood proved by the copies of the record produced by the plaintiff herself According to the learned counsel the learned Trial Court proceeded on a very dangerous course while comparing the signatures of the plaintiff lady with those available on documents Ex.P21 and Ex.P23. Rely on the case of Mst. Riff at Jehan and another v. Habib Bank Ltd. And 10 others (2005 CLD 941). The learned counsel for the settlement department while conceding that the PTD and PTO are forged documents as per record of the said department yet presses the said first objection as to the jurisdiction of the Civil Court raised by the learned counsel for the appellant. Learned counsel for the plaintiff, on the other hand urges that the property was never treated as evacuee by the Custodian and as such the jurisdiction of the Civil Court is not barred. It has also been tried to be argued that since the decision recorded on the preliminary issue was' not questioned the appellant cannot be allowed to press the same in this appeal. As to the said second contention reply is that the suit was not at all filed against the respondent Society who was impleaded just a proforma and in fact no relief was sought against the said Society. It is case of title pure and simple, which can only be determined by the Civil Court, and notice is not. Necessary. On merits the learned counsel has taken me through the entire documentary evidence on record to demonstrate inherent forgery and fabrication in the matter of transfer documents relied upon by the appellant. It has been vehemently argued that the documents saw light of the day for the first time in the year 1986 and there is no explanation reasonable or otherwise for the same. In the. Matter of exercise undertaken by the learned Trial Court while comparing the signatures, learned counsel contends that the Court had lawful authority to. Do so.
5. We have gone through the records of the Trial Court with the assistance of the learned counsel for the parties. The material contents of the pleadings have already been reproduced above. So far as the question of jurisdiction is concerned, we are not in agreement with the learned counsel for the plaintiff that finding on preliminary issue having not been questioned earlier, the . Matter cannot be reopened in this appeal The said issue is one of the many issues arising in the suit Although it was decided first yet an appeal could not have been filed as no decree one way or the other had been passed. The appeal lies only against the decree, which was passed after deciding all the other issues in the suit. We accordingly proceed to examine the said question. It is admitted on all hands that the Custodian of Evacuee Property. West Pakistan passed an order' on 6.9.1960, whereby Cooperative Model Town Society was declared to be evacuee. Although this order does not form part of the record yet a copy has been shown to us by the learned counsel for the plaintiff.
According to the contents of this order the question as to the status of the Society arose in a suit filed by it against the Punjab National Bank Ltd., Lahore, for recovery of money. A reference was accordingly made by the Civil Court. Deputy Custodian vide order dated 11.6.1953 held that the Society is not an evacuee concern. Additional Custodian refused to confirm the order, and came to the conclusion that it is an evacuee concern.. Learned Custodian dismissed the revision petition filed by the Society. However, while doing so it was held as follows: "The effect of the dismissal of this revision petition would be that Cooperative Model Town Society Limited will, be treated as an evacuee and the shares of evacuee members of this society would continue to vest in the Custodian. The assets of the society being evacuee property would also vest in the Custodian."
Thereafter a scheme of management was proposed and prohibition was placed on transfer of such plots as belonged to the Society.
6. It wilt, thus, be seen that the Custodian treated the Society as an evacuee concern. However, the property treated as an evacuee was share of the evacuee member and assets of the Society, which were to vest in the Custodian and to be managed as proposed in the said order. It is admitted position on record that a Member Of the Society was required to hold at least one fully paid up share of the Society and to own at least one building plot in Model Town. It is admitted position on, record that the plaintiff owned a share in the said Society and also owned suit plot at the time the said order was passed. In fact she continued to hold the said share and said plot till 1986 when the appellant was admitted provisionally as member with reference to the transfer documents. It is but apparent on the face of the said order that neither the share nor the plot held by the appellant was ever treated as evacuee property by the Custodian and consequently never vested in the said office. So far as the said judgment in the case of Muhammad Din and 8 others v.
Province of the Punjab though Collector and others (PLD 2603 Lahore 441)' is concerned it refers to treatment of the property as evacuee which may be erroneous. In the present case the property was not treated as evacuee even erroneously. The Civil Court, therefore, has the jurisdiction to decide the matter. Reference be made to the cases of Muhammad Ismail v. Abdul Haq and others -(2001 SCMR 1350) as also Abdul Khaliq Abdul Razzaq v. Kishanchand and others (PLD 1964 SC 74).
7. Coming to the objection with reference to Sections 70 and 70-A of the Cooperative Societies Act, 1925. We have referred to the plaint in some detail above. We do not find any relief being claimed against the Society. The declaration is sought vis-a-vis denial of title by the appellant. Needless to state that the question of. Title involved in this case can be decided only by Civil Court and not by any Officer under the said Act. None of the two provisions are, therefore, attracted in any manner.
8. Coming to the main question involved in the suit covered by issue No. 7 and consequently by issues Nos. 2 and 8. There is absolutely no dispute whatsoever that the plaintiff was the owner of the suit plot being a transferee from respondent Society vide resolution dated 18.4.1943 and that she had paid the entire price and was put in possession of the plot. It is specifically mentioned in para-5 of the plaint that the name of the evacuee owner was not mentioned in the PTD.-In the written statement filed by the appellant on 5.6.1988 it was stated that the plot was treated as an evacuee property under the Pakistan (Administration of Evacuee Property) Act, 1957 and the plaintiff did not avail any remedy. It was almost three years thereafter in the written statement filed on 2.7.1991 that a plea was taken that the plot was treated as evacuee because the plaintiff had sold the same for a consideration of Rs. 9000/- to Mrs. Maya Devi on 14.7.1947 and it was transferred to the said vendee and this is borne out on the record of the respondent Society Order dated 27.3.1962 alleged to have been passed by D.S.C. Narrated that Cooperative Model Town Society Limited Lahore, was declared an evacuee under Pakistan (Administration of Evacuee Property)
Ordinance, 1949 and plot No. 10-A was put to auction and has been purchased by Abdul Shakoor and the same is confirmed. In this order like in the first written statement reliance was on the treatment of the respondent Society as an evacuee concern. We have already referred to the order of the Custodian above. The ownership of the plot by the appellant had trie reference to the share field by her in the Society and the said order only treats the share held by non-muslim evacuee to be an evacuee property. It is no body's case that the suit plot was asset of the respondent Society.
9. Apart from the fact that all orders and proceedings alleged to be recorded by the Settlement Authorities were so recorded on a day, which happened to be Sunday and regarding which there is no denial, bid Sheet Expwy/5 recording proceedings of the auction is dated 5.3.1962 whereas it has been recorded on proforma which was printed on 28,5.1962 i.e. More than two months after the said date. This is apparent on the face of said document. The PTD does not disclose name of the evacuee owner. The record was produced by the plaintiff through Abdul Majeed Qadri, Superintendent PW-2. He has stated that plot No. 10- A does not find any mention in the survey register for Model Town Society for Blocks A, B, C, D. There is no mention of the PTD in the register of CSCF while register CSC-4 is not available. There .Is no mention of the date of auction in the relevant register. Copy of the bid sheet has not been issued by his office. The compensation book against which the dues are stated to have been settled is also not available according to record it pertains to Karachi. He further stated that every participant in the auction has to obtain a token number and to pay fee and there is no entry of any token number or fee paid qua the. Said auction.
In his cross- examination he stated that there are no orders for conferment of permanent right in the file. He also stated that no auction list regarding block-A of Model Town Society is available in his record. He expressed inability to confirm that mark "A" is correct copy of the auction list. He gave numbers of all the plots in. Model Town Society in register CSC-4 and plot No. 10-A is not included in the same.
10. Abdul Shakoor appellant himself appeared, in the witness-box as DW-1 but in response to every question in cross-examination pertaining to the case opted to express ignorance. Stating that his father used to look after the affairs. Haji Abdul Manan stated to be attorney of the appellant appeared as DW-2 and made a meaningless statement expressing ignorance in response to material questions. At the same time stated that whatever he knows was conveyed to him by the appellant.
11. The said plea taken by the appellant in his amended written statement revolves around documents Exs.P21 and P23. Ex.P21 is an application dated 15.7.1952 by the plaintiff stating that she owns plots Nos. 27-A and 10- A and that she has sold plot No. 10-A to Mst. Maya Devi for Rs. 9000/- on 14.7.1947 and that she has migrated to India and let plot No. 10-A be placed at the disposal of the Custodian of evacuee property. Ex.P23 is a transfer form dated 14.7.1947 purported to be executed, by the plaintiff and said Mrs. Maya Devi. Muhammad Ibrar, Record Keeper, Model Town Society has appeared as PW-3 and has stated that Exs.P21 and P23 are present in record but the Receipt register is not available in the record. According to him in the entire record there is no proceedings recorded on the said documents. He stated in his cross-examination that Abdul Shakoor appellant filed an application for membership on 28.5.1986 appended PTD and after verification membership was given to him.
12. It is stated case of the plaintiff that the said two documents were planted in the record. Her son and attorney Aziz-ud-Din appeared as RW-4 and stated that Ex.P21 urid Ex.P23 do not bear the signatures of his mother. It is established on record that the said Maya Devi was owner of another plot bearing No. 127-D vide document Ex.P30 and that she was also a member of the Society. The application filed by her is Ex.P31. Apart from the fact that the signatures of the plaintiff lady on the said documents do not tally with her admitted signatures particularly with reference to the word "Asgha'ri", document Ex.P23 is purported to be signed by Maya Devi in Urdu whereas her signatures on the proved document Ex.P31 are in Hindi. The above-noted contention of the learned counsel as to the absence of Authority in the learned Trial Court to compare the signatures is baseless under Article 84 of the Qanoon-e-Shahadat Order, 1984 a Court has the necessary power to compare the signatures. Reference be made to the case of Ghulam Rasool and others v. Sardar-ul-Hassan and another (1997 SCMR 976).
14. The learned Trial Court is also justified in wondering as to why Maya Davi who admittedly became an avacuee proceeded to purchase property in month of July, 1947 when it is in the public knowledge that the partition plan had already been announced by the Lord Mountbatten, Viceroy of India on 3.6.1947 and British Parliament proceeded to pass the India Independence Act, 1947 on..
18.7.1947.
15. Having, thus, examined the records, we do agree with the learned Trial Court that the said transfer documents and connected papers are forged and fabricated and so is the case with documents Ex.P21 and Ex. P.23.
16. In view of whatever has been discussed above, this R.F.A. Is dismissed with costs throughout.