' IRFAN SAADAT KHAN, J.---This IInd Appeal has been filed against the judgment dated 6-10-2010 passed by the VIIth Additional District Judge, Karachi South in Civil Appeal No, 241 of 2009.
2. Briefly stated the facts of the case are that respondent No,1 filed a Suit No,517 of 2003 for Declaration, Damages and Injunction against the appellant as well as respondent No,2. It was claimed by respondent No,1 that he had purchased a plot from respondent No,2 bearing No,103/C, Al-Murtaza Commercial Lane-4, measuring 200 sq. Yards, situated at Phase-VIII, D.H.A., Karachi, vide sale agreement dated 15-9-1981 for a total sale consideration of Rs,46,000, which plot was duly allotted to respondent No,2 by the appellant vide allotment order dated 6-2-1978. The respondent No,1 made a number of requests to respondent No,2 for transfer/mutation of the said plot in his name but on one pretext or the other the same was not done by the respondent No,2. Thereafter, respondent No,1 moved an application to the appellant with the request to kindly help him in getting the said plot transferred in his name. It was also mentioned in the said letter, which was received by the appellant on 19-3-1992, that all the original papers are in the possession of respondent No,1 duly obtained from respondent No,2. The appellant thereafter informed respondent No,1 that the said plot had not been allotted to respondent No,2 as per Rules and Regulations so the question of transfer in his name does not arise. Being aggrieved with the said treatment meted out by the appellant Civil Suit No,21/94 was filed by respondent No,1 against respondent No,2 and the present appellant with the prayer that as the respondent No,1 is entitled to take possession in accordance with law necessary legal formalities including transfer of the said plot be carried out. It was also prayed that damages to the tune of Rs,600,000 may also be granted to respondent No,l.
3. Learned IInd Senior Civil Judge, Karachi South, vide her order dated 28-9-2009 decreed the suit as prayed. Being aggrieved with this order an appeal thereafter was filed by the present appellant challenging the order of the IInd Senior Civil Judge, Karachi South, and requesting that the order passed by the. Said Judge may be set aside. The matter thereafter was heard by the learned VIlth Additional District Judge, Karachi South, who after hearing the case at length set aside the order of IInd Senior Civil Judge to the extent of payment of damages, however so far as entitlement of possession and transfer of the said plot in the name of respondent No,1 and restraining respondent No,2 and the present appellant from selling, transferring and handing over of physical possession thereof is concerned, the same was maintained. It is against this order that the present Ilnd appeal has been filed.
4. Mr. Raja Sikandar Khan, learned counsel appeared on behalf of the appellant and submitted that the order passed by the learned Additional District Judge is not only erroneous but also based on incorrect appreciation of facts and misreading and non-reading of the evidence available on the record. While elaborating his view-point the learned counsel submitted that respondent No,1 had claimed ownership of the plot on the basis of an unregistered sale agreement, which according to him by no stretch of imagination could be considered to be a valid document so far as transfer of the plot is concerned. He further submitted that the two Courts below have not considered the fact that the plot allotted to respondent No,2 was cancelled by the appellant and the question of sale' of that plot does not arise and if any sale has been effected in this regard by the respondent No,2 that sale-has no value in the eyes of law. He into this regard invited my attention to various Byelaws of D.H.A. And also pointed out that respondent No,1 was duly informed that the said plot could not be transferred in his name, as the said plot had never been legally allotted to the respondent No,2. Learned counsel further submitted that vide .a meeting dated 4-12-1990 it was already decided by the Director, Planning and Design,4that the plot under question was incorrectly allotted to the respondent No, 2 which is liable to be cancelled by the Executive Board of the Authority and a proper Show-Cause Notice dated 17-12-1992 in this regard was duly served upon the said respondent No,2 who was, at that time, alleging to be owner of the said plot. He further stated that in response to the said Show-Cause Notice respondent No,2 filed a reply dated 28-1- 1993 admitting his fault and stated that the advance money paid by him in this regard may be refunded to him. Learned counsel stated that perusal of this letter would clearly reveal that respondent No,2 had admitted that he was not entitled to have the said plot and that is why he wrote a specific letter to the appellant for refund of his money. Learned counsel further submitted that response to the said letter the appellant wrote another letter to respondent No,2 dated 7-2- 1993 mentioning therein that, the amount of refund claimed by him cannot be given to him as the said amount has already been forfeited by the appellant.
5. Learned counsel further submitted that though it is claimed by the respondent No,1 that full, amount of sale was paid by him but no document regarding transfer of plot was submitted by him to the appellant. He further stated that the signatures of the respondent No,2 appearing on the sale agreement, loan affidavit and receipt are totally different from the signatures appearing on the letter addressed by respondent No,2 to the appellant for refund of amount which clearly proves that all these documents are fake and fabricated and no allotment of the plot could be made in view of these fake and forged documents. He also submitted that a perusal of these documents would reveal that in some documents the father's name of respondent No,2 has been shown to be Jamal Hussain whereas at some places it has been shown to be Muhammad Ali Shah which creates doubt so far as veracity .Of these documents are concerned. Learned counsel further submitted that respondent No,1 was in full knowledge of the affairs of the company but he kept mum and after a passage of more than ten years approached the appellant for transfer of the plot in his name. He further stated that if, respondent No,1 was aggrieved he should have filed a Suit for Specific Performance rather than filing a Suit for Declaration, Damages and Injunction, which according to him was not maintainable. He further stated that no ownership rights could be claimed, on the basis of unregistered documents and the claim made in this regard by the respondent No,1 was totally unwarranted. In the end he submitted that the two Courts below have not considered the facts of the case in their true perspective and these orders are liable to be set aside. In support of his contentions the learned counsel has relied upon the decision in the case of Gulshan v. Amir Ali reported as PLD 1997 Karachi 292.
6. Mr. Zia-ul-Haq Makhdoom, learned counsel appeared on behalf of the respondent No, 1 and stated that perusal of the sale agreement would reveal that entire sale consideration was paid and for all practical purposes this sale agreement has to be .Considered a sale deed. He stated that respondent No,1 has purchased the plot from a legal and lawful owner and there was no justification for the appellant to refuse to transfer the said plot in his name without any justification.
He' further submitted that so far as difference in signatures is considered similar objection was raised before the Courts below which has not been accepted and even the respondent No,2 has not denied the signatures appearing on the said documents. He further stated that in the matter of army personnel the most important thing is their P.A. Number. He further stated that on all the documents P.A. Number of respondent No,2 has been mentioned and it has no where been controverted by the appellant that the said P.A. Number does not belong to the respondent No,2, hence the difference in the father's name of respondent No,2 in view of the circumstances is immaterial.
7. Learned counsel further stated that admittedly respondent No,2 was entitled to have one residential and one commercial plot and if the appellant has allotted to the respondent No,2 an extra residential plot, it is only the residential plot which should have been cancelled by the appellant and not the commercial plot. He further stated that concurrent findings are in his favour and not a single evidence has been produced by the learned counsel for the appellant that the orders passed by the two Authorities below were a result of misreading and non-reading of the evidences. He stated that in view of the facts and circumstances of the case respondent No,1 is entitled to take possession of the said plot as he has proved his case through documentary evidences, which has not been denied by the appellant. He also invited my attention to the cross- examination of a representative from the appellant duly admitting that the plot was allotted to respondent No,2 in accordance with Bylaws of D .H.A. In the end he prayed for maintaining the impugned orders and dismissal of this IInd Appeal. In support of his above contentions the learned counsel has relied-upon the following decisions:
(1) Pakistan Defence Housing Authority v. Munir Ahmed Ghulam Mustafa Akhtar (2006 SCMR 178).
(2) Munir Ahmed Ghulam Mustafa Akhtar v. Pakistan Defence _ Officers Housing Authority (2004 YLR 2047).
(3) Syed Rafiul Qadre Naqvi v. Syeda Safia Sultana and others (2009 SCMR 254).
(4) Rafique Usman v. Axact Cyber Solution through Proprietor and 2 others [2010 YLR 155 (Karachi)]
8. I have heard both the learned counsel at some length and have also perused the record and the decisions relied upon by them.
9. It is noted that a number of attempts were made to serve the notice upon the respondent No, 2 but of no avail, however on 27-5-2011 it was specifically ordered to serve the notice upon the respondent No, 2 by way of publication. Thereafter notice was served upon the respondent No,2 by publishing the same in Daily Nawa-e-Waqat Rawalpindi dated 24-7-2011 mentioning therein that the case was fixed for hearing on 22-8-2011 and if he does not appear the appeal will be heard and decided. It is noted that today also the respondent No, 2 has neither appeared nor there is any intimation. In view of the circumstances service by way of publication on the respondent No, 2 is held good.
10. It is seen from the record that after purchasing the said plot the respondent No, 1 approached the plaintiff for transferring the said plot in his name, which was refused on the ground that the executive committee has already cancelled the third plot' allotted to the respondent No,
2. The perusal of by-laws of the DHA would reveal that the Army Personnel of the Rank of the respondent No, 2 are entitled to have one residential plot and one commercial plot in DHA. Perusal of the minutes of the meeting dated 4-12-1990 clearly reveal that the respondent No, 2 was allotted two residential plots and one commercial plot. Meaning thereby that one residential plot and one commercial plot were correctlyallotted to him as per his entitlement but the other residential plot was incorrectly allotted to him of which he was not entitled. In the said meeting it was observed that as the two residential plots had already been transferred to a regular member so the third plot which was a commercial plot was liable to be cancelled. A show-cause notice in this regard was issued to the respondent No, 2 by the plaintiff. It is however not understandable that when admittedly the respondent No, 2 was entitled to one residential plot and one commercial plot as to how firstly the second residential plot was allotted to him and as to how the respondent No, 2 was able to sell the second residential plot without being,a legal allottee of the said second residential plot and how come this matter remained unnoticed by the appellant, who transferred the said plot from the name of respondent No,2 to its new purchaser. The learned counsel for the applicant has not been able to advance a single argument in this regard that as to how instead of canceling the second residential.Plot incorrectly allotted to the respondent No 2 how the commercial plot legally allotted to the respondent No, 2 was considered for cancellation.
11. So far as the allegation of the learned counsel for the appellant is concerned that the documents bear different signatures or different father's name of the respondent No, 2, suffice it to observe that firstly signatures as obtaining on the sale agreement, loan affidavit and the receipt of the respondent No 2 have not been denied by the said respondent No 2. Hence this assertion of the learned counsel for the appellant appears to be an afterthought and is hereby repelled. So far as the wrong mentioning of the father's name is concerned, the Court below has already observed that the same was the result of mistaken identity in respect of which no adverse inference could be drawn. It is also seen from the record that the Courts below have categorically observed that in the W.S. Filed by the respondent No, 2 he has categorically stated that he got the allotment of the three plots by way of false declarations and since he was not prejudiced by the action of the plaintiff and cancelling of the third rot he did not contest the matter rather applied for refund. As is apparent from the record it is the appellant who had been negligent in allotting one additional residential plot to the respondent No,2 and the respondent No,1 in this regard could not be penalized for a default committed by the respondent No,2. It has also come on the record that the respondent No,1 had been pursuing the matter for mutation, registration and sub-lease of the plot in his favour but the same could not be carried out firstly due to the indifferent attitude of the respondent No,2 and thereafter by the objections raised by the appellant.
12. It is also seen from the records that in the cross-examination the Deputy Director (Land) of the appellant had duly admitted to have allotted the plot under question in the year 1978. The learned counsel for the respondent in support of his above contention has relied upon the case of Pakistan Defence Housing Authority v. Munir Ahmed Mustafa Akhtar wherein the Hon'ble apex Court has observed as under:- "Right accrued in favour of a person could not be disturbed and destroyed by subsequent developments and once a person continued to be a lawful member of a Society or the Authority, he did not lose his right and interest in the property already accrued to him. No contravention of the bye-laws of the Society or the resolution of the Managing Committee was committed because the allotment in favour of the respondent took place long after the creation of the petitioner Authority in normal course of business in affair and transparent manner---such allotment had the blessings of Executive committee and doctrine of promssory estoppel could be pressed into service against the petitioner-Authority-Colorful exercise of power on the part of the Executive Board, therefore, suffered from patent illegality and was rightly declared as such by the High Court in the exercised of its constitutional jurisdiction---Jurisdiction exercised by the High Court within the contemplation of Art. 199 of the Constitution did not suffer from any legal or factual infirmity so as to warrant interference by Supreme Court".
13. It has been held in a number of decisions given by the Superior Courts that the concurrent findings recorded by the two Courts below, if not found to be a result of mis-reading and non- reading of evidence, are not to be interfered with. In the present case it is seen that the appellant has failed to prove that the findings recorded by the two Courts below are in any manner a result of mis-reading and non-reading of the evidence as the two Courts below after hearing the parties at length and examining the evidence produced by them and other relevant material, in my view, have come to the correct conclusion that the respondent No, 1 is entitled to have the allotment order in his name and also entitled to take possession of the said plot and the appellant is under legal obligation to complete the required formalities for transferring of the said plot in his favour.
14. The present appeal, therefore, being bereft of any merit, is hereby dismissed.
Second .