SYED MUHAMMAD FAROOQ SHAH, J. --- Being aggrieved and dissatisfied with the judgment and decree passed in Civil Appeal No. 190/2003 on 22.4.2009 by Additional District & Sessions Judge, Karachi-South, dismissing the appeal filed against the judgment 21.3.2003 and decree dated 23.7.2003 passed by learned 1st Senior Civil Judge, Karachi-South in Suit No. 3241/1985, the present Civil Revision Application has been preferred on the facts and grounds as set forth in the Revision.
2. Relevant facts gathered from the pleadings of the parties are that the suit filed by the respondent No. 1 for declaration, cancellation and injunction against applicant No, 1 and others in respect of KMC Plot No. 754-A Bughdadi, Lyari Quarters, Karachi admeasuring 49 Sq. Yards leased by the KMC to the applicant No. 1. It was assertion of respondent No. 1 that Plot No. 754-A had never been in existence and same has been created by the KMC on a road which was passing on the northern side of KMC Plot No. 758. Bughdadi, which plot was purchased by the applicant No. In the year 1981, whereas he came to know in respect of Plot No. 754-A in favour of applicant No. 1 in the year 1978. Different complaints had been lodged including F.I.R. No. 121/83, dated 28.12.1983 on the basis of which Special Case No. 17/1985 was registered and challaned in the Court of Special Judge Anti-Corruption, Karachi, which was culminated in acquittal of applicant No. 1 and others. In their written statements filed before the learned Trial Court the applicant stated that Plot No. 754-A measuring 49 Sq. Yards was created by opponent No. 3 in the light of Revised Land Regularization Plan and thereafter actions were taken in accordance with provision laid down in Sindh Local Government Ordinance, 1979. It is further averred that suit was barred by time under Limitation Act.
The opponent No. 3 (KMC) has filed separate written statement, wherein legal preliminary issues had been agitated. It was further clarified by opponent No. 3 in their written statement that lease of Plot No 754-A was issued to applicant No. 1 as per approved plan. Learned Trial Court settled issues on factual as well as on legal pleas, proposed by the parties and after recording the detail evidence, based on documentary evidence, by its judgment, decreed the suit of the opponent No. 1 in terms of prayer clause which was maintained in appeal filed by the applicant. .
3. The grounds urged in the instant appeal, against the concurrent findings of the Court below are that the evidence has not been appreciated in its perspective as from documentary evidence it was established that Plot No. 754-A was leased out in favour of the applicant No. 1 by opponent No. 3 and was duly registered in the office of Sub- Registrar on 05.7.1978. More-so, the F.I.R. Lodged at the instance of opponent wherein allegations were made that Plot No. 754-A has been created by manipulation illegally and fraudulently, in connivance with applicant No. 1 with the staff of opponent No. 3. The fraud has not been established in respect of alleged manipulation of Plot No. 754-A, hence the applicant alongwith others had been acquitted. It is further stated that the suit filed by the opponent was time-barred and the Courts below did not consider the relevant provision of Sindh Local Government Ordinance in respect of the creation of Plot No. 754-A after deciding the issue of physical possession of Plot No. 754-A in affirmative which justified the possession of the applicant No. 1. The impugned judgments delivered against the applicants. The applicants have prayed that the concurrent findings recorded above, by the both learned lower Courts be set aside
4. I have considered the arguments advanced by
5. Both sides and carefully perused the material available on the record including impugned judgments delivered by learned lower Courts below.
6. In Civil Suit No. 3241/1985, plaintiff Khuda Bux
7. (respondent No. 1 herein) has prayed for the following relief:- "(A) Declare that the lease deed registered at No. 1661 dated-5.7.1978, with the Sub-Registrar of the Properties in favour of defendant No. 1 by defendant No. 3 in respect of 754-A has been obtained by fraud, misrepresentation, forgery and tampering the record and as also it adversely affects the rights of plaintiff in his plot No. LY-13/197, (KMC No. 756) as such the said Lease is a nullity in Law, void and ineffective and the same be cancelled.
(B) Mandatory Injunction directing the defendants No. 3 and 5 to maintain carpeted Road falling between plots No. 754 and 756 (LY 13/197) and remove all encroachment/debris therefrom and further to remove encroachment on the KMC Road abutting Northern side of the plaintiff 's plot by demolishing and removing the encroachment debris.
(C) Mandatory Injunction against defendants No. 1 2 also for removing the encroachments /debris from KMC land falling on the North of the plaintiff;s plot.
(C) Perpetual Injunction restraining the defendants
(D) No. 1, 2 and 6 from at any time encroaching upon any land, abutting the plaintiff's plot or near to it.
(E) Mandatory Injunction directing defendants No.
(F) 4 and 5 to cancel all entries in their record pertaining to plot No. 754-A, Baghdadi Lyari Quarters, Karachi.
(G) Grant Cost of the Suit.
(H) Any other relief this Honourable Court deems fit and proper under the circumstances of the case."
6. While deciding the issue No. 1, settled on the plea of plaintiff (opponent No. 1) that "lease of Plot No. 754A in favour of defendant No, 1/applicant by defendant No. 3(KMC) has been obtained by fraud, misrepresentation and tempering with the record", the learned Trial Court by discussing the evidence observed that "the plaintiff had filed criminal case in Anti-Corruption Court against the defendant No. 1, as well as against the employees of KMC and others and all of them were honourably acquitted from the said case, The learned Trial Court much dilated upon the evidence of the parties and the documentary evidence brought on the record and reached contrary to the findings of acquittal judgment (Annexure G-13) passed in Special Case No. 17/1985 by the Court of Special Judge, Anti-Corruption (Provincial), Karachi, whereby the applicant No. 1 above named alongwith Ashiq A.I and Abdul Latif were acquitted from the allegation levelled in F.I.R. No. 121/1983, dated 28.12.1983, (Annexure D-12), contents of which reveal that Plot No, 754-A has been created by manipulation illegally and fraud, in connivance and in collusion with applicant No. 1 with the staff of opponent No. 3 above-named. In this view of the matter Mrs. Chandio, learned Counsel for the applicant iterated that the acquittal judgment in alleged manipulation and fraud by the applicant is sufficient to prove that the fraud has not been committed in any manner in respect of lease of Plot No. 754-A,
7. The judgment delivered by the learned Special Judge (Provincial) Karachi in Special Case No. 17/1985 available on the file of this Court at page No. 237 reveals that prosecution has failed to establish the point for determination with regard to dishonestly preparation of survey report showing area of Plot No. 754-A as 49 Sq. Yards by the accused Saleem (applicant) with the connivance of co-accused who prepared a forged document. The learned Special Judge concluded the judgment in the following words:- "From the over all picture which emerges out from the material brought on the record, it has been proved that even in 1974, there was a plot No. 754-A and the regularization of the same had been recommended by an M.P.A. Further, there is extract Ex. 9 which proved the existence of this plot. It has also been established that plan Ex. 8 does not appear to be an upto date authenticated document. Under these circumstances, it cannot be said that Saleem had made an application for lease of the land with dishonest intention to cheat KMC and got it leased out in his favour with the connivance of Ashfaq A.I and Abdul Latif There is also no evidence to show the role played by accused Ashfaq and Latif in this case. Accused Latif is not the author of the lease Ex.
19. He is only a witness to this lease. Prosecution has not produced any evidence to show that demand notice had been issued by Abdul Latif. Accused Saleem had produced the said notice but this would not show that it has been prepared by Abdul Latif. Accused Abdul Latif has stated in his examination that he was not competent to issue such demand note Signature appearing on this demand note have not been proved to be the signature of Latif. Considering all these aspects of this case, I have concluded that the case against the accused has not been proved. I, therefore, acquit the accused. They are on bail and their bail bonds stand cancelled."
8. Mr. Abadullah Chandio, learned Counsel for the applicant contended that under the law any issue or point for determination which had already been decided by the competent Court having jurisdiction, may not be discussed or decided in any other forum except as pronounced by the law.
It is stated that much after the judgment delivered by the Special Judge Anti-Corruption i.e. On 21.07.2003, the identical issue had been decided by the learned IlIrd Senior Civil Judge, Karachi (South). It is re-emphasized that learned Senior Civil Judge has seriously been erred to decide the identical issue in the words "the defendant No. 01 in collusion with defendants No. 2 & 3 obtained the lease of a portion of street/line while showing the same as an independent plot, fraudulently and by misrepresentation of facts". On the other hand, learned Counsel for the Respondent refuted vehemently, the aforementioned contentions raised by learned counsel for the applicants and stated that the civil as well as criminal proceedings can continue side by side as they both relate to different laws and can be instituted simultaneously. Learned Counsel for the applicant has not been able to legally substantiate his arguments through any decision of superior Courts.
9. I, very humbly disagree with the arguments put forth by the learned counsel for the applicant as both criminal as well as civil cases have been proceeded under the separate laws. In the case of Seema Fareed and others v. The State and another (2008 SCM R 839) the Hon'ble Supreme Court held that:--- "It is well-settled that, a criminal case must be allowed to proceed on its own merits and merely because civil proceedings relating to same transaction have been instituted it has never been considered to be a legal bar to the maintainability of criminal proceedings which can proceed concurrently because conviction for a criminal offence is altogether a different matter from the civil liability. While the spirit and purpose of criminal proceedings is to punish the offender for the commission of a crime the purpose behind the civil proceedings is to enforce civil rights arising out of contracts and in law both the proceedings can coexist and proceed with simultaneously without any legal restriction.
10. In light of the dicta laid down by the Hon'ble
11. Supreme Court, reproduced above, the standard of proof in civil and criminal cases is quite different. In a civil suit, the Court has to see only probability of truth whereas in criminal proceedings, the prosecution has to prove the alleged offence "beyond reasonable doubt" and if there is any doubt, the accused is entitled to its benefit not as the matter of grace or concession but as of right. Reference may also be made to the case of Tariq Pervaiz v. The State (1995 SCM R 1345). The agitated point raised by the learned Counsel for the applicant is, therefore, having no sanctity in the eyes of law.
12. So far as other contentions of the learned
13. Counsel for the applicant with regard to mis-reading and non-reading of evidence is concerned, the judgment of the Trial Court on the face of it appears to be well-reasoned, elaborate and based on sound reasoning on each and every issue, therefore, it could not be said that the Trial Court as well as the Appellate Court have committed illegalities by overlooking the material brought on the record. One of the ground raised in the instant appeal is in respect of physical possession of Plot No. 754-A with defendant No. 1, was decided in affirmative, therefore, it is contended that the applicant's physical possession is justifiable. If at all, the applicant was found in physical possession of property, it does not establish his legal possession. Findings of the learned Trial Court on this issue is spreading on as many as eight pages which need not to be reproduced.
The learned Trial Court in impugned judgment, after discussing the documentary and oral evidence and the relevant law, reached at conclusion that:--- "From my detailed discussion, it come on the surface that the defendant No. 01 in collusion with defendants No. 2 and 3 obtained the lease of a portion of street/line while showing the same as an independent plot, fraudulently and by mis-representation of facts, therefore, issue No. 01 is answered in affirmative."
12. From the facts and circumstances, it is established that sufficient iota of evidence is available on the record showing that due to fraudulent act of possession/occupation of the applicant over the said plot, the respondent No. 01 has been effected as his easement rights have also been infringed. Defendant No. 1 (applicant herein) in his evidence deposed that his plot was open from three sides but the record shows that on the northern side of respondent No. 1's Plot No. 754-A and across 8 feet lane is a Government Property No. LY-13/93, on eastern side 10 feet lane adjoining Primary School and on western side there is 15 feet land adjoining to KMC building, which has not been controverted by the applicant in evidence. So far as the maintainability of the suit on the point of limitation being barred by law is concerned, respondent No. 1 came to know about the execution of lease deed of the suit plot in favour of the applicant and approached to the concerned department for redressal of grievance and subsequently he has filed the suit within time as under Article 120 of the Limitation Act, which is residuary Article applies in this case which provides six years period. It has already been established that the applicant No. 1 in connivance with KMC by a fraudulent act and by misrepresentation obtained title documents, it is settled that no limitation runs against void order and there may not be any limitation at all to challenge an illegal order. In the case of MUHAMMAD SHAFI v. MUSHTAQUE AHMED THROUGH LEGAL HEIRS AND OTHERS (1996 SCM R 856) bar of limitation was ignored in respect of void orders and it was held that "Question of limitation would not arise in respect of judgments which were nullity in law, where order was without jurisdiction and void it need not be formally set aside." In the case of BEGUM SYEDA AZRA MASOOD v. BEGUM NOSHABA MOEEN & OTHERS (2007 SCM R 914) it was held that "void order is only a type of an illegal order and if as created certain consequences, an aggrieved person must get rid of it and that no limitation runs against void order and there may not be any limitation at all." In the case of EVACUEE TRUST PROPERTY BOARD & OTHERS v. MST. SAKINA BIBI & OTHERS (2007 SCM R 262) at para 13, their lordships held that "it is a settled law that no limitation runs against the void orders". In such circumstances, the order passed by the KMC inclusion with the applicants herein is an illegal and void order in which the limitation period shall not be applicable. Moreso, the unlawful holding of public office which executing the lease of street in favour of the applicant is a continuing wrong, which can be questioned at any time and therefore, the learned Trial Court has rightly observed that:--- "There is no cavil to the proposition that the cause of action arises from the date of knowledge thereof. Here in this case, the plaintiff has purchased the property in the year 1981 vide conveyance deed Ex. P/1/1. According to him, subsequently, he came to know about the issuance of lease of plot No. 754-A in favour of the defendant No. 01 by the defendant No. 03. There is no denial to the fact that the previous owner had acquired the knowledge of said lease and lodged her protest with the concerned department The defendants have failed to produce on record any documentary proof to show that at the time of sale transaction of plot of the plaintiff, the subject information was transmitted to him by the outgoing owner. The plaintiff through applications dated 18..02..1982, 17.03.1982 and 28.03.1983- (Ex. P/1/6 to P/1/8) lodged his grievance with the department, which fact indicates that in the year 1982, he first time acquired the knowledge of execution of lease of suit plot in favour of the defendant No. 01 by the defendant No. 03. In fact, present suit filed on 21.08.1985 after lapse of 3 years and 5 months from the date of acquiring the knowledge. The question now warrants determination is whether the suit is barred by limitation? I have considered the arguments advanced by both the sides. Article 120 is a residuary/omnibus Article which applies in all cases where no other specific limitation has been specified and some provides 6 years' time,.
There is plethora of case-law on the point that in a suit pertaining to cancellation, correction and amendment to record of rights, Article 120 and no other Article namely 14 of the Limitation Act is applicable. In this regard, strength can be derived to case-laws namely 1989 CLC 803, PLD 1994 SC 245 and 1996 CLC 1184 RE: Soomar and 15 others v. M. Paryal and others. In the latter case there is very exhaustive and valuable discussion of his lordship Mrs. Justice Dr. Ghous Muhammad on the point at issue. I feel it appropriate to reproduce the same in verbatim as under:- ,.
The next issue is to determine as to whether Article 91 can be pressed into service. It has been stated by the learned Counsel for the Respondents that since the applicants have sought cancellation of the Registered Sale-Deed the matter is to be governed by Article 91, which prescribes a period of three years. The contention is equally devoid of force. The applicants have not sought cancellation of the registered sale-deed in the suit. In fact the applicants have sought a declaration to the effect that the said Sale-Deed be declared as void, ab initio and of no legal effect. It is quite juridically impossible to challenge a document by seeking a declaration for it to be void ab initio while not seeking its cancellation. If an authority is needed on this point it is the case of Daibakilal Basak v. Lqbal Ahmed Qureshi (PLD 1965 Dacca 439). Also in this regard there appears to be settled law that once a declaration of title is sought, cancellation of the document in issue becomes a consequential relief and is totally unnecessary to seek. In this regard one of my brother and senior Judges of the Sindh High Court namely, Wajihuddin Ahmed, J.
Has very ably observed in Qabool Muhammad Shah v. Bibi Bushra (1992 M LD 833).
The crucial point, nonetheless, often is whether simple declaration of title would be in a given case or cancellation or other relief is also called for. As regards documents tending to detract from title the principle evolved seems to be that cancellation or other consequential relief would be totally unnecessary, if such incorporate or evidence a void transaction or operate between third parties, not involving the plaintiff, though a claimant under a party is to be visited with draw backs attaching to the party (at page 847).
I am thus of the view that cancellation of the instrument i.e. The registered Sale-Deed is merely an incidental or ancillary to the substantial relief claimed by the applicants in the suit, in view whereof Article 91 would become inapplicable.
1992 MLD 833 where the learned Judge had held that the Courts should avoid in making a fetish of technicalities at 849. Also the cases of lmtiaz Ahmed v. Ghulam All (PLD 1963 SC 382) and Muhammad Saleem v. Superintendent of Police (PLD 1992 SC 369) support the view that procedural defects alone should not be allowed to thwart substantial rights."
13. Crux of the afore-mentioned discussion is that no gross illegality, irregularity or infirmity in the impugned judgment delivered by the learned Trial Court depicts, as the KMC [respondent No. 3] while ignoring original status i.e. Part of the street/road had allotted to the Respondent which can be called in question at any time, therefore, I have no hesitation to observe that keeping in view the sound reasons, the elaborate judgment delivered by the learned Trial Court evaluating the evidence, does not require any interference, therefore, the appeal filed by the applicants has rightly been dismissed, by the learned Appellate Court below.
14. Resultantly, the present Revision Application having no merits for consideration is hereby dismissed with cost. ,