O R D E R Aqeel Ahmed Abbasi, J: Through instant Appeal, the appellant has impugned the order dated 18.04.2011 passed by the learned Single Judge of this Court on CMA No.2140/2009 (U/O XXXIX Rule 1 & 2 read with Section 151 CPC), and CMA No.2141/2009 (U/O XL Rule 1 read with Section 151 CPC) filed by the plaintiffs/respondents No.1 and 2, whereby, both the applications have been granted against the appellant with the directions to the appellant not to create any third party interest in the ground plus 1st Floor of the subject property till disposal of the suit, whereby Nazir of this Court has been appointed as Receiver to take accounts of the rent collected by the appellant from the Ground plus 1st Floor and the tenants of the said floors have been directed to deposit the monthly rent with the Nazir of this Court till further orders.
2. The brief facts as stated in the memo of appeal are that on 28.02.2009 the respondents No.1 and 2 filed a Suit bearing No.308 of 2009 for Declaration, Possession, Permanent Injunction, Possession, Cancellation of documents, Damages and Rendition of Accounts in respect of 20% undivided share in property bearing Plot No.47, Sheet No.SB-2 (Old Survey No.G-3/112) total measuring 388 square yards situated on Mansfield Street, Saddar Bazar, Karachi, which was gifted by the respondent No.1 to the appellant and respondent No.4 by way of registered instrument executed on 24.7.2004.
3. That alongwith the plaint in Suit No.308 of 2009, the respondent No.1 and 2 filed stay application being CMA No.2140/2011 as well as application for appointment of Receiver being CMA No.2141/2011 and the learned Single Judge after hearing the parties allowed both the applications through impugned order dated 18.4.2011.
4. Learned counsel for the appellant has vehemently opposed the finding recorded by the learned Single Judge of this Court in the impugned order whereby injunction application filed by the respondent has been granted in favour of the respondent and Nazir of this Court has been appointed as Receiver of subject property with further directions to take accounts and to collect the rent from the tenants. It has been contended by the learned counsel for the appellant that none of the ingredients which are required to be taken into consideration while deciding an injunction application i.e. prima facie case, balance of convenience and irreparable loss and injury to a party, has been considered by the learned Single Judge in the instant matter, whereas the injunction application has been allowed on mere assertions made by the respondents, which assertions, according to learned counsel, were seriously disputed by the appellant, whereas, sufficient material was placed on record before the learned Single Judge to dislodge and falsify such claim of the respondents No.1 and 2. Per learned counsel, pursuant to a registered Declaration Confirming Oral Gift dated 24th July 2004 in favour of the appellant in respect of ground floor of the subject property i.e. Razzak and Wahab Manzil, constructed on Plot bearing Survey No. 47, Sheet No.SB-2 (Old Survey No.G-3/112) measuring 388 sq. yds, situated in Mansfield Street, Saddar Bazar Quarters, Karachi, 20% undivided share stood transferred in the name of the appellant, who was also handed over the possession of such portion, and thereafter, let out the same to respondent No.3 and was continuously receiving the rent thereon without any objection from any corner. It has been contended by the learned counsel that after a lapse of about five years from the date of execution of the above registered Declaration Confirming Oral Gift, the respondents No.1 and 2 filed Suit for Declaration, Possession, Permanent Injunction, Cancellation of Documents as well as Damages by alleging that the registered Declaration Confirming Oral Gift was got registered by way of fraud and forgery, therefore, the same may be cancelled. Per learned counsel, before execution of aforesaid registered Declaration Confirming Oral Gift, pursuant to a Family Settlement a registered Partition Deed dated 16.11.1983 was executed in respect of subject property thereafter it stood transferred by way of Oral Gift in the name of five sisters including respondents No.1 and 2 in the ratio of 20% undivided share each in the subject property. Per learned counsel, in terms of Partition Deed, five different portions of subject property were divided and distributed in the ratio of 20% share each by allocating ground floor to Mst. Sameena Maqsood i.e. respondent No.1, 1st Floor, to Seema Nasir i.e. respondent No.2, whereas, other three floors were transferred to other three sisters. According to learned counsel, no material or evidence whatsoever has been produced by the respondents before the learned Single Judge in the suit which could possibly justify or establish the allegation of the respondents with regard to fraud and forgery in respect of entitlement of the appellant in the subject property. On the contrary, per learned counsel, in view of the registered documents duly executed in favour of the appellant in respect of the portion (20% share) in subject property, the lawful presumption in favour of the appellant with regard to his entitlement and possession of subject property is established. It has been further submitted that the suit of the respondents besides being baseless and frivolous, is also barred by limitation under Article 91 of the Limitation Act, whereas in terms of Article 181 of the Limitation Act, three years period is provided to challenge the alleged fraud and forgery. Learned counsel has further contended that the learned Single Judge of this Court has also erred in law and fact by allowing the application of the respondent for appointment of Receiver in respect of the subject property, which for all legal purposes, is owned by the appellant, whereas, he is earning rental income from such property for the last about five years without any objection from any one including the respondents. According to learned counsel, the application of the respondents for appointment of Receiver, in the absence of any title documents or even possession with the respondents, could not have been allowed as it has caused serious prejudice to the interest of appellant, as the very livelihood of the appellant from rental income is stopped and the Nazir of this Court has been directed to collect same. Per learned counsel, in view of the admitted registered title documents in favour of the appellant in respect of subject property no adverse inference could have been drawn on the basis of mere allegations, therefore, the impugned order may be set aside and the appellant may be allowed to continue to recover the rent of the portion of the subject property i.e. 20% undivided share of the appellant till decision of the aforementioned suit. In support of his contention, learned counsel for the appellant has relied upon the following cases:
1. Mst. Afroze v. Senior Member, Federal Land Commission 1989 M LD 1732
2. Bahadur Khan v. Mst. Niamat Khatoon1987 SCM R 1492
3. Gulab Begum v. Additional Secretary, Home and Tribal Affairs Department, Govt. of N.W.F.P PLD 1989 Peshawar 142.
5. Conversely, Mr. Shafi Muhammadi, learned counsel for respondents No.1 & 2 has supported the impugned order passed by the learned Single Judge and has controverted the contention of leaned counsel for the appellant. It has been contended by the learned counsel that the respondents have filed a suit seeking Declaration, Possession, Permanent Injunction, Cancellation of documents i.e. Declaration of Confirming Oral Gift, on the basis of which the appellant is seeking entitlement over subject property, therefore, the order passed by the learned Single Judge on applications filed by the respondents seeking injunction as an interim relief, and appointment of Receiver in respect of subject property, was warranted under the facts and circumstances of this case. It has been contended by the learned counsel that since the property was undivided, therefore, it could not be transferred through alleged declaration of gift in favour of the appellant.
Learned counsel has also referred to the contents of Partition Deed dated 16.11.1983 to show that pursuant to such Partition Deed the subject property stood divided among five sisters in equal share i.e. 1/5th of the whole, whereas, as per contents of Declaration Confirming Oral Gift, the property was undivided, which, according to learned counsel, negates the Partition Deed filed by the appellant in respect of subject property. It has been contended by the learned counsel that since fraud and forgery has been alleged by the respondents in respect of Declaration Confirming Oral Gift, the same requires evidence, therefore, the stay granted in favour of the respondents and the appointment of Receiver over the disputed property by the learned Single Judge through impugned order does not require any interference by this Court, whereas instant appeal is liable to be dismissed.
6. While exercising the right of rebuttal, learned counsel for the appellant has argued that the term "20% undivided share" in building i.e. Razzak and Wahab Manzil, Plot bearing Survey No.47, Sheet No.SB-2, measuring 388 sq. yds, situated in Mansfield Street, Saddar Bazar Quarters, Karachi, has been used in the "Declaration Confirming Oral Gift" for the reasons that the subject property has not been officially divided by the Lessor, whereas, the same has been distributed in view of Family Settlement between co-owners as per Partition Deed dated 16.11.1983, therefore, it does not negate the contents of Partition Deed and has no adverse bearing on the entitlement of the appellant in respect of property, as alleged by the learned counsel for the respondents No.1 and 2.
7. Both the learned counsel for the respondents No.3 and 4 have not advanced any arguments, as according to them, the impugned order pertains to appellant and respondents No.1 and 2.
8. We have heard the learned counsel for the parties, perused the impugned order and the record of the case. Briefly, the relevant facts of the instant case are that the respondents No.1 and 2, who are real sisters filed a Suit No.308/2009 against the appellant, the real brother as well as another brother namely, Abdul Razzak and three sisters namely Mst.Tahira, Mst.Saira, Mst.Nasira, the Habib Bank Ltd. (tenant) and other official respondents seeking Declaration, Possession, Permanent Injunction, Cancellation of documents, Damages and Rendition of Accounts. Declaration has also been sought to the effect that the property in dispute may be declared as an undivided property, wherein respondents have 20% share each and to declare that the Declaration Confirming Oral Gift in respect of subject property was got registered by the appellants by fraud and forgery, hence of no legal effect. Further declaration has been sought to the effect that the respondents No.1 and 2 have the right to receive rent of property in dispute as per their respective share of 20% each in the subject property. It appears that alongwith the suit filed by the respondents two applications bearing CMA No.2140/2009 under Order XXXIX Rule 1 and 2 read with Section 151 CPC and CMA No.2141/2009 under Order XL Rule 1 read with Section 151 CPC were also filed whereby, it was prayed that the appellant may be restrained from creating any third party interest in the suit property and Receiver/Administrator may be appointed on the subject property to protect the suit property till disposal of the suit. The appellant filed counter affidavit to both the applications and vehemently opposed the relief sought by the respondents through listed applications. The chronology of the events with regard to distribution of the subject property through registered Partition Deed dated 16.11.1983 in the name of five sisters in equal share i.e. 20% each with specific allocation of ground plus four floors i.e. each floor allocated in their respective names, was disclosed by the appellant in the counter affidavit to both the applications. Detail of further transfer of the respective portion of the respondents No.1 and 2 in favour of appellant of subject property as per 20% share, through registered Declaration Confirming Oral Gift dated 24.7.2004 has also been brought on record alongwith relevant documents. Prima-facie it appears that pursuant to the aforementioned registered documents in favour of the appellant constructive possession of the suit property as per their respective shares was also with the appellant, who has subsequently let-out the said property to Habib Bank Ltd., respondent No.3, and has been receiving rent for the last several years without any objection by any one including the respondents No.1 and 2. We have further noted that, as per contents of Declaration Confirming Oral Gift, the share in subject property was gifted by the respondent No.1 without any consideration except out of respect and affection for the donees i.e. real brothers. It will be advantageous to reproduce para 5 of Declaration Confirming Oral Gift dated 24.7.2004, which reads as follows: "5. In consideration of great respect and affection which I bear for my two brothers Abdul Razzak ad Abdul Wahab both sons of Abdul Jabbar, hereinafter called "the Donees", I made on 20th July 2004, an Oral Gift of my undivided 20% share in Property to them in the presence amongst others of Haji Abdul Jabbar son of Haji Abdul Karim and Abdul Rahim son of Haji Abdul Karim."
9. From perusal of the impugned order, it appears that while allowing both the applications in favour of the respondents the learned Single Judge, instead of examining the case of the respondents, seeking declaration and cancellation of registered documents as well as restraining orders against the appellant and appointment of Receiver of suit property, on its own merits and on the strength of the evidence, if any, produced by the respondents, has taken into consideration the contents of the counter affidavit filed by the appellant in reply to the listed application and was therefore, pleased to observe as follows:- "The defendants No.1 and 2 have themselves stated in the counter-affidavit as well as in the written statement that the share of plaintiff No.1 had been given in shape of House No.R-221, Sector 7-D/3, North Karachi, Karachi and sufficient amount in cash by their father Abdul Jabbar from his personal account, who is also the father of the plaintiff No.1. Therefore, it is established from the available record that whatever has been given to the plaintiff No.1 i.e. House or cash amount was given by her father not by defendants No.1 and 2, hence the plea taken by the defendants No.1 and 2 that the plaintiff No.1 in lieu of her 20% share in the property in question had executed gift deed in their favour is creating doubt particularly when the executant/donor of the alleged gift deed is denying the execution."
10. It is settled legal position that while deciding an application under Order 39 Rule 1 and 2 read with Section 151 CPC seeking injunction, the Courts are required to examine as to whether a party, who is claiming such interim relief, has a good prima-facie case on merits, whereas balance of convenience for grant of injunction is also in his favour. Further it may be taken into consideration that if injunction is not granted it may cause irreparable loss and damage to the claimant. We have noted that while granting injunction in favour of the respondent, the learned Single Judge has not referred to any of the ingredients i.e. prima-facie case, balance of convenience and irreparable loss and injury, which are the pre-requisites for grant of stay in favour of a party. We have further noted that no valid reasons have been recorded in the impugned order while allowing the application under Order LX Rule 1 CPC, which otherwise is a harsh remedy. Moreover, admittedly, the appellant is receiving the rent of the subject property for the last several years without any objection by the respondents No.1 and 2.
11. In a recent judgment of a Division Bench of this Court authored by one of us namely Aqeel Ahmed Abbasi, J in the case of Muhammad Saad and another v. Amna and others passed in HCA No.232 of 2007 while explaining the parameters for grant of injunction it has been held as under: " While seeking a favourable injunctive relief the applicant is to prove the prima-facie existence of the right claimed in the suit and also its infringement. But the mere fact that a prima-facie case has been established will not entitle the applicant to an injunction unless the other two factors i.e. balance of convenience and irreparable damage or injury, are fulfilled. The Court is required to balance the inconvenience and to see as to whether applicant will suffer more inconvenience by the withholding of the injunction than that which the respondent would suffer by granting of injunction. The Court is further required to weigh the mischief of either party in case of grant or refusal of the injunction. Normally the balance lies in favour of continuation of a state of things, such as to protect the possession of a party or to allow the continuance of a contract. Similarly, while granting injunction or otherwise it has to be ensured that the grant of injunction to one party may not cause irreparable damage or injury to the other party whose loss cannot be compensated in terms of money."
Further reliance in this regard can also be placed in the case of Shahzada Muhammad Umar Beg v.
Sultan Mahmood Khan and another (PLD 1970 SC 139), Marghub Siddiqi v. Hamid Ahmed Khan & 2 others (1974 SCM R 519) and Abdul Ghafoor Memon v. Muhammad and another (PLD 1975 Karachi 464).
12. There is no cavil to the legal proposition as argued by the learned counsel for the appellant that there is legal presumption in favour of a registered document and unless, such document is cancelled and proved to be illegal, no adverse inference can be drawn regarding validity of such document and entitlement of the person in whose favour such document has been executed. Mere allegations, unless proved to be correct through evidence, cannot be treated at par with the evidence in the shape of a registered document. However, in the instant matter, since the validity of Declaration Confirming Oral Gift dated 24.7.2004 has been disputed by the executant on the allegations of fraud and forgery, therefore, restraining order to the effect that no third party interest may be created in respect of disputed property, at this stage, would not harm or cause any irreparable loss and injury to the appellant, as nothing has been argued by the learned counsel for the appellant in this regard. Under the circumstances, we are not inclined to interfere with the finding of the learned Single Judge as recorded on the application i.e. CMA No.2140/2009 under Order 39 Rule 1 & 2 read with Section 151 CPC, whereby the appellant has been directed not to create any third party interest on the ground plus 1st floor of the property in question. However, if the appellant, during pendency of the suit would make out a case for creating any third party interest in respect of subject property, he may be at liberty to move proper application before the learned Single Judge, who shall decide the same on merits keeping in view the prevailing circumstances or evidence which might be produced by both the parties, without being influenced by disposal of the earlier application in this regard.
13. As we have already observed hereinabove that the subject property, as per registered Declaration Confirming Oral Gift, is prima-facie owned, possessed and let-out by the appellant who is receiving rent of the same for the last several years without any objection from any one including respondents No.1 and 2, therefore, the order of learned Single Judge appointing Nazir as Receiver to take accounts of rent collected by the appellant from the ground plus 1st floor of the subject property and further directing the tenants of the said floor to deposit monthly rent with the Nazir of this Court till further order, besides being harsh, does not contain any valid reasons, therefore, the same is hereby set aside.
14. Before parting with this order, we may clarify that the observations made hereinabove are tentative in nature and the learned Single Judge shall not be influenced by any such observation and may decide the case strictly in accordance with law after examining the evidence produced by the parties.
Instant High Court Appeal stands disposed of in the aforesaid terms.