SYED SAEEDUDDIN NASIR, J.--- This suit has been filed by the plaintiff against the defendants for Declaration, Cancellation of Documents, Damages and Permanent Injunction with the following prayers:- "(a) to declare that the lease obtained by the defendant No.1, in respect of the suit property is forged, fabricated, manure and illegal and not in accordance with the law and as such merits to be cancelled for which the defendant No.5, be directed to effect such cancellation in the record.
(b) to declare that due to the illegal acts of the defendants, inactive collusion and connivance with each other, the plaintiff has suffered physical and mental tortures besides mental agony, monetary losses and waste of time and energy, for which the defendants be directed to pay to the plaintiff Rs.5, 000,000 (Rupees five Million only) as damages;
(c) Perpetual inunction permanently restraining the defendants and/or any person or persons inclusive of their agents, servants, associates, masters, contractors, employees, executants, whomsoever claiming through or under them from interfering into legal possession of plaintiff in respect of the suit house/plot and/or creating any third party interest in respect of the plaintiff's house/plot bearing old No.164 New No.225-A, Upper Gizri Village, Sheet No.3, Katchi Abadi, Gizri Karachi;
(d) Any other relief or reliefs, which this Hon'ble Court may deem fit and proper in the circumstances of the case, be granted.
(e) Costs of the suit be also awarded.
2. The brief facts as narrated in the plaint are that the plaintiffs is the owner of old plot No.164 (new No.225-A) Upper Gizri Village, Sheet No.3, Katchiabadi, Gizri, Karachi (hereinafter referred to as "suit property") and is residing at the said plot with his family since last more than 44 years.
3. During the year 1976 the area known as "Upper Gizri Village" was notified as Katchiabadi whereby all the old, continuous and undisturbed occupants on KMC land in Upper Gizri Village were to be regularized under the provisions of Katchi Abadi Act, and in this regard the Director, Katchi Abadis and Evaluation, Karachi Metropolitan Corporation wrote a letter dated 25-2-1980 along with proposed plan of Upper Gizri prepared by the Directorate of Katchi Abadis, and in this connection a notification bearing No.S.R.O. 104(1)/84 dated 28-1-1984 was also issued by the Government of Pakistan, Ministry of Defence, inter alia, excluding area of Qayyumabad and Upper Gizri including Machi Para and Gora Bagh Colony from the limits of Clifton Cantonment, subsequently Government of Sindh, Housing and Town Planning, Local Government and Rural Development Department issued notification bearing No. S .0 . (VI)1-16/84 dated 15-9-1988, thereby including Upper Gizri area within the limits of Corporation, and it is for these obvious reasons that the Government of Pakistan, Ministry of Defence (ML&CD) Rawalpindi issued a notification dated 15-5- 1979, mentioning therein all the Katcha Abadis on Defence land, however, the Upper Gizri area is not mentioned within the limits of Defence land, the Deputy Commissioner (South) clearly mentioned that the area in which the House of plaintiff is situated is not within the limits of Defence Society.
The plaintiff has mentioned in the plaint that at some point of time the plaintiff was also convener of Anjuman-e-Ittehad Millet which Anjuman was established in the year 1971. It is stated in the plaint that said Anjuman used to collect "Chanda" for The welfare of the area and the plaintiff also used to pay said "Chanda".
4. In the month of November 1995, a SITE camp was set-up by the Director, Katchi Abadis and Evaluation to grant leases to the residents of Upper Gizri Village and challans were distributed to the area people, but when the plaintiff went to collect the challan, the Staff of the Director, Katchi Abadis and Evaluation demanded bribe of Rs.60000 from the plaintiff, which the plaintiff refused to pay, therefore, the challans were not issued to the plaintiff. Thereafter the plaintiff moved several representations to Director, Katchi Abadis and Evaluation and KMC, even to the Prime Minister of Pakistan, but no heed was paid to his genuine request. When the plaintiff requested for issuance of the Land Regularization and Development Plan of the area, he was supplied the same, in which he, for the first time came to know that the number of his plot has been substituted by new No.225-A, however, the staff of Director, Katchi Abadis for Evaluation and KMC again refused to issue lease challans to the plaintiff. The plaintiff was also threatened by the said staff that they would get the house of the plaintiff demolished.
5. It is further averred by the plaintiff in his plaint that in the above circumstances the plaintiff was constrained to file a suit bearing No.1346/1995 in the Court of VII Senior Civil Judge (South) Karachi for declaration and injunction against the Director, Katchi Abadis and Evaluation as well as KMC in which the said learned Court appointed Mr. Zahid Hamid, advocate as a Commissioner, who inspected the suit property on 6-4-1998 and submitted his report in the aforesaid suit wherein the said Commissioner stated that the plaintiff was in possession of the suit property for 40-years. On 25-1-2001, the Presiding Officer of the Court of VII Senior Civil Judge (South) Karachi also inspected the suit property who also submitted the inspection report to the effect that the plaintiff is in possession of the suit property for 35-40 years. In the year 1999 the plaintiff also filed a Constitutional Petition bearing No.D-773 of 1999, which petition was allowed by this Court. In the aforesaid suit the defendant No.3 admitted that the suit plot belongs to KMC, however, the representative of Director Vigilance, Defence Housing Authority came to the house of the plaintiff and threatened him that he would be dispossessed from the said plot of land. The plaintiff was told that his plot has been included in Defence Housing Authority and was given plot No.19. Therefore, the plaintiff filed a suit bearing No.40/1994 against the Defence Housing Authority, which was decreed in favour of the plaintiff vide judgment dated 30-8-1999. It is further stated in the plaint that after three long rounds of litigation lastly, the defendant No.3 executed lease in favour of the plaintiff on 30-9-2004.
6. On 24-16-2007, one person who introduced himself as Ghulam Nabi, the Recovery Officer of defendant No. 2, came to the house of the plaintiff and told the chowkidar of the plaintiff that the house/plot of plaintiff is mortgaged with Faysalbank by the owner and that he has committed default in repayment of loan advanced to him by Faysalbank. When the sons of the plaintiff contacted the Manager (South) Commercial Banking and SME Group and some other officials of Faysalbank, they were told that one person namely Syed Ziauddin son of Syed Iftikharuddin the defendant No.1 in the present suit, has committed fraud and has obtained loan on the property in question. The bank officer assured the family members of the plaintiff that an inquiry will be conducted as to how or in which manner the property was inspected and without verifying the position as to who is in possession the loan was extended to the defendant No. 1 by the bank. Finally on 1-11-2007 the bank officer told the sons of the plaintiff that defendant No.1 had taken loan of Rs.8-million, out of which he has returned Rs.3-million, and if the plaintiff wanted to redeem the property in question he should make payment of Rs.5-millioin to the bank as the property is mortgaged with the bank, and in case of failure to do so, they will put the suit property in auction.
The plaintiff obtained certified copy of the so-called lease in the name of defendant No.1, which revealed that neither the same was maintained in the Micro Filming Department record nor the copy of the same is available in the record of the defendant No.3. The land in question could only be granted to those persons of Katchi Abadis who have built their houses and are in possession of the plot in question whereas the defendant No.1 neither resided on the suit plot nor was in possession thereof and nor any of the utility bills are in the name of the defendant No.l. Beside this, nobody in the locality knows him, therefore, the defendant No.1 does not fulfil any of the contentions for the grant of lease in Katchi Abadi.
7. The plaintiff has averred in the plaint that the forged lease was executed by the defendants Nos.3 and 4 in collusion with the defendant No.1 and subsequently in connivance with the officials of defendant No.2 i.e. Faysalbank, loan was obtained on the suit property. The officials of the Faysalbank never made a visit to the said property in order to ascertain as to whether or not the defendant No.1 is in possession of the same, which proves without any doubt that the bank officials were equally involved in the said conspiracy.
8. In view of the above circumstances, the plaintiff sent a legal notice to the defendant No. 2 dated 5-11-2007, inter alia, calling upon the defendant No.2 to supply complete set of documents on the basis of which loan was approved in favour of the defendant No.1 and also disclose the names of the authorities who sanctioned the loan in question and pay the damages to the plaintiff, however, the defendant No.2 even after service of the aforesaid legal notice, did not supply any document to the plaintiff and levelled more allegations on the plaintiff vide their reply dated 12-11-2007, the documents mentioned in the reply to the legal notice of the plaintiff dated 12-11-2007 were (a)
Lease Deed dated 6-10-1996 in the name of defendant No.1 (b) Search Certificate Nos.95, 148 and
223. (c) Permission to mortgage by Deputy Officer (Revenue) Katchi Abadis, CDGK KMC SITE Report
(e) Bank Challan of Rs.3,67,982 dated 5-1-1985 & (t) 03 Memorandums of Deposit of title documents signed by the defendant No.1.
9. The defendant No.1 filed his written statement on 10-12-2009 wherein all the averments, allegations and claims made by the plaintiff in the plaint, were specifically and vehemently denied.
In the first paragraph of the written statement defendant No.1 has frankly admitted that according to site inspection on the backside of the plot in question there is construction in a dilapidated condition as such the plaintiff never resided at plot No.255-A with his family and that the plaintiff is not in possession of the said plot. In paragraph 3 of the written statement defendant No.1 has admitted that the plaintiff filed Suit No.1346/1995 before the VIIth Senior Civil Judge (South) Karachi, however, the defendant No.1 has denied that the plaintiff filed Constitutional Petition bearing No.D- 773/1999. The defendant No.1 further averred in the written statement that the defendant was not a party to the aforesaid suit, and the plaintiff obtained an ex parte judgment and decree in the same by misguiding and misleading the Court and, therefore, the same has no value in the eyes of law.
The defendant No.1 has further stated in the written statement that the plaintiff on the basis of an ex parte decree got illegal lease executed in his favour, as such it has no sanction of any land, and that actually the defendant No.1 was given the suit plot bearing No.225-A, Sheet No.3, Upper Gizri Karachi by Karachi Metropolitan Corporation on lease. The defendant No.1 further stated that it is an admitted position that the lease in question could only be granted to those persons of Katchi Abadi who were found in possession of the plots situated therein, and since the defendant No.1 was in possession of the suit plot, it was leased out to him by Karachi Metropolitan Corporation and, therefore, he is legal and lawful lessee of the suit plot. The defendant No.1 denied that all this was done inactive collusion and connivance of the defendants with each other. The defendant No.1 denied that lease deed dated 6-10-1996 in the name of the defendant No.1, Search Certificate No.95, 148, 223 and 229(c), permission to mortgage by the Deputy District Officer (Revenue) Katchi Abadi, CDGK, KMC site report and bank challan of Rs.3,67,983 dated 5-1-1995 and 03 memorandum of the deposit of title deeds by Syed Ziauddin are bogus, false, manipulated and forged ones. The defendant No.1 submitted that all the aforesaid documents are valid and legal and their genuineness cannot be challenged by the plaintiff. It is further stated that suit is mala fide and has been filed with ulterior motives to blackmail the defendant No.1 and usurp the land of the plot as well as plaintiff has no locus standi for such claim as he is not the lessee of the suit plot. It is further stated that suit is barred under sections 42 and 56 of the Specific Relief Act and plaintiff is not entitled for any claim of damages as no injury has been caused to him and the documents referred to in the plaint cannot be cancelled as all are genuine and valid. The defendant No.1 asserted that prayer made in the plaint by the plaintiff cannot be granted as it is irrelevant and mala fide and without mentioning any cogent reason, same is baseless and without any sound foundation, therefore, the suit is liable to be dismissed with compensatory cost or any other relief which this Hon'ble Court deem fit and proper.
10. The defendant No.2 filed his written statement stating therein that it is quite evident from the record that defendant No.1 had obtained a registered Lease on 6-10-1996 in his favour from the concerned department much earlier to the lease of the plaintiff dated 30-9-2004 in respect of plot/House No.225-A, Sheet No.3, Upper Gizri, Karachi and it is also quite apparent that prior to these proceedings plaintiff never questioned/challenged the said lease before any forum or Court of Law. It is further stated that Messrs National Exports had valid Modaraba Finance Facility from the answering defendant and the defendant No.1 executed a registered Mortgage Deed in favour of the Faysal Bank Limited on 2nd April 2003 and also executed equitable mortgage by execution of Memorandum of Deposit of Title Deeds and Supplementary Memorandum of Deposit of Title Deeds duly signed by the defendant No.1 and also submitted Lease Deed dated 6-10-1996 in respect of House No.225-A, Sheet No.3, Upper Gizri, Karachi in favour of the defendant No.1, Search Certificate Nos.95,148,223 and 229, Permission to mortgage by Deputy District Officer (Revenue) Katchi Abadi, CDGK dated 24-2-2003 in favour of the defendant No.1, KMC Land Surveyor's Site Report in favour of the defendant No.1 and Bank Challan of Rs:367,982 dated 5-1-1995. It is further stated in his written statement that the defendant No.2 had taken all possible and appropriate steps to secure/protect the said finance and accepted the said security documents after having a legal advise/ recommendation in respect of the said proposed security documents from Muhammad Yaqub Kapadia, advocate vide his letter dated 24-5-2002 and Messrs Akbani and Jawed Associates had also submitted a Valuation Report dated 19-3-2003 on the request of the defendant No.2 based on physical inspection in respect of house/plot in question. The defendant No.2 further stated in his written statement that all the allegations levelled by the plaintiff against the answering defendant in the suit plaint are absolutely false, frivolous hence denied. The defendant No.2 has also vehemently denied that there was any collusion on the part of the defendant No.2 with the defendant No.1 but it appears that the plaintiff deliberately and intentionally in connivance with the defendant No.1 and the said borrower are trying to defeat the mortgage debt. It is further contended that defendant No.2 is legally and lawfully entitled to have all the documents referred under para in reply, in its exclusive possession till the satisfaction of the claim of the Messrs Faysal Bank Limited/ mortgage money is paid, the said security/charged documents were validly executed as surety of repayment of the finance availed by Messrs National Exports. The defendant No.2 denied the contents made in para-13 to be false and frivolous, specifically denied that any cause of action ever arose against the answering defendant for filing this suit.
11. That, the defendants Nos.3 and 4 has filed their written statement on 13th January, 2009 wherein it is stated that the relevant file of the lease in the name of Syed Ziauddin son of Iftikharduddin dated 6-10-1996 in respect of Plot No.225-A, Sheet No.3, Upper Gizri, Karachi is not available on record maintained by this office and in case the same is granted, it would be treated as void, ab- initio, coramnon-judice and ultra vires and unlawful as the same was probably granted without constructive occupation supported by the documentary evidence prior to March 1985 such as utility bill etc. In the name of its lease according to Katchi Abadis Bye Laws and rules. It is further stated that no cause of action has accrued to the plaintiff, therefore, he is not entitled to the relief prayed for and the suit is liable to be dismissed.
12. The defendant No.5 has also filed written statement wherein specifically denied the contents of Para-12 of the plaint. It is clarified by the defendant No.5 that as per record of this office, the lease deed in question was registered in this office by the then Sub-Registrar as per Registration Law.
13. The defendant No.6 i.e. City District Government Karachi, filed its written statement wherein admitted to the extent that the lease to the plaintiff was granted on the basis of crystal clear constructive occupation based upon the sufficient convincing and valid documentary evidence and on completion of all codal formalities which was relied upon the judgment passed in Suit No.1346/1995, and Execution No.05/2001 dated 15-10-2001 by the order of VIIth Senior Civil Judge (South) Karachi.
14. Upon pleadings of the parties 7 issues were framed by the Court vide order dated 21-5-2010, which are as follows:--
(A) Whether the defendant No.1 had deposited the title deeds of the property bearing No.225-A, Sheet No.3, Upper Gizri, Karachi, creating an equitable mortgage? If so, to what effect?
(B) Whether the defendant No.2 was justified in searching out defendant No.1 at his given address?
If so, to what effect?
(C) Whether the plaintiff has suffered any damages as alleged due to any unlawful act of defendant No.2? If so, to what effect?
(D) Whether defendant No.2 after examining the title deeds of the property in question had stopped pursuing the recovery of the finance provided to defendant at the address of the plaintiff?
If so, to what effect?
(E) Whether the lease obtained by defendant No.1, in respect of the suit property is not forged, fabricated, maneuvered, illegal and not in accordance with the law? Whether such lease does not merit to be cancelled?
(F) Whether due to the acts of the defendants the plaintiff has not suffered physical and mental tortures, besides mental agony, monetary losses and waste of time and energy? If so, the plaintiff is not entitled for the damages?
(G) What should the decree be?
15. The plaintiff filed his affidavit-inevidence and examined himself and produced his affidavit-in- evidence as exhibit 'P' wherein he has stated that he is the owner of plot No.164 (new No.225-A), Upper Gizri Village, Sheet No.3, Katchi Abadis, Gizri, Karachi (hereafter called as the said property/plot) and is residing at the said plot with his family since last more than 46 years. He also produced copy of old Ration Card in the name of his father as exhibit P/1, KW&SB bills as exhibits P/2 to P/5, copies of some amenities bills as exhibits P/6 to P/10, copies of certificates issued by previous Counselor and the Member Advisory Council as exhibits P/11 and P/12, letter dated 25-2- 1980 issued by the Director, Katchi Abadis and Evaluation, Karachi Metropolitan Corporation with proposed concept plan of Upper Gizri as exhibit P/13 and in this connection a notification bearing No.S.R.O. 104(I)/84 dated 28-2-1984 issued by the Government of Pakistan, Ministry of Defence, as exhibit P/14, Notification No.SO(VI)1-16/84 dated 15-9-1988 excluding the Upper Gizri area from the limits of Clifton Cantonment produced as exhibit P/15, Government of Pakistan, Ministry of Defence (ML&C Department) Rawalpindi Notification dated 15-5-1979 produced as exhibit P/16 mentioning all the Katchi Abadis on defence land except the Upper Gizri area, the chanda receipts of Anjuman- e-Ittehad Millat produced as exhibits P/17 to P/20, birth certificates of children of the plaintiff produced as exhibits P/21 and P/22, KMC taxes pertaining to the year 1962 produced as exhibit P/23, letter issued in the year 2000 of Excise and Taxation Department bearing No. ETO/PT/C/338/2000 levying taxes on the plaintiff produced as exhibit P/24, PTI in the name of the plaintiff as exhibit P/25, copies of representations to the Director Katchi Abadis and Evaluation, Karachi Metropolitan Corporation and the Prime Minister produced as exhibits P/26-A to P/26-D, original plan mentioning the number of the plot of the plaintiff as 225-A, produced as exhibit P/27, Development Plan of the area as exhibit P/27-A, Commissioner's Inspection Report in Suit No.1346/1995 dated 6- 4-1998 as exhibit P/28, second inspection report dated 25-1-2001 produced as exhibit P/29, order in Constitutional Petition No.D-773/1999 produced as exhibit P/30, application to Director of D.H.A. As exhibit P/31, certified copies of judgments and decrees in Suit No.1346/1995 and No.40/1997 against DHA produced as exhibits P/32 to P/35, Indenture of Lease executed by the defendant in favour of plaintiff produced as exhibit P/36, certified copies of lease in the name of defendant No.1 produced as exhibit P/37, Legal Notice to the defendant No.2 as exhibit P/38, reply of defendant No.2 dated 12- 11-2007 as exhibit P/39, reply to the same by the plaintiff as exhibit P/40, copy of application with defendant No.1 's CNIC as exhibits P/41 to P/43, Voters' list showing the name of defendant No.1 in District Central Karachi produced as exhibit P/44. The plaintiff was cross-examined by the advocate for the defendant No.2 in which he maintained the same facts as asserted by him in the plaint.
16. The plaintiff was cross-examined by the learned counsel for the defendants Nos.1 and 2. The plaintiff also examined one Atta Muhammad as P.W.2, who has filed his affidavit-in-evidence wherein he has stated that he knows the plaintiff since last more than 45 years and also knew father of the plaintiff who used to live with his family on the suit plot which is the sole and absolute property of the plaintiff, wherein the plaintiff is now residing with his family. The plaintiff was also elected as BD member from our area in the days of President Muhammad Ayyub Khan. The said P.W.2 has categorically stated in his affidavit-in-evidence that Syed Ziauddin son of Iftikharuddin never remained in our area nor he had any time possession of the suit plot. In the examination in chief, the said P.VV.2 has reiterated that he knows the plaintiff for more than last 45 years and that it is correct that Syed Ziauddin never lived in the area or ever was in possession of the suit property.
As no other defendant was present the aforesaid P.W.2 was not cross-examined by any one and side for any further cross-examination of P.W.2 was closed.
17. Thereafter, the plaintiff produced D.D.O. Saddar Town as P.W.3, who in his Examination in Chief categorically stated that "I see lease dated 30-9-2004. It is correct that it is in the name of Ehsanullah Khan, the plaintiff exhibit P-36. It is correct that the land belongs to the plaintiff and others have nothing to do with it as per our record. The lease is correct and genuine. There is judgment in favour of Mr. Ehsanullah in Suit No.1346/1996 dated 31-1-2001". The aforesaid witness of the plaintiff P.W.3 was not cross-examined by the counsel for the defendants Nos.1 and 2. The defendant No.1 also filed affidavit-inevidence wherein he has depicted the contents of his written statement. In his Examination in Chief the defendant No.1 produced as exhibits D-1 to D-8, which are written statement, copy of indenture of lease dated 6-10-1996, challan, newspaper cutting of daily DAWN dated 22-9-1996, press release dated 16-9-1996, letter dated 17-9-1996, NBP receipt dated 18-1-1995, Mortgage Deed dated 2-4-2003, MODTP dated 29-4-2003, letter dated 4-6-2002, Search Certificate dated 4-9-1997, Search Certificate dated 4-8-2001, Search Certificate dated 24-4-1999, Special Power of Attorney dated 5-12-2009 and list of legal heirs of the defendant No.1 .
18. In the cross-examination the defendant No.1 has categorically stated that:-- "It is correct that no amenity, water, electricity or gas is in my name. It is correct that the amenities are in the name of the plaintiff currently. It is correct that amenities are in the name of the plaintiff from the beginning, since their installation. I have measured this plot. It is incorrect that the plot is 1298 sq. Yds. Western side is perhaps plot No.133-J, I ant confused which plot is on North or other side. I am not aware which plot is on south side. It is correct that all these people are living more than 30 years. I have not gone there, no correspondence in my name or I have done with respect to the suit plot. It is correct that except a lease document, there is no document in my name. It is not in my knowledge that Director Katchiabadi replied to the Bank there is no lease and there is no record of lease in the name of Mr. Ziauddin in his office. It is not in my knowledge that Mr. Baqi Billa one of the executants, defendant No.4 was dismissed from service due to fraud in the department with regard to the leases. I see challan CTV-1, date, years and branch columns are not filled, it is empty. I have not personally lived on the plot, but I have been going there. I do not know anyone in the lane of the suit plot. I show exhibits P.28 and P.29 and at the time of inspection I was not there but plaintiff and his family was found in possession during both the inspection. In Suit No.1346/1995 there was stay against KMC and Director Kachiabadi, "will not create third party interest" regarding the suit plot."
19. The defendant No.2 also filed affidavit-in-evidence through its principal officer Mr. S. Ghulam Nabi Shaikh, who stated the same facts therein as in the written statement and produced lease deed dated 6-10-1996 as exhibits D-2/4, Four search certificates Nos.95, 148, 223, 229 as exhibits D- 2/5 to D-2/8, permission for mortgage by CDGK dated 24-2-2003 as exhibits D-2/9, KMC Land Surveyor's Report in favour of defendant No.1 as exhibits D-2/10, Bank Challan for Rs. 367,982.00 dated 5-1-1995 as exhibit D-2/11, Valuation Report dated 19-3-2003 as exhibit D-2/12, copies of three notices under section 15 of Financial Institutions (Recovery of Finances) Ordinance, 2001 as exhibits D-2/13 to D-2/15 and photo copies of General Power of Attorney by defendant No.1 in favour of the deponent as exhibit D-2/16. The defendant No.2 also stated that after three notices by defendant No.2 to defendant No.1, since there was no response, the officials of defendant No.2 visited the site of the mortgaged property and met with the sons of plaintiff and made enquiries about defendant No.1 who were informed that no one by the name of Syed Ziauddin ever lived there and the property in question was owned by the plaintiff. In examination in chief defendant No.2 produced his affidavit-in-evidence as exhibits D-1 and other documents as exhibits D-2/2 to D-2/16 and also produced Power of Attorney as P-1 to P-A/5. In the cross-examination the witness of defendant No.2 stated that it is correct that lease in the name of defendant No.1 is bogus. I see exhibit D.2/9 permission to mortgage was not verified from the concerned department so also D-2/10. Later on it transpired that exhibit D-2/9, exhibit D-2/10 are also fake and bogus documents. It is correct that defendant No.1 has given his address as address in Mortgage Deed of suit plot as House No.225. It is correct that the address of the defendant No.1 as per I.D. Card annexed with Mortgage Deed is 154/8/14, Dastagir Society, Federal B Area, Karachi. I see exhibits D-2/2 and D-2/3 no address of defendant No.1 is mentioned. We have issued notice to defendant on different dates, not as per NIC or Mortgage Deed. Thereafter, the witnesses of defendant No.2 stated that after conducting inquiry into genuinity of the documents the bank arrived at the decision that fraud has been committed with the bank by defendant No.1 and proprietor of .Messrs National Export. The bank filed a complaint in the Banking Court No.2 for misappropriation and fraud played by the defendant No.1 and proprietor of Messrs National Export, but defendant No.1 was declared absconder by Banking Court No.2 Karachi, that the defendant No.1 Mr. Ziauddin son of Iftikharuddin had mortgaged the forged paper and has committed fraud on the bank.
20. Mr. Muhammad A.H. Baloch, the learned counsel for the plaintiff has, inter alia, submitted that the lease deed dated 6-10-1996 was executed in favour of the defendant No.1 in violation of section 52 of the Transfer of Property Act, 1882 inasmuch as at the relevant point in time stay was operating in Suit No.1346/1995 against the KMC as well as Director and Assistant Director of Katchi Abadis, the defendants Nos.3 and 4 in the present suit, whereby the said defendants were restrained from creating third party interest in the suit property. However, the defendants Nos.3 and 4 proceeded to execute the aforesaid deed in sheer violation of the stay order, therefore, the transaction is void ab initio being in violation of Law as well as other codal formalities. The principle of lis pendens is very much attracted in the given set of circumstances and the aforesaid lease deed in favour of the defendant No.1 is liable to be cancelled and delivered up in Court inasmuch as the same is casting a shadow of doubt on the title of the plaintiff in respect of the suit plot.
21. The learned counsel for the plaintiff further argued that it was a condition precedent of the notification of 1976 that area known as Upper Gizri Village be declared as Katchi Abadi whereby all the old occupants, continuously in possession and remained undisturbed on KMC land may be regularized under the provisions of the Katchi Abadi Act. Therefore, the suit plot of the plaintiff, which is situated in Upper Gizri Village was ultimately regularized after a long history of litigation as narrated in the main body of the plaint, and finally Indenture of Lease dated 30-9-2004 was executed in favour of the plaintiff in respect of the suit plot by the City District Government Karachi.
22. The learned counsel for the plaintiff next contended that all the annexures annexed to the plaint as A, All to A/28 clearly demonstrate that the plaintiff is in uninterrupted possession in respect of the suit plot since 1962, and which possession was the basis and condition precedent for regularization and grant of lease hold rights in respect of plots in Katchi Abadis. The utility bills, chanda receipts, payment challans to different government authorities, Birth and Death certificates of the children and father of the deceased since 1962 upto date are reflecting the said old and new addresses of the suit property and name of the plaintiff thereon. Moreover, at the time of two Court inspection carried out in Suit No.1345 of 1995, the plaintiff along with his family was found in possession and not the defendant No.1, according to two separate reports submitted in the aforesaid suit by two different Commissioners, one of whom was the Presiding Officer of the Court of VIIth Senior Civil Judge (Miss. RasAida Siddiqui). The learned counsel for the plaintiff next contended that in written statement the defendants Nos.3 and 4 have categorically stated in para- 3 that as regard the lease in the name of the Syed Ziauddin son of Iftikharuddin dated 6-10-1996 in respect of plot No.225-A, Sheet No.III, Upper Gizri Village, it is submitted that the relevant file is not available on record maintained by the office and in case the same is granted, it would be treated as void ab initio, coram-non-judice, ultra vires and unlawful, as the same is granted without constructive occupation supported by documentary evidence prior to March 1985 such as utility bills etc. In the name of its lessee accordingly to Katchi Abadis Bye Laws and Rules. The learned counsel for the plaintiff then referred to the written statement of the defendant No.6 in para No.1 of which the defendant No.6 has admitted that lease to the plaintiff was granted on the basis of crystal/clear constructive occupation based upon sufficient convincing and valid documentary evidence and completion at all codal formalities. The defendant No.1 in his written statement, has not been able to rebut the claims of the plaintiff in the plaint and the said written statement only contains formal denials of the paras of the plaint.
23. Referring to the evidence of the case in present suit, the learned counsel for the plaintiff has pointed out the averments made on oath by the plaintiff in the affidavit-in-evidence, and has ably taken the court through the exhibit 'P', P/1 to exhibit P/44 one by one, the details of which have been given herein above, in this judgment and submitted that the same are unrebutted inasmuch as the defendants Nos.1 and 2 could not produce any document to rebut the veracity of the same. Mere perusal of all the aforesaid exhibits demonstrate that the plaintiff is in possession of the suit plot in question all along since 1962 upto now, which fact is not rebutted by any document produced by the defendants Nos.1 and 2 in rebuttal. The P.W.2 and P.W.3 also supported the version of the plaintiff and were not even cross-examined by the defendants Nos.1 and 2. In his cross- examination, the defendant No.1 has admitted that no amenities like water, electricity or gas is in my name and that the amenities are in the name of the plaintiff from the beginning, since their installation. The defendant could not even identify the neighbors in the cross-examination, he further stated in the said cross that at the time of inspection reports of Commissioners which are exhibits P/28 and P/29, the defendant No.1 was not present but the plaintiff and his family were found in possession of the suit plot, and there was stay in Suit No.1345/1995 against creating third party interest. It is further contended by the learned counsel for the plaintiff that sufficient evidence has been brought on record of the case by the plaintiff to belie the claim of the defendant No.1 as the exhibits produced by the plaintiff along with affidavit-in-evidence at the time of his examination-in-chief are sufficient to prove that the plaintiff is the person, who was always found in possession of the suit plot since 1962. He next contended that the defendant No.1 in collusion with the defendant No.2 has created mortgage in respect of the property of the plaintiff on the basis of a manipulated indenture of lease dated 6-10-1996, which is a forged document and as such is liable to be cancelled by this Court and delivered up in Court by the defendant No.1 lastly the learned counsel submitted that the plaintiff for the first time came to know about the impugned Indenture of Lease on 24th October, 2007, when the Recovery Officer of the defendant No.2 visited the house of the plaintiff and told the chowkidar of the plaintiff that the suit plot is mortgaged with the Faysal Bank by the defendant No.1 and, therefore, the suit is within time as it was filed on 21-12- 2007 within three years from the date when the plaintiff acquired knowledge of the aforesaid impugned Indenture of Lease. At the end it is strongly urged that the plaintiff being the lawful owner of the suit plot/ property is entitled to a decree prayed for in this suit.
24. It is interesting to mention here that none appeared on behalf of the defendant No.1 today during the final arguments of the suit despite several times defendant and his counsel were called but they were absent, therefore, the arguments of the plaintiff remained unrebutted as far as the defendant No.1 is concerned.
25. The learned counsel for the defendant No.2, Faysal Bank Mr. Suleman Hudda made short submissions wherein he placed reliance mainly on the written statement filed by the defendant No.2, the affidavit-in-evidence of the defendant No.2, examination in chief and cross-examination thereon. The learned counsel has vainly denied the allegations of the plaintiff in the plaint and his evidence and has submitted that the loan was advanced to the defendant No.1 on the basis of the documents provided by the defendant No.1 and after their due verification. Mr. Muhammad A.H.
Baloch, the learned counsel for the plaintiff submitted in rebuttal that the witness of the defendant No.2 has admitted in the cross-examination that the lease in the name of the defendant No.1 is bogus and permission to mortgage was not verified from the concerned department, all documents are fake, concocted and bogus. After conducting inquiry into genuinity of the documents the bank arrived at the decision that fraud has been committed with the bank by defendant No.1. The learned counsel for the defendants adopted/ supported arguments of the learned counsel for the plaintiff.
26. I have heard, the learned counsel for the plaintiff and the defendants Nos.2, 3, 4, 5 and 6, perused the pleadings of the parties and carefully examined the evidence available on record of the case with the assistance of the learned counsel appearing for the parties and after hearing the learned counsel at length, my findings on the issues framed by the Court in the suit are as under:-- ISSUE NO. 'A'.
' Whether the defendant No.1 had deposited the title deeds of the property bearing No.225-A, Sheet No.3, Upper Gizri, Karachi creating on equitable mortgage? If so, to what effect?
' It is the case of the plaintiff that the defendant No.1 by manipulation and in collusion with the defendants Nos.3 and 4 has obtained the lease deed dated 6-10-1996 which the defendant No.1 was even otherwise not entitled under the Katchi Abadis Ordinance and Rules framed thereunder inasmuch as the lease in question could only be granted to those persons of Katchi Abadis who built their houses and were found in possession of the plots in Katchi Abadis at the relevant time when the regularization scheme was announced by the Government, but as far as the case of the defendant No.1 is concerned, neither he ever resided nor was in possession at any time in the past, therefore, the question of regularization of the suit plot and execution of an Indenture of lease in respect thereof in favour of the defendant No.1 does not arise at all. It is an admitted position that the defendants Nos.3 and 4 have categorically stated in their written statement that in para-3 that with regard to the lease in the name of Syed Ziauddin son of Iftikharuddin, the defendant No.1 dated 6-10-1996 it is stated . That the relevant file of the same is not available on record maintained by their office and the same is ultra vires; void ab initio, coram non judice and unlawful. The defendant No.6 has also stated in its comments that the Indenture of lease in favour of the plaintiff dated 3-9- 2004 is a genuine document. The plaintiff led detailed evidence before this Court and produced exhibits 'P', 'P/1' to 'P/44' through which the plaintiff has proven beyond any reasonable doubt that the plaintiff and his family is in possession of the suit plot since 45-50 years. In the cross- examination of the plaintiff on oath, it is further revealed that the Ration Card of the plaintiff's father was made in the year 1956, which bears the old address of the suit plot. The plaintiff has further stated on oath that he is in possession of the suit plot for 50 to 60 years. As against the aforesaid evidence, no evidence could be brought on record by the defendant No.1 in rebuttal except for the Indenture of registered lease deed, which was admittedly executed during the pendency of Suit No.1346/1995, wherein there were clear orders restraining the defendants Nos.3, 4 and 6 from creating third party interest in respect of the suit plot. Therefore, in my view the indenture of lease dated 6-10-1996, executed in favour of the defendant No.1 by the defendants Nos.3 and 4 was in violation of section 52 of the Transfer of Property Act, 1882 and the same is void ab initio and is of no legal effect. Therefore, any mortgage created on the property of the plaintiff bearing No.225-A, Sheet No.3, Upper Gizri, Karachi whether Registered or Equitable by depositing the Indenture of Lease dated 6-10-1996 by the defendant No.1 with the defendant No.2 is also void ab initio and of no legal effect. This issue is answered accordingly.
ISSUE 'B', 'C' & 'D'.
(B) Whether the defendant No.2 was justified in searching out defendant No.1 at his given address?
If so to what effect?
(C) Whether the plaintiff has suffered any damages as alleged due to any unlawful act of defendant No.2? If so to what effect?
(D) Whether the defendant No.2 after examining the title deeds of the property in question had stopped pursuing the recovery of the finance provided to defendant at the address of the plaintiff?
If so to what effect?
' The aforesaid three issues are co-related with each other, therefore, the same are being answered together. It is pertinent to mention here that in the valuation report of plot No.225-A, Sheet No.III, Upper Gizri, Karachi dated 9-3-2003, which is produced by the External Agency Evaluators of the defendant No.2 Bank Messrs Akbani and Javed Associates, it is very clearly mentioned in the opening line that the valuation is based on the physical inspection of the said property on March 15, 2003. The question then arises that when the Evaluaters/Appraisal agency of the defendant No.2 physically inspected the suit plot, they must have found the plaintiff in actual physical possession of the same and not the defendant No.1, however, they also gave a report contrary to the aforesaid fact which is also proved by evidence led by the plaintiff, therefore, the Evaluation Report is also forged and collusive and has been obtained by the defendants Nos.1 and 2 in collusion with each other in order to devour the property of the plaintiff. As far as issue 'B' is concerned, I hold that in view of the aforesaid facts the defendant No.2 was not justified in searching out the defendant No. 1 at his given address i.e. The suit plot. To answer issues 'C' and 'D suffice it to say that since the defendant No.2 did not stop pursuing the recovery of finance provided to the defendant No.1 even after examining the title deed in favour of the plaintiff at the address of the plaintiff was indeed an action unlawful act, and indeed an action on account of which the plaintiff suffered damages as alleged in the plaint.
ISSUE 'E'.
' Whether the lease obtained by defendant No.1, in respect of the suit property is not forged, fabricated, maneuvered, illegal and not in accordance with law? Whether such lease does not merit to be cancelled?
' This issue, though has been partially answered while replying issue 'A' however, I thought it best to give my detailed findings on this issue inasmuch as this is the core issue of this suit as it revolves around the Indenture of Lease in favour of the defendant No. 1 dated 6-10-1996, which gave rise to the controversy between the parties to the present suit. It is an admitted position that condition precedent to the regularization of plot in Katchi Abadis including the Upper Gizri III, Karachi and execution of Indenture of their leases was that same shall be done in favour of the persons found in possession and are occupants in respect thereof. The plaintiff has made out a good case by leading evidence to the effect that the plaintiff has been in possession of the suit plot for an incessant period of about last 50 years, whereas the defendant No.1 could not bring on record even a single document during his evidence that could support his contention that he was in possession of the suit plot or was entitled of the regularization of the same in his favour due to long occupation.
' It is also an admitted position that the Indenture of Lease was executed by the defendants Nos.3 and 4 in favour of the defendant No.1 during the pendency of Suit No.1346/1995 wherein a stay was also operating restraining the defendants Nos.3 and 4 from creating third party interest in respect of the suit plot. The defendants Nos.3 and 4 in their written statement have categorically stated that there is no record in their office in respect of the Indenture of Lease dated 6-10-1996 executed in favour of the defendant No.1 and that same is void, ab initio, ultra vires and against the Katchi Abadis Laws and Rules framed thereunder and, therefore, illegal and unlawful. The defendant No.6 in his written statement has also endorsed the veracity of the lease deed dated 30-9-2004 in favour of the plaintiff and has stated that the same has been granted after fulfilling all the codal formalities according to law. P.W.3, the D.D.O. Saddar Town, in his deposition, which is also unrebutted by the defendant No.1, has deposed that lease deed dated 30-9-2004, exhibits P/36 in the name of the plaintiff and is genuine, and it is correct that the land in question belongs to the plaintiff.
It is settled principle of law that the provisions of section 39 of the Specific Relief Act 1877 make it clear that three conditions are requisite for the exercise of the jurisdiction to cancel an instrument;
(1) the instrument is void or voidable against the plaintiff; , (2) plaintiff may reasonably apprehend serious injury by the instrument being left outstanding; (3) in the circumstances of the case the Court considers it proper to grant this relief of preventive justice. The remedy under section 39 of the Specific Relief Act is to remove a cloud upon the title; by removing a potential danger but it does not envisage an adjudication between competing titles. It is only in such cases that it can be said there is a cloud on the title of the plaintiff and an apprehension that if the instrument left outstanding it may be a source of danger.
' Where the deed or instrument is void ab initio, null and void, it can be treated as a nullity without having to be cancelled or set aside. However, on the other hand if the instrument is only voidable, then it would be necessary to have it set aside or cancelled in order to remove the impediment in the way of the plaintiff.
' The relief as to cancellation of an instrument is based upon the administration of the preventive justice for the fear that the instrument may be vexatiously or injuriously used by the defendants against the plaintiff when the evidence to impeach C it may be lost or that it may through a cloud or suspicion over his title or interest, section 39 is based upon the same principle. Section 39 of the Specific Relief Act 1877 is reproduced here for the sake of brevity:-- "39. Any person against whom a written instrument is void or voidable, who has reasonable apprehension that such instrument, if left outstanding; may cause him serious injury, may sue to have it adjudged void or voidable; and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. If the instrument has been registered under the Registration Act, 1908], the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation."
Reference can be made to the following case-law on the aforesaid principle of law enunciated in the forgoing para:--
(i) AIR 1915 Calcutta 423 (Rahimunnisa Bibi v. Sheikh Manik Jan
(ii) AIR 1923 Madras 108 (Ranganatha Rao v. Rama Pandithar)
(iii) AIR 1938 Bombay 37 (Jeka Dula v. Bai Jivi)
(iv) AIR 1960 Madras 1 (Muppudathi v. Krishna Swami)
(v) PLD 1976 SC 44 (Hamida Begum v. Murad Begum)
I, therefore, hold that the lease obtained by the defendant No. 1 dated 6-10-1996 is forged, fabricated, maneuvered, void ab initio and of no legal effect, therefore, is liable to be cancelled and delivered up in Court. Issue 'E' is answered accordingly. ISSUE 'F'.
' In view of the forgoing reasons mentioned in the judgment as well as in answering the forgoing issues, this issue is answered by holding that indeed the plaintiff has suffered physical and mental torture, monetary losses and waste of time and energy on account of the acts of defendant No.1 who is liable to pay a compensation to the plaintiff in the sum of Rs.5,00,000 (Rupees Five Lacs.)
The claim of damages has been reduced in the interest of justice.
ISSUE 'G'.
' In view of the above discussions and findings, the suit is decreed with costs, the Indenture of Lease dated 6-10-1996 registered in the name of the defendant No.1 in respect of plot/House No. (Old No.164) 225-A Sheet-HI, Upper Gizri Village, Katchi Abadi, Gizri, Clifton, Karachi is hereby cancelled and ordered to be delivered up in Court by defendant No.1 within one month of the passing of this judgment. Consequently the Mortgage Deed dated 2-4-2003 is also cancelled and defendant No.2 is directed to deliver up the same in Court within one month of passing of this judgment.
' The office is directed to send a copy of this judgment and decree to the Sub-Registrar Clifton, Karachi who shall note on the copy of the aforesaid Indenture of Lease dated 6-10-1996 and Mortgage Deed dated 2-4-2003 contained in his books the fact of its cancellation. Suit is decreed in terms of the above judgment.