MRS. ASHRAF JAHAN, J. By this single judgment, I intend to dispose of two second appeals as common questions of law and facts are involved in these appeals.
2. The Second Appeals No.06/2011 and 10/2011 have been filed against the Judgments dated 30.09.2010 passed in Civil Appeals No.200/2009 and 201/2009, whereby these appeals filed by the present Appellant Mrs. Khurshid Akhtar were dismissed by the First Appellate Court and the Judgments and Decrees passed in Suit No.1170/2004 and 1171/2004, dated 06.10.2009, dismissing the two suits filed by the present Appellant by the IXth Senior Civil Judge, Karachi (South) were maintained.
3. The facts in a nutshell as stated in the plaint of Suit No.1170/2004 are that the Appellant is owner of plot No.6-C, South Park Avenue, Phase-II Extension, Defence Housing Authority, Karachi, measuring 200 sq. yards, whereupon a building comprising two shops and one flat on the ground floor, one flat measuring 1800 sq feet on the entire first floor, two flats measuring 1020 sq feet each on the second floor and two flats measuring 1020 sq feet each on the third floor were constructed as per completion plan dated 11.06.1989, (hereinafter the "Building"). It is the case of present Appellant that the numbers of shops and flats in the Building were allocated by Respondent No.2 at the time of assessm ent of the Building for revenue in the year 1989. The Appellant through her constituted attorney Mr. M. H. Sharqi sold flat No.4 located on the second floor of the Building to Respondent No.1 (Mrs. Wajiha Jalil) vide Conveyance Deed, dated 14.01.1990 and subsequently the possession was handed over to her by the said attorney. It is the case of the Appellant that on account of mutual mistake of the parties, the subject flat was incorrectly described as "flat No.2, first floor, 6-C, South Park Avenue, Phase-II, Extension, Defence Housing Authority, Karachi" in the Conveyance Deed inspite of fact that the real intention of the parties at the time of sale/purchase of the flat was in respect of flat No.4 located on the second floor of the Building. While flat No.2 located on the first floor was in possession of the Appellant and was rented out to a third party from time to time. Upon realizing the mistake in the Conveyance Deed, the Appellant immediately brought it to the knowledge of Respondent No.1 and also wrote a letter requesting the Respondent No.2 for certificate, showing the floor numbers on which each of the flats were located. In response, the Respondent No.2 issued letter dated 31.01.2002 showing the numbers of various flats located in the Building. Same letter was written to Respondent No.3 also with a request to make such correction and rectification in the Conveyance Deed and Mutation in respect of the subject flat, but unfortunately the Respondents failed to do the needful. Having no other option, the Appellant served a legal notice upon Respondent No.1 to get the mistake rectified, but Respondent No.1 neither responded to the legal notice, nor took any step to rectify such mistake. Eventually, the Appellant filed Suit No.1170/2004 against the Respondents in the Court of IXth Senior Civil Judge, Karachi (South), with the following prayers: "a). For Declaration that the Conveyance Deed dated 15.01.1990 registered at No.201 in Book No.1 with Sub-Registrar, T-Div. II-A, Karachi is in respect of flat No.4 on 2nd floor of the building on Plot No.6-C, South Park Avenue, Phase-II, Extension, DHA, Karachi measuring 1020 Sq. Ft bounded by Flat No.2 below, flat No.3 on side and flat No.6 above. b). Mandatory Injunction directing the Defendant Nos.2 and 3 to rectify the mistakes in the record by describing suit flat as flat No.4 at 2nd floor; c). Any other relief or relieves which this Honourable Court may deem fit and proper under the circumstances of the case. d). The cost of the suit be awarded."
Respondents No.1 and 2 filed their respective written statements in the said suit and the trial Court framed the following issues: "1. Whether the suit of the plaintiff is maintainable under the law?
2. Whether plaintiff is owner of plot No.6-C, measuring 200 sq. yards at South Avenue, Phase-II, Extension, D.H.A, Karachi?
3. Whether any cause of action accrued to the plaintiff?
4. Whether the suit is barred by Sections 42, 54 & 56 of the Specific Relief Act?
5. Whether the plaintiff has not been valued properly as the value of the property is more than Rs.30,00,000/-(Rupees Thirty Lac only)?
6. What should the decree be?"
Thereafter, Appellant's attorney namely Javaid Ahmed Khan filed his affidavit-in-evidence and produced the relevant record, but the Respondents neither cross examined him nor adduced any evidence. After conclusion of the evidence, the trial Court appointed the Commissioner to verify the location of the each flat and such reports are available on record. Finally trial Court vide Judgment dated 06.10.2009 dismissed the suit of the present Appellant. The above judgment was challenged before the First Appellate Court in Civil Appeal No.201/2009, but the same was also dismissed by the Court of VIIth Additional District Judge, Karachi (South) vide judgment dated 30.09.2010, hence this appeal.
4. The facts forming background of Second Appeal No.10/2011 filed by the Mrs. Khurshid Akhtar against Mrs. Qaiser Jehan and others are same. The only difference is that the Appellant through her attorney Mr. Mohammad Hussain Sharqi sold flat No.3 located on the second floor of the Building to one Furqan Zaigham Qadri, who subsequently sold the subject flat to Respondent No.1 in the year 1996. It is the case of Appellant that on account of mutual mistake of the parties, the said flat was incorrectly described "as flat bearing No.1, first floor" in the said Conveyance Deed, inspite of the fact that the real intention of the parties was in respect of sale/purchase of the flat No.3 located on the second floor of the Building. Upon realizing such mistake in the Conveyance Deed, the Appellant immediately contacted Respondent No.1 and also wrote a letter to Respondent No.2 to issue certificate, showing the floor number on which each of the flats were situated. The Respondent No.1 did not respond, therefore, the Appellant served a legal notice, calling upon Respondent No.1 to get the mistake rectified, but the Respondent No.1 neither replied the legal notice, nor took any step towards correction in the official record. Having no other option, the Appellant filed Suit No.1171/2004 against Respondents in the Court of IXth Senior Civil Judge, Karachi (South) with the following prayers: "a). For Declaration that the Conveyance Deed dated 1-4-1996 registered at No.2929 in Book No.1 with Sub-Registrar, T-Div. II-A, Karachi is in respect of flat No.3 on 2nd floor of the building on Plot No.6-C, South Park Avenue, Phase-II Extension, DHA, Karachi measuring 1020 sq.ft bounded by Flat No.2 below flat No.4 on side and flat No.5 above. b). Mandatory Injunction directing the Defendant Nos.2 and 3 to rectify the mistakes in the record by describing suit flat as flat No.3 on the 2nd floor; c). Any other relief or reliefs which this Honourable Court may deem fit and proper under the circumstances of the case. d). The cost of the suit be awarded."
The Respondent No.1 in the above suit was served by way of publication, but she did not come forward to contest the matter, whereas Respondent No.2 filed its written statement. Subsequently, Respondents No.1, 3 & 4 were debarred from filing written statements due to their failure to appear before the trial Court. However, the trial Court framed the following issues in the above suit: "1. Whether the above suit is not maintainable against the defendants as framed?
2. Whether any cause of action accrued in favour of the plaintiff against the defendants?
3. Whether there is an error in description of the flat as mentioned in the conveyance deed dated 01.04.1996, registered at No.2929 in Book No.1 with Sub-Registrar, T-Division, II-A, Karachi?
4. Whether the flat mentioned in the conveyance deed dated 01.04.1996 registered at No.2929 dated 01.04.1996 in book No.1 with Sub-Registrar T-Division, II-A, Karachi is flat No.3 on second floor bounded by flat No.2 on the first floor, flat No.5 on the third floor and flat No.4 on one side at the same floor of the building on plot No.6-C, South Avenue, Phase-II, Extension, D.H.A, Karachi?
5. Whether the above suit is barred by the law U/S 273 of Cantonment Act, 1924?
6. Whether the above suit is barred by Sections 42, 54, 56 & 56-d of the Specific Relief Act?
7. Whether the plaintiff has rectified the sale deed/Lease deed from the concerned Registrar? What should its effect?
8. What should the decree be?"
Thereafter the Appellant examined her attorney Javaid Ahmed Khan and produced on record the relevant documents as Exb. P/1 to P/8, but the Respondents did not cross examine him and also failed to produce any evidence in support of their case. After conclusion of the evidence, the trial Court appointed the Commissioner to verify the location of the each flat and such reports are available on record. Finally, the suit was dismissed by the trial Court vide Judgment dated 06.10.2009. The above judgment was challenged before the Court of VIIth Additional District Judge, Karachi (South) by way of filing Civil Appeal No.200/2009, but the same was also dismissed vide judgment dated 30.09.2010, which has been impugned before this Court. During the proceedings vide Order dated 03.02.2011 both these appeals were tagged together.
5. The perusal of record reveals that in the Second Appeal No.06/2011, the Respondent No.1 has filed her objections, wherein the maintainability of the appeal has been challenged and it has been specifically alleged that the suit was not maintainable and barred by law under sections 42, 54 and 56 of the Specific Relief Act, 1877 and so also under section 273 of the Cantonments Act, 1924. It has been further alleged that the Appellant had no cause of action for filing a false and fictitious suit against Respondent No.1, as she herself executed the sale deed in favour of Respondent No.1 dated 15.01.1990 vide M.F Roll No.1194, dated 31.01.1990 before the sub-Registrar T-Division-II, Karachi in accordance with law. It is also alleged that the suit was defective for mis-joinder and non-joinder of necessary parties as the D.H.A being necessary party was not joined at the time of trial. The suit is barred by law of limitation, as after more than 13 years period suit has been filed without any plausible explanation. The Respondent No.1 has also taken objection in respect of incorrect valuation of the suit property. It has been also appraised that the Appellant has raised illegal construction over the suit plot against the site plan approved by the D.H.A and the D.H.A had issued the demolition notice to the Appellant, therefore, the present appeal merits no consideration and is liable to be dismissed. The Respondent No.2 i.e. Cantonment Board Clifton has also filed a statement, wherein it has been disclosed that the real issue involved in the instant appeals relates to the rectification of sale deeds, consequent to which the identification of each flat could be recorded and reconfirmed by Respondents No.2 and 3. It is contended by Respondent No.2 that Respondent No.1 should have not objected to execute rectification deed. Factually this rectification deed would also save Respondent No.1 from any future transactions in respect of the premises in her possession. It is admitted fact that Respondent No.2 had issued completion plan and also determined the annual value of the entire premises for tax purpose. It is relevant to mention that in the present case Respondents No.3 and 4 were served, but they did not file any comments in the present appeals.
6. Now I revert to the Second Appeal No.10/2011, in this appeal Respondent No.1 Mrs. Qaiser Jehan was served by way of publication, but she did not come forward to contest this matter, whereas Respondent No.2 has filed the same comments as has been mentioned in the connected Second Appeal No.06/2011 and Respondents No.3 and 4 have not filed any comments in this appeal.
7. I have heard the learned counsel for the parties. It is contended by the learned counsel for the Appellant that the impugned judgments and the decrees passed by the learned trial Court and the learned First Appellate Court are contrary to facts, suffer from material irregularities as well as legal and factual deficiencies. The judgments have been passed by the Courts below on the basis of misreading and non-reading of evidence on record, therefore, the above judgments and decrees are liable to be set aside and suits filed by the present Appellant are to be decreed. It has been further contended that at the time of transaction/sale of flats inadvertently by the aged father / attorney of the present Appellant, incorrect flat numbers had been mentioned, as soon as the mistake came into knowledge of the Appellant, she issued legal notice to private Respondent No.1 in both the appeals, but they avoided to execute the rectification deed, therefore, having no other option both suits were filed. In support of her contentions, she has referred to the completion plan dated 11.06.1989 of plot No.6-C, South Park Avenue, Phase-II Extension, D.H.A, Karachi and stated that the flats of Respondent No.1 in two appeals have mistakenly been shown located to be on first floor.
According to her, the Appellant is in possession of flat situated on first floor and multiple complications will be created for all concerned parties if necessary rectification is not made at this stage. She has also contended that the Appellant through her attorney adduced the evidence in support of her case, but the Respondents did not challenge such evidence in cross examination.
Even otherwise the Commissioner's report on record is in favour of the present Appellant and Respondent No.2 has supported the case of the present Appellant, therefore, both the judgments passed by the Courts below are liable to be set aside. In support of her contentions, she has relied upon the following case law.
1. Alamdar Hussain v/s. Nazir Hussain and others (2004 SCM R 595)
2. Muhammad Aslam v/s. Mst. Ferozi and others (PLD 2001 Supreme Court 213).
3. Khushi Mohammad v/s. Liaquat Ali and others (PLD 2002 Supreme Court 581).
4. Iftikhar through Legal Heirs and others v/s. Capt. Khadim Husain through Legal Heirs and others (PLD 2002 Supreme Court 607).
5. Amjad Sharif Qazi and others v/s. Salim Ullah Faridi and others (PLD 2006 Supreme Court 777)
6. Mst. Bibi Jan v/s. Habib Khan and another (PLD 1975 Supreme Court 295).
7. Balaprasad Asaram Charkha and others, v/s. Asmabi w/o Fakruddin Bohri (AIR 1954 NAGPUR 328).
8. Learned counsel appearing for Respondent No.1 in Second Appeal No.06/2011 submitted that the Appellant herself has raised the illegal construction over the suit plot against the approved plan i.e. so called first floor and the height of the said first floor is only 8 feet and it is made of wood and not RCC and such fact is admitted by the Appellant and she has let out this floor as Mezzanine floor on monthly rent to one Begum Shahjahan Noor at monthly rent of Rs.4000/- per month from March, 1993 onwards. He has further contended that the D.H.A has issued the notice for demolishing the so called mezzanine floor and the 3rd floor, which were illegally constructed on the suit property against the approved plan of D.H.A and even the third floor has been demolished by the D.H.A on the site, but so called mezzanine floor is still existing, waiting for demolition by the D.H.A. This is the reason that the Appellant has not made D.H.A party in the suit from the very beginning and such applications were moved by the shop keepers of the ground floor and other occupants of the flats, but the Appellant filed this false and baseless suit before the trial Court. Per learned counsel, the registered sale deed was rightly executed by the Appellant in favour of Respondent No.1 i.e. Mst.
Wajiha Jalil on 15.01.1990 before the sub-Registrar in respect of flat No.2, first floor with accurate number of the flat and with physical possession alongwith other occupants of the Building and there is no numerical mistake or other mathematical error, nor it was against the approved plan of D.H.A, therefore, after passing of more than 13 years, the Appellant has falsely agitated this issue, which merits no consideration. It has been also contended that the suit is also suffering from misjoinder and non-joinder of necessary parties as the D.H.A was essential party, which was intentionally not impleaded at the time of trial, thus the judgments passed by the trial Court need no interference and the present appeals are liable to be dismissed.
9. Mr. Sohail H.K Rana, has submitted on behalf of Respondent No.2 & 3 that though in official capacity he is not supporting any of the private party, but as the second appeals are not maintainable under the law on the point of factual controversy, therefore, the present appeals merit no consideration. In support of his contentions he has relied upon the case of Abdul Rashid v/s. Bashiran and another (1996 SCM R 808), wherein it has been held that the second appeal on the question of fact does not lie and it can only lie on the ground of error of law or on error of procedure, which might have affected the decision of the case on merits. In support of his contentions he has further relied upon the case of Hafiz Muhammad Hussain and another v/s. Abbas Khan and another (1981 SCM R 1233), wherein the concurrent findings of the trial Court and first Appellate Court were not disturbed and the Honourable Apex Court held that the findings of fact recorded by the Ist Appellate Court are final and binding and cannot be interfered merely on the basis that the same are based on incorrect appreciation of evidence. He has also relied upon the case of Amjad Sharif Qazi and others v/s. Salim Ullah Faridi and others (PLD 2006 Supreme Court 777).
10. I have considered the arguments advanced by the learned counsel appearing for the parties and have perused the case record.
11. It is important to note that in the present appeals the Appellant has not challenged the very sale/conveyance deed, but has only come forward for correction in respect of flat numbers, which error as per her case had occurred due to mutual mistake of parties, as the above conveyance deeds were carried out by the aged father of the Appellant, therefore, the same could not be noticed at that time. But subsequently when such mistake was noticed by Appellant in the year 2002, she at once informed Respondent No.1 in each case as well as also issued letter to the official Respondents for such correction, but the Respondent No.1 in each case did not pay any heed to such request and having no other option as a last choice civil suits were filed before the Court of law in the year 2004.
12. With this backdrop of the case, it is obvious that the straight forward and short dispute involved in both these appeals is whether at the time of execution of registered sale/conveyance deeds dated 15.01.1990 and 04.01.1992, there had been a genuine mistake from the side of both the parties as regards identification of two flats sold to the Respondent No.1 in each appeal. In fact it is the whole case of the Appellant, which unfortunately both the Courts below failed to appreciate. From the pleadings of the parties, it is evident that there is no dispute from the either side about the sale of one flat each to the Respondents in property No.6-C, South Park Avenue, Phase-II Extension, D.H.A, Karachi, but the only dispute is whether the said flats, subject matter of sale, were on first floor as mentioned in the sale deed or on the second floor of the Building. As could be seen from the case record in Suit No.1170/2004 the plaintiff had examined her attorney in evidence as Exhibit P/2, but his statement on oath supporting the assertions of the Appellant had gone unchallenged in cross examination as the Respondents did not bother to cross examine him. In addition to it, the Respondents also did not come forward to produce any evidence in defence for disputing this fact.
Thus, at the stage of evidence the case of the Appellant has remained unchallenged and unrebutted.
13. From the above discussion, I have no hesitation to hold that both the Courts below totally misunderstood the case of the Appellant and misread the case record and the evidence.
Therefore, such findings of the facts, outcome of misreading and non-reading of evidence, are not immune from interference in the second appeals. If any case law is needed to fortify this view, reference can be made to the cases of Alamdar Hussain v/s. Nazir Hussain and others (2004 SCM R 595), Muhammad Aslam v/s. Mst. Ferozi and others (PLD 2001 Supreme Court 213), Khushi Mohammad v/s. Liaquat Ali and others (PLD 2002 Supreme Court 581) and Iftikhar through Legal Heirs and others v/s. Capt. Khadim Husain through Legal Heirs and others (PLD 2002 Supreme Court 607).
14. Another important aspect of the case is the report of the Commissioner as regards the actual possession of flats with the Respondent No.1 in these appeals. The Commissioner for site inspection in clear terms has reported that the Respondent No.1 Mrs. Wajiha Jalil is in possession of flat No.3 on the second floor, while Respondent No.1 in Second Appeal No.10/2011 namely Mrs. Qaisar Jehan is in possession of flat No.4 on the second floor. Such assertion is also supported from the local investigation conducted by the Commissioner for which reference is available in his report. The above fact alone is sufficient to prove the genuine claim of the Appellant regarding mistake in mentioning correct number and floor of flats in two registered conveyance deeds mentioned above. It is also relevant to note that the above Commissioner's reports were not challenged by the Respondents' side during trial.
15. A man may speak lie but circumstances never. In case the claim of Respondent No.1 in her written statement, in Suit No.1170/2004 is taken on its face value, though she did not appear in the witness box to prove her assertions, then one fails to understand how she is in possession of a flat on second floor instead of first floor from the date of its purchase. All these facts lead to an irresistible conclusion that both the Courts below have failed in their duty to decide and redress the grievance of the Appellant in accordance with law, but adverted to such aspects of the matter, which have no relevancy. They also failed to appreciate that in both the suits, the claim of Appellant had remained unchallenged and unrebutted as in one case i.e. Suit No.1170/2004 only the written statement was filed, which is of course not the substitute of evidence and in the other case bearing Suit No.1171/2004, even the written statement was not filed and the contesting party was proceeded ex-parte during the trial.
16. The careful scrutiny of the two registered sale deeds dated 15.01.1990 in favour of Mrs. Wajiha Jalil and 04.01.1992 in favour of Furqan Zaigham Qadri, the predecessor-in-interest of Respondent No.1 Mrs. Qaisar Jehan further belie their claim of having purchased their respective flats No.1 and 2 of the first floor of the Building, as firstly there is only one flat on first floor admeasuring 1800 Sq. ft., which could not be sold to two different parties without bifurcation and secondly as per approved building plan there is no mezzanine floor, which means that the Respondent No.1 has taken first floor of the Building as mezzanine floor as shown in the two registered sale deeds.
17. So far as the question of limitation in filing two suits is concerned, it is observed that the same are within time, because the Appellant has not challenged two registered sale deeds executed by her father and attorney in favour of Respondent No.1 and the predecessor-in-interest of Respondent No.1 in another case in the year 1990 and 1992 respectively, but she has sought correction as regards correct identity of these flats for such cause of action has accrued to her when for the first time such mistake came to her notice. Similarly, the legal objection about the improper valuation of suit property is also baseless as the Appellant has not challenged the two sale deeds, but sought only declaratory relief regarding correction of flat numbers. Moreover, the bar of section 273 of the Cantonment Act, 1924 is also not applicable in the present case as no relief is sought by the Appellant against the Cantonment Board. Even in its comments filed before this Court Respondent No.2 has supported the case of present Appellant.
18. For the foregoing reasons and relying upon the case law referred above, the impugned Judgments of the Appellate Court and the trial Court are set aside and the two suits filed by the Appellant are decreed as prayed, but with no order as to costs.