' AZIZ-UR-REHMAN, J.---By means of this 2nd Appeal No,28 of 2010 under section 100, C.P.C., the appellants [defendants] have assailed the impugned judgment dated 21-12-2009 and decree dated 24-12-2009 passed in Civil Appeal No,65 of 2008 [The Chairman Pakistan Railway and another v. Mst. Noor Jehan Begum] by 2nd Additional District Judge, Karachi, East, whereby he upheld the judgment dated 25-1-2003 and decree dated 31-1-2003, passed by the learned Trial Court - VIth Sr. Civil Judge, Karachi, East, in Civil Suit No,714 of 1996 [Mst. Noor Jahan Begum v. The Chairman Pakistan Railway and another], filed by the respondent [plaintiff] and consequently Civil No,65/2008 filed by the appellants was dismissed however, with no order as to costs.
2. The precise facts leading to the filing of the instant 2nd Appeal are as follows:--
3. Respondent, is widow of late Bashir Ahmed Khan who per averment made in the plaint, was allotted plot bearing No,245-1-G, Block 6, measuring 1000 s.Yds, PECHS, Karachi [hereinafter means the 'subject plot'] by Pakistan Employees Cooperative Housing Society Ltd [hereinafter means 'the Society'] vide allotment, Order No,5928, Share Receipt No,1475 on 16-12-1964. Per averments, 'the Society' had also issued a 'site plan' of the aforesaid plot with complete description of measurement and area on 30-4-1966 in favour of respondent's husband viz. Late Bashir Ahmed Khan. Upon the death of the husband of respondent [Mst. Noor Jehan Begum] the record of the 'subject plot' was also mutated in her name on 15-7-1976. Per averments, later on 'the society' had also executed on 'form-A' a sub-lease deed dated 5-12-1988 of the 'subject plot' in favour of respondent [Mst. Noor Jehan Begum].
4. Respondent, per averments, is the absolute owner/sub-lessee with possession of the 'subject plot' since its allotment on 16-12-1964 in favour of her husband late Bashir Ahmed Khan. According to the 'lay, out plan and demarcation' many other plots, on eastern and western side of the 'subject plot' have also been allotted by 'the Society' in favour of other allottees/ sub-lessees in the same area.
5. The respondent in her capacity as a lawful owner of the 'subject plot' besides raising a boundary wall had also built a Katcha room for Chowkidar on the 'subject plot'. Per averments, on 11-3-1976, the respondent signed and executed a General Power of Attorney in favour of one Sultan Ahmed son of Muhammad Afaq constituting him as her attorney who since then is looking after/safeguarding the interest of the respondent in respect of the 'subject plot'. Accordingly, the attorney obtained a letter/order dated 10-14996 relating to the proposal of building over the 'subject plot' from KDA.
6. Upon getting the approved building plan, excavation work/ground breaking for raising the construction over the 'subject plot' was started on 20-7-1996. Nevertheless, on 15-8-1996, when the construction work was in full progress at about 2:00 O'Clock in the afternoon about 15 persons came there in a truck and abruptly they started demolishing of the boundary wall from two sides [eastern and western side]. Per averments made in the plaint, on such occasion people of the locality/area had also assembled. Such incident was also brought in the knowledge of the attorney of respondent by Chowkidar of the 'subject plot' and thereafter, a Report/F.I.R. 'about such incident was promptly lodged at Police Station Ferozabad. Upon reporting the incident, respondent's workers/labourers again thereafter raised the boundary wall and proceeded with the construction work further according to the approved building plan.
7. On 18-8-1996 however, heavy contingent of persons armed with 'Lathis' and 'Iron Rods', came there again and thereafter while, issuing threats to the labourers disclosed their identity as persons/officials from the railway's department. One of them, disclosed his identity as Supervisor and without any hesitation, openly stated that they are under direction of G.M. Qureshi to demolish the construction work over the 'subject plot'. Again the incident was reported at Police Station Ferozabad on 18-8-1996. Per averments, the incident had taken place at the instance of appellants [defendants].
8. Under the aforesaid scenario, the respondent filed a Civil Suit No,714/1996 for permanent injunction under section 54 of the Specific Relief Act (I of 1877] r/w section 151, C.P.C. [Mst. Noor Jehan Begum v. The Chairman Pakistan Railways and another] before the Court of VIth Sr. Civil Judge, Karachi, East, with the following prayers:-- " (a) that a permanent injunction may be granted against the defendants/ restraining them not to interfere with the construction of the plaintiffs property.
(b) to restrain them from acting illegally with mala fide intention and refrain from interfering within the peaceful possession of the plaintiffs property.
(c) cost of the suit; and
(d) any other relief/reliefs which this Hon'ble Court may deem fit and appropriate under the circumstances of the case."
9. Upon service, the appellants [defendants], filed their written statement, taking therein inter alia legal objections regarding maintainability of the suit filed by the respondent [plaintiff] under section 54 of Specific Relief Act. In the written statement, it was further alleged that the suit as framed and filed is suffering from misjoinder and/or non-joinder of necessary party. Per written statement, the chunk of land, lying alongside the railway's track near Channasar Halt Railways Station, is belonging to the appellants as the same, was granted to Pakistan Railways in 1940, by the then Government, for the use/utilization of railways. Per assertions, the land since then is in the possession of Pakistan Railways. According to the appellants, at the time of creation of P.E.C.H.S. ['the Society'], the said piece of land was not included in their 'master plan' thus it can never be deemed as handed over to the P.E.C.H.S. By KDA or Government of Sindh.
10. Per appellants' contentions 'the society' had no right to allot/sublease any plot including 'subject plot' out of the railways' land to late Bashir Ahmed [husband of respondent] and/or anyone else.
The allotment dated 16-12-1964 in favour of the husband of respondent and/or the subsequent 'sub-lease' dated 5-12-1988, executed by PECHS in favour of respondent besides void ab-intio are illegal and not binding. Per claim in the written statement, the 'subject plot land' is in 'physical possession' of the Pakistan Railways i,e, to say before partition. Further respondent by manipulation the things has obtained, only 'paper possession' and not 'actual physical possession'. In the written statement, it was further averred that Pakistan Railways had in fact built stores and other infrastructure over the 'subject plot' but the respondent with the help of Ghunda associates not only demolished railway's structure/stores but had also taken away valuable materials from the site. Per averments, Pakistan Railways after getting knowledge about such incident, no doubt, had taken necessary steps for safeguarding its 'property but such action was taken in accordance with rules. According to the appellants [defendants] since, the land is belonging to Pakistan Railways, therefore, respondent [plaintiff] has no 'locus standii' and/or 'cause of action' for the filing of the Suit No,714/1996 [Mst. Noor Jehan Begum v. The Chairman Pakistan Railways and another] against the appellants [defendants].
11. In view of 'pro' and 'contra' pleas raised by the parties, the learned trial court, out of the pleadings of parties to the suit, settled the following issues:-- "(1) Whether the suit is not maintainable and is hit by the provisions of sections 10 and 11 of the Central Government Lands (Recovery of Possession) Ordinance, 1965 and whether it is also hit by sections 79/80 of C.P.C. And section 54 of Specific Relief Act?
(2) Whether the suit is bad for misjoinder and non joinder of necessary party?
(3) Whether the plaintiff was in possession of the suit plot and was raising construction according to approved plan?
(4) Whether the land/plot in question is owned by the PECHS, if yes, whether the plaintiff is bona fide owner of the same having allotted by the Society?
(5) Whether the plaintiff is entitled for the claim?
(6) What should the decree be?"
12. In support of their respective contentions, respondents' sub-attorney viz. Naeem Ilyas son of Rana Muhammad Ilyas was 'examined'/'cross examined' on 16-11-2002. The said witness in his 'deposition' produced Power of Attorrney as Exh.'P/1', Allotment Order in favour of husband of respondent as Exh.'P/2', Site Plan issued by 'the Society' as Exh.'P/3', Transfer Letter as Exh.'P/4', sub- lease in favour of the respondent as Exh.'P/5', Copy of General Power of Attorney in favour of Sultan Ahmed as Exh. P/6'. Besides, the sub-attorney had also produced the Approval Letter from K.B.C.A.
With approved plan as Exh.'P/7' and Exh.'P/8' respectively. The respondent's attorney had also produced copy of Reports/F.I.Rs, as Exh.'P/9' and Exh.'P/10' lodged at Police Station Ferozabad. Upon conclusion of 'cross examination' of the witness [T.W.1 1, the plaintiffs side of evidence was closed.
13. Thereafter, from the appellants' [defendants]' side their Asst. Engineer viz. Ali Imran Khokhar son of Ghulam Abbas was'examined'/'cross examined' on 3-12-2002. The said witness [DW-1], in his 'deposition' produced photocopy of 'approved plan' as Exh.'D/1' and Authority Letter as Exh.'D/2'. On conclusion of his evidence, the appellants' [defendants] side was also closed thereafter.
14. Upon hearing of arguments advanced by learned counsel for the parties, the learned VIth Sr.
Civil Judge, Karachi, East, after reaching the conclusion that the suit as filed was competent/maintainable [under Issues Nos.1 and 2] and the respondent [plaintiff] is the bona fide owner of the 'subject plot', [under Issues Nos.3 and 4], was pleased to decree the suit in favour of respondent [plaintiff] however, leaving the parties to bear their own cost.
15. The operative part of judgment dated 25-1-2003 [under Issues Nos.5 and 6] reads as follows:-- "In view of my findings on above issues it is proved that plaintiff is the bona fide owner of the suit plot having allotted by the Society, therefore, she is entitled for the relief of the injunction as prayed. The defendants are however, are not debarred from taking any legal action according to law with regard to their claim, if any on the suit plot. The suit is accordingly decreed leaving the parties to bear their own cost. [Underlining is mine].
16. The appellants, upon feeling aggrieved by the judgment dated 25-1-2003 and decree dated 31- 1-2003, passed by learned VIth Sr. Civil Judge, Karachi, East, preferred Civil Appeal No,65/2003 [The Chairman Pakistan Railways and another v. Mst. Noor Jahan Begum], before the Court of 2nd Additional District Judge, Karachi, East. On hearing of the arguments, the learned 2nd Additional District Judge, Karachi, East, nevertheless upon reaching the conclusion that the impugned judgment and decree passed by the trial court suffer from no any irregularity and/or illegality was also pleased to dismiss Civil Appeal No,65/2003 [The Chairman Pakistan Railway and another v.
Mst. Noor Jahan Begum] vide judgment dated 21-12-2009 and decree dated 24-12-2009 however, with no other as to costs.
17. The operative part of the judgment dated 21-12-2009 passed by 2nd Additional District Judge, Karachi, East, reads as follows:-- "In view of the above I find no irregularity and illegality in the impugned order of the trial court. I therefore, dismiss the present appeal with no order as to cost."
18. Against such judgment and decree passed by the learned Appellate Court, on 3-2-2010 the instant 2nd Appeal was filed in this court. On 11-12-2013, I finally heard Mr. Latif-ur-Rehman Khan Survery, learned counsel for appellants and S. Ali Bin Adam Jafri, learned counsel for respondent and also with their valuable assistance perused the record available before me.
19. Learned counsel for the appellants vehemently submitted that in fact the suit bearing No,714 of 1996 filed by the respondent besides, incompetent in law was not maintainable. Elaborating his arguments, learned counsel argued in vehemence that no 'notice' as required under section 80, C.P.C. Was served upon the appellants [defendants]. Per learned counsel, in the absence of such notice and/or non-joining of the Federal Government in the array of defendants, the suit as framed and filed was bad in law and in view of sections 79 and 80, C.P.C. The same was liable to be dismissed with costs.
20. Mr. Latif-ur-Rehman Khan Survery, learned counsel for appellants further contended that the judgment and decree passed by both the courts below suffer from mis-reading and/or non- reading of the evidence/materials on record. Per learned counsel, both the impugned judgment and decree beside illegal are null and void as the same have been passed without proper application of judicial minds. Learned counsel for appellants, also contended, that the impugned judgment and decree are against the law and record and actually are based on assumption/imaginary and artificial grounds as such, the same are liable to be quashed under circumstances of the case.
21. Learned counsel for appellants, next contended that the 'subject plot'/'land' is belonging to Pakistan Railways and P.E.C.H.S., has nothing to do with the 'subject land'/'plot'. Per learned counsel , the allotment order dated 16-12-1964 [Exh. P/2] in favour of late Bashir Ahmed Khan [husband of respondent] and subsequent mutation of 15-7-1976 [Exh. 'P/4'] and sub-lease dated 15-8-1988 [Exh.
'P/5'] by 'the Society', in favour of respondent, are absolutely bogus documents.
22. Mr. Latif-ur-Rehman Khan Survery, learned counsel for appellants while, continuing his arguments further submitted that the 'approval letter' [Exh. 'P/7'] and 'approved plan' [Exh. 'P/8'] obtained by respondent from KBCA are of no worth/avail, as the same are based on manipulated/forged documents i,e, allotment order [Exh. 'P/2'], site plan [Exh. 'P/3'], mutation letter [Exh. 'P/4'] and sub-lease on Form 'A' [Exh. 'P/5'] issued/executed by 'the Society' in favour of respondent [Mst. Noor Jehan Begum].
23. Lastly, learned counsel for the appellants forcefully contended that both the judgments and decrees impugned, are erroneous as such the same be set aside and the appeal as prayed be allowed.
24. Against this, S. Ali Bin Adam Jafery, learned counsel for respondent while, controverting the arguments advanced by the learned counsel for appellants inter alia contended, that the suit as framed and filed by the respondent besides, competent was well maintainable in law. Neither the suit filed by the respondent was bad for any non-joinder [i,e, of Federal Government] or otherwise, the suit as alleged, was liable to be dismissed for want of any notice in terms of section 80, C.P.C.
Per learned counsel, in a suit against the Pakistan Railways for permanent injunction under section 54 of the Specific Relief Act [I of 1877], the Federal Government, is not a necessary party. While, elaborating his arguments S. Ali Bin Adam Jafery, further submitted that the provisions of sections 79 to 82, are not mandatory in nature. S. Ali Bin Adam Jafery, forcefully submitted that the reliance placed on sections 79 and 80, C.P.C., under circumstances of the case, is not only mis-conceived but also misleading.
25. According to the learned counsel, the main purpose and object of section 80, C.P.C., is only to afford an opportunity to the Government and/or public officer at the highest level to consider/appreciate the matter in dispute before filing of the suit. Per learned counsel, in view of the acts of the officials of demolishing of the boundary wall/construction and their continuous threats regarding demolishing of the construction work further, the swift filing of the suit was not only necessary, but also imminent. Per learned counsel, the appellants even otherwise, were on notice as about the incident of demolishing F.I.Rs,/Reports had already been lodged at Police Station Ferozabad. Was in their knowledge. In this regard, reference was also made to F.I.Rs,/Reports [i,e, Exh. 'P/9' and Exh. 'P/10'] duly produced in evidence. Such loding of the Reports/ F.I.Rs, amounts to notice.
26. S. Ali Bin Adam Jafery, learned counsel for respondent, next argued that the filing of the suit without 'notice' at the most would disentitle the plaintiff to the grant of cost. Moreover, the court shall allow not less than three months' time to the government for submitting its 'written statement' i,e, to say in absence of any such notice. In the instant case, after evidence, concurrent judgments have been passed 'indeed' on merits, therefore, such objection raised at this stage by the learned counsel for the appellants besides frivolous is not relevant in circumstances of the case. Further the suit filed by the respondent does nothing 'with the affairs' of the Pakistan Railways. Rather it is in respect of wrongful acts of Pakistan Railways' officials who had demolished the construction raised by the respondent over and around the 'subject plot'.
27. Heard arguments and perused the record.
28. The 'subject plot' admittedly stands in the name of the respondent, therefore, the appellants' claim over the 'subject plot' without challenging the title of the respondent by way of filing a separate suit for cancellation of documents and/or declaration thereof as null and void is meritless. The allotment order and other documents i,e, transfer order, mutation, sub-lease etc to the knowledge of appellants are still intact. Not only this the 'subject plot' is in possession of the respondent since, 1964 who no doubt, has constructed RCC double storey building thereon.
29. From para 4 of the written statement, it reflects that Pakistan Railways had purportedly initiated some action against P.E.C.H.S. Relating the allotment of the plots made by 'the Society' but no proof has been placed on record to show/establish that the title of the 'subject plot'/land' was ever decided in favour of the appellants. In view of such position, until the allotment/ sub-lease made in favour of the respondent by P.E.C.H.S are finally declared as null, void and unlawful by the competent court of law till then, respondent cannot be dispossessed from the 'subject plot', much- less in a manner not permissible under law. Besides under circumstances of the case the appellants were also not justified in their acts of demolishing the construction and/or advancing the threats.
30. Being relevant as far as maintainability of the suit under section 54 of Specific Relief Act (I [I] of 1877] of 1877) is concerned at this juncture I would like to refer to the case of Fakirbhai Bhagwandas and another v. Maganal Haribhai and another [AIR (38) 1951 Bombay 380 [C.No,80] wherein it was observed as follows:-- "MI The position as it obtained at the date when the suit was filed was that the plaintiffs were in possession of the land by virtue of the title which they had obtained under the grant of 29-101942 and the transfer which had been made by Capt.Ansell in their favour. In order to entitle the plaintiffs to obtain the relief which they had prayed for in the plaint, viz. Injunction against defendants 1 and 2 it would not be strictly necessary for them to prove their title to the suit land, because under S.54. Specific Relief Act, even if they proved that the defendants. Invaded or threatened to invade their enjoyment of property, the Ct. Would grant a perpetual injunction in the cases therein mentioned. Mr. A. G. Desai for the appellants. Drew our attention to a decision of their Lordships of the P.C. In Ismail Ariff v. Mahmed Ghous, 20 Cal. 834; (20 I. A. 99 P.C.) where it was held that lawful possession of land was sufficient evidence of right as owner, as against a person who had no title whatever, and who was a mere trespasser. The fanner could obtain a declaratory decree, and an injunction restraining the wrong doer. The ratio of the judgment of their Lordships of the P.C. Is to be found in the passage at p.842: "It appears to their Lordships that there is here a misapprehension of the nature of the plaintiff case upon the facts stated in the judgment. The possession of the plaintiff was sufficient evidence of title as owner against the defendant. By S.9, Specific Relief Act(1 [I] of 1877] of 1877), if the plainitff. Had been dispossessed otherwise than in due course of law, he could by a suit instituted within six months from the date of the dispossession, have recovered possession, notwithstanding any other title that might be set up in such suit. If he could thus recover possession from a person who might be able to prove a title, it is certainly right and just that he should be able, against a person who has no title and is a mere wrong-doer, to obtain a declaration of title as owner, and an injunction to restrain the wrongdoer from interfering with his possession. The Appellate. Courts in accordance with the judgment above quoted has dismissed the suit. Consequently, the defendant may continue to wilfully, improperly and illegally interfere with the plaintiff's possession, as the learned Judges say he has done, and the plaintiff has no remedy. Their Lordships are of opinion that the suit should not have been dismissed: and that the plaintiff was entitled in it to a declaration of his title to the land. It was not necessary for him to negative that the land was dedicated to religious or charitable purposes, a question upon which the Original and Appellate Courts have differed, and which as the only defendant was not entitled to maintain the Wakfnama, and other persons would not be bound by an adverse decision, their Lordships do not decide."
This decision of their Lordships of the P. C. Lays down that it is not necessary for the person claiming injunction to prove his title to the suit land. It would suffice if he proves that he was in lawful possession of the same and his possession was invaded or threatened to be invaded by a person who had no title whatever. It would, therefore, be necessary to determine what was the nature and extent of the right, if any, which defendant I had acquired to the alluvial land under the terms of the consent decree obtained by him in Suit No,44 of 1941 on 14-4-1943. [Underlining is mine].
31. Before proceeding further I would also like to reproduce herein the Nazir's Report dated 14-11- 2003 which was prepared by him in compliance with court's order dated 7-1-2003. The report so submitted by the Nazir reads as follow:-- "In compliance of the order of the honourable Court dated 7-1-2003, the undersigned Commissioner/ Nazir, District and Sessions Courts, Karachi-East with due notice to both the counsel for the parties and the Engineer, PECHS, Karachi, reached along with Mr. Naeem Ilyas, Sub-Attorney of Mr. Sultan Ahmed on behalf of the plaintiff and Mr. Jawwad, Asstt: of Mr. Ali Bin Adam Jaffer, advocate for the plaintiff at site in dispute i,e, Plot No,245-1-G, Block-6, PECHS, Karachi on 10-1-2003 ,at about 3:00 p.m.
' Following persons were also present at the site:-
(1) Mr. Ali Imran Khokhar, Asstt: Engineer, Pakistan Railway
(2) Mr. Pir Moinul Haq, Inspector of Works; Pakistan Railway
(3) Mr. Nazir Hussain, Asstt: Executive Engineer, PECHS Society, Karachi I conducted the inspection and ' found that the plot in dispute is situated at North-West side. There is a double storey (Ground plus one) RCC. Constructed building having a big hall, Two Wash-rooms and a small hall on the back side at ground floor while Three rooms along with bath-room and kitchen are existing on the first floor. [Underlining is mind.
' It is noted that there is Row of Plots from No.245-I -A to 245-1-Z with the boundary wall of Railway Station at the distance of 20 ft. (approx.) and all are duly constructed except the Plot No.245-1-E and 245-1-F. The Plot No.245-1-F is adjacent to Suit plot and Plot No.245-1-E is adjacent to Plot No.245-1-F.
' Further details given by Mr. Nasir Hussain, Asstt: Executive Engineer separately along with copy of Layout Plan and copy of Lay-out Plan produced by the defendants side are submitted herewith for kind perusal of the honourable Court accordingly. Karachi; Dated: -14-1-2003 .
SD/- COMMISSIONER/NAZIR, District and Sessions Courts, Karachi-East."
32. Besides, the physical survey report annexed with the aforesaid Nazir's report is also reproduced herein-below:-- "PHYSICAL SURVEY REPORT ' If coming from Cantt Station the plot exists on Southern side of the track after Chanesar Railway Station. Row No.245-I, Block-6, PECHS, contains Plots from 245-1-A to 245-1-Z. After end, the Row No.245-2 exists. Position of the plots in the Row No.245-1 is as follows:-- (On West of the suit plot)
Constructed Mosque (Karimi Masj id)
Under encroachment (Brick Thalia)
Constructed Bungalow Constructed Bungalow Open plot without any construction Boundary wall constructed 245-1-G Constructed Building (On East of the suit plot)
245-I-H Constructed Building Under construction Building (Ground + 2 storeyed)
Under encroachment (Katchi Abadi)
245-1-R to Z Constructed Bungalows ' There is a 40' Wide Road in front of the suit plot. Plot No.16-M-1, Block-6, PECHS, is situated in front (Southern side) of the suit property. On the back side (Northern side) there is encroachment between the plot No.245-1-G and Railway track. Behind the open plot No.245-1-E, Block 6, PECHS, on distance of about 20' there is a boundary wall of Railway station. [Underlining is mine].
SD/- Nasir Hussain ASSISTANT EXECUTIVE ENGINEER PECHS SOCIETY (LTD) KARACHI"
33. In the instant case, it is worth to note that the respondent's ownership of the subject plot is based on the allotment order dated 16-12-1964 [Exh. 'P/2'] and sublease dated 5-12-1988 [Exh. 'P/5'].
The second document [Exh. 'P/5'] indeed titled as Form 'A' sub-license but the rights given thereunder inter alia authorizes and permits the sub-licensee [respondent] to erect/raise construction of permanent nature. In view of this position, the sub-license [Exh. 'P/5'] is in the nature of sub-lease. The term 'document of title' has not been defined but, of course, it would also include such documents which relate to the title of a person in respect of a specific property.
34. In the case of Muhammad Azam v. Pakistan Employees Cooperative Housing Society Karachi and others [PLD 1973 Note 84 Pg 119] where a housing society under a license allotted land to its members for construction of houses and subsequently when the allotment was sought to be cancelled on the ground that it did not create any interest in the land, it was held that if rights in land are given to a person for the purposes of raising construction of permanent nature, then the presumption of law would be in favour of construing such document as a 'lease' instead of a 'license'.
35. Moreover, under 'clause 2' of the sub-license, the respondent is also entitled to a 'sub-lease' of the 'subject plot' for 99 years, however, after completton of the building. It is worth to note that on the 'subject plot' in the instant case there stands a double storey building of permanent nature. In view of this position the 'doctrine of part performance' under section 53 of Transfer of Property Act, 1882 [IV of 1882] is also applicable to the case in hand. I am fortified in this view by the judgment of the Division Bench in the case of UBL v. Muhammad Azim and another (PLD 1985 Kar. 215) wherein it was held as under:-- "15. In the instant case there is an agreement between the parties that a 99 years' lease will be executed in accordance with the terms and conditions of the licence after_ the building is constructed. The mere fact that the Society, as against the allottee, is merely a licensor, does not make the allotment provisional as it is not a case of licence or allotment simpliciter, but a case of Transfer of plot with possession against full payment of price agreeing to execute a 99 years' lease in favour of the allottee as stipulated in the terms and conditions mutually agreed. In any case, the doctrine of part performance under section 53-A of the Transfer of Property Act, 1882 will also be applicable in the case."
36. Not only this, respondent has fully established through evidence her ownership as well as her possession over the 'subject plot' since 1964. The burden of proofs under circumstances was on the shoulders of the appellants to have proved that the respondent was/is not the owner of the subject plot. Such burden in the present case however, has not been discharged by the appellants at all.
Besides, the allotment order [Exh. 'P/2'] is a 30 years old document as such the same is also protected under Article 100 of Qanun-e-Shahadat Order, 1984 [10 of 1984]. Needless to say, under Article 100 of Qanun-e-Shahadat Order, 1984 [10 of 1984] a presumption of truth is attached to the execution of 30 years old document. Such presumption in the case in hand has not been rebutted.
On this aspect of the matter reliance can be placed on the case of Muhammad Darvesh v. Haji Muhammad Hussain [1999 CLC 106] wherein the court while commenting upon the applicability of two provisions of Qanun-e-Shahadat [i.e. Articles 79 and 100] concluded as under:- "10. Thus, the question to be determined is whether Article 79 or 100 of the 'Qanun-e-Shahadat Order' be applied to resolve the controversy between the parties. If the former is relevant, the burden would bE on the defendants to prove the execution of the Sale-deed No.171, notwithstanding its registration. If Article 100 aforesaid is found to be applicable, the burden to disprove the execution of the deed would shift to the plaintiffs. Under Article 100 of the Qanun-e- Shahadat Order presumption of correctness is attached to the signature and contents thirty years old document if produced from proper custody. When a document fulfills requirements of Article 100, the person relying upon the document is not required to prove its execution unless the presumption is rebutted. Thus, the provisions of Article 79 of the Qanun-e-Shahadat Order would not come into play if the benefit of Article 100 is available to the defendants." [Underlining is mine].
37. Even if, a document is 30 years old and not registered one, then too presumption of truth is attached/available to such document under law. Apart from the above in the instant case the 'subject plot' is in possession of the respondent since decades therefore, under Article 126 of Qanun-e-Shahadat Order, 1984 [10 of 1984], the burden was on the shoulders of the appellants to have proved that the respondent is/was not the owner of the 'subject plot'. For better understanding Articles 100 and 126 of Qanun-e-Shahadat Order, 1984 [10 of 1984] are reproduced herein below:-- "100. Presumption as to documents thirty years Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
' Explanation.--For the purposes of this Article and Article 92, documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable."
"126. Burden of proof as to ownership.---When the question is whether any person is owner of any of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner."
38. Regarding above aspect of the matter I also refer to the case of Muhammad Idrees and others v. Muhammad Pervaiz and others (2010 SCM R 5) wherein it was observed as under:-- "4 Under the law (as laid down by the apex Court in 1991 SCMR 703) the burden of proof is on the party, who alleges that an ostensible owner is "Benamidar" for him. Keeping in view the above criteria and factors involved, it may be observed that Muhammad Younas, the predecessor of petitioners, was elder brother of Muhammad Ayub, the predecessor of respondents Nos. 1 to 6.
Exh.P.W./1 is the copy of the sale-deed, according to which the bargain was struck with the two brothers jointly. The sale-deed being thirty years old, presumption of truth is attached to it under Article 100 of the Qanun-e-Shahadat Order, 1984 and attesting witnesses are not required to be called and, as such, it is proved that the suit shop was purchased by the predecessors of the parties jointly and thus, the respondents Nos.1 to 6 are owners thereof to the extent of 1/2 share.
' It is an admitted fact that predecessor-in-interest of the petitioners and respondents are real brothers. Registered sale-deed executed and registered in favour of both the brothers. It is a settled principle of law that registered document has sanctity attached to it and strong evidence is required to cast a aspersion on its genuineness. See Mirza Muhammad Sharif's case 1993 SCMR
462. It is also settled fact that sale-deed was executed in the year 1952. Therefore, it is 30 years old document. Under Article 100 of the Qanun-e-Shahadat Order, presumption is attached to 30 years old documents which is rebuttable presumption." [Underlining is mine].
39. As regards, notice under section 80, C.P.C. Is concerned, it says that a suit may be instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity after the expiry of two months next after notice in writing has been delivered to or left at the office of Secretary to the Federal Government and in the case of a suit against the Federal Government relating to the affairs of railway the General Manager of the Railway concerned.
40. For proper appreciation, sections 79 and 80, C.P.C. Are reproduced herein-below:-- "[79. In a suit by or against the Government.---4*** In a suit by or against the [Government] the authority to be named as plaintiff or defendant, as the case may be, shall be--
(a) in the case of a suit by or against the Central Government, Pakistan];
(b) in the case of a suit by or against a Provincial Government, the Province; and '
80. Notice.---(1) A suit may be instituted against the Government or against a public officer, In respect of any act purporting to be done by such public officer in his official capacity, after the expiration of two months next after notice in writing has been delivered to or left at the office of--
(a) in the case of a suit against the [Federal] Government, a Secretary to that Government;
(b) (i) In the case of a suit against the. Provincial Government other than a suit relating to the affairs of a Railway, a Secretary to that Government or the Collector of the District; and
(ii) In the case of a suit against the [Federal Government] relating to the affairs of a Railway, the General Manager of the Railway concerned, and in the case of a public officer, delivered to him or left at his office stating the cause of action, the name, description of place of residence of the plaintiff and the relief which he claims ; and the plaint shall contain a statement that such notice has been so delivered or left.
(2) Where any such suit is instituted without delivering or leaving such notice as aforesaid or before the expiration of the said period of two months or where the plaint does not contain a statement that such notice has been so delivered or left, the plaintiff shill not be entitled to any costs if settlement as regards the subject-matter of the suit is reached or the Government or the public officer concedes the plaintiffs claim, within the period of two months from the date of the institution of the suit..
' Provided that in a suit instituted without such notice, the Court shall allow not less than three months to the Government to submit its written statement.] "
41. The provisions of sections 79 to 82, C.P.C. Are procedural in nature and in fact do not create any substantial right or liability. The object of section 80, C.P.C. Is to give time to the Government or Public officer, at the highest level to consider the matter involved, and in case the suit has already instituted to determine whether to contest or not to contest the claim put forward by the plaintiff.
42. In the present case, even no notice was served upon the respondent [plaintiff] before demolishing of the construction/ boundary wall. Such action on the part of appellants is against the law of natural justice. The respondent [plaintiff] under such circumstances, was left with no option but to seek injunction promptly without any loss of time through filing of the suit. Non' service of notice, under section 80, C.P.C. Does not render the suit as not maintainable. In absence of any notice the court, however, shall allow not less than three months' time to government for submitting its written statement. Regarding this aspect of the matter reference can be made to the case of The Government of Punjab through Collector Gujranwala District and another v. Shah Muhammad" (PLD 1982 Lahore 115), wherein it was ruled as under:-- "... That in a suit filed without notice, in the terms of section 80, the Court should allow, not less than three months to file written statement and ex parte proceedings against the Government, before expiry of the statutory period, would be illegal."
43. As far as the objection regarding non-joining of the Federal Government as party in the suit filed by the respondent [plaintiff] is concerned such objection and reliance placed on section 79, C.P.C. Besides misleading is misconceived under circumstances of the case.
44. The 'subject plot' evidently was allotted in favour of late Bashir Ahmed Khan [husband of the respondent] on 16-12-1964. Thereafter, 'the Society' issued 'site plan' with complete description and measurement of the 'subject plot' on 30-4-1966. Upon death of Bashir Ahmed [husband of respondent], the 'subject plot' was thereafter mutated in the name of respondent on 15-7-1976.
Subsequently, 'the Society' also executed a sub-lease in favour of respondent. It is also an admitted position that the respondent [plaintiff] is also holding possession of the subject plot since, 1964.
Such position is also clear from the 'cross-examination' of Ali Imran Khokhar son of Ghulam Abbas [DW-1] recorded on 3-12-2002. For ready reference the 'cross examination' of 'DW-1' is reproduced as follows:-- "1 am employed with the Pakistan Railway for the last 1-1/2 years. My services are with Engineering Deptt. Of Pakistan railways as Civil Engineer. I have not personally visited the suit plot but while passing through the Railway Track I had over view the suit plot. I do not exactly know the area of the land which is in possession of the plaintiff belonging to the Pakistan railway. Vol. Says the area within 244 feet from the Centre of the Railway Track is un-authorizedly in occupation of the plaintiff. I have not personally made the measurements that how much area of the Pakistan Railway is included in the suit plot in possession of the plaintiff. I personally do not know if on East and West of the suit plot, there are plots Nos. 245-1-H and 245-1-F. It may be correct that there are as many as 40 to 45 plots in the same limit in which the suit plot is situated. It is not in my knowledge if the Pakistan Railway issued notices to the occupants of other plots in the lane where the suit plot is situated according to the plan of PECHS nor I know if the Pakistan Railway filed case against any of the occupants. Vol. Says that I only know about the present case. I had never appeared in any other case for evidence purpose or to represent the Pakistan railway in court.
This is my first appearance. It is correct that there is law division of the Pakistan railway which deals with the court cases and I have been authorized by the law department of Pakistan railway to give evidence in this case. I produce the letter dt.30th Nov. 2002 issued by Aftab Mehdi who represents the Pakistan Railway as Asst. Director Legal Affairs as Exh.D/2. It is not in my knowledge if in the year 1970-71 a suit bearing No,200/70 or 72 proceeded against. Pakistan Railway. The Director Litigation Pakistan Railway did not disclose to me that the disputed land was decided and included other plots of the same lane were given to the PECHS. I did not across any notice in the file of the Deptt. That any notice was given to the plaintiff or to her attorney regarding illegal occupation on the Railway lane. Vol. Says when the construction was started, a notice was given. It is correct that the plot in dispute is in possession of the plaintiff since its allotment by the PECHS.
Vol. Says it is an unauthorized possession. I do not know if the houses on the same lane in which the suit plot is situated have been constructed about 25 to 30 years back. I have gone through the documents produced by the plaintiff in his evidence and I am of the confirmed view that the suit plot does not belong to the PECHS, therefore its allotment to the plaintiff is illegal. The disputed plot is situated before the Chanesar Hault Station i,e, towards the Karachi-Cantt. Station. The Railway Deptt; for the first time came to know about the illegal occupation of the suit plot when the construction work started. It is incorrect to suggest that 1 being a fresh employee of Pakistan Railway have no knowledge about the facts of the case and have given the evidence under the directions of my superiors. It is not in my knowledge if the contempt proceedings are being carried against my Officers in its case. It is however, correct that an F.I.R. Report was locked against the Railway officers at P.S Ferozabad. It is incorrect to suggest that I have deposed falsely."
[Underlining is mine].
45. Plaintiffs sub-attorney viz. Nairn Ilyas son of Rana Muhammad Ilyas in his evidence besides other documents has also produced the following important documents which were exhibited as under:- Allotment orderExh.'P/2'. Site plan issued by PECHSExh.'P/3'. Transfer letter asExh.'P/4'. Form-A Sub- lease dated 5- 12-1988Exh.'P/5'.
Approval Letter from KBCAExh.'P/7'. Approved Building PlanExh.'P/8'.
' All the aforesaid documents have not been challenged by Pakistan Railways before any civil court of competent jurisdiction through proper proceedings. The attorney of respondent has fully supported the case of the respondent, regarding her 'possession' and 'construction of a double storey building over the 'subject plot'. The appellants [defendants] in rebuttal. Of have absolutely failed to produce any documents or otherwise, to establish that the 'subject plot' is not situated in the area of 'the Society' or 'the Society' is not competent authority to allot the same. The photocopy of the 'approved plan' produced by 'DW-1' needless to say was inadmissible in evidence.
46. Moreover, from the record, it is evident that on the other plots in the same row, construction has also been raised by the persons in their possession. Besides, the 'physical survey report' of Asst.
Executive Engineer P.E.C.H.S. Is also attached with the report of the Nazir from which it reflects that there is a 40 feet wide road in front of subject plot. The report of Nazir and/or physical survey report, it is worth to note, has not been challenged by appellants [defendants] by way of filing of any objections thereto.
47. The various documents produced by respondent in evidence have been duly exhibited without any objection on the part of appellants. Under law once a document is exhibited and brought on record then the contents thereof, no doubt, need consideration and to be given effect to by the court. The 'sub-license' on Form 'A' besides being a registered document has been exhibited in evidence without any objection from the appellants' side, therefore, spin my view the same is binding until it is cancelled by a declaration of the court of competent jurisdiction or through another registered document. Further the appellants have failed to discredit 'P.W. 1' during his 'cross-examination' .
48. The use of expression such as 'sublicense' instead of 'sub-lease' in the document [Exh. 'P/51 cannot alter its true nature/character. Rather to say camouflage of phraseology would not affect the actual and true nature of transaction.
49. Despite the legal position that in 2nd Appeal court cannot interfere with the concurrent findings of fact merely on the ground of misappreciation of evidence. I, as far as the instant 2nd Appeal is concerned, nonetheless have minutely gone through the available record before me and after due consideration have reached the conclusion that the judgments and decrees passed by the courts below do not suffer from any misappreciation and/or misreading/non-reading of evidence.
50. The upshot of the above discussion is that, in my opinion, the impugned judgments and decrees have been passed validly and lawfully, therefore, I do not see any justification to interfere with the concurrent findings of the two learned courts below, with result the instant 2nd Appeal is dismissed along with pending application, however, with no order as to costs.