' SADIQ HUSSAIN BHATTI, J.---The appellant is aggrieved by the judgment dated 28 February, 2012 passed by learned V-Additional District Judge, Karachi East in Civil Appeal No 114 of 2010, whereby the appeal filed by the appellant herein was dismissed.
2. The appellant Society allotted residential plot bearing No. B-148, Block 15, Gulshan-e-Iqbal, Karachi (hereinafter referred to as "the Plot") to one Yousuf Ali Khan and KDA, respondent No.2, on the' recommendation of the appellant, executed 99 years lease in favour of said Yousuf Ali Khan.
After the death of said Yousuf Ali Khan, the Plot devolved on his two sons namely, Nasir Ali and Adil Ali, who sold the Plot to one Mrs. Najma Saleem, respondent No.1 herein. In the year 1998, the appellant society noted that the residential building raised on the Plot was demolished a.
Commercial building was being raised thereon. On inquiry, KBCA disclosed to the appellant that the Plot has been converted from residential to commercial. Since, as per appellant's, the said conversion was illegal, therefore, a legal notice was issued to KDA and KBCA and when no response was received from them, the appellant filed Suit No.218 of 2003 (Old No.1353 of 1998) praying, inter alia, for declaring that the conversion was illegal. This suit was dismissed vide judgment and decree dated 9 March, 2010. The appellant assailed the said judgment of the trial Court by filing Civil Appeal No. 114 of 2010 which was also dismissed by the V Additional District Judge, Karachi East vide the impugned judgment. Hence the present II Appeal.
3. Learned counsel for the appellant submitted that as per terms of the allotment/lease, the use of a plot in the appellant society cannot be changed without the consent of the appellant society and in respect of the Plot no such consent in writing was ever given by the appellant society. Next, the learned counsel submitted that the alleged conversion was done by the KBCA which has no authority to do so as under the terms of the lease, it is only the lessor, i.e. KDA, which can convert a residential plot into commercial that too with the consent of the appellant society. Learned counsel submitted that the trial Court erred in holding that the plaintiff/appellant had not denied or disputed the authenticity of the documents produced by the defendants. Learned counsel stated that the appellant is throughout denying that any no objection was given by the appellant for conversion of the Plot from residential to commercial. Therefore, per the learned counsel, the impugned judgment of the trial Court is suffering from non-reading and misreading of the evidence and calls for interference by this Court. Learned counsel also referred to the sale deed executed between the legal heirs of Yousuf Ali Khan and respondent dated 7-3-1997 and stated that even in this document the Plot has been described as "residential" and not "commercial".
Learned counsel also submitted that the Notification regarding conversion of six main roads in Karachi from residential to commercial is not applicable to the Plot as it is not on the Main University Road and that even otherwise the dispute in this appeal/suit relates to a period prior to the issuance of the Notification. He also stated that this plea was not raised earlier when the suit was filed in the High Court and a learned single Judge decided the application under Order XXXIX, Rules 1 and 2, C.P.C. So far as claim of the respondent No.5, regarding purchase of the Plot from respondent No.4 is concerned, learned counsel submitted that the same is hit by the rule of lis pendens. In support of his submissions, the learned counsel relied on the following cases:
(1) Mst. Tabassum Shaheen v. Mst. Uzma Rahat (2012 SCMR 983),
(2) Basit Sibtain through LRs v. Muhammad Sharif through L. RS. (2004 SCMR 578)
(3) Abdus Saeed Khan and others v. Basharat Ali and others (PLD 1995 Lah. 255),
(4) Muhammad Yousuf and others v. Muhammad Younas and others (1995 CLC 1780).
4. Learned counsel for appellant No.2 submitted that the appellant No.2 is a resident of the adjoining plot and built a house in the residential area of the society to live peacefully in a residential area. Learned counsel further submitted that whole process of conversion of the Plot from, residential into commercial is tainted and is result of fraud and misrepresentation, therefore, is void. Learned counsel also stated that benefit under the Notification 20-7-1998 is not available to the respondents as the cause of action accrued to the appellant in 1997 i.e. Prior to issuance of the Notification. Even otherwise, per learned counsel, the Plot is situated on a 20 feet wide road and is not situated on the Main University Road. Relying on the case reported in (PLD 2010 Kar. 374), the learned counsel stated that conversion of residential plot to commercial is not permissible if the plot is situated on a road less than 100 feet. Wide. Per learned counsel no objections were invited from the residents of the vicinity, who are _directly affected from such illegal conversion.
5. Learned counsel for respondent No.1 submitted that predecessor of respondent No.1, namely, Yousuf Ali Khan, moved an application dated 10-3-1993 to the then Administrator of the appellant Society for conversion of the Plot from residential into commercial, which was forwarded by the Administrator to Deputy Director, KDA with no objection. It was also submitted that notices inviting objection were also issued in the daily "The News" and "Nawa-e-Waqt". Thereafter, since no objections were filed by anyone within the stipulated time, conversion was allowed vide order dated 5-7-1997 on payment of applicable conversion charges and transfer fee. Learned counsel also referred to Notification No.PS/DS(DB) S&GAD/4808/98 dated 20-7-1998 issued by the Chief Secretary Sindh, whereby six roads of Karachi, including University Road, have been commercialized and submitted that once through amendment in the zonal plan scheme, there was no necessity to seek permission from KDA or any other authority for the purpose of raising commercial construction on the plots located on all the six roads which were declared commercial under the above Notification. Learned counsel relying on the case reported as 2001 SCMR 279, stressed that the Court can, and will, take notice of the changed circumstances and subsequent events relevant for determination of the controversy between the parties. Learned counsel also argued that other plots in the vicinity have also been converted into commercial plots.
6. Learned counsel for the respondents Nos.4 and 5 have filed written synopsis of their arguments wherein it has been urged that the appeal is not maintainable as the grounds taken by the appellant have already been considered and decided against it in Civil Appeal No.114 of 2010 and that no new additional ground is available with the appellant to show that the Courts below have failed to appreciate. It was also stated that since there are concurrent findings against the appellant, therefore, no interference by this Court while exercising powers under section 100, C.P.C.
Rest of the arguments are similar to that of the counsel for respondent No.1.
7. I have heard the learned counsel for the parties and have perused the record.
8. The case of the appellant society is that the use of the Plot cannot be changed without the consent of the appellant society and that in respect of the Plot no such consent/NOC in writing was ever given by the appellant society; that the alleged conversion was done by the KBCA which has no authority to do so as under the terms of the lease, it is only the lessor, i.e. KDA, which can convert a residential plot into commercial that too, with the consent of the appellant society; and that the trial court erred in holding that the plaintiff/appellant had not denied or disputed the authenticity of the documents produced by the defendants.
9. So far as the first contention of the learned counsel for the appellant is concerned, it is correct as Article 8 of the lease deed executed in favour of the original lessee stipulates that the plot and the building and structure thereon are for residential purpose only and shall not be diverted to other use without previous consent in writing of the Lessor and the Society.
10. Now the question for consideration is whether NOC was obtained from the society before conversion of the plot from residential to commercial?
11. In this regard, the case of the respondents is that late Yousuf Ali Khan had moved an application to the appellant society seeking its NOC for conversion of the Plot from residential to commercial on which the then Administrator of the Society endorsed his no objection and forwarded the same to KDA. This letter has been produced as Exh. D-1 (available at page 165 of the R&P of the suit). This assertion is denied by the appellant society and it is stated that this letter Exh. D-1 is a forged and manipulated document which was never received by the appellant society and was never forwarded to KDA with endorsement of the Administrator of the appellant society.
12. Examination-in-chief of the attorney and husband of respondent No.1, namely, Saleem Anwar Rehman (at page 389 of the suit R&P) reveals that the witness has deposed that the property was purchased by respondent No.1 from Muhammad Yousuf Ali Khan. However, this is clearly wrong as the property was purchased by respondent No.1 from sons of late Yousuf Ali Khan. It is stated that at the time of purchase of the property Yousuf Ali Khan had already applied for commercialization of the suit property. A copy of such letter has been produced as Exh.Dl/A. It is stated that the said application was forwarded by the then Administrator of the plaintiff to the KDA and in this regard copy of the peon book dated 17-3-1993 has been produced as Exh. DI/C. It is surprising to note that how a private person can produce copy of the peon book of the plaintiff society as he cannot produce such document which was not in his custody. The duty of the respondent No.1 was to prove that the letter Exh. D-1 was received by the appellant society and for this purpose it would have been enough if the letter with acknowledgement from the appellant society was produced during evidence. No such copy of Exh. D-1 has been produced with acknowledgement that the same was received by the appellant society. On the contrary, a copy of letter dated 10-3-1993, purportedly addressed by late Yousuf Ali Khan to the society, has been produced which carries endorsement of Administrator of the appellant Society. Thus the copy produced by the witness of respondent No.1 cannot be said to be office copy of the letter retained by late Yousuf Ali Khan as that copy would not be carrying endorsement of the Administrator of the Society. It is very strange that no copy of such letter has been produced which does not carry endorsement of the Administrator of the Society. It means that such copy does not exist. This lends support to the case of the appellant society that no such letter was ever written by late Yousuf Ali Khan to the Society and that it is a forged and fake letter.
13. It may also be advantageous if sequence of the events is analyzed. The plot was allotted to Yousuf Ali Khan; it is alleged that he filed an application dated 10-3-1993 with the appellant society for conversion of the plot from residential to commercial; Yousuf Ali Khan died on 6 November, 1993 and the property was mutated in the name of his two sons, namely, Nasir Ali and Adil Ali on 31 May, 1994. Thereafter, vide sale deed dated 2 June, 1994, the property was purchased by respondent No.1, Mst. Najma Saleem from Nasir Ali and Adil Ali. Such mutation in the name of respondent No.1, Mst. Najma Saleem, was made on 7 March, 1997. The mutation order issued by Karachi Development Authority in favour of respondent No.1, dated 6-3-1997, shows that the plot in dispute was residential. On 4-7-1997, two challans for Rs. 35,000 and 525,000, respectively, were issued by KBCA in respect of the plot for its conversion to commercial. Attorney and witness of respondent No.1 in his deposition states that he deposited these challans while witness of respondent No.4 (page 395 of suit file) states that he paid the challans to KBCA. It means that when the property was purchased by respondent No.4 i.e. ANZ Grindlays Bank, the property was not converted to commercial. In this regard scrutiny of the sale deed executed between respondent No.1 and respondent No.4 also discloses interesting facts. The conveyance deed between these two respondents i.e. Respondents Nos. 1 and 4, was executed on 4 December, 1997. This deed in the recitals states that "By virtue of an Indenture of Lease dated 14th March, 1982 executed by Karachi Development Authority and Registered under. No 1197 at pages 63 to 66, Volume 2230 of Book 1 Addl., Sub-Registrar T, Division IV, Karachi, Yousuf Ali Khan son of Murtaza Khan acquired lease hold rights and possession of a Commercial Plot of land baring..." This is absolutely wrong as late Yousuf Ali Khan did not acquire leasehold rights of a commercial plot of land he only acquired leasehold rights of residential plot. In this regard reference may be made to the Mutation Order issued by KDA in favour of respondent No.1 (Ex. P-6, available at page 331 of the suit file), which was issued on 6-3-1997 and the same shows that the Plot is residential and not commercial. Even the sale deed executed between Nasir Ali and Adil. Ali and respondent No.1, (available at page 319 onwards of the suit file) shows that the plot is residential and not commercial.
14. Learned trial Court, while dismissing the suit of the appellant, has held as under:-- "So far conversion of the suit plot from residential to commercial is concerned, it is stated that the original allottee Yousuf All Khan had moved an application to the Administrator of the plaintiff on 10-3-1993 for conversion of the suit plot, who forwarded the said application with endorsement of no objection" to KDA. The defendants have produced the said application at Exh.D1/A & DI/B. It is stated that the no objection was endorsement (endorsed) and signed by Mr. Naseemul Haq Qureshi, the then Administrator of the plaintiff. It is further stated that the defendant No.1 had paid commercialization and other charges. The defendants have produced copies of paid challans at Exhs. Dl /E and Dl/F-2. The defendants have also produced approved plan at Exh.D1/9. The plaintiff witness during cross examination admitted that Mr. Naseemul Hague had remained Administrator of the plaintiff during the year 1993. He has admitted that the KBCA/KDA had pagier to change the nature of the suit plot. He has admitted that the KDA had informed to plaintiff about commercialization of suit plot through letter dated 2-3-1998 and that they have no claim against the KDA. The plaintiff neither in the pleadings nor in the evidence had denied or disputed the authenticity of the documents produced by the defendants. "(emphasis supplied).
15. After above discussion, the trial Court held that the suit plot was converted into commercial with consent of the plaintiff. In case the observation of the trial Court, as quoted above, that the plaintiff neither in the pleadings nor in the evidence had denied or disputed the autheniicity of the documents produced by the defendants, is correct then the finding of the trial Court is also correct.
However, if the observation is not supported by the material on record, then the finding of the trial Court is also incorrect and result of non-reading and misreading of the evidence.
16. In this regard, first I will refer to para 15 of the suit, which clearly states that "neither any proposal for conversion was submitted to the Society nor the Building plans for commercial building was routed through the plaintiff society in accordance with the provisions of the lease and the terms and conditions of Allotment. Thus, it is crystal clear that in the pleadings it has been denied that any proposal for conversion submitted to the appellant, therefore, no question arises of forwarding the same to KDA with no objection. Same assertion was repeated in the affidavit in evidence of the witness appearing on behalf of appellant society. The witness was put to lengthy cross- examination by counsel for the defendants but mostly the cross was with regard to other plots in the area. It seems that, it was suggested to the witness that respondent No.1 after purchase of the plot had applied for change of nature of the suit plot as commercial but the witness showed his ignorance about the same. So far as the witness of the respondent No.1 is concerned, a suggestion was put to him that Exh. D-1/A is a forged and manipulated document and he deposed that "it is wrong to say that Exh. D-1/A is a forged and manipulated document issued after two years of the transfer of the then Administrator of the plaintiff" Thus, it is clear that the appellant termed this letter as forged and manipulate document. However, very surprisingly, the trial Court had stated that the authenticity of the documents produced by the defendants was not denied by the plaintiff.
This is a serious lapse on the part of the trial Court.
17. The Appellate Court, while dismissing the first appeal of the appellant, observed as under in the impugned judgment:-- ... Primarily it is the case of plaintiff/appellant that the suit property which was residential in nature, subsequently got converted to the commercial one by the defendant/respondent without seeking the permission and consent of the appellant/plaintiff. However, admittedly, in the course of evidence it is brought on the record that the society has produced the letter of permission in respect of the property in question. It is further revealed from the perusal of record that Yousuf Ali Khan from whom the property in question was purchased by the defendant No.1 had obtained the approval of commercial purpose from the concerned authority. (emphasis supplied).
18. The appellant society has not produced any letter of permission in respect of the property. On the contrary, such letter produced by the respondents has been termed as forged and manipulated.
19. In my opinion, both the Courts below have miserably failed to read the evidence correctly and, therefore, have given findings which are totally against the evidence on record.
20. Even the two Courts below failed to read the order dated 20-7-1999 of a learned single Judge of this Court, whereby, before transfer of the case to the District Judge, the application under Order XXXIX, Rules 1 and 2, C.P.C. Was allowed and it was clearly observed therein that the letter dated 10- 3-1993 has been termed as forged by the counsel for the plaintiff and it as further submitted that this letter was never received by the Society.
21. It would have been a different proposition if it would have been observed that the appellant/plaintiff is denying the letter dated 10-3-1993 and then a finding was given on the issue whether the said letter was, or was not, received by the appellant/plaintiff.
22. The case of the contesting respondents is that late Yousuf Ali Khan had filed an application on 10-3-1993 for conversion of the plot into commercial. However, it has not been shown that any effort was made by late Yousuf Ali Khan during his life time to pursue such letter or, after his death, by his legal heirs. The question for consideration, therefore, would be whether the application dated 10-3-1993, even if it is assumed that such application was filed by the late Yousuf Ali Khan, was still pending before the competent authority for four years. If this application was available on record of KBCA then what action they have taken thereon and how they entertained the same in the year 1997. It is an admitted position that Yousuf Ali Khan died in the year 1993 and in the year 1994 the plot was mutated in the names of his two sons, Nasir Ali and Adil Ali. Thereafter, the plot was purchased by respondent No.1 from Messrs Nasir Ali and Adil Ali. Attorney and witness of respondent No.1 had stated that he received the documents of commercialization from Yousuf Ali Khan, which cannot be correct as Yousuf Ali Khan died in the year 1993 and the respondent No.1 purchased the suit plot from his sons in the year 1994. However, if it is assumed that copy of the said letter was given to him by sons of Yousuf Ali Khan, even then till 1997 no effort seems to have been made to pursue the application dated 10-3-1993 as nothing in the form of a reminder or any other correspondence in this regard has been brought on record during evidence to show that the said application was pursued. Thus, for all purposes and intents this application was abandoned and was not pursued. In this view of the matter if respondent No.1 was interested in converting the plot to commercial, she should have filed a fresh application for obtaining NOC from the appellant society and should have pursued the same thereafter before the competent authority.
23. It appears that respondent No.1 did file an application for conversion of the plot from residential to commercial as DW-1, Ali Mehdi Kazmi, Assistant Controller of Buildings, KBCA, in his deposition, has stated that "1 have brought record of disputed plot. On 9-5-1997 Najma Saleem the defendant No, 1 applied for conversion of the residential plot bearing No.B-148, Block 15, Scheme 24, Karachi from residential to commercial to the defendant No.3. The defendant No 3 issued a challan for commercialization of plot for the sum of Rs.5,25,000 which was paid by the defendant No.l.
Thereafter the defendant No.3 issued letter dated 5-7-1997 (Exhs. D/2 and .D/3)." Thus, it is wrong to say that the plot in question was converted from residential to commercial pursuant to the application dated 10-3-1993 filed by late Yousuf Ali Khan. However, in cross-examination the witness stated that he can produce copy of NOC issued by the plaintiff and then produced the letter dated 10-3-1993. In case the plot was converted from residential to commercial on the application then the application of late Yousuf Ali Khan was not considered and, therefore, the purported NOC given on the application of Yousuf Ali Khan can also not be considered as the respondent No.1 should have moved her application, through the appellant society an NOC should have been issued thereon.
24. So far as the Notification by which plots/lands on six main roads of Karachi have been declared to be commercial is concerned, the law laid down by the superior courts in this regard is very clear that if an area/road is declared commercial by operation of law, there is no need to obtain, any fresh/separate permission for change of use of the land/plot in such area or on such road.
However, since the dispute in this case pertains to a period much before the issuance of the said Notification, and the appellant is denying that the subject plot falls within the area which has been declared commercial by operation of law pursuant to issuance of such Notification, therefore, at this stage when, no evidence is available on this aspect of the case, this issue cannot be decided.
However, the parties would be at liberty to approach proper forum in this regard.
25. During pendency of the appeal, respondent No.5 joined these proceedings by filing an application under Order I, Rule 10, C.P.C. On the ground that he had purchased the suit property. Per learned counsel for the appellant, this transaction was hit by provisions of section 52 of the Transfer of Property Act and the doctrine of lis pendens as the sale took place during pendency of these proceedings. In this regard reliance was placed on the case of Mst. Tabassum Shaheen (supra), wherein the Hon'ble Supreme Court, after quoting section 52 of the Transfer of Property Act, held as under: "5. The afore-referred provisions enshrines the age old and well established principle of equity that ut lite pendents nihil innovetur (pending litigation nothing new should be introduced) and stipulates that pendente lite parties to litigation wherein right to immovable property is in question, no party can alienate or otherwise deal with such property to the detriment of his opponent. Any transfer so made would be hit by this Section."
26. The Hon'ble Supreme Court, referring to the case of Lalji Singh v. Rameshuwar Misra (1983) 9 All LR 269 (271)(A11), enumerated the essential ingredients of section 52 of the Transfer of Property Act, one of which was that the right to the said property be directly and specifically in question in any suit or proceeding.
27. Somewhat similar findings have been given in all the cases on the subject relied upon by the learned counsel for the appellant. These cases are not attracted in the present case as, admittedly, the ownership of the plot/property is not in dispute. Therefore, if the suit property was alienated by respondent No.1 or respondent No.4 during pendency of the suit such alienation/transfer would not be hit by provisions of section 52 of the Transfer of Property Act. However the judgment passed in this matter would be binding on any subsequent buyer.
28. Learned counsel for respondents also argued that there are concurrent findings against the appellant, this second appeal is liable to be dismissed as it lacks the ingredients of section 100, C.P.C. In this reference may be made to the case of Alamdar Hussain v. Nazar Hussain and others (2004 SCMR 595), wherein the Hon'ble Court Supreme Court held as under:-- "14. Having examined all aspects of the matter; we find that no exception could be taken to the conclusions reached by the honourable High Court which had persuaded the learned Judge in Chamber to set aside the concurrent judgments of the two subordinate Courts. Needless to mention here that there was no absolute rule that the concurrent judgments of the subordinate Court could never be interfered with by the High Court even if the said judgments were found to be based on gross misreading, non-reading or misconception of the evidence available on record. Laying down such a law would have the effect of setting the provisions of section 100 and section 115 of the C. P. C. At naught."
29. In view of the above discussion, I am of the considered view that the impugned judgments of the Courts below suffer from gross misreading, non-reading and misconception of the evidence available on record, which has resulted in miscarriage of justice. Accordingly, I allow J this appeal, set aside the impugned judgments and remand the case to the trial Court for decision afresh on the basis of the material on record, after providing opportunity of hearing to the parties, with no order as to costs.
Second .