ANWAR ZAHEER JAMALI, J.---The Civil Appeal No,972 of 2009, under Article 185(2) of the Constitution, is directed against the judgment dated 14-5-2009, in R.F.A. No,490 of 2000, (Re: United Bank Limited v. Noor-un-Nisa etc.), passed by a learned Division of the Lahore High Court, Lahore, whereby it was allowed; the impugned judgment dated 16-10-2000 in Suit No,861/1, passed by the Court of Civil Judge First Class, Lahore was set aside and the case was remanded to the same Court with certain observations as regards further proceedings in the suit and its disposal in the light of evidence already recorded, the additional evidence produced in Court and such further evidence as is recorded after the order of remand.
2. The other connected Civil Appeal No,1060 of 2009, under Article 185(2) of the Constitution, is directed by Mst. Noor-un-Nisa and three others (legal heirs of deceased Ali Saad) against the same impugned judgment dated 14-5-2009, in R.F.A. No,490 of 2000, as they are also aggrieved and dissatisfied with it.
3. The third connected case C.P.L.A. No,1523 of 2009, is preferred by the United Bank Limited against the short order of remand dated 14-5-2009, passed in Writ Petition No,119 of 2003, whereby the said writ petition was also disposed of in the light of the judgment, passed in R.F.A. No,490 of 2000.
4. For the purpose of this judgment, hereinafter Messrs United Bank Limited will be referred to as the "appellant" and Mst. Noor-un-Nisa, etc., the legal heirs of Ali Saad, will be referred to as the "respondents".
5. Briefly stated, the facts leading to this litigation, divulged from the memo of Civil Appeal No, 972 of 2009, are that the appellant Bank has one of its branch at the ground floor of the building, bearing No,S-19-R-52, known as "National House", consisting of four storeys, located at 47- Shahrah-e-Quaid-e-Azam, Lahore, admeasuring 2-kanals, 10-marlas and 206 sq. Feet (in short the disputed property). At the time of independence of Pakistan the disputed property was owned by the National Bank Lahore by virtue of a registered sale deed executed by its previous owner Lala Bhagat Ram Kapur as Karta of Joint Hindu family, in their favour on 20-10-1942. Subsequently, on 28-6-1965, another registered sale deed was executed by the said Bank through its registered general attorney Krishan Lal Chopra in favour of Commerce Bank Limited, Pakistan, which was registered in the office of the Sub-registrar, Lahore and in this manner the Commerce Bank limited became absolute owner of the disputed property. In the year 1974, upon merger of the Commerce Bank Limited with the appellant United Bank Limited, under the Banks Nationalization Act, 1974, all the assets and liabilities of the Commerce Bank Limited devolved upon and were taken over by the appellant, including the disputed property. The predecessor-ininterest of the appellant enjoyed uninterrupted and undisputed partial possession and full ownership of the disputed property since 1965, without any dispute with the respondents or any other occupants of the building, who had accepted them as their landlord and were paying rent to them for their respective tenements in the disputed property.
6. On 8-10-1980, the appellant filed an Eviction case against Ali Saad Abbasi, the predecessor-in- interest of the respondents, before the Court of Rent Controller at Lahore, on the grounds of default in the payment of rent at the rate of Rs,75 per month and their personal bona fide need. These proceedings, originally initiated against Ali Saad, wherein after his death respondents Nos.1 to 4 were joined as his successors-in-interest, remained pending for a considerable period (over twelve years), but during the whole period of litigation, at no stage of the proceedings, the respondents asserted claim of their adverse ownership over the disputed property. The relationship of landlord and tenant between the parties was, thus, established through the evidence lead by the parties before the Rent Controller and an ejectment order was accordingly passed against them on 26-3- 1988, which was also upheld by the appellate Court of District Judge, Lahore vide its order dated 14- 12-1988. The Writ Petition No,2849 of 1989, filed by the respondents against these two orders, was also dismissed on 21-11-1993. Therefore, the order of eviction against the respondents and in favour of the appellant attained finality.
7. It was in this background that on 15-12-1999, the respondents filed Civil Suit No,861/1 for declaration, cancellation of documents, possession, injunction and recovery of mesne profits against the appellant and some other person, wherein for the first time they made discloser of their claim of ownership over the disputed property on the basis of Provisional Transfer Order (PTO) dated 5-1-1961 and Permanent Transfer Deed (PTD) dated 20-12-1962, showing property No,S-19-R- 52 having been transferred to them from the settlement department. Initially in the suit, fourteen persons were arrayed as defendants, including the appellant, but in the year 2000, names of eleven of the defendants, who were occupants/tenants of the appellant in other tenements of the disputed property, were got deleted by the respondents on the plea that no relief was sought against them. The suit filed by the respondents was then proceeded expeditiously before the Court of Civil Judge First Class, Lahore and it was decreed against the appellant on 16-10-2000.
8. Against this judgment and decree, R.F.A. No,190 of 2000 was filed by the appellant before the Lahore High Court, Lahore on 15-11-2000, wherein the operation of the impugned judgment of the Civil Court was stayed vide order dated 16-11-2000. During the pendency of the appeal, the appellant succeeded in obtaining certified true copies of certain public documents, which conclusively established the nature of the disputed property as non-evacuee, and the same were thus produced by them before the appellate Court. These documents, included the judgment of the Lahore High Court dated 10-2-1976, passed in Writ Petition No,658 of 1959 and the earlier order dated 17-3-1971, of the Apex Court remanding the said petition to the High Court. Besides, the appellant also produced the copy of gazette notification S.R.O. 805(K) 61 dated 30-8-1961 in favour of their predecessor, National Bank Lahore and fifty eight other Banks, showing their exemption from the operation of the Pakistan (Administration of Evacuee Property) Act, 1957, which was also squarely relied by the Lahore High Court in its judgment dated 10-2-1976, to determine the legal status of the appellant's predecessor, being a non-evacuee.
9. The learned Division Bench in the High Court, after hearing the parties' counsel at length, allowed the R.F.A. Vide the impugned judgment and set aside the judgment of the Civil Court against the appellant, but at the same time remanded the case to the Civil Court with permission to both the parties to amend their pleadings and to lead their evidence accordingly. The same learned Division, Bench by a separate order dated 14-5-2009, also disposed of Writ Petition No,119 of 2003, filed by the respondents against the report of verification committee and the proceedings dated 23-6-2003, conducted by the Board of Revenue. Against this order the appellant have filed another Civil Petition for Leave to Appeal No,1060 of 2009, which is the connected case along with these two appeals.
10. We have heard the arguments of Mr. Makhdoom Ali Khan, learned Senior Advocate Supreme Court for the appellant and Mr. Muhammad Saeed Ansari, Senior Advocate Supreme Court, for the respondents. Learned Senior Advocate Supreme Court for the appellant has narrated the facts of the case in detail right from the stage of purchase of disputed property by the predecessor in interest of their predecessor vide registered sale deed dated 20-10-1942 till the passing of the impugned judgment to show that how in a calculated manner, respondents succeeded to manage some fraudulent documents i,e, PTO and PTD in respect of the disputed property in their favour from the defunct Settlement Department, which have not seen the light of the day before the institution of civil suit, though admittedly the litigation with regard to eviction of the respondents in respect of the disputed property remained pending before different Courts for a period of more than a twelve years. The bottom line of his submissions was that in the wake of overwhelming documentary evidence available with the appellant, as regards their clear title over the disputed property; the disputed property being non evacuee in status; admitted possession of respondents over a portion of it on the 4th floor, and an order of eviction passed against them by the competent forum, the appellate Court had no legal justification to put the appellant to another ordeal of litigation by ordering remand of the case to the Civil Court to the advantage of the respondents, who despite having eviction order passed against them after prolonged litigation, are still illegally occupying a portion of the disputed property for over thirty years without even payment of any rent to the appellant.
11. In reply to the above submissions, Mr. Muhammad Saeed Ansari, learned Advocate Supreme Court for the respondents (Nos. 1 to 4), contended that the PTO and PTD produced by the respondents, which formed the basis of their suit for declaration, cancellation of documents, possession, injunction and recovery of mesne profits, in the suit instituted by them on 15-12-1999, are public documents, therefore, their authenticity could not be questioned by the appellant in a summary manner. He also strongly disputed the genuineness of the title documents of the appellant in respect of the disputed property, which, according to him, though shown to be registered, but are fake and fabricated documents. The learned Advocate Supreme Court for the respondents when confronted with the material relating to the eviction proceedings between the parties, which remained sub-judice before different Courts for a period of over twelve years, having started on 8-10-1980 and finally ended on 21-11-1993, has however, no explanation to offer as to why, if the respondents were holding the title documents PTO dated 5-1-1961 and PTD dated 20-12- 1962 of the disputed property in their favour, the same did not find any reference in their written objections or even at any further stage of the rent proceedings up to the level of the Lahore High Court. However, he insisted that the appellant has to succeed in their claim over the disputed property on the basis of their own documents, therefore, it was necessary that their title documents should have been got verified.
12. As could be seen from the appeal record, to meet this objection, on 5-6-2014 following order was passed in this case.
"After making his detailed submissions in the case, learned Advocate Supreme Court for the appellant in C.A. No,1060 of 2009 has stated that if it is proved that the registered sale deed dated 20-12-1942 executed in favour of National Bank of Lahore Ltd. In the office of Sub-Registrar, Lahore is a genuine document in favour of the predecessor-in-interest of the respondent-UBL then the appellants represented by him will be out of Court. Keeping in view this candid statement, we deem it appropriate to summon some responsible officer from the office of Sub-Registrar, Lahore to produce the relevant record of the aforesaid sale deed executed between Messrs Lala Bhagat Ram Kapur, Karta of the joint Hindu family and the National Bank of Lahore Ltd, bearing registration No,6039 dated 20-10-1942. In the meantime, if the respondent-UBL are in possession of the original sale deed, they may also produce the same before the Court.
(2) Since these cases have been heard at full length, we deem it appropriate to adjourned these cases to 11-6-2014, but subject to availability of this Bench."
13. In response to the above order, one Muhammad Hussain, Head Clerk (Litigation) from the DCO Office, Lahore, appeared before the Court on 9-9-2014, when following further order was passed:- "Mr. Makhdoom Ali Khan, Senior Advocate Supreme Court for the petitioner in C.P.L.A. No,1523 of 2009 and appellant in C.A. No,972 of 2009 has made his further arguments. Adjourned to 1-9-2014 at 11-30 a.m. Muhammad Hassan, Head Clerk, litigation from the office of DCO, Lahore in compliance of the earlier order dated 5-6-2014 has appeared along with relevant register; he has produced attested copy of the relevant sale deed in favour of the appellant which is taken on record and has been verified from the original register. His further appearance before this Court is dispensed with until further orders."
14. Apart from it, the learned Advocate Supreme Court for the appellant, in compliance of the directions contained in the above orders, also produced in Court the original registered sale deed No,6039 dated 20-10-1942 to establish the clear title of the predecessor of the appellant over the disputed property. Faced with this situation, the learned Advocate Supreme Court for respondents has, however, no plausible defence to offer.
15. Another contention, which has been now raised by the learned Advocate Supreme Court for the respondents, is about the correct identity of we disputed property. In this regard, submissions of the learned Senior Advocate Supreme Court is that the property, which has been transferred to the respondents' Predecessor, bears property No,S-19-R-52 and not S-19-R-47 owned by the appellant-bank. For this purpose, a reference to paragraph-2 of plaint in the suit instituted by respondents will be relevant, which reads as under:- "2. That deceased Ali Saad was owner in possession of property No,S-19-R-52, consisting of 4 storey building, commonly known as National House, measuring 2 Kanals 10 marlas and 206 sq. Ft., situated it at Shahrah-e-Quaid-e-Azam (The Mall) Lahore (hereinafter the suit property). The suit property is bounded as follows:--
(1) East ADBP.
(2) West Chartered Bank.
(3) SouthThe National Bank of Pakistan.
(4) NorthThe Mall Site map is attached in which suit property is shown as detailed."
16. From the bare reading of the contents of above paragraph, it is abundantly clear that the property under litigation is one and the same which is commonly known as "National House", admeasuring 2-kanals, 10-marlas and 206 sq. Feet consisting of four storeyed building, bounded as detailed in the paragraph; ground floor whereof is in possession of the appellant and it is situated at 47, Shahrah-e-Quaid-eAzam, (The Mall) Lahore. This fact is further confirmed from the description of the disputed property given in the two registered sale deeds dated 20-12-1942 and 28-6-1965 and its comparison with the above description of the disputed property given by the respondents.
17. In this regard we have also inquired from the learned Advocate Supreme Court for the respondents as to whether at the site or from the site map produced, he can point out any other property regarding which respondents are claiming their title on the basis of documents showing property No,S-19-R-52 except the disputed property as per respondents' own description given in paragraph-2 of the plaint. He candidly conceded that the disputed property is one and the same i,e, 47, Shahrah-e-Quaide-Azam (The Mall). Moreover, he did not dispute that the earlier litigation for ejectment of the respondents predecessor, which commenced in the year 1980 and ended in the year 1993 was also in respect of one and the same property known as "National House", having the same area and boundaries as disclosed by respondents in the plaint and shown in the two registered sale deeds in favour of appellant's predecessor. This being the position, the above contention of the learned Advocate Supreme Court for respondents, being ill founded, is rejected.
18. In addition to it, with the assistance of learned Senior ASCs for both the parties, we have also carefully gone through the investigation report dated 24-6-2003, as regards the genuineness or otherwise of the two alleged documents of title in favour of the respondents. This report, being based on the scrutiny and verification of the original record of the Settlement/Evacuee Department by a Committee headed by the Secretary (S&R) Board of Revenue, Punjab as its Chairman seems to be authentic, and reads as under:- "MINUTES OF THE VERIFICATION COMMITTEE HELD ON 23-6-2003 UNDER THE CHAIRMANSHIP OF SECRETARY (S&R) BOARD OF REVENUE, PUNJAB ON THE BASIS OF NOTIFICATION DATED 23RD JUNE, 2003.
The following cases were considered/decided:--
(1) PTD in the name of Mirza Anwar Beg son of M. Shuja Beg, Mst. Razia Begum, Hamidullah Beg, Mst.
Parveen Akhtar daughter of Mirza Hamidullah Beg and Capt. Munawar Beg son of Shuja Beg in respect of property No,SE-26-R-17/SE26-R-17-A. Verified for issuance of certified copy.
(2) PTD in the name of Kh. Iftikhar Ahmed in respect of Property No,S-86-R-94 situated at Ferozepur Road, Lahore.
Verified for issuance of certified copy. PTD in the name of Ali Saad son of Saadat Ali in respect of property No,5-19-R-52 The Mall, Lahore.
United Bank Ltd. Moved an application through its Regional Chief Executive and Regional Operation Head with the request to ascertain the genuineness or otherwise of the above noted PTD. In this connection a notice was issued to Shar Yar Ali son of Saadat Ali (deceased) one of the legal heir through Maher Muhammad Ilyas, Advocate who along with the legal heir appeared before the Verification Committee. The United Bank Ltd. Was represented by Mr. Ahmed Awais, Advocate but he did not argue the case regarding the evacuee or non-evacuee nature of the property and the genuineness or otherwise of the PTD in question. He just requested that PTD may be examined and its genuineness or otherwise be communicated. The office has reported that property file as well as CSC-V Register No,17 (Ledger) does not exist on Record. However Maher Muhammad Ilyas, Advocate produced the following documents.
(1) Photo copy of PTO bearing machine No, 436193 issued in the name of Ali Saad son of Saadat Ali in respect of property No,S-19-R-52 the Mall, Lahore.
(2) Photo copy of the certified copy of the order dated 19-7-1960 showing the transfer of the property in question through a judicial order. The stamp shows that the certified copy was issued on 26-5-1962.
(3) Photostat copy of the certified copy of the PTD showing the transfer of the property in question in the name of Ali Saad vide PTO No,436193. The stamp shows that certified copy was issued on 19- 4-1984.
(4) Copy of the order dated 16-10-2000 of Mr. Abdul Qayyum Khan Civil Judge Ist Class, Lahore passed in Civil Suit No,861 titled Noor-un-Nisa v. United Bank Ltd.
The counsel did not produce any document showing the payment of the price of the property. He could not even explain the mode of payment i,e, whether the payment was made through Compensation Pool or in cash. The counsel was specifically asked to produce the copy of the Challan of payment of settlement fee as the same was always paid in cash but he could not produce the same.
The PTD Register No,12 was examined with the assistance of the learned counsel for the parties and entries were found entered at page No,180 of the property in question. It was noted that on the top left corner of the PTD there was some interpolation in the property number, the original figure was erased and converted into 5. Similarly the page No,180 was also interpolated, the original figure was erased and Zero was put.
These interpolations are quite evident. This PTO has been shown to have been signed by Mr. Ghulam Rasul Chaudhry (deceased) the then DSC on 20-12-1962. These signatures are at variance and dissimilar from the genuine signatures of the said officer. The difference is so sharp and clear that it does not require second look to reach to the conclusion that the same are forged and fabricated. There are signatures of the same officer on the very next page No,181 of the PTD Register and attention of the counsel of the claimant PTD Holder was drawn to the difference of the signatures but he could not offer any comments/explanation.
'This is no secret that the Record of the Settlement Department has always remained accessible to the fraudulent persons and therefore, the official Record is full of interpolation and forged and fabricated documents. This was the reason that the Verification Committee was constituted to ascertain the genuineness of the documents before allowing certified copies thereof. In this respect it appears necessary to mention that the Certified Copy of the PTD has been shown to have been issued in 1984. It is known to all the fraudulent persons that the relevant Register containing details of the Certified Copies issued in 1984 is missing for more than a decade and all forged certified codes can conveniently be shown to have been issued in 1984.
After examining the record I have reached to the definite conclusion that the entries existing at forged page No,180 in respect of interpolated Property No,S-19-R-52 of the PTD Register are fabricated and the PTD in question bears the forged and bogus signatures of Mr. Ghulam Rasul Chaudhry then DSC. Hence the PTD is held to be a bogus document and non-existent in the eyes of law. The decision was announced in the presence of the learned counsel the parties. Intimation to this effect be sent to United Bank Ltd., accordingly.
(Underlining provided by us for emphasis).
Sd/- (KHURSHID ALI KHAN)
SECRETARY (S&R)/CHAIRMAN VERIFICATION COMMITTEE BOARD OF REVENUE, PUNJAB LAHORE."
19. Independent of what has been highlighted in the above report we have also scanned the three documents, produced and relied by the respondents i,e, the order dated 19-7-1960 purportedly passed by the Deputy Settlement Commissioner-I, Lahore, the Provisional Transfer Order (PTO) dated 5-1-1961 and the Permanent Transfer Deed (PTD) dated 20-12-1962 allegedly issued in the name of the predecessor of the respondents. Firstly, we have noticed that the said order do not form part of any record of the settlement department, for the reason that no file of Property No,S- 19-R-52, The Mall, Lahore was ever opened or maintained in the settlement department for treating it as an Evacuee Property. Moreover, this order does not contain even the material particulars, the name of evacuee owner, the area of the property, its constructed area; its annual rental value as per DVL or any other document about the entitlement or status of respondents' predecessor being an evacuee. This order also seems to be contrary to the spirit of Settlement Scheme-1 (as mentioned in the PTD); how in the year 1960 the occupant of a portion of a building, having more than twelve other occupants, could be exclusively transferred the whole building under the said scheme without similar option of transfer to other occupants of the disputed property? Secondly, the PTO and PTD are also found blank in material particulars such as the name of the evacuee owner of the property, the assessed price of the property by the settlement department as per the policy in vogue; details of its payments, if any, made by the respondents' predecessor and its mode. Even the amount of public dues and scrutiny fee is not mentioned in the copy of PTD annexed with these appeals. All these material lapses in the purported title documents of respondents further lend support to the conclusion recorded in the report dated 24-6-2003 as reproduced and discussed above.
20. Apart from the above, in order to ascertain the correct legal status of the original owner qua the status of disputed property, being evacuee or non-evacuee, we have also gone through the gazette notification dated 30-8-1961, various other orders, and the judgment dated 10-2-1976, passed in Writ Petition No,658 of 1959, which leave no further room for debate open as regards the status of original owner, and the disputed property, being non-evacuee property, which was validly purchased by the predecessor-in-interest of the appellant through the registered sale deed dated 28-6-1965. For the sake of ready reference relevant portion of the judgment dated 10-2-1976 in Writ Petition No,658 of 1959 (Re: National Bank of Pakistan v. Custodian of Evacuee Property etc.) passed by the Lahore High Court is reproduced as under:-- "(2) Learned counsel for the petitioner drew my attention to notification No,S.R.O. 805(K)-61, dated 30th August, 1961, by the Ministry of Rehabilitation and. Works, (serial No,32 of the Schedule), according to which the petitioner Bank was exempted of the provisions of Pakistan (Administration of Evacuee Property) Act, 1957. In view of this, learned counsel contended that the order passed by the learned Custodian was not maintainable.
(3) Learned counsel for the respondents could not advance any effective argument to controvert this position.
(4) In view of this, I would allow this petition, declare the order of the Custodian dated 30-11-1959 to be without lawful authority and as such of no legal effect and hold that the petitioner bank is not an evacuee property. There shall be no order as to costs.
21. When confronted with the above discussed documents, the learned Advocate Supreme Court for the respondents has again no defence to offer or to show that how a non-evacuee property which never formed part of the compensation pool, could have been transferred to the predecessor-in-interest of the respondents.
22. Yet another important legal aspect of the case, which cuts to the very root of the claim of the respondents, is the question of limitation involved in the civil suit instituted by them on 15-12-1999.
Under section 3 of the Limitation Act, 1908, it is the bounden duty of every Court of law to take notice of the question of limitation even if not raised in defence by the other contesting party(s). In the instant case, in their written statement (preliminary objections) the appellant have unfolded all the details regarding their entitlement over the disputed property to the knowledge of the respondents and their predecessor qua the previous round of litigation between the parties, which had commenced upon the filing of ejectment case by the Appellant Bank on 9-10-1980 and ultimately culminated in their favour vide judgment of the Lahore High Court dated 26-11-1993, passed in Writ Petition No,2894 of 1989. They had also taken some legal pleas as regards the maintainability of the suit on various grounds. However, strangely, the civil Court in its own wisdom did not frame the issue of limitation or decide it. Incidentally, this important legal aspect of the case, for which ample admitted and undisputed material was available on record, also escaped the sight of the, learned Division Bench, which had passed the impugned judgment dated 14-5-2009.
23. When we examine the question of limitation on the basis of material available on record, we found that admittedly upon institution of ejectment proceedings, per averments made in the rent case, the claim of ownership of the disputed property in favour of the appellant had come to the knowledge of the respondents and their predecessor in the year 1980. But neither as such they challenged their title nor strangely anywhere in their written objections/reply they made slightest reference of the two fabricated documents i,e, PTO dated 5-9-1961 and PTD dated 20-12-1962, which is by itself sufficient proof of the fact that these documents were subsequently manipulated and managed by them in connivance with the Settlement Department Staff, and thus reaffirm the authenticity of the report dated 24-6-2003, submitted by the Secretary (S&R), Chairman Verification Committee, Board of Revenue Punjab, Lahore. As regards the authenticity of this report, another important aspect of the case is that the Verification Committee was not constituted exclusively for the verification of purported documents of title of the respondents, but it was constituted on the directions of the Minister of Revenue of the Province to have a comprehensive report about the practices of fraud and manipulation rampant at the behest of the staff of defunct Settlement Department, after the repeal of settlement laws. Admittedly, having knowledge about the title of the disputed property in favour of the appellant acquired in the year 1980, the declaratory suit for challenging their title was instituted by the respondents after more than 18 years. Thus, on the basis of admitted and undisputed facts of the case, their suit was hopelessly time barred and for this reason alone, there was no occasion for passing an order of remand in the appeal through the impugned judgment, which could have resulted nothing but flogging a dead horse.
24. To say the least, the judgment of the trial Court of Senior Civil Judge, Lahore was nothing but a mockery of justice, which required to be set at naught by the appellate Court without giving any further space to the respondents to enjoy the fruits of their own manipulations, misdeeds and frauds, committed by them in connivance with the staff of the defunct Settlement Department, who actively remained engaged in such malpractices. Thus, looking to the claim of the appellant from any angle, there was no lacuna or shortcoming in their case which could justify the impugned judgment of the Lahore High Court for remand of the case for any further proceedings before the Civil Court.
25. As a result of the above discussion, Civil Appeal No,972 of 2009, is allowed; the impugned judgment is set aside and Suit No,861/1, instituted by the respondents is dismissed with costs throughout. Accordingly, Civil Appeal No,1060 of 2009 is also dismissed.
26. Further, for the reasons recorded above, C.P.L.A. No,1523 of 2009 is converted into appeal and allowed. With the result Writ Petition No,119 of 2003 is also dismissed with costs throughout.