JUDGMENT'
SYED SAEEDUDDIN NASIR, J.---This suit has been filed by the Plaintiff against the Defendants for Declaration of title, Possession of Immovable Property, Mesne Profits, Cancellation of Instruments and Permanent Injunction with the following prayers:- "(a) A declaration that the Plaintiff has a legal and valid title/ownership of the suit property i.e. F- 13, 4th Gizree Street, Phase-4, Defence Housing Authority, Karachi.
(b) Delivery of possession of the suit property be given to the Plaintiff by the Defendants Nos.1 to 3 and the Plaintiff be granted mesne profits at the monthly rate of Rs.100,000/- (Rupees One Hundred 'thousand only) from 08/2/1999 till delivery of the suit property to the Plaintiff payable jointly and severally by Defendants Nos.1 to 3.
(c) A permanent injunction be granted restraining the Defendants Nos.1 to 3 and their representatives/ employees and successors in interest from wasting damaging, alienation, sale, removal, transferring, mortgaging or disposing the suit property.
(d) The two instrument i.e. the registered Power of Attorney dated 29/10/1997 in the name of Defendant No.1 and the registered sale deed of the suit property F-13, 4th Gizri Street, Phase-4, D.H.A. Karachi dated 26/12/97 in favour of Defendants Nos.2 and 3 be delivered up and cancelled.
(e) Any other and/or further relief as this Hon'ble Court deems fit and proper.
2. The brief facts as narrated in the plaint are that the Plaintiff is a foreigner State within the meaning of section 84, C.P.C. and has been recognized by the Federal Government of Pakistan. The object of this suit is to enforce a private right vested in the Head of the Plaintiff or any officer of the Plaintiff in his public capacity.
The plaintiff has averred in the plaint that, the Plaintiff purchased the subject property from late, Mrs. Akhtar Amanullah wife of Mr. Amanullah Sardar a house on plot No.F-13, 4th Gizree Street, Phase-4, Defence Housing Authority, Karachi measuring 2000 square yards vide registered Sale Deed dated 14/5/1979 Registration No.3823 at Pages 125 to 132 Vol. No.1919 Book No.1-Addl. dated 14/5/1979 Sub-Registrar T. Division-II, Karachi. The original title deed registered Form "B" Lease in the name of the late, Mrs. Akhtar Amanullah in respect of the suit property is in' possession of the Plaintiff, which was handed over to the Plaintiff by the aforesaid vendor at the time of execution of the Sale Deed. Before purchase of the suit property the Plaintiff vide letter dated 22/3/1979 applied to the Sindh Government for exemption of stamp duty on the purchase, which the Sindh Government granted vide; Notification No.41-PB-7P (Bud-1) dated 23/4/1979 and endorsement of the exemption appears on the registered Sale Deed dated 14/5/1979 itself.
4. That, Messrs ORR. DIGNAM & CO., Advocates, vide letter dated 19.09.1979 applied on behalf of the Plaintiff to the Defendant No.6 for mutation of the suit property into the Plaintiff's name. The Defendant No.6 mutated the suit property into the Plaintiff's name and issued a Certificate No./AF/118 dated 17/12/1979. Intimation of the said mutation was also communicated to the Military Estate Office, Karachi by Defendant No.6. Thereafter, Plaintiff applied for a "NO DEMAND. CERTIFICATE FOR PREVIOUS OWNER" to. the Clifton Cantonment Board, Karachi through Messrs Isani and Associates, Legal Consultants in respect of the suit property, who replied the said request vide; its letter dated 08.11.1989. The suit property since its purchase on 14/5/1979 has been throughout a residence in physical possession and personal occupation of the Plaintiff's Consul Generals posted at Karachi. The utility bills of the subject property were issued in the Plaintiff's name. The Gulf War in February/ March 1991 resulted in temporary closure of the Plaintiff's Karachi Consulate and since then there has not been any Consul General Posted at Karachi. The suit property though as of then without an occupier, but its ownership/possession/ control remained with the Plaintiff. The Defendant No.6, D.H.A. received a letter dated 10.10.1997 from the President, 4th Gizri Street, Resident Association, DHA, Karachi intimating that unknown persons had started dismantling the suit property by removing the furnishing, windows, grills, fittings etc. and that this might be a "QABZA GROUP" who may forcibly occupy the place.
5. The Plaintiff averred in its plaint that Defendant No.6 under its Rules and Regulations is responsible for preventive/remedial measures against the encroachments/illegal occupations of properties in the Defence Housing Authority area. Therefore, the defendant No.6 took-over the suit property and in order to protect it from encroachment, posted some guards/employees thereon. The Defendant .No.6 was performing protection and Security duties at the suit property, when on 12.11.1997 six employees of Defendant No.6 while performing guard duties at the suit property were attacked by 10-15 men armed with automatic weapons, metal poles and wooden sticks and they forcibly entered into the suit property. The Defendant No.6 filed an FIR dated 13.11.1997 with Gizri Police Station, DHA, Karachi. However, subsequently the intruders were removed from the suit property and further vandalism and intrusions were checked and the same was intimated by the Defendant No.6 to the Plaintiff vide letter dated 21.11.1997. The said violent illegal attempt to forcibly take over possession of the suit property was committed by and on the behest of the Defendants Nos.1 to 3 which was a prelude to their unlawful / criminal act to follow.
6. The Plaintiff has further averred in the plaint that the Defendant No.2 on behalf of self and Defendant No.3 'made an application dated 18.12.1998 to the Defendant No.6 for mutation of the suit property into their names with which they attached photocopies of Registered Sale Deed executed on 26.12.1997 Registration No.80, Pages 57 to 74, Vol. 3249, Book No.1-Addl. dated 07.1.1998 before Sub-Registrar T-Division-II-A, Karachi (i.e. Defendant No.5) allegedly by seller late, Mrs. Akhtar Amanullah through her purported General Attorney Defendant No.1 holding a registered Power of Attorney allegedly executed on 29.10.1997 Registration No.419 Book No.IV, Pages 174 to 177 Vol. No.52 before Sub-Registrar, Agricultural Land (East) Karachi (i.e. Defendant No.4).The Plaintiff obtained certified copies of above stated documents from Defendant No.5's record.
7. The Plaintiff has further averred in the plaint that Power of Attorney dated 29.10.1997 allegedly executed. by the above said late, Mrs. Akhtar Amanullah in favour of the purported Attorney Defendant No.1 is a concocted document and has been fabricated by Defendants Nos.1 to 3 and got registered the same in collusion with Defendant No.4, inasmuch as late. Mrs. Akhtar Amanullah died at Karachi on 30.08.1989 whereas the said Power of Attorney alleged to have been executed by her is dated and registered on 29.10.1997. Death Certificate of Mrs. Akhtar Amanullah has been checked and verified by the Birth and Death Registration Section of the KMC (East) Zone on 26.10.1999. Further the said Power of Attorney mentioned the National Identity Card number of the purported attorney Defendant No.1 i.e. NIC No.403-88-022022, but does not at any place mention the National Identity Card number of the alleged principal/executant of the power of Mrs. Akhtar Amanullah. The address of the alleged Principal/Executant the said late. Mrs. Akhtar Amanullah given in the power of attorney dated 29/10/1997 is 12-J Gizri Avenue, Defence Housing Society, Karachi. This is a fictitious/false address. The property 12-J Gizri Avenue, Defence Housing Society, Karachi formerly owned by the said late, Mrs. Akhtar Amanullah was sold and transferred by the late, Mrs. Akhtar Amanullah to Mrs. Tanveer Soomro vide registered deed dated 06.7.1985 and in the said registered deed dated 06.7.1985 the address of the said late. Mrs. Akhtar Amanullah at that point of time given is 12-A/1, 3rd Gizree Street, Phase-4, Defence Housing Karachi. The aforesaid Mrs. Tanveer Soomro has been the owner/occupant/resident of the above said property 124/1 since its purchase on 06.7.1985.
8. That, the house located at the above mentioned address 12-A/1, 3rd Gizree Street, Phase-4, Defence Housing Authority Karachi was at the time of her death in the name of the late, Mrs. Akhtar Amanullah and was thereafter for reasons of her death mutated in 1990 on the records of the Military Estate Office, Karachi/ Clifton Cantonment Board into the names of her heirs i.e. Mr. Amanullah Sardar (husband), Mr. Rizwan Waheed (son), Mrs. Naureen Azam and Mrs. Nazreen Asif.
In context to the sale deed dated 26.12.1997 executed on behalf of the said late, Mrs. Akhtar Amanullah through the purported attorney Defendant No.1 of the one part and Defendants Nos.2 and 3 of the other part it is stated that the places where the alleged seller late, Mrs. Akhtar Amanullah's National Identity Card is mentioned they have been left blank for reasons best known to the executing parties. There appears a dubious/false statement in the said deed dated 26.12.1997 which verbatim appears "The Executant of power is alive and G.P.A. has not been cancelled upto date, whereas the late Mrs. Akhtar Amanullah died on 30.8.1989. In para 3 of the sale deed dated 26.12.1997 it is mentioned that the original "B" Lease and Conveyance Deed has been lost whereas the original "B" Lease is in the possession of the Plaintiff and the only Conveyance Deed of the suit property executed by the late, Mrs. Akhtar Amanullah was in favour of the Plaintiff which is also in Plaintiff's possession.
9. The Plaintiff has next averred in the plaint that General Power of Attorney dated 29.10.1997 in the name of Defendant No.1 purportedly given by the said late, Mrs. Akhtar Amanullah is a false/fabricated document and the sale deed dated 26.12.1997 between the said late, Akhtar Amanullah and Defendant Nos.3 and 4 executed by virtue of the said General Power of Attorney dated 29.10.1997 besides being fraudulent/false is ab initio null and void without any legal effect. It is further contended that Defendant No.6 rejected the mutation application dated 18.2.1998 filed by Defendants Nos.2 and 3 on the ground that the power of attorney under which the sale deed of the suit property had been executed was forged/ fraudulent and as per Defendant No.6's records the Plaintiff was the owner of the suit property. The Defendant No.6 also lodged/filed FIR dated 18.2.1998, which is against the Defendant No.2 and his advocate Mr. Ali Akbar Mani with Police Station Defence (South) Karachi on grounds of fraud and forgery. Under covering letter dated 19.2.1998 the Defendant. No.6 forwarded the copies of its relevant record to the Police. Furthermore, Defendant No.6 vide a detailed report dated 26.3.1998 brought the criminal acts of Defendants Nos.1 to 3 to the attention of the local administration.
10. The Plaintiff vide letter No.148 dated 01/4/1998 intimated the Pakistan Ministry of Foreign. Affairs about the illegal criminal acts of the Defendants Nos.1 to 3 with a request that the Ministry take action through the concerned authorities. It merits mentioning that the Plaintiff generally liaisons with the government/local departments/authorities through the Pakistan Foreign Ministry. The security of suit property was handed over on 29.5.1998 by the Defendant No.6 to the Police Security Company No.1, sent and posted by Senior Superintendent of Police (South) Karachi.
11. The Plaintiff has next averred in the plaint that the Defendant Nos.2 and 3 filed on or about 29.8.1998 Constitutional Petition No.1286/1998 in the Sindh High Court, Karachi, against the Defendant No.6 with prayer that the security guard be removed from the suit property. The Hon'ble High Court in its judgment dated 08.2.1999 directed that the security guard be removed and possession be delivered to the Defendants Nos.2 and 3 with the observation that the ownership of the suit property has been left undecided. Thereafter, the Defendants Nos.1 to 3 acquired possession of the suit property. The Defendants Nos.2 and 3 with mala fide and ulterior purposes did not make the Plaintiff a party to the above said C.P. No.1286/1998 and the Plaintiff came to know of the said C.P. No. 1286/1998 only after the judgment dated 08.02.1999 was pronounced in the same. The District Registrar, Karachi, issued search certificate for the suit property for the period of 25.2.1978 to 30.09.1999. Sale deed dated 14.5.1979 between the late, Mrs. Akhtar Amanullah and the Plaintiff relating to the suit property had been registered and its registration is complete in the manner prescribed by the Registration Act, 1908, and the rules made thereunder as such the Defendants Nos.1 to 3 had notice of the said registered sale deed as o 14.5.1979.
12. The Plaintiff further averred in the plaint that late Mrs. Akhtar Amanullah having earlier sold the suit property to the Plaintiff vide Sale Deed dated 14.5.1979 could not afterwards have prejudiced the rights of the Plaintiff by a subsequent alleged transfer of the same property to the Defendants Nos.2 and 3. Since the alleged registered sale deed dated 26.12.1997 purportedly between the said late, Mrs. Akhtar Amanullah through her purported Attorney and Defendants Nos.2 and 3 relates to the suit property already sold by the said Mrs. Akhtar Amanullah to the Plaintiff under registered sale deed dated 14.5.1979 the said subsequent alleged registered sale deed , dated 26.12.1997 is null and void without any legal effect. Even otherwise, the registered sale deed dated 14.5.1979 and alleged registered sale deed dated 26.12.1997 purport to create by transfer at different time rights in the same suit property which rights cannot co-exist or be exercised together with the later rights, if any, created by the alleged registered sale deed dated 26.12.1997 shall be subject to the rights previously created by the registered sale deed dated 14.5.1979. The two instruments, namely, the registered Power of Attorney dated 29.10.1997 purportedly executed by the said late, Mrs. Akhtar Amanullah in favour of Defendant No.1 and the registered sale deed dated 26.12.1997 purportedly, between the said late, Mrs. Akhtar Amanullah and Defendants Nos.2 and 3 being related to the suit property already sold by the said late. Mrs. Akhtar Amanullah to the Plaintiff on 14.5.1997 being forged, fabricated and false if left outstanding wil.l cause injury to the Plaintiff and the above stated two instruments should be delivered and cancelled.
13. The Plaintiff averred in the plaint that Plaintiff is entitled for declaration as he has legal and valid title, ownership of the suit property as well as also entitled to delivery of possession of the suit property by removing Defendants Nos.1 to 3 and their representatives/agents and successor-in- interest. The Plaintiff further entitled to a permanent injunction restraining the Defendants Nos.1 to 3 from wasting, damaging, alienation, sale, removal transferring or mortgaging/disposing the suit property. The Plaintiff also entitled to mesne profit from Defendants Nos.1 to 3 at a monthly rate of Rs.1,00,000/- from 08.02.1999 the date of judgment in the aforementioned C.P. No.1286/1999 in the Sindh High Court, Karachi whereafter possession of the suit property was taken over by the ,said Defendants Nos.1 to 3 till delivery of the suit property to the Plaintiff.
14. The Defendants Nos.2 and 3 filed their written statement on 23.08.2000 wherein all the averments, allegations and claims made by the plaintiff in the plaint, were specifically and vehemently denied. It is stated that the suit is not maintainable and the prayers made therein also cannot be granted as well as Plaintiff has not come to the Court with clean hands so the plaintiff is not entitled to the relief prayed for. The Defendant. No.1 was proceeded ex parte vide Court's order dated 22.01.2001. The Defendant No.6 filed written statement wherein it has fully supported the version of the Plaintiff in the plaint. The Defendant No.1 neither countered the suit nor did he file his written statement and was declared as ex parte on 22.01. 2001.
15. That, the Defendants Nos.2 and 3 in their written statement stated that the representative of the Plaintiff is not an authorized person to file the present suit. It is further averred that the answering Defendants have purchased the property in suit from Mrs. Akhtar Amanullah through her duly constituted attorney Mr. Deedar. Hussain vide Sale Deed dated 26.12.1997 registration No.6790 registered with Sub-Registrar T-Division II-A, Karachi. It is stated that the copy of Sale Deed filed by the Plaintiff is forged, manipulated and has no legal effect and the original title deed registered Form 'B' has been lost which is evident from paragraph No.3 of Registered Sale Deed dated 26.12.1997.
16. The, Defendants Nos.2 and 3 have denied the contents of paras-5 and 6 of the plaint. It is submitted by them that the Plaintiff and Defendant No.6 are in league and they wanted to usurp the property of the Defendants Nos.2 and 3 and if any mutation is made in the name of the Plaintiff, it is manipulated, forged and has no legal force, what-so-ever.The answering Defendants have also denied the contents of paras-7 and 8 of the plaint. It is submitted that since the property in suit had been purchased the same is residence of defendants Nos.2 and 3 and in physical possession and occupation of Defendants Nos.2 and 3. It is further submitted that in the year 1998 the Defendant No.6 with the help of police illegally threw ,out the Defendants Nos.2 and 3 from the suit property, but the Defendants Nos.2 and 3 filed a Constitution Petition bearing No.1286/1998 before the Hon'ble High Court of Sindh wherein, the Court was pleased to restore the possession of the suit property to the Defendants Nos.2 and 3. vide its order dated 08.02.1999. It is further stated that the letter 10/1.0/1997 is fake and fictitious.
17. The' Defendants Nos.2 and 3 in para-12 of their written statement averred that the plaint is baseless, frivolous, concocted and it is submitted that the answering Defendants belong to a respectable family and are law abiding citizens of Pakistan and they even cannot think about the alleged illegal act and Defendant No.6 lodged a false report with mala fide intention just to blackmail, harass and pressurize the answering Defendants to usurp the property in suit, on the contrary the Defendant No.6 has taken the illegal possession from the Defendants Nos.2 and 3 with the help of police in 1998 which was restored by the aforesaid order of the Hon'ble High Court as the answering Defendants are in possession of the property in dispute since its purchase.
18. The, Defendants Nos.2 and 3 admitted the contents of para- I 1 'of the plaint and have stated in the written statement that the Defendants Nos.2 and 3 are the legal owners of the property in dispute and they applied for mutation of the property in suit in their names and they observed all the legal formalities in this respect but the Defendant No.6 with mala fide intention and ulterior motives refused to mutate the property in the names of the Defendants. It is further stated that Power of Attorney in favour of the Defendant No.1 and the Sale Deed in the name the Defendants Nos.2 and 3 are duly registered with office of Sub-Registrar, Karachi after observing all the legal formalities. It is further stated that the Power of Attorney is genuine and legal document which is duly registered according, to law after observing all the legal formalities and so far as the Death Certificate of Mrs. Akhtar Amanullah is concerned, it is submitted that the certificate referred by the Plaintiff is forged and fake document, no such entry in respect of death of Mrs. Akhtar Amanullah is available in the record of Birth and Death Registration Section. It is further submitted that it is not a legal requirement to mention the NIC number, Power of Attorney was duly executed between the parties and is registered accordingly.
19. The, Defendants Nos.2 and 3 denied the contents of paras-14, 15 and 16 of the plaint and have stated in the written statement that Mrs. Akhtar Amanullah has never executed Conveyance Deed in favour of the Plaintiff. It is further submitted that after verification the Sale Deed in favour of the Defendants Nos.2 and 3 was executed and registered with the office of Sub-Registrar in the names of answering defendants and there is no legal requirement to mention the NIC number in the document and the Power of Attorney and Sale Deed are legal and genuine documents. It is stated that Defendant No.6 in collusion with the Plaintiff with mala fide intention and ulterior motive to usurp the property in favour of answering defendants and Defendant No.6 lodged a false report with the police just to blackmail and pressurize the answering defendants. It is further stated that the answering defendants are the lawful owners of the property in suit and the Defendant No.6 has no right and locus standi to lodge any report against the answering defendants.
20. The, Defendants Nos.2 and 3 have denied the contents of paras 21, 22, 23, 24, 25, 26, 27, 28, 29 and 30 of the plaint. It is stated in the written statement that the Plaintiff has no concern, right or title over the property in suit, therefore, he was not made a party to the proceedings and the registered Sale Deed is false, fabricated hence of no legal effect and no such Sale Deed was even executed between Mrs. Akhtar Amanullah and the Plaintiff. The Sale Deed executed between Mrs. Akhtar Amanullah and answering defendants are legal and the Sale Deed dated 14.5.1979 is fake and has no legal effect, but the Sale Deed executed in favour of the answering Defendants is genuine and has legal force. It is further submitted that the Power of Attorney dated 29.10.1997 and Sale Deed dated 26.12.1997 are genuine and legal documents and the Plaintiff has no right or title over the property in dispute and the answering Defendants are lawful owners of the suit property as they are in physical possession and occupation of the suit property and the Plaintiff has no legal right or title for , delivery of possession of the said property as well as no right for injunction against the answering defendants and not entitled for the relief claimed for.
21. Upon pleadings of the parties 10 issues were framed by the Court vide order dated 12.11.2001, which are as follows:-
1. Whether the Plaintiff Iraqi Government had purchased the suit property from Mrs. Akhtar Amanullah vide registered sale deed dated 14.5.1979?
2. Whether the registered power of attorney dated 29.10.1997 purportedly from Mrs. Akhtar Amanullah in the name of Defendant No.1/Deedar Hussain is a false, fabricated and forged document?
3. What is the legal effect/validity of the registered sale deed dated 26.12.1997 in respect of the suit property executed by Defendant No.1/Deedar Hussain as attorney under the said power of attorney dated 29.10.1997 in favour of Defendants Nos.2 and 3?
4. Whether the Defendants Nos.1 to 5 were jontly or severally involved in criminal/fraudulent act/commission/omissions in the execution of the registered power of attorney dated 29.10.1997 in the name of Defendant No.1/Deedar Hussain and in the execution of the registered sale deed dated 26.12.1997 in respect of, the suit property in favour of the Defendants Nos.2 and 3?
5, What are the rights created at different times, if any, under the two registered sale deeds dated 14.5.1979 and dated 26.12.1997 in terms of priority and in context to each other?
6. Whether the Plaintiff/Iraqi Government is entitled to the cancellation of the two instrument i.e. the registered power of attorney dated 29.10.1997 and the registered sale deed dated '26.12.1997 and declaration of title/delivery of possession of the suit property?
7. Whether the Plaintiff/Iraqi Government is entitled to grant of mesne profit as prayed jointly or severally from Defendants Nos.1 to 3?
8. Whether the suit property stands mutated in the record of DHA in favour of Consulate General of the Republic of Iraq?
9. Whether the DHA removed the encroachers from the suit property and handed over the same to the police, if so, what is the effect?
10. What should the decree be?
22. Plaintiff, the Government of Iraq, filed its affidavit-in-evidence on 16.11.2002 through PW-1 Mr. Abdul Razzak R. A. Rasheed Al-Kabbi who was posted as "Attache" in the Iraqi Consulate, Karachi who produced the exhibits 'P/1' to 'P/36' along with the same. The Plaintiff - maintained the same facts in the affidavit in evidence as asserted in plaint. He produced affidavit-in-evidence as Exhibit P/1, Authorization from Iraqi Consulate as exhibit 'P/2', Iraqi Government's Letter dated 14.09.1999 to Pakistan Government as exhibit 'P/3', Pakistan Government's reply dated 27.-09.1999 to the Iraqi Government as exhibit 'P/3', Registered Sale Deed dated 14.5.1979 between Mrs. Akhtar Amanullah and Iraqi Government as exhibit 'P/4', Registered Form "B" dated 18.3.1979 between DHA and Mrs. Akhtar Amanullah as exhibit 'P/5', and Iraq Government's Letter dated 22.3.1979 to the Sindh Government as exhibit 'P/6'. He has also produced Extract of the Public Notice in the daily .'DAWN' of 30.03.1979 as exhibit 'P/7', Messrs.
OPR Dignam & Co., Advocates' letter dated 19.09.1979 to DHA as exhibit 'P/8', DHA's Mutation Certificate dated 17.12.1979 issued to Iraqi government as exhibit 'P/9', Messrs Isani and Associates Legal Consultant's letter dated 01.08.1989 to Clifton Cantonment Board, Karachi as exhibit 'P/10', Clifton Cantonment Board's reply dated 08.11.1989 to Messrs Isani and Associates as exhibit 'P/11', Phone Bill of October, 1997 as exhibit 'P/12, Phone Bill of January, 1998 as exhibit 'P/13', Phone Bill of March 1998 as exhibit 'P/14', Electric Bill of October 1997 as exhibit 'P/15', Electric Bill of January 1998 as exhibit 'P/16', Electric Bill of Feb. 1998 as exhibit 'P/17' Electric Bill of March 1998 as exhibit 'P/18', Electric Bill of April 1998 as exhibit 'P/19', DHA Resident Association's letter dated 10.10.1997 to DHA as exhibit 'P/20', FIR dated 13.11.1997 registered by DHA as exhibit 'P/21'. DHA's letter dated 21.11.1997 to Iraqi Government as exhibit 'P/22', Messrs. Murad Jala and Aughan's application dated 18.2.1998 to DHA as exhibit 'P/23', Certified copy of registered Sale. Deed dated 26.12.1997 as exhibit 'P/24', Photocopy of Power of Attorney dated 29.10.1997 as exhibit 'P/25', Copy of Death Certificate of Mrs. Akhtar Amanullah issued to her husband Mr. Amanullah Sardar as exhibit 'P/26', Duplicate copy of Death Certificate of Mrs. Akhtar Amanullah issued to the Iraq Government as exhibit 'P/27', Registered Sale Deed dated 06.7.1985 between Mrs. Akhtar Amanullah and Mrs. Tanveer Soomro as exhibit 'P/28', DHA's FIR dated 18.12.1998 against Messrs. Murad Jalal as exhibit 'P/29', DHA's Letter dated 26.2.1998 to Police as exhibit 'P/30', DHA's Letter dated 26.3.1998 to the Local Administration as exhibit 'P/31', Iraqi Government's Letter dated 01.4.1998 to Pakistan Ministry of Foreigh Affairs as exhibit 'P/32', Handing Over/Taking Over Certificate dated 29.5.1998 between DHA and Police as exhibit 'P/33', Search Certificate dated 14.09.1999 issued, by Sub-Registrar, Central Records, Karachi as exhibit 'P/34', Search Certificate dated 05.10.1999 issued by Sub-Registrar, Defence, Karachi as exhibit P/35 and Search Certificate dated 30.6.1999 issued Sub-Registrar, Defence Karachi as exhibit 'P/36'.
23. The Plaintiff was cross-examined by Mr. Ashiq Ali Anwar Rana, learned counsel for the Defendants Nos:2 and 3, wherein he has stated that; "I was not in Pakistan when the suit was filed. I know the contents of Plaint. Vol. says whatever I have seen in my record I know that. It is correct that neither I have signed plaint nor any affidavit at the time of filing of the case as I was not posted at Karachi. I see Ex.P/4, it does not bear stamps. It is incorrect to suggest that P/4 is forged document and Mrs. Akhtar Amanullah has never executed it in favour of Plaintiff It is correct that Defendant Murad Jalal applied for mutation of suit property in his favour before Defendant No.6 DHA but they refused saying that suit Property is already in the name of Plaintiff i.e. Iraq Government and DHA Defendant No.6 have mixed up in order to get the property in suit mutated in favour of the Plaintiff. It is correct that Defendant Nos.2 and 3 are in possession of suit Property illegally since December 1997. In 1991 residence and office of Iraq Consulate were closed, some items were sent for sale and some items remained in the Building of the suit property. After locking the residence and the office both were handed over to the Government of Pakistan. It is incorrect that Ex. P/20 is forged document. I see Ex. P/25 it is illegal Power of Attorney. Mrs. Akhtar Amanullah died on 30.08.1989. I see Ex. P-26 and P-27 and say that both are not forged documents. In' my opinion NIC number is necessary in all documents executed by anyone." In general the testimony of the plaintiff remained undertaken in the cross-examination.
24. The Plaintiff also examined one Rizwan Wahid, the son of Mrs. Akhtar Amanullah, as PW/2, who has filed his affidavit-in-evidence. In examination in chief he has stated that "My mother died on 30th August 1989. Her name was Mrs. Akhtar Amanullah. It is correct that House No.12/A/1, 3rd Gizri Road, Phase-IV, DHA was transferred and mutated in my name and in the name of my sisters Mrs. Norain Azam, Mrs. Naznin Asif Ali and in the name of my father Mr. Amanullah Sardar jointly. It is correct that my mother sold House No.12-J/1, Gizri Avenue, DHA, Karachi during her life time to Mrs. Tanweer Soomro. It is correct that mutation was effected in my name and in the name of my sisters and father in respect of House No.12/A/1, 3rd Gizri Road, Phase IV, DHA, Karachi." The examination in chief of PW/2 remained unrebutted as none of the Defendants cross-examined him.
25. The Plaintiff also examined PW/3 Muhammad Mehmood Alam K.M.C. employee (Sub-Registrar), who filed affidavit-in-evidence, who in his examination-in-chief about the death certificate and duplicate thereof of Mrs. Akhtar Amanullah has stated that; "I see P/26 and P/27. Both Certificates were issued from our Office i.e. KMC. I have brought Register and it is entered in Register on Serial No.1764 Page 112, Register No.10, Mrs. Akhtar Amanullah died as per record on 30.08.1989."
26. In his cross-examination PW/3 categorically stated that; "I am Sub-Registrar in KMC. It is my duty to enter births and deaths in Register maintained by KMC. Ex. P/26 and P/27 are not in my hand-writing. I do not know who made these entries and when it was made. Ex.P/27 is record copy of death of Mrs. Akhtar Amanullah. I see letter dated 29.10.1998 No.595/98. It is bogus letter and not issued from my office. It is incorrect that entry made in our Register is false." The examination-in- chief of PW/3 mostly remained un-Wavered in the cross-examination.
27. Thereafter, the Plaintiff produced Sub-Registrar, Central Record, City Court as PW/4, who in his Examination in Chief 'categorically stated that; "It is correct that Ex.P/4 is registered document and is registered in Book I Add. Vol.1919 Pages 125 to 131 dated 14.5.1979 as per. Registration No.3823. It is correct that duty was exempted by Revenue Board vide Notification No.41-PB-79, Sindh-Bud-I dated 23.04.1979 in respect of Sale Deed Ex. P/4, Ex. P/5 is registered document and is entered in Book-I Addl. Vol. 1890 as per Registration. No.2343 dated 19.03.1979. I see P/34. It was issued from our office on 14 September 1999." He in his cross-examination could not be wavered from his stance and nothing material came out from him by the cross.
28. Thereafter, the Plaintiff examined one Shamem Ahmed Malik, A.O. Retired Officer, Transfer and Reads HAD as PW/6, who in his Examination in Chief categorically stated that; "It is correct that Ex.P/5 form B lease was executed between Mrs. Akhtar Amanullah and Defence. Housing Authority.
It is correct that Ex. P/8 sent by Mrs. Orr Dignam & Co. Advocates was received by Defence Housing Authority and in reply of this letter mutation was issued as per Ex. P/9 in favour of Plaintiff.
It is correct that Ex. P/20 was sent by President 4th Gizri Street Residents Association and was received by us on 14.10.1997. It is correct that Ex. P/21 was sent by us to SHO Gizri andit is also correct that we sent letter Ex.P/22 to The Embassy, Government of Iraq, Islamabad. It is correct that Ex. P/23 is on our record in original. It is correct that Ex. P/29 is original letter addressed to SHO for FIR. It is also correct that Ex. P/30 was sent to SHO PS D.H.A. It is correct that Ex.P/33 was executed for handing over and taking over Certificate which is on my record. It was between Police and DNA. It is correct that Plaintiff are the owner of the suit property as per our record and mutation letter is dated 17.12.1979."
29. Thereafter, the PW/6 was cross-examined by the counsel for the defendants Nos.2 and 3 wherein he could not be wavered from his stance in examination-in-chief.
30. Muhammad Qayyum Ansari was also examined as PW/7 and in his examination in chief he has stated that Ex. P/9 is not on our record and I have no knowledge that against whom F.I.A. conducted inquiry under letter dated 31.07.1997 but reply was sent on 02.08.1997. He was also cross-examined by the learned counsel for the Defendants Nos.2 and 3 wherein he has stated that: No written order was given to me to give evidence by Dy. M.E.O. verbally told me to appear as witness in this case.
It is correct that on 27.01.1998 letter was issued to Defendants Nos.2 and 3 in respect of mutation in the name of Defendants Nos.2 and 3 from my office i.e. M.E.O. Office. It is correct that on the application of Defendant 2 mutation was issued."
31. Lastly Plaintiff produced Sub-Registrar, Agricultural Land East, Karachi as PW/8, who in his Examination in Chief categorically stated that: "It is correct that P/25 was registered in our office in favour of Deedar Hussain son of Dildar Khan Defendant No.1 executed by Mrs. Akhtar Amanullah wife of Amanullah Sardar. It is correct that N.I. C. Number is not given on Ex.P/25 bearing N.I. C.
No.520-52-269101. It is correct that address of witness on P/25 are not mentioned. No date is given on P/25. This Ex. P/25 was not executed by me. Shahid Raza Shah, Sub-Registrar has executed Ex.P/25 on 29.10.1997. I have no knowledge if he is still in service."
Murad Jalal son of Jalal, who is Defendant No.2 in the instant suit, also filed affidavit-in-evidence duly signed by him wherein he reiterated the contents of the written statement filed by him and Defendant No.3 and in Examination-in-Chief he has produced certain documents as exhibits D/1 to D/17. Learned counsel for the Plaintiff cross-examined the Defendant No.1 at length.
"I am receiving Electric and Gas Bills in respect of suit Property. Gas Bills in the name of Mrs. Akhtar Amanullah and Electric Bills in the name of Plaintiff. I am paying both Bills. I will produce paid Bills on next date."
I produce Electric paid bill for the month of February 2004 Ex.D/18 and Gas paid Bills for the month of February and payment receipt of Gas as Ex. D/20. I had paid money against all Bill and not paid by Iraq Government.
"It is correct that Advance Rs. five lac was paid in cash. Ex.D/1 was executed in my office at Lyari.
Deedar Hussain has not issued any receipt of Rupees five lac Advance. It is incorrect to suggest that I have no proof for withdrawal of Rs.5 lac from Bank but I have withdrawn from Bank. It is correct that there is no mention of Rs.5 Lac Advance paid in Sale Deed Ex. D/5."
"Deedar handed over documents in original which I produce (photo copies) as Ex. D/21 to D/24, Rs.45000/- Balance was paid before Registrar. Rs.15 lac approximately were to be paid by me as per Para 6 of Ex. D/1 outstanding against the Property in respect of Electric, Gas and Cantonment dues, Transfer fees, M.E.O., D.H.A. were included in this payments. Document Ex. D/5 para 7 says that these dues were to be cleared by. the Seller but it is not correct. The Cantonment Board mutated the property in my name after payment of past arrears and transferred the balance in my name."
"I have not received any receipt of Rs.4500000/- Forty Five lac from Deedar Hussain.I do not remember the Bank from where I have withdrawn Rs.45 lac. It is incorrect to suggest that I was in knowledge that Government of Iraq is owner of suit property on the record of D.H.A. prior to filing of C.P. No.1286/1998 which was filed on 29.8.1998."
32. Mr. Abdul Sattar Awan, learned counsel for the Plaintiff while, arguing this case has mainly relied upon the contents of plaint and the depositions of PW/1 to PW/7 and has inter alia contended that; The CNIC number of the executant was not mentioned on the Power of Attorney dated 29.10.1997 in favour of the defendant No.1, therefore, the Power of Attorney is forged, manipulated and fabricated one.
Mrs. Akhtar Amanulllah died on 30.08.1989, therefore, she could not have executed Power of Attorney on 29.10.1997, which admittedly is a fabricated document. He relied on the deposition of P.W-3 wherein he has endorsed Exhibits P/26 and P/27 the death certificate and its duplicate and stated on Oath that Mrs. Akhtar Amanullah died on 30.08.1989.
Therefore, the Sale Deed executed on 26.12.1997 on the basis of forged Power of Attorney dated 29.10.1997 is a forged and manipulated document, which is liable to be cancelled along with Power of Attorney dated 29.10.1997.
The address of the house mentioned in the Power of Attorney was sold out by Mrs. Akhtar Amanullah during her lifetime i.e. on 06.07.1985 to one Tanveer Soomro, therefore, the question of mentioning the address of that house in Power of Attonrney does not arise at all.
The death certificate issued by the Municipal Corporation categorically states that Mrs. Akhtar Amanullah died on 30.08.1989, therefore, the question of her executing the aforesaid Power of Attorney does not arise at all and the same is a forged, manipulated and bogus document.
Mutation in the name of the Plaintiff was effected in the record of Defendant No.6 pursuant to and on the basis of the Sale Deed dated 14.05.1979, executed between the Plaintiff and the said Mrs.Akhtar Amanullah and vide mutation certificate dated 17.12.1979 defendant No.6 mutated the suit property in the name of the Plaintiff.
In the Sale Deed dated 26.12.1997 there is no proof. of payment mentioned and it is merely stated that the payment was made in cash. The Defendants Nos.2 and 3 have also not been able to prove any money changing hands.
The Defendants Nos.2 and 3 state in their written statement that the B lease in respect of the suit property has been lost, whereas it is lying with the Plaintiff. In cross-examination the Defendant No.2 admitted that Form-B lease was lost but no FIR was ever registered for its misplacement.
The Defendant No.2 in his cross examination has admitted that electric bills in respect of the suit property are being received by him in the name of Iraqi Government the Plaintiff. He produced electric bills in the name of Plaintiff as Exhibit P/18, Consulate General of Iraq.
That, when the Gulf war broke out in the year 1990-91, the suit property was vacated by the then Consul General who was posted at Karachi by the Government of Iraq and therefore no other Consul General was posted. The Defendants findings the suit property lying vacant, illegally occupied it, but when resident of IV the Gizri Street Resident's Association reported the matter to the Defendant No.6 D.H.A., the Defendant No.6 in order to protect the interest of the Plaintiff took-over possession of the suit property and posted police guards thereon. However, the Defendants Nos.2 and 3 got their possession in respect of the suit property restored in C. P No . D-1286/1998 on 08.02.1999.
At the end of his arguments the learned counsel has submitted that on the basis of material evidence available on record the suit should be decreed as prayed along with cost of the suit.
33. While addressing the Court the learned counsel for the Defendants Nos.2 and 3 Mr. Ashiq Ali Rana has mainly relied upon the contents of the written statement filed by the said Defendants and the legal and factual pleas taken by them therein. Briefly arguing on behalf of the Defendants Nos.2 and 3, the learned counsel Mr. Ashiq Ali Rana has inter alia submitted that the Defendants Nos.2 and 3 have purchased the property in suit from the duly constituted attorney of Mrs. Akhtar Amanullah vide Sale Deed dated 26.12.1997. The Original "B" Lease in respect of the property in question has been lost.
34. The Plaintiff has not come to this Court with clean hands. Mrs. Akhtar Amanullah was alive at the time of execution of the Power of Attorney on 29.10.1997 and Sale Deed dated 26.12.1997 the Plaintiff and the Defendant No.6 are in league with each other and want to usurp the property of the Defendants Nos.2 and 3. The mutation is a manipulated and forged document in favour of the Plaintiff issued by the Defendant No.6.
35. The learned counsel has further submitted that ever since its purchase, the suit property has throughout been in the residence and actual physical possession of the Defendants Nos.2 and 3.
The Defendants Nos.2 and 3 were dispossessed by the Defendant No.6, however, the possession was restored by this Court in C.P. No.D-1286/1998 on 08.02.1999. He further contends that the bills and other documents filed by the Plaintiff are manipulated and false. He contends that Mrs. Akhtar Amanullah never executed the Sale Deed in favour of the Plaintiff and the Plaintiff has no right, title and/or interest in the suit property, therefore, the Plaintiff is not entitled for any relief claimed in the suit, which is liable to be dismissed. The learned counsel has also relied upon the deposition of the witnesses of the Defendants.
36. 1 have heard the arguments of the learned counsel for the parties at length, perused the pleadings of the parties and carefully examined the evidence available on the record of the case with the able assistance of the learned counsel for the parties after which my findings on the issues in this suit are as under:- ISSUE No. 1.
Whether the plaintiff Iraqi Government had purchased the suit property from Mrs. Akhtar Amanullah vide registered Sale Deed dated 14.05.1979?
37. It is claimed by the plaintiff in the plaint and its witness P/W-1 in the evidence that the plaintiffpurchased the suit property from Mrs. Akhtar Amanullah vide registered Sale Deed dated 14.05.1979 which has been produced by the witness of the plaintiff as Exhibit P/4 whereafter the plaintiff got the mutation effected in its . name on the basis of the said Sale Deed with the defendant No..6 DHA vide mutation Certificate dated 17.12.1979, which has been produced by the witness of the plaintiff as Exhibit P/9. The witness appearing for the defendant No.6 as P/W-6 has also categorically stated in his examination-in-chief that the aforesaid mutation order dated 17.12.1979 Exhibit P/9 is a genuine document which has been issued by the defendant No.6 at the request of the plaintiff and that the plaintiff is the owner of the suit property as per our record and the said mutation letter. The statement of the said witness remained unw.avered in cross- examination. The P/W-4 who is Sub-Registrar Central Record, City Court, Karachi has also stated in his examination-in-chief that the Sale Deed Dated 14.05.1979 Exhibit P/4 is registered document. It is an admitted position that Exhibit P/4 is a registered document which gill holds the field and on the basis of which the suit property has been mutated in the name of the plaintiff. The witnesses appearing for P/W-6, Pakistan Defence Officers Housing Authority and P/W-4, the Sub-Registrar Central Record, Karachi have endorsed the veracity of the aforesaid Sale Deed. The plaintiff has been successfully able to discharge its burden with regard to the aforesaid Sale Deed by leading comprehensive evidence to prove that the plaintiff, Iraqi Government had purchased the suit property from Mrs. Akhtar Amanullah vide Registered. Sale Deed dated 14.05.1979 and the property stands mutated in the name of Iraqi Government in the DHA. In paragraph-6 of the affidavit-in- evidence the defendant No.1 has stated that "It is further stated that the copy of Sale Deed filed by the plaintiff is forged, manipulated and has no legal effect". It is settled principle of law that registered document has sanctity attached to it and very strong evidence is required to cast aspersion to its genuineness as per the law laid down by the Hon'ble Supreme Court in Mirza Muhammad Sharif and 2 others v. Mst. Nawab Bibi and 4 others (1993 SCMR 462). The defendant No.1 has not been able to bring on record even a single document or any other evidence to prove that the Sale Deed dated 14.05.1979 in favour of the plaintiff is either forged, or fictitious or a manipulated document mere assertion in the affidavit-in-evidence that the Sale Deed in favour of the plaintiff is forged and fictitious and thereafter not proving such a serious allegation on the title of the plaintiff by leading strong evidence at the time of his examination in Court would not per se lead to a conclusion that its veracity was doubtful. The defendant No.1 has not said a word in his examination-in-chief or his cross-examination challenging the genuineness of the said Sale Deed in favour of the plaintiff, and, therefore, the defendant No.1 has failed to discharge his burden to prove that the Sale Deed in favour of the plaintiff is invalid, on the contrary, the plaintiff has successfully discharged its burden with regard to proving Issue No.1 by adducing exhaustive evidence to the effect that the plaintiff, Iraqi Government purchased the suit property from Mrs. Akhtar Amanullah vide registered Sale Deed dated 14.05.1979. The presumption as to genuineness, correctness and authenticity of a registered document under Articles 5(5) and 129(e) of the Qanun-e-Shahadat Order, 1984 is not dispelled by oral assertion which was not sufficient to rebut registered document produced by the plaintiff in proof of its title in respect of the suit property.
Strong evidence is required to cast aspersion on its genuineness presumption of truth is attached to documents that are registered under the Registration Act, 1908. The defendants had to rebut such presumption at the trial, which the defendants Nos.2 and 3 have hopelessly failed to do.
Reference can be made to the following cases on the aforesaid principle of law enunciated in the foregoing para:-
(i) 2004 MLD 888 [Lahore] Muhammad Iqbal v. Fakhar-ul-Islam
(ii) 1995 CLC 1173 [Lahore] Auqaf Department v. Javed Shuja and others.
(iii) 2004 MLD 963 [Lahore] Sabir Hussain v. Eisa.
(iv) 2000 MLD 281 [Lahore] Muhammad Hussain v. Waheed Ahmed.
(v) 1994 CLC 247 [Karachi] Moinuddin Paracha v. Sirajuddin Paracha.
(vi) PLD 1998 Lahore 137 Muhammad Tufail v. Abdul Aziz.
(vii) 2004 YLR 709 [Lahore] Amirullah Khan v. Muhammad Akram.
(vii) 1995 SCMR 1407 . Tahir Hussain Malik v. Mst. Najma Rail Therefore, this issue is answered in affirmative.
ISSUES Nos. 2 and 3.
2. Whether the Registered Power of Attorney dated 29.10.1997 purportedly from Mrs. Akhtar Amanullah in the name of defendant No.1 Deedar Hussain is a false/fabricated and forged document?
3. What is the legal effect/validity of the registered Sale Deed dated 26.12.1979 in respect of suit property executed by defendant No.1/Deedar Hussain as attorney under the said Power of Attorney dated 29.10.1997?
38. These two issuesare interconnected, therefore, they are being dealt with together at the same time. I will first of all deal with the issue No.1. The plaintiff has disputed the veracity of the registered Power of Attorney and has termed it as forged/false and fabricated inasmuch as at the time of execution of the same the alleged executant was dead. It is stated by the plaintiff in the plaint as well as in the evidence led by the plaintiff that at the time of execution of the purported registered Power of Attorney dated 29.10.1997 the purported executant thereof, Mrs. Akhtar Amanullah was dead inasmuch as she expired on 30.08.1989. The plaintiff in support of its contention has produced the death certificate of Mrs. Akhtar Amanullah along with its affidavit-in-evidence as Exhibit P/26 and its duplicate as P/27, which was issued to the Government of Iraq by the K.M.C. Moreover, P/W- 2 Rizwan Waheed, who was the'son of late Mst. Akhtar Amanullah stated in his examination-in- chief in categorical terms that his mother died on 30.8.1989 and that House No. 12/A/1, 3rd Gizri Road, Phase-IV, DHA, Karach was transferred and mutated in his name and in the name of his sister Mrs. Norain Azam, Mrs. Naznin Asif Ali and in the name of his father Mr. Amanullah Sardar after the death of Mst. Akhtar Amanullah as the same stood in her name at the time of her death on 30.08.1989. He further deposed that Mrs. Akhtar Amanullah sold House No.12-J/2, Gizri Avenue, DHA, Karachi during her life time to Mrs. Tanweer Soomro, according to the plaintiff on 06.07.1985 as per Ex-P/28 the said house was sold out, therefore, the question whether the said Mrs. Akhtar Amanullah was living at that address does not arise at all, which is given in the registered Power of Attorney dated 29.10.1997 as her address. The statement of P/W-2 could not be wavered in the cross-examination by the counsel for the defendants Nos.2 and 3, thereafter, the plaintiff produced the K.M.C. employee who was Incharge of the Birth and Death Register as Sub-Registrar in K.M.C. as P/W-3. He categorically stated in the examination-in-chief that both certificates Exhibits P/26 and P/27 have been issued from the K.M.C. and that Mrs. Akhtar Amanullah died on 30.08.1989 as per record maintained by K.M.C. and the said Exhibits. The said P/W-3 remained unwavered in his cross-examination by the counsel for the defendants Nos.2 and 3. Therefore, there is no cavil with regard to the fact that when the alleged Power of Attorney dated 29.10.1997 was purportedly executed and registered by the Sub-Registrar concerned, the defendant No.5, its executant was dead. The said Power of Attorney admittedly bore forged' signatures of Mrs. Akhtar Amanullah, who never appeared before the defendant No.5 to execute the same. The NIC card and NIC number of Mrs. Akhtar Amanullah is also missing on the said Power of Attorney, which makes it more dubious.
Mrs. Akhtar Amanullah was not a resident of the address mentioned in the Power of Attorney inasmuch as she sold that house in 1985. Therefore this issue No.2 is also answered in affirmative, and it is held that the registered Power of Attorney dated 29.10.1997 is a forged, fabricated and manipulated document and is liable to be cancelled and delivered up in Court.
39. Taking up now Issue No.3, it should be made clear that since the Power of Attorney dated 29.10.1997 has been held to be forged, fabricated and manipulated document while answering the foregoing Issue No.2, consequently, all other documents, including but not limited to the Registered Sale Deed dated 26.12.1997 which have been executed on the basis of the same are also invalid and of no legal effect. Moreover, there is a false statement in the aforesaid Sale Deed, which is executed through bogus Attorney of Mrs. Akhtar Amanullah that the "Executant is alive" whereas it is proved by evidence available on record of the case that said Mrs. Akhtar Amanullah died on 30.08.1989, therefore, I hold that the Sale Deed dated 26.12.1997 is a forged, fabricated and bogus document, which is D void ab initio, invalid and of no legal effect, and as such the same is liable to be cancelled and delivered up in Court. These two Issues are answered accordingly.
ISSUE No.4 Whether the defendants Nos.1 to 5 were jointly or severally involved in criminal/fraudulent act/commission/omissionin the execution of the registered Power of Attorney dated 29.10.1997 the name of defendant No.1/Deedar Hussain and in the execution of registered Sale Deed dated 26.12.1997 in respect of the suit property in favour of the defendants Nos:2 and 3?
40. The plaintiff has asserted in the plaint as well as in the evidence that Mrs. Akhtar Amanullah expired on 30.08.1989 then the question of her appearing before the defendant No.5 on 29.10.1997 for execution of the Power of Attorney does not arise at all, therefore, it is an admitted position in the light of the evidence available on record of. the case that the defendant No.5, in furtherance of common criminal intention with the defendants Nos.1, 2 and 3 intentionally committed fraudulent criminal act of execution of the aforesaid Power of Attorney in favour of the defendant No.1 and consequent thereto executed another forged document i.e. the registered Sale Deed dated 26.12.1997 in favour of the defendants Nos.2 and 3 on the basis of aforesaid Power of Attorney. The said Sale Deed being forged and sham did not convey any title to the suit property in favour of the defendants Nos.2 and 3. Therefore, Issue No.4 is also answered in affirmative.
ISSUE No.5: What are the rights created at different times, if any under the two registered Sale Deeds dated 14.05.1979 and dated 26.12.1997 in terms of priority and in context to each other?
41. This Issue has already been answered elaborately while answering the Issues Nos.2 and 3 supra wherein it is held that the. registered Sale Deed in favour of the plaintiff dated 14.05.1979 is the prior and valid document which has been produced as Exhibit P/4 to the affidavit-in-evidence by the plaintiff and it is further held that the subsequent registered Sale Deed dated 26.12.1997 is a forged, fabricated and bogus document. However, presumption in favour of a registered document under section. 60 of the Registration Act, 1908 does not dispense with the necessity of showing that person admitting execution before the Registrar was not an imposter but was the same person who was mentioned in the document as executant. It will be, therefore, for the person relying on the document to show that it was in fact executed by the proper person and that he/she had in fact appeared before the Sub-Registrar. As far as the present suit is concerned, the plaintiff has impugned the validity of the Power of Attorney dated 29.10.1997 on the sole ground that at the time of its alleged execution, Mrs.. Akhtar Amanullah was dead as she died on 30.8.1989, therefore, she never appeared to execute the said Power of Attorney in favour of the defendant No.1 Deedar Hussain before the Sub-Registrar concerned. The plaintiff has adduced sufficient evidence to prove its case on this point beyond any doubt. Thereafter the burden shifted upon the defendants Nos.2 and 3 to prove that Mrs. Akhtar Amanullah appeared before the Sub-Registrar to execute the said Power of Attorney, which the defendants Nos.2 and 3 have hopelessly failed to discharge. Meaning thereby that the defendants-N1 was no the duly constituted Attorney of Mrs. Akhtar Amanullah but was posing himself to be her Attorney on the basis of forged, fabricated and manipulated aforesaid Power of Attorney. Therefore, there is no cavil with regard to the fact that the defendant No.1 Deedar Hussain was an imposter at the time of execution of the Sale Deed dated 26.12.1997 in favour of the defendants Nos.2 and 3 inasmuch as the defendant No.1 had no valid authority to execute the same. Reference in this regard can be made to Muhammad Tufail v. Abdul Aziz (PLD 1998 Lah. 137, Muhammad Ali and others v. Sher Muhammad and others (1989 MLD 135).
Muhammad Sher and 2 others v. Muhammad Azim and others (PLD 1977 Lah. 729) and Gopal Das and others v. Sri Thakarji and others (AIR 1943 PC 83). In the first two cases of Pakistan, it was observed as under:- "Learned counsel for the petitioners has, however, contended that since the document was registered instrument, a presumption in favour of its execution by Gahna arose, under section 60 of Registration Act of 1908..This argument of the learned counsel has no merits. As observed by the Privy Council in Gopal Das and another v. Sri Thakarji (AIR 1943 Privy Council 83), section 60 of the Registration Act does not dispense with the necessity of showing that the person admitting execution before the Registrar was not an imposter but the same person 'who was mentioned in the document as the executant."
It is a void ab initio document creating nor rights whatsoever in favour of the defendants Nos.2 and
3. This Issue is answered accordingly.
ISSUE No.6: Whether the plaintiff/Iraqi Government is entitled to the cancellation of the two instruments i.e. registered Power of Attorney dated 29.10.1997 and registered Sale Deed dated 26.12.1997 and declaration of title/delivery of possession of the suit property?
42. The plaintiff has successfully made out a case for cancellation of the two documents namely; the registered Power of Attorney dated 29.10.1997 and registered Sale Deed dated 26.12.1997 the detailed and elaborate reasons for which have been given hereinabove while answering Issues Nos.1, ' 2 and 3 supra. It has, been emphatically argued by the counsel for the plaintiff that the aforesaid two registered documents are forged, fabricated and manipulated documents and have been registered in active connivance of the defendants Nos. 4 and 5 with the defendants Nos.1, 2 and 3. It has been proved by elaborate evidence available on record that the said Mrs. Akhtar Amanullah from whom the plaintiff purchased the suit property through registered Sale Deed Exhibit P/4 on 15.04.1979, died on 30.08.1989, however, in order to devour the property of the plaintiffs, which was lying unattended on account of the war in Iraq, manipulated registered Power of Attorney dated 29.10.1997 and thereafter manipulated the registered Sale Deed dated 26.12.1997.
Consequently, the learned counsel for the plaintiff has argued that the aforesaid two registered documents are liable to be cancelled and delivered up in Court and possession of the suit property may be restored to the plaintiff. I, therefore, answer this Issue in affirmative and hold further that the Iraqi Government is entitled to get the Power of Attorney dated 29.10.1997 and Sale Deed dated 26.12.1997 cancelled and delivered up in Court, the Iraqi Government, the plaintiff herein, is also entitled to a declaration that the title of the suit property vests in the plaintiff and, therefore, the possession of the suit property should be delivered immediately to the plaintiff after getting vacated from the defendants Nos.2 and 3 and/or whoever is found in possession thereof.
ISSUE No.7: Whether the Iraqi Government is entitled to grant of mesne profit as prayed jointly and severally from defendants Nos.1 to 3?
43. The plaintiff has claimed in the plaint and in the evidence that defendants Nos.1 to 3 have forged a Power of Attorney dated 29.-10.1997 and by putting bogus signatures of the executant namely; Mrs. Akhtar Amanullah, got the same registered with active connivance of the defendant No.5, the Sub-Registrar T-Division II-A Defence Area, Karachi whereas the said executant had already expired. on 30.08.1989, which fact has been proved by the plaintiff by leading elaborate evidence which has been observed herabove while, answering Issues Nos.2 and 3 supra.
Thereafter, the defendant No.1 executed the Sale Deed in favour of the defendants Nos.2 and 3 acting as Attorney of Mrs. Akhtar Amanullah on 26.12.1997, and eversince then the defendants No.2 and 3 are in illegal possession of the suit property on the basis of aforesaid forged, fabricated and manipulated documents causing huge financial losses to the plaintiff on account of illegal possession of the suit property. I, therefore, hold that the plaintiff is entitled to be granted mesne profits which the plaintiff is entitled to receive/recover from the defendants Nos.1, 2 and 3 jointly and severally in accordance with para(b) of the prayer clause. This Issue is, therefore, answered in affirmative.
ISSUE No.8: Whether the suit property stands mutated in the record of D.H.A. in favour of Consulate Geenral of Republic of Itaq?
44. It is claimed by the plaintiff in the plaint that the suit property was purchased by the Government of Iraq on 15.04.1979 from Mrs. Akhtar Amanullah through a registered Sale Deed, which the witness of the plaintiff P/W-1 has produced as Exhibit P/4 in his examination-in-chief. The said PW-1 has also produced mutation order/certificate dated 17.12.1979 issued to the Government of Iraq by the defendant No.6, D.H.A. as Exhibit P/9. The witness appearing for the defendant No.6, D.H.A. i.e. P/W-6 has also endorsed the veracity of Exhibit P/9 and has stated in his examination-in- chief that the same has been issued from the office of the defendant No.6 to the Government of Iraq. Therefore, Issue No.8 is also answered in affirmative and it is declared that the suit property stands mutated in the name and in favour of the Government of Iraq by virtue of Mutation Certificate dated 17.12.1979 Exhibit P/9 and with effect from the said date.
ISSUE No.9: Whether the D.H.A. removed the encroachers from the suit property and handed over the same to the Police, if so, what is the effect?
45. The plaintiff has contended in the plaint as well as in the evidence that the Gulf war in February/March 1991 resulted in temporary closure of the plaintiff's Karachi Consulate and since then there has not been any Consul General posted at Karachi. The suit property though was not occupied by any one, but its ownership and constructive possession/control remained with the plaintiff. The defendant No.6 received a complaint from the President of the Gizri Street, President Association D.H.A. Karachi on 10.10.1997 intimating some unknown persons were dismantling the suit property by removing the furnishing, windows, grills, fittings etc. and that they might forcibly occupy the place. .The defendant No.6 in order to protect the suit property, posted some guards thereon, however, on 12.11.1997 six employees of the defendant No.6 were attacked by 10-15 men armed with automatic weapons and forcibly entered the suit property. The defendant No.6 lodged FIR on 13.11.1997 with Gizri Police Station,Defence Housing Authority, Karachi reporting the incident to the Police. The security of the suit property was handed over on 29.05.1998 by the defendant No.6 to the security company of Police through SSP (South), Karachi. The defendants Nos.2 and 3 filed a Constitutional Petition No.1286/1998 wherein this Court restored possession of the defendants Nos.2 and 3 in respect of the suit property. The D.H.A. defendant No.6, herein performed its statutory duty under its Rules and Regulations by handing over the suit property to the Police in order to protect it from being encroached upon by the intruders. The defendant No.6 D.H.A. had rightly removed the encroachers from the suit property in the light of evidence recorded in this suit. The PW/6 appearing on behalf of the Defendant No.6 has also endorsed the aforesaid facts in his examination in chief as well as in his cross-examination. The PW/6 has in fact, deposed totally in favour of the Plaintiff and has fully endorsed the version of the Plaintiff as stated in the plaint: He has stated that after retrieving the possession from the Defendant Nos.2 and 3 the Defendant No.6 handed it over to the Police Security Company through SSP (South) in order to protect it from illegal encroachment. This Issue is answered accordingly.
ISSUE No.10 What should the decree be?
47. It is settled principle of law that the provisions of section 39 of the Specific Relief Act 1877 make it clear that three conditions are requisite for the exercise of the jurisdiction to cancel an instrument;
(1) the instrument is void or voidable against the Plaintiff; (2) Plaintiff may reasonably apprehend. serious injury by the instrument being left outstanding; (3) in the circumstances of the case the Court considers it proper to grant this relief of preventive justice.The remedy under section 39 of the Specific Relief Act is to remove a cloud upon the title; by removing a potential danger but it does not envisage an adjudication between competing titles. It is only in such cases that it can be said there is a cloud on the title of the Plaintiff and an apprehension that if the instrument left outstanding it may be a source of danger.
48. Where the deed or instrument is void ab initio, null and void, it can be treated as a nullity without having to be cancelled or set aside. However, on the other hand if the instrument is only voidable, then it would be necessary to have it set aside or cancelled in order to remove the impediment in the way of the Plaintiff.
49. The relief as to cancellation of an instrument is based upon the administration of the preventive justice for the fear that the instrument may be vexatiously or injuriously used by the defendants against the plaintiff when the evidence to impeach it may be lost or that it may through a cloud or suspicion cast a shadow of doubt over his title or interest, section 39 is based upon the same principle. Section 39 of the Specific Relief Act 1877 is reproduced here for the sake of brevity: "39. Any person against whom a written instrument is void or voidable, who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable; and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. If the instrument has been registered under the Registration Act, 1908], the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation."
50. Reference can be made to the following case law on the aforesaid principle of law enunciated in the forgoing para:- i) AIR 1915 Calcutta 423 (Rahimunnisa Bibi v. Sheikh Mansik Jan) ii) AIR 1923 Madras 108 (Ranganatha Rao v. Rama Pandithar) iii) AIR 1938 Bombay 37 (Jeka Dula v. Bai Jivi) iv) AIR 1960 Madras 1 (Muppudathi v. Krishna Swami) v) HD 1976 SC 44 (Hamida.Begum v. Murad Begum)
51. It is an admitted position that every Sub-Registrar's Office regularly maintains a complete record of documents registered at his office relating to immovable properties under section 50 of the Registration Act, 1908 on the basis of which the Sub- Registrarissues search certificates mentioning therein the current status of an immovable property and the documents registered in respect thereof from time to time. In the present case, it is astonishing to note that when the defendant No.5 was well aware of the execution of Sale Deed dated 14.5.1979 between the plaintiff and Mrs. Akhtar Amanullah in respect of the suit property which was very much part of his record, how did he venture to execute the General Power of Attorney dated 29.10.1997, and thereafter the Sale Deed dated 26.12.1997, both in respect of the suit property, when the said Mrs. Akhtar Amanullah had already expired on 30.08.1989 as per the evidence available on record as Exhs P/26 and P/27 and never appeared before the defendant No.5. Therefore, there is no cavil with regard to the fact that both the aforesaid documents are forged, fabricated and manipulated creating no proprietary rights in favour of the defendants Nos.2 and 3 and are liable to be cancelled and delivered up in Court.
52. In view of the above discussion of evidence and findings thereon, the suit is decreed as prayed with costs, the registered Power of Attorney dated 29.10.1997 and registered Sale Deed dated 26.12.1997, which was executed on the basis of the said Power of Attorney by the defendant No.1 in favour of the defendants Nos.2 and 3 in respect of suit property i.e. Plot/ House No.F-13, 4th Gizri Street, Phase-IV, Pakistan Defence Officer Housing Authority, Karachi, measuring 2000 square yards are hereby cancelled and ordered to be delivered up in Court by the defendants Nos.1, 2 and 3 within one month of the passing of this Judgment.
53. The office is directed to send a certified copy of this Judgment and Decree to the Sub-Registrar, Defence Authority, Clifton Town-II, Karachi, who shall note on the copy of aforesaid Power of Attorney dated 29.10.1997 and Sale Deed dated 26.12.1997 contained in the books and the relevant record the fact of their cancellation.