MAHMOOD AHMED KHAN, J.---This is a suit for declaration, injunction, possession and cancellation of documents.
2. Abridging but with the required details as per the contents of the plaint, it is contended that the plaintif f is a Cooperative Housing Society formed in the year 1920 and duly registered to provide housing facilities to the Parsi community so that they live together without outside interference with their cultural and religious practices and traditions of their integral social culture. It is further stated that with this object the then eminent Parsi philanthropists, Sir Cowasjee Katrak and Mr. Jamshed Nusserwanjee Mehta along with many others had approached the then Government and request that a piece of land be allotted to the plaintif f society within the Cantonment limits. Accordingly a piece of land admeasuring 96,000 square yards was allotted by the then Government which was bounded by M.A. Jinnah Road on one side and Soldier Bazar Road on the other side vide indenture of lease dated 11-08-1924, registered on 24-09-1924. That according to the said lease sub-letting of the houses without the consent of the plaintif f society was voidable. That the plaintif f society from its own funds built roads, lanes, drains and culverts within the society and also categorized certain, constructions of houses so that the facilities be given to the members of the society for erecting the structures. The plaintif f society allotted the plots of land to its members free of cost so that they could raise structures thereon at nominal costs. That the lease deeds granted to the members of the society inter alia provided that "the leases for himself and his assigns and to the intent that the obligations may continue through the terms hereby created therein as provided". That the plaintif f society allotted different plots of land to its members and each and every member/allottee aware of and has taken the respective plot/property on the express understanding and knowledge that the said plot/property is for the use and occupation of its members who should be Parsi Zoroastrians and the said covenants running with the land are for the benefit of all the members of the plaintif f society who are further bound to abide by the rules and bye-laws of the plaintif f society who are further bound to abide by the rules and bye-laws of the plaintif f society . According to the said bye-laws the principal requirement was that the membership would be restricted to Parsi Zoroastrians only and the plaintif f society had authority to eject membership in appropriate cases. That in the entire of the society .there is a park for recreation of society members and there are two buildings , one of which is the Bhedwar Reading Room and Library , in which social, cultural and religious functions, including the rites for the deceased Parsis are held, while the other building, named, Manijeh Mehta Hall, is used for social, religious and cultural purposes, including the social work done by Parsi ladies for uplift of the status of the Parsi Colony and the Parsi community Katrak Parsi Colony , Jamshed Baug and Naushirwan Naman house a large segment of the Parsi community , who live cohesively and closely , knitted by their own customs, practices and traditions. That according to the said bye-laws and terms and condi tions of the lease deed, a member owing the property in the society shall not sell, convey , lease or transfer the same in any manner and such transaction requires written consent from the Managing Committee of the plaintif f society , except the parsi Zoroastrians who shall have become a member prior to such transaction. That the defendant No,1 had a tenant, Mrs. Khorshed Daruwalla, living in a portion of the said premises, against whom there was pending litigation. At the request of defendant No,1 the plaintif f society obliged him by providing an alternate accommodation to the said tenant so that the said defendant could occupy the whole property . Thereafter the said tenant was given an alternate accommodation to the said tenant so that the said defendant could occupy the whole property . Thereafter the said tenant was given an alternate accommodation in one of the society's properties in Katrak Parsi Colony by the plaintif f society , as at that time the financial position of defendant No,1 was not sound. That after some time rumors become rife that defendant No,1 was contemplating selling his property to a person who could not be a member . The said defenda nt No,1 had participated in the General Body Meeting and was a signatory to the resolution to amend the Bye-laws of the society . That various representations made to defendant No,1 to remind him of his obligations to the society , but all times his attitude was indifferent and ultimately he moved out the property in a very surreptitious manner by removing his furniture in the night without informing the plaintif f Society . That it came to the knowledge of the plaintif f society that a third person, whose identity was not known, wanted to construct a multi-storied building consisting of numerous flats.
The plaintif f society immediately took up the matter with Building Control Authority vide letter dated 11-6-1988.
Karachi Building Control Authority reacted on the said letter and vide their letter dated 12-6-1988 addressed to one Mr. Tamizul Haq Siddiqui, Architect, wherein it was mentioned that the building plans should be forwarded through the Parsi Society . The false front and the misrepresentation made by defendant No,1 who had become a shield to cover up the action of a non-member constructor became exposed and the construction works was shelved. That the plaintif f published an advertisement in daily 'DAWN' by stating that defendant No,1 was contemplating selling the property to third person who cannot become members hence any body purchasing the property would do so at their own risk and cost. That it was obvious that defendant No,1 had realized a large amount of money from the sale of the property bearing No,39, JM-1/38 in Katrak Parsi Colony , Opposite Holy Family Hospital and that he purchased a property in Defence Housing Society and later on sold the same by making a small profit. That it was by an absolute coincidence that the disclosure was made that the property bearing No,39, JM-1/38, Katrak Parsi Colony was sold to Messrs Rahman Associates through Syed Hafeezuddin son of Syed Qutubuddin and Muhammad Anees son of Muhammad Yousuf by defendant No,1 on the basis of an agreement of sale dated 10.01.1987. Thereafter the plaintif f society issued notice to defendant No,1 by registered A.D. post on 11.02.1990 calling upon him to hand over possession of the said property . Again a notice dated 10.6.1992 was sent to defendants Nos,1 and 2 by registered A.D. which was duly received by defendant No,2, while defendants No,1 avoided receiving the notice on one or the other pretext. Finally another legal notice was sent on 17-10-1992 to defendants Nos,1 and 2 by registered post A.D. and courier service, but the same were returned un-served. That the plaintif f society has only granted permission to the earlier owners to construct the property in terms of Bye-laws and the unregistered sub-lease, but in violation of the same constitutes trespass by defendant No,2 has been done in collusion with defendant No,1, hence any transfer by defendant No,1 in favour of defendant No,2 is illegal.
Hence the plaintif f society filed this suit with the following prayers: a) Declaration that the defendant No,1 having no title in property bearing Plot No,39, Survey No, J.M.1/38, Katrak Parsi Colony , Karachi, had no right, title or interest to mortgage or create any interest therein and/or otherwise sell, transfer the same to defendant No,2 and that the so-called sale, transfer . mortgage, encumbrance as could be seen from the agreement of sale dated 10th January , 1987 is void, illegal and of no legal effect. The Honourable Court may be pleased to cancel the sale deed bearing registration No,548 registered with the sub-Registrar 'T'
Division VI-B, Karachi in Book No, I dated 14.11 1994 M.F. Roll No,2010 and issue declaration to the aforesaid Sub-Registrar to effectuate the same as being illegal, void and of no legal existence. The sale deed has been registered in the name of Vendee, Mr. Muhammad Yousuf case of A. Aziz, who has been, impleaded as a defendant.
Declaration and/or mandatory injunction which would lead to the forfeiture of structure and delivery of vacant possession of the property bearing Plot No,39, Survey No, J.M.1/38, Katrak Parsi Colony , Karachi to the plaintif f society and for the purpose of valuation and adjudication of the cost of the structure to appoint a value as may be deemed proper by this Honourable Court. c) Permanent injunction restraining the defendants from further selling, creating third party interests, assigning, transferring, mortgaging, reconstructing or in any manner encumbering the property , using it for residential and/or commercial purposes by any person and defendant No,2. d) Cancellation of the agreement of sale executed by defendant No,1 in favour of defendant No,2 on 10th January 1987 and the Deed of Acknowledgment of Possession and the Power of Attorney that defendant No,1 would have executed in favour of defendant No,2 and/or any registered sale deed that might have taken place by now in violation of the Bye-laws of the plaintif f society and the covenants of the unregiste red sub-lease and to deliver the said documents for cancellation to the Honourable Court. e) Such further relief that this Honourable Court may in the interest of justice and in the circumstances of the case deem fit and proper . f) Cost of the suit.
3. Summonses/notices have repeatedly been issued to the defendants. Defendants Nos,1 and 2(b) however failed appearance before the Court nor had they filed their written statement/s. according ly the matter was ordered to be proceeded ex parte against them.
4. Defendants Nos,2(a) and 3 have filed their written statements denying thereby the contents of the plaint, objecting to the proceedings on the ground that matter pertains to a dispute between a Cooperative Society and its acknowledged member for which specific forum has been provided under Section 54 of the Cooperative Societies Act, 1925. It is further alleged that suit is barred under section 70-A of the Cooperative Societies Act, 1925, and under the provision of the Constitution of Pakistan, 1973. The suit is also barred by non-joinder and misjoinder of necessary parties as possession of the premises as per their knowledge was with one Muhammad Yousuf son of A.
Aziz under conveyance deed executed before concerned Registrar of property dated 14.11.1994 and on the strength of sub-General Power of Attorne y granted by them to Muhammad Iqbal son of Haji Yousuf, the subject premises has been sold to Muhammad Yousuf son of A. Aziz against sale consideration and possession has been handed over to him. It is alleged that the plaintif f has not filed either any certificate or registrar on nor any original Bye-laws duly approved by the relevant authority . It is submitted that the plaintif f society have attempted to misinterpret and misrepresent their own documents in as much as that the bar on sub-letting was applicable to the plaintif f society and not its members specifically and in any event as the plaintif f had fully participated/acquired the grant of substantive right of lease/sale in favor of defendant No, 1.
5. On 13.1 1.2000 following issues were settled by this Court;
1. Whether suit is barred under Section 54 of Cooperative Societies Act, 1925 ?
2. Whether the suit is barred for want of notice under section 70- A of the Cooperative Societies Act, 1925 ?
3. Whether the suit is barred under the provisions of the Constitution of the Islamic Republic of Pakistan ?
4. Whether the suit is barred far non-joinder or mis-joinder of necessary parties ?
5. Whether the suit is exclusive attempt and mala fide on the part of the plaintif f and defendant No,1 ? If so. what its effect ?
6. Whether the plaintif f is a registered cooperative society ?
7. Whether the plaintif f had fally participated/acquired the grant of the substantive right of lease/sale in favour of defendant No,1 ? If so, what is ef fect ?
8. Whether the society from its down funds build roads, lease, drains, culverts within the society to facilitate to the members of the society for reacting the house structures?
9. Whether the plaintif f is entitled for the relief claimed ?
10. Whether the defendant No,3 is a bona fide purchaser of suit property ?
11 What should be the decree ?
6. The plaintif f Society examined one Rustam Bhure Khan as P.W.1, who produced his affidavit-in-evidence as Ex- 5, photocopies of lease deed dated 21.01.1952 as Ex-5/1, registered conveyance deed as Ex-5/2, public notice published in daily DAWN dated 09.06.198 9 as Ex.5/3, resolution dated 19.1.2001 as Ex-5/4, three sealed envelope received undelivered to defendant No,2 as Exs-5/5-1 and 5/5-2.
7. The defendants examined one Abdul Aziz D.W.1 as Ex-6. Defendants No,2(a) examined himself as Ex-6 and Muhammad Annees as Ex-7.
The above witnesses were cross-examined by the other sides.
8. Learned counsel for the plaintif f has made his submission orally as well as filed written arguments wherein it is stated that the plaintif f society was formed in the year 1920 with the object of providing housing facilities to its members i,e, the Parsi Community and hence Bye-laws enunciate the same. It is further stated that sections 10 and 16 of Co-operative Societies Act, 1925 provide sanction for the Bye-laws of the Society . The defendants No,1 has never sought membership/sanction from the society and it is now well settled law that an allotment/lease/sub lease of land in a society to a person not listed as a member would be illegal. In support of this contention reliance are placed in 1993 SCMR page 1510 , 2005 YLR 2423 ; AIR 2002 Supreme Court page 797, AIR 1939 Culcutta page 523, 34 IC 516 Culcutta, AIR 1932 Privy Council 158. That the request for land by the society for providing housing facilities to the Parsi Community of Karachi was approved by the Government vide its letter dated 18.12.1922. The property belonging to the society deemed to be private property and the defendant is attempting to usurp the private property of the society on the basis of an unregistered sublease deed which cannot be sanctioned by this court and it is well settled law that any holder of manipulated /fabricated documents issued in collusion with authority cannot create any legal right in favour of the holder of such documents. In support of this contention reliance is placed in AIR 1989 Supreme Court page 1806, 2005 YLR 2889 . With regard to the point of constitutional remedy it is stated that Articles 23 and 25 can be invoked against the State and not against private parties and the definition of State is provided in Article 7 of the Constitution and Article 199 also contemplates issuance of remedial orders against the State. In this contest reliance is placed in AIR 1952 Supreme Court page 59, AIR 1959 Supreme Court page 490, AIR 1977 Supreme Court page 1496. It is further stated that Article 20(b) guarantees the petitioner the right to establish, maintain and manage its religious institution and any transgression upon the right of the society to own and administer its property will be inter alia in fundamental violation of Article 36, protection of minorities of the Constitution as is held in AIR 1952 Madras page 613. It is abundantly clear from the pleadings and the evidence in this suit that the defendants have attempted to perpetrate a fraud upon the society and hence cannot be entitled to any equitable relief. Apart from the above the following authorities are also relied upon the learned counsel for the plaintif f; PLD 2002 Karachi page 414, 2001 YLR page 2537 , PLD 1985 Karachi page 481, 2005 YLR page 1745 , 1991 SCMR page 1185, 1994 SCMR page 281, 1991 MLD page 2249 , 1997 CLC 1774 , 1987 CLC page 2358 , PLD 2003 SC page 159.
9. On the other hand learned counsel for defendants 2(a) and 3 has also made his submissions and also filed his written synopsis, wherein it is contended that witness of the plaintif f during his cross-examination has admitted that in Ex-5/ 1 no restriction for transfer of land by a Parsi members to non-Parsi is mentioned and that he has not filed any specified document by which it can be established that there was a restriction for transfer of land from a Parsi member to non-Parsi. It is further stated that originally the entire land of the society was acquired from the Cantonment Board/Military Authorities and no such restrictions was ever imposed while granting the original lease in favour of the society . In this respect the witness of the plaintif f has deposed that it was in his knowledge that Military Authority has not imposed any restrictions for, sale of land in question on the basis of religious affiliation This witness has also admitted the fact that the defendants are owners and purchasers in respect of the suit property on payment of valuable consideration. In support of his argument learned counsel for the defendants has relied upon the reported cases 2004 YLR page 2183 Lahore, PLD 1970 SC page 185, 1970 DLC pages 387, PLD 1953 Lahore page 251, PLD 1984 SC page 424, AIR 1993 PC page 79, PLD 1961 Lahore page 372, AIR 1941 Lahore page 407, PLD 1994 Karachi Page 194, 2007 YLR page 2183 , 2008 YLR page 2763 and PLD 2006 SC page 84.
10. Having heard the learned counsel for the plaintif f and defendants and gone through the record with their above assistance before continuation and further I would prefer to recast the issues as under, given my findings thereto and thereafter the reasons;
1. Whether suit is maintainable?................Af firmative
2. Whether the plaintif f had granted substantive right of lease/sale in favor of defendant No, I or his predecessor in .................interest? Negative.
3. Whether the defendant No,3 is a bona fide purchaser of the suit property?............ Negative As discussed.
4. What should be the decree?............ Suit decreed as discussed.
11. Issue No,1: Whether suit is maintainable? The contesting defendants have challeng ed the maintainability of the suit on legal grounds as well as on merits. The legal grounds are dealt under this issue whereas the merits are discussed under the following relevant issues. The legal objections as taken, pertain to the restricting provisions of Societies Act, 1925, Cooperative Societies 1925, Constitution of the Islamic Repu blic of Pakistan and non-joinder of parties. The suit however being for cancellation of registered document and the civil court being the forum for such an exercise the same is not tenable on this count, along with this is the element of the dispute not completely falling to and restricted between the cooperative and its member/s. Non-joinder is not a valid ground to de suit a party , it being always open for any party and even the Court to require and order impleading of party . As to the principles of discrimination and equal treated protected by the Constitution of Islamic Republic of Pakistan it may be observed that the same is/are not available in a blanket and absolute form. It is subject to a reasonable restraint as such the reasonability is likely to be examined. In this case however such a distinction is not required as the such a plea is only available for the defendants Nos,2 and 3 whereas the claim of the plaintif f in this matter is also against the defendant No,1 who apparently a Parsi/Zoroastrian.
13. It seems that the learned counsel in the matter have restricted themselves to this alleged discrimination, its availability and the existence of restrictio n in this regard. For the plaintif f the alleged sale has been taken as an attempt to acquire an entry for the membership of the plaintif f and the same is being denied to be restricted to Parsi/Zoroastrian, whereas the defendant considers the enjoyment of the said alleged sale as his unhindered right not being liable to be restricted on account of membership of the plaintif f socie ty on the basis of existence of restraint, equality and the alleged restrict on to be in violation of what he considers as his fundamental rights.
14. In my humble understanding primarily the restriction right/s is based upon what was a agreed to between the parties and/or their predecessor in interes t (as no one can give a better title), which is the agreement/contract and as such the law between them. this however is always subject to the prevailing law making it a contract and/or otherwise it remains just an agreement/understanding between them and is not enforceable by law. It may further be observed that where any transferable right is acquired and available to a transfe ree the same may be exercised in which case the acquisition of membership becomes a subsequent element. In this case however such a question not being present need no further discussion on account of the, findings to the issue No,2 as given herein is required. On account of this discussion, the matter of maintainability as such is determined to be in af firmative.
15. Issue No,2: Whether the plaintiff had granted substantive right of lease/ sale in favor of defendant No, 1 or his predecessor in interest? if so to what effect? This issue arises from the basic docum ent going to the root of the matter and as such addressing the controversy between the parties. The very document whereby the plaintif f has firstly granted the right/s (what so ever they are as discussed hereunder) all the subsequent claimant/s cannot claim anything better if not able to show and prove otherwise. It is the first annexure of the plaint titled as "lease deed" dated 21.01.1952 (hereinafter referred to as the said document to avoid any confusion). Portions of the same have been found incorporated in the plaint also. The same has since been produced as Ex.5/1. The said document goes to state on its second page 1st clause as; I. In consideration of the sum of Rs,16332 .11.5 spend by the Lessee for the constru ction of the building, as certified by the Society's Architects and of the rents and covenants hereinafter reserved and contained the Lessor doth hereby demise unto the Lessee All that plot of land situated in Katrak Parsi Colony on Bundar Road Extension known as Plot No,39, K.P .C. on the Lessor's Estate and......................
16. It has specifically been stated in the plaint in paragraph No,5 thereof; "That the plaintif f allotted the plots of land to its members free of cost so they could raise structures thereon at nominal costs".
17. To this no admission is forthcoming in the written statement. however the same is admitted in the evidence on part of the contending defendant that the same was the very document which was the basis of entitlement of their claimed predecessor in interest. The defendant has otherwise not brought forward any further and better entitlement available with them.
18. It is also observed considering the said document that irrespective to its title of lease (which is misleading) the said document is only a license i,e, a permission, as such never carried any right of any further transfer at the option of the licensee on his own let alone free exercise as is a requirement available under a lease. It is further observed that the said document is without any consideration/amount paid to the grantor/lessor i,e, the amount referred above was never paid to the plaintif f but was spent on the structure and as such was duly certified (value thereof accepted by the beneficiary). The beneficiary as such at best can only claim value of the structure (this has further been described in sub-clause (2) Clause 3. At page 6 of the said document with clarification is hand writing as found thereon). This was perhaps the very reason why the said so called lease was never registered as same was never required not actually/legally being a lease and being a licensee without any consideration having been paid to the grantor but remaining intact with the structure available to be open for cancellation. The condition/grounds for cancellation also given therein being violation of bylaws of the plaintif f to which only the defendant No,1 was having the locus standi to challenge, the contesting defendants admittedly never applied for membership of the plaintif f (as stated in the evidence) any such question cannot be taken by them. The defendant No,1 never having an independent right of transfer on account of the benefit being a licensee and the said defendant not challenging his alleged violation the same does not require any further discussion.
19. It is also a settled law that no one can transfer a better title/entitlement available to him, the predecessor in interest of the present defendants contesting or otherwise never having right acquired by way of consideration i,e, amounts/consideration having been paid as are available under a lease except a right to the structure. To comprehend that any right in the land can be so acquired will be a misconceptio n as nothing has been paid to acquire such a right. The creating of any document of sale deed against such a document and considering the same to carry the power of sale will be a misconception as such a sale deed is of no legal value as no force of law is available to such a document This issue as such stands determined as negative.
20. Issue No,3: Whether the defendant No,3 is a bona fide purchaser of the suit property? The onus of this issue rested with the contesting defendant who has however not been able to prove the same. In the evidence the main defendant has relied upon the other defendant, which however cannot not entertained considering that he was having the chain of documents present with him. Irrespectively the supporting evidence only further clarified the matter wherein the said witness frankly concedes of having the relevant documents available with him. It may be observed that to proof being a bona fide purchaser a party has to prove not having notice of the actuality along with the element of a reasonable inquiry made on his part. This is not only limited factual aspect/s but includes the legal element to which the opportunity though was available was never utilized for reasons best known to the purchaser/s by seeking Professional advice in this regard. Irrespectively as the alleged sale has been set aside, considering the requirement of complete justice to all the parties of the proceeding coupled with there being no rebuttal present on part of defendant No,1 entitles the defendant No,3 to recover back a sum of Rs,2200,000 which has been paid (the amount of Rs,3.6 million as alleged not being safe to be so treated without any support as no other proof in this regard has come up even to the extent of being the market price), to the defendant No, 1 . The amount/s so allowed is not in conflict of him not being determined/treated as bona fide purchaser as it is allowed on account of the sale being set aside. This issue is as such decided in negative for grant of any right as a bona fide purchaser for the defendant No,3.
21. Issue No,4: What should be the decree? As a result of the discussion above the suit of the plaintif f stands decreed for prayers (a) (d) and (f) as prayed. The valuation of the structure to be assessed and certified by relevant professional person and to be approved by this court payable to/in the name of the defendant No,1 (subject to any claim outstanding against him) at the time obtaining possession of the subject property . In addition the defendant No,3 is also entitled to recovery a sum of Rs,2200,000/- from defendant No,1, the same is however independent and not related/prerequisite to any benefit granted to the plaintif f, the defendants never having intimated the plaintif f of their dealing/s.
22. The matter stands disposed of. The of fice to prepare a decree accordingly .