MUHAMMAD FAISAL KAMAL ALAM, J.---Due to commonality, all the above titled suits are decided by this common judgment. For the sake of reference only, Suit No.1295 of 2006 will be referred to as 'First Suit', Suit No.1296 of 2006 as 'Second Suit' and Suit No.1461 of 2008 as 'Third Suit'.
2. In all the titled suits, Plaintiffs have primarily challenged the decision(s) of Defendants, particularly, Defendant No.1 - Cantonment Board Faisal Karachi ("Defendant Board") of cancelling registered Lease Deeds in favour of Plaintiffs. The prayer clause of First Suit is as under_ "(a) Declaration that the plaintiff is the legal, lawful, absolute, exclusive owner and landlord of the property vide No.11 Survey 45 (Part), Drigh Road Cantonment (Cantonment Faisal), situated at Bukhari Town, Block 10-A Gulshan-e-lqbal Karachi by virtue of Lease Deed vide Registered at No.460 Book No.1 dated 07.02.1996 with Sub-Registrar T-Div, IV Karachi under M. F. Roll No.2156, Photo Registrar, Karachi dated 04.03.1996.
(b) Declaration that the action and act of the Defendant No.1 by denying the ownership right and title on 20.04.2006 over the property and by cancelling the lease vide Lease Deed Registered at No.460 Book No.1 dated 07.02.1996 with Sub-Registrar T-Div, IV Karachi under M. F. Roll No.2156, Photo-Registrar , Karachi dated in respect of property , bearing No.1 1 survey 45 (Part), Cantonment Faisal, situated at Bukhari Town, Block 10-A Gulshan-e-lqbal Karachi through publication dated 16.06.1997 in the daily Newspaper "THE NEWS INTERNA TION AL" is illegal, ab initio, without authority and having no legal effect in the eye of law .
(c) Declaration that the notice issued by the Defendant No.3 collusion with Defendant No.2 vide No. UC- 141/06 dated 06.04.2006 is illegal, void ab initio and without authority having no legal effect in the eye of law.
(d) Permanent injunction restraining the Defendants their legal representatives, administrators, servants, agents, executants, attorney(ies), subordinantes, any person or persons acting on their behalf from harassing, blackmailing, interfering, demolishing, disturbing, dispossess ing and creating third party interest over the suit property bearing No.1 1 Survey No.45 (Part), Cantonme nt Faisal, situated at Bukhari Town Block 10-A Gulshan-e-lqbal, Karachi.
(e) Cost of the suit.
(f) Any other relief or reliefs deemed to be fit and proper by this Hon'ble Court under the special circumstances of the case"
3. Prayer clause of Second Suit is as under_ "(a) Declaration that the plaintif f is the legal, lawful, absolute, exclusive owner and landlord of the property vide No.10 Survey 45 (Part), Drigh Road Cantonment (Cantonment Faisal), situated at Bukhuri Town, Block 10-A Gulshan-e-Iqbal Karachi by virtue of Lease Deed vide Registered at No.821 Book No.1 dated 17.03.1996 with Sub-Registrar T-Div, IV Karachi under M. F. Roll No.2169, Photo Registrar , Karachi dated 31.03.1996,
(b) Declaration that the action and act of the Defendant No.1 by denying the ownership right and title on 20.04.2006 over the property and by cancelling the lease vide Lease Deed Registered at No.821 Book No.1 dated 17.03.1996 with Sub-Registrar T-Div, IV Karachi under M. F. Roll No.2169, Photo-Registrar , Karachi dated 31.03.1996 in respect of proper ty bearing No.10 survey 45 (Part), Cantonment Faisal, situated at Bukhari Town, Block 10-A Gulshan-e-Iqbal Karachi through publication dated 17.06.1997 in the daily Newspaper "THE NEWS INTERNA TION AL" is illegal, ab initio, without authority and having no legal effect in the eye of law .
(c) Declaration that the notice issued by the Defendant No.3 collusion with Defendant No.2 vide No. UC- 141/06 dated 06.04.2006 is illegal, void ab initio and without authority having no legal effect in the eye of law.
(d) Permanent injunction restraining the Defendants their legal representatives, administrators, servants, agents, executants, attorney(ies), subordinates, any person or persons acting on their behalf from harassing, blackmailing, interfering, demolishing, disturbing, dispossess ing and creating third party interest over the suit property bearing No.10 Survey No.45 (Part), Cantonme nt Faisal, situated at Bukhari Town Block 10-A Gulshan-e-Iqbal, Karachi.
(e) Cost of the suit.
(f) Any, other relief or reliefs deemed to be fit and proper by this Hon'ble Court under the special circumstances of the case
4. Prayer clause of Third Suit is as under_ "(a) to declare that the plaintif f is legal, lawful, absolute, exclusive owner and landlord of the property vide plot No.14, measuring 400 Sq. Yards, situated at Bukhari Town, Faisal Canton ment, Survey 45 (Part), Block 10-A, Gulshan-e-Iqbal Karachi, by virtue of Conveyance Deed vide registration No.5979, Book 1, Sub- Registrar T -Div. IV, dated 16.12.2005 under M.F . Roll No. U111760/3218, Photo-Registrar , Karachi, dated 11.03.2006 under lease deed vide registration No.564, Book No.1, dated 15.02.1995 Sub-Registrar T.Div. IV, Karachi, under M.R. Roll. No.2008 Photo-Registrar , Karachi, dated 01.03.1995. b-To declare that the actions and acts of the Defendant by denying the ownership rights and title on over the subject property and the cancellation of lease and publication dated 17.06.1997 in the daily Newspaper "THE NEWS INTERNA TIONAL" is illegal, ab initio, unjustified, without author ity and having no legal effect in the eye of law . c-to declare that the letter issued by the Defendant vide No.14/J/Plot No.14/Bukhari Town/6943 dated 04.10.2007 is void, rib initio, without authority and has no legal ef fect in the eye of law . d-To grant Mandatory injunction by directing the Defendant to sanction the proposed building plan according to law and rules of the Cantonment Act 1924 in respect of proper ty vide plot No.14, measuring 400 Sq. Yards, situated at Bukhari Town, Cantonment Board Faisal, Survey No.45 (Part), Block 10-A, Gulshan-e-lqbal, Karachi. e-To grant permanent injunction restraining the Defendant, their legal representatives, administers, servants, agents, executants, attorney( ies), subordinates, any person or persons acting on their behalf and working under them from harassing, blackmailing, interfering, disturbing, dispossessing, transferring, alienating and creating third party interest over the subject property bearing Plot No.14 Survey No.45 (Part), measuring 400 Sq. Yards, situat ed at Bukhari Town Block 10-A Gulshan-e-Iqbal, Cantonment Faisal, Karachi. f-Cast of the suit. g-Any other relief or reliefs which this Hon'ble Court may deem fit and proper in the special circumstances of the case"
5. It is clarified that in First and Second Suits, the then City District Government Karachi and concerned Nazim were also impleaded as Defendants Nos.2 and 3, whereas , in the Third Suit, predecessor-in-interes t of Plaintif f from whom the latter had purchased the property was impleaded as Defendant No.2 (Syed Tahir Hussain) through his legal heir , Defendant No.2(i) (Syed Ather Hussain).
6. Upon issuance of summons and notice, only Defendant Board contested all the three cases. In first two suits, Mr. Ali Azam, Advocate, appeared on behalf of Defendant No.2 (the then City Nazim) and submitted that the said Defendant No.2 has no concern with the land in question and filing the Written Statement on behalf of Defendants Nos.2 and 3 (that is, Nazim-e-Ala and concern Nazim of U.C.-7) is not necessary and they may be deleted from the array of Defendants. However , Defendants Nos.2 and 3 were ordered to be proceeded ex parte; whereas , in the Third Suit, Defendants, that is, Defend ant Board and above named private Defendant, did not file Written Statements despite service of notice, therefore, vide diary of Additional Registrar dated 28.11.2004, they were debarred from filing of Written Statements. Consequently , in the Third Suit, only Plaintif f led the evidence and when despite providing opportunity to cross-examine, the same was not availed on behalf of Defendants, then vide order dated 31.03.2017, Plaintif f's cross-examination was marked as 'Nil'.
7. In nutshell, the case of Plaintif fs in first two suits (Suits Nos.1295 and 1296 of 2006) are almost identical .except the description of the suit properties. In First Suit SUBJECT MATTER is built up property at Plot No.11, falling in Survey No.45 (Part), measuring 175 Square Yards, Bukhari Town, Drigh Road Cantonment, Block - 10-A, Gulshan- e-Iqbal, Karachi. Whereas , in Second Suit, SUBJECT MATTER is a built up property at Plot No.10, and the other description is same as that of First Suit. Both Plaintif fs have acquired their respective subject properties through direct Leases executed by Defendant No.1 (Defendant Board). The said Leas es have been produced in the evidence as Exhibit P-1 in both suits. In First Suit, the 99 years lease is of 18.01.1996 in favour of Plaintif f Muhammad Faisal; description mentioned in this lease document is same as mentioned above and' it is an ownership lease for 99 years; similarly , in Second Suit, the lease (Exhibit P-1) bears the date 17.03.1996 issued by Defendant Board in favour of Plaintif f (Muhammad Mukhtar). Description is the same as mentioned above and this lease is also for a period of 99 years, that is, an ownership lease. In both these (First and Second) suits, it is stated that upon service of notice dated 06.04.2006 [Exhibit P-5, in the Evidence File] by Defendant No.3 (the then Nazim UC-7), to attend the office on 10.04.2006 in respect of allotment, the Plaintif fs acquired knowledge that Defendant Board has cancelled the Subject Leases.
Whereas , in Suit No.1461 of 2008, the SUBJECT MATTER is a property No.14, falling in Survey No.45 (Part), Block 10-A, Bukhari Town, Faisal Cantonment, Gulshan-e-Iqbal Karachi, which was purchased by the Plaintif f from its previous owner by way of registered Conveyance Deed dated 16.12.2005 produced in the evidence as Exhibit P.W.-1/4 whereas Lease of 99 years executed by Defendant Board in favour of above named previous owner (Syed Tahir Hussain) has been produced in the evidence as Exhibit P.W.-1/8 and is available at page-85 of the evidence file. This Third Suit was never contested by the Defendant as already mentioned in the preceding paragraphs.
In first two suits (Suit Nos.1295 and 1296 of 2006), the stance of Defendant Board as mentioned in the Written Statement is that both suits are time barred, because the registered leases were cancelled way back on 17.06.1997 through a public notice in newspaper as well as personal Notice dated 25.01.1997; paragraph-5 of the Written Statement. Defendant Board has not denied the fact .that cases filed by other persons aggrieved with the aforementioned public notice have been decreed so also another Suit No.829 of 1997, is also sub judice before this Court (at the relevant time) but it is averred by Defendant Board that the present two suits are on different footing, while disputing the averments of Plaintif fs that they acquired knowledge on 10.04.2006 (as stated in the foregoing paragraphs). With the Written Statement in both First and Second Suits, no copy of the public notice is appended but only two notices in the names of respective Plaintif fs, both dated 25.01.1997, are enclosed.
8. In First and Second Suits, the Issues proposed by Plaintif f(s) were adopted as Court Issues mentioned in the order of 16,03.2009, thus Issues framed were as follows_ 1-Whether the Suit is barred by limitation?
2-Whether the Plaintif f is legal, lawful, absolute, exclusive owner and landlord of the property in dispute by virtue of lease deed duly registered?
3-Whether the Defendant No.1 served personal notice and any show-cause notice upon the Plaingf f before the cancellation of lease? If yes, what is its ef fect?
4-Whether the registered document of lease Deed in respect of property in question rightly cancelled by the Defendant No.1, as per press Publication dated 17.06.1997 after due personal notice dated.25.01.1997?
5-Whether the act and action of the Defendant No.1 by denying the ownership rights of Plaintif f over the suit property on 20.04.2006 and cance llation of lease are illegal, unlawful, ab initio, without authority and having no legal ef fect in the eye of law?
6-Whether the Suit property situated in the area of Cantonment Board Faisal in survey 45(Part) not in the survey No.42?
7-Whether the Notice issued by the Defendant No.3 vide No. UC 141/06 dated 06.04.2006 claiming that the land situated in survey No.42 not in survey No.45(Part) is illegal, void, without authority and has no legal effect in the eyes of law?
8-What should the Decree be?
9. Arguments heard and record perused.
10. Even though in first two suits, Defendant Board has filed Written Statements (contents whereof are already discussed in the foregoing paragraphs), but the Defendants and particularly Defendant Board never led the evidence. Perusal of record of first two suits shows that the Defendant Board has not even filed list of witnesses and documents after framing of Issues, which is a requirement of law in terms of Order XVI, Rule 1 of C.P.C.; non- compliance of this entails adverse conseq uences to the case of a delinquent party , as observed in the Judgment of the honourable Supreme Court reported in PLD 2013 Supreme Court page-255. Subsequently , the evidence was recorded and learned Commissioner submitted his Reports in all the three cases. In first two suits, after around four months from submission of the Reports by learned Commissioner , applications were filed by Defendant Board seeking reopening of their side to lead the evidence, but those applications were not pursued diligently . Similarly , mere filing of Written Statement is not sufficient, unless, the Defendant enters the witness box in support of his claim or defence. It is settled rule by now and the rule laid down in the cases of Khawaja and Muhammad Bashir Cases ( supra ) cited by Plaintif fs' counsel is attracted to the fact of present case.
11. In First Suit, on behalf of Plaintif f, his attorney Muhammad Aqeel son of Muhammad Ashraf Tabani testified; in Second Suit, Muhammad Irfan son of Ashraf Razzak Tabani, deposed as an attorney of Plaintif f; whereas , in the Third Suit, the Plaintif f himself led the evidence, Both above attorneys in first two suits have produced their respective General Power of Attorneys as Exhibit P-2 and P-3, The material documents produced by the witnesses in all three suits are as follows:- i) Lease for a period of 99 years in prescribed Schedule IX-A of the Cantonments Rules executed by Defendant Board in favour of Plaintiffs along with site plans in all three suits Exhibit P-1 (in first two suits), Exhibit P .W.-1/6 in Third Suit In favour of above named predecessor-In-interest Syed T ahir Hussain; ii) Conveyance Deed dated 16,12,2008 in Third Suit between earlier owner Syed Tahir Hussain and present Plaintiff Shahvez Siddiqui - Exhibit P .W.-1/4; iii) Public Notice dated 17.06,1997 for cancellation of Leases Exhibit P-6; iv) Decision in afore-referred Suit No.8 29 of 1997 (Ghulam Om& v. Cantonment Board Faisal and others) handed down by this Court - Exhibit P-7; v) Judgment dated 21.10.2003 in Suit No.200 of 2003 by the learned lit Senior Civil Judge Karachi East (Old No.802 of 1998)- Exhibit P-8; vi) Judgment in Civil Appeal No.241 of 2003, preferred by present Defendan t Board against afore-referred decision of learned trial Court Exhibit P-9; vii) Judgment in Suit No.1562 of 1997 (Mrs. Shamima Khatoon v .Cantonment Board Faisal) - Exhibit P-10; viii) Judgment in Civil Appeal No.139 of 2003, preferred by present Defendant against above decision of learned trial Court - Exhibit P-1 1; ix) Judgment in Suit No.199 of 2003 (Mumtaz Ahmed v.Cantonment Board Faisal) given by learned 1st Senior Civil Judge Karachi East - Exhibit P-12; x) Judgment in Civil Appeal No.242 of 2003, preferred by present Defenda nt against above decision of learned trial Court - Exhibit P-13; xi) Judgment in Civil Appeal No.243 of 2003, preferred by present Defendant against above decision of learned trial Court - Exhibit P-15; xii) Nazir's Report dated 07.02.2009 filed in different suits involving same Issues, sub judice at the relevant time in this Court - Exhibit P-16; xiii) Legal Notice dated 27.05.2006 and 05.08.2008 on behalf of Plaintiffs to Defendants prior to filing of these cases - Exhibit P-18 and P .W.-1/19;
12. Even though the Defendant has not led the evidence and in effect all the three suits proceeded ex parte after framing of Issues, but still Court is duty bound to apply its judicial mind to the facts of the case and relief claimed.
13. Mr. Muhammad Zeeshan Abdullah, Advocate for the Plaintif fs, (in all suits) argued that the objection raised by Defendants in their Written Statement that the present suits are time barred and merit dismissal, is without substance. He has responded to this main legal objection of Defendants on three grounds; firstly , that the notices about cancellation of leases as appended with the Written Statement (mentioned in the preceding paragraphs) were never received by the Plaintif fs; secondly , in all these correspondences, which are available at page-99 in the main case files, it is in fact a decision communicated to Plaintif fs by Defendant Board that the Leases (Exhibit P-1 in first two suits) stood cancelled. No prior notice has been given for taking such a harsh action against Plaintif fs, which in effect has deprived Plaintif fs of their proprietary rights; thirdly , the limitation will start from the date of acquiring knowledge about the impugned action of cancellation of leases regarding which the Plaintif fs have led the un-rebutted evidence that when they visited office of official Defendant No.3, in first two suits, on 10.04.2006, they were informed about impugned action and hence in terms of Article 120 of Limitation Law, first two suits are maintainable. With regard to the Third Suit, Plaintif f has deposed that when he visited the Office of Defendant Board on 27.08.2007 in connection with approval of Plaintif f's building plan, he was given this information, much to his shock and dismay; fourthly , when different judgments have been handed down in other suits involving same controversy which are already produced in the evidence, then the Defendant Board instead of taking corrective measures about their impugned action of purported cancellation of leases of Plaintif fs are still adamant that their action was correct, even though the same has been judicially determined to be a wrongful act. It is further contended that all those decisions including that of this Court passed in above Suit No.829 of 1997, have attained finality and also are in judgment in rem, because the public notice dated 17.06.1997 (Exhibit P-6) has been held to be null and void ab initio.
14. To augment his arguments, number of judicial precedents have been relied upon which are already mentioned in the opening paragraph of this Decision.
ISSUES NOS.1 AND 4:
15. Both these Issues are interconnected, therefore are decided first.
16. The main stance of the Defendant Board is that the present suit is time barred as it has challenged public notice dated 17.06.1997 after so many years, that is, after nine (9) years, through first two suits and eleven (11) years through the third lis. It is further averred in the Written Statement that the Plaintif fs were also informed through personal notices, both dated 25.01.1997 (appended as Annexures with the Written Statement of the first two suits only). This Issue No.4 has already been decided by this Court in the judgment handed down in earlier Suit No.829 of 1997 (Ghulam Qadir v. Cantonment Board Faisal and others ). A certified copy of the judgment has been produced in the evidence as Exhibit P/7. It is held that registered lease deed can only be cancelled by filing a suit for cancellation of lease and not by Show-Cause Notice or by passing an order of cancellation. Above suit was decreed and public notice dated 17.06.1 997, also impugned in the present proceeding, has been held to be null and void ab initio, having no legal effect in the eyes of law and without jurisdiction. It is necessary to mention that the above Public Notice' is/was in respect of Blocks 18 and 10-A, that is, where subject properties situate. Similar is the fate of other Court cases, which were mentioned in the foregoing paragraphs and after the decision given by the Appellate Court in A peals filed by present Defendant Board, the latter (Defendant Board) did not pursue the matter further and the decisions of the Appellate Courts have attained finality , declaring the above public notice dated 17.06.1997 as null and void ab initio while upholding the judgments of learned Trial Courts. If the contention of Defendant Board is accepted, even though the said Defendant has not led any evidence in this regard that the Plaintif fs in the first two suits were also served with the aforementioned notice of 25.01.1997, even then those notices are ex fade illegal and void ab initio, because it is settled rule that cancellation of a registered document cannot be done in the manner as is done by the Defendant Board. In this regard case law cited by the Plaintif fs' counsel (supra ) and particularly , the reported decisions in Sultana Case - 2003 YLR page-1760 and PICIC Case 2007 MLD page-2003 , are relevant. Additionally , the judgment of the apex Court in Amir Case (ibid, 2011 SCMR page-1023 ) has reiterated this rule and it is held that "A registered instrument can only be cancelled by a Civil Court of competent Jurisdiction on the ground of fraud or otherwise" . Admittedly , all these Leaser involved in these three suits are ownership leases conferring proprietary rights and interest upon the Plaintif fs of the three suits, which are guaranteed under Articles 23 and 24 of the Constitution. Such' kind of rights and interest cannot be interfered with by merely communicating to the Plaintif fs the decision that their Leases have been cancelled, either through the impugned public notice dated 17.06.1997, which has already been set aside by earlier Decisions, as already stated in the foregoing paragraphs, or through the purported notice dated 25.01,1997 annexed with the Written Statements of Defendant Board, in support .of which no evidence has been led by the Defendants. This Issue No.4 is answered in Negative and against the Defendant Board that they have wrongly cancelled the registered subject ownership leases of Plaintif fs through the two impugned notices dated 17,06,1997 and 25,01,1997, respectively .
Now adverting to Issue No.1. It is argued that suits are maintainable because Article 120 of Limitation Law will apply , for which the prescribed limitation is six years.
To answer the question of limitation, first the concept of judgment in rem and personam should be addressed, because if earlier decisions are judgment in rem then the period of limitation will start from the date of knowledge regarding which the Plaintif f has led a positive evidence and not from the date of impugned public notice dated 17.06.1997, although the same has also been determined as illegal in the foregoing paragraphs. This legal concept of judgment in rem and personam is explained in many judicial prone, lamen ts, some of which are mentioned in the opening paragraph of this decision, It has been summarized by the honourable Supreme Court in the Bhatti and Bhinder Cases (ibid, PLD 2004 Supreme Court page-77 and PLD 2010 Supreme Court page-483).T he crux of this concept is that when judgment is pronounced with regard to a legal principle then it is a judgment in rem; for instance, if a Notification issued by a Government Functionary , is set aside or a levy is held to be ultra wires , then the effect of that decision will also be extended to those persons, who were not even partles in the original proceeding but are affected by the impugned notification or levy. Similarly , if a judgment is pronounced in an action with regard to claim of ownership against all other persons and the finding is given in favour of claimant then the said Judgment and decree is to be considered as judgment in rem .
It would be advantageous to reproduce relevant portion of the judgment of the Honourable Supreme Court handed down in Bhatti Case, in which the legal principle about Judgment in rem and personam has been explained- "Upon a consideration of what has been stated above, the formation on behalf of the appellants cannot be accepted as it stands. In a controversy raising a dispute inter parties, the thing adjudged is conclusive as between the parties both on question s of fact and law but as to what the Court decides generally is the ratio decidendi or rule of law for which it is the authority . It is this ratio decidendi which is applicable to subsequent cases presenting the same problem between third parties not involved in the original case nor will either of the original parties be bound in a subsequent dispute with a third party . It will be misnomer to say that this rule of law acts in rem, that is, as against the whole world as conceptually the applicability of the rule of law is either founded on the doctrine of precedent as under the English law or rule of stare decises, and none of the .doctrines in its applications is inflexible for what has been recalled elsewhere in the judgment. Therefore, the judgment cannot act in rem as is sought to be argued The High Court in dislodging the appellants held that the judgment of the Supreme Court was not a judgment in rem, but in personam. The terms 'in rem' and 'in personam' are of Roman Law used in connection with actio, that is actio in rem and action in personam to denote the nature of actions, and with the disappearance of the Roman forms of procedure, each of the two terms 'in rem' and 'in personam' got tagged with the. word judgments to donate the end-products of actions in rem and actions in personam. Thus, according to the civil law an action in which a claim of ownership was made against all other persons was an action in rem and the judgment pronounced in such action was a judgment in rem and binding upon all persons whom the Court was competent to bind, but if the claim was made against a particu lar person or persons, it was an action in personam and the decree was a decree in personam and binding only upon the particular person or persons against whom the claim was preferred or persons who were privies to them "
Monir in his "Principles and Digest of the Law of Evidence" at page 563, gives the import of these terms as under:- "The point adjudicated upon in a judgment in rem is always as to the status of the res and is conclusive against the world as to that status, whereas in a judgment in personam the point, whatever it may be which is adjudicated upon, it not being as to the status of the res, is conclusive only between parties or privies. A decision in rem not merely declares the status of the person or thing, but ipso facto renders it, such as it is declared: thus, a decree of divorce not only, annuls the marriage, but renders the wife female sole: adjudication in bankruptcy not only declares; but constitutes the debtor a bankrupt; a sentence in a prize Court not merely declares the vessel prize, but vests it in the captor .
Section 41 of the Evidence Act does not use the terms 'judgment in rem', but it incorporates the law on the subject of judgments in rem, and makes them relevant not only against strangers but also conclusive of certain matters such as whether a person was entitled to a legal character or to any specific thing not as against any specified person but absolutely . ..................................
8. It may be observed that Black's Law Dictionary gives simple definition of the above two items by providing that judgment in personam or inter' parties' is a judgment against a particular person as distinguished from 'a judgment against a thing or a right or status, whereas the term judgment in rem' has been defined as an adjudication pronounced upon the status of some particular things or subject-matter by a Tribunal having competent authority . Such a judgment is binding upon all persons insofar as their interests in the property are concerned"
Consequently , decisions mentioned herein-above and particularly of this Court in the case of Abdul Qadir (supra ) in which the public notice of 17.06.1997 has been held to be illegal and void ab initio is judgment in rem.
17. The evidence led by Plaintif fs has gone unchallenged with regard to acquiring knowledge about cancellation of leases when in first two suits, the Plaintif f visited the Office of Defendant No.3 on 10.4.2006, upon service of Notice dated 6-4-2006 (Exhibit P-5), whereas, in the Third Suit in December 2007, when Plaintif f visited the Office of Defendant Board in connection with approval of his building plan. The arguments of Plaintif fs' side have substance that period of limitation will start from 6-4-2006 in the first two suits and December , 2007 in the third suit.
Admittedly , all the three Plaintif fs are in the possession of their subject properties. Case law cited in this regard is relevant, particularly of honourable Supreme Court in the decision of Yara case (ibid 2004 SCMR page-1502 ); principle laid down in the decision is fully applicable to the facts of present three suits. It would be advantageous to reproduce the relevant portion of the said judgment as under-- "6. .....The learned Civil Judge rightly came to the conclusion that the documentary and ocular evidence produced by Yara coupled with admission of the D. Ws. made it clear that the plaintif f Yara was all along in possession of the suit-land consequently suit would be covered by Article 120 of the Limitation Act and the person in possession of the land would not be obliged to rush to the Court only on the basis of adverse entry in the Revenue Record and in such a case plaintif f would get recurring cause of action by each adverse entry in the Revenue Record and the plaintif f would be sole Judge of serious threat to his interest and be that as it may, the registered sale-deed dated 16-8-1966 if considered to be serious attempt on the part of the defendant upon the rights of the plaintif f the suit having been filed on 15-5-1967 would be within time. The said finding of the learned Civil Judge was reversed by learned District Judge who also failed to consider the ocular and documentary evidence discussed and reasoned out by the learned Civil Judge in his judgment. There is no cavil about the legal proposition that the entry in the Revenue Record is neither a document of title nor a presumptive evidence of title and person may not feel aggrieved of such entry and cause of action in such a case would not accrue when the mutation order in original or appellate or revisional was made. The cause of action would accrue when a person concerned would feel himself aggrieved of the situation when he would feel it necessary to approach Court of law for relief which he considered fit and proper in accordance with law. In the circumstances the contention raised said above has no merit and substance."
Underlined to add emphasis
18. Consequently , Issue No.1 is answered in Negative that the present suits are not barred by limitation and are maintainable.
ISSUES NOS.2,
3. AND 5:
19. The finding on Issue No.3 will decide the other two Issues. As already held herein-above that no representative from ,Defendant Board has come forward to lead the evidence, thus service of personal notice as claimed by said Defendant Board has not been proved. Ex facie, the purported personal notice of 25.01.1997 is not even notice or Show Cause Notice before taking the impugned action of cancellation of leases but in fact is a direct order informing the Plaintif fs of first two suits that their registered ownership leases (Exhibits P/1) stood cancelled. These notices are violative of law as laid down through the judicial pronouncements already discussed in the preceding paragraphs that a registered lease cannot be cancelled in this manner . Therefore, Issue No.3 is answered accordingly that even for the sake of arguments, those personal notices were served; they are void ab initio having no legal ef fect.
A sequel to the above discussion, Issues Nos.2 and 5 are answered in affirmative and in favour of Plaintif fs that they are still lawful and exclusive owners of their respective subject properties by virtue of registered lease deeds in Schedule IXA of the Cantonment Rules and the act and action of Defendant No.1 by denying ownership rights of Plaintif fs and cancelling their leases are devoid of any jurisdiction and are void ab initio , having no legal ef fect.
ISSUES NOS.6 AND 7 :
20. Nazir of this Court has conducted site inspection of the area in various other suits. The Report dated 07.12.2009 submitted by Nazir has been exhibited in the evidence as P-16 . No objection is filed to this Report.
Even though such type of site inspections report cannot be treated as a conclu sive evidence, but once a site inspection report in which certain factual queries are answered has not been challenged by opposite party in proceeding, either by filing objections or while leading evidence, then the factual aspect mentioned in such type of inspection reports carries positive evidential value. It is clearly stated by the learned Nazir of this Court in the above Report that the plots (in other cases) are in Survey No.45 (Part), Drigh Road Cantt, now Faisal Cantonment Block 10-A, Gulshan-e-Iqbal, Karachi, and not in Survey No.42. Admittedly , Subject Properties of present three suits are also falling in Block 10-A, Gulshan-e-Iqbal; hence, this is another reason that the impugned action of Defendant Board is devoid of any lawful authority , because one of the grounds of defence was that these subject properties are situated in Survey No.42, which has been disproved by the present Plaintif fs through their testimonies.
Secondly , registered ownership lease documents 'of present Plaintif fs {Exhibits P-I and PW 1/6} themselves clearly mention this fact that the subject plots / properties are in Survey No.45 (Part), which is within the jurisdiction of Defendant Board being Block - 10A of Gulshan-e-Iqbal, Karachi. Thus, stance of Defendant Board is belied by their own undisputed record. Thirdly , since the registered lease deeds are not only registered instruments but also issued by Defendant Board in terms of power mentioned in the Cantonment Land Rules, therefore, presumption of genuineness as mentioned in Articles 92 and 129(e) of the Evidence Law is fully attracted to these registered instruments of lease and thus it is hereby held that the suit properties in all three present suits fall within Survey No.45 (Part), Block - 10A, Gulshan-e-Iqbal, Karachi.
Thus both Issues 6 and 7 are answered in Affirmative and that the subject plots /properties are in Survey No.45
(Part) not in Survey No.42 and hence, the notices dated 06.04.2006 (Exhibit P-5) issued by Defendant No.3 were illegal and without jurisdiction.
ISSUE No.8:
21. The Government functionaries are duty bound to act fairly, justly and reasonably while performing their functions, as held in number of decisions, which was subsequently inserted as Section 24A of the General Clauses Act, 1897. Defendant Board should have taken the corrective measures long before instead of contesting these suits though halfheartedly . Government functionaries should not see a complaint or grievance as a challenge to their authority , but if such grievance or complaint is genuine, then government functionaries (in the present case, the Defendant Board), is duty bound to address the same within parameters of law and in a swift and efficient manner . Government functionaries includ ing Defendant Board are public servants and their conduct should reflect that. It is expected that since Cantonment Boards work under supervision and control of Director General, Military Lands and Cantonments, therefore, in performance of their functions, element of fairness and transparency would be obvious, but, ironically this is not the current situation, particularly , in these three suits the conduct of Defendant Board is also tainted with mala fide. The action complained of and subject controversy of these suits is also hit by doctrine of promissory estoppel and locus poenitentioe , inter alia, because after issuance of ownership leases in their favour , Plaintif fs have taken substantial steps and made investments in raising residential structure at the suit plots and an attempt to deprive them of their ownership rights and interest resorting to such a procedure, is patently illegal.
Similarly , filing of aforementioned applications for leading the evidence, once the evidence was concluded, does not appear to be bona fide. Plaintif fs have also filed their objections to those applications. Hence, same cannot be considered at this stage and are accordingly dismissed.
22. In view of the above, First, Second and Third suits are decreed ID as prayed with costs.
Decisions relied upon by Plaintiffs' Counsel
1. 1995 SCMR page-284 [Wali and 10 others v . Akbar and 5 others]
2. 2004 SCMR page-1259 [Khawas Khan through Legal Heirs v . Sabir Hussain Shah and others]
3. 2004 SCMR page-1502 [Rahman v . Yara through LRs. and others]-Y ara case.
4. 1981 SCMR page-814 [Khushi Muhammad and 3 others v . Mst. Zainab Bibi and 20 others]
5. 1973 SCMR page-248 [Fatahuddin v . Zarshad and another]
6. PLD 2000 page-385 [Saleem Akhtar v . Nisar Ahmad] 7.0 1991 SCMR page-2223 [Messrs Khawaja Auto Cars Limited v . Muhammad Yousuf and others]
8. PLD 2004 SC page-465 [Muhammad Bashir and others v . Iftikhar Ali and others]
9. 2001 SCMR page-1700 [Muhammad Akhtar v . Mst. Manna and 3 others]
10. 1999 CLC page-1358 [Mst. Farooq Bibi v . Abdul Khaliq and 26 others]
11. PLD 2002 Pesh. 21 [Haji Din Muhammad through Legal Heirs v . Mst. Hajra Bibi and others]
12. 2016 CLC Note 2 [Dr. Nusrat Aziz through Attorney v . City District Government, Karachi]
13. 2003 YLR page-1760 [Mrs. Sultana Ahmed v . Sindh Industrial T rading Estte Ltd. through Managing Director and 2 others]
14. 1998 MLD page-1771 [Messrs Munawar & Co. (Pvt.) Ltd v . Karachi Development Authority and others]
15. 2007 MLD page-2003 [PICIC v . Karachi Development Authority] - PICIC Case.
16. PLD 1987 SC page-145 [Pir Bakhsh and others v . The Chairman, Allotment Committee and others]
17. 1996 PLC (C.S.) page-364 [Muhammad Sohail v . Government of N. W . F. P. and others]
18. PLD 2004 Supreme Court page-77 [Federation of Pakistan and others v . Qamar Hussain Bhatti and others] - Bhatti Case
19. PLD 2006 SC page-166 [Tehsil Municipal Administration Faisalabad City v . Muhammad Saleem and others]
20. 2006 MLD page-1 [District Coordination Of ficer Pakpattan and 2 others v Safdar Ali and another] Decisions cited by Defendants' Counsel ---------------------- Other precedents
1. PLD 2010 Supreme Court page-483 [Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan, and another] - Khursheed Bhinder Case.
2. PLD 2013 Supreme Court page-255 [Muhammad Anwar and others v . Mst Ryas Begum and others] - Anwar Case.
3. 2011 SCMR 1023 [Amir Jamal and others v . Malik Zahoor-ul-Haq and others] Amir Case.
Law under discussion:
1. Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution").
2. The Limitation Act, 1908 ("Limitation Law")..
3. Qanun-e-Shahadat Order , 1984 (Evidence Act, 1872); Evidence Law .
4. Civil Procedure Code, 1908 ("C.P .C.")