MAHMOOD AHMED KHAN, J.---These two suits concerning the same parties and the same property were being heard together and as such are taken up to be decided under the same order, however, versions of the parties are taken and separate details are discussed.
2. Suit No. 713/2007 filed by Muhammad Umar Godil (hereinafter referred to as the plaintiff) for possession, mesne profit and permanent injunction against defendants Mst. Bilqees Bano Amin Godil, Mst. Farida Amin Godil, Mst. Sher Bano Amin Godil (hereinafter referred to as the said ladies) and the Kathiawar Cooperative Housing Society Ltd. It is alleged in the plaint that father of the plaintiff purchased five shares bearing Nos. 881 to 885 from defendant No.4 and nominated the plaintiff as a legal heir being head of the family for transfer of plot, whereby the said defendant allotted plot bearing No.251, Block-B, Adamjee Nagar, Kathiawar Cooperative Housing Society Limited, Karachi to the father of the plaintiff wherein the plaintiff was nominee of his father and after the death of the father of the plaintiff the said house was transferred in the name of the plaintiff. The defendant No.4 executed sub-license No.2 in the name of the plaintiff which was duly registered with the Registrar of properties concerned on 22.01.1969. It is further claimed that the plaintiff already in possession of the suit plot on the basis of allotment order and sub-license was accorded permission for construction from KDA by letter dated 16.05.1968. It is further claimed that the plaintiff and the said ladies are real brother and sisters and that the plaintiff was residing at the suit property up to 21.02.1999. Where after he purchased Flat No. I, ground floor, Shamim and Rizwana Manzil, constructed on Plot No. 1386, Block-3, Siddiqabad Memon Colony, Federal B-Area Karachi and shifted his family there. The plaintiff thereafter informed the defendant No.4 about his new mailing address through letter dated 09.04.2001 acknowledged by letter of the said defendant dated 12.04.2001. In the year 2006 original documents of the suit property were lost and the plaintiff applied to defendant No. 4 for issuance of duplicate share certificate, allotment order and sub- license No.2 and in this regard public notices were also got issued. The plaintiff also paid ground rent for the suit property up to the year 2015 in the Ministry of Works, Government of Pakistan on 25.03.2007. The said ladies who were claimed to be the real sisters are said to be residing in the said house and in the fast week of March 2006 the plaintiff on inquiry of someone about the title of the said house came to know that his sisters are selling the same. The plaintiff contacted the said ladies requiring to vacate the house as he was in need of money wherein time was sought by the said ladies. On second approach in September 2006 the time was again sought which was granted by the plaintiff. On 05.12.2006 Mr. M.A. Latif advocate served a legal notice upon defendant No.4 requesting for cancellation of the allotment in the name of the plaintiff and claim that the said ladies are also entitled as legal heirs in the suit property show in shock the plaintiff who approached the said ladies for vacation of the house, but found that behavior of the said ladies in completely changed and they refused to vacate the house claiming to be the equal owners of the same. The plaintiff claims to be the lawful and real owner of the suit property and the said ladies being permitted by him for use of the suit property and their refusal have no legal status to resist vacation at the choice of the plaintiff. It is also claimed in the plaint that rental value of the house in question is in the sum of Rs.80,000/- per month and the said ladies are under lawful obligation to pay the same as mesne profit till possession is handed over to the plaintiff.
3. The said ladies have filed their written statement. They in their written statement filed in Suit No. 713/2007 and in the plaint of suit filed by them bearing No. 1479/2007 have a common stand being that the claim of the plaintiff is not maintainable under Section 42 of the Specific Relief Act and the same is time barred. It is further stated that the shares as alleged were purchased by the father of the said ladies and the allotment of the suit property was made in the name of the father of the said ladies. They further claimed that the plaintiff Muhammad Umer Godil was an adopted son of their father at the time of solemnization of second marriage with his mother. It is however claimed that their father never transferred the subject plot in his name and that the documents relied upon by the plaintiff are forged and fabricated. It is further claimed that through the contents of the pleading by Muhammad Umer Godil they have come to know that sub-license has been acquired by him. It is further claimed that mother of the said ladies constructed the house from her own sources along with the sources of the said ladies wherein construction material was purchased and all the Government dues/taxes were also paid in the same manner after the death of the father and during her life time. It is further claimed that the flat said to have been purchased by the plaintiff was acquired by the mother of the said ladies and prior to the same the plaintiff was living in another house and not with the said ladies and their mother. It is further claimed that the plaintiff has nothing to do with the said property as well as for the said ladies for the last 40 years and even he did not attend the burial of the mother of the said ladies. It is further claimed that the property stood in the name of the father of the ladies and that share certificates, allotment order, sub- license have been acquired by the plaintiff in collusion with defendant No.4. The subject property was mortgaged with House Building Finance Corporation (HBFC) for a loan and the same was transferred in the name of the plaintiff in the record of defendant No.4 with the understanding that the same will be transferred in favour of the said ladies which was later on transferred by way of gift executed in favour of the said mother and was so acknowledged by defendant No.4. The legal notice was claimed as valid.
4. The two suits were consolidated vide order dated 10.05.2010 and the following issues were framed;
1. Whether the suit is maintainable?
2. Whether at the time of marriage of Mst. Maryam (mother of plaintiffs Nos. 1 to 3) with Muhammad Amin Haji Abdullah Godil, the defendant No. 1 being son of his first wife, was in existence?
3. Whether the defendant is the adopted son of Muhammad Amin Haji Abdullah Godil having his mother other than Mst. Maryam Bai on raising loan from House Building Finance Corporation and repaid the same from her own resources?
4. Whether the suit plot was constructed by Mst. Maryam Bai on raising loan from House Building Finance Corporation and repaid the same from her own resources?
5. Whether the plaintiff is entitled for physical possession of the suit property and mesne profits?
6. Whether the plaintiff is the real son of the father of the defendants?
7. Whether the plaintiff fraudulently got the suit property transferred with the defendant No.4?
8. Whether suit No. 1479 of 2007 is barred by limitation law?
9. Whether sub-license No .2 allotment is liable to be corrected, deleting the name of defendant No. 1 as nominee?
10. What should the decree be?
5. The plaintiffs examined PW-1 Muhammad Omar Godil as Ex:P, producing his affidavit-in- evidence as Ex:P/1, photocopies of share certificate No. 177 as Ex:P/1-A, nomination letter dated 14.03.1953 marked 'X', allotment order dated 31.10.1954 Ex.P/1-B, license dated 22.01.1969 Ex.P/1-C, letter dated 16.05.1968 Ex. P/I-E , building construction plan Ex:P/1-F, letter dated 09.04.2001 marked 'X/1', letter dated 12.04.2001 marked 'X/2', public notice dated July 2006 marked 'X/3', original public notice Ex:P/1-G, two paid challans as Ex:P/1-H and Ex:P/1-1, notice dated 05.12.2006 marked 'X/4' and original rent receipt dated 14.03.1999 as Ex.P/1-J. PW-2 Yousuf Godil was also examined by the plaintiffs as Ex:P/2.
6. Defendants examined DW Sher Bano as Ex:D-1, producing her affidavitin-evidence as Ex:D-1/1, photo copies of special power of attorney as Ex:D-1/2, certificate dated 02.11.1953 as Ex:D-1/3, allotment order as Ex:D-1/4, deposit slips as Ex:D-1/5 to D-1/12, NIC of Umar Godil marked as 0/1, letter as Ex:D-1/13, Instrument of transfer dated 23.08.1987 as Ex:D-1/14, deed of confirmation of oral gift executed on 31.03.1987 as Ex:D-1/15, receipt of application of Mst. Maimoona Godil as Ex-D1/16, will of Mst. Mariam Bai as Ex D-1/17, deed of redemption dated 09.03.1981 as Ex:ED-1/18, letter of undertaking executed on 16.09.1970 as Ex:D-1/19, letter of Director Regional Directorate of Human Rights, Ministry of Law Justice and Human Rights, Islamabad dated 11.10.2007 as Ex:D-1/20, letter of Registrar, Provincial Ombudsman (Mohtasib) Sindh dated 29.03.2007 as Ex:D-1/21, letter dated 23.05.2007 as Ex:D-1/22, two legal heirship certificates issued by Mr. Iftikhar Ali Hashmi, Justice of Peace on 20.01.2007 and 23.01.2007 as Ex:D-1/23 and Ex:D-1/24 respectively declarations of Muhammad Amin Godil as Ex:D-1/25, declaration of Mst. Mariam Bai Godil as Ex:D-1/26, individual Member pass book issued by Kathiawar Cooperative Housing Society Ltd. to Amin Haji Abdullah Godil as Ex:D-1/27, driving license of Miss Farida Godil as Ex:D-1/28, certificate issued to Miss Farida Amin marked as 0/2, certificate of basic sectional training course held by Civil Defence Department marked as 0/3, death certificate of Mrs.Mariam Bai as Ex:D-1/29, receipt as Ex:D-1/30, quotation of Raja Ali Traders as Ex:D1/31, two quotations of Rayees Sanitary Works as Ex:D-1/32 and D-1/33, Objection of Mst. Mariam to Director Excise and Taxation Gross Annual Rental value assessed by the department as Ex:D-1/34, notice of Excise and Taxation Authority as Ex:D-1/35, two notices of Excise and Taxation Officer as Ex:D-1/36 and D-1/37, two show cause notices as Ex:D-1/38 and D- 1/39, letter of Honorary General Secretary of Adamjee Nagar as Ex:D-1/40, driving license of defendant Mst. Sher Bano as. Ex:D-1/41, letter of appointment dated 20.12.1983 as Ex:D-1/42, certificate issued by Karachi Transport Corporation as Ex:D-1/43, two certificates of Civil Defence Department, Government of Sindh as Ex:D-1/44 and D-1/45, photograph as Ex:D-1/46, original card of Car Godil Motor Training Institute as Ex:D-1/47, 8 bills of Karachi Water and Sewerage Board as Ex:D-1/48 to D-1/55, two electricity bills of suit property as Ex.D-1/56 and 0-1/57, agreement of sale dated 13.12.1982 in respect of suit property as Ex:D-1/58, bill of KW&SB as Ex:D-1/59, copy of voters' identity card of Muhammad Amin Haji Abdullah Godil dated 04.10.1953 as Ex:D-1/60, three specimen signature cards as Ex:D-1/61 to D-63, death certificate of Muhammad Amin Godil issued by Cantonment Board Karachi on 30.04.1957 as Ex:D-1/64, cutting of newspapers as Ex:D-1/65 to D- 1/70, photograph as Ex:D-1/71, name plate placed on Bait-ul-Maryam as Ex:D-1/72, fatwa of Jamiatul-Uloom Al-Islami Allama Banori Town Karachi as Ex:D-1/ 73, 10 payment slips in respect of loan paid by Mst. Maryam Amin Godil in National Bank of Pakistan a Ex:D-I/74 to D-1/83, application of Maryam Bai addressed to Deputy Chief Accountant, HBFC as Ex:D-1/84, receipt of application for closing account dated 03.01.1980 as Ex:D-1/85, application of Mst.Maryam Bai dated 03.01.1981 as Ex:D-1 /86 and agreement of rent executed by Mst. Maryam Bai on 22.03.1975 as Ex:D-1/87.
All the witnesses were cross-examined by the opposite contesting sides.
7. It is argued by the learned counsel for the plaintiff that the Suit No. 713/2007 has been filed by the plaintiffs therein who are also defendants Nos. 1 to 3 in Suit No. 1479/2007. Learned counsel contends that the subject property was acquired by their late father Mr. Muhammad Amin Haji Abdullah Godil and the defendants Nos. 1 to 3 are the only legal heirs of the said owner as they are daughters of the said owner and Mst. Marium Umar Godil (who was born on 1924) and was the second wife. That the plaintiff of Suit No. 713/2007 is the son of one Ghaffar and Zulekha Bibi (having born in 1933) and was adopted by the Muhammad Amin Haji Abdullah Godil when he got married to Mst. Zulekha Bibi being his first wife, who had brought the said plaintiff having born from her first marriage with the said Ghaffar. The subject property as such on the death of its previous owner stood in the name of the mother of the said defendants Nos. 1 to 3 as a nominee of the legal heirs and thereafter the said defendants claim the same being the only legal heirs of the said father and the mother as there is no other legal heir. However, Muhammad Umar Godil wrongly claiming to be the legal heir and without any legal status acquired the status of nominee before the cooperative society who is also defendant by making false mis-statement in this regard and filed the suit No. 713/2007, where after Suit No. 1479/2007 has been filed. It is further contended that the said defendants have brought up all original documents available with them, establishing their ownership and that the possession has also been available with the said defendants. That although the said plaintiff had brought up his evidence in suit No. 317/2007 he has failed to cross- examine the defendants despite opportunities being provided and eventually his side was closed which order has not been challenged. That there is no rebuttal to the evidence brought up by the defendants in respect to their claim as such their suit is liable to be decreed as prayed.
8. Having heard the learned counsel as present (the other side/s preferring to abstain themselves despite sufficient opportunities given in this regard) and gone through the record before continuing any further, in exercise of the available powers, I would prefer to recast the issues for a clear presentation as under along with the findings, to be followed with the discussion thereto.
1. Whether the suits are maintainable? Negative for Suit No 713/2007 and Affirmative for suit No. 1479/2007.
2. Whether Muhammad Umar Godil is one of the legal heirs of Late Amin Haji Abdullah Godil?...Negative.
3. Whether the documents favoring Muhammad Umar Godil are liable to be cancelled?........Affirmative.
4. What should the decree be?...... Suit No. 713/2007 is.......dismissed and Suit......No. 1479/2007 stands...... decreed as prayed.........with costs.
9. Issue No: It Whether the suits are maintainable? This issue covers the earlier issues as to matter of maintainability in accordance with law only (being issues Nos. 1 and 8) including limitation, the maintainability as to the merits stands discussed under the relevant following issues/s. It has been observed that the plaintiff of the leading suit bearing No.713/2007 Muhammad Umar Godil (since deceased and his legal heirs impleaded) filed the said suit with the prayers as made therein claiming exclusive ownership based upon alleged entitlement of a nominee while admitting that the subject property was allotted to his father in the written statement of the other suit bearing No. 1479/2007 however a further claim has been made that the majority of the amounts paid for subject property came from him however in the evidence this stand has not been taken as such not requiring consideration.
10. The alleged status of the nominee has since long acquired a settled legal position whereby it stands determined that a nominee more especially before a cooperative society has no other/superior legal rights except to what he has to his own rights under the personal law of inheritance and that the said nominee only represents all the legal heirs, a nominee as such does not become an owner by virtue of being appointed as a nominee. This legal position is well established and is the settled law in this regard, consistently so held by the Honorable Supreme Court in the reported cases of Mst. Amtual Habib v. Mussarat Perveen PLD 1974 SC page 185, Fazal Shah v. Mohammad Deen 1990 SCMR page 868 and lastly in the case of Manzoor Ahmad v.
Salman Bibi 1998 SCMR page 388 being That the import of law of succession could not be frustrated by act or omission and that the nomination and membership of Cooperative cannot defeat the law of succession".
11. As such the said suit bearing No. 713/2007 is found not maintainable as the plaintiff of the said suit has no legal status to maintain the case for exclusively his own right nor can he claim exclusive possession/rights to the subject property for himself alone, the plaintiff of the said suit could however have filed a suit for his own share and entitlement if any available but cannot claim the same to any exclusion to the other legal heirs (this aspect is further discussed at the relevant place following).
12. As to the suit bearing No.1479/2007 (filed by the three ladies hereinafter referred to as the "said ladies") it may be observed that the same is for cancellation and permanent injunction filed on the cause of action as given therein in paragraph 12 of the plaint being the public notice of the defendants dated 7-7-2006 and moving of application by the plaintiff before the defendant No. 2 and not receiving a response thereto. It arises therefrom that the plaintiffs of the said suit filed the same on the defendants challenging their possession and legal rights thereto, the defendant not establishing anything in adversity no bar of limitation to the said suit is found. These issues as such are decided as negative for suit No. 713/2007 and affirmative for suit No. 1479/2007.
13. Issues Nos. 2 and 3: Whether the Muhammad Umar Godil is one of the legal heirs of Late Amin Haji Abdullah Godil? and Whether the documents favoring Muhammad Umar Godil are liable to be cancelled? These issues are taken up together which cover the issues Nos. 2 to 7 and 9 as previously framed. The plaintiffs of suit No. 1479/2007 interalia claimed in the plaint that Muhammad Umar Godial is the adopted son of their father, the same is also stated in the deposition which has gone un-rebutted and unchallenged and as such irrespective to the evidence as brought up on part of the said Muhammad Umar Godil belonging to his own self as well as of this witness who is said to be his brother wherein both have claimed to be the children of Late Muhammad Amin Haji Abdullah Godil Mst. Mariam Bai. The same is also not believed and is not being entertained as the record bears by way of copy of NIC of Mst. Mariam Bai having got made on 23-8-1974 shows her age 50 on the said date making her date of birth in the year 1924 (Although the document of her death certificate issued by NICVD made in the year 1994 describes her age as 96 the same is not considerable as compared to the NIC for not having the required stature/standing and criteria. The age recorded on NIC is for this specific purpose and carry the official sanctity and prima-facie more reliable as being postdated to any controversy. On the other hand the date of birth for Muhammad Umar Godil being is of 1933 (Shown on his death certificate issued by NADRA copy brought on record at the time of impleading the legal heirs) brings the age of the alleged mother to 9 years on the date of his birth which is not possible. Learned counsel for the plaintiffs in Suit No. 1479/2007 has rightly highlighted the same.
14. It is also further observed that all the communication with the concerned relating to the subject property has been done in the name of Mst. Mariam Bai whereas the said alleged owner/nominee is found absent from the picture. That in the cross-examination it is admitted by Muhammad Umar Godil that "Presently I am not in a position to prove that I ever resided in the House No. 251-B Adamjee Nagar KHC Karachi." The above given compared to a few documents brought forward by the other side on the basis of alleged nomination along with the insistence of Muhammad Umar Godil that he is the son of Late Muhammad Amin Haji Abdullah Godil and late Mst.Mariam Bai, which is not possible physically cannot lead any prudent mind to believe that Muhammad Umar Godil is one of the legal heirs of Late Amin Haji Abdullah Godil, the resulting effect being that the said ladies no longer requires to prove the issues Nos.2 to 7 and 8 individually as earlier framed, the said ladies having proved that they are the only legal heirs of Late Muhammad Amin Haji Abdullah Godil and late Mst. Mariam Bai having concern to the subject property. That Muhammad Umar Godil having acquired property documents in his own name by way of misstatement and attempted depriving of the legal heirs is not entitled to-retain the same as such the documents favoring the said Muhammad Umar Godil are liable to be cancelled. The deposition of the said ladies in the matter has gone unchallenged and un-rebutted after the dismissal of application filed for restoration of side by order dated 21.8.2017 on account of limitation and on the said application failed to avail the opportunity of cross-examination offered, the said order seems to be having attained finality as not challenged. These issues accordingly are determined as in negative and in affirmative respectively for the said issues.
15. Issue No. 4: What should the decree be? As a result of the discussions above given the suit 713/2007 is dismissed with costs and the Suit No. 1479/2007 stands decreed as prayed with costs.
Office to prepare the decree accordingly.