MRS. KAUSAR SULTANA HUSSAIN, J.---The petitioners/applicants filed present Constitution Petition No.D-7346 of 2017 being aggrieved and dissatisfied with the impugned order dated 23.10.2017, passed by the learned District Judge Karachi-Central in Civil Revision Application No.63 of 2017, filed by the petitioners/applicants against the order dated 23.09.2017, passed by the learned XIth Senior Civil Judge Karachi-Central on an application under Section 12(2) C.P .C. filed by the petitioner No.2/ applicant No.2/J.D No.2 in Civil Suit No. 1275 of 2014.
2. Facts of the case requisite for disposal of this constitution petition are that the House No. 919, Block-12, F.B.
Area, Karachi (hereinafter to be referred as subject property) owned by mother of the petitioners/applicants namely Mst. Rashida Fatima and husband of respondent No.1 namely Syed Sohail Haider Zaidi, which was acquired by her by way of Relinquishment Deed executed in her favour by her brothers and sisters. vide Registered Deed of Relinquishment dated 7.3.2005, thus said Mst. Rashida Fatima wife of Syed Haider Zaidi became owner of the suit property . The mother of petitioners/applicants, Mst. Rashida Fatima was residing in suit property along with her daughters; while her sons were residing abroad and whenever they came to Pakistan they used to reside in the suit property . The Ist floor of the suit property was let out by the mother of the petitioners/applicants to meet daily and medical expenses of her own and her mentally retarded daughter namely Farzana Zaidi (petitioner No.1 through her guardian ad-litem). Mst. Rashida Fatima had expired in the year 2007 in Karachi and after her death her daughters continue to reside in the suit property and whenever their brothers used to come from abroad they also resided at the suit property as their own house. It is further averred in the Petition that elder brother of the petitioners/applicants, namely , Syed Soha il Haider Zaidi, who was residing with his family in Canada had expired on 10.4.2008 leaving behind the following legal heirs.
Sr. Name Relation 1 Mst. Shireen Sohail Widow (respondent-1)
2 Syed Saqib Haider Zaidi Son 3 Syed Basit Haider Son 4 Miss. Syed Mehak HaiderDaughter 5 Miss. Rabia Haider Daughter (respondent-3)
3. The petitioners/applicants later came to know that their brother late Syed Sohail Haider Zaidi husband of respondent No. 1 . somewhere in the year 2006 had come to Pakistan from Canada and fraudulently and secretly got the subject property of this Petition transferred solely in his name by way of Registered Gift Deed through their mother Mst. Rashida Fatima, depriving other brothers and sisters and concealed the said Gift Deed even after the death of their mother , while the attesting witnesses chosen for the said fraudulent Gift Deed were highly interested witnesses so much so one witness of the Gift Deed is real elder brother of the present respondent No. 1/widow of Syed Sohail Zaidi and on the basis of said Gift Deed the whole subject property of this Petition was mutated in the K.D.A. record only in the name of the present respondent No. 1 including the share of her minor , daughter Rabia the respondent No.3. The petitioners/applicants came to know that respondent No.1 had filed SMA No. 119 of 2009 before this Court regarding moveable properties of her deceased husband. It is further averred in the Petition that the alleged Gift Deed was disclosed by the respondent No.1 after about two years of death of their mother (Donor), since the physical possession of the subject property was not delivered by the Donor to the so-called Donee namely Syed Sohail Haider , therefore, the alleged Gift Deed could not be noticed for several years by the brothers and sisters, as at the time of making alleged Gift Deed in the year 2006 the mother Rashida Fatima was cancer patient and lying on the death bed with critical mental condition and she was also suffering from Aizheimer disease.
The respondent No.1 filed a' suit bearing No. 1275 of 2014 for Possession, Permanent Injunction, Recovery and Mesne Profit against one legal heir namely Mst. Naheed Arif by excluding other six legal heirs of Rashida Fatima, wherein the impugned order dated 23.10.2017 was issued and the said suit was collusively got decreed ex-parte by managing service of Court notice upon the respondent No.2 and now Execution Application No. 1 of 2016 is pending in the Court of learned XIth Senior Civil Judge, Karachi -Central, wherein the order for issuance of writ of possession was passed.
4. The learned counsel for the respondents has submitted objections on behalf of the respondents Nos.1 and 3, denying the some alleged facts of the petition and further stated that the petition ers have not come before this Court with clean hands. It is further submitted that all the sons of the decea sed Mst. Rashida Fatima are permanently residing abroad while her one daughter after her marriage shifted to Saudi Arabia, two other daughters of Mst. Rashida Fatima namely Mst. Uzma Zaidi (guardian ad-litem of Mst. Farzana Zaidi) and Mst.
Farzana Zaidi are residing in Rawalpindi and one more her daughter Mst. Naheed Arif is in possession of the suit property and residing therein. It is further submitted that respondent No.1 shifted on the first floor of the suit property after her marriage and till now she is in possession of the first floor of the suit property . It is further submitted that Mst. Rashida Fatima was not suffering from any diseases till her death. It is further submitted that initially the respondent No.1 got mutated the subject property in her name on the basis of registered Relinquishment Deed but after the objec tion raised by the respondent No.2 on the order of this Court, the said property was mutated in the name of respondents Nos.1 and 3 jointly . He prayed for dismissal the instant petition on special cost.
5. We have heard the learned counsel for the petitioners, respondents Nos.1 to 3, Assistant Advocate General, Sindh and also have perused the entire record of the file. The record reflects that Mst. Rashida Fatima was the owner of the subject property , duly relinquished in her favour by her all siblings through registered Relinquishment Deed as such her name was brought on record of right as owner and after her death the respondent No.1, the widow of their brother Syed Sohail Haider Zaidi had filed S.M.A No.119 of 2009 before the Court of District Judge Karachi Central and first time she brought this fact on record that before her death in the year 2007, their mother Rashida Fatima gifted the said property to her son namely Syed Sohail Haider Zaidi, who had also died in the year 2008 in Canada, since then the LRs of Rashida Fatima are struggling to obtain cancellation of said Gift Deed by filing suits against the widow/respondent No. 1 . The respondent No.1 filed a Suit No. 1275 of 2014 for Possession, Permanent Injunction and Mesne Profit in respect of subject property against Mst. Naheed Arif without impleading the other legal heirs of Mst. Rashida Fatim a who were also residing in the subject property . While going through the contents of the plaint of Suit No. 1275 of 2014, it reveals that respondent No.1/ Plaintif f has filed that Suit without claiming declaration regarding her ownership of the subject property although all the LRs of Rashida Fatima were not the party to that Suit but they always denied the inherited ownership of the respondent No.1 on the basis of disputed Gift Deed in the name of her deceased husband Syed Sohail Haider Zaidi allegedly executed by their mother . Before making further discussion on the point of seeking declaration, we would like to reproduce here Section 42 of the Specific Relief Act, which says:-
42. Discretion of Court as to declaration of status or right: Any person entitled to any legal character , or to any right as to any property , may institute a suit against any person denying, or interested to deny , his title to such character or right, and the Court may in its discretion make therein declaration that he is so entitled, and the plaintif f need not in such suit ask for any further relief.
6. Section 42 gives a remedy to a person against all persons who not only claim on interest adverse to his interest, but also against all these who may do so and it is intended that all such claims may once and for all be determined in one Suit. Through filing Suit by the respondent. No.1 without seeking declaration of her ownership, the respondent No.1 to this Petition claimed possession of the subject property against only one of the LRs of the. deceased Rashida Fatima, who did not contest the matter , while other LRs were not made party in that Suit but they are repeatedly denying title of respondent No. 1. The suit of the respondent No. 1 was decreed ex-parte but later other LRs of Rashida Fatima filed an application under Section 12(2), C.P.C. that they are also residing there, which point requires evidence as to whether the alleged Gift Deed was executed without fulfilling the necessary condition and essential ingredient of gift for handing over/taking over the possess ion of the gifted property by the donor to the donee to validate the such Gift Deed, if not, the question would definite ly arises as to whether the such Gift Deed could be treated, as valid and legal transaction? Through the contents of the application of the applicants under Section 12(2), C.P.C, it further reveals that they claimed therein that they being owners are in possession of the subject property from the life time of their mother Rashida Fatima, who never gifted the property in question to her son Syed Sohail Haider Zaidi but the respondent No.1 did not file her instant suit for seeking Declaration of her ownership on the contrary , she only claiming possession of the subject property along with mesne profit. The Petitioners further claimed that it was collusive suit filed by the respondent No. 1 /plaintif f against respondent No.2 in this Petition. It is a matter of record that respondent No.1 while filing SMA No. 119 of 2009 before the Court did not disclose / mention the name of her minor daughter as one of the legal heir of her late husband and obtained Succession Certificate in her favour by concealing this fact but later when it was brought in knowledge of the Court through filing objections by the sister of her deceased husband the said Succession Certificate was cancelled by the Court and the name of her minor daughter was brought on record. It is also on record that after obtaining Succession Certificate, the respondent No.1/widow get the rights of inherited shares of all Major LRs of her husband Syed Sohail Haider , relinquished in her favour in subject property by executing Relinquishment Deed and obtained the transfer / mutation certificat e of the property in her name as well as on the name of her said minor daughter whose name was later brought on record 'after raising objection before the District Judge at the time of grant of Succession Certificate. It is a claim of the applicants that the alleged gift was disclosed by the respondent No.1 / widow after about two years from the death of their mother , which shows that their mother did not hand over possession of the house to her son / donee, the husband of respondent No. 1. From perusal of entire case it is clear that matter requires evidence and legally the suit could not be filed against only one occupant of the subject property by ignoring other occupants, if they are also residing in the subject hous e, therefore, we are of the view that the respondent No. 1 has obtained judgment and decree dated 30.9.2016 fraudulently and collusively by practicing fraud, therefore the instant Constitution Petition is hereby allowed and in consequence thereof, the impugned orders dated 23.10.2017 and 23.09.2017 passed by the learned District Judge, Karachi-Central in Civil Revision No. 63 of 2017 and the learned XIth Senior Civil Judge, Karachi-Central on an application under Section 12(2) C.P.C. in Suit No. 1275 of 2014 respectively are hereby set aside. In the larger interest of justice and in order to decide the matter on merits, the ex-parte judgment and decree passed on 30.09.2016 and 30.10.2016 respectively are also set aside. The Applicants are hereby impleaded as defendants Nos. 2 to 4 (defendant No.2 through defendant No.3) in the Suit of the respondent No.1/plaintif f bearing No.1275/2014 with direction to the learned trial Court to provide chance to all the defendants to contest the matter and frame two additional points that
(i) As to whether the alleged Gift deed dated 21.02.2006 is legal and valid document being executed by the donor without handing over the possession of the subject property to the donee? (ii) As to whether the respondent No./plaintif f in pursuance of said gift deed may claim that her late husband Syed Sohail Haider Rizvi was the owner of the subject property from whom, she inherited the said property . Instant Constitution Petition is hereby allowed in terms mentioned above. There shall be no order as to cost.