SALAHUDDIN PAHNWAR. respective parties.
2. Concisely relevant facts as per the appellant are that the appellant filed suit for the relief of declaration, damages, directions, cancellation and permanent injunction in, respect of residential plot No. A-33, Sector 6-H, measuring 240 square yards, Korangi Township, Karachi. According to the appellant he is working at Saudi Arabia for the last 11 years. After June 2001 he visited his family, on 02.07.2001 he remained in Pakistan till 23.12.2001, then again he visited on 02.11.2005 and remained here till 31.01.2006 and subsequently he visited on 13.10.2007 and remained there till 23.01.2008. He had purchased residential plot referred above from the previous allottee namely Abdul Anees. The plot was transferred in his name by the Karachi Development Authority vide transfer order dated 12.04.2000. Possession was also handed over to the plaintiff along with documents. Plaintiff erected boundary wall and gate. The lease formality was not completed because plaintiff was required to join his duty at Saudi Arabia; therefore, he has appointed his friend namely Bashir Khan as attorney and authorized him to complete lease formalities in the name of appellant. The respondent No.1 informed him on telephone regarding execution of lease deed by the KDA on the basis of power of attorney in favor of the plaintiff vide indenture of lease deed bearing registration No. 1610 dated 15.05.2000, having M.F Roll No.U-13356 dated 20.05.2000. On his arrival at Karachi he demanded the original documents from his friend who replied that all formalities are not yet completed and thereafter appellant returned bank. He again visited his family at Karachi and remained here prom 13.10.2007 to 23.01.2008 but the respondent avoided to meet with him. He got search certificate which confirmed that suit plot is in his name. On verification of indenture of leave he came into knowledge that lease did not exist in favor of the appellant and also did not tally with the office record. As such, the appellant filed suit.
3. It is settled principle of law that this court has every limited scope in II-Appeal and only judgment of trial court ore examined by keeping in view that as to whether the same was result of misreading or non-reading of evidence or if there is any finding contrary to the law. It would be safe to say that the interference by this Court would be justified only when decision of lower Courts is contrary to law or the Courts below failed to determine material issue of law or committed substantial error or defect in the procedure which resulted in error or defect in decision of the case on merits.
Guidance is taken from the case of Anwar Textile Mills Ltd. v. Pakistan Telecommunication Company Ltd. 2013 SCMR 1570 wherein criterion for justifying interference in second appeal are confined as:- "15. Thus, by reading of this provision, it is apparent that the High Court will be justified to interfere with the decision of the lower Courts when it is contrary to law or failed to determine material issue of law or commits substantial error or defect in the procedure, which may have resulted in error or defect in the decision of the case on merits".
The core issue in the matter was / is the issue No.4 therefore, it would be conducive to refer adjudication of the trial court on issue No. 4, which reads as under: "Issue No.4: According to the plaintiff, he purchased the suit plot from Abdul Anees and after purchase the suit plot the same was transferred/mutated in the name of the plaintiff by the KDA vide transfer order dated 12.04.2000 and the previous owner Abdul Anees handed over vacant possession along with original title documents of the suit property to him and thereafter the plaintiff gave the same to his friend the defendant No.1 with power of attorney for completing formalities to obtain the lease of the suit plot but the defendant No.1 after obtaining the lease in the name of the plaintiff has refused to hand over the original title document to the plaintiff, though the plaintiff in possession of the suit plot. Whereas, the plaintiff in his cross examination has admitted that he and the defendant No.1 are residing in the same muhallah since last more than 16 years but admittedly the plaintiff has never lodged any FIR or complaint against the defendant No.1 for not returning his original title documents. Admittedly the plaintiff did not give any application to the Sub Registrar or CDGK for duplicate documents. The plaintiff has admitted that he has not filed or produced copy of paid challan in respect of the lease or transfer/mutation order. Admittedly no public notice was given in any newspaper before purchasing the suit plot by the plaintiff the plaintiff has admittedly not filed even photocopy of NIC of the previous owner Abdul Anees. Further the plaintiff has not produced any sale agreement or payment receipt executed by the previous owner Abdul Anees in his favor. The plaintiff has admitted that copy of the lease filed by him as annexure P-8 is appearing stamp of Sub-Registrar-T Division while Search Certificate produced by the plaintiff at Ex. P-1/D is used by Sub-Registrar Korangi Tonwship, Karachi. The plaintiff has examined two witnesses namely Fazal Rahim and Muqeem Gul as PW-2 and PW-3 who have stated that the plaintiff purchased the suit property from Abdul Anees in the year 2001 and raised a boundary wall with a gate and then the plaintiff went abroad while handing over the original documents of the suit property to the defendant No. 1. But both these witnesses have admitted that the plaintiff had not purchased; the suit property in their presence nor any sale consideration was paid by the plaintiff in their presence to the previous owner Abdul Anees. They further are not known even amount of sale consideration. PW-2 does not know as which title documents were given by the plaintiff to the defendant No.1 in his presence. PW-3 has admitted that neither he has seen the documents given by the plaintiff to the defendant No.1 nor plaintiff handed over any documents to the defendant No.1 in his presence.
Further CDGK in their written statement have also stated that the transfer order dated 12.04.2000 and the lease dated 15.05.2000 filed by the plaintiff in his favor are bogus and not issued by the concerned department.
In these circumstances discussed above how the plaintiff can say that defunct KDA (CDGK) after realization of the charges from the plaintiff issued indenture of lease of the suit plot in the name of the plaintiff on 15.05.2000. Hence, Issue No.4 is answered in negative".
(Underlining and bold have been applied for emphasis).
4. In juxta position appellate court also maintained judgment passed by the learned trial court.
Page-23 being relevant, same is reproduced as herewith as under: "The respondent No.2 contested the matter by filing written statement whereby he denied the allegations and stated that documents in favor of the appellant are bogus. Suit plot was initially allotted in the name of Abdul Anees son of Abdul Ghaffar on 10.09.1975 and then it was transferred in the name of the Aisha Bibi on 07.08.2002 and lastly in the name of Maid Gul on 03.02.2005.
It is worth mention here that appellant in his evidence admitted that he has not produced sale agreement or payment receipt executed in his favor by the original allottee namely Abdul Anees.
It was privilege transfer and appellant has also failed to produce the copy of challan. Appellant during his evidence produced search certificate. The appellant has also examined PW Fazalt Rahim and Muqeem Gul in his support but they did not support on the point of execution of sale agreement, sale transaction and payment made by the appellant. As far as indenture of lease annexed with memo of plaint/suit is concerned it reflects that it was executed by the Assistant Director Karachi Development Authority but his name is not transpired that which officer (by name) execute such indenture of lease in favor of the appellant. The marginal witnesses of the indenture of lease were not examined and even their particulars in detail are not available in the indenture of lease. NIC numbers appear on the indenture of lease are also old one, whereas, in the year 2000 the computerized national identify card has been introduced. The appellant has failed to examine his friend namely Bashir Khan. No publication with regard to sale transaction was held in newspaper and-it is admitted by the appellant in his evidence. In case of breach of agreement law provides two remedies one is specific performance of contract and other is damages, here in this case if any cheating committed with the appellant he could have to sue against Abdul Anees and Bashir Ahmed his friend for damages.
Under the circumstances and in view of the above I am of the humble opinion that the judgment and decree of the learned trial court is based on sound reasoning which does not need any interference of this court, the same is dismissed, in result, appear in hand stands dismissed, with no order as to costs".
5. Perusal of above reflects that though appellant claimed that he is owner of subject matter property and approached to the civil court for seeking declaration in Section 42 of Specific Relief Act. The written statements were filed by the official respondents denying therein that any title document, produced by the appellant, is not part of their record rather such document was claimed as forged. Here, it is worth noting that present appellant had claimed to have purchased a specific property which was / is to be determined by the official record only who categorically denied such claim of the appellant. Needless to mention that title and competence of seller in respect of an immovable property shall always be examined and determined with reference to official record only hence the Rights and liabilities of buyer and seller, defined by Section 55 of Transfer of Property Act, 1882, includes number of rights and liabilities but at top thereof it is : "1) The seller is bound-- a) to disclose to the buyer any material defect in the property or in the seller's title thereto of which the seller, is, and the buyer is not, aware, and which the buyer could not with ordinary care discover: Accordingly, the appellant, being buyer, was required to make an inquiry about title of the seller in respect of property under sale but was, prima facie, not done as officials have denied such title. In such eventuality, it was obligatory upon the appellant to have called the officials to substantiate his pleadings or least to prove existence of his claimed property. I would add that without proving the lawful existence of subject matter which, once disputed, renders the agreement as void hence evidence for proving sale agreement by examining the witnesses thereof could only be material to claim damages against seller and not for enforcement to get title of. such property. Needless to add that the appellant examined two witnesses namely [1] Fazal Rahim and [2] Muqeem Gul but they also failed to support Sale transaction and payment made by the appellant. Accordingly, instant II-Appeal is dismissed along with listed application[s].