1. ' The plaintiff has filed this suit for declaration, injunction and possession against the defendant.
2. The following material facts are stated in the plaint:- ' The plaintiff who is the sister of the defendant alleges that she purchased the property on plot of land bearing No,H/C-R-3-S-29 which correspond to K.M.0 Survey No, 243, situated at New Martin, Road Karachi, from her father/owner late Haji Shamshuddin, for a total price of Rs,10,000, That late Haji Shamshuddin, executed a receipt for the above amounts in favour of the plaintiff as well as an agreement of sale in confirmation of sale in her favour. That late Haji Shamshuddin at the time of execution of agreement of sale also handed over vacant possession of plot alongwith the structure standing thereon to the plaintiff. That the plaintiff is in actual physical possession of half portion of the above plot where she was running a School under the name of "Shamahi Islamia School", since August, 1966, which has since been nationalized, and also used it as her residence while the remaining half portion is occupied by several tenants who were inducted in the building as tenants by late Haji Shamshuddin, and upon change of ownership of building they became tenants of the plaintiff. That the plaintiff's name has been recorded in the records of K.M.0 and Excise and Taxation Department as owner of plot in place of late Haji Shamshud din, and plaintiff has been paying all taxes in respect thereof to the Excise and Taxation Department, as well as K.M.C. That the defendant by force and persuasion compelled the tenants of the building not to pay any rent to the plaintiff with the result she has not been able to recover any rent from the tenants after purchase of the property. That the defendant filed several cases against the plaintiff in the Civil Courts for her eviction and declaration of his title but without any success. The plaintiff, accordingly filed the present suit seeking a declaration of her title to the plot of land and the structure standing thereon, a decree for possession against the defendant and injunction restraining the defendant from claiming any title in respect of the above property. The defendant in his written statement denied that the plaintiff has any xight, title or interest in the property in suit and claimed that the plot in dispute is Government land on which the defendant after occupying it sometime in 1952/1953 built the present structure out of his own money at a cost of Rs,35,000 and ate plaintiff was inducted in a portion of the building as a tenant in 1966 on a monthly rent of Rs,100, The defendant denied that the land or the structure thereon was owned by his late father Haji Shamshuddin. The defendant contended that the alleged agreement of sale is a forgery. On the pleadings of the parties the following consent issues were adopted by the Court on 15-9-1979.
(1) Whether the plaintiff has purchased the suit property from late Haji Shamshuddin, and was put in possession?
(2) Whether the Agreement, dated 8-7-1971 is a forgery?
(3) Does the suit property belong to the defendant? If, so what is its effect?
(4) Is the plaintiff entitled to the Decree?
(5) General.
3. ' However, on 9-3-1980 the Court reframed issue No,3 and an additional issue was also framed. The issues settled by the Court in the case on 9-3-1980 were as follows:-
(1) Whether the plaintiff has purchased the suit property from late Haji Shamshuddin, and was put in possession?
(2) Whether the Agreement, dated 8-7-1971 is a forgery?
(3) Does the suit structure belong to the defendant, if so, what is its effect?
(4) Whether the suit is maintainable.
(5) Is the plaintiff entitled to the Decree?
6. General.
4. ' The parties have led evidence on the above issues which is documentary as well as oral. I have heard the learned counsel for the parties at length on the above issues and my findings thereon are as under:- Issues Nos.1 to 3: ' I will discuss these issues together as they are inter-related and can be disposed of conveniently together. The plaintiff has examined herself (Exh.5) and two attesting witnesses Hussain Ali Shah s/o Shah Mohammad Shah (Exh.6) and Mian Mohammad Akram, s/o Hasham Ali (Exh.7). She has produced documents Exhs.5/1 to 5/23. In her evidence the plaintiff stated that she purchased the property in suit from her late father Haji Shamshuddin. She has produced a receipt, dated 8-7- 1971(Exh.5/4) alleged to have been executed by her late father wherein receipt of the sum of Rs,10,000 is acknowledged, She has stated that this receipt was written by his younger brother Ghyasuddin. She has also produced another document (Exh.6/1) which is an agreement in respect of the house in suit on a stamp paper alleged to have been signed by her late father Haji Shamshuddin. This document is also dated 8-7-1971 (Exh.6/1). She stated that half portion of the plot is in her possession since 1966 where she was running a school while the remaining half portion was in possession of her late father but when he left Karachi, for Lahore, in 1970 he let out the same. She also stated that when she purchased the house, her, father put her in possession of the entitle house but soon after his death in 1972, the defendant occupied the half portion of house.
5. In cross-examination the plaintiff admitted that the possession of the house was given to her by her late father only on paper and she did not receive actual physical possession as the property was occupied by her elder brother (defendant). She also admitted that defendant was in possession of suit property before its purchase by her, since 1970. She stated that there were already tenants in the shops when her brother took over possession of property but the half portion was in possession of her father but later on defendant also occupied that portion of property which was in possession of her father. The plaintiff admitted that she was a tenant since August, 1970 @ Rs,100 per month and paid rent to her father prior to its purchase. She also stated in cross- examination that after her father shifted to Lahore, the defendant unauthorized took possession of the suit property excluding the school premises and started recovering rent of the same. She denied the suggestion that the portion of land which was in her possession was only that which was in her self-occupation and did not include the commercial area. She also admitted that she does not claim ownership of land. She denied that the defendant occupied the plot in 1952-53 when her father was living in Lahore but admitted that in 1952-53 the defendant started the business of milk and kept buffaloes but this business was started by her father. She denied that the School premises was let out to her in August, 1966 by the defendant and she paid rent to him up to June, 1971. Regarding receipt dated 8-7-1971 (Exh.6/1) she stated in her examination-in-chief that both these documents were executed by her late father Shamsuddin in her favour. In crops- examination the plaintiff first stated that the stamp paper on which the document was written was purchased at Lahore but immediately thereafter she stated that she did not remember exactly whether the stamp paper was purchased at Lahore or Karachi. She admitted the date of purchase of Exh.6/1 as 7-8-1971 at Karachi and date of its execution as 8-7-1971. She also admitted having inserted the dates on Exhs 5/4 and 6/1 later on, after their execution and that dates on these documents were inserted in the same ink. The attesting witness of these documents Hussain Ali Shah (Exh.6) stated that at the time he signed these documents as witness he was residing as a tenant of late Shamsuddin at Lahore on the ground floor of the same house in which late Shamsuddin resided upstairs, in one room while in the other room the other attesting witness of the documents Mian Mohammad Akram resided. This witness identified his signatures as well as that of other witness Mian Mohammad Akram on both these documents. He stated that late Haji Shamsuddin came to him along with his son-in-law Quddusi with the documents Exh.5/4 and 6/1 and told him that he had received Rs,10,000 from his daughter (plaintiff) for the premises where she was running school and that he was transferring the same to her. Therefore, he as well Mian Mohammad Akram signed these documents as witnesses. He also stated that the second document Exh. 6/1 was brought by Haji Shamsuddin to them after about a month of the first document and late Haji Shamsuddin had told them that the second dobument related to first transaction mentioned in Exh. 5/4. In cross-examination this witness stated that late Haji Shamsuddin and already signed the documents upstairs when it was brought to him for his signature. He also stated that at the time he signed Exh. 5/4, Ghyasuddin was present in Lahore but he was not there when Exh. 6/1 was signed by the witness. He admitted that the sum of Rs,10,000 was not paid in his presence but denied the suggestion that both the documents were signed by him on the same day. He stated that he and Mian Mohammad Akram had signed these two documents in the room occupied by him in those days. He could not give the dates on which he signed the two documents. He also stated that he would not say when the dates were inserted in the above two documents. The other attesting witness of these documents Mian Mohammad Akram (Exh.7) also stated that Exh. 5/4 and 6/1 were signed by him as a witness and the other signature on these documents as witnes is that of Hussain Ali Shah. This witness also stated that Exh. 5/4 was brought by late Haji Shamsuddin on the ground floor for his signatures and he was accompanied by his son-in-law Quduassi. He also stated that Haji Shamsuddin told them that he had sold the plot to his daughter for Rs,10,000, He stated that the contents of Exh. 5/4 were read over to him and he then signed it. Regarding Exh. 6/1 this witness stated that it was signed on a stamp paper after about a month of the execution of Exh. 5/4 and at that time late Haji Shamsuddin told him that Exh. 6/1 related to the same transaction but it was on stamp paper. In cross-examination this witness stated that he had signed Exhs. 5/4 and 6/1 in his own room where the other witness Hussain All Shah had also come, for signing. This witness denied the suggestion that late Haji Shamsuddin had not signed Exhs. 5/4 and 6/1 in their presence and stated that he and the other witness were present when Haji Shamsuddin signed these documents. He stated that at the time he signed Exh. 5/4, besides the witnesses, Haji Shamsuddin and Quddusi, the younger son of Haji Shamsuddin Ghayasuddin was also present but when he signed Exh. 6/1 all other persons except Ghayasuddin were present. He admitted that he had the same ink and pen on both the occasions when he signed Exhs. 5/4 and 6/1. The defendant in his evidence stated that the signatures on Exhs. 5/4 and 6/1 were not that of his father who used to sign in English. The defendant stated that he gave the premises in occupation of plaintiff to her on rent and she paid him rent from August, 1966 to June, 1971 @ Rs,100 per month and he used to issue receipt to her for the rent and obtain her signatures on the counterfoil. The defendant denied that he occupied half portion of the property in the year 1971 when he came to know that his father had sold this property to plaintiff. The defendant claimed the property in suit as his own and stated that he built the same out of his own resources. The learned counsel for the defendant contends that late Haji Shamsuddin could not sell the property in suit to plaintiff as it did not belong to him but belonged to defendant and further contends that in any case the execution of documents Exh. 5/4 and 6/1 by late Haji Shamsuddin, on which the whole case of plaintiff rested, is not proved in view of the contradiction in the evidence of two attesting witnesses examined by the plaintiff. The learned counsel contends that the plot in suit was occupied by the defendant in 1952-53 and thereafter he raised construction thereon at a cost of Rs,35,000, To prove his occupation of the plot in 1952-53 he has examined one Akhlaque Ahmed Siddique (Exh.8) a clerk of Estate Officer Government of Pakistan, who stated that the letter Exh.8/1 was issued by his office to one Nanhey, who had started unauthorized construction on Government land, to stop the same forthwith. The learned counsel contends that his client is popularly known as Nance, and the letter Exh.8/1 proves his possession over the plot in suit since 1952-53. The letter Exh.8/1 relied by the learned counsel reads as under:- "No,715/604-New Shop, Government of Pakistan, Estate Officer.
6. Karachi, June, 1952.
7. ' It has been brought to the notice of this office that you have started unauthorized construction over the Government land without taking any prior permission from this office, you are, therefore, hereby directed to stop the construction forthwith failing which legal action will be taken against you.
8. To, Nanhey.
9. Copy to Ex.Eng, Const.Div.No,1 P.P.W.D for necessary action."
10. ' The above document relied by the defendant does not show the area, location or the number of plot. It does not even mention the nature of construction carried by the person to whom it is addressed. The address of defendant is also not mentioned on the letter. In these circumstances, this document is hardly of any evidentiary value in the case. The next witness examined by the defendant to prove his occupation of the plot since 1952-53 a Clerk from the Health Department of K.M.C.(Exh.
11. 9). This witness has produced a report of the Inspector of Health Department of K.M.C. which was prepared on 29-1-1960 as Exh. 9/1. This witness also produced notices issued by K.M.C. for prosecution of defendant for running a trade without license and fine recovered from him in this regard. These documents are produced as Exhs. 9/2 to 9/8. In cross-examination this witness admitted that report Exh.9/1 did not contain any plot number and for the purposes of identity it is mentioned as "Opposite 177-F". None of the documents produced by this witness show the area of plot or its number of location. In all the documents produced by this witness the plot is stated to be situated opposite 177-F, Moti Masjid Road, Karachi, whereas both the parties claim that the plot in suit is situated in Martin Quarters, New Martin Road, Near Ahmedia Masjid. No evidence is led by the defendant to prove that the address shown on Exhs. 9/2 to 9/8 is same where the plot in suit is situated. The defendant had examined three tenants of the building in suit who are occupying shops. They are Hakimuddin (Exh.10), Anwar Raza (Exh.11), Roshan Deen (Exh.12). All these witnesses stated that they are tenants of the defendant for a long time and they are paying rent to him. On the basis of evidence of these 3 tenants of building alone the defendant cannot be deemed to be the owner of entire structure on the plot which admittedly corseted of a school building, residential portion and several other shops. The defendant also examined one Ida (Exh.13) who stated that he has his house near the property in suit. This witness stated that 25 years ago he occupied a plot on Katcha Martin Road, and the defendant also occupied a plot adjacent to his house and raised construction thereon. This witness also did not state the area of the plot occupied by the defendant or the nature of building constructed by him. He did not even mention that the disputed house was constructed by the defendant. The defendant in his own evidence claimed that he spent Rs,35,000 on the plot for raising the existing construction, but offered no proof in support of the same. Both the parties agree that the total area of plot is about 500 sq. 'yds. Which is partly commercial where shops are constructed while on the remaining portion there is residential portion and a school. The plaintiff in her evidence stated that half of the plot is in her physical occupation where she is running the school and there is also residential portion while the commercial portion consisting of shops is in occupation of defendant. This position is substantially admitted by the defendant as would appear from the cross-examination of plaintiff. The defendant claimed that he has paid all the taxes of the property as owner and in support of his claim he has produced three photo stats of tax receipts relating to property No,H/CR-1-S-221 whereas admittedly the number of property in suit is H/CR/3-S-29.
12. ' The evidence on record shows that the property was first surveyed in the year 1968 by the Excise and Taxation Department for the purpose of assessment of tax and was entered in the name of Haji Shamsuddin, as its owner (see Exh.5/1 extract from P.T.1. Register). The plaintiff has also produced original tax payment receipts for 1968-1969 and 1969-70 (Exhs.5/3 and 5/2 respectively) which are in the name of late Haji Shamsuddin. The plaintiff has also produced tax payment receipts from 1971 onwards to Exise and Taxation Department and K.M.C. (Exhs. 5/6 to 5/20) in her own name. It is admitted case of the parties that the land on which the property is constructed belonged to Government and they only claim interest in the structure built on the land. The above documentary evidence do show that up to 1970 late Haji Shamsuddin, paid taxes of the property as owner thereof and thereafter same was paid by the plaintiff as its owner. As against this the defendant, though, did not dispute that the property was assessed to tax but failed to produce any evidence that he ever paid the property tax of the property in suit. The defendant has otherwise failed to lead evidence to establish that he constructed the suit property from his own resources and he was in possession of it as owner thereof. The defendant also contended that plaintiff was her tenant on monthly rent of Rs,100 but he failed to substantiate the same. The defendant has accordingly failed to prove that the structure in suit property belonged to him and issue No,3 is accordingly answered in the negative.
13. ' I will now examine Issue No,1 where under the plaintiff has claimed to have purchased the structure from her father. It is urged by the learned counsel for defendant that Hussain All Shah (Exh.6) claimed that the document was signed by him and Mian Mohammad Akram (Exh.7) in his room as witness while Mian Mohammad Akram claimed that it was signed in his room. The learned counsel further submitted that while Hussain All Shah stated that late Haji Shamsuddin had already signed the documents when it was bought to him, Mian Mohammad Akram stated that late Haji Shamsuddin, signed the documents in his presence and in the presence of Hussain Ali Shah. The learned counsel also contended that the document Exh. 6/1 though executed on a stamp paper which was purchased on 7-8-1971 but the date of execution shown thereon is as 8-7-1971. It is accordingly urged by the learned counsel that these material contradictions rendered the genuineness of document Exh.6/1 extremely doubtful. The contradiction pointed out by the learned counsel in the evidence of attesting witnesses is however, not of much significance in the circumstances of the present case, and in view of the fact that the evidence of these witnesses were recorded in the case after about 9-1, years of the execution of these documents. It has not been proved that witnesses Exhs. 6 and 7 were interested in supporting the case of plaintiff for any reason. These witnesses claimed themselves to be the tenants of late Haji Shamsuddin, on the groud floor of the same building in which late Shamsuddin, resided and as such they , were natural witnesses of the documents in the circumstances of the case. The defendant could not prove that these witnesses were not the tenant of late Shamsuddin, in the same building at the relevant time.
14. Both witnesses consistently stated in evidence that the document Exhs. 5/4 and 6/1 were brought to them by late Shamsuddin, for their signatures and late Shamsuddin, told them that he had sold the property at Karachi where her daughter was running a School for Rs,10,000 to her. Both the witnesses stated that at the time Exh.5/4 was executed, besides them, late Haji Shamsuddin, his son-in-law Quddusi and his younger son Ghayasuddin, were present while at the time Exh.6/1 was signed by them all other persons except Ghayasuddin were present. Both of them admitted that no amount was paid in their presence but stated that Exh. 6/1 was executed after about a month of Exh.5/4 and late Shamsuddin at that time had told them that the transaction mentioned in Exh.6/1 is the same which is shown in Exh.5/4 except that Exh.6/1 is on a stamp paper. The above evidence is quite consistent and, therefore, the contradiction pointed out by the learned counsel can be ignored as a natural variation, in view of the period which elapsed between the execution of document and examination of these witnesses in Court. I am, therefore, of the view that the execution of Exhs. 5/4 and 6/1 by late Shamsuddin is established. The learned counsel for the defendant contends that Exh. 6/1 is inadmissible in evidence as it related to disposition to an immovable property and, therefore, it necessarily required registration and proper stamping. The recital in Exh. 6/1 is almost the same as in the document Exh 5/4. No such objection was raised by the defendant when document Exh. 5/4 was produced in evidence. There fore even if the document Exh. 6/1 is excluded from consideration, the other document Exh. 5/4 do shows that late Shamsuddin received a sum of Rs,10,000 from the plaintiff towards sale of the structure on Plot No,HCR-3-S-29 situated on New Martin Road, Karachi. The document Exh 6/1 is shown to have been executed on 8-7-1971 while the stamp paper on which it is written was purchased on 7-8-1971. This obvious contradiction in the dates creates doubt about the execution of document on the date it is shown to have beep, executed. The plaintiff in her evidence admits that she put the dates on Exhs 5/4 and 6/1 later. She also stated that the date of execution of 6/1 was shown as same as on Exh.5/4 because she paid the money on that date and she was advised by her father to put the same date. It is not shown by the defendant that the plaintiff had gained any advantage by showing the date of execution of Exh. 6/1 as 8-7-1971. The two attesting witnesses of documents Exhs. 5/4 and 6/1 have categorically stated that Exh. 6/1 was executed after about a month of execution of 5/4. They also stated that at the time they signed Exh. 6/1 no date was there and the same was put later on. The defendant has not contended that the stamp paper on which agreement (Exh.6/1) was written is not genuine. In these circumstances mere fact that the document is shown to have been executed on a date which could not possibly be the date of its execution, is not sufficient to prove that the document was forged if otherwise its execution by the party is established. The plaintiff has however not succeeded in proving that the entire structure on the plot was sold to her and she was put in possession thereof. The plaintiff admitted in her evidence that prior to the sale of the property in her favour by her late father the defendant was already in possession of the property. She also admitted that none of the tenants of the property ever paid her any rent and it has come in the evidence that defendant is realizing rent from them.
15. The three tenants of the shops in the building deposed in Court that they are tenants of defendant in the building and paying him rent for last several years. In a case of this nature where parties admittedly do not claim ownership of land but only claim ownership of structure, the possession is the deciding factor. The evidence on record shows that while plaintiff is in possession of only half of the plot where school is rent, the other half is in possession of defendant, who is realizing rent from the tenants of the commercial portions even before its sale in favour of plaintiff. These conclusions are also supported by the entries in the P.T.1 Register (Exh. 5/1 and 5/5) which are in the name of late Shamsuddin and the plaintiff respectively and in which the area of plot is shown only 1,800 sq. ft. while the admitted position in the case is that the total area of the plot is about 500 sq. yds. A correction was made in the PT-1 Register and total area of the plot was increased and so also the G.A.R.V. of the property as is evident from Exh. 5/21. The documents Exh.s 5/4 and 6/1 though mentioned the plot number but did not specify the area of the plot and the details of the structure sold. I, therefore, hold that late Shamsuddin agreed to sell his rights, title and interests in the structure on plot No,H-CR-3-29, New Martin Road, Karachi to plaintiff to the extent of the area which was in her possession and plaintiff was put in possession of only that portion of the building which was already in her occupation by late Shamsuddin in pursuance of the above sale. I also hold that D2 the defendant failed to prove that the agreement dated 8-7-1971 is a forgery. It is also clear from the above discussion that the plaintiff has not been dispossessed from any portion of the property after she acquired interest therein by Exh. 5/4 and, therefore, she is not entitled to any decree for possession against the defendant.
16. Issue No, 4: This additional issue was framed at the instance of defendant. The learned counsel for the defendant contends that the suit for possession is not maintainable as it was instituted after expiry of the period of six months of alleged dispossession of the plaintiff from the property while under section 9 of the Specific Relief Act such a suit is to be filed within six months of the dispossession of plaintiff. The plaintiff has claimed a decree for possession against the defendant on the ground that after execution of Exh. 5/4 in her favour by late Haji Shamsuddin, the defendant forcibly dispossessed her from a portion of the property. I have already held while dealing with Issues Nos.1 to 3 that the plaintiff has not been dispossessed from any portion of property after execution of Exh. 5/4 in her favour by the defendant and as such no decree for possession can be passed in her favour in the circumstances of the case. There are admittedly other prayers in the suit apart from the relief of possession. I, therefore, hold that the suit is maintainable.
17. ' In view of the above discussion I declare that the plaintiff has acquired right, title and interest only in the portion of structure constructed on Plot No,H/CR/3-S-29 New Martin Road, Karachi, which is in her possession and defendant is restrained permanently from claiming any right in respect of the sable. I will, however, make no order as to costs in the circumstances of the case.