1. ' The present appeal has been filed against order dated 24-5-1990 passed by the IVth Senior Civil Judge and Rent Controller, Karachi (South) in Execution No,32 of 1985 whereby, the application of the appellant under Order XXI, Rule 99 Read with Section 151, C.P.C. Was dismissed.
2. ' Briefly the facts are that the property bearing premises No,G-1, situated on plot bearing City Survey NoA.M.41/A, corresponding to Custodian No,III-B, 59/C, was transferred by Settlement Authorities to Mst. Saeedunnisa vide PTD No,KYC/2729/66 dated 13-2-1963. The said transferee sold the above property to respondent No,1 by Deed of Conveyance registered at No,314 on 8-11-1967. Respondent No,2 Mohammad Shafi, since deceased, was the recorded tenant of the said property as per record of the Settlement Authorities. The respondent No,1, through her Advocate served on respondent No,2 notice dated 25-114971, under registered A.D. Cover calling upon him to pay the rent. This notice refers to an earlier notice sent to respondent No,2 under Section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and the earlier rent case filed against the respondent No,2 and dismissal thereof for want of proof of service of the said notice under Section 30 of the aforesaid Act. The aforesaid notice dated 25-11-1971 was sent to the respondent No,2 at the address described as House No,G-1, premises No, A.M.-41,I1I-B-59/C, and was received by respondent No,2, who replied the same through his Advocate Mir Raza Hussain Haidery.
3. ' The respondent No,1 then filed the rent Case No,833/1972, against the respondent No,2 for non- payment of rent from 25-9-1967 to 31-3-1972. The responent No,2, in his written statement took up the plea that he was not served with the notice as contemplated under Section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and under Section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959. It is also pleaded that the copies of transfer documents were not supplied to him. Dispute was also raised with regard to quantum of rent. It was then pleaded that he sent the rent by money orders but the respondent No,1 had refused to accept the money orders. It was further stated that the notice sent to the respondent No,1 was illegal and defective and was not the one as contemplated under Section 30 of Displaced Persons (Compensation and Rehabilitation) Act, 1958 or Section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959. He also averred that he had sent the reply alongwith a copy of the latest assessm ent of the Karachi Municipal Corporation. The parties entered into evidence in which the aforesaid notice was produced as Ex.6/C. The reply sent by him was produced as Ex.4. Money order coupens were produced by respondent No,1 as Exs.7-D to F. In all these money order coupons the property has been described as House No, G-1, Plot No, A.M.-41/A. III-B-59/C.
4. ' It may be pointed out that in the aforesaid rent case the property was described as House No,G-1, premises No, A.M. 31-A, III-B-59/C, A.M.-7 i,e. To say the property number was correct in all particulars except that 31 was typed in place of 41. As the record discloses this mistake was not realised by any of the parties until at a very late stage of execution proceedings. This aspect of the case will be reverted to at proper place. The fact that clearly emerge from the record is that respondent No,1 on the one hand and respondent No,2 on the other and after his death respondents Nos.3 and 4, were fully aware that the dispute in the rent case was going on in respect of the property bearing City Survey No,A.M. 41- A with corresponding Custodian No,III-B-59/C, despite the above mistake in the application filed by respondent No,1. The Rent Controller by his order dated 317-1973 allowed the eviction application. Respondent No,2 filed Rent Appeal before District Judge, Karachi which was dismissed on 31-5-1974. Matter was then brought in Second Appeal to this Court which was allowed by order dated 4-10-1977 and the matter was remanded to the Trial Court with the consent of the parties on the only issue whether respondent No,2 had sent the .Money orders to respondent No,1 landlady at her correct address. After remand the original tenant Mohammad Shall expired and respondents Nos. 3 and 4 were brought on record as his legal representatives, being his widow and daughter respectively. The Rent Controller by his order dated 19-4-1984 again allowed the eviction application. Respondent No,1 filed Execution No, 32 of 1985 before the Rent Controller, notice whereof was issued to respondent Nos. 3 and 4.
5. ' On 15-7-1985 an application was moved on behalf of respondent No,3 through her Advocate for extension of time in executing the ejectment order so that she may shift to some other place. This application was moved on the ground that the said respondent was suffering from serious illness.
6. The affidavit in support of the above application was filed by Mst. Rafiqan Khatoon, who is respondent No,4 in the matter, wherein she described herself as wife of Ibrahim and in para. 1 of the affidavit has stated that she is the daughter of judgment-debtor namely respondent No,2. On 15-7- 1986 respondent No,1, moved an application for police aid and to break open the lock. On 24-7- 1986 an application was filed by respondents Nos. 3 and 4 with supporting affidavit of respondent No,3, the widow of respondent No,2, requesting for two months' time for vacating the premises. On this application notice was ordered to respondent No,1. The order sheet dated 2l-7-1986 shows that the Court by consent granted time to the judgment-debtor to vacate the premises by 21-10-1986.
7. Since respondents 3 and 4 failed to hand over possession, respondent No,1 on 21-10-1986 filed application for issuance of writ, of possession which was granted. On 22-11-1986 respondent No, 3 moved an application alleging that "the decree-holder was not living since long at the address shown in the application" and that the power of attorney of Faizul Hassan had no legal effect. This application was dismissed on the same day. On this very day the present appellant stepped into the litigation for the first time by moving an application for certified copy of the order passed on that day on the application of respondent No,
3. On 23-11-1986 respondent No,1 again filed an application for police aid and to break open the lock which was granted on 3-12-1986. On 11-1-1987 an application was moved by respondent No,1 with the grievance that the judgment- debtor/respondent No,1 with a view to frustrate the execution order had raised a wall in between the flat in dispute so that the possession of only one room is handed over to decree-holder instead of the entire house.
8. ' On the next day i,e. 12-1-1987 the appellant moved an application for staying the execution proceedings alleging that respondent No,1 wanted to usurp intervenor's property. In the supporting affidavit he disclosed that the bailiff had come alongwith respondent No,1's representative and police aid to the judgment debtor's premises No,G-2, III-B-59/C, A.M.-31-A, and wanted to eject the intervenor/appellant also from his premises No, G-2.
9. ' On 14-1-1987 the appellant moved another application under O.XXI, Rule 99 read with Sections 47 and 151, C.P.C. Praying for dismissal of the execution application on the ground that he was the owner of the premises No,G2, Evacuee No,III-B, 59/C, Plot No, A.M. 31-A and for the first time he filed photostat copy of PTD and certain documents alongwith the said application. Respondent No,l's attorney filed his counter affidavit in which it was stated that the said attorney alongwith the Bailiff had gone to take over possession of the premises No,G-1, III-B, 59-C A.M.41 (31/A), further stating that there was only one premises on the ground floor namely No,G/1 and there is nothing like G-2 on the said plot. It was further stated more than once that the appellant was a relative of the judgment-debtors and he had fabricated the documents. The site plan of the premises G-1 issued by the Settlement Department was also filed alongwith counter affidavit. It may be pointed out that such document was earlier filed in the rent case which is part and parcel of the deed of conveyance produced as Ex.6/A. Appellant filed his affidavit in rejoinder wherein he did not deny or affirm his relationship with respondents Nos. 2, 3 and 4.
10. ' The Rent Controller on the pleadings contained in the above affidavits of the parties framed the following issues:
(1) Whether the application of intervenor is maintainable in law?
(2) Whether the intervenor is owner of premises No,G-2, Evacuee No,IIIB/59/C, Piot No, A.31/A (41)
11. Artillery Maidan Karachi and is in possession hereof as an owner?
(3) Whether there are two premises bearing No,G-1 and G-2 Evacuee No,III-B/59-C, Plot No, A.M. 31- A (41) Artillery Maidan Karachi or only premises No,G-1?
(4) What should the order be?
12. ' On the above issues the appellant examined himself at Ex.1 and produced Permanent Transfer Deed (PTD) as Ex.1/A. He also examined two witnesses, Abdul Rasheed and Fareedul Haque at Exs.2 and 3 respectively.
13. ' Respondent No,1 examined her attorney at Ex.4, who produced copy of power of attorney as Ex.4-A, Site Plan as Ex.4-B, Extract from the property Register as Ex.4-C, copy of plan of structure on the premises in dispute as Ex.4-D, certified copies of P.T.D. And Sale Deed as Ex.4-E and 4-F. The original Conveyance Deed with the plan of premises in question was produced in the rent case proceedings as Ex.6-A. All these documents pertain to premises No,G/1 of Plot No,A.M. 41/A. Incharge of the Record of Settlement Department, Israrul Haq was examined at Ex.5. He produced the record of Plot No, A.M. 41-A, in four pages and of A.M.31-A as Ex.5-A to 5-E. He had also brought with him the record of Settlement Department pertaining to the said two plots including CSC-F Register and preliminary Survey Register of Evacuee properties.
14. ' On the assessm ent of the above evidence the Rent Controller found that the Ex.1-A i,e. P.T.D.
15. Produced by Appellant was a forged document and that the appellant was son-in-law of Respondent No,2, late Mohammad Shafi, the recorded tenant. Consequently the Rent Controller dismissed the appellant's aforesaid application by impugned order dated 24-5-1990.
16. ' I have heard Mr. Faizanul Haque, for the appellant and Mr.Farooq H.Naek, Advocate for respondent No,1. The Advocate for the appellant has raised the following contentions:- (i). The document Ex.1-A proves the title of the appellant in respect of property in question. He also has filed the photostat copy of Electric bill as Annexure 'C' to the Memo of Appeal to substantiate his assertion with regard to the ownership of the property.
17. (ii). It has been urged that in case the Rent Controller was not satisfied with the title documents of the appellant, he should have directed respondent No,1 to approach the Civil Court for declaration of title before seeking eviction of the tenant.
(iii) The Rent Controller has given the finding in respect of tenement in question without conducting any inspection of the same.
(iv) The appellant has filed Suit No,1371 of 1990 for declaration to the effect that the appellant is the owner of the property in dispute and for permanent injunction. The said suit is pending in the Court of First Senior Civil Judge, Karachi South. Mr. Farooq H. Naek, stated that his client has not been served with the summons in the said suit.
18. (v). Lastly it was contended that the appellant is in possession of his own property, bearing No,G-2, A.M. 31-A Custodian No,III-B-59/C and he cannot be evicted from the same.
19. ' Mr. Faizanul Haque, on the basis of above submissions requested that the matter may be remanded to the Rent Controller to decide the issue of title in respect of property in question.
20. ' Mr. Farooq H. Naek, appearing for the respondent No,1 has controverted the above submissions.
21. None has appeared for respondent No,4, respondents Nos. 2 and 3 have been described by the appellant as deceased.
22. In support of the first two contentions the learned Advocate of the appellant has relied on Ex.1-A which is the sheet-anchor of his entire case. There is evidence on record, exceedingly in abundance, in proof of the fact that Ex.1-A is a forged document.
23. ' Following are the particulars of such evidence.
24. '
1. Plot No, A.M. 31-A as per Ex.5-E which is page No,118 of the Register of preliminary Survey of Immovable Evacuee Property pertaining to the said City Survey plot shows that:-
(a) Corresponding Evacuee No, of the said plot is III-B, 47/A and not III-B, 59/C, as mentioned in Ex.1- A.
(b) Its evacuee owners were Bhajilai and Gangadas and not Bhagwandas.
(c) The said plot was sold by the said evacuees on 30-12-1948 by registered Sale-Deed to one Mst.
25. Nawab Bibi and the sale was confirmed by the Custodian on 21-7-1951.
2. Mr. Israrul Haque deposed that Ex.1-A was not issued by Settlement Organisation and it did not bear signature of Mr. Agha All Anwari, the then Deputy Settlement Commissioner Karachi, whose signature it purports to bear. He deposed that it was a forged document.
26. ' The Custodian number and the name of evacuee owner mentioned in Ex. 1-A are that of Plot No,A.M. 41-A. The above evidence clearly establishes that Plot NoA.M.31-A having been sold and same having been confirmed, was not even available to be acquired under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 for inclusion in compensation pool.
27. Nothing more is required to conclude that the said decument was forged by the appellant to defeat and nullify the order of eviction passed by the Rent Controller in respect of the property acquired by respondent No,1 against its recorded owner, taking under advantage of the mistake made in the eviction application which mistake luckily for respondent No,1 trapped the appellant to prepare self-evident forged document.
28. ' The other document, the electric bill is of no consequence at it is in the name of his son. The Rent Controller had found on assessm ent of evidence that appellant is the husband of respondent No,4.
29. To this aspect I will revert to again at appropriate place.
30. The above so-called title document Ex.1-A having been found as forged document, the entire case of the appellant stands eliminated and therefore the second point raised by the learned Advocate of the appellant is of no consequence as there is nothing for which appellant or respondent No,1 could be directed to approach the Civil Court for determination of title. In this case the Rent Controller had to enter into the question of the title after passing of eviction order against the admitted statutory tenant whose name is recorded in the E.P.R. Also. Even otherwise there was enough material before the Rent Controller to express opinion about the title without entering into niceties of law. No doubt was left with regard to the title of the property and the Controller was bound to accept the document produced by the appellant for the worth it was. It may further be observed that the appellant who had jumped into the execution proceeding at a belated stage had filed the application before the Rent Controller with a view to defeat the eviction order passed by the Rent Controller.
31. ' With regard to the third contention the learned Advocate of the appellant urged that the appellant was being evicted from the property which was owned by him i,e. No,G-2 of A.M.31-A although the eviction proceedings were filed in respect of tenement No, G-1 of Plot NoA.M. 31-A and that the appellant was not the owner of any premises of the aforesaid survey number but of premises No,G/1 of Survey NoA.M.41-A. The wrong description of Survey number is a typing mistake in the application filed by respondent No,1 under Section 13 of the repealed Ordinance. After purchasing the property respondent No,1 had served respondent No,2 with a notice dated 25-11-1971 which was addressed to him at premises NoA.M.41-A, III-B-59/C, calling upon him to pay rent. This document is at page 89 of the record and proceeding of the rent case. The same address is described in postal acknowledgement which is at page 91. There are money order coupons sent by respondent No,2 wherein again the plot is described by him as A.M. 41-A. These coupons are at pages 97 to 103 of the said record. The above documents clearly establish that respondent No,2 who was contesting the rent case was fully aware that the case pertained to Plot NoA.M. 41-A. Therefore it leaves no doubt that it was the case of bona fide mistake which was realised by respondent No,1 when application dated 14-1-1987 was filed by the appellant. Respondent No,1 in the counter- affidavit categorically stated that she was executing eviction order against property NoA.M.41-A and alongwith Survey Number, mentioned Custodian number also. It has been already noticed above that the corresponding Custodian number of this plot is III-B-59/C, which number has been correctly mentioned throughout in the proceedings. No doubt respondent No,1 did again commit one mistake by putting figure and letter 31/A after describing the property number correctly. Now the question arises whether the stand of the appellant that he is being evicted in execution from property bearing Plot No,A.M. 31-A Custodian No,III-59/C, is correct or a camouflage to thwart the execution proceedings.
32. ' In the rent case Custodian number was described correctly. The proceedings were contested by statutory tenant. After filing of the execution application writ of possession was taken by the bailiff for execution to the property which was in possession of respondent No,2 and after his death in possession of respondents Nos.3 and 4. Respondents Nos.3 and 4 appeared before the execution Court and requested for time for handing over possession for more than once. When the crucial time came and they failed to hand over possession on 21-10-1986, respondent No,3 filed application on 22-11-1986 which was dismissed on that very day and it is again on this very date that the appellant appeared in the Court and requested for certified copy of the order passed on the application of respondent No,3. It is again interesting to note that the order for issuance of writ of possession was passed on 11-1-1987 and on the next day i,e. 12-1-1987 the appellant filed application for stay of the execution proceedings which application was supplemented by another application dated 14-1-1987, which led to initiating the proceedings now in hand, This scenario makes it clear that the appellant was in league with the judgment-debtors and was fully aware of all the proceedings. The reason that he would do so is not far to be seen. In the counter-affidavit filed in reply to application dated 14-1-1987, respondent No,1 has stated that the appellant is related to judgment-debtor but this assertion was not denied by the appellant in his affidavit in rejoinder.
33. In evidence he denied that he is related to respondents Nos.1 and 3. He also denied that respondent No,3 is his wife. But his witness Ex.2 Abdul Rasheed disclosed that the appellant is the son-in-law of respondent No,2 who used to reside in that house about which he had come to depose namely the house in which the appellant is residing. He also stated that he did not know as to in what capacity the appellant was living in the said house. The other witness Ex.3 Faridul Hassan expressed his ignorance about the relation between the appellant and respondent No,2. Respondent No,4 in her affidavit filed in support of application dated 15-71985 described herself as wife of Ibrahim. The cumulative effect of the above evidence establishes that the appellant is son-in-law of respondents Nos.2 and 3 and husband of respondent No,4 and he has been living and is living in the premises in question. This accounts for electricity bill Annexure 'C' being in the name of his son.
34. Under those circumstances it was not necessary for the Rent Controller to order inspection of the premises in question.
35. ' Corning to the last two submissions, the learned counsel of the appellant has urged that the appellant has already filed a suit for declaration of his title and permanent injunction and therefore, the appellant cannot be evicted until the question of title is decided. Although he has not made the point clear with regard to the above submission, presumably he meant that the eviction of the appellant is to be postponed till the decision of the said suit. In this matter I have already concurred with the finding of the trial Court with regard to the title document on which the appellant is relying, to the effect that the said document i,e. Ex.1-A (PTD), allegedly issued by the Settlement Authority is a forged. Document. I have also reached the conclusion on the basis of the evidence on record that there is premises No,G-2, on Plot No,A.M. 41-A, Custodian No,III-B-59/C. It is also established that Plot No,A.M. 31/A, is non-evacuee property and therefore no part of it could have been transferred by the Settlement Authority to the appellant and it is also found that the Ex.1- A does not state correct corresponding Custodian number of the said plot, and the one mentioned in Ex.1-A is that of Plot No,A.M. 41-A. In view of the above findings, it would be for the appellant to choose his forum. It may be observed that the learned advocate for the appellant has not offered to vacate the premises by offering to get his plea regarding the title adjudicated by Civil Court with the mandate of re-entry, and therefore, the learned Rent Controller and so also this Court had to examine the issue of title and since the case of the appellant has been found frivolous and vexatious, the issue of title had to be determined and has been determined accordinly.
36. ' The last leg of the submissions pertains to the apprehension which does not appear to be genuine. It has been observed that respondent No,1 on the one hand, and respondent No,2 and after him the respondents 3 and 4 on the other, were fully aware with regard to the identity of the property in respect whereof the eviction proceedings had been going on for a long time.
37. Respondent No,1 has made it clear that the disputed premises is No,G-1 on Plot NoA.M.-41-A Custodian No,III -B, 59-C. The required particulars, description, dimensions and boundaries of the said premises No,G-1 are reflected in the blueprint prepared by the Settlement Organisation after inspection of the premises which has been produced in original as Ex.4-D in execution proceedings.
38. This document was prepared on 6-5-1967. The appellant has not rebutted the correctness of the said authentic document.
39. ' In the application and the supporting affidavit filed by respondent No,1 on 11-1-1987 it was stated that a wall had been raised in the flat in dispute so that only one room thereof is delivered to the respondent No,1 in execution of writ of possession instead of the entire premises No,G-1. The above circumstance indicated that the, appellant wanted to utilize Ex.1-A under which he claims to have been transferred premises No,G-2, although neither Ex.A-1 pertains to the property in dispute nor there is premises No,G-2 ever existed on plot No, A.M. 41-A, Custodian Nos. III-B, 59/C. It was in view of the above circumstances that decision with regard to Ex.1-A become necessary and the same has been given.
40. ' In view of the above documents no doubt is left with regard to the identity of the premises in dispute, in respect whereof writ of possession is to be issued and executed and no other property. I, therefore, dismiss this appeal with no order as to costs.