The plaintiff and defendant No,1 are private limited Companies and were owned and run under the common management of two groups viz. Kangovvala Group and Aladin Group. Each group had 50% share in each Company and were composed of as under:- KANGOWALA GROUP "1. Esmail Kassam s/o Kassam Ebrahim.
2. Habib Kassam s/o Kassam Ebrahim.
3. Ali Muhammad Kassam s/o Kassam Ebrahim.
4. Sultan Ali Kassam s/o Kassam Ebrahim.
5. Nasir Kassam s/o Kassam Ebrahim. ALADIN GROUP
1. Muhammad Aladin s/o Aladin Anandji
2. Amir All Aladin s/o Aladin Anandji
3. Sadruddin Aladin s/o Aladin Anandji"
Soon after incorporation of both the companies, disputes arose between the said two groups as to exercise of powers and control of the companies. The Directors from the Kangowala Group filed separate applications in the matters of both the said companies under sections 162 and 166 of the Companies Act, 1913. Attempts were made by the said Aladin Group to deprive S.M. Corporation Ltd., the plaintiff herein of a very valuable piece of land measuring 1.67 acres from their Plot No,F-62 S.I.T.E. In such a manner so as to include it in F-61 S.I.T.E. The adjacent plot belonging to defendant No,1 namely New Era Textile Mills Ltd, without obtaining any consent from the Directors of the Kangowala Group or even bringing it to their knowledge. It, however, transpired to the plaintiff and its Directors belonging to Kangowala Group that one Muhammad Ali Aladin of Aladin Group wrote a letter dated 6-10-1979 to the defendant No,2, namely, Sindh Industrial Textile Estate limited for transfer of the said portion of 1.67 acres from Plot No,F-62 belonging to plaintiff to defendant No,1, which was not acceptable to the defendant No,2 unless terms and conditions for transfer were complied with in accordance with their rules and regulations. Disputes between both the said groups were ultimately resolved by an agreement, dated 11-7-1975 filed in J.M. No,23 of 1975 in this Court alongwith an application under Order XXIII Rule 3 C.P.C., contents of both of which are as under:- "Application under section 151, C.P.C. Order 23, Rule 3 C.P.C.
1. It is submitted that in view of settlement between the parties the petitioners withdraw the above titled petition for winding up of the New Era Textile Mills Ltd. With no order as to costs.
2. A copy of the Agreement reached between the parties is filed alongwith this application.
3. It is submitted that in view of the above, the Provisional Liquidator be removed and attachments ordered be lifted, and that he be directed to hand over possession of the respective companies and their assets as stated in the enclosed Agreement. The petition may kindly be treated withdrawn as compromised".
Karachi: 11-7-1975 Sd/- Illegible Sd/Khalid Ishaque, Petitioner No,1. Adv. For petitioner. Sd/-Illegible Sd/A.A. Mushir, Adv.
Respondent No,1. For respondnets 1 to 12.
AGREEMENT ' This agreement is made at Karachi this the 11th day of July, 1975 between petitioners Nos.1 to 7 and respondents Nos.1 to 12 in J.M. No,19/75 and petitioners Nos.1 to 5 and respondents 1 to 3 in J.M.
No,23/75 pending in the High Court of Sindh and Balochistan, Karachi the petitioners being referred to hereafter as the First Party and the Respondents being referred to hereinafter as the Second Party respectively. Whereas the parties have agreed to resolve all their outstanding differences in regard to New Era Textile Mills Limited and S.M. Corporation Limited as under:--
(1) That the First Party shall transfer all it shares in Messrs New Era Textile Mills Ltd., in favour of the Second Party or their nominees immediately.
(2) That in consideration of the above, the Second Party shall transfer all the shares in Messrs S.M.
Corporation Limited which are held by Muhammad Ali Aladin, Amirali Aladin and Sadruddin Aladin (from amongst the second party) in favour of the First Party or their nominees simultaneously.
(3) That in consideration of this agreement and the aforesaid transfers the First Party agrees that they claim no right, title, or interests or benefits in New Era Textile Mills Limited and likewise in consideration of this agreement, the Second Party claims no right, title, interests or benefits in SM.
Corporation Limited.
(4) That in further consideration of this agreement the First Party absolves and discharges the Second Party from all obligations, claims, demands, accounts whatsever in respect of their holding in Messrs New Era Textile Mills Limited.
(5) That in like manner the Second Party hereby absolves and discharges the First Party from all obligations, claims, demands, accounts whatsoever in respect of their holding in Messrs S.M.
Corporation Limited. All personal demands and claims of each of the parties hereto against each, if any, are hereby waived and discharged.
(6) That the First Party will not interfere with the Second Party in the management of New Era Textile Mills Ltd., and likewise the Second Party will not interfere with the First Party in the management of S.M. Corporation Ltd.
(7) That in consideration of the above agreement the First Party agrees and undertakes to simultaneously withdraw the winding up petition being J. Misc. No,19 of 1975 and No,23 of 1975 filed by them against the Second Party in the High Court of Sindh and Balochistan at Karachi.
(8) That the Second Party hereby declares that out of the existing liabilities of the S.M. Corporation Limited as on this date the Liabilities relating to Messrs. Aladin Agencies Limited (2) Messrs. Karachi Can Limited and (3) Messrs M. Esmail & Co, Ltd. Shall be the responsibility of the Second Party.
(9) That save as stated in para 8 above, the First Party shall take over complete charge, possession, control and management of S.M. Corporation Limited with all its assets and liabilities as on the date of this Agreement and likewise the Second Parity shall take over complete charge, possession, control and management of New Era Textile Mills Ltd., with all its assets and liabilities as on the date of this Agreement including those incurred by the Provisional Liquidator.
(10) That the parties assured each other that no other person has any claim in respect of their respective share holdings and in case any claim in their behalf is made the transferring party concerned shall fully indemnify the transferree of the shares in respect of all losses, damages and claims.
(11) The Provisional Liquidator shall hand over all the stocks, books, stores, assets and the factory of S.M. Corporation exclusively to the First Party and the Provisional Liquidator shall similarly hand over all the stocks, books, stores, assets and factory of the New Era Textile Mills exclusively to the Second Party.
' IN WITNESS WHEREOF THE PARTIES HAVE THIS DAY signed this Agreement on this 11th day of July, 1975."
' In pursuance of this agreement, the entire shares of Aladin Group in the plaintiff Company stood transferred to the Kangowala Group and the entire shares held by Kangolwala Group in the defendant No,1 Company stood transferred to the Aladin Group.
' Subsequently the said Kangowala Group transferred their shareholding in the plaintiff Company to Messrs Haji Muhammad Bashir, Muhammad Farooque and Mst. Zafar Amina Begum, which was approved vide resolution dated 22-6-1978 of the Company who claim to be the transferees of interest in the Company in pursuance of Agreement, dated 11-7-1975.
' Upon coming to know of the entire back-ground of the disputes between the said two groups so also of the unauthorised occupation of 1.67 acres from plot No, F-62, held by the defendant, the plaintiff through its new management filed a suit for perpetual injunction on 28-7-1978 against the defendant No,1 in which a temporary injunction was obtained by them. In the said suit, the defendant No,1 made an application under Order VII rule 11 C.P.C. For rejection of the plaint on the ground that the subject matter of the suit was beyond the pecuniary jurisdiction which application was disposed of by order, dated 30-7-1978 whereby the plaint was returned for presentation before a competent Court. A similar suit was also filed by the defendant No,1 claiming themselves to be in possession of 1.67 acres of F-62. The plaintiff in this suit have prayed for a decree fog delivery of possession of the said land measuring 1.67 acres of plot No,F-62 S.I.T.E. From the defendant No,1.
' The defendant No,2 who are M/s. Sindh Industrial Trading Estate Ltd. (S.I.T.E) were duly served but were debarred from filing written statement by the Additional Registrar on 23-7-1979. The defendant No,1 in their written statement have raised preliminary objections stating that the suit is time-barred, is hit by the doctrines of adverse possession and of estoppel, is under-valued, and is not otherwise maintainable. It is contended by them that the plaintiff corporation are in the hands of new management, who have been suppressing the facts. It is admitted by them that originally two pieces of land were obtained, one by the plaintiff and the other by the defendant No,1.
Afterwards, a portion of plot bearing No,F-62 was delivered and transferred by the plaintiff to the defendant No,1 and the plaintiff recorded their no objection vide letter dated 6-10-1969 (Ex.CD/1).
Thus, the plaintiff have surrendered their rights, interest and claims over the suit property which now exclusively belongs to them. Steps for subdivision of the plot in the record of the defendant No,2 were taken by them vide Ex.CD/2 dated 21-7-1969 addressed by the defendant No,1 to defendant No,2 mentioning expansion programme for proposed partition wall between plots No,F- 61 and F-62 whereby a portion of about 1.6 acre from Plot No,F-62 was to be annexed with Plot No,F-
61. In reply to this letter, the defendant No,2 vide letter dated 3-10-1%9 (Ex. CD/3) had informed the defendant No,1 that their request for transfer and sub-division of Plot No,F-62 cannot be considered unless such a request is made by the allottee of the plot, namely, the plaintiff herein. It is thus averred by the defendant No,1 that in furtherence to the direction given by the defendant No,2, the defendant No,1 had made payment of Rs,16,700 vide cheque dated 22-7-1975 to the defendant No,2 being sub-division and transfer fee of the portion of the plot.
' It is admitted by the defendant No,1 that on 11-7-1975 in J.M. No, 23/75 a compromise was entered into between the plaintiff and defendant No,2, whereupon both of them took over complete charge, possession, control and management of their respective assets and liabilities on the date of the agreement. Hence it is alleged by the defendant No,1 that the said portion of 1.6 acre from plot bearing No,F-62 belongs to defendant No,1. On the pleadings of the parties the following issues were framed by the Court:-- "(1) Whether the suit is time-barred?
(2) Has the defendant right of adverse possession in the suit property?
(3) If the suit is under-valued? If so to what effect?
(4) Whether the suit as framed is hit by the doctrine of estoppel?
(5) Whether the suit property as per compromise in J.M. No, 23/75 stands treated as the assets of the defendant Company? And
(6) What should the decree be."
' On 3-11-1988 by consent of the parties, Mr. A.I. Qarni was appointed as Commissioner to record the evidence of the parties. The plaintiff have produced Haji Muhammad Bashir CPW 1, and the defendant No,1 have produced Muhammad Ali Aladin CDW 1 to support their respective contentions.
Issues Nos.1 and 2: ' Among others, the defendant No,1 have raised legal objections that the suit is time-barred and is hit by the doctrine of adverse possession in respect of the property in dispute. This suit was filed on 7-10-1978. As per averments made in the plaint Muhammad Ali Aladin of Aladin Group never allowed his joint incombent namely the Managing Director of Kangowala Group to exercise his powers and since July, 1971 had clutched the entire management, control and possession of the company till the said compromise dated 11-7-1975 was filed by the two groups in the High Court in J.M.No, 23 of 1975. In para 9 it is alleged that possession of the disputed land was unauthorisedly taken by the defendant No,1 which ought to have been delivered to the plaintiff by them. According to D.W.1 Muhammad Ali Aladin, the suit property has been in possession of defendant No,1 since 1962. Again it is stated by him that on 22-6-1978 he and his associates had purchased the plot from Kangowala Group.
In order to establish their right of adverse possession and defeat the claim of plaintiff for possession it is incumbent upon the defendant No,1 to show the point of time twelve years back or earlier, when they had set up their hostile title against the plaintiff in respect of the suit property and since then their uninterrupted possession in respect thereof. In para 2 (3-b) of CD/8 which is a copy of letter dated 2-8-1978 produced by defendant No,1 addressed to defendant No,2 it is undertaken by them not to divide the plot or sub-let it or partition it or to carry out any construction thereon. In para (6) thereof it is stated that "partition wall in between the amalgamation portion has already been provided in the year 1973". There is no dispute that the litigation in respect of the suit property had started on 28-7-1978. None of the two important and admitted documents on record being application under Order 23, Rule 3 Ex.CP/9 and agreement dated 11-7-1975 Ex.CP/10 filed by the plaintiff and defendant No,1 after heated litigation speak anywhere of the said adverse right of possession of the defendant No,1 over the suit property or abandonment of the right of the plaintiff in respect thereof. The defendant No,1 have produced Deed of Record dated 14-7-1975 being Ex.CF said to have been executed between the Kangowala Group and Aladin Group after three days of the execution of CP/9 and CP/10 which has not been admitted by the plaintiff. I have gone through the contents of this document which inter alia state that in pursuance of Ex.CP/9 and Ex.CP/10, the parties have delivered and transferred their respective share certificates in favour of one another and undertake to obtain affidavits from all individual members alongwith Transfer Deeds. It further mentions the assets and liabilities of both the Companies as on 11-7-1975 giving, however, no details thereof. In the last para it is stated by the parties "that this deed of record is executed by way of abundant caution in pursuance of agreement dated 11-7-1975 which remains irrevocable and binding on both parties." There is nothing in this document which goes on to show either the title or adverse possession of the defendant No,1 in respect of the disputed land. Their said contention also stands rebutted by the Registered Lease Deed Ex.CP/1, admitted by the defendant No,1 showing that lease in respect of the entire plot No,F-62 was granted by S.LT.E.
(defendant No,2) to the plaintiff in 1966. Mere joint possession of disputed land by Aladin of Aladin Group with his counter-part from Kangowala Group cannot be held to be adverse to the plaintiff as both were jointly managing the affairs of the plaintiff B and the defendant No,1. Learned counsel for the defendant No,1 have failed to show as to the point of time when possession of the defendant No,1 had become adverse to the plaintff. He has relied upon Jalal Shah and others v. The Custodian and others, PLD 1981 SC 262 but therein it was held by the Supreme Court of Pakistan that in order to constitute adverse possession all qualities of adequacy, continuity and exclusiveness must be proved, which the defendant No,1 in the present case have failed to prove. The plaintiffs claim is based upon their title to the property and is governed by Article 144 of the Limitation Act under which 12 C years period is prescribed for filing a suit for possession from the date of accrual of cause of action. Accordingly both the issues are replied in negative.
Issue No,3: ' Learned counsel for the defendant No,1 has not pressed this issue, therefore, I give no finding thereon.
Issue No,4: ' The burden of proof of this issue namely whether the suit as framed is hit by the doctrine of estoppel is upon the defendant No,1. It is stated by Mr. Nasim Farooqui, learned counsel for the defendant No,1 that as per para 11 of the plaint, the plaint in the earlier suit filed by the plaintiff in the Court of Civil Judge was returned vide order dated 31-7-1978 for presentation before a competent Court as the Court of Civil Judge had no pecuniary jurisdiction over the subject-matter of the suit.
In para 14 of the present plaint it is stated that the suit is based on different cause of action but according to Mr. Faruqi the earlier suit and the appeal therefrom are also on the same cause of action and hence the provisions of Order 2, Rule, 2 C.P.C. Are attracted which are as follows:_ "Order II Rule.-- (1)
2. Suit to include the whole claim.--(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may reliquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim.--Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs.--A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
(3) ..................................................................
' Learned counsel for the plaintiff on the other hand contends that the causes of action of earlier suit and the present suit are different and distinct. In so for as the present suit is concerned with the cause of action accrued to the plaintiff on 26-9-1978.
The defendant No,1 have not adduced any evidence is support of thei contention. Neither the plaint in the suit nor the memo of appeal nor order passed thereon were filed by them to establish that the provisions of Order 2, Rule, 2, C.P,C. Are applicable in the present case. Besides the defendant No,1 were required to specifically plead the bar as contained under Order 2, rule 2, C.P.C. In their written statement enabling the plaintiff to adduce necessar evidence or take other steps to rebut the same. What the defendant No,1 has pleaded is the dimensional doctrine of estoppel in relation to the frame of the suit by the plainiff. It is a cardinal rule of pleadings that a defendant must specifically plead all necessary facts and points of law in his written statement ensuring that the plaintiff may not be taken by surprise and may have an opportunity to establish or rebut any factual or legal question by adducing necessary evidence. Besides, the contents of the plaint do not establish the alleged bar as contemplated under Order 2, Rule, 2, C.P.C. Reference here may also be made to Order 8, Rule 2, C.P.C. As under:-- "Order VIII, Rule 1.........................................................................................
2. New facts must be specially pleaded.-- The defendant must raise by his pleading all matters, which show the suit not to be maintainable, or that the transction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as for instance, fraud, limitation, release, payment, performance, or facts showing illegality"
' The next contention of Mr. Nasim Farooqui, that the plaintiff company is estopped from questioning the, conduct of Mr. Muhammad Ali Aladin as he was the Managing Director of the plaintiff is not tenable in law. It is an admitted position that he could not act singly but jointly with his counterpart from Kangowala Group. There is also no evidence on record that the plaintiff had in any manner under law approved the sale of the disputed land to the defendant whereby the plaintiff are estopped from challenging the action of the said Mr. Aladin or the defendant. No,1.
Hence the issue is decided in negative.
Issue No, 5: ' This issue namely, whether the suit property as per compromise in J.M. No,23 of 1975 stands treated as the assets of the defendant company is a vital issue and heavy burden is cast upon the defendant No,1. This issue can be conveniently decided by looking into Ex.CP/9 and Ex.CP/10 which form part of compromise in J.M. No,23 of 1975 and have been reproduced above. Whereas the former is a formal application under Order 23, Rule 3, C.P.C, the latter is the agreement forming part of the compromise decree between the parties. Ex.CP/10 inter alia states that the provisional liquidator be removed and attachment order be lifted and that he shall hand over all the stocks, books, stores, assets and the factory of the plaintiff to the said Kangowala Group. Likewise he shall hand over all the stocks, books, stores, assets and the factory of the defendant No,1 to the said Aladin Group. Further, the shareholders of Aladin Group shall transfer all its shares in the plaintiff Company in favour of the Kangowala Group or their nominee, who shall have complete charge, possession, control and management of the plaintiff Company with all its assets and liabilities except liabilities as set out in para (8) to be borne by the Aladin Group. Similarly, in consideration of the said transfer Kangowala Group had agreed to transfer all the shares held by them in the defendant No,1 company to the Aladin Group or their nominee, who shall have complete charge, possession, control and management of the defendant Company with all its assets and liabilities.
Both the parties had also absolved and discharged one another of all obligations, claims deeds etcand undertook not to interfere in the management of the other company. It appears that the compromise reached between the parties was acted upon till dispute arose between the parties in or about July, 1978. According to C.P.W.1 the provisional liquidator had given possession of respective assets to the plaintiff and defendant No,1 which has not been questioned by the defendant No,l. Although defendant No,1 have taken inconsistent pleas with regard to the dates When alleged ownership in the land stood transferred to them and or possession thereof was handed over to them. Muhammad Aladin of Aladin Group in his examination-inchief states that he and his associates had purchased the plot in question from Kangowala Group on 22-6-1978. At the same time it is stated by him that in none of the balance sheets of the defendant No,1, the suit property was shown as part of their assets by defendant No,1 till 11-7-1975 (when compromise was filed vide Ex.CP/9 and Ex.CP/10 in J.M.No, 23 of 1975). In his examination-in-chief he states that the claims of the defendant No,1 rest on Ex.CF being Deed of Record dated 14-7-1975. Nowhere in the said Ex.CP/9 and Ex.CP/10 the disputed land is shown as the property of the defendant No,1. In none of the letters sent by the defendant No,1 to defendant No,2 viz Ex.CD/7 and Ex.CD/8 dated 20-8-1975 and 2-8-1979 any reference is made to the said transfer. It is an admitted position that the plaintiff and defendant No,1 Companies had been maintaining separate minute books, accounts and balance sheets etc. The defendant No,1 have therefore failed to establish that the suit property as per compromise in J.M. No,23/75 stands treated as the assets of the defendant No,1 Company. This issue is accordingly decided against them and is replied in negative.
' In the result I decree the suit with costs with directions to the defendant No,1 to vacate and hand over possession of the disputed land to the plaintiff within a month hereof.