1. ' SYED HAIDER ALI PIRZADA, J.---The petitioner in the above petition has prayed for the following reliefs:--- "(i) Declare that the impugned order, dated 26-6-1985 passed by respondent No,1 is illegal and of no legal force or effect.
(ii) Direct respondent No,1 to act in accordance with law and to confirm the order passed by respondent No,2 dated 14-4-1981 wherein the transaction between the said Mahboobul Islam and the petitioner, as contained in the sale agreement dated 24-1-1970 was recommended for confirmation by respondent No,1 and the claim of respondent No,3 was rejected.
(iii) Grant the cost of the above petition to the petitioner.
(iv) Grant any other/further relief deemed appropriate under the circumstances of the above case."
2. ' The facts leading to the filing of the above petition are that one Mahboobul Islam had a House No,1338, Bldck 2, Federal 'B' Area, Karachi. The said Mahboobul Islam had sold the said house to the petitioner vide sale agreement dated 24-1-1970. The petitioner purchased the said house for a total sale consideration of Rs,20,000 and took over the peaceful and vacant possession of the said house in January 1970. It is the, case of the petitioner that as the said Mahboobul Islam was under transfer to the then East Pakistan, he could not have executed the sale-deed in favour of the petitioner as certain formalities including the execution of lease deed by K.DA., mutation etc. were yet to be completed and in order to safeguard the right, title and interest of the petitioner, the said Mahboobul Islam executed an irrevocable General Power of Attorney dated 9-1-1970 in favour of Muhammad Zubair Quraishy, the husband of the petitioner. The said Mahboobul Islam proceeded to the East Pakistan on leave for three months with effect from 1-2-1970 and while on this leave, he was transferred and posted permanently at Dacca office of Agricultural Development Bank of Pakistan. The said attorney, after complying with all the formalities executed on behalf of the said Mahboobul Islam the lease with K.DA. and the same was registered by K.DA. on 21-3-1973 at serial No,2453, pages 168 to 171, Volume 605 of Book Additional dated 4-4-1973. The said attorney subsequently executed a Conveyance Deed in favour of the petitioner which was duly registered with the Sub-Registrar at Karachi on 31-3-1973 at Serial No,7878, pages 24 to 31, Volume 736 of Book No,1 Additional Sub-Registrar, Division III, Karachi dated 15-9-1973. Whereafter on 22-12-1973 necessary mutation was effected in the records of K.DA. in favour of the petitioner.
3. ' It is the further case of the petitioner that she had rented out the said house to the respondent No,3 who committed default in payment of rent. The petitioner had filed a Rent Case No,2878 of 1973 against him on the ground of default. The respondent No,3 contested the eviction application denying the relationship of landlady and tenant and also questioned title of the petitioner. The plea was not accepted by the Rent Controller: The eviction application was allowed. The respondent No,3 being aggrieved, went in appeal which was also dismissed. The respondent No,3 preferred second appeal which also met the same fate. Pursuant to the eviction order, the tenant was evicted and the possession of the said house was delivered to the petitioner.
4. ' Under section 3 of the Abandoned Properties (Taking Over the Management) Act (XX of 1975)
5. (hereinafter referred to as the Act), all abandonded properties shall vest and shall be deemed always to have vested in the Federal Government on and from the sixteenth day of December 1971.
6. By notification dated 9-7-1975, the said house was declared as abandoned property under the provisions of Act XX of 1975.
7. ' The petitioner moved an application, dated 3-12-1975 under section 13 read with section 14 of the Act before the respondent No,2 for declaration that the said house was not an abandoned property and not subject to the provisions of the Act. The petitioner also prayed for confirmation of the sale in her favour. Simultaneously respondent No,3 also filed similar application before the respondent No,2 alleging therein that the said house had in fact been purchased by him from the said Mahboobul Islam vide sale agreement dated 27-1-1970 for Rs,13,000 which amount according to respondent No,3, had not been fully paid by him to Mahboobul Islam.
8. ' The respondent No,2 after hearing the petitioner as well as respondent No,3, rejected both the applications by order, dated 28-2-1978 and forwarded the case to respondent No,1 for confirmation under section 13(4) of the Act. The petitioner and respondent No,3 filed appeals separately before the respondent No:1, who by order dated 5-12-1979 remanded back the applications to respondent No,2 with the directions mentioned therein to consider the various points raised therein.
9. ' The respondent No,2 in compliance with the directions of respondent No,1, held further proceedings and recorded additional evidence whereafter he recommended to respondent No,1 that the transaction between said Mahboobul Islam and the petitioner as contained in the sale agreement dated 24-1-1970 be confirmed. The claim of the respondent No,3 was rejected by order, dated 7-3-1981. The respondent No,3 preferred an appeal against the impugned order before the respondent No,1. The respondent No,1 once again remanded the case to respondent No,2 for consideration of additional evidence to be produced by the respondent No,3 before the respondent No,1.
10. ' The respondent No,2, after further hearing rejected the claim of the petitioner vide an order dated 31-3-1982 which claim had in fact been recommended for confirmation vide respondent No,2's own earlier order dated 7-34981. The petitioner thereafter preferred an appeal before respondent No,1 which appeal resulted in remanding of the case back to respondent No,2 for the third time though for the limited purpose of examining the admissibility of an affidavit filed by the respondent No,3 during the hearing of appeal. The respondent No,2 vide his order dated 28-1-1984 rejected the affidavit filed by respondent No,3 before respondent No,1 during hearing of the petitioner's appeal.
11. The respondent No,1, after hearing the parties, rejected the claims of the petitioner and respondent No,3 vide order dated 26-6-1985. The petitioner has challenged the impugned order in this petition.
12. ' We have heard Mr. Khawaja Balal, learned counsel appearing for the petitioner and Mr. Habibur Rehman, learned counsel appearing for the respondents Nos.1 and 2. The respondent No,3 though served, remained absent for the reasons best known to him.
13. ' The main point which, in our opinion, has been overlooked by the respondent No,2 as well as the respondent No,1 is the expression "abandoned property" and "specified person". The expression "abandoned property" is defined in section 2(a) of the Act and it means:-- " 'Abandoned property' means any property, movable or immovable (including share in industrial units and firms, investments, deposits, policies of insurance and all other interests and rights in or to or arising out of any such property), belonging to a specified person and includes any such property sold or transferred to, or placed under the supervision or control of, any other person on or after the sixteenth day of becember, 1971, but does not include any ornaments or wearing apparel or any cooking vessels or other household effects in the immediate possession of a specified person, not exceeding a total of rupees one thousand;"
14. ' The words "specified person" are defined in section 2(f) of the Act, which means: 'Specified person' means a person whg, at any time before the sixteenth day of December, 1971, was a citizen of Pakistan domiciled in the territories which before the said day constituted the Province of East Pakistan and who, on or after that day, has ceased or ceases to be a citizen of Pakistan, and includes a company registered in the said territories the registered office of which has not been shifted in pursuance of the Companies (Shifting of Registered Office) Ordinance, 1972."
15. ' The definition of "specified person" was substituted by Act XLV of 1976. After substitution, it reads as under:--- " 'specified person' means a person who, at any time before the sixteenth day of December, 1971, was a citizen of Pakistan domiciled in territories which before the said day constituted the Province of East Pakistan and who, on or after that day has ceased or ceases to be a citizen of Pakistan, and includes a company registered in the said territories the registered office of which has not been shifted in pursuance of the Companies (Shifting of Registered Office) Ordinance, 1972 (V of 1972)."
16. ' The effect of substitution of definition has been considered by a Division Bench of this Court in the case of Muhammad Rafiullah v. The Board of Trustees for Abandoned Properties and another 1987 M LD 558. The learned Judges of the Division Bench observed at p.561 as follows:-- "Thus according to the definition of the unamended Act a citizen of Pakistan can only be adjudged as a specified person who has left or leaves or has expressed his desire to be taken out of, or to be allowed to leave, the territories of Pakistan but after the amendment specified person means who on or after that day has ceased or ceases to be a citizen of Pakistan."
17. The point involved in this petition has been considered in the above-cited case. The learned Judges of the Division Bench, after giving cogent reasons, came to the conclusion that:--- "Under section 3 of the Act all abandoned properties shall vest and shall be deemed always to have vested in the Federal Government on and from the sixteenth day of December, 1971. It is, therefore, clear that it has to be seen that a citizen of Pakistan domiciled in the Province of East Pakistan has ceased or ceases to be a citizen of Pakistan, but this fact is also not material for the disposal of the present petition. It is the case of the petitioner that he had entered into an agreement with Sirajul Islam on 3-9-1971 and on 27-11-1971 Deed of Exchange was executed. In November, 1971 the possession of Dacca House was delivered to Sirajul Islam. The agreement was valid and in lieu of such agreement part of possession of the house was given to the petitioner in March, 1972. The petitioner is admittedly in possession of the disputed property. As the agreement between the parties was executed before 16th day of December 1971 and part of the agreement was acted upon as the possession was delivered to Sirajul Islam in 1971, therefore, the property in dispute cannot be called as abandoned property, therefore, the action of the respondent in declaring this property as abandoned property is illegal, without jurisdiction and of no legal effect".
18. We are in respectful agreement with this decision for the reasons given by them in this judgment.
19. The reasons which prevailed with the respondent No,1 in their order, dated 26-6-1985 are reproduced hereunder:--- "(i) It is asserted by appellant No,1 that he was in possession of the said premises in pursuance of the sale agreement dated 27-1-1970 while according to the appellant No,2 she had purchased the said house vide sale agreement dated 24-1-1970 and appellant No,1 was her tenant who had defaulted in payment of the rent and so appellant No,2 filed a Rent Case (No,2878 of 1973) against him and got the order dated 22-11-1975 for his ejectment as a result of which appellant No,1 was dispossessed in January, 1976. Further the specified person Mr. Mehboobul Islam executed General Power of Attorney in favour of Muhammad Zubair Qureshi, husband of appellant No,2 on 9-1-1970 and the appellant No,2 purchased the said house from specified person as per sale agreement dated 24-1-1970 for Rs,20,000 and made the full payment and got the possession.
(ii) The appellant No,1 filed appeal against the order of Rent Controller before the Additional Sessions Judge, Karachi but the same was dismissed vide order, dated 28-7-1977. He filed second appeal before the High Court of Sindh, and the same was also dismissed for non-prosecution vide High Court's order dated 31-10-1983.
(iii) Agreement of sale with appellant No,1 shows that father's name of the specified person is H.
20. Islam, but actually his father's name is Anisul Islam which is supported by file No,Admn. E/11(36) of Agricultural Development Bank in which father's name of the specified person is mentioned by his own employer as Moulvi Anisul Islam.
(iv) The agreement of sale dated 27-1-1970 with appellant No,1 has been signed by the specified person in English while photo copy of his application for allotment made to K.DA. and last page of the Power of Attorney dated 9-1-1970 in favour of Muhammad Zubair Qureshi, the husband of the appellant No,2, shows the signatures of specified person in Bengali.
(v) The specified person signed all the documents in favour of appellant No,2 in Bengali whereas Mr. Mehboobul Islam's signature in H.B.L. where he was having Savings Account No,3202 was in English. There is thus inconsistency in his signatures on various documents purported to have been signed by him.
(vi) According to Mr. Abdur. Rehman Arab, clerk of the Stamp Office, Karachi who was examined in the lower Court, Bashir Ahmad Farooqi was stamp vendor holding licence No,25 in the year 1970 and the stamp paper for agreement of sale dated 24-1-1970 bears the endorsement as per Register No,6712 dated 9-1-1970 for sale of the said stamp paper and another stamp paper of General Power of Attorney also bears endorsement No,6711 dated 9-1-1970, but there are no such entries in the register of the late Bashir Ahmad Farooqi which was maintained by him in the ordinary course of business and was given in the stamp office after completion of the year 1970.
21. This shows that the stamp papers of appellant No,2 were not legally purchased from the authorised stamp vendor.
(vii) Mr. Pervez Usman the attesting witness of the agreement for sale with appellant No,2 has stated that specified person had told him at the time of execution of the document that he was giving possession to applicant No,2, but the possession was not actually given to the appellant No,2 at the time of agreement for sale. No independent evidence is led to show that the appellant No,2 had taken possession from the specified person in pursuance of said agreement dated 24-1-1970 and then rented it out to the appellant No,1.
(viii) The order of the Rent Controller shows that the appellant No,1 had denied the title and the tenancy in that Court and the appellant No,2 failed to produce any agreement of tenancy signed by appellant No,1.
22. No-objection certificate dated 23-1-1970 shows that the A.D.B.P. had no objection to the grant of lease of the said house by K.D.A. as specified person had cleared all the dues. No-objection certificate was not granted to appellant No,1 by A.D.B.P. despite repeated requests for transfer of the said house in his favour.
(x) According to the statement of the witness Mr. Abdul Hafeez Khan the specified person was in jail at Karachi from 3-2-1970 to 14-2-1972 in connection with criminal case for attempting murder of his wife so he could note write receipts and letters during that period as produced by appellant No,1.
23. The appellant No,1 could not obtain the possession on 16-3-1970 in pursuance of the agreement dated 27-1-1970 made with him as asserted by him in view of the facts that specified person was in jail at that time.
(xii) The appellant No,2 has failed to establish that she got possession on the same day in pursuance of the agreement for sale dated 21-1-1970. As per General Power of Attorney dated 9-1- 1970 executed by the specified person in favour of the husband of the appellant No,2, the specified person gave possession to him on 21-1-1970.
(xiii) The said agreements for sale in favour of the two appellants are not proved from the fact of the delay of possession to them."
24. ' Out of the above thirteen reasons, first four pertain to respondent No,3. Reason (v) is that the said Mehboobul Islam had signed all the documents in favour of petitioner in Bengali whereas Mehboobul Islam's signature in H.B.L. was in English. On this basis, it found that there is inconsistency in his signatures on various documents purported to have been signed by him. This important question whether the documents produced by the petitioner bear the signatures of Mehboobul Islam or not, was disposed of by the respondent No,1 solely upon the basis that the signature of Mehboobul Islam in H.B.L. Savings Account is in English while the signature of the said Mehboobul Islam is in Bengali. We are unable to accept this as a safe mode of reaching a conclusion on the question of fact requiring determination in the present case.
25. ' Reason No,(vi) pertains to stamp papers. There are two stamps, one is based for sale agreement and the other is used for power of attorney. The sale agreement was attested by the Oath Commissioner. General Power of Attorney dated 9-1-1970 executed by the said Mehboobul Islam in favour of Muhammad Zubair Qureshi, was attested by the Notary Public. The attestation by the Oath Commissioner and Notary Public is not denied. These two documents were not taken into consideration on the sole ground that the stamp papers were not legally purchased from the authorised stamp vendor. The respondent No,1 should have given an opportunity to the petitioner to produce the Oath Commissioner and Notary Public or the Stamp Vendor. In view of this, the respondent No,1 has failed to approach the matter in accordance with law and hence fallen into an error.
26. ' Reason No,(vii) is about possession. The case of the petitioner was that she took over the peaceful and vacant possession of the said house in January 1970. It has come on record that the said Mehboobul Islam executed a power of attorney in favour of the husband of the petitioner. A perusal of the agreement shows that the said Mehboobul Islam handed over vacant possession of the house to the petitioner. It further shows that the said Mehboobul Islam also executed power of attorney in favour of the petitioner's husband.
27. ' Reason No, (viii) given by respondent No,1 is about the failure of the petitioner to produce tenancy agreement duly signed by respondent No,3. The respondent No,3 took a preliminary objection in his written statement filed in the rent proceedings instituted by the petitioner against him. The petitioner's attorney appeared in the witness-box and produced the sale agreement, power of attorney, allotment letter. The attorney stated that he had rented out the house in question to the respondent No,3. In support of this plea, he produced receipt book as Exh. I-T containing 27 counterfoils of the rent receipts marked as Exh.1-T-1 to Exh. 1-T-27 in the name of the respondent No,3. We have perused the eviction order passed by the Controller. He came to the conclusion that there existed relationship of landlady and tenant between the parties. The respondent No,3 went in appeal before VIIth Additional District Judge, Karachi which was also dismissed. The second appeal preferred by the respondent No,3 was also dismissed by order dated 31-10-1973.
28. In the instant case, the petitioner had obtained a good title, therefore she is entitled to the relief claimed by her in the petition. Respondent No,1 has taken erroneous and illegal view. Consequently the order of the respondent No,1 is clearly without lawful authority and of no legal effect and it is declared accordingly.
29. ' For the above reasons, we had allowed the petition on 18-2-1992 by our short order and set aside the impugned order, dated 26-6-1985 and the parties were left to bear their own costs.