' Applicants Mst. Sarwar Ara and others are aggrieved by the judgment and decree dated 3-3- 1990/7-3-1990 passed by the learned IIIrd Additional District and Sessions Judge (Central), Karachi whereby Civil Appeal No,64/1988 (Old No,90/1988) was allowed and the judgment and decree passed by the learned IXth Civil and Family Judge (West), Karachi in Suit No,1776/85 was set aside.
2. Briefly stated the facts giving rise to the present litigation are that respondent Mst. Sabra Khatoon filed Civil Suit No, 1776/85 (Old No, 391/79). It is averred in the plaint that Mst. Sabra Khatoon was the owner/allottee and occupant of disputed Plot No,6/64/B, Liaquat Abad, Karachi measuring 200 sq. Yards. It is further alleged that she built residential house and shops on the aforesaid plot of land. That out of those shops two shops are in possession of applicants Nos,3 and
4. It is further alleged that applicant/defendant No,1 Mst. Sarwat Ara is the widow of one Shakir Ali who was class-fellow and fast-friend of plaintiff/respondent Sabra Khatoon's husband and both the parties were on family terms. That in the year 1959 plaintiff/respondent Sabra Khatoon and her husband fell ill and had to leave Karachi for Quetta on the advice of their physician.
Plaintiff/respondent Sabra Khatoon appointed applicant/defendant No,1 as her attorney to look after the disputed property. While respondent Mst. Sabra Khatoon was away at Quetta, applicant/defendant No,1 created a wall by setting the pfot into two portions and making extra residential portion on the back side of the shops. On return from Quetta plaintiff/respondent Sabra Khatoon objected to the erection of the aforesaid wall and construction of extra residential portion and the shops, but applicant/defendant No,1 satisfied her that as she had no privacy, as such the wall has been erected as "Parda-wall". It is further averred in the plaint that after some time applicant/defendant No,1 rented out the aforesaid shops and started to claim the ownership of the aforesaid walls and the portion of the plot from the beginning of the year 1968. On that plaintiff/respondent cancelled the power of attorney and published such notice in daily JANG dated 29-4-1968.
3. Thereafter litigation started between the parties. Plaintiff/respondent Mst. Sabra Khatoon filed Suit No,770/69 against defendant No,1 for declaration and injunction, but the aforesaid suit was dismissed for non-prosecution. Respondent/plaintiff Mst. Sabra Khatoon filed application under Order 9, rule 9 read with section 151, C.P.C. For the restoration of the aforesaid suit but the same was also dismissed. The respondent/plaintiff did not file any appeal/revision against the aforesaid orders of dismissal. Applicant/Mst. Sarwat Ara also filed Suit No, 773/68 against Mst. Sabra Khatoon for declaration and injunction. That matter went up to the High Court. Vide order dated 16-10-1982 the Revision Application filed by present applicants Mst. Sarwat Ara was disposed of on the basis of the statement of the learned counsel of the respondent Mst. Sabra Khatoon that Mst. Sarwat Ara would not be ejected out of the plot in dispute by force. Thereafter the present litigation started between the parties.
4. Applicant/defendant Mst. Sarwat Ara and others filed joint written statement whereby legal pleas in respect of maintainability of the suit were taken. On merits it was submitted that the portion of the disputed plot measuring 110 sq. Yards was purchased by applicant/defendant No,1 Mst. Sarwat Ara from respondent Sabra Khatoon for a consideration of Rs,2,500 only for which valid receipt was executed by Mst. Sabra Khatoon. That the disputed shops and residential house were constructed by applicant/plaintiff Mst. Sarwat Ara. That the portion of the plot was regularised in her favour by the KDA and she had been paying various taxes. That she also got electricity and gas connections installed in the disputed portion. That respondent Mst. Sabra Khatoon had also executed sale-deed in her favour.
5. On the pleadings of the parties the following issues were framed:--
(1) Whether the suit as framed is maintainable in law?
(2) Whether the plaintiff was owner or allottee in simpliciter of suit plot as alleged in para. 1 of the plaint, if not with what result?
(3) Whether the plaintiff sold away the portion comprising of 110 sq. Yards out of 200 sq. Yards of plot in suit by giving up all the rights and title therein in favour of the defendant No,1 on consideration of Rs,2,500 paid in cash to the plaintiff and thereby she put the defendant in physical possession of the aforesaid portion and executed the power of attorney enabling the defendant No,1 for better and perfect title thereof? If so, with what effect?
(4) Whether the plaintiff or defendant No,1 built residential house and shops on the portion of 110 sq.
Yards of suit plot in question?
(5) Whether the plaintiff is entitled for any mesne profits, if so to what extent?
(6) What should the decree be?
(7) What should the value of the suit property be, for the purposes of jurisdiction and whether it exceeds the pecuniary jurisdiction of this Hon'ble Court, if so, whether this Hon'ble Court has jurisdiction to entertain the suit and thus liable to be dismissed?
(8) Whether the suit is barred by the provisions contained in:--
(i) Order II, Rule 11, C.P.C.
(ii) Order IX, rule 9, C.P.C.
(iii) By principles of estoppel and provisions contained in section 42 of Specific Relief Act as per paras. 2 and 7 of the written statement, if so, with what result?
' I have heard Mr. Amanullah Khan, learned counsel for the applicants and also Mr. M.M. Baig, learned counsel for the respondent.
ISSUE NO,1: ' Mr. Amanullah Khan, learned counsel for the applicants submitted that the suit was time-barred under Article 142 of the Limitation Act. Mr. Amanullah Khan, explained that admittedly the applicants have been in possession of the disputed portion of the plot-in-suit since 1959, while under Article 142 of the Limitation Act, the period for the purposes of limitation is 12 years which is to be counted from the date of discontinuance of the possession of the property-in-dispute. Mr. Amanullah Khan invited my attention to the filing of Suit No,770/1968 by the respondent Mst. Sabra Khatoon against the present applicant Mst. Sarwat Ara for declaration and injunction. Photocopy of the plaint of aforesaid suit is Annexure "A" to the revision application. Mr. Amanullah Khan submitted that the aforesaid suit was filed in respect of the property which is in dispute in the present litigation. He pointed out that perusal of two plaints i,e, the plaint in Suit No,770/68 and the plaint in the present suit indicated that paragraphs Nos,1 to 12 of Suit No,770/68 have been reproduced in verbatim in the plaint of the present suit. Mr. Amanullah Khan further contended that the perusal of the paragraphs Nos,4, 6, 7, 8 and 9 clearly indicated that the possession of the respondent Mst. Sabra Khatoon in respect of disputed property had been discontinued in the year 1959. That it is further revealed that present applicant Mst. Sarwat Ara is not in possession of the disputed property since the year 1959. Mr. Amanullah Khan contended that according to respondent Mst. Sabra Khatoon, the possession of Mst. Sarwat Ara applicant had been in capacity of licensee but in the suit bearing No,773/68 (paragraphs Nos,13 and 14 of the plaint) which was filed by the applicant Mst. Sarwat Ara against respondent Mst. Sabra Khatoon for declaration and injunction which was already by the Court vide judgment dated 3-3-1978 that Mst. Sarwat Ara was in wrongful possession of the plot-indispute. Mr.Amanullah Khan contended that in view of the decision of the Court the respondent could not take the plea that the possession of Mst. Sarwat Ara was in the capacity of licensee. Since Mst. Sarwat Ara was in wrongful possession of the property- in-dispute since the year 1959, hence the present suit was time-barred under Article 142 of the Limitation Act, as the same has been filed after about 20 years from the date when the cause of action arose.
' On the other hand Mr. M. M. Baig, learned counsel for the respondent submitted that the plea of limitation was not taken in the written statement filed in the trial Court hence such plea could not be taken at this stage. On merits he submitted that the possession of the applicant was in the capacity of licensee under the power of attorney given to the applicant No,1 by the respondent, as such the provisions of Article 142 of the Limitation Act were not attracted.
' As regards the raising of the legal plea of limitation is concerned, I am not convinced with the contention of Mr. M.M. Baig, that the same could not be raised at the present stage. Obviously it is settled law that the legal plea can be raised by any party at any stage of the proceedings. On the question of the nature of possession of the applicants in respect of the property-in-dispute, it would be advantageous to reproduce paragraphs Nos,4, 6, 7, 8 and 9 of the plaint in the earlier suit bearing No,770/68 and the present suit. These paragraphs run as under:-- "4. That in 1959, the plaintiff and her husband both fell ill and on their physician's advice, had to leave Karachi for some time.
6. That the defendant No,1 acted as her attorney. When the plaintiff returned from Quetta the defendant No,1 continued to act as her attorney as the plaintiff and her husband were not keeping good health and also because the plaintiff's husband had little time to look after her property.
7. That while the plaintiff was .Away from Karachi the defendant No,1 erected as wall by setting the plot into two portions and making extra-residential portion on the back side of the shops. When the plaintiff returned she objected to this whereupon the defendant No,1 satisfied her by saying that she had done so temporarily as she had to live in this portion and as there was no Purdah-wall. The plaintiff tolerated this on account of mutual relation.
8. That after some time the defendant No,1 instead of herself living in this portion let it out on rent but the plaintiff tolerated this also.
9. That in the beginning of the year 1968 the defendant No,1 and Mr. Zaidi began telling the tenants of the shops and other persons of the locality that the defendant No,1 is the owner of the shop and the plot and that the plaintiff has nothing to do with it."
' Bare perusal of the aforesaid paragraphs indicated that as far as back in the year 1959 respondent Mst. Sabra Khatoon had full knowledge of the fact that the applicant Mst. Sarwat Ara had raised the partition wall between the two portions of the plot. That she had also constructed shops which were let out to the other applicants, while the residential portion was being occupied by her. It is surprising to note that respondent did not raise any objection in respect of the action taken by applicant Mst. Sarwat Ara till the year 1968, when according to her she cancelled the alleged power of attorney given by her to Mst. Sarwat Ara and also filed suit for declaration and injunction bearing No,770/68 against Mst. Sarwat Ara. It has not been explained nor any evidence has been produced to show as to why respondent Mst. Sabra Khatoon tolerated the possession of the applicants for a period of 10 yeaRs, Even if for the sake of arguments it is admitted that the possession of Mst. Sarwat Ara was that of a "licensee", still respondent Mst. Sabra Khatoon was not expected to tolerate the illegal actions of the alleged "licensee". It was the duty of the respondent to file suit for ejectment/possession against Mst. Sarwat Ara, as soon as in the year 1959 on return from Quetta, she came to know about the illegal construction of the residential portion erection of partition wall and the shops by Mst. Sarwat Ara. Thus the cause of action for filing suit for ejectment/possession in fact arose in the year 1959 and not in the year 1968 or 1978 as alleged by the respondent Mst. Sabra Kahtoon.
' Article 142 of the Limitation Act, runs as under:-- {{TABLE}} "142. For possession of Twelve The date of the immovable property yeaRs, dispossession or when the plaintiff while discontinuance. In possession of the property, has been dispossessed or has dis- continued the possession {{TABLE}} ' Since the cause of action for filing the suit for ejectment/possession arose in the year 1959, and the present suit was filed in the year 1979, hence the same is hopelessly time-barred.
ISSUE No,8: Order 2, rules 1, 2 and 3, C.P.C. Run as under:--
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 relinquish 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."
Order 9, rule 9, C.P.C. Runs as under:-- "9. Decree against plaintiff by default bars fresh suit.--(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit."
' Section 42 of the Specific Relief Act, contains the following provisions:-- "42. Discretion of Court as to declaration of status or right.--Any person entitled to any legal character, or to any rights as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.
Bar to such declaration.--Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so?
' Mr. Amanullah Khan, learned counsel for the applicant Mst. Sarwat Ara contended that in the year 1959, when respondent Mst. Sabra Khatoon and her husband returned from Quetta they found that applicants had raised partition wall in between the disputed portion and the main plot. That applicant had occupied the residential portion which was constructed on the disputed portion of the plot and had also constructed and rented out the shops to different tenants. This being so, according to Mr. Amanullah Khan, even if the applicant was in possession of the plot as a result of alleged power of attorney, still her illegal acts gave cause of action to respondent Mst. Sabra Khatoon to file suit for ejectment/possession, but she only filed a suit for declaration and injunction against Mst. Sarwat Ara bearing Suit No,770/69 which was subsequently dismissed under Order 9, Rule 9, C.P.C. For non-prosecution. Mr. Amanullah Khan, contended that under the circumstances, subsequent suit for ejectment/possession could not be filed as the relief of possession/ejectment was to be sought in Suit No,770/69.
' Mr. Amanullah submitted that admittedly the law does not permit splitting of claims arising out of the same cause of action as a party cannot be vexed twice for the same cause. He further submitted that Order 2, Rule 2, C.P.C., provides that every suit shall include the whole of any claim which the plaintiff is entitled to make in respect of the cause of action on which he sues and bars, except with the leave of the Court, any subsequent suit in respect of any portion of his claim which the plaintiff omits or intentionally relinquishes in the first suit. The object of law is to prevent splitting of claims and to prevent multiplicity of suits on the basis of well-known principle that a party should not be vexed twice for the same cause of action. Reliance is placed on Muhammad Khan and others v. Arshad Ismail and others (1987 MLD 671; Ghulam Nabi and others v. Seith Muhammad Yakoob and others (PLD 1983 SC 344); AIR 1949 PC 78; AIR 1931 PC 229 and PLD 1977 Kar.
772.
' As regards the bar contained under Order 9, Rule 9, C.P.C. Mr. Amanullah Khan placed reliance on Aziz Ahmed and others v. Rajan Bibi and others 1987 SCMR 527 and Amir Din Sahab Din v. Shiree Dev Singh (AIR 1947 Lah. 102) whereby it is held that when the suit has been dismissed for default under Order 9, Rule 8, C.P.C., second suit filed on the same cause of action was barred under Order 9, Rule 9, C.P.C. For the simple reason that no one is to be vexed twice for the same cause of action.
' On the other hand, Mr. M. M. Baig, learned counsel for the respondent submitted that the present suit was not barred under Order 2, Rule 2, C.P.C. Order 9, Rule 9, C.P.C. And section 42 of the Specific Relief Act, on the ground that Suit No, 770/1968 was dismissed for non-prosecution and not on merits. He further submitted that the aforesaid suit was filed against Mst. Sarwat Ara for declaration and injunction in order to restrain her from collecting rent from the shopkeepers while the present suit has been filed . Against Mst. Sarwat Ara as also against the tenants of the shops for ejectment/possession. Mr. Baig contended that since the defendants are different, hence the present suit was not barred under the aforementioned provisions of law. Reliance is placed on AIR 1924 Patna 560, PLD 1963 Dacca 504, AIR 1921 Lah. 307, AIR 1929 Madras 96, AIR 1919 Allahabad 270, 1973 SCMR 289 and PLD 1959 SC 356.
' I am not convinced with the submissions of Mr. M.M. Baig, as already mentioned the perusal of paragraphs Nos,4, 6, 7, 8 and 9 of the plaint in Suit No,770 of 1968 clearly reveals that appellant Sarwat Ara had been in possession of the disputed portion of the plot and had let out the shops in dispute to the tenants even at the time of filing of Suit No,770/68. As such the relief of possession/ejectment against the present appellant was available at the time of filing of Suit No,770/68 but the same was not sought. As such subsequent suit could not be filed on the same cause of action accordingly it was rightly held by the Senior Civil Judge that the present suit was barred under the abovementioned provisions of law.
ISSUES NOS, 3 AND 4: ' Mr. M.M. Baig, learned counsel for the respondent supported the findings of the First Appellate Court which decided Issues Nos,3 and 4 in favour of the respondent and reversed the findings of trial Court on these issues. Mr. Baig, mainly based his arguments on the basis of the findings of the Appellate Court. It was stressed by Mr. M.M. Baig, that the sale-deed allegedly executed by the present respondent in favour of appellant Mst. Sarwat Ara was not registered, as such it had no evidentiary value. Reliance is placed on 1973 SCMR 289. Mr. Amanullah learned counsel for the appellant submitted that since the plot in dispute had not been finally leased out in favour of respondent Mst. Sabra Khatoon, hence the aforesaid sale-deed could not be registered. He further submitted that the authority quoted by Mr. M.M. Baig, itself lays down that unregistered sale deed can be used for collateral purposes. Mr. Amanullah, further submitted that the appellant has produced large number of documents to establish that the residential portion and the shops were constructed by her. She also produced documents to the effect that the disputed portion was regularised in favour of the appellant by the Director-General Housing Management. She also produced number of documents to show that she got the electricity and gas connections installed in the disputed portion. She also produced documents in respect of payment of various taxes and fees to different authorities. Receipts were also produced by the appellant to show that the tenants have been paying rent of shops to the appellant. Furthermore site plan in respect of construction of residential portion and the shops on the disputed portion of the plot was also produced by the appellant. Similarly tenancy agreement in favour of the appellant in respect of the shops on disputed portion were also produced in the lower Court. Mr. Amanullah, submitted that the appellate Court brushed aside of all these documents on the simple plea that one Mr. Zaidi close relative of the appellant was an employee of K.D.A., as such the appellant with the help of aforesaid Mr. Zaidi forged and fabricated documents pertaining to the regularisation of the disputed portion of the plot in favour of the appellant. Mr. Amanullah, submitted that aforesaid Mr. Zaidi is neither a party, nor appeared as witness in the present suit, hence the lower Appellate Court, was not justified to condemn Mr. Zaidi without hearing him, as such the findings that documents were fabricated 4nd forged with the help of Mr. Zaidi was unsustainable.
' After considering the submissions of both the learned counsel I am of the view that the large number of documents, whose details are given in the judgment of the trial Court, have been produced by the appellant to establish that the portion in dispute was regularised in her favour by the concerned authorities. The appellants have also proved that she got the electricity and gas installed in her name in the disputed portion of the plot. Furthermore, she also proved payment of various taxes and fees made by her in respect of the disputed property. So also tenancy agreements executed by the tenants in respect of the disputed shops in favour of the appellant have also been produced. Furthermore the perusal of the above-mentioned paragraphs Nos,4, 6, 7, 8 and 9 of the plaint in Suit No,770/68 which was filed by the respondent Mst. Sabra Khatoon against the present appellant, clearly indicate that the appellant was not in possession of the disputed portion of the plot even prior to 1968. Under the circumstances, I am of the view that the alleged sale-deed can be used for collateral purposes to prove the alleged sale of the disputed portion of the plot in dispute in favour of the appellant.
' Mr. M. M. Baig attacked the payment of alleged consideration of Rs,2,500 by the appellant to the respondent in respect of the sale of disputed portion of the plot. He contended that in the earlier suit bearing No,773/1968 the appellant had alleged that she purchased the disputed protion for a consideration of Rs,2,000 only while in her statement in present suit the appellant alleged that the sale consideration was Rs,2,500 only and such receipt Exh.D/39 has been produced by the appellant. According to Mr. M.M. Baig, the aforesaid receipt did not bear the signatures of respondent Mst. Sabra Khatoon and the same was forged documents. Mr. M. M. Baig, further submitted that the discrepency in respect of the amount of consideration of sale was fatal to the claim of the appellant that she had purchased the disputed protion of the plot from respondent Mst. Sabra Khatoon. Reliance is placed on PLD 1983 Lah. 466 Abdul Sattar and others v. Abdul Shakoor and others, AIR 1914 Oudh 318, Surag Baksh v. Chhab Kuar, 1985 CLC 937 (Kar.) Muhammad Ayyub v. Muhammad Younus and 1989 CLC 1620 Shadab Khan and others v. Bahram Khan and otheRs, ' I do not find much force in the contention of Mr. M.M. Baig, as looking to the passage of time, discrepancy to the tune of Rs,500 in respect of the sale consideration of the property in dispute is not of much importance. Learned trial Court has given cogent reasons for its findings that the receipt produced by the appellant bears the signatures of Mst. Sabra Khatoon respondent. Even if for the sake of arguments the aforesaid receipt is excluded from the evidence, still there is preponderance of documentary evidence to establish that the disputed portion of the plot was purchased by the appellant from respondent No,2. Furthermore it is also proved that the appellant got the residential portion and the shops constructed on the disputed property. As such issues Nos,3 and 4 were rightly decided by the trial Court in favour of the appellant.
ISSUE NO,5: ' In view of the above discussion, it is evident that the respondent is not entitled for recovery of any mesne profits from the appellant.
ISSUE NO,7: ' Respondent No,2 valued the suit property at Rs,7,200 only and paid such court-fees on it. But the learned Senior Civil Judge arbitrarily assessed the market value of the suit property at Rs,2 to 3 lacs. Since the finding of the learned Senior Civil Judge is not based on evidence, hence it was rightly set aside by the Appellate Court, as such the trial Court had the jurisdiction to try the present suit.
' In view of the above discussion, I am of the view that there was overwhelming evidence on the record in respect of the findings given by the trial Court Judge, as such the present revision application is hereby accepted, the judgment and order of the learned IIIrd Additional District and Sessions Judge (Central), Karachi, is hereby set aside and that of the trial Court is restored. Parties are left to bear their own costs.