1. By a short order dated the 11th May, 1993, I had decreed the suit as prayed. The reasons for the judgment, which could not be recorded at once due to lack of time are, as follows.
2. The suit concerns a plot of land bearing No. B/300, measuring 563.33 sq. Yards, situated in Block No.6, Karachi Administration Co-Operative Housing Society Limited. It is the common ground between the parties that the plot was allotted originally by the Society to the defendant No.4. The plaintiff alleges that the defendant No.4 made a oral gift of the plot in her favour and subsequently applied to the Society for transfer of the plot to the plaintiff, and that subsequently the plot was transferred to the plaintiff by the Society on the 30th January, 1977. It is further the case of the plaintiff that subsequently the possession of the plot was given by the Society to the plaintiff on the 26th July, 1978, and then sub-lease dated the 7th August, 1979, in respect of the plot, was executed by the Society in favour of the plaintiff. The plaintiff claims to have been in possession of the plot ever since and to have constructed a boundary wall and some other structures thereon. It is alleged that on the 27th April, 1983, the plaintiff came to know that some one was trying to take forcible possession of the plot and that the plaintiffs husband received, on the same date, a letter dated the 26th April, 1993, stating that a special meeting of the Society was to be held on the 28th April, 1983, to settle the dispute regarding the plot. It is alleged in para.8 of the plaint that the plaintiff came to know from the office of the Society that papers had been filed with the Society on behalf of the defendant No.1 for transfer of the plot and that those papers purported to have been signed by the defendant No.4. The plaintiff also discovered that the defendant No.4 had written to the Society denying that he had sold the plot to the defendant No.1. In these circumstances, the plaintiff claims a declaration that she is the lawful owner and sub-lessee of the plot in question and that the defendant No.1 has no legal right to seek the transfer of the plot in her favour and that the documents of transfer purported to have been signed by the defendant No. 4 have been manufactured and forged and are not binding on the plaintiff. The plaintiff also seeks a permanent injunction restraining the defendants from interfering with the right of the plaintiff in respect of the plot and with the physical possession of the plaintiff.
3. The defendant Nos.1 and 3 have filed a joint written statement in which various technical objections to the suit have been taken. Those objections are reflected in the issues which have been framed and need not be reproduced here. On merits, the defendants Nos.1 and 3 have denied that the defendant No.4 gifted the plot to the plaintiff and have challenged, the various actions taken by the Society for transferring the plot to the plaintiff on the basis of the gift made by the defendant No.4 to her. It is particularly alleged that the approval of the Society at its meeting on the 30th January, 1977, to the transfer of the plot to the plaintiff is based on misrepresentation and under the influence of the then Secretary of the Society and husband of the plaintiff, Mr. Naseemullah. These defendants have denied that the plaintiff is in possession of the plot and have claimed that the plot is in their possession. The defendants Nos.1 and 3 have also challenged the sub-lease executed in favour of the plaintiff on the ground that it is based on misrepresentation and under the influence of the Secretary of the Society, who is the husband of the plaintiff. The allegation in para.8 of the plaint that the defendant No.3 after obtaining signatures on blank transfer forms and other papers from defendant No.4 and in collusion with the defendants Nos. 1 and 2 manufactured the transfer documents and submitted the same in the office of the Society has been denied in para.8 of the written statement wherein it is alleged that the plot has been sold by the defendant No.4 to the defendant No.1 in consideration for Rs.2 lacs.
4. The defendant No.4 has filed a separate written statement stating that the contents of the paras. l to 6 to the plaint are not denied which means that the allegations in the plaint regarding the gift by the defendant No.4 to the plaintiff and the execution of sub-lease by the Society in favour of the plaintiff are admitted by the defendant No.4. With regard to the alleged agreement by the defendant No.4 to sell the plot to the defendant No.1, the defendant No.4 has alleged in para.2 of the written statement as follows:-- "The true facts are that sometime in November, 1982, the defendant No.3 (Mr. Muhammad Mujtaba) who is a Estate Agent, approached the answering defendant and offered him that he would get a plot of land allotted in this name from Karachi Administrative Employees Cooperative Housing Society, provided he give him the power and authority to dispose of the same and he informed the defendant No-3 that as he was already allotted a residential plot of land which he has transferred by way of gift in the name of plaintiff. But the defendant No.3 persuaded the answering defendant that he still is entitled to a commercial plot. That on persistent pursuasion of defendant No.3 the answering defendant in good faith signed on blank papers and the forms of the Society, and it was assured by the defendant No.3 that he would get a commercial plot allotted in the name of the answering defendant and would sell the same. That the answering defendant was utterly astonished to learn on 27-4-1983 that defendant No.3 with the connivance of the defendant Nos.1 and 2 mala fidley, dishonestly and with ulterior motive has forged and manufactured and fabricated transfer documents, pertaining to the transfer of Plot No. B/300.... The defendant has already transferred in the name of the plaintiff by way of gift ....--- On the above pleadings, the following issues were, by consent of the parties, settled on the 3rd February, 1985:-- (1)Is the suit bad for non-joinder of necessary parties?
5. (2)Is the suit barred under section 54 of the Cooperative Housing Societies Act?
6. (3)Is the suit not maintainable for want of notice under section 70 of the Cooperative Housing Societies Act and under section 56 of the Specific Relief Act?
7. (4)Has the plaintiff under-valued the suit and failed to pay proper court-- fees? If so, its effect?
8. (5)Whether defendant No.4 sold away the plot in question to defendant No.1 or transferred to plaintiff by way of gift?
9. (6)Whether the application for the transfer of plot in question to plaintiff has been signed by defendant No.4?
10. (7)Whether the approval on the application for the transfer of the plot in question to plaintiff is based on misrepresentation and under. The influence of Mr. Nasimullah who was the Secretary of the Cooperative Society concerned at the relevant time and husband of the plaintiff? If so, is the transfer of plot in question to plaintiff illegal and of no legal effect?
11. (8)Whether the lease had been executed by Society in favour of plaintiff? If so, its effect?
12. (9)To what relief, if any, the plaintiff, is entitled to?
13. The plaintiff examined herself and Nasimullah. The defendant No.4 examined himself and the defendant No.3 and Muhammad Mushtaq were examined on behalf of the defendants Nos.1 and 3.
14. I have examined the record and proceedings and heard the learned counsel for the parties; and my findings on the issues are as follows:-- ISSUE NO.1: --Mr. Talmiz Burney, the learned counsel for defendants Nos.1 and 3, contended that Karachi Administration Employees' Cooperative Housing Society Limited is the necessary party to the suit and, since it has not been joined, the suit is bad for non-joinder of parties. He, however, made no attempt to show how the questions arising in the suit between the parties cannot be effectively determined in the absence of the A Society. In fact, the questions involved in the suit can be effectively determined even in the absence of the Society. The Society was, therefore, not a necessary party and the suit is not bad for non-joinder of the Society.
15. ISSUE N0.2: --The dispute in this suit does concern a plot situated in the Karachi Administration Employees' Cooperative Housing Society Limited but the dispute with regard to that plot is entirely and exclusively between the parties to the suit; Mr. Burney did not advance any argument to show that it was a dispute touching the business of the Society. Further, there is no dispute between the plaintiff and the defendant No.4 and none of the other defendants have been shown to be members of the Society. In these circumstances, Section 54 of the Cooperative Housing Societies Act is not attracted.
16. ISSUE, N0.3.---Section 70 of the Cooperative Housing Societies Act requires that a notice has to be served on the Society before a suit is B filed against it. Since no suit has been filed against the Society, no question of want of notice under section 70 of the Cooperative Housing Societies Act can arise.
17. ISSUE N0.4: ---The plaintiff has valued the suit for the ,purposes of court-fees and jurisdiction at Rs.1 lac for the relief of declaration and Rs.200 for each prayer of injunction. She was entitled to do so under clauses (c) and (d) of section 7(iv) of the Court Fees Act. The suit has been, therefore, properly valued and, in fact, Mr. Burney did not address any argument whatsoever on this issue. .
18. ISSUES NO---S 5 AND 6.---These are in fact the central issues between the parties. While the plaintiff claims that the property was gifted to her by defendant No.4, the defendant No.1 claims that it was sold to her. Since the gift is claimed to be prior to the alleged sale in favour of the defendant, it will be .Convenient to examine the question whether the defendant No.4 gifted the plot to the plaintiff. The plaintiff in her examination-in-chief has asserted that the defendant No.4 gifted the plot to her; that the possession of the plot was subsequently given to her by the Society; that she has been and is in possession ever since; and that subsequently the Society granted to her a sub-lease in respect of the plot. She has produced, in support of her evidence, application dated the 10th December, 1976 (Ex.7/4) by defendant No.4 to the Society to transfer the plot to the plaintiff; acknowledgement of possession dated the 26 July, 1978 (Ex.7/2) and sub-lease dated the 7th August, 1979 (Ex.7/1) 6 her favour. These documents have not been questioned in anyth manner during the cross-examination of the plaintiff but the trend of the cross-examination that the gift is not valid because there was no relationship between the plaintiff and the defendant No.4 and that the transfer of the plot in favour of the plaintiff was effected on account of the influence of the plaintiff's husband who vas at the relevant time Secretary of the Society. The plaintiff has however, denied that her husband was the Secretary of the Society when the plot was transferred to her. The defendant No.4 in his evidence has asserted categorically that he gifted the plot orally to the plaintiff and subsequently executed an affidavit confirming the gift and the plot was then transferred to the plaintiff by the Society. The defendant No.4 reaffirmed during his cross examination by the counsel on behalf of the defendants Nos.1, 2 and 3 that he had gifted the property to the plaintiff and had executed a declaration of gift and has also denied that the plaintiff's husband was Secretary at the time of the transfer of the plot to the plaintiff. In cross- examination by Mr. Azhat. Ali Siddiqui, on behalf of the plaintiff, the defendant No.4 affirmed that he hid, in 1982, no right to sell the plot. This was obviously because he had gifted the plot to the plaintiff prior to 1982.
19. The second witness examined by the plaintiff was Muhammad Nasimullah who, at the time when he gave the evidence, was the Secretary of the Society since the 12th October, 1983. This statement has not been challenged and, therefore, it is clear that at the time when the plot was transferred to the plaintiff, Nasimullah was not the Secretary of the Society. Nasimullah has produced various documents relating to the plot, from the record of the Society. Ex.8/1 is internal note of the Society stating that dyed Zafar Ahmed, the defendant No.4, had gifted the plot to Mst. Farzana Khatoon, the plaintiff, and that a photostat copy of the gift deed had been furnished; and that the transfer of the plot to the plaintiff was approved in the meeting of the Managing Committee of the Society held on the 30th January, 1977. Ex.8/3 is a letter from the plaintiff to the Society asserting that the plot had been transferred to her on the 30th January, 1977, and a sub-lease in respect thereof had been granted to her. Ex.8/13 is the letter dated -the 7th September, 1976, from defendant No.4 to the Society confirming that he had gifted the plot to the plaintiff. Ex.8/14 is a declaration of gift by the defendant No.4 in favour of the plaintiff. Ex.8/15 is a letter from the Society to the plaintiff informing her that the Society had decided to hand over the possession of the plot to her on the terms and conditions mentioned therein. Another document, also marked as Ex.8/15, is a letter of the Society, dated the 13th June, 1977, confirming that the plot had been transferred to the plaintiff.
20. From the evidence of the witnesses and the documents mentioned above, there is no manner of doubt that the plot in question was gifted by the defendant No.4 to the plaintiff and in consequence thereof, the plot Was transferred by the Society to the plaintiff and the possession.
21. Thereof was I handed over to the plaintiff and finally a sub-lease (Ex.7/1) was executed by the Society in favour of the plaintiff. The plaintiff has, thus, acquired a valid and proper title to the plot in question. Mr. Burney sought to attack the gift on the sole ground that there was no relationship between the plaintiff and the defendant No.4. He, however, did not elaborate as to how the lack of relationship between the plaintiff and the defendant No.4 would make the gift void. Be that as it may, the fact remains that the defendant No.4, who was the allottee of the plot, has more than once reaffirmed that he had gifted the property to the plaintiff and further that the defendants Nos.1, 2 and 3 being total strangers to the transaction are not entitled to the question the validity of the gift.
22. In any event, the material on record shows that the defendant No.4 had surrendered his rights in the plot in favour of the plaintiff and the plot, in consequence of such surrender, was transferred to the plaintiff by the Society who then executed a sub-lease in favour of the plaintiff.
23. Now, the claim put forward by the defendant No.1 is that the defendant No.4 had by agreement of sale dated November, 1982 (Ex.10/1) agreed to sell the plot to defendant No.1. It may be observed that the defendant No.1 herself did not appear to give evidence but evidence on her behalf was given by the defendant No.3 who is an estate agent and by one Muhammad Mushtaq. The defendant No.3 has produced in his evidence the documents purporting to be agreement of sale (Ex.10/1), a receipt for Rs.2 lacs executed by the defendant No.4 (Ex.10/2), an affidavit (Ex.10/4) by the defendant No.4 and a letter dated the 2nd May, 1983 (Ex.10/11) from the defendant No.4 to the Society stating that he has sold the plot to the defendant No.1. Although these documents were alleged to have been signed and executed by the defendant No.4 and were produced by the defendant No.3 from his own possession, the defendant No.4 was not confronted with these documents. These documents, therefore, are of little or no value. Further, the examination of these documents shows that there are various interpolations and additions made therein. However, in the facts and circumstances of this case, it is not necessary to decide whether the documents produced by defendant No.3 are genuine or not because the best that can possibly be established by these documents is that the defendant No.4 agreed to sell the plot to the defendant No.1. If the agreement is genuine, the only right it would confer on the defendant No.1 would be a personal right to enforce the agreement against the defendant No.4. It may, in passing be noted that not only has the defendant No.1 taken no steps to enforce the alleged agreement for sale of the plot against the defendant No.4 but, on the contrary, the defendant No.4 has filed a suit against the defendant No.1 for cancellation of these documents and that suit is said to be pending. In any event, the fact remains that the alleged agreement for sale is subsequent to the transfer of the plot to the plaintiff, so that when the alleged agreement for sale was executed, the defendant, No.4 had no right, title or interest to or in the plot to transfer to any one. The alleged agreement is, therefore, of no effect as against the plaintiff.
24. ISSUE NO. 7: --Mr. Talmiz Burney stated in the course of the arguments that if the finding on issues Nos.5 and 6 goes against the defendants Nos.1 and 3, issue No.7 would become redundant. It is, therefore, not necessary to give any detailed fording on this issue but it may be observed that on the evidence on record, it has been shown that Nasimullah was not the Secretary of the Society at the time of the transfer of the plot to the plaintiff. Further, there is no evidence on record to show that the transfer was procured by misrepresentation or under influence.
25. ISSUE NO 8: --It is an admitted position that the Society has executed a sub-lease in favour of the plaintiff. The effect of that is that the plaintiff has all the rights granted by the sub-lease to her.
26. ISSUE N0.9: -In view of the findings on the above issues, the plaintiff is entitled to the reliefs claimed in the suit.