1. These two Revision Applications Nos.250 and 251 of 1994 have been filed against a common judgment dated 25-4-1994 by which two Civil Appeals Nos-263 and 264 of 1992 were disposed of.
2. Revision Application 250 of 1994 has been filed against the judgment and decree dated 25-4-1994 and 12-5-1994 respectively passed by the learned VIIIth Additional and Sessions Judge, Karachi South, in Civil Appeal No.263 of 1992 upholding .Consolidated judgments of the trial Court dated 13- 9-1992 passed in Suit No. 1155 of 1979 (4185 of 1985) and Suit No.4402 of 1979 (4442 of 1985) decreeing the suit filed by the respondent and dismissing the suit of the applicant. I intend to dispose of both these Revision Applications by common judgment as the parties, facts and grounds in both the Revision Applications are the same.
3. The brief facts are that the plot in dispute bearing No.B/67, situated in Karachi Administrative Employees Cooperative Housing Society was originally allotted to one Dildar A.I Khan who under an agreement of sale dated 29-5-1974 agreed to sell .The said plot to Mst. Nuzhat Aziz present Respondent No. 1. A joint application for transfer of the said plot and for nominal membership of Mst. Nuzhat Aziz was filed with the society and a resolution was passed by the Managing Committee on 6-1-1975 to this effect. The allotment of the plot was cancelled by the society on the ground that it had not received the membership fee and dues of the plot amounting to Rs.900.
4. Admittedly prior to such cancellation notices were sent to the original allottee Dildar Hussain and not to Mst. Nuzhat Aziz. The said plot was allotted to the present applicant who filed Suit No. 1155 of 1979 (4185/1985) which was decreed for possession. Mst. Nuzhat Aziz also filed Suit No.4402 of 1979 (4442 of 1985) which was dismissed by common judgment dated 25-1-1986. Against the said order dated 25-1-1986 Appeals Nos.53 and 54 were preferred by Mst. Nuzhat Aziz but the same were dismissed on 5-5-1988. Against the said judgment and decree Revision Application No. 192 of 1988 was filed before the High Court by Mst. Nuzhat Aziz which was disposed of vide judgment dated 30- 4-1990, remanding both the suits for fresh disposal after recording the additional evidence of the society as well as the parties. The Secretary of the society who had come with the record was examined but no further evidence was produced by the parties. The issues remained the same as adopted originally and the learned Vth Senior Civil Judge, Karachi passed the judgment dated 18- 8-1992 reversing the earlier judgment by decreeing the Suit No.4402 of 1979 (4442 of 1985) filed by Mst. Nuzhat Aziz and dismissing the Suit No. 1155 of 1979 (4185/1985) filed by the present applicant.
5. This judgment was assailed before the VII th Additional District Judge, Karachi South, in two Civil Appeals Nos.263 and 264 of 1992 by the present applicant. It will be pertinent to point out that Civil Appeal No.264 of 1992 was dismissed for non-prosecution against Nuzhat Aziz and was restored only against society.
6. The learned District Judge vide judgment dated 25-4-1994 upheld the judgment passed by the learned Trial .Court and it is against this judgment that the present Revision Applications have been filed.
7. Mr. Azhar A.I Siddiqui, the learned counsel for the applicant contended that the learned trial Court as well as appellate Court did not take into consideration the facts mentioned in judgment of the High Court, that the possession of the plot was with the present applicant. His further contention way that only statement of Secretary of the society was recorded and no further evidence of the other parties was recorded by the trial Court. Next he argue that section 70-A of the Cooperative Society Act, 1912 bars the jurisdiction o the Civil Courts and the matter should have been referred to the Registrar According to him since the objections are legal they can be raised at any stage and the Court can also take suo motu action on this ground.
8. The learned counsel for the applicant relied on the case of Sajjad Hussain Khan v. Muhammad Hanif Siddique and others, 1990 M LD (Karachi 25. The facts of the case are not applicable to the present one as it pertains to the elections of the society. In the present case the dispute between the parties is entirely different and no relief has been sought mainly against the applicant/defendant No. 1. The next case relied upon by Mr. Azhar A.I Sddiqui was of Ziaur Rehman Alvi v. Allahabad Cooperative Housing Society Limited, PLD 1995 Karachi 399. The suit was filed against the society without giving notice in terms of section 70 of the Cooperative Society Act, 1925, which was pre-requisite before filing the suit against society. The dispute between the parties was in regard to a plot the size of which was allegedly reduced by the society. As enumerated above the facts of both the cases are different from the instant case.
9. Mr. Khalilur Rehman the learned counsel for the respondent contended that the objection in regard to the jurisdiction was never raised before, in any of the proceedings, and as such cannot be agitated now. His further contention was that the only point to be decided between the parties was that the plot could not be cancelled without notice to Nuzhat Aziz, and as such the subsequent transfer was illegal. According to him section 48 of the Transfer of Property Act safeguard the rights which were previously created and as such the two Courts were right in decreeing the suit of the Respondent No. l and dismissing the suit of the applicant. He relied on an unreported judgment of Supreme Court passed in Civil Appeal No. 135-K of 1989.
10. The admitted facts are that originally the subject plot was allotted to one Dildar Hussain who under joint application to the society got the plot transferred in the name of Mst. Nuzhat Aziz. In the joint application it was also requested that she may be accepted as the member of the society and a resolution was also passed granting her membership, and the dues of the membership fee and ploy were paid by Mst. Nuzhat Aziz.
11. The events clearly establish that applicant himself first approached the Court by filing Suit No. 1155 of 1979 (4185 of 1985) before the Civil Court. The point of jurisdiction raised now was not raised the appellate stage nor they are reflected in the Memo. Of Revision Application or the plaint of the suit.
12. The original suit filed by the present applicant was for possession, mesne profit and injunction and the prayer was that he may be given the possession of the subject plot. As such the dispute between the parties was not as envisaged in section 54 of the Cooperative Society Act "touching the business of the society" but a civil dispute between the two parties. It further establishes that the possession of the plot was with Mst. Nuzhat Aziz at the relevant time. The evidence of Secretary of the society was recorded as directed by the High Court and if the parties did not produce any further evidence it was not the fault of the Trial Court. The relevant issues are Issues Nos.5, 6, 7 and
8. The learned Judge has discussed, the evidence of the Secretary of the society and the parties in detail and has given sound reasons for upholding the judgment of the Trial Court.
13. Section 48 of the Transfer of Property Act is as under:--- "Priority of rights created by transfer.--Where a person purports to create by transfer at different times rights in or over the same immovable property, and such rights cannot all exist or be exercised to their full extent together, each latter created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created."
14. The wording of section spells out clearly that if there are successive transfer of the same property the latter transfer is subject to the prior transfer. This principle is supported by the judgment of the Supreme Court in the case of Muhammad Abdul Sattar v. Mst. Zubeda and others unreported in Civil Appeal No. 135-K of 1989. In the said case lease was executed in favour of the plaintiff on 7-9- 1965 and the K.D.A. Thereafter executed and got another lease in respect of the same property on 3-3-1966 in favour of the contesting defendant Safdar Hussain. Subsequently, a suit was filed wherein the issue was that the lease granted subsequently on 3-3-1966 had no legal effect and as such all subsequent transfers were without any legal authority. It was held that:--- "the 99 years lease having already been granted to the plaintiff by registered-deed dated 7-9- 1965, a co-extensive lease in respect of the same property could not have been granted by the K.D.A. To Safdar Hussain on 3-3-1996. In case of conflict between the two the earlier document was to prevail under section 48 of the Transfer of Property Act."
15. PLD 1961 SC 215, it was held as under:--- "It is inconceivable that the Legislature intended that any or every kind of dispute, if it merely touched the business of the society, should be dealt with in the manner provided in the section, for, then anyone dealing with a cooperative society will have to do so at the peril of being deprived of his ordinary remedies under the general law of the land. Such an intention cannot possibly be imputed to the Legislature. "
16. The bare reading of the plaint of the two suits and prayer clauses clearly discloses, that the dispute was for possession of the subject property between the two parties and as such the arguments of Mr. Azhar A.I Siddiqui in regard to applicability of sections 54 and 70-A of the Cooperative Societies Act, had no force. Further, the applicant himself invoked the jurisdiction of the Civil Court and as such, now he cannot object to the same. It is a settled principle of law that a litigant cannot be allowed to reprobate that which he had himself approbated. Moreover, none of the issues refer to the jurisdictional bar of the Court.