' The plaintiff has brought this suit for declaration, injunction and cancellation of documents against the defendants in the following circumstances.
2. It is the case of the plaintiff that she was resident of 93-B, Muhammad Ali Housing Society till she moved to 2-B, 9th Zamzama Street, Defence Housing Authority, Phase-V, Karachi. In 1974 she negotiated with Major Nizamuddin for the purchase of plot bearing No,21/6 Commercial Street, Defence Housing Authority, Phase-IV (Commercial Street, Defence Housing Authority, Phase-IV (Commercial) Karachi, measuring 600 sq yards. The deal was concluded and all documents of title including letter dated 22nd September, 1967, allotment order dated 31st October, 1967, receipts and correspondence by the vendor with the D.H.A. Were delivered to her. On 29th September, 1974 the said vendor issued a receipt for a sum of Rs,30,000 to her as full and final consideration for the sale of the plot in suit to her and swore an affidavit confirming the sale and sent in to D.H.A. With the allotment order and a covering letter. On 21st October, 1974 plaintiff submitted an application for membership of Pakistan Defence Officers Housing Authority and paid the dues therefor. Her memberships was accepted on 18th December, 1974, and a transfer order was issued on 14/16th January, 1975 by D.H.A. She visited the plot from time to time and continued to enjoy her rights including possession as a transferee of the plot. On her application National Identity Card was issued to her by the defendant No,3. It is the grievance of the plaintiff that the defendant No,1 in order to deprive her of the property got some one to impersonate her and obtained a false National Identity Card from the defendant No,3 in which the address of the plaintiff was disclosed of Flat No,A-36, Second Floor, Block C-A, Rabia Palace, Gulslian-e-Iqbal, Karachi. The said defendant and the person impersonating her as the plaintiff then fraudulently obtained a certified true copy of the transfer order issued in her favour from D.H.A. It is maintained that the name and address of the plaintiff was scratched out in the certified true copy. Defendant No,1 then acting fraudulently and in collusion with the impersonater obtained the transfer of the plot in her favour and a transfer order was issued on 6-1-1990 in which the address of the plaintiff was shown a Flat No,A-36, Second Floor, Block C-1, Rabia Palace, Gulshan-e-Iqbal, Karachi. Plaintiff asserts that she does not live and has never lived at this address or for that matter in Gulshan-e-Iqbal at any point of time. After obtaining transfer order from defendant No,2 fraudulently defendant No,1 attempted to sell out the plot and the plaintiff was informed orally by D.H.A. That defendant No,1 had also applied for bifurcation of the plot. It is further averred that the plot in suit was offered for sale by defendant No,1 through various estate agencies including Messrs Caretakers, Shop No,6, Al-Habib Arcade, G-3, Block-7, Clifton, Karachi and one of the prospective buyers contacted by estate agent asked him friend Najum Adenwalla for advice regarding the purchase of this plot. Said Adenwalla being related to the plaintiff asked for her advice when she came to know that her plot was up for sale in the market with the consequence that her husband informed Mr. Adenwalla that this was clearly a instance of fraud. He contacted Caretakers, who showed him a copy of the transfer order issued in favour of defendant No,1 Annexure 'L' to the plaint. He informed Caretakers that this was definitely a case .Of fraud as his wife had never sold the plot. Thereafter he went to the office of D.H.A. And met Major Saboor, Manager Administration who promised that no further action will be taken on the file. He directed that the plaintiff and the defendant No,1 should attend his office at 9.00 a.m. On 23-6-1990. Mr. Waqar Ahmed Khan of Caretakers was asked by the defendant to attend. On that very day said Waqar Ahmed Khan informed the plaintiff that the defendant No,1 had given to his address which was exactly the same as that of the impersonator. On the appointed day the plaintiff served a letter on D.H.A. Requesting that her interest should be protected and action initiated against those responsible for the fraud. She also attended the office of Major Saboor but defendant No,1 did not turn-up. On the same day she contacted her lawyer who addressed a legal notice calling upon the D.H.A. To ensure that no third party rights were created in the plot but defendant No,2 informed that they could not take any action on their own and she should pursue her legal remedies before the proper forum. Accordingly the plaintiff brought this suit on the averments that she never entered into an agreement of sale of the plot in favour of defendant No,1 nor she received any consideration from defendant No,1 or any other person for the alleged transfer order and that the transfer order as well as the National Identity Card, copy whereof is available in the records of defendant No,3 have been obtained fraudulently which are not binding on her. Besides seeking a declaration of her ownership she prays for a declaration that defendant No,1 has got no right, title or interest in the plot in suit and for an injunction restraining him from claiming any right, title or interest in the plot in suit and from interfering in any manner whatsoever with her use, possession, enjoyment of the plot and from creating third party interest in respect of the plot. She also. Seeks a direction against the defendants Nos.2 and 3 to correct their records accordingly.
3. Defendants Nos.1 and 3 despite the service of summons did not care to appear and contest the suit which was ordered to proceed ex parte against them.
4. Defendant No,2 i.e, Pakistan Defence Officers Housing Authority in its written statement while admitting the transfer of the plot in suit by Major Nizamuddin in favour of plaintiff have taken the stand that they ordered transfer of the plot in favour of defendant No,1 on the strength of documents and according to proper procedure. They pleaded ignorance with regard to the acts of fraud and forgery in relation to the transfer as alleged by the plaintiff and claimed to have acted in good faith.
5. On the pleadings of the parties, following issues were settled: (1). Whether the plaintiff has sold the plot or transferred her rights to the defendant No,1?
(2). What should the order be?
6. Evidence in this suit was recorded on commission and in support of her case, plaintiff examined Fayaz Ahmed, Record Keeper, District Registration Office, Karachi-East P.W.1, her husband and attorney Refique Gaya P.W.2 whereas D.H.A. Adduced the evidence of Captain Masoodul Haq serving as Administrative Officer in the Authority.
7. I have heard Mr. Makhdoom Ali Khan, learned counsel for the plaintiff and gone through relevant evidence on record whereas counsel for D.H.A. i.e, defendant No,2 has not cared to appear and remained absent without any intimation.
8. As the transfer of the plot in suit in favour of the plaintiff by purchase from Major Nizamuddin is not disputed by defendant No,2, the sole question for decision is whether she sold the plot in suit or transferred her rights in favour of defendant No,1 as alleged? Admittedly the defendant No,1 did not bother to appear and contest the suit despite repeated efforts to serve her directly on the address mentioned in the plaint and documents available on the record of Defence Housing Authority. From the evidence of P.W. Fayaz Ahmed who appeared from the District Registration office, Karachi-East, it transpires that as far back as 24-4-1990 National Identity Card bearing No,517-90-437805 was issued in the name of Farida Rafique Gaya showing her address as Housing No,29 Block-G, Gulshan-e-Iqbal, Karachi, Application form for the issuance of N.I.C. Describes the applicant as wife of Muhammad Rafique Gaya but identity card number of the head of the family was disclosed as that of her father Muhammadullah. It was confirmed by P.W. Fayaz Ahmed on the basis of the record available with him. It is strange that the applicant though married did not mention the identity card number of her husband and was contended by disclosing identity card number of her father which is quite unusual on the face of it. The application form for National Identity Card issued to the plaintiff Exh.4 bearing registration No,5 17-38-235695 bears her name, her father's name as well as the name of her husband and address of Muhammad Ali Society as disclosed in the plaint.
Apart from necessary particulars for issuance of N.I.C., application form bears the photographs of the plaintiff which was given in the N.I.C. Itself Exh.11. It was issued as far back as 10th February, 1976 whereas the copy of the N.I.C. Available in the record of Defence Housing Society Exh.26 bear right thumb impression with the address as House No,29, Block-G, Gulshan-e-Iqbal, Karachi purported to have been issued on 25-4-1990 which on the face of it seems to be formed and manoeuvred.
The signatures on the said N.I.C. As well as the application form for issuance of N.I.C. Exh.2 are materially and substantially different and distinct from the signature of the plaintiff on her genuine N.I.C. As well as the power of attorney Exh.10. In his evidence Rafique Gaya husband and attorney of the plaintiff stated in unequivocal terms that neither she sold out the plot in suit to defendant No,1 nor appeared before the designated officer of the D.H.A. Confirming the transfer of her rights in favour of defendant No,1. He stated that D.H.A. Did not comply with the requirements under their rules and effected the transfer in favour of defendant No,1 on the basis of certified true copy of the transfer order issued very urgently. According to him the transfer thus effected was not based on the original record and he categorically denied the suggestion that the plaintiff ever appeared before the designated officer of D.H.A. Or surrendered the original transfer order and letter for mutation in favour of defendant No,1, transfer affidavit in favour of defendant No,1 or undertaking.
9. On their own part witness for defendant No,2 though attempted to support and justify the transfer of the plot in suit in favour of defendant No,1 failed to satisfy whether the designated officer had really satisfied himself as regards the truth and genuineness of the documents received by him for transfer or identity or the vendor with reference to the documents already available on record. He did not withstand the touchstone or cross-examination and failed to show that the said officer acted within the scope of this authority and complied with the requirements of procedure for effecting a transfer in the records. After referring to the record he was not able to say as to when copy of N.I.C.Was placed in the file. Although he conceded that when any new document is placed on record it can either be placed with an application/letter/transfer document or placed just like that after identifying the member, he could not say whether the photographs and the copy of the N.I.C. Were placed on the file by the impersonator and not by the plaintiff. He conceded that there was an application form on the membership file bearing the address of the plaintiff as 93-B, Muhammad Ali Society, Karachi and entire correspondence with her was at this address and there was no letter communicating the change of address whereas address given in the N.I.C. On the membership file was that of House No,29, Block-G, Gulshan-e-Iqbal, Karachi issued on 25th April, 1990. Referring to transfer affidavit Exh.31 purportedly executed by the plaintiff, the witness conceded that the address given there on is Flat No,A-36, second Floor, Block C-1, Rabia Palace, Gulshan-e-Iqbal. He was unaware whether there are no blocks by alphabet in Gulshan-e-Iqbal where the blocks are known by number. It was put to the witness that the addresses given on the N.I.C. In the membership file, on the application for certified true copy, on the transfer affidavit and the addresses on the membership file being different and of these four addresses three of which were supplied within the course of a month should have raised a reasonable suspicion that a fraud was being committed he was unable to make a satisfactory reply simply by saying that it did not occur to the designated officer. He could not refute the suggestion whether the addresses given in the N.I.C. In the membership file, on the application for certified true copy and the transfer affidavit were bogus. He did not muster courage to deny the suggestion that the record available with the D.H.A. Itself was manipulated by some one by placing copy of the bogus N.I.C. And false photographs on the membership file which completely demolishes the value of his evidence.
10. In my view in order to establish their good faith and having acted bonafide, it was incumbent on defendant No,2 to adduce the evidence of Major M.A. Saboor designated officer for making transfer but he was not examined. The rule of best evidence demands that best evidence available with a party must be adduced before the court and in case it is withheld an adverse presumption would be that had such evidence been produced it would have been unfavourable to the party.
11. Taking into consideration all the aspects of the case and the fact that defendant No,1 was not found at the given address by the bailiff as recorded in the minutes of the Commissioner for recording evidence and the lack of contest on her part leads to the conclusion that entire transaction in her favour was bogus and manipulated. In the absence of any evidence to the contrary, I am inclined to the view that the plaintiff has succeeded in establishing her right to the plot in suit and she is entitled to the declaration prayed for. She is declared to be the owner of the plot with a further declaration that defendant No,1 has no right, tile or interest to it. In order to protect and preserve her right, defendant No,1 is restrained from claiming any right, title or interest in the plot in suit and also restrained from interfering in any manner with the possession and enjoyment of the plot by the plaintiff. Likewise the defendants Nos.2 & 3 are directed by way of mandatory injunction to correct their records in the light of the judgment. Suit is decreed with no order as to costs as above.