' This is a suit for possession, damages and mesne profit, filed against the following background.
The plaintiff was allotted a residential Plot bearing No,B-245, Block "L' (?) Scheme No, 2, North Nazimabad, Karachi (hereinafter mentioned as suit property by defendant No,1, vide allotment order issued by Karachi Improvement Trust (predecessor of defendant No,2) on 23-7-1956, subsequently the possession was delivered to her by the order of defendant No,2 dated 14-6-1961 and thereafter, a lease was executed in her favour on 2-6-1965. Apparently the defendant No,2, despite the existence of an allotment order and subsequently in favour of the plaintiff allotted the suit property to one Messrs National Estates and Construction Company Limited alongwith 139 other plots and letter of possession in favour of that Company was executed on 17-1-1966. The company transferred the said plot to one Safdar Hussain and the defendant No,2 executed a lease in latter's favour on 3-3-1966. Safdar Hussain transferred his lease hold rights in favour of one Abdul Rab Qureshi on 4-9-1977 vide Registered Sale Deed. Thereafter, the property changed various hands and was eventually transferred in favour of defendant No,1 on 29-6-1980 through a registered instrument.
2. In 1966 the plaintiff found that her plot had been occupied by some other person (Safdar Hussain) and made a complaint to the defendant No,2 on or about 11-4-1966 alleging that her property had been trespassed upon and praying for safeguarding her interest and avoiding further complication. Having received no response, she filed Suit No,306 of 1966 in the Court of IIIrd Civil Judge, First Class, Karachi, for declaration as to her title and consequential relief by way of permanent injunction. Seeking to restrain the defendants (Messrs National Estates and Construction Company, K.D.A. And Safdar Hussain) and any person acting through or under them from raising construction or interfering with the right, title and interest of the plaintiff in the suit property. The suit came to be dismissed by the Civil Court and an appeal against the judgment also failed. However, in an application for revision before this Court (wherein subsequent transferees of the suit property including the present defendant No,1, arrayed as respondent) was allowed vide an elaborate judgment, by Haider Ali Pirzada, J. (as His Lordship then was) dated 7-12- 1988. The plaintiff's suit was decreed vide the aforesaid judgment. The defendant No,1 preferred a petition for leave to appeal against the aforesaid judgment before the Honourable Supreme Court.
The leave was granted, but subsequently by a detailed judgment, .Dated 17-3-1993 the appeal was dismissed and the judgment of the High Court maintained. It was ordered that costs be borne by the defendant No,1 on account of reckless and irresponsible of handling the matter which led to litigation.
3. Pursuant to the aforesaid judgment the defendant No,2 issued a letter dated 20-6-1993 purporting to cancel the lease in favour of defendant. Apparently the defendant No,1 filed Suit No,229 of 1994 in this Court claiming damages against the defendant No,2. A short while thereafter the plaintiff filed the present suit claiming relief of possession and mesne profit in the sum of Rs,1,230,000. In their written statement the defendant No,1 did not dispute the basic facts relating to allotment and list in favour of the plaintiff. He, however, contended that he was an innocent purchaser of the property in good faith and had invested substantial amount thereon. It was further contended that he had raised a double storeyed building on the plot which could not be delivered to the plaintiff without payment of damages. The claim of mesne profit was vehemently denied. The defendant No,2 in their written statement admitted the plaintiff's ownership of the suit property, but contended that she was not entitled to claim damages or any monetary relief from the said defendant. It was further urged that the suit was not maintainable and was barred under the provisions of the Specific Relief Act as against the defendant No,2.
4. It may be recalled that Suit No,229 of 1994 was filed by the defendant No,1 arraying the plaintiff, the defendant No,2 and one Abdul Sattar Khan, from whom the said defendant had purchased the property as defendants. Damages to the extent of Rs,29,35,436 with interest were claimed against all the three defendants and a further prayer for perpetual injunction seeking to restrain three defendants in that suit from dispossessing the plaintiff till damages were paid. The two suits were directed to be heard together and the following consolidated issues were framed:-
(1) Whether the Suit No,622 of 1994 is not maintainable and barred under the provisions of Specific Relief Act as against Karachi Development Authority?
(2) Whether the Suit No,622 of 1994 is not maintainable for non-joinder and misjoinder of necessary parties in the suit?
(3) Whether the plaintiff in Suit No,229 of 1994 has been made to suffer on account of judgment of the Honourable Supreme Court for no fault of him?
(4) Whether the plaintiff in Suit No,229 of 1994 is entitled to damages for the sum of Rs,29,35,436 with interest at the rate of 14% per annum from the date of suit till payment?
(5) Whether the plaintiff in Suit No,229 of 1994 is entitled to the relief for perpetual injunction till payment of damages as claimed by the plaintiff against Mst. Zubeda?
(6) Whether the plaintiff in Suit No,229 of 1994 and defendant No,1 in Suit No,622 of 1994 has/had a title to the disputed property?
(7) What should the decree be?"
' However, by order dated 29-5-1997 Suit No,229 of 1994 was dismissed for non-prosecution. I am informed that defendant No,1 (plaintiff in that suit) has applied for restoration but the same has not been restored so far. Evidence of the plaintiff was recorded on 21-8-1997.
5. On 21-8-1997 the suit was fixed for evidence before my learned brother Rana Bahagwan Das, J., As has been observed in the order the .Plaintiff's attorney, stated that the original documents had been filed in Suit No,306 of 1966 in the Court of Bird Civil Judge and that he did not wish to adduce any evidence and only wanted to rely upon the judgment of the Honourable Supreme Court in Civil Appeal No,135-K of 1989, decided on 17-3-1993. Copy of the judgment of the Supreme Court has filed as Annexure 'N' to the plaint. His Lordship thereupon closed the plaintiff's side and the matter was posted for evidence of the defendant.
6. A perusal of the aforesaid judgment of the Honourable Supreme Court shows that it was mainly urged by the appellant (defendant No,1 herein) that the plaintiff's suit was not maintainable for want of notice under Article 131 of the K.D.A. Order (a contention which was upheld by the trial Court in the First Appellate Court but rejected by the High Court) and that the High Court erred in applying the doctrine of lis pendens in failing to recognize the right of the defendant No,1 who was bona fide purchaser for valuable consideration and had invested substantial amount in raising construction thereon. It was also contended that the form of suit was not proper as relief of possession was not sought. With respect to the first contention the Honourable Supreme Court found on facts that substantial compliance of Article 131 of the K.D.A. Order had been effected and the suit was maintainable.
7. As regard the second contention the appellant/defendant No,1 herein urged that in view of the Sindh amendment effected in 1939 in section 52 of the Transfer of the Property Act a transfer during the pendency of litigation could only be invalid if registration of the pending suit was effected before the relevant authority and it was an admitted position that no lis was duly registered. The Court nevertheless came to the conclusion that a lease in favour of the respondent (plaintiff herein) having been effected on 7-9-1965 and having not been cancelled, a simultaneous lease could not be granted by the defendant No,2 in favour of Safdar Hussain and section 48 of Transfer of Property Act was applicable. Under the aforesaid provision any interest in the property created by the K.D.A. In favour of Safdar Hussain or his successors-in-interest was subject to the plaintiff's rights and interest and in the case of conflict the earlier document in favour of the plaintiff was to prevail. As regard the third contention the Court held that any construction raised by the defendant No,1 was at his own risk and that the plaintiff was not obliged to amend the plaint when the defendant No,1 had no interest at the time of filing of the suit.
8. Subsequently the defendant No,1 examined himself and stated that he had purchased the property from one Abdus Sattar in 1980 for consideration of Rs,1,25,000 and had spent about Rs,4,50,000 on construction of the building he further stated that the plot was initially allotted by defendant No,2 (K.D.A.) to one Safdar Hussain in 1965 subsequently, it was transferred to Abdur Rub Qureshi who had purchased it from Safdar Hussain. He then referred to subsequent purchase of the plot and explain how he purchased it. In cross-examination he stated that it was none of his business to verify whether it was a case of double allotment. The defendant No,2 examined Syed Jamil Ahmed, Assistant Director Land and Estate who admitted in evidence that the plot was initially allotted to the plaintiff in 1965, a lease deed was executed in her favour in 1965, and subsequently the same plot was allotted to one Safdar Hussain by the defendant No,2 in 1966. He further stated that the possession of the plot had been delivered to the plaintiff yet it was allotted subsequent to National Estate and Construction Company and leased out in favour of Safdar Hussain. He admitted that he could not explain how the plot was leased out in favour of Safdar Hussain without construction. He further admitted that the lease in favour of Safdar Hussain stood cancelled as per K.D.A. Record.
9. A consideration of issues reproduced in para.4 which shows that only Issues Nos:1, 2, 6 and 7 relate to this Suit. No arguments were advanced on Issues Nos.1 and 2 by either counsel for the defendant and as such they were not pressed. In any case no relief is being granted against defendant No,2. With respect to Issue No,2 it may be added that only the defendant No,1 is presently in possession of the disputed property and it is difficult to see how his predecessor-in-interest can be treated as necessary party to the suit. It goes without saying that the defendant No,1 may obtain any relief that he may be entitled so as against his predecessor. I am, therefore, of the view that the maintainability of the suit on these grounds cannot be questioned.
10. Issue No,6. Issue No,6 deals with the question of title to the disputed property. The question of title I am afraid has already been decided by the Honourable Supreme Court and is res judicata between the parties. I am unable to see how it can be re-agitated in these proceedings. It must, therefore, be held that the title of the property vests in the plaintiff and this question can neither be re-examined nor, in view of the elaborate discussion on factual and legal aspect contained in the judgment a contrary view can be taken. In fairness to the learned counsel for the defendant No,1 he did not even seriously attempt to open this question.
11. Mr. Wafi Khan Yousufzai, learned counsel for the defendant, however, argued that by order dated 23-10-1995 this suit was directed to proceed alongwith Suit No,229 of 1994 and the latter was to be treated as the leading suit. The evidence recorded therein had to be treated as evidence in this suit. No doubt the said suit had been dismissed for non-prosecution, but he had applied for its restoration, and therefore, he requested that the matter be adjourned till his application for restoration was decided. I regret I am not pursuaded by this submission. The order, dated 23-10- 1995 was operative only as long as Suit No,229 of 1994 was pending. After its dismissal there was no obligation on the part of the Court not to proceed with this suit. Moreover, recording of evidence in this suit commenced only after Suit No,229 of 1994 had been disposed of and the defendant No,1 was called upon to produce his evidence on 23-10-1997, whereas the earlier suit had been dismissed on 19-5-1997. As such no prejudice was caused to the defendant either and he had full opportunity to lead the entire evidence necessary to contest the plaintiff's claim.
12. Alternatively Mr. Wafi Khan argued that no evidence whatsoever was led by the plaintiff and as such the suit was liable to be dismissed. It is in-deed correct that the plaintiff did not enter in the witness-box and only placed reliance on the judgment of the Supreme Court, even a certified copy of the judgment has not been duly exhibited. The fact, nevertheless, remains that the existence of and the findings recorded in the aforesaid judgment have not been disputed by either of the parties and it is settled law that facts which are admitted need not be formally proved. As to the merits of his claim the plaintiff has solely relied upon the aforesaid judgment which is indeed res judicata between the parties and has not been seriously disputed.
13. It was next contended that the plaintiff having failed to sue for possession in the earlier suit i,e, 306 of 1966 before the Civil Court, the present suit was not maintainable under Order 2, Rule 2, C.P.C. It may be recalled that even in the earlier round of litigation the defendant No,1 had raised the question that the plaintiff's omission to sue for possession was fatal but such contention was repelled by the Honourable Supreme Court. In any event I do not think that relief should be denied to the plaintiff on account of provision of Order 2, Rule 2, C.P.C. The bar under Order 2, Rule 2 would be attracted only if the plaintiff was entitled to the relief for possession against the defendant No,1 at the time of filing of original suit in 1966 but had omitted to do so. Nevertheless admittedly at that time the defendant No,1 was nowhere in the picture. He allegedly acquired interest in the property 14 years thereafter in 1980 and became of party in revisional proceeding. In Abdul Hakeem and 2 others v. Saadullah Khan and 2 others PLD 1970 SC 63 the Honourable Supreme Court held:-- "If two trespasses as alleged against a defendant, both in the course of the same transaction, a plaintiff must seek his remedy in one suit against both and he cannot split up his cause of action to sue for one trespass in one suit and for the other in a subsequent suit. But where the two trespasses allegedly have taken place on different occasions and the second was not in existence at the time of the first suit, as in this case, there was neither any occasion nor any necessity for the plaintiff to seek his redress for the second trespass in the first suit. The second trespass which was committed by the appellants in the present case after the first suit had been filed, gave a fresh cause of action to the plaintiff-respondents which validly formed the subject-matter of their second suit. The plea that the second suit was barred under Order II, Rule 2 of the Civil Procedure Code, in the circumstances, is wholly misconceived."
14. Issue No,7. Finally the question arises as to what relief is the plaintiff entitled. The question of her title to property having been finally uphold by the Honourable Supreme Court and the claim of the defendant No,1 on the basis of his being a bona fide purchaser of valuable consideration having been rejected, and the finding having become res judicata between the parties, the plaintiff is certainly entitled to relief of possession of the property. With respect to her plea of mense profit, however, the burden of proof was upon her and since no evidence was led in support of such claim, the same must be rejected.
15. It was vehemently argued by Mr. Wafi Khan Yousufzai that the defendant No,1 had made huge investment on the plot in the form of raising construction and it would be extremely unfair to deprive him of the same. I do appreciate the predicament of the said defendant, but as correctly held by the Honourable Supreme Court the construction was effected by the aforesaid defendant at his own risk and costs during the pendency of, the litigation. Moreover several transactions were made by the predecessor of the defendants in violation of the interim order passed by the trial Court directing the parties to maintain status quo and there is no equity in favour of these who defy the orders of the Court and those claiming through such persons. The defendant No,1 however, is free to pursue his claim for damages against the defendant No,2 or such persons who might be responsible for causing loss to him through suppression of facts and to pursue such legal remedies as he may be advised including Suit No,229 of 1994 for the relief of damages.
16. For the foregoing reasons I decree the suit to the extent that the defendant is directed to hand over vacant and peaceful possession of the Property, bearing No,B-245, Block "L Scheme No,2, North Nazimabad, Karachi, to the plaintiff. The plaintiff, however, is not entitled to any monetary compensation and the suit against defendant No,2 is dismissed. In case the defendant No,1 fails to do so, the Nazir will obtain possession and deliver it to the plaintiff. The parties will bear their own costs.