' This is an application under Order 7. Rule 11 filed on behalf of the defendants whereby it is prayed inter alia that since the issues raised in the matter, viz. Plaintiffs' claims to the suit property etc, have already been decided by various forums including the judgments of the learned Custodian, Evacuee Property, Sindh, dated 27th June, 1974, of this Court in C.P. 1429 of 1974, dated 20-6-1984 and of the Honourable Supreme Court in C.As. Nos.251-255/K of 1986, dated 20-12-1990 in favour of the defendants and in the presence of the plaintiffs the suit be dismissed as barred under section 11 of the C.P.C. It is also prayed that the suit being time-barred is also fit for dismissal on this ground too.
2. The brief facts of the matter as disclosed in the plaint are that the plaintiffs are the legal heirs of one late Haji Ghulam Auliya, who was a landlord residing at Delhi in pre-Partition India. He was survived by three sons, late Haji Rasheeduddin, Lat Haji Salahuddin and Late Haji Fariduddin and also three daughters late Mst. Noor Jehan, late Mst. Ahmed Bi and Mst. Qamar Jehan. The plaintiffs Nos.1 to 43 are the sons and daughters of the abovementioned deceased sons and daughters of Haji Ghulam Auliya, whereas the plaintiff No,44 Mst. Qamar Jehan is the only surviving daughter of Haji Ghulam Auliya and all of them are thus, entitled to inherit from the estate of the deceased. The defendants Nos.1 to 9 are the legal heirs/representatives of late Haji Muhammad Ishaq whose sister was married to late Haji Ghulam Auliya.
3. The suit property which belonged to late Haji Ghulam Auliya was located at Delhi and admeasured approximately 11,00,000 sq. Yds. After the family migrated to Pakistan, the predecessors-in-interest of plaintiffs Nos. I to 43 as well as Mst. Qamar Jehan, plaintiff No,44 filed their respective claims for all the properties of Haji Ghulam Auliya including the properties which were Benami and owned as such by Haji Muhammad Ishaque. Haji Muhammad Ishaque also filed a separate claim for his own properties left behind by him in India which excluded the properties ostensibly owned by him and whose real owner was Haji Ghulam Auliya. The Claim Commissioner vide order, dated 27-8-1959 and 30-12-1959 verified the claims in favour of the predecessors-in- interest of the plaintiffs and Haji Muhammad Ishaque, copies of such orders are filed as Annexures "E" and "F" to the plaint.
4. Haji Muhammad Ishaq persued the matter of allocation of Haji Ghulam Auliya's claims in Pakistan and succeeded in obtaining the Karachi Properties in his own name as Benamidar vide Custodian, Evacuee Properties Order of 27th June, 1974 (Annexure "G" to the plaint) which was against 4,65,000 sq. Yds. Of the property left behind in India. These were obtained in exchange from Hindu owners for the property in India. Thereafter the predecessors-in-interest of the plaintiffs filed an application for substitution of their names for the name of Haji Muhammad Ishaque's legal heirs which was granted by the Custodian on 26-7-1974 per Annexure "H" to the plaint. Similarly 5,00,000 sq. Yds. Of the property was given in exchange in Lahore whereas for the remaining land viz. 1,35,000 a claim was filed by the legal heirs of late Haji Ghulam Auliya through Haji Muhammad Ishaque. All these properties were held Benami by the latter.
5. Thereafter, the predecessor-in-interest of the plaintiffs filed a Civil Suit bearing No,29 of 1955 in Lahore against Haji Muhammad Ishag for a declaration praying that the real ownership of the Lahore property rested with Haji Ghulam Auliya and Haji Muhammad Ishaq was only the ostensible owner. Haji Muhammad Ishaq admitted the claims of Haji Ghulam Auliya's legal heirs and accepted that he was the ostensible owner of the said property on which basis the suit was decreed. The predecessor of the plaintiffs Nos.1 to 43 as well as Mst. Qamer Jehan received their full shares from the Lahore property.
6. It is also stated that the plaintiffs had not been able to obtain the possession of the Karachi properties since litigation is still pending in the Supreme Court in between themselves and the occupants of the property. However, the Government had acquired some of these properties for the construction of Saddar Cooperative Market on payment of compensation in the sum of Rs,10,25,762.50 which the plaintiffs also claim in the suit including interest etc. The plaintiffs' predecessors-in-interest filed an application to be joined as parties in C.P. 1429 of 1974 which was pending in between the occupants/allottees of the Karachi properties and Haji Muhammad Ishque on the basis that they were the rightful owner of the properties. This was eventually allowed and so also C.P. 1429 of 1974 dismissed in favour of the parties to the suit. The occupants/ allottees then filed an appeal before the Honourable Supreme Court which is still pending.
7. That up to 1984 neither late Haji Muhammad Ishaque nor defendants Nos.1 to 9 raised any objection as to the real ownership of the suit property of Haji Ghulam Auliya but on 13-10-1984 a frivolous application was moved by the defendants Nos.1 to 9 before the Custodian, Evacuee Property, Sindh in R.A. 52 of 1974 from which it appeared that the defendants Nos.1 to 9 were questioning the right, title and interest of the plaintiffs in the said property and consequently there was an apprehension that they may also claim the sum of Rs,10,25,762.50 alongwith interest lying with the Settlement Department, Government of Pakistan and hence the suit. It is specifically pleaded that the cause of action for filing of the suit accrued to the plaintiffs when the abovesaid application was moved by the defendants Nos.1 to 9 in the Court of Custodian of Evacuee Property, Sindh. A copy of the application is filed as Annexure "L". Consequently it is prayed that this Court declare the plaintiffs to be the successors-in-interest of the properties shown in Schedule "A" as real owners of which Haji Muhammad Ishque was an ostensible owner only and further that the defendants Nos.1 to 9 have no right, title or interest therein. So also that the plaintiffs are entitled to recover the amount of Rs,10.25.762.50 with interest which is lying with the Government as compensation and that defendants Nos.1 to 9 have no right, title or interest in the said amount.
Similarly, it is further prayed that defendants Nos.1 to 9 be permanently restrained from claiming ownership of the suit property or making any claim to the abovesaid compensation amount and also a decree in the said amount be passed in favour of the plaintiff and as against the Government of Sindh and defendants Nos.1 to 9.
8. On the basis of the above pleadings Mr. Aijaz Ahmed, learned counsel for the defendants has submitted that the documents filed alongwith the plaint would adequately establish that all along right from 1952 onwards in all matters pertaining to the properties claimed in the suit by the plaintiffs, Haji Muhammad Ishaq has been shown as the real owner and in fact he was pursuing the claims in this capacity. In this regard he has referred to the application filed before the Deputy Custodian, Evacuee Properties by Haji Muhammad Ishaq regarding the suit properties which was rejected on 22-11-1952 and the order of the Custodian of the same date a copy of which has been filed alongwith the written statement. Similarly learned counsel has referred to the appeal filed before the Additional Custodian which was also rejected on 28-4-1953 as well as the revision filed before the Custodian which was again rejected on 21-12-1954 as per copies of these orders tiled alongwith the written statement. Again the matter was referred to the Central Government and was rejected on 14-12-1956 and finally by the Custodian on 2-3-1957 as per copies of such orders contained in the written statement.
9. Thereafter, Haji Muhammad Ishaq filed Writ Petition No,131 of 1957 before the West Pakistan High Court which was dismissed on 14-6-1958. Upon L.P.A. No,26 of 1958 being filed against such order of dismissal the matter was referred back to the Custodian who in turn remanded it to the Additional Custodian before whom detailed evidence was recorded including statement of Haji Muhammad Ishaq as well as late Haji Salahuddin and late Haji Hafeezuddin and finally the exchange deed was confirmed in R.A. No,52 of 1974 on 27-6-1974 as per order of the Additional Custodian. Then as per learned counsel some of the tenants of the suit property filed C.P. No,1429 of 1974 in order to ventilate their grievances in which proceedings the plaintiffs tiled an application under Order 1, rule 10 on the basis that they are the real owners as per order, dated 26-7-1974 in R.A. No,52 of 1974 which was allowed. The said writ petition was dismissed on 20-6-1984 whereafter appeals were filed in the Honourable Supreme Court being Nos.251 and 255-K of 1986 in which the plaintiffs also filed an application under Order 1, rule 10 which was granted subject to all just exceptions.
Thereafter, the defendants filed an application on 13-10-1984 in R.A. No,52 of 1974 to set aside the order, dated 26-7-1974, which was dismissed on 26-1-1986 for the reason that since Evacuee Property Laws have been repealed no further cause of action remained with the defendants..
10. In the background of this history of litigation between the parties learned counsel for the defendants has urged firstly that the cause of action accrued to the plaintiffs to file suit in 1951 and consequently the present suit filed in 1988 is patently time-barred under Article 120 of the First Schedule of the Limitation Act which provides for a period of six years for filing of suits such as the present one counted from the date the right to sue accrued. Id this connection he has urged that besides the plaint the contents of the written statement should also be looked into in order to do complete justice between the parties. For this proposition he has relied upon:--
(1) Ghulam Abbas v. Syed Abid Hussain Shah and 6 others 1994 MLD 2345,
(2) Muhammad Zaman v. Tariq Mahmood and 28 others 1994 MLD 207,
(3) Muhammad Yaqoob and 63 others v. The Province of Punjab through Home Secretary and another 1993 MLD 2419, ,
(4) Abdul Latif v. Manzoor Ahmed 1993 MLD 177 and
(5) Muhammad Buta v. Habib Ahmed PLD 1985 SC 153.
11. Learned counsel has also argued that the suit is barred under section 11 of the C.P.C. Under the doctrine of constructive res judicata. In this regard learned counsel has referred to the statement on oath by one of the plaintiffs a copy of which has been filed alongwith the written statement admitting that Haji Muhammad !Shag is the actual owner. So also learned counsel has referred to the rejoinder filed on behalf of the plaintiffs to the counter-affidavit in C.M.A. No,422 of 1990 whereby it is stated that Haji Muhammad !Shag was only Benami and Haji Ghulam Auliya was the owner which meant that the latter had expired since the properties were purchased in 1946. He has also submitted that the controversy in suit has been finally decided by this Court in C.P. No,1429 of 1974 and by the Honourable Supreme Court in C.As.
' Nos.251 and 255-K of 1986 and hence cannot be re-opened. In support of his submissions learned counsel has relied upon:--
(1) Wali Muhammad v. Mst. Meena and others 1994 SCMR 2243,
(2) Abdul Majid and others v. Abdul Ghafoor Khan and others PLD 1982-SC 146,
(3) Asif Jah Siddiqi v. Government of Sindh PLD 1983 SC 46,
(4) Muhammad Anwar v. Messrs Associated Trading Co. Ltd. And 2 others PLD 1987 Kar. 535,
(5) Rahat Mahmood v. Tariq Rashid and another PLD 1993 Kar. 648 and
(6) Pir Bakhsh representing by his L.Rs, and others v. The Chairman Allotment Committee and others PLD 1987 SC 145.
12. In rebuttal Mr. Ali Ahmed Fazeel learned counsel for the plaintiffs, has submitted that the suit had been filed, inter alia, for the declaration that the real owners of the suit property are the plaintiffs as against the defendants, who are merely the ostensible owners. In this regard he has referred to Annexure "E" to the plaint viz. Verification order issued by the Deputy Commissioner' (Claims) whereby the Karachi and Lahore Properties were received and exchanged by the defendants for the properties left behind by late Haji Ghulam Auliya in Delhi. This confirmation was upheld by this Court in C.P. No,1429 of 1974 per order, dated 20-6-1984. Similarly, the Honourable Supreme Court upheld the High Court's order on 20-12-1990 and so also the review filed against such orders was dismissed on 30-5-1991. Learned counsel has further submitted that on 25-1-1955 Suit No,29 of 1955 was filed before the Civil Court at Lahore by the legal heirs of late Haji Ghulam Auliya regarding the ownership of the Lahore Property, and in the written statement filed by Haji Ghulam Ishaque, the contents of the plaint were admitted and consequently, the suit was decreed in favour of the legal heirs of late Haji Ghulam Auliya as per copy of the decree. Learned counsel has also referred to Annexure "G" to the plaint, copy of which appears at page 81 of the file whereby the Custodian Department has confirmed the Karachi properties in favour of Haji Ghulam Auliya. He also referred to a copy of C.M.A. 508 of 1976 filed in C.P. No,1429 of 1974 whereby the legal heirs of Haji Ghulam Auliya had sought to be made a party to the petition, which was not objected to by the defendants and such C.M.A. Was allowed vide order, dated 6-11-1977. Finally, learned counsel has referred to para.12 of the plaint whereby it has been stated that up to 13-10-1984 the defendants have always admitted that Haji Ghulam Auliya was the real owner of the suit property but on that date they, for the first time, challenged this fact and hence the suit. Consequently, learned counsel has submitted that there is no issue of res judicata at all whether constructive or otherwise and similarly as the cause of action accrued to the plaintiffs in October, 1984, the suit was well within time having been filed in 1988.
13. As regards the issue of limitation learned counsel has submitted that the law is very well-settled i,e,, only. The plaint has to be looked into and the Court has to see that where all the allegations in it are assumed to be true still the plaintiff would not be entitled to the relief claimed. In support of this submission learned counsel has relied upon:--
(1) Muhammad Ahmad Butt v. Lahore Development Authority PLD 1981 Lah. 153,
(2) K.D.A. Through its Secretary v. Evacuee Trust Board through its Administrative Evacuee Trust Property at Karachi and 5 others PLD 1984 Kar. 34,
(3) Muhammad Rashid Bhatti v. K.D.A. Through its Secretary and another PLD 1986 Kar. 130,
(4) Ali Ahmad v. Mst. Ghulam Zohra PLD 1987 Quetta 189,
(5) Nizar Ali v. Nooriabad Cooperative Housing Society Ltd. And others PLD 1987 Kar. 767 and
(6) Messrs H.B.L. v. Messrs Central Cotton Mills Ltd. 1988 CLC 474.
14. Learned counsel has distinguished Muhammad Buta v. Habib Ahmed (supra) on the basis that this case, which was cited by the learned counsel for the defendants is not applicable to the facts of the present case.
15. In reply Mr. Ejaz Ahmed appearing for the plaintiffs has asserted -that the basis of the Benami transaction as pleaded by the plaintiffs is that Haji Ghulam Auliya was not an agriculturist and thus, the suit property was purchased Benami in the name of Haji Ghulam Ishaque as he was an agriculturist. This, however, is not borne out from the facts of the case as both are brothers and, therefore, why one is an agriculturist and the other is not.
16. I have heard both learned counsel. My conclusions are as follows:--
17. It may be seen that as far as the issue of res judicata is concerned, the modalities thereof are provided under section II of the C.P.C. Which are as follows:-- ' Res judicata.--- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a loaner suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
' Explanation I.--- The expression 'former suit' shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto; ' Explanation II.--- For the purposes of the section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
' Explanation III.--- The matter above-referred to must in the former suit have been alleged by one party and either denied or admitted expressly or impliedly, by the other.
' Explanation IV.--- Any matter which might and ought to have been made ground of defence or attack in such former suit, shall be deemed to have been a matter directly and substantially in issue in such suit.
' Explanation V.--- Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section be deemed to have been refused.
' Explanation VI.--- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the person so litigating.
18. It would thus be seen that the essence of section 11 is that where any matter directly and substantially in issue between two parties in the present suit has been decided in a former suit than the present suit would be barred. Explanation IV to section 11 provides for the doctrine of constructive res judicata viz. That where any matter which might or ought to have been made, a ground of defence or attack in the previous suit shall be deemed to be a matter in issue in the later suit. It would thus be seen that essentially section 11 postulates that the parties litigating against each other in the present suit must have been arrayed against each other in the further suit.
19. The facts of the present case as well as from the documents filed would disclose that the parties have never before litigated in any adverse capacity. In this regard it could be seen that the predecessors-in-interest of the parties viz. Late Haji Salahuddin, late Haji Rashiduddin, late Haji Fariduddein. Late Mst. Noor Jehan, late Mst. Ahmad Bi, and Mst. Qamar Jehan (the legal heirs of late Haji Ghulam Auliya) and late Haji Muhammad Ishaq had filed their respective claims before the Deputy Claims Commissioner, Karachi and Lahore respectively vide Annexures "E" and "F" to the plaint and the same were verified and passed in the amount of Rs,29,04.200 and Rs,1,10,880. It is also apparent from a perusal of Annexure "E" that the property claimed by the legal heirs of late Haji Ghulam Auliya was a double-storeyed residential building with a covered area of 1200 sq. Yds.
Having 22 to 25 rooms alongwith servant quarters located at Mouza Kahrera alongwith some land attached to the said building situated within the Municipal limits of the city of Delhi, i,e, Unit No, I. So also there was an additional, claim for open land having an area of 2,69,000 sq. Yds. Being Unit No,2. As far as the claim against Unit No,2 is concerned, the verification order Annexure "E" to the plaint clearly stipulates that late Haji Muhammad Ishaq and late Haji Salahuddin were both Benamidars and the land itself actually belonged to late Haji Ghulam Auliya. Per Annexure "F" to the plaint the property claimed by late Haji Muhammad Ishaq was also double-storeyed hosue of 200 sq. Yds. Containing about 20 rooms of all sizes and description alongwith all the amenities.
20. It would further be seen that after verification of the said claim the question of compensation/allotment of land in Pakistan was pursued by late Haji Muhammad Ishaq being the elder of the family viz. Brother-in-law of late Haji Ghulam Auliya and finally as far as the properties of late Haji Ghulam Auliya are concerned, the legal heirs were enable to obtain the order from the Custodian Evacuee Property, Sindh in R.A. No,52 of 1974 dated 27-6-1974, whereby the said revision was allowed and the Karachi properties being two open plots of land at Victoria Road and two bungalows alongwith a sum of Rs,75,000 was confirmed in the name of the defendants. In the order itself the exchange deed between late Haji Muhammad lshaq and Bhai Partab Dialdas and others whereby the Delhi properties were exchanged with the Karachi properties was also upheld and so also it was observed in the said order that the predecessor-in-interest of the defendants late Haji Muhammad Ishaq being an ostensible owner of the properties was the Benamidar of late Haji Ghulam Auliya in respect of the properties which had been exchanged viz. Located in Delhi. A copy of the order has been filed as 'Annexure "G" to the plaint. Finally as per Annexure "H" to the plaint, which is a copy of the order, dated 26-7-1974, the names of the legal heirs of late Haji Ghulam Auliya viz. The predcessors-in-interest of the plaintiffs were substituted for the names of the defendants on the original application filed under sections 16 and 17 of the Pakistan (Administration Evacuee Property Ordinance, 1949).
21. Thereafter, in subsequent litigation in between the occupants of the Karachi property and the predecessors-in-interest of the plaintiffs and the defendants viz. C.P. No,1429 of 1974 filed before this Court, the parties in the suit were arrayed as respondents against petitioners who claimed a portion of the Karachi property. In the said petition also the Benami transaction between late Haji Ghulam Auliya and late Haji Ghulam Ishaq as regards the Delhi property was recognized. It is also significant to note that as far as the Lahore properties were concerned which were obtained vide deed of exchange between the Nairang Bank and late Haji Ghulam Ishaq, the latter ultimately admitted the Benami nature of the transaction between himself and late Haji Ghulam Auliya and accordingly a consent decree was passed whereby the predecessors-in-interest of the plaintiffs were given the Lahore properties. Finally it would be seen that it was only in 1984 that the defendant challenged the order, dated 26-7-1974, passed in R.A. No,52 of 1974 whereby the Custodian Evacuee Property, Sindh had substituted the names of the defendants with that of the predecessors-in- interest of the plaintiff which was disposed off vide order, dated 26-1-1986 by the Custodian Evacuee Property, Sindh on the basis that after repealing of Pakistan (Administration of Evacuee Property) Act, 1957 he was left with no jurisdiction to decide the matter. In fact it is the plaintiffs' case that all along the defendants and their predecessor-in-interest late Haji Ghulam Ishaq had admitted that the latter was the Benamidar of late Haji Ghulam Auliya and it was only in October, 1984, when the defendants had filed the application before the Custodian did it dawn upon the plaintiffs that the defendants were claiming the Karachi properties in their own right, upon which cause of action the suit was filed in 1988.
22. From a perusal of the abovementioned documentation/orders passed by the various forums, I am of the opinion that the ingredients of section 11 of the C.P.C. Are not at all attracted to the facts of the matter as the parties have never litigated in any adverse capacity previously other than in R.A. No,52 of 1974 for the first time in October, 1984 which in any event did not result in any final adjudication of their rights and obligation as the defendant's application was dismissed on the jurisdictional point. Consequently it cannot be said that the parties rights and obligations as regards the suit property, viz as to who are the actual owners thereof have been determined in any forum whatsoever.
23. As regards the cases cited at the Bar by learned counsel for the defendants, there is no cavil with the same as it is settled law that in appropriate cases even the contents of the written statement/affidavits may be looked into when considering applications under Order VII, rule 11. So also the principles of the res judicata may be applied to proceedings other than suits viz. Constitutional petitions, rent applications and cases before the Settlement Authorities. However, learned counsel has not been able to cite any case whereby res judicata has made applicable to a matter, where the parties were not arraigned against each others. In this respect, the final order passed in C. P. 1429 of 1974, dated 20-6-1984 nowhere decides the Benami nature of the transaction between the parties which is the crux of the matter and on which the plaintiffs cause of action is based. In fact as adverted to earlier the order only recognizes late Haji Ghulam Auliya as the real owner of the suit property on the basis of which the exchange deed between the Hindu owners of the suit property and late Haji Muhammad Ishaque was upheld and the petition, which challenged such deed, dismissed. Similarly in C.As. Nos.251-K to 255-K of 1986 which had been filed against the dismissal order, the Honourable Supreme Court while dismissing these petitions also recognize the Benami transaction between late Haji Ghulam Aulyia and late Haji Muhammad Ishaque. It may be that in some of the proceedings before the Settlement Authorities, the predecessors-in-interest of the plaintiff may have admitted that the real owner of the suit property was Haji Ghulam Ishaque. However, at the most then the plaintiffs could be estopped from pleading otherwise on the doctrine of estoppel. This of course would depend upon whether or not estoppel could be established by the defendants by leading evidence and even so this can never be equated to res judicata as the two principles are entirely separate and distinct and operate within their own particular spheres viz. Estoppel being a weapon of defence in a trial and res judicata being a principle on which a party can be non-suited altogether.
24. As far as the issue of limitation is concerned, per Article 120 of the Limitation Act the time prescribed for filing the suit is six years counted from the date the right to sue accrued. It would be seen that as per the averments contained in the plaint the right to sue accrued to the plaintiffs in October, 1988 when the plaintiffs had moved an application before the Custodian praying that the earlier order, dated 22-7-1974 be recalled and it is specifically urged that it was on this date when for the first time the defendants ever laid claim to the suit property in their own personal right.
Consequently in my opinion, prima facie, at this stage it appears that the suit is within time.
However, as the issue of limitation is in the circumstances of the case a mixed issue of fact and law it would be framed as an issue when the same are struck by this Court and decided alongwith the other issues.
25. The foregoing are the reasons for the dismissal of this application vide a short order. Dated 17- 5-2001. As this is an old matter and pertains to a family dispute, in the interest of justice, it is further ordered that the same shall be heard and decided within six months after framing of the issues.
The parties would be free to nominate a Commissioner for recording evidence in order to expedite the proceedings. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.