1. GULZAR AHMED, J.---In this petition the petitioner has made the following prayer:-- "It is,- therefore, respectfully prayed that this Hon'ble Court may be pleased to declare that auction of Plot No,6-B, in Al-Hilal Cooperative Housing Society, Karachi by respondents Nos.1 and 2 purporting to be on 21-8-1999 and/or any other date thereafter and its transfer to the respondent No,3 is illegal, without jurisdiction and does not creates any right, title and interest therein in favour of the respondent No,3 who may be restrained from claiming any right and or transferring the same to any person and or raising any construction thereon and the respondents Nos.1 and 2 may be restrained from giving effect to and implementing the said auction transfer in favour of the respondent No,3." The facts of the matter as stated are that one S.A. Wafa was owner of Plot of land bearing No, 6-B, measuring 400 Sq. Yards in AlHilal Cooperative Housing Society, Karachi and he agreed to sell the same to one Muhammad Ameen Naji for sale consideration of Rs,16,000 under agreement, dated 11-4-1971 and the said Muhammad Ameen Naji paid the entire sale consideration and was put in physical possession of the plot and he also obtained a General Power of Attorney from the said S.A.
2. Wafa. The respondent No,1 included the property in the list of abandoned properties in terms of the provisions of Abandoned Properties (Taking Over and Management) Act 1975 (for short the Act) and notified the same in official gazette, dated 16-6-1975. It is stated that the said Muhammad Ameen Naji filed an application under section 14 of the Act before the respondent No,1 who vide order, dated 21-12-1975 deleted the said property from the list. By an agreement, dated 14-10-1977 the said Muhammad Ameen Naji as Attorney of S.A. Wafa agreed to sell the said property to the petitioner for a sale consideration of Rs,1,00,000 and received from the petitioner a sum of Rs,55,000 in advance. As the agreement was not performed by the said Muhammad Ameen Naji, petitioner filed suit No,885 of 1978 for specified performance against the said S.A. Wafa and Muhammad Ameen Naji in this Court. By judgment and decree, dated 5-11-1979, the said suit was decreed.
3. Petitioner has filed Execution Application No,37 of 1998 in which the executing Court has required the petitioner to obtain some amendment in the decree and execution application was adjourned sine die and still pending. The petitioner came to know that the respondents Nos.1 & 2 were intending to auction properties in the list of abandoned properties. The petitioner through his letter, dated 17-8-1988 informed the respondent No,1 that he is the owner of the said property in view of the decree passed by this Court and requested not to treat the property as abandoned property or to dispose it of. The respondent No,2 gave hearing to the petitioner on 7-9-1998 and on 17-9-1998 but thereafter the petitioner did not hear anything. Respondents 1 and 2 notified auctioning of properties of Al-Hilal Cooperative Housing Society and of other areas in daily Jang Karachi, dated 17-8-1999 and the auction was fixed on 21-8-1999. Chairperson of Al-Hilal Cooperative Housing Society published general notice in daily Jang Karachi, dated 21-8-1999 stating that inter alia the plot in question is the property of the society and litigation is going on in respect of the said plot and any one purchasing the said plot from the Abandoned Property Organization shall do so at his own risk and cost. Respondent No,2 through public notice, dated 24-8-1999 in daily Jang Karachi clarified that the said plot is abandoned property and no litigation is pending in Court. The petitioner came to know that plot in question was disposed of which was reported in daily Jang Karachi, dated 22-8-1999. The petitioner learnt that respondents 1 and 2 have transferred the said Plot to the respondent No,3. Being aggrieved of the sale of the said property petitioner filed this petition. Pre-admission notices were issued to the respondents. Respondent No,2 filed counter affidavit as well as parawise comments. Petitioner filed rejoinder affidavit. The respondent No,3, however, remained absent. In the parawise comments the respondent No,2 has taken the stand that the property in question was declared and taken over as abandoned property. Such was notified under section 11 of the Act in Gazette, dated 16-6-1975. The respondent No,2 is not aware of selling of the property to Muhammad Ameen Naji. The respondent No,2 has further stated that petitioner through his application, dated 17-9-1998 has furnished copy of agreement of sale, dated 11-4-1971 and a copy of power of attorney, dated 11-4-1971 and both these documents do not seem to be genuine/reliable. The respondent No,2 has denied that the physical possession of the plot was with the petitioner but has stated that physical possession of the plot is with the respondent No,2 who has appointed Chowkidar for proper security of the property since long. The respondent No,2 has denied that any application for deleting the property from the list of abandoned properties was filed and has also denied that Judicial Order No,87 of 1975, dated 21-12-1975 was passed by the respondent No,1. It is further stated that register of judicial cases indicates that case No,85 of 1975 related to one Mr. Abdul Karim son of Hamidullah Qureshi and it was in respect of plot No, LY-17/13, Lyari Quarters, Karachi and this case was disposed of vide order, dated 31-1-1979. Copies of relevant page of register and of the order are filed as Annexures 'D' and 'E'. It is also stated that plot in question was not deleted by the respondent No,1 and the letter, dated 21-12-1971 is a forged document. The respondent No,2 has further stated that petitioner has failed to submit copy of agreement, dated 14-10-1977. As regards suit No,885 of 1978 the stand taken is that the judgment and decree were obtained without making respondents Nos.1 and 2 party and, therefore, they are not binding on respondents Nos. 1 and 2. The respondent No,2 further stated that as the property was an abandoned property it was rightly disposed of in open auction to the respondent No,3 who gave highest bid of Rs,32,00,000 and that auction was held in accordance with law.
4. Mr. M.G. Dastagir, learned counsel appearing for the petitioner has contended that the judgment passed in suit No, 885 of 1978 was a judgment in rem and that the order, dated 21-12-1975 passed by the respondent No,1 was binding on it and the respondents Nos.1 and 2 are estopped from claiming the property to be abandoned property. He has further contended that if the respondents Nos.1 and 2's plea is that the judgment and decree obtained in suit No,885 of 1978 were fraudulent the remedy of respondents Nos.1 and 2 was that of making an application under section 12(2), C.P.C.For setting aside of the judgment and decree. He stated that until the judgment and decree in suit remain in the field, the respondents No l and 2 have no right in the property and moreso to auction it and the auction of the property by respondents Nos.1 and 2 was illegal. In support of his contention, he has relied upon the case of Pir Bakhsh v. The Chairman, Allotment Committee (PLD 1987 SC 145), Mst. Fehmida Begum v. Muhammad Khalid (1992 SCMR 1908) and Ghulam Muhammad v. M. Ahmed Khan (1993 SCMR 662). On the other hand, Mt. Syed Tariq Ali, learned Federal Counsel has contended that section 29 of the Act enables the Federal Government to auction the property and auction was in accordance with law. He further contended that petitioner has obtained decree in suit No,885 of 1978 behind the back of respondents Nos.1 and 2 and therefore it was not binding on them. He further contended that the petitioner has himself made an application for the exclusion of the property from the list of abandoned properties but has not exhausted the remedy under the Act. He also stated that the letter, dated 21-12-1975 relied upon by the petitioner is forged and further that the petitioner raises disputed question of facts. He stated the petition is liable to be dismissed. Mr. M.G. Dastagitr in rebuttal argued that the property was not an abandoned property and therefore the Act was not applicable to it. We have considered the arguments of the learned counsel and have gone through the record. As regards the first submission of the learned counsel of the petitioner that the decree passed in Suit No,885 of 1978 is a judgment in rem, reference is made to the case of Pir Bikhsh (supra) cited by the petitioner's counsel wherein the Hon'ble Supreme Court has dealt with the concept of judgment in rem. At page 166, it has observed as follows:-- "The High Court in dislodging the appellants held that the judgments of the Supreme Court was not a judgment in rem, but in personam the terms "in rem" and "in personam" are of Roman Law used in connection with actio, that is, actio in rem and actio in personam to denote the nature of actions, and with the disappearance of the Roman forms of Procedure, each of the two terms "in rem" and "in personam" got tagged with the word judgments to denote the end-products of actions in rem and actions in personam. Thus, according to the civil law an actio in which a claim of ownership was made against all other persons was an action in rem and the judgment pronounced in such action was a judgment in rem and binding upon all persons whom the Court was competent to bind, but if the claim was made against a particular person or persons, it was an action in personam and the decree was a decree in personam and binding only upon the particular person or persons against whom the claim was preferred or persons who were privies to them. Monir in his "Principles and Digest of the Law of Evidence" at page 563, gives the import of these terms as under:-- "[The point adjudicated upon in a judgment in rem is always as to the status of the res and is conclusive against the world as to that status, whereas in a judgment in personam the point, whatever it may be, which is adjudicated upon, it not being as to the status of the res, is conclusive only between parties or privies. A decision in rem not merely declares the status of the person or thing, but ipso facto renders it such as it is declared; thus, a decree of divorce not only annuls the marriage, but renders the wife feme sole: adjudication in bankruptcy not only declares but constitutes the debtor bankrupt, a sentence in a prize Court not merely declares the vessel prize, but vests it in the captor.]"
5. Section 41 of the Evidence Act does not use the term "judgment in rem", but it incorporates the law on the subject of judgments in rem, and makes them relevant not only against strangers but also conclusive of certain matters such as whether a person was entitled to a legal character or to any specific thing not as against any specified person but absolutely. Judgments in rem are an exception to the rule of law that no man should be bound by the decision of a Court of Justice unless he or those under whom he claims were parties to the proceeding in which it was given. This rule of law is rererable to the maxims of Roman Law namely, "Res inter alios judicata nullem inter alios prejudicium facet", or Res inter alios acta alteri nocere non debet". Such exception of the judgment in rem in the Roman Law was the foundation of the exception in English law. Section 41 of the Evidence Act is the foundation for the exception of judgment in rem in our corpus juris. The reason why a judgment should not be used to the prejudice of a stranger is that he is denied the fundamental right to make a defence, or to examine or cross-examine witnesses or to appeal from a judgment which aggrieves him. This is the requirement of most manifest justice and good sense." Further at page 168 it is observed:-- "The allotments under the Scheme related to the evacuee agricultural land and until acquired and transferred under the Displaced Persons (Land Settlement) Act, 1958, no one could claim the ownership of the parcels of land allotted to them. There was, therefore, no adjudication in regard to the status of res so as to render the proceedings an action in rem, that is, to make it a determination conclusive as to whether any person was entitled to a specific thing. Not as against any specified persons, but absolutely." In the present case the petitioner has filed suit for specific performance of contract at Rs,1,00,000.00 and grant of injunction in which S.A. Wafa and Muhammad Ameen Naji were the only defendants. The defendants did not appear and the suit proceeded ex parte. The operative part of the judgment in the suit is as follows:-- "Since there is no evidence in rebuttal to the plaintiff's evidence I, therefore, decree the suit in terms of Ex.3/1 and order that defendants 1 and 2 shall specifically perform the sale agreement on the receipt of the balance amount of sale consideration, namely, Rs,45,000 as the plaintiff has already paid Rs,55,000 as per agreement Ex.3/1 and three receipts Ex.3/2 to 4 but there will be no order as to costs. The learned counsel for the plaintiff wishes that the plaintiff be permitted to deposit the balance amount with the Nazir of the Court. The plaintiff is permitted to do so at his own risk." The operative part of the judgment shows that the Court has ordered the defendants to specifically perform the sale agreement on receipt of balance amount of sale consideration. The judgment in the suit is specifically against the defendant and that too for performance of the sale agreement. No right of the petitioner in respect of the property has been determined by the said Judgment. In the case of Haji Abdul Rehman v. Noor Ahmad PLD 1974 Baghdad-u-Jadid 25 at page 37 it is observed as follows:-- "There is another aspect of the matter. It relates to the incidence of, and consequences flowing from, a decree for specific performance. There is some controversy in the High Courts in the sub- continent on these questions. The subject was discussed in considerable detail in a Full Bench ruling of this Court, namely Nur Ahmad and others v. B. Muhammad Ibrahim and another (PLD 1953 Lah. 470). It is not necessary either to examine the ruling in any detail or to refer to the facts involved therein, because the law declared therein is absolute and unambiguous. In the judgment written by Kaikaus, J. Their Lordships fully approved the following passage in the ruling by Iqbal Ahmad and Harries, JJ., in an Allahabad case Hakim Enayuat Ullah .v. Khalil Ulah Khan and another (AIR 1938 A11.432).
6. "A decree for specific performance only declares the right of the decree-holder to have a transfer of the property covered by the decree executed in his favour. The decree by itself does not transfer title. That this is so is apparent from the fact that in order to get title to the property the decree- holder has to proceed in execution in accordance with the provisions of Order XXI. C.P.C. So long as the sale-deed is not executed in favour of the decree-holder either, by the judgment-debtor in the suit or by Court, the title to the property remains vested in the judgment-debtor and till the execution of the sale-deed the decree-holder has no right to the possession of the property. It is only the execution of the sale-deed' that transfers title to the property. The sale-deed executed by a Court in pursuance of a decree for specific performance is a transfer, by the Court on behalf of the judgment-debtor and it is the title of the judgment-debtor to the property that is transferred by the sale-deed executed by the Court. If the judgment-debtor is precluded from transferring his property by some statutory provision, the Court cannot, in violation of that provisions, execute a sale-deed of the property." Petitioner's counsel has stated that execution application is filed by the petitioner but it has been adjourned sine die for seeking amendment in the decree. What amendment was to be sought has not been disclosed by the learned counsel. As the decree for specific performance of contract does not transfer title of the property, we are therefore, of the view that such decree or judgment is not a judgment in rem but is a judgment in personam as there was no adjudication in regard to the status of res so as to render the proceeding an action in rem, that is, to make it a determination conclusive as to whether the petitioner was entitled to the property not against any specified person but absolutely. Next argument of the learned counsel for the petitioner is that the respondents 1 and 2 are estopped from claiming the property to be abandoned property. The argument is based upon the letter, dated 21-121975 filed with the petitioner as annexure P/1. This letter, which appears to have been issued in Judicial 87/75 of Mohammad Amin Naji relating to the property in question shows such property was deleted from the list of abandoned properties as the applicant has shown sale of property to him prior to 16-12-1971. It may be noted that the letter, dated 21-12-1975 has been specifically labelled as forgery by the respondent No,2. The respondent No,2 has stated that Judicial case No,87 of 1975 was filed by one Mr. Abdul Karim son of Hamidullah Qureshi in respect of plot No, LY-17/13, Lyari Quarters, Karachi and order in such Judicial case was passed on 31-1-1979.
7. Copies of relevant page of register and of the order have been filed with comments as Annexure `D' and 'E'. The petitioner in his rejoinder affidavit has not controverted these allegations of the respondent No,2 nor have disputed documents Annexures `B' and 'E'. The obvious result of it is that the letter, dated 21-12-1975 relied upon by the petitioner is not free from doubt and such letter will not furnish the basis to the petitioner for raising of plea of estoppel. Party pleading has to show that the representation relied upon by him was genuine and not a forged or fabricated document.
8. Annexure `ID' and 'E' to the comments directly demolished the letter, dated 21-12-1975 and petitioner having not rebutted such annexures, the plea of estoppel fails. The next contention of the learned counsel for the petitioner is that the respondents Nos.1 and 2 should have availed the remedy of filing of application under section 12(2), C.P.C. For having the judgment and decree in Suit No,885 of 1978 set aside. As stated above that the judgment and decree passed in Suit No,885 of 1978 did not bind respondents Nos.1 and 2. Further the respondents Nos. 1 and 2 have shown that the property was listed in the Notification duly published in the Gazette, dated 16-6-1975 and was vesting in the Federal Government by virtue of the Act. The title to the property having not passed to petitioner by the said judgment and decree, none of the rights vesting in the Federal Government in respect of the property in question were effected and we find no reason for the Federal Government or respondents 1 and 2 to make application under section 12(2), C.P.C.
9. After hearing the learned counsel, by short order, dated 14-10-2003 this petition was dismissed in limine alongwith listed application and above are the reasons for the said short order.