2017 PLP 253 (YLRN)

SHAHNAWAZ TARIQ, J.

Through the captioned revision application, applicant Mohammad Ibrahim son of Late Mohammad Ismail has impugned the order dated 15.02.2013, passed by the learned III Additional District Judge, Karachi East, in Civil Appeal No.120 of 2011, whereby the judgment and decree dated 24.03.2011, passed by the Court of VII Senior Civil Judge, Karachi East, were set aside and remanded the case to the trial Court to decide the same a fresh.

2. The applicant has sought following relief in the instant revision application:-- "To set-aside the judgment dated 15.02.2013, passed in Civil Appeal No.120/ 2011, by the learned III Additional District Judge, Karachi East, and restore the judgment and decree dated 24.03.2011, passed by the learned trial Court in Civil Suit No.774/2005."

3. The relevant facts narrated in the instant revision application are that applicant is a lawful owner of Plot No.GRE-35, situated at Verily Road, Garden East, Karachi, while originally the disputed property was owned by the Board of Revenue which was subsequently granted to the father of applicant namely Ismail but after his death the same was inherited to his legal heirs including the applicant. Afterwards, the remaining legal heirs relinquished their shares through a relinquishment deed dated 02.01.2004, in favour of applicant, therefore, he became the exclusive owner thereof.

4. It is further averred that the said plot was earlier rented out to Madad Khan and Doulat Khan, both sons of Sarbuland Khan under the verbal tenancy and they used to pay the rent to applicant. In the year 1999, applicant requested said Madad Khan and Doulat Khan to vacate the above property and deliver its possession, whereupon Doulat Khan was volunteered to handover the possession to applicant and he also executed an Iqrarnama in favour of applicant to vacate the demised premises, but his brother Madad Khan with mala fide intention delivered possession of the property in question to Akram Khan and his sons namely Anwar Khan and Latif Khan. The applicant requested those persons to handover the physical possession of the property but they refused to vacate the same and also extended threats.

5. It is further averred that the applicant moved applications to the concerned SDM and SHO for delivery of the possession and during the enquiry said Daulat Khan made statement with police, whereby he admitted that plot in question belongs to the applicant, while during the enquiry said Akram Khan and his sons took stance that the disputed plot is bearing No.GRE-35/ 1 and they have no concern with plot No.GRE-35. SHO Police Station Solider Bazzar wrote letters to the Assistant City Surveyor Officer, South Karachi and Excise and Taxation Department for verification of the number of the said plot. The applicant also moved applications to Nazim of Jamshed Town and Nazim of Union Council No.12, Jamshed Town, against the respondents and the matter was fully enquired and verified by them and they also advised Akram Khan and his both sons to handover the possession of disputed property bearing No.GRE-35, admeasuring 98 Sq. Yd, Old Survey No.14/23, to the applicant but they refused to do so.

6. It is further asserted that after denial of the respondents, the applicant filed Civil Suit No.774/2005 for declaration, possession, mesne profit and permanent injunction against said Akram Khan and 4 others, in the Court of VII Senior Civil Judge, Karachi East, with following reliefs:-- "(a) That the plaintiff may be declared as lawful and absolute owner of plot bearing No.GRE-35, Garden East by inheritance. (b) That the defendants Nos.1 to 3 may be directed to give/ deliver the peaceful possession of the said plot to the plaintiff, in case of failure, the Nazir of this Hon'able Court may be directed to deliver the peaceful possession of the plot in question to the plaintiff. (c) That permanent injunction may be granted in favour of the plaintiff and against the defendants Nos.1 to 3, whereby directing them not to deliver the possession of the said plot to any one or not create any third party interest in plot in question. (d) Cost of the suit. (e) Any other relief or reliefs which this Hon'ble Court may deem fit and proper under the circumstances of the case."

7. Respondents Nos.1 to 3 filed their joint written statement, in which they denied the averments of the plaint and also raised legal pleas that suit is neither maintainable nor any cause of action has been accrued to the applicant. They further stated that documents filed by applicant do not confirm the title of entire plot in his favour. It was also stated that respondents are in possession as owners of plot No.GRE-35/ 1, for which Excise and Taxation Department had issued PT-I, PT-10 and PT-13 in their favour in respect of said plot, and they are also paying government taxes, electricity charges and gas bills to the concerned authorities, while plot No.GRE-35 is not related to them.

8. The respondent No.4 City District Government and respondent No.5 Mukhtiarkar, Karachi East, filed their joint written statement and stated that applicant and 5 others legal heirs are owners of Plot No.GRE-35, admeasuring 98 sq. yards, Garden East, Karachi, and such entry was made in the names of the following persons in their property register:-- i). Muhammad Ibrahim S/o Ismail ii). Marya D/o Ismail iii). Rukkaya D/o Ismail iv). Sakina D/o Ismail v). Fatima D/o Ismail vi). Mst. Shehar Bano D/o Ghulam Rasool. It was further stated by the respondents that the matter is between the private parties and no Government interest is involved as such official respondents have nothing to do in a private dispute.

9. From the pleadings of the parties following issues were framed by the trial Court:- i. Whether suit is not maintainable? ii. Whether plaintiff has no cause of action? iii. What was number of disputed plot i.e. GRE-35 and GRE-35-1, Garden East, Karachi? iv. Who is the owner of the plot and in possession? If defendants then in what capacity? v. Whether demarcation of the suit plot can be made for resolving dispute? vi. Whether defendants are in occupation of the suit plot with their own rights? vii. Whether plaintiff is entitled for mesne profits and possession? If yes, to what extent and from which date? viii. What should the decree be?"

10. In order to prove the case, applicant examined his attorney namely Muhammad Yasin as Ex-P/ 1, who produced special power of attorney dated 09.02.2009 as Ex-P/2, original extract form having mutated in the name of applicant and other legal heirs as Ex-P/3, PT-1 as Ex-P/4, original deeds of relinquishment dated 03.10.1992 and 02.01.2004 as Ex-P/5 and Ex-P/6, original release deed dated 14.07.1998 as Ex-P/7, original statement of Daulat Khan as Ex-P/8, copy of application moved to the SDM Jamshed Quarter as Ex-P/9, copies of reports regarding the genuineness of the documents of the applicant as Ex-P/ 10 to Ex-P/ 13, copy of confirmation in letter dated 23.01.2003 as Ex-P/ 14, copy of decision of Nazim in favour of Muhammad Ibrahim to be the legal owner of Plot No.GRE-35, dated 30.10.2004 as Ex-P/15.

11. In rebuttal, the respondent No.2 examined himself as Ex-D/1, and produced copy of PT-10 issued Excise and Taxation Department as Ex-D/2, copy of PT-13 and Ex-D/3, PT-1 as Ex-D/4, photo copies of gas bill showing plot No.35/1 as Ex-D/5 and Ex-D/6, photocopies of Karachi Metropolitan Corporation map and site plan as Ex-D/7 and Ex-D/8, photostat copy of letter dated 19.07.2002 as Ex-D/9, photo state copy of letter dated 07.09.2002 as Ex-D/ 10 and photo state copy of newspaper as Ex-D/11.

12. After recording the evidence of both parties and hearing their arguments, the trial Court decided the said suit in favour of applicant vide judgment and decree dated 24.03.2011. The private respondents challenged the said judgment and decree by filing Civil Appeal No.120/2011, and after hearing the arguments of both parties, learned appellate court of III Additional District Judge, Karachi East, vide order dated 15.02.2013, set aside the impugned judgment and decree and remanded the case to the trial Court for retrial.

13. Learned counsel for applicant contended that all the remaining issues relating to the disputed plot will be decided by the executing Court and the respondents may agitate the plea of measurement of plot before the said Court. He further contended that mere installation of electricity and Sui gas meters would neither create nor confer the right of ownership in favour of the respondents. He also emphasized that impugned order is illegal, unlawful and utter violation of Order XLI of C.P.C., as civil appeal was decided by the appellate Court by a short order without framing the issues and discussing the evidence led by the parties, supported with their necessary documents as such the appellate Court has committed serious illegality and material irregularity. He further contended that learned appellate Court has also committed illegality by observing that the evidence of attorney of the applicant has no legal value because the special power of attorney was executed on stamp paper of Rs.100/-. He further contended that applicant through special power of attorney has specially authorized his son being the attorney to do all such acts and deeds which he deems necessary for the said purpose and to defend the suit in all Courts, therefore, the appellate Court has not exercised the jurisdiction properly. He also submitted that under the law, there is no restriction that the principal can authorize the attorney only for one purpose in special power of attorney. He contended that respondents had not taken specific ground in their written statement that some portion of plot No.GRE-35 is in occupation of Madrasa as such new plea could not be raised in appeal as such the observations of appellate Court to the extent of new plea are beyond the pleadings. He further contended that both parties have already led their evidence and produced relevant documents, therefore, the remand of case to the trial court for retrial shall seriously pre-judice the legal rights of applicant.

14. Learned counsel for private respondents contended that the impugned order is just and proper and decided the controversy between the parties on merits. He further contended that the applicant had executed a special power of attorney in favour of his son and in said power instead of one property, two properties have been mentioned as such the same is not a legal document. He further contended that in the title of plaint applicant had mentioned mesne profit while in prayer clause no such relief was sought, but the trial Court allowed mesne profit which is purely illegal. He further contended that trial Court had ignored the report of surveyor which shows that major portions of subject plot are in occupation of plot No.34 and Madrasa and only the area of 40 sq. yards is in possession of respondents, but the Madresa was not joined as party to the suit, therefore, the respondents could not be deprived of their entire plot. He further contended that the special power of attorney produced by the attorney of the applicant is undervalued as it was stamped only for Rs.100/- instead of Rs.500/- and in said power of attorney no specific authority was given to lead the evidence. He further contended that the relinquishment deed executed by Ismail has no concern with the property as in Ex-P/3 the area is mentioned as 98 sq. yards, while in PT-1 Ex-P/4 the area is shown as 99 sq. yards, hence the measurement of disputed plot is essential and matter be sent to the learned trial court for the retrial and instant revision is liable to be dismissed.

15. Perusal of the available record and consideration of the arguments advanced by the learned counsel for the parties emanated that the applicant has been claiming to be the owner of disputed plot No.GRE-35, admeasuring 98 sq yards on the basis of title document i.e. an Extract from the Property Register of Karachi District and Taluka Karachi. The subject plot was originally owned by the Board of Revenue and subsequently was granted to the father of applicant namely Ismail and after his death, the said plot was transferred in the name of the applicant and five other legal heirs in above referred Register. Allegedly, disputed plot remained in possession of Madad Khan and Daulat Khan both sons of Sarbuland Khan under verbal tenancy which continued for several years. Thereafter, all the remaining shareholders relinquished their shares in favour of applicant vide registered relinquishment deed dated 10.12.1992. The applicant demanded the vacant possession of the plot in question and Daolat Khan agreed to hand over the possession of the said plot to the applicant and he had also executed an affidavit (Ex-P/8), but his brother namely Madad Khan malafidely delivered possession of said plot to Akram Khan and his sons Anwar Khan and Latif Khan. At the first instance, the applicant moved applications to Concerned SDM, SHO Solider Bazzar, Nazim Jamshed Town and Nazim Union Council No.12, Solider Bazzar and settlement proceedings were held and parties appeared before them and the respondents were directed by all the authorities to handover the possession of disputed plot to applicant being its real owner but the respondents refused to deliver the said possession and ultimately applicant filed civil suit against the respondents.

16. After hearing the parties and considering their respective documents, the Nazim, Chairman Law and Order Committee, Soldiar Bazar, Jamshed Town, Karachi, vide letter No.NSB/ 091/03, dated 23.01.2003, gave his decision, which is reproduced as under:- CONFIRMATION LETTER IN RESPECT OF PLOT NO.GRE-35, GARDEN EAST, JAMSHED TOWN, KARACHI. We have gone through the dispute case of the Plot No. GRE- 35, Garden East Karachi, and we have investigated the matter and also fully inquired about the above plot from the Mukhtiarkar, Jamshed Town, Karachi, vide letter No. N.S.B/ JT/ 070/ 02, dated 12.12.2002, wherein the Mukhtiarkar, Jamshed Town has confirmed that the Plot No. GRE-35, Garden East, Karachi, wherein he has showed the owner is Muhammad Ibrahim son of Muhammad Ismail and total area of this plot is 98 square yards, after we have sent another letter No.N.S.B-U.C-12/ JT/ 080/ 02 dated 27.12.2002, for the confirmation of the ownership of Plot No. GRE -35 Garden East, Karachi, after that we received the reply vide letter No.MUKH/ 02/ 2003, dated 06.01.2003, in which the Mukhtiarkar Jamshed Town, Karachi, has confirmed that there is no record of the Plot No. GRE-35/ 1, Garden East, Karachi and there is no such plot in the physical possession of any one. In view of the above mentioned facts and inquiries, it is confirmed that there is no Plot No.GRE-35/ 1, Garden East in the survey record of the Mukhtiarkar, Jamshed Town, Land and Revenue Department C.D.G.K. and it is only one Plot that is GRE-35, Garden East, Karachi, and the owner of Plot No.GRE-35, Garden East, Karachi is Muhammad Ibrahim son of Muhammad Ismail and others. Thus they are the real owners of the Plot No. GRE-35, Garden East, Karachi, and this is only one plot. It seems that Akram Khan and sons have illegally occupied on the same plot which is GRE-35, Garden East, Karachi, measuring 98 square yards, and they have no documents in connection of this plot. I have given my judgment in the interest of justice and the same has been forwarded to Nazim (Jamshed Town), Karachi for information and legal action. Sd/ - Farrukh Niaz Tanoli Officiating Nazim, U.C-12 Soldier Bazar, Jamshed Town, Karachi."

17. Similarly, the Nazim, Union Council No.12, Jamshed Town, also decided the dispute after hearing the parties and considering their documents vide letter dated 30.10.2004, which is reproduced as follows:- "OBSERVATION OF DECISION IN FAVOUR OF MUHAMMAD IBRAHIM LEGAL OWNER OF PLOT NO. GRE- 35, VARLI ROAD, GARDEN EAST, SOLDIER BAZAR KARACHI. It is observed that a decision of Naib Nazim UC-12 letter No.NSB/ 091/ 03/ 2003. According to the falsely mentioned the plot No.35/1, it is fact that as per inquiry/ survey record of the Mukhtiarkar, Jamshed Town, Land and Revenue Depart-ment C.D.G.K, it is only one plot that is GRE-35, Varli Road, Garden East, Soldier Bazar, Karachi and the owner of Plot No.GRE-35, is Muhammad Ibrahim son of Muhammad Ismail and others. The decision has been sent to all concerned authorities for further necessary action and for the arrest of occupied persons namely Akram Khan and Sons who have illegally occupied the Plot No.GRE-35,Varli Road, Garden East, Karachi measuring 98 Square Yards. The occupied persons have no legal document in connection with the said plot. As well as the legal owner of the said Plot Mr. Muhammad Ibrahim son of Muhammad Ismail and others have proper/legal documents. Complaint dated 16.08.2004 was received by the legal owner Muhammad Ibrahim son of Muhammad Ismail. I have called upon both parties, and required the relevant documents in connection with the said plot. The legal owner Muhammad Ibrahim son of Muhammad Ismail have provided the legal documents in connection with the said plot, but Akram Khan and Sons have failed to show the legal documents in connection with the Plot No. GRE-35. The Land Department has already surveyed and I also inquired/ surveyed the said plot and instructed to the SHO area police to redress the matter according to the law and solved the matter on priority basis to provide the justice to the legal owner of the said plot." Sd/- Nazim, Union Council No.12

18. Likewise, the Assistant Commissioner/ Assistant City Survey Officer South, Commissioner House, Karachi, vide letter NO.CTS/ACSO/127/ 2000, dated 27.01.2000 as Ex-P/11, has certified that the document of plot No.GRE-35/ 1 of respondents as PT-1, was issued by the Excise and Taxation Department, however, record of said office was checked and found that Plot No.GRE-35/ 1 is not existing therein so the question of its verification does not arise.

19. Simultaneously, the Assistant Commissioner/Assistant City Survey Officer South, South Karachi vide letter No.CTS/ CS-4/680/2000, dated 18.05.2000 as Ex-P/13, has verified the documents of plot No.GRE-35 of applicant and stated that the original extract dated 06.01.1999, of plot No.GRE-35, Garden East Quarters, Karachi, was issued by said office which is still intact.

20. For appropriate conclusion, the relevant portion of cross-examination of respondent Anwar is reproduced as under:-- "My father had been occupying plot in question initially. I see Ex-D/ 8 and say it is same sketch, but there is no plot No.35/

1. It is fact that Ex-D/ 9 dated 19.07.2002, also does not show plot number 35/1. It is fact that Mukhtiarkar and other officials have visited a site. It is fact that plot No.35 is in the name of plaintiffs. It is fact that my late father was called by Nazim. It is incorrect to suggest that Nazim given a decision that there is exist on plot bearing No.35/

1. I do not possess any other documents except P.T.1 and the documents already produced by me. It is fact that all the authorities have given reports that there is a plot No.35 instead of 35/1."

21. From the bare perusal of the cross-examination of the respondent and documents produced by him, it is crystal clear that the respondents have failed to produce any title documents in their names pertaining to the plot in question and the documents Ex-D/7 and Ex-D/8 (Karachi Metropolitan Corporation Map and Site Plan) produced by the respondents undoubtedly show that plot No.GRE-35/ 1 is not inexistence in those documents and said fact has also been admitted by the respondent during the cross-examination. On the contrary, Ex-D/7 and Ex-D/8 have established the claim of the applicant that the area of plot No.GRE-35 is under occupation of the respondents. Indeed, the plot in question was surveyed and Surveyor of Jamshed Town had submitted such map and report which reflected that area of 40 sq. yards of the plot in question is in occupation of the respondents. Further-more, the original title documents of the applicant could not be defeated by PT-1 issued in the names of respondents particularly when plot No. GRE-35/ 1 is not existing in KMC Map, Site Plan of the said area and in the main Register of Property of District Karachi. Moreover, the respondents had not agitated the specific point before the trial Court that major portion of the plot in question is in occupation of plot No.34 and Madresa and only 40 sq. yards are in their occupation, therefore, they cannot agitate new plea either before the appellate Court or this Court to defeat the verdict of the trial Court.

22. It is well settled that special power of attorney is a limited legal right or authority conferred by the executant on his attorney or agent to do or perform one or more acts only to the extent of a specified assignment for the specific purpose. Consequently, the special power of attorney executed by the applicant in favour of his son being an attorney to look after his two immoveable properties, file legal proceedings and defend before the Courts and do all kinds of acts as he deems fit and proper on his behalf, is sufficient authority to lead evidence before the trial Court. It was essential for the respondents to raise the objection of under valuation of subject special power of attorney before the trial Court, but it was not done at the appropriate time. Therefore, the ground of under valuation cannot be used to discard the adduced evidence after the trial Court had accepted the validity and legality of said special power of attorney.

23. It was incumbent upon the learned appellate Court under Order XLI, Rules 30 and 31, C.P.C., to set out the points for determination and decide the civil appeal with specific reasons in view of said points after due consideration of the evidence and documents produced by the parties. It is well settled that the provisions of Order XLI, Rules 30 and 31, C.P.C., are mandatory in nature and its deviation would be the utter violation of law. Indeed the learned appellate Court has failed to appreciate the evidence adduced by the parties supported with series of documents including verification reports of Assistant Survey Office, South Karachi, that plot No.GRE-35/1 is not available in the record of said office and only the entry regarding the plot No.GRE-35 is available. Consequently, the impugned short order passed by the appellate Court without setting the points for determination and discussing the merits in view of the evidence is devoid of any legal substance, hence not maintainable under the law.

24. Consequently, I am of the considered view that both parties have already adduced their evidence and produced all relevant documents, therefore, the learned appellate Court has committed material illegality while passing the impugned short order without proper examination of the evidence as well as framing the points for determination to decide first civil appeal on merits through speaking order. Resultantly, the impugned order dated 15.02.2013, passed by the learned appellate Court being devoid of any legal substance is hereby set-aside. Accordingly, the judgment and decree dated 24.03.2011, passed by the learned trial Court is maintained to extent of restoration of possession only, while the findings of the trial to the extent of mesne profits at the rate of Rs.5000/- per month from 3 years prior to the institution of suit for the possession and compensation of Rs.25000/- under section 35-A, C.P.C., are hereby set-aside being non maintainable. For the foregoing reasons, the instant civil revision application stands disposed of with no order as to cost. ZC/M-30/Sindh Order accordingly.