2007 PLP 2742 (YLR)

MUNIB AHMED KHAN, J.,

C.M.A. No.9953 of 2003: Through this C.M.A., the defendant No.5 has prayed for recalling of the order dated 22-2-2005. In the said application he has given fact regarding his ownership tit respect to property bearing Plot No.J.M. 3/303 and Plot No.J.M. 3/313. Besides carious objections, Khawaja Shamsul Islam has also raised legal objections that the application is hit by doctrine of constructive res judicata, a similar prayer has been declined by order on C.M.As. Nos.1080 of 2005 and 1081 of 2005. Before going into merits of factual position, it is necessary to look into this aspect and for the said purpose, various Court orders passed in the matter need perusal. From the plaint, it appears that the suit has been filed for Property bearing No.JM 3/303 and alone with the plaint, C.M.A. No.5523 of 2003 was filed with the prayer that.- "The defendant be restrained from harassing or interfering with the possession of the Plot bearing No. JM 3/303 admeasuring 1175 Sq yd, Jamshed Quarter. Karachi." Since the property was sealed by KBCA due to its commercial use, therefore, on the undertaking of learned counsel for the plaintiff, the property was de-sealed and possession was handed over to the plaintiff. This factual position was recorded in order dated 7- 11-2003. On 12-1-2004 new controversy popped up, as the learned A.A.-G. informed that the inquiry is being conducted in respect to entitlement of the suit property i.e. Plot No. JM 3/303, as them is alleged forgery in the record of rigid. In the said order, the property again has been specified i.e. No.JM 3/303. Anyhow, the plaintiff was granted permission to raise construction of boundary wall and the defendants were warned not to interfere with the construction of boundary wall. Nazir was appointed to carry out inspection. In order dated 22-10-2004, it is mentioned as follows:-- "The controversy appears to be in respect to Plot No.JM 3/303 in the instant suit and Mr. Shams is also claiming the title in respect of No. JM 3/313 . .the alleged contemner has illegally dispossessed the plaintiff.... Nazir of this Court is appointed as Commissioner to take over possession of the .suit-.land bearing No.JM 31303 and sea] the same. " In order dated 14-i2-2004, it is mentioned as follows:-- "It is stated by Mr. Khawaja Shamsul Islam that another Suit bearing No.1376 of 2004 has been filed in relation to another property. Let this matter be filed along with above referred suit on same date before same Bench." On 22-2-2005 some applications for injunction and contempt came up for hearing and order was passed. The said order opens as follows:

"It appears that vide- order dated 17-11-2003 the plaintiff was directed to put in possession of plot bearing Plot No.JM 3/303 and JM 3/313, Jamshed Quarters, Karachi.... It also appears that alleged contemner had forcibly taken over possession of one of the property, despite the fact that the possession was handed over to the plaintiff under orders of the Court Under the circumstances, Nazir is directed to take over possession of the Plot No. JM 3/313, Jamshed Quarter, Karachi from the alleged contemners or any other person found in possession, and keep it under his key and lock. " After the, possession or plot No.JM 3/313 was taken in terms of the above order, the respondent No.5 moved C.M.A. No.1080 of 2005, praying therein to recall the order dated 22-2-2005 as the instant suit relates to Plot No. JM 3/303, whereas the order has also been passed in respect to property bearing Plot No. JM 31313. On the said application, an order was passed on 29-3-2005, as follows:- "It appears that Nazir was required to take over possession of Plot No. JM 3!313, Jamshed Quarter Karachi;

from alleged contemners the Court has not decided or dilated upon title of the property. Therefore, the contention of learned counsel for defendant No.5. That he is being prejudiced by such an order cannot be sustained. It may be observed that property -was de-sealed under orders of Court and directions for handing over its possession was passed on 17-11-2003...Therefore, I do not see any justification to review such order sought through listed application, the application (C.M.A. 1080. of 2005) is accordingly dismissed and disposed of in terms thereof. " Now defendant No.5 has again come with C.M.A. No.9953 of 2005 with the following prayers:- "For the fats and reasons stated above, this Honourable Court may be pleased to recall/modify the order dated 22-2-2005 'and restore the possession of defendant No.5 in respect to Plat No. JM 3/313-VII- D-285.; Jamshed Quarter Karachi, admeasuring 1003 Sq yds. " I have heard the learned counsel for the parties and have perused Court's order from which it appears that controversy surrounds the order dated 7-11-2003 while there is no order of 17-11-2003, which may be due to typographical mistake. The said order dated 7-11-2003 was passed on C.M.A. No.5523 of 2004, in which relief has been prayed fir in respect to only one property i.e. Plot. No. JM 3/303 with its measurement i.e. 1175 Sq yds. Neither in the said application one can find mention of property bearing Plot No.JM 3/313, nor the order dated 7-11-2003 discloses such fact. Ir. the said order word "property" has been used at several places and not the word "properties". The order dated 21-2-2005, whereby the property bearing Plot No. TM 3/313 has been given in possession of the Nazir might have, been passed on misrepresentation and misinterpretation of the orders dated 7-11-2003 and 22-2-2005 such position has also been resulted in dismissal of C.M.A. No.1080 of .2005, filed by defendant No.5 by order dated 29-3-2005. In view of the above circumstances, there are some dis crepancies, which can be corrected by the learned Judge, who has passed the orders dated 22-2-2005 and 29-3-2005. As far as question of constructive res judicata, it is very much applicable in the case, keeping in view the order dated 29-3-2005, therefore, C.M.A. No.9953 of 2003 is dismissed. C.M.A. No.5282 of 2004.

Through this. C.M.A., the plaintiff hash sought restoration of Plot No. JM 3/303) measuring 1175 Sq yds and Plot No. JM 3/313 measuring 1003 Sq yds. The above request has vehemently been opposed by learned counsel for the defendant No.5 and learned A.A.-G. has also submitted comments of Secretary (RS & EP). Board of Revenue Sindh, giving thereby details of ownership of property bearing Plot No. JM 3/303 for the purpose of ascertaining the title of the property, the learned A.A.-G. has stated that the ownership of Property A No. JM 3/303 was very much under clouds, as record of Settlement Department was manipulated. He has further submitted that there was an inquiry by Anti-Corruption Department but' it was closed apparently due to fact that plaintiff's predecessor obtained an ex parte decree. Learned Additional Advocate-General was specifically pointed out Paragraph No.3 of the report which is as follows: - "(3) The record further reveals that the Police Inspector, ACE, Karachi under his letter dated 8/83 further requested to verify the genuineness of P.T.O. No.17110 issued in the name of Resheeda Begum in respect of Property No. JM 3/303, Jamshed Quarters, Karachi. Therefore, he was again informed vide letter No.D.SC/KAR/83-373 dated 14th September, 1983 that no entries have been found in the register, the alleged PTO has been stated to be fictitious, photocopy enclosed (Annexure-R)." From the .perusal of the above orders in this suit on .various dates, it is apparent that the suit has basically been filed in respect to property bearing Plot No.JM 3/303 and not for Plot No. JM 3/313. According to Khawaja Shamsul Islam he has filed a suit bearing No. 1376 of 2004 in respect .o property bearing Plot No. JM 3/313, which fact also find mentioned in the order dated 14-12-2004.-Prayer in Suit No. 1376 of 2004 for convenience is reproduced as follows:

"(I) Restoration/recovery of possession of Property bearing Plot No.JM 3/313 total admeasuring 1003 Sq yds situated at Cosmopolitan Cooperative Housing Society Limited, Jamshed Quarters Karachi. (II)

(III)

In the above circumstance, I have come to the conclusion that the instant suit is in respect to property bearing Plot No.JM 3/303 and not for property bearing. Plot No.JM 3/313 and the instant C.M.A. in respect to Plot No. JM 3/313 is not maintainable. Another Suit No. 1376 of 2004 is already pending in respect to that' property and till any order in that suit, the Nazir will hold the property under hiss possession. Now there remain question of possession of Plot No. JM 3/303, as the plaintiff through instant application has also requested possession of this properly and restraining the defendants from interfering in possession. After submission of details in respect to Plot No. JM 3/303 by learned A.A.-G., doubts have been created in respect to the title of the property, although, learned counsel for the plaintiff has given the detail of transaction allegedly culminating in his title supported by registered document as well as copies of orders and judgments of the High Court acid Supreme Court, but Mr. Abid Zuberi, Mr. Anwar Tariq and Abdul Aziz Khan, learned counsel appearing for Contemners have vehemently disputed the contentions by stating that the property never belonged to the predecessor of the plaintiff namely Rashida Begum, therefore, she cannot transfer any right better than what she was holding. According to Mr. Abid S. Zuberi, Rashida Begum, allegedly acquired title on the basis of an ex parte decree, which is even contrary to factual position and record of settlement. According to him, some rent proceedings were filed on the basis of that ex parte decree. In rent proceedings .which went to the High. Court and to Honourable Supreme Court. Certain observations have been given but nowhere it has been decided that the plaintiff predecessor has acquired the property in her rights. Since there is serious factual controversy, between the claimants as well as disputed tactual position submitted by learned A.A.-G., therefore, I hold that the property bearing Plot. No. JM 3/303 will remain in custody of Nazir for the time `being. The Director Anti-Corruption is directed in initiate an inquiry in respect to the ownership; transfer of property bearing Plot No. JM 3/303 Jamshed Quarter Karachi and submit his report within a period of three months. Mr. Ahmed Pirzada, learned A.A.-G. may supply a copy of comments filed by him in Court, to the Director Anti-Corruption. In such situation, C.M.A. No.5282 of 2004 is dismissed. The plaintiff may repeat it after Inquiry Report or Director Anti-Corruption. C.M.A. No. 5281 of 2004: This is an application under order XXXIX, rule 2(3), C.P. C:. read with sections 3 4 any of the Contempt of Court Act, whereby contempt action has been requested against tine euntemner on the basis of Nazir's report that intervening wall between the two plots has been demolished. No action can be taken on this application in the light of above observation, as there is uncertainty regarding 'interpretation of Court's orders as well as involvement of Property No. JM 3/313 in this suit and the entitlement of .the parties as well. In the C circumstances C.M.A. 5281 of 2004 is dismissed. In view of the above-observation, when title of the plaintiff is to be cleared, by specific order. of this Court, as well as keeping in view filing of the suit in respect to property bearing Plot Na. JM 3/303 and not in respect to Plot No. JM 3/313, this application is dismissed. H.B.T. /S-55/K Application dismissed.