2006 PLP 482 (CLC)

FAISAL ARAB, J.

This suit is about conflicting claims of ownership to a residential apartment bearing No.104-A-1 located in a building known as Hina Palace, Hoshang Road, Karachi. The plaintiffs' case: The case of the plaintiffs is that on 12-6-1986 plaintiff No.1 purchased the apartment from defendant No.2 who are builders of Hina Palace. The possession of the apartment was also handed over to plaintiff No.1. The apartment was being used for lodging plaintiff No.1's business visitors. The share-holders of plaintiff No.1-Company had two groups i.e. Karachi Group consisting of plaintiffs Nos.2 to 7 and Lahore Group. Dispute arose between the two groups of share-holders, which led to filing of winding up Petition No.201 of 1994 by the Karachi Group in this Court. The petition was allowed and the plaintiff No.1 was ordered to be wound up. The Lahore Group appealed to the Supreme Court. While the matter was pending in the Supreme Court, parties reached a compromise and the appeal was disposed of by the Supreme Court in terms of the compromise vide order, dated 23-11-1998. It is also plaintiff's case that when the winding up petition was pending adjudication in High Court in J.M. No.201 of 1994, the apartment was illegally occupied by defendant No.1 sometime in 1994 but on account of ongoing dispute between the two groups of share-holders, no action was taken against defendant No.1. After reaching compromise in the Supreme Court, the settlement agreement was given effect through Official Assignee whereby all assets of plaintiff No.1 Company in Sindh region, including the apartment in question, fell to the share of plaintiffs Nos.2 to

7. The distribution of assets between the two groups was finally completed by Official Assignee on 12-1-2000. As the apartment was under the occupation of defendant No.1, the plaintiffs filed the present suit seeking possession, mesne profits and damages. In addition to the reliefs sought against defendant No.1, the plaintiff also sought directions to defendant No.2 to execute sub-lease of the apartment as they were builders of Hina Palace and responsible to execute sub-lease. Defendant No.1's case: The case of defendant No.1 on the other hand is that he is not an illegal occupant of the apartment as he had purchased it in the year 1994 from one Muhammad Naseem son of Abdul Zahoor. It is also the case of defendant No.1 that he purchased and occupied the apartment way back in 1994 and the plaintiffs were also aware that he was in its occupation since then, but took no action until filing of the present suit in 2002. Defendant No.2's case: The case of defendant No.2 simply is that it allotted the apartment to plaintiff No.1 in 1986, handed over its possession and therefore, it is not liable in any manner if it was illegally occupied by anyone. With regard to plaintiffs' claim that defendant No.2 is avoiding to execute sub-lease of the apartment, the defendant No.2 contended that plaintiff No.1's share-holders were engaged in litigation among themselves and therefore, they never approached defendant No.2 for seeking execution of sub-lease of the apartment. The defendant No.2 further contended that as the entire Hina Palace building was handed over 15 years back it is no more in possession of the relevant records to facilitate execution of sub-lease. On the basis of the pleadings of the parties, following issues were settled:-- (1) Whether the plaintiff No.1 booked and purchased the suit plot and also took possession thereof on 12-6-1986? (2) Whether plaintiffs Nos.2 to 7 are beneficial owners of the suit plot by a settlement reached in C.P.L.A. No.380 of 1997 and J.M. 201 of 1994? (3) Whether the defendant No.1 has trespassed into the suit flat and is still holding the possession, if so, what is its effect? (4) Whether the plaintiffs are entitled to the lease possession and mesne profits, if so, at what rate? (5) What should the decree be? As the facts of issues Nos. l to 3 are intertwined, these are taken up together for decision. Learned counsel for the plaintiff Mr. Yawar Faruqui argued that on 12-6-1986 plaintiff No.1 purchased the apartment from defendant No.2 who are builders of Hina Palace and possession of the apartment was also handed over to plaintiff No.1. He has referred to title documents produced in evidence as Exhibits P.2 to P.5, which were issued by the defendant No.2. He submitted that taking advantage of the dispute between the two groups in the winding up Petition No.201 of 1994 the defendant No.1 illegally occupied the apartment. Learned counsel for the plaintiff further submitted that the share-holders finally settled their disputes among themselves which resulted in execution of compromise deed dated 23-11-1998 produced as Exhs.P.6 and P.7. The compromise deed was filed in the Supreme Court and litigation inter se the share-holders came to an end. After reaching compromise in the Supreme Court, the compromise deed was given effect through Official Assignee whereby the apartment in question, fell to the share of plaintiffs Nos.2 to

7. In this regard he referred to Exhs.P.8 and P.9. Mr. Yawar Faruqui further contended that as the apartment was under illegal occupation of defendant No.1 and the same had fallen to the share of the plaintiffs after the compromise, the plaintiffs were left with no alternative but to file the present suit seeking possession, mesne profits and damages. On the other hand learned counsel for the defendant No.1 Mrs. Sofia Saeed Shah argued that defendant No.1 is not in illegal occupation but has in fact purchased the apartment from one Muhammad Naseem son of Abdul Zahoor for valuable consideration in August, 1994, which was vacant at that time and since then defendant No.1 is in its possession and has been paying all utility bills. She further argued that since 1994 the plaintiff took no action until filing of the present suit on 11-10-2002. The defendant No.1 did not file any document with the written statement in support of his claim. At the time of recording of evidence, the defendant No.1 also did not examine himself and instead his song Naveed Ahmed appeared as his witness. No plausible excuse was shown on his behalf as to why defendant No.1 could not appear as his own witness. Article 129(g) of Qanun-e-Shahadat lays down the rule of best evidence. It provides that when best available evidence has not been produced and is withheld without any. plausible reason by a party it would be presumed that had such evidence been produced it would have gone against him. No reason was advanced before the Court to show the cause which prevented defendant No.1 from appearing in Court as his own witness in support of his case. Thus, non-appearance of defendant No.1 made his claim highly doubtful. In the case of Sughran Bibi v. Mst. Aziz Begum reported in 1996 SCMR 137, the Supreme Court held that if evidence of vital importance is not produced or is withheld, the Court in terms of Article 129(g) of Qanun-e-Shahadat would draw adverse inference that had such evidence been produced by the party it would have gone against him. In the cited case the executant of a disputed document failed to step into the witness-box and on account of such failure the Court drew adverse inference against him. The defendant No.1 not only failed to examine himself but he also did not examine Muhammad Naseem from whom he purchased the apartment and only examined his son Naveed Ahmed as his witness. This witness produced general power of attorney, dated 23-8-1994 as Exh.D.2/2 executed by Muhammad Naseem in favour of defendant No.1 and a sale agreement, dated 2-10-1989 as Exh.D.-2/3 executed by one Mashhood Ahmed in favour of Muhammad Naseem. None of the recitals of these two documents narrate as to from whom the title to the apartment was derived by the executants of these documents. In these two documents there is absolutely no mention of defendant No.2 who is admittedly the builder of the project in which the apartment is located nor of any person who has derived his title from defendant No.2. In order to possess valid title to the apartment it is imperative that such title is transferred by defendant No.2 or by a person claiming under defendant No.2. Title to the apartment ought to be traceable right upto defendant No.2 who were undisputedly builders of the building Hina Palace and have made allotments of apartments including the apartment in question. Such being not the position, the principle that no buyer derives a better title than what his seller possesses is fully attracted to defendant No.1's case. Therefore, even if it is assumed that defendant No.1 is not a trespasser but had purchased the apartment from Muhammad Naseem, since valid title to the apartment in favour of Muhammad Naseem has not been established, the defendant No.1 cannot derive a valid and lawful title from Muhammad Naseem. It is also surprising that at the time of the alleged purchase by defendant No.1, he neither asked for allotment documents issued by defendant No.2 nor directly sought confirmation of allotment from defendant No.2 nor even invited objections from public. In such circumstances all that the defendant No.1 is now left with is a right to claim back the amount which he paid to Muhammad Naseem. He however, cannot displace the plaintiffs' right to claim ownership and possession of the apartment. It is also noticeable that while cross-examining the witness of the defendant No.2, no question was put to him by the counsel of the defendant No.1 to the effect that the apartment was not allotted to plaintiff No.

1. Thus, the defendant No.1 has virtually failed to rebut the case of the plaintiffs as well as of defendant No.2 that the apartment was originally allotted by defendant No.2 to plaintiff No.1. Issues Nos.1 to 3 are answered accordingly. As to the defendant No.1's plea of delay in initiating legal proceedings for eviction, Mr. Yawar Faruqui explained that on account of dispute between the two groups of share-holders of plaintiff No.1, it was not clear as to whose share the apartment would finally fall. He further contended that in any case Article 142 of Limitation Act provides 12 years period to file the present suit. Article 142 reads as follows:-

142. For possession of immovable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession. Twelve years from the date of dispossession or discontinuance. Bare reading of Article 142 show that a period of 12 years has been provided for bringing a suit for claiming repossession of immovable property from which the plaintiff was forcibly dispossessed or possession of which has been discontinued by the plaintiff himself. In the present case dispossession or discontinuation occurred in 1994 whereas the present suit was filed in 2002. There is also another aspect to the plea of limitation. Section 28 of the Limitation Act was omitted on 18-10-1995 through an amending Act II of 1995 as it was declared to be repugnant to Injunctions of Islam by the Supreme Court in Maqbool Ahmed's case delivered on 31-8-1991 and reported in 1991 SCMR 2063. Prior to such amendment section 28 read as follows:-- "

28. Extinguishment of rights to property.

At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. After omission of section 28 no suit for possession of any F property would be barred. from the date of Supreme Court's decision given in Maqbool Ahmed's case i.e. 31-8-1991. As to the plaintiffs' claim to mesne profit, the same however, G can be claimed only for three years prior to the filing of the suit. The claim of Rs.20,000 per month has not been established through evidence. However, defendant No.1's witness in his cross has admitted that the current rate of rent of the apartment is between Rs.5,000 to 5,500 per month. Taking this as an admission of defendant No.1, I grant mesne profit at the rate of Rs.5,500 per month with effect from 12-10-1999 i.e. three years prior to the filing of the suit till the vacant physical possession of the apartment is handed over by the defendant No.1 to the plaintiffs. Issue No.4 is thus, answered in the affirmative. In view of the above discussion, the plaintiffs are declared to be the real and lawful owners of the apartment in question and are entitled to its vacant peaceful possession. The defendant No.1 is directed to hand over the vacant peaceful possession of the apartment within 45 days from today and also pay mesne profit at the rate of Rs.5,500 per month w.e.f. 12-10-1999 till the vacant possession is handed over to the plaintiff. The defendant No.2 is directed to execute sub-lease of residential apartment bearing No.104-A-1 located in a building known as Hina Palace, Hoshang Road, Karachi in favour of the plaintiff within 45 days and in case it fails to do so within specified time, the Nazir of this Court shall execute the same in favour of the plaintiffs. This suit is decreed in the above terms with costs. S.A.K./K-3/K Suit decreed.