2008 PLP 50 (SCMR)

RANA BHAGWANDAS, J.

Petitioner seeks leave to appeal against dismissal of High Court Appeal arising out of Suit No.181 of 1995 instituted by respondent No.1 against the petitioner seeking declaration of ownership of plot in suit measuring 2028 sq. yards that she be declared as trespasser and encroacher having no legal or valid title to the property. A permanent injunction was also sought restraining her or any one else from claiming or raising construction on the aforesaid plot and creating any interest in it. Mandatory injunction seeking dispossession of the petitioner lady was also sought in addition to the damages to the tune of Rs.5,00,000 for causing harassment and mental torture to the respondent.

2. The suit was resisted on the premises that Plot No.117, Block-F, North Nazimabad, Karachi had been bifurcated into two plots, one measuring 1111.11 sq. yards and the other measuring 588.56 sq. yards; that the bifurcated plots were renumbered as 117-F and 117/1-F, respectively. It was alleged that plot measuring 1111.11 sq. yards was leased out by Karachi Development Authority in favour of one Afaq Hussain Siddiqui vide indenture of lease dated 27-12-1996 in respect whereof, an agreement to sell between her and his attorney Syed Nasir Mahmood, was entered into for consideration of Rs.9,55,000 it was added that ultimately vide registered gift-deed, dated 31-12-1994, plot was gifted in her favour by Afaq Hussain Siddiqui through his attorney. During the proceedings of the suit attorney Syed Nasir Mahmood, volunteered to join as Intervenor and was impleaded as defendant No.2. He supported the case of the petitioner in written statement but did not appear for evidence. Issues were settled. Contesting parties adduced evidence. In the ultimate analysis, suit was decreed by learned single Judge of the High Court vide judgment and decree, dated 27-1-2004 as prayed. High Court appeal preferred by the petitioner before a Division Bench of the High Court having failed, she seeks leave to appeal.

3. It is inter alia contended that the suit was filed after long delay of more than 37 years of the acquisition, of alleged title to the plot in suit; that finding of the High Court to the effect that Indenture of Lease in favour of Afaq Hussain Siddiqui in fact pertained to Plot No.D-75 Sector "F", measuring 1000 sq. feet was a tampered and forged document and that on account of defective title, respondent No.1 did not acquire any valid title to the plot in suit are not supported by record. It is further pointed out that for basing the finding of forgery in relation to the Indenture of Lease in favour of Afaq Hussain Siddiqui, documents were summoned from City District Government, Karachi, but neither any official was examined at the trial of the suit nor the documents were exhibited in evidence. It is thus urged that the findings of the High Court are based on misreading and non-reading of the record.

4. After hearing Mr. Muhammad Yasin Azad, learned Advocate Supreme Court for the petitioner and examination of impugned judgment as well as various documents, we are inclined to grant leave to appeal to consider inter alia the questions of law raised at the Bar. We order accordingly.

5. Operation of the impugned judgment shall remain suspended till decision of the appeal. H.B.T./Z-3/SC Leave granted.