1999 PLP 595 (MLD)

4. Against the above order of the Division Bench of this Court the Deputy Settlement Commissioner, Karachi and the Member, Board of Revenue filed appeal (Civil Appeal No.824-K of 1990) which was dismissed by a learned Full Bench of the Supreme Court of Pakistan upholding the decision in the Constitutional Petition No.D-45 of 1984 with the following observations; "It transpires from the record before us that in the course of hearing of the writ petition, on behalf of the Settlement Department as well as respondent No.2 it w4s urged that there was no record available to support the contention of respondent No.1 that the orders dated 8-2-1950 and 28-8-1960 on which he relied, were passed by the Additional Custodian (Judicial) and the Custodian of Evacuee Property, West Pakistan Karachi, respectively, in respect of the disputed property; meaning thereby that the documents on which respondent No.1 founded his claim were spurious." "We have heard the learned counsel for the parties. The entire controversy between them is pegged on the question as to whether or not the Custodian authorities confirmed the sale in favour of Mian Muhammad Rashid deceased and that the orders in this behalf relied upon by respondent No.1 are genuine. To the good luck of respondent No.1, the relevant file of the Custodian's organization relating to the property in dispute is available; it has been placed before us and the relevant orders are also available therein. An order dated 30-1-1959 at page 7 of the said file indicates that the sale deed dated 2-7-1948 in favour of Mian Muhammad Rashid was executed by Swami Raganath Ananda by virtue of general power of attorney executed by the office bearers of the society aforesaid and the sale price was paid through cheque. The transaction was confirmed by Mr. S.A.M. Jafry, the then Additional Custodian, vide his order dated 8-2-1950. It appears that the exercise of suo motu jurisdiction the case was re-examined to ascertain whether Swami Raganath Ananda was duly authorised agent of the society aforesaid to effect the transaction of the property in question. Through a detailed judgment dated 6-4-1960 S. Riazuddin Ahmed, the then Additional Custodian, Karachi, rendered a verdict against Mian Muhammad Rashid, with which the learned Custodian did not agree". "The orders dated 6-4-1960 and 28-5-1960, in original, are available in the file, with which the learned counsel for the department and respondent No.2 were confronted and they did not have to say anything to question the genuineness of these documents". "After perusal of the record, we are not prepared to lend any weight to this contention. In parawise comments on the writ petition submitted to the High Court on behalf of the Settlement Department it is categorically stated that the District Magistrate, Karachi was requested to confirm as to whether or not the sale-deed in respect of the disputed property was registered, but he declined to furnish any information in this behalf. In any case, the sale transaction having been confirmed by the Custodian's organization at the highest level; the question, as to whether or not the sale deed was registered pales into insignificance."

5. It was contended by Mr. Aftab Alam Qizalbash that the fact that the suit property was an evacuee property was not brought either before the Division Bench of this Court or before the Full Bench of Hon'ble Supreme Court and, therefore, both these orders were obtained by fraud and misrepresentation. It was further contended by him that the sale deed executed between predecessor- in-interest of defendants No.1 to 6, namely, deceased Mian Muhammad Rashid and its previous owners by sale deed dated 24-7-1948 is hit by section 23 of the Registration Act. It was further argued that the defendants No.1 to 6 who are claiming to be owners of the suit property have not initiated any action against the plaintiff and now they cannot seek dispossession of the plaintiff by virtue of principles of adverse possession. He has attempted to show that now there is a dispute between the legal heirs of Mian Muhammad Rashid; and that the agreement between some of the legal heirs of Mst. Allah Rakhi and defendants No.1 to 6 was obtained by duress and coercion. However, these are not the subject matter of this suit. The plaintiff has filed the instant suit seeking the following reliefs; ("a) Declaration to the effect that the plaintiff is the rightful owner in possession of plot of land in her own right bearing No.GRE-140 (old Survey No.15/8C) situated as Nishter Road, Karachi measuring about 4023 sq. yds. in her own right as uninterrupted and peaceful occupant since 1947. (b) declaration to the effect that late Mian Muhammad Rasheed during his life and the defendant Nos. l to 6 have failed to take any action against the plaintiff for her ejectment from the plot of land bearing No.GRE 140 (old Survey No.15/8C) situated at Nishter Road, Karachi measuring about 4023 sq. yds. right from 1947/24-7-1948 and 15-11-1978 till 27-10-1993 thus have waived their right of taking any action against the plaintiff. (c) Declaration to the effect that since the defendant Nos. l to 6 have failed and waived their right to take any action against the plaintiff for her ejectment from the plot of land bearing No.GRE-140 (old Survey No.15/8C) situated at Nishter Road, Karachi measuring about 4023 sq. yds. are now estopped from taking any action against the plaintiff under the law. (d) Declaration to the effect that since late Mian- Muhammad Rasheed during his life time and the defendants No.1 to 6 have filed and waived their right to take any action against the plaintiff for her ejectment from the plot of land bearing No. GRE-140 (old Survey No.15/8C) situated at Nishter Road, Karachi measuring about 4023 sq.yds. right from 1947/24-7-1948 and 15-11-1978 till 28-10-1993 the plaintiff has become entitled for declaration of adverse possession over the said plot of land. (e) Declaration to the effect that as per KMC record one Praimnath Bhupatral Baveja was the owner of plot of land bearing No.GRE-140 (old Survey No.15/8C) situated at Nishter Road, Karachi admeasuring about 4023 sq.yds. and not Ram Krishna Mission, a registered society. (f) Declaration to the effect that two sub-Registrars have issued two different Search Certificates and further that the fact of registration is still doubtful for the reason that the sale deed was executed on 24-7-1948 but the same alleged to have been registered on 22-11-1949 is barred by section 23 of the Registration Act as such have got no legal value in the eye of law and is liable to be cancelled; (g) Grant injunction restraining the defendant Nos. 1 to 6 and 8 and 9 their agents, contractors, employed and/or any person/persons acting under their behalf from dispossessing the plaintiff from the 'plot of land bearing No.GRE-140 (old Survey No.15/8C) situated at Nishter Road, Karachi, admeasuring about 4023 sq.yds. without due process of law and creating third party interest in the same till final disposal of the suit. (h) Grant the cost of this suit. "

6. The impact of section 28 of the Limitation Act, 1908 and Article 144 of the said Act was considered in the case of Maqbool Ahmed (supra). The question of claim based on the ground of adverse possession in reference to Injunctions of Islam was also considered by the Shariat Appellate Bench of the Supreme Court. It was held by Mr. Justice Muhammad Taqi Usmani while writing the majority view that the provisions of section 28 of the Limitation Act is in conflict to the Injunctions of Holy Qur'an and Sunnah. Through this section it was provided that by efflux of time prescribed by the Limitation Act for instituting a suit for possession of any property stand extinguished. Nevertheless, it is established rule of law that the limitation merely bars the remedy but does not extinguish the title.

7. In view of the findings of a Division Bench in the Constitutional Petition and the observations of the Hon'ble Supreme Court while dismissing appeal (as reproduced above) it was vehemently argued by M. Maroof Ali Khan, Advocate for defendants No.1 to 6 that the suit is also barred by the principle of constructive res judicata. He has placed reliance on the cases Muhammad Khan v. Mst. Akbari and 10 others (1994 CLC 500), Muhammad Ismail v. Province of Punjab (1986 CLC 340), Muhammad Chiraghuddin Bhatti v. Province of West Pakistan & 2 others (1971 SCMR 447) Abdul Majeed and others v. Abdul Ghafoor Khan & others (PLD 1982 SC 146) and Ch. Rahmat Ali v. Jan Muhammad (1983 SCMR 1109). In the case of Ghiraghuddin Bhatti (.supra) ii was held by the Hon'ble Supreme Court of Pakistan that the general principle of res judicata are attracted in a writ proceedings in order to debar the parties tc such proceedings from re-agitating the matter afresh through civil suit. The Petition for Special Leave to Appeal against the decision of a learned Single Judge of the Lahore High Court was dismissed with the observation that the Civil Court could not have by-passed or overridden the orders of the High Court competently made in another jurisdiction on the same subject between the parties. This view was reiterated by the Hon'ble Supreme Court in the case of Abdul Majid (supra). It was held, inter alia, that a decision of the High Court bars re-opening of a case at every forum whether special or general jurisdiction except by way of appeal or review if provided be law. In the case of Ch. Rahmat Ali (supra) appeal by special leave was filed against the Judgment of Lahore High Court when again reference was made to the case of Chiraghuddin Bhatti (supra) as well as to Muhammad Shafiq and another v: Muhammad Bux and another (PLD 1971 Lahore 148). Abdul Ma jid (supra) and Asif Jan Siddiqi v. Government of Sindh (PLD 1983 SC 46). It was held in that case that where the validity of certain orders passed by statutory or qusai judicial authority is questioned through a Constitutional Petition before the High Court but this attack fails and the High Court finds that the order impugned before it are walk and not liable to be interfered with in, subsequent attempt to again impugn the same order`s and to question their validity by filing a civil suit before the original Civil Courts will be barred on the general principle of res judicata.

8. In the case of Asif Jan Siddiqi (PLD 1983 SC 46) it was held, inter alia, that since the prayers in that suit relate to all such questions which were previously decided in Constitutional Petition it will be barred on the principles of res judicata as well as on the principles of Order IX rule 9 C.P.C. The point of section 9 C.P.C. which bars the jurisdiction of a civil Court, expressly or impliedly, was considered in the following manner; "There is further reason for repelling the argument of the learned counsel. Section 9, C.P.C. provides that the civil Court shall have jurisdiction to try all suits of civil nature "excepting suits of which their cognizance is either expressly or impliedly barred". The ratio underlying the decision in the case of Abdul Majid is law declared. It would thus appear that the suit filed by the petitioner in this case would be barred by section 9 C.P.C.

both expressly and impliedly. When looking at various aspects of the question of res judicata, it is expressly barred, because the Supreme Court has declared it as a law. And impliedly, because even if it had not come strictly within the four corners of the facts of the case of Abdul Majid, the ratio of the said case and the principle discussed therein, would impliedly bar the suit."

9. There is another case, namely, Bashir Ahmed v. Abdul Hameed Siddiqi (1984 SCMR 589) when in similar as to present circumstances, a suit was filed by the petitioner claiming ownership on the basis of adverse possession. That was the third time when such litigation was initiated. Firstly, the petitioner was ordered to be ejected being tenant which finding was endorsed by the Supreme Court. Secondly, the petitioner challenged the same judgment through a civil suit. The Supreme Court while dismissing the leave petition was pleased to issue notice to the lawyer who drafted the petitioner's petition upto the level of the Supreme Court. Following is the observations of the Supreme Court in the case of Bashir Ahmed; "We questioned the petitioner himself regarding the grounds on which he wanted to press the suit. His answer is that he had become the owner of the property by virtue of his so-called adverse possession against the predecessors-in-interest of respondent No.1. This issue was finally closed by the decision of the Supreme Court in the first round in C.P. No.481 of 1979. The question of relationship of landlord and tenant between the petitioner and respondent No.1 was finally decided against him by Supreme Court in an other round on 19-6-1983. The petitioner then filed an objection against execution and lost upto the High Court. Thereafter he again has tried to re-open the same question in a civil suit out of which this petition has arisen. It is a classic case of misuse of the procedures made available by the law, of the land for genuinely aggrieved person to seek remedies. There are several recent judgments of this Court whereby such approach to law and Courts has been disapproved. The re-opening of the matter in this case has rightly been held to be barred by law. We accordingly while dismissing this petition issue notice to petitioner for contempt of this Court. Notice shall issue to the lawyers who drafted that petitioner's pleadings upto the Supreme Court in this last round of litigation to show cause as to why they should not be debarzed from legal practice."

10. From the decisions of the Division Bench of this Court as well as from the decision of Hon'ble Supreme Court as reproduced hereinabove, it is quite clear that the issue of transfer of suit property in the name of the predecessors- in-interest of the defendants No.1 to 6 stand concluded. The said transfer was held to be lawful irrespective of any defect in the registration process. This issue which was settled by a fora superior to this Court cannot be called in question through a fresh suit, as observed above. If it is the case of the plaintiff that the said two orders were obtained by fraud. and misrepresentation then the remedy lies under section 12(2) C.P.C: which has to be filed before the forum/Court which has passed the final order and not through a suit. In the facts of this case, I am of the considered view that the principle of constructive res judicata is fully attracted.

11. The relief being sought by the plaintiff vide prayer clause (a) to (d) pertains to several declaration in respect of ownership of suit property, mainly on the grounds of adverse possession which is clearly hit by the rule laid down in the case of Maqbool Ahmed (ibid). This plea may be available to the plaintiff in suit No.686 of 1993 filed by the defendants No.1 to 6 for recovery of physical possession of the suit property but a suit for declaration cannot be maintained on the ground of adverse possession. Such plea, if any, is available to a defendant. It was also contended by Mr. Aftab Alain Qizalbash that the two orders obtained by the defendants No.1 to 6 in Constitutional Petition as well as from the Supreme Court, were, by making misrepresentation and committing fraud. If it is so, then clearly this suit appears to be barred by section 23 (2) or the Code of Civil Procedure which provides that the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction could be challenged by making an application to the Court which passed such judgment or order and not by a separate suit. In so far as prayer (e) is concerned through which the plaintiff is seeking declaration to the effect that one Praimnath Bhupatral Bevaja be declared owner of the suit property and that Ram Krishna was not the owner, it may be started that both these parties are not before this Court. Secondly, the transaction for transfer of the suit property was entered in the year 1948 which fact came into knowledge of plaintiff in the year 1984 when the defendants No.1 to 6 filed a Constitutional Petition but still it was not challenged. The plaintiff is also seeking relief of declaration vide para (f) for cancellation of the sale-deed executed on 24-7-1948. This aspect has been finally settled by the Hon'ble Supreme Court vide its judgment dated 21st April, 1993 in Civil Appeal No.824-K of 1990 where it was held that "the sale transaction having been confirmed by the Custodian's organization at the highest level; the question as to whether or not the sale deed was registered pales into insignificance." Since a definite finding was given by the Hon'ble Supreme Court to the existence of the rights of defendants No.1 to 6 in respect of the validity of transaction in their favour, I am of the considered view that the same could not be challenged by means of suit in these proceedings.

12. This matter could be looked from another angle. Admittedly this is a suit for declaration which has to be governed by Article 120 of the first schedule to the Limitation Act, 1908. For the first time it came to the knowledge of plaintiff in the year 1984 that the defendants No.1 to 6 are claiming that their predecessor-in-interest, namely, Mian Muhammad Rashid was the lawful owner of the suit property but no suit was filed challenging such claim or right. The proceedings filed by the present plaintiff before the Deputy Settlement Commissioner and Member, Land Utilization, Board of Revenue Sindh claiming right in the suit property and for transfer of the same in her name was declared to be illegal and unauthorised by a Division Bench of this Court vide its judgment dated 7-2-1989. In these circumstances, the cause of action supporting this suit arose in the year 1984 which stands terminated in the year 1990 but no suit was filed. If for the sake of arguments, the date is taken up from 7-2-1989 the date when the Constitutional Petition was disposed of, as the last date then the time to file suit for declaration stands terminated on 6-2-1995. This suit was filed on 23rd May, 1996 after a lapse of more than six years.

13. All the aforesaid circumstances leads to the irresistible conclusion that the instant suit is incompetent as it is barred by section 12(2) C.P.C. and Article 120 of the Limitation Act. It is settled law that an incompetent suit should be buried at an initial stage in order to save the defendant from rigors and hardship of an uncalled for litigation. If any reference is needed, see Burmah Eastern Ltd. v. Burmah Eastern Employees Union (PLD 1967 Dacca 1990) which rule was followed by this Court in the case of Pakistan State Oil v. Karachi Electric Supply Corporation (PLD 1991 Karachi 365). Consequently, plaint in the above suit stands rejected. All the six applications have become infructuous as a result of rejection of the plaint which all stand dismissed. H.B.T./A-233./K Plaint rejected.