2009 PLP 704 (MLD)

GULZAR AHMED, J.

Parties counsel have been heard on the maintainability of the suit. Plaintiff claims ownership of land bearing No.ST-17, Sector IV, Sultanabad Type P.School measuring 2142.22 sq. yards situated in Sultanabad Town Sector II, Hab Dam Road, Karachi (the suit-land) Plaintiff case is that the suit-land belongs to Sultanabad Cooperative Housing Society Ltd. who had initially allotted it to Mst. Sabra Begum who had transferred' it to Mrs. Samina Begum who in turn has transferred it to plaintiff. Plaintiff has taken possession, constructed boundary wall, three rooms and installed a gate on the suit-land. The defendants, treating the plaintiff as encroacher, demolished the boundary wall, whereupon this suit was filed for declaration, perpetual injunction and damages. Learned counsel for the plaintiff has contended that the suit-land belonged to Sultanabad Cooperative Housing Society Ltd. on the basis of three sale deeds, filed with the statement, dated 26-11-2008 and that the plaintiff is a lawful owner and not encroacher of the suit-land. On the other hand, Mr. Ahmed Pirzada, learned counsel for Board of Revenue has contended that claim of plaintiff is altogether false as the sale deeds filed with the statement are not only fraudulent documents but such sale-deeds are of different land and not that of suit-land. He has contended that suit-land is Government land and plaintiff is an encroacher. His arguments were adopted by the learned A.A.-G. Sindh. Mr. Tahwar Ali Khan also made submissions similar to one made by Mr. Ahmed Pirzada. Annexure A-1 to the statement is a sale-deed, dated 28-1-1977 between (1) Ghulam Muhammad, (2) Ghulam Hyder, (3) Imam Bux, (4) Mst. Zaeenab, (5) Ghulam Qadir, (6) Mst. Khair Bibi, (7) Taj Bibi, (8) Mst. Bukhtawar through attorney Khalifa Muhammad Siddiqui and Sultanabad Housing Society Ltd. By this sale-deed sellers seem to have sold to the Society land being Survey Nos. 133, 134, 116, 117, 120, 121, 123 and 113 (areas of these survey numbers are not specified), 6.14 acres from the survey No.128, 0-8-0 share from survey Nos.114, 115, 0-4-5 1/3 share from survey No.111 and 0-1-8 share from survey No.118 in Deh Manghopir, Tappo Manghopir, Taluka and District Karachi for a consideration of Rs.78,96,

460. The second sale-deed is dated 28-1-1976, which is also between the same parties and in respect of the same land as mentioned in the first stated sale-deed and consideration amount is also the same. The copy of third sale-deed is dated 28-1-1977 by which only a sum of Rs.44,72,160 seem to have been acknowledged by the sellers named in it from the said society. Apart from this, nothing seems to have been sold by this sale-deed as no land is mentioned and even the sale-deed does not appear to be a registered document as there is stamping of Registration Office on page 1 only, while the remaining pages have no stamping. All the three sale deeds bear serial number respectively, 793, dated 28-1-1977, 794, dated 8-1-1977 and 769, dated 28-1-1977. Except for the area of survey No.128, which is stated to be comprising of 6.14 acres, area of remaining survey numbers are not mentioned. The sale-deed is altogether silent about the total area of land which is stated to have been sold by three sale deeds. Even copy of Village Form-VII attached with the sale-deed does not mention the area of various survey numbers except 6.14 acres of survey No.128. The plaintiff has filed with the plaint Annexure `I' which is transfer letter of Society in the name of plaintiff, Annexure site-plan, annexure possession letter, annexure `N' agreement of sale between Noor-us-Saba and Mrs. Samina Begum, agreement of sale annexure between Mrs. Samina Begum and the plaintiff. All these documents contain number of suit-land to be ST-17, Sector IV, measuring 2142.22 Sq. Yards Sultanabad Cooperative Housing Society Ltd. Manghpir Road Karachi. The sale-deed claimed by the plaintiff identifies the land by survey numbers while the suit-land claimed by the plaintiff is not identified by survey numbers. Plaintiff's counsel has contended that society has made its own layout plan and assigned its own numbers to the plots. Such fact is neither pleaded in the plaint nor there is anything on the record to substantiate such plea. The sale deeds as stated above are uncertain as regards the area of land and land which they purport to sell, transfer and convey except of one survey No.128, whose area is mentioned as 6.14 acres, no area of any other survey number is mentioned in the sale deeds nor in Form-VII attached with them. Be that as it may, two of the sale deeds are of the same land' between the same parties and for identical consideration but bear different serial numbers and dates while third sale-deed does not mention any land sold by it but only acknowledges payment of some money. Such sale deeds on their very face appear to be totally doubtful documents. Form-VII attached with the plaint does not mention the exact area of survey numbers except for survey No.128 that is 6.14 acres, which is stated to have been owned by the sellers and which is stated to have been sold to the said Society by the above referred sale deeds. The sale deeds will be hit by the provisions of section 29 of the Contract Act which make a contract void which is not capable of being made certain. It is not the case of plaintiff that the land claimed by him is out of survey No.128 which is the only survey number whose area of 6.14 acres is mentioned in the sale deeds. The title of original owner on the basis of Form-VII being uncertain, the said society could not acquire any better title than the one possessed by actual owner through sale deeds. The plaintiff has failed to establish that the said society did in fact own the suit-land and it was capable of transferring the same to the plaintiff. The plaintiff thus, has not been able to make out a cause of action for filing of the suit. The plaint is, therefore, rejected under Order VII, Rule 11, C.P.C. and all the pending applications are also disposed of. After hearing the learned counsel for the parties, short order was passed by which plaint was rejected and all pending applications were disposed of. Above are the reasons for the said short order. M.B.A./A-18/K Plaint rejected.