2019 PLP 45 (CLCN)

MUHAMMAD SALEEM JESSAR, J.

Through this IInd Appeal filed under section 100, C.P.C. the appellant has challenged the judgment dated 22.12.2016 passed by learned VIth Additional District Judge, Karachi South whereby he allowed Civil Appeal No.194/2016 filed by respondent No.1 and set aside the Judgment and Decree dated 22.07.2013 passed by learned IIIrd Senior Civil Judge, Karachi South in Civil Suit No.282 of 2003 whereby the suit filed by respondent No.1 was dismissed. Briefly stated, facts of the case are that respondent No.1 Shujauddin Ahmed filed abovesaid civil suit stating therein that on 06.4.1995 defendant No.1/respondent No.2 herein Zamir Haider Jafri, since deceased, entered into an agreement to sell the apartment No.SF-1/79, Sea View Township, Phase-V Defence Housing Authority, Karachi with him against total sale consideration of Rs.09,30,000/-(Rupees Nine Hundred and Thirty Thousand). The plaintiff/respondent No.1 paid Rs.1,50,000/- in cash as advance/part payment to respondent No.2. Thereafter, the plaintiff paid property tax, house tax, conservancy and water charges till 04.6.1996, issued by the Clifton Cantonment Board on 20.8.1995 and after making the payment of dues, the plaintiff obtained No Demand Certificate from Clifton Cantonment Board. The plaintiff paid another substantial sum of Rs.4.00.000/- to the defendant No.1 Zamir Haider Jafri through bank draft dated 23.7.1995 for which receipt was issued by defendant No.

1. It was also stated by the plaintiff that on search, he came to know that the defendant No.1 had transferred the suit property to his real son i.e. defendant No.2/respondent No.3 herein namely Asghar Haider Jafri on 24.8.1983 by way of Hiba whose name was entered in the relevant record of DHA. He further stated that he brought such fact to the notice of defendant No.1, who informed to the plaintiff that the transfer of the suit property by way of Hiba was nothing but a benami transaction to avoid taxes and that defendant No.1 had obtained General Power of Attorney from defendant No.2 Asghar Haider Jafri at the very initial stage which whereby defendant No.1 was duly authorized to sell, exchange, mortgage, alienate and/or to disposed of the subject property. He further stated that in order to substantiate such plea, defendant No.1 handed over to the plaintiff original General Power of Attorney registered with Sub-Registrar 'T' Division-II, Karachi. Defendant No.1 also executed an Irrevocable Special Power of Sub-Attorney in favour of the plaintiff duly registered with the Joint Sub-Registrar, Islamabad. Defendant No.1 also issued a letter to Mrs. Zeenat Siddiqui, the tenant in the suit property, informing her that the plaintiff was the landlord of the said apartment and also handed over advance cheque of Rs.36,000/- dated 10.7.1995 issued by the said Mrs. Zeenat Siddiqui to the plaintiff advising him to get the cheque issued in plaintiff's name. The plaintiff came to know that Mrs. Zeenat Ahmed Siddiqui had died and after her death possession of the suit property was with her daughter namely Mrs. Nagma Hillfram, therefore, he served a legal notice upon Mrs. Nagma Hillfram for recovery of arrears of the rent, who through her advocate informed the plaintiff that she had handed over possession of the suit property to defendant No.1, Zamir Haider Jafri. The plaintiff through publication made in Daily `Jang' and `Dawn' invited objections from public to the transfer of the subject property in his name. Thereafter, the plaintiff came to know that defendant No.1 was trying to sell the suit property to some other person and for that purpose he was approaching local estate agents and he was avoiding to transfer the suit property in the name of the plaintiff after receipt of balance sale consideration, therefore, he served legal notice dated 13.1.1996 upon defendant No.1. The plaintiff further stated that he came to know that defendant No.5/appellant herein namely, Farrukh Hassan had illegally purchased and acquired the suit property vide sale deed dated 04.10.2000 despite existence of status quo order having been passed by this Court in the suit filed by the plaintiff, therefore, he filed an application under Order I, Rule 10, C.P.C. which was granted and Farrukh Hasan was impleaded as defendant No.5 in the suit. The plaintiff claimed that defendant No.1/appellant herein Farrukh Hasan was illegally intending to sell the suit property to someone else as per notice published in daily Dawn dated 27.4.2003 without having any lawful title, right and authority in the suit property. Consequent upon issuance of summons to the defendants, defendants Nos.2, 4 and 5 filed separate written statements, however defence of defendant No.1 was struck off whereas defendant No.3 i.e.. Sub-Registrar 'T' Division was declared ex parte vide dated 01.9.1996. Defendant No. 2 Asghar Haider Jafri in his written statement denied the allegations levelled by the plaintiff/respondent No.1 herein. He stated that he is son of defendant No.1, who never entered into any sale agreement in respect of suit property with the plaintiff. He has further stated that receipt for payment was allegedly issued in the name of defendant No. 1, who was not the owner of the suit property as the same had been transferred in the name of defendant No.2 on 24.8.1983 by way of Hiba. According to him, possession of suit property was with his sister since 1995, therefore, the plaintiff was not entitled to the relief of specific performance of the agreement. He prayed for dismissal of suit. Defendant No.4, DHA, stated in the written statement that as per Defence Housing Authority record, the suit apartment was transferred through Hiba by defendant No.1 Zamir Haider Jafri in favour of defendant No.2 Asghar Haider Jafri. Thereafter, 'B' Lease of suit property was registered in the name of defendant No.2 through his attorney, the defendant No.1. It was further that defendant No.4 was a Performa party in the suit. Defendant No.5, Farrukh Hassan, who has filed instant appeal, stated in his written statement that the status quo order passed by the Honourable High Court of Sindh at Karachi, if any, was not in his knowledge and he had lawfully purchased the suit property on 23.9.2000 from defendant No.2 Asghar Haider Jafri through his attorney Mrs. Sumaira Kazmi wife of Muhammad Akbar, therefore, he is lawful and bona fide owner of the subject property and is competent to sell the same. He further stated that plaintiff has no cause of action to file above suit against defendant No.5/appellant. According to him, the suit was not maintainable and liable to be dismissed. After framing of issues, recording of evidence and hearing arguments of learned counsel for the parties, the trial Court dismissed the suit vide judgment and decree dated 22.07.2013. The said judgment and decree were challenged by respondent No.1 in Civil Appeal No.194/2016 which was allowed vide impugned judgment dated 22.12.2016 and the case was remanded to the trial Court for fresh decision in accordance with the law after hearing the parties. Appellant has assailed the said judgment by filing instant Second Appeal. I have heard learned counsel for the parties and perused the material available on the record. Learned counsel for the appellant contended that the impugned judgment passed by First Appellant Court is bad in law and is based on presumptions and non-appreciation of documentary as well as oral evidence available on the record. He further contended that the Appellate Court while passing the impugned judgment has erred in appreciating the pleadings of the parties and has passed the judgment in a hasty and mechanical manner without taking into consideration the principles laid down by the superior courts on the relevant points. He contended that the judgment and decree passed by the trial Court were just, proper and in accordance with the law and based on proper appreciation of the evidence adduced by the parties and the material/documents brought on the record. According to him, respondent No.2 Zamir Haider Jafri, since deceased, had gifted the property in favour of his son i.e. respondent No.3 Asghar Haider Jafri through a registered 'Hiba' therefore, respondent No.2 ceased to be the owner of the property in question and he could not sell the subject property to respondent No.1 which was not owned by him. He further contended that the Power of Attorney dated 15.8.1983 allegedly executed by respondent No.3 in favour of his father respondent No.2 was irrelevant because the sale agreement dated 16.4.1995 allegedly entered into by respondent No.2 with respondent No.1 was not executed by respondent No.2 as attorney of respondent No.3 but it was in the capacity as owner of the suit property, whereas he already ceased to be its owner consequent upon the property having been gifted by him to respondent No.3 Asghar Hussain Jafri. He further contended that the property in question was sold by respondent No.3 to the appellant through his real sister and attorney which fact has also been mentioned in the sale deed dated 23.9.2000. He further contended that the appellate court has remanded the case without properly examining the material available on record and without applying its judicious mind to the factual and legal aspects of the case. He further contended that the stay order was not in the knowledge of the appellant and even otherwise a transaction would not become invalid only because it took place subsequent to such order. According to him, the case can only be remanded on the grounds as enumerated under Order XLI, Rules 23, 24 and 25 C.P.C. He prayed for allowing instant appeal, setting aside the impugned judgment and maintaining the Judgment and Decree passed by the trial Court. In support of his contentions he relied upon PLD 2011 SC 241, 2002 SCMR 1089, PLD 2004 SC 10, 1993 SCMR 2016, PLD 1972 SC 25, 2008 SCMR 352 and 1999 YLR

910. Conversely, learned counsel appearing for respondent No.1, while supporting the impugned judgment passed by the Appellate Court, contended that the same has been passed in accordance with the law after taking into consideration each and every point involved in the case. He contended that the Second Appeal is not maintainable and it cannot be filed to findings of fact given by the lower courts. According to him, the respondent No.1 had purchased the property in question through a valid sale agreement and had made payment of the major portion of the sale consideration as such he was entitled to the relief of specific performance. He further contended that the sale deed in favour of appellant Farrukh Hassan was executed during the existence of status-quo order which is not permissible under the law. He prayed for dismissal of the appeal and maintaining the impugned judgments. In support of his contentions he relied upon 1992 SCMR 2298, 1982 SCMR 286, 1980 CLC 458, PLD 1959 Dacca 337, PLD 2002 SC 303, 2002 MLD 1002, 2004 YLR 1882, 1990 CLC 1014, PLD 1956 (W.P.) Lahore 454, PLD 1988 SC 734, 2017 YLR 2173 [Lahore], PLD 2004 SC 465, 1985 SCMR 1496 and 1973 SCMR

225. In the first instance, I would like to deal with the legal objection regarding maintainability of instant Second Appeal. There is no cavil to the legal proposition normally this Court would not interfere into the findings of two courts below in the Second Appeal, however in exceptional cases this Court under section 100, C.P.C. has the powers to interfere even with the concurrent findings of the two courts below. In the case of Alamdar Hussain v. Nazir Hussain and others reported in 2004 SCMR 595, it was held by Honourable Supreme Court as under:- "Needless to mention here that there was no absolute rule that the concurrent judgments of the subordinate Court could never be interfered with by the High Court even if the said judgments were found to be based on gross misreading, non-reading or misconception of the evidence available on record. Laying down such a law would have the effect of setting the provisions of section 100 and section 115 of the C.P.C. at naught." If in exceptional cases even concurrent findings could be interfered into by this Court in the Second Appeal, then instant case is even on better footing where there are no concurrent findings, rather the findings of the trial Court are in favour of present appellant. In Mst. Robeena Khatoon and others v. M.Y. Butt and another reported in 2010 YLR 3208 this Court held as under:- "The High Court in second appeal can interfere on the ground of error of law or an error in the procedure. The High Court can also interfere, if the decision is contrary to law and contrary to usage being force of law. Apparently by not discussing the relevant provisions of the schedule of the Limitation Act and by not determining the date from which the limitation starts running both the Courts below have committed error in law and have failed to exercise the jurisdiction vested under them properly and in accordance with law." Reference in this respect can also be made to the judgments reported as Khushi Mohammad v. Liaquat Ali (PLD 2002 SC 581) and Iftikhar v. Capt. Khadim Hussain (PLD 2002 SC 607). In view of the facts to follow, abiding by the principle laid down by Superior Courts, as quoted above I am of the definite view that the instant second appeal against the findings of the First Appellate Court is maintainable. Now coming to the merits of the instant case, it appears that the appellate court has based the impugned remand order on the following grounds: (i) That in the registered 'B' Lease the date of Power of Attorney on the basis of which respondent Zamir Jafri acted as attorney of respondent Asghar Jafri has not been mentioned; (ii) That the trial court has failed to discuss the authenticity of the said `B' Lease; (iii) That while deciding Issue No.4 the trial Court has wrongly held that the Power of Attorney Ex.P/6 produced by plaintiff/ respondent Shujauddin does not bear the signatures of the witnesses and that the stamp paper has not been signed by respondents Nos.1 and 2; (iv) That respondent No.3 Asghar Jafri has transferred the property in question through her sister namely Sumaira Kazmi in favour of Appellant Farrukh Hassan during the existence of status quo order passed by this Court on 15.5.2000. Furthermore no gift deed etc. in favour of said Sumaira Kazmi has been produced. As regards the first two grounds, it may be observed that merely non-mentioning of the date of Power of Attorney on the basis of which respondent Zamir Haider Jafri transferred the property in question in favour of respondent Asghar Haider Jafri, would not make the said 'B' Lease as illegal and unlawful unless and until on the basis of some tangible material such alleged illegality of the said 'B' Lease is proved. Even otherwise, at no point of time, neither during the proceedings before the trial Court, or in the First Civil Appeal the plaintiff/respondent No.1 Shujauddin has ever challenged the legality or authenticity of the said 'B' Lease, nor even any issue in this respect was framed by the trial Court. Now, when at no stage the legality and authenticity of the said 'B' Lease has been called in question by any party and when no such issue was framed, even proposed, then the trial Court was under no legal obligation to discuss such issue and gives its finding thereon. In the circumstances, the appellate court cannot remand the matter on the basis of such fact which never finds mention in the pleadings of the parties. As regards the third ground, in fact the said Power of Attorney, according to the plaintiff/respondent No.1 Shujauddin, was executed by respondent Ashgar Haider Jafri in favour of his father Zamir Haider Jafri, since deceased, and on the basis of the said Power of Attorney he sold out the property in question to the plaintiff/respondent No.1. In my view the said Power of Attorney has no much relevancy to the decision of the issues involved in the instance case, for the reason that the perusal of the Agreement to Sell dated 16th April, 1995 whereby, according to the plaintiff/respondent No.1, respondent Zamir Haider Jafri sold out the property in question to the plaintiff, shows that the said alleged agreement was executed by respondent Zamir Haider Jafri not in the capacity as attorney of respondent Asghar Haider Jafri but in his own capacity as owner of the subject property. It is to be noted that admittedly respondent Zamir Haider Jafri had gifted the property in favour of respondent Asghar Haider Jafri and consequently the property was transferred in the latter's favour in the relevant record and by all means he became the absolute and exclusive owner of the property in question and such fact has even not been disputed by the plaintiff/respondent himself that is why he is laying emphasis upon the General Power of Attorney allegedly executed by respondent Asghar in favour of his father Zamir Haider Jafri. Now, when after execution of 'B' Lease respondent Asghar Haider Jafri became exclusive owner of the subject property, respondent Zamir Haider Jafri ceased to be the owner of the subject property, then as to how he could sell the property to the plaintiff/respondent No.1 in the capacity as owner of the property. Although the fact regarding such transaction was also denied by late Zamir Haider Jafri that is why legal notice was issued by the plaintiff/respondent to him, notwithstanding that even if it is presumed that such sale transaction would have taken place, the same was certainly totally illegal and unlawful, rather ab initio void because a person who was not the owner of a property, was absolutely incompetent and unauthorized to sell out such property. As regards the fourth ground, from the perusal of the record it seems that on 15.05.2000 when the instant suit was pending before this Court, following order was passed on the application (C.M.A. 3311/2000) moved by the plaintiff/respondent No.1 under Order XXXIX, Rules 1 and 2, C.P.C.: "

2. Notice. In the meantime status-quo." From the wordings of the aforesaid order, particularly the word, "meantime", it is obvious that the status-quo order was ad-interim in nature and it was not confirmed. Thereafter, the matter was adjourned to 14.12.2000 and then to 19.12.2000. On both these dates the aforesaid injunction application, C.M.A. 3311/2000, was not fixed before this Court. However, it was fixed on the next date i.e. 07.5.2001 i.e. after about one year of the passing of ad-interim status quo order but the order sheet of said date too indicates that so far as the said application is concerned, the case was fixed, "For order as to non prosecution of C.M.A. 3311/2000, cost not paid, notice not issued." Again on 22.8.2001 the said application was fixed with the same endorsement of the office. In this view of the matter, it is crystal clear that the aforesaid interim order dated 15.5.2000 was not extended on the subsequent dates, therefore legally speaking the said order ceased to exist being totally of interim nature. In the circumstances, learned Appellate Court erred in holding, that the sale transaction between respondent Ashgar Haider Jafri through her sister and appellant Farrukh Hassan was effected during the existence of status-quo order, thus the same was illegal and unlawful. However, order sheet dated 28.01.2002 shows that on the said date an order was passed which is also being relied upon vehemently by the plaintiff/respondent. The contents of said order are reproduced as under: "A statement is made at the bar by the counsel for defendant No.2 that the property has been gifted to the sister of defendant No.2. According to learned counsel for plaintiff this is in violation of the Court's order of status-quo. Apparently the original title papers are also with the Nazir of this Court. Let the defendant No.2 produce the document in connection with the gift. This exercise is to be completed within four weeks. In the meantime the defendants Nos.3 and 4 are put on notice that they should not register any documents in connection with the suit property without any direction from this Court. In case if any such registration has taken place then a report to this effect be filed before this Court. Adjourned to 4-3-2002." (Emphasis is supplied for the sake of convenience) Aforesaid order was passed on 28th January, 2002. From the wordings of the said order it is clear that the defendants Nos.3 and 4 i.e. Sub-Registrar 'T' Division and DHA were directed that in case the registration has not already taken place, they would not register any document in respect of the suit property. However, it is an admitted position that the registration of sale deed being Registration No.3399, in favour of defendant No.5/appellant Farrukh Hassan had taken place on 4th October, 2000 as is evident from Ex.P/10 i.e. Search Certificate produced by the plaintiff/respondent No.1 himself. In this view of the matter, the aforesaid order dated 28th January, 2002 passed by this Court also cannot be relied upon in order to support plaintiff's plea that the aforesaid sale transaction in favour of appellant Farrukh Hassan had taken in violation of any restraint/injunction order. As regards non-production of any gift deed etc. it may be observed that the plaintiff/respondent No.1 himself produced aforesaid Ex.P/10 which, inter alia, mentions that the said deed was executed by respondent Asghar Haider Jafri through her sister and attorney Sumera Kazmi in favour of appellant Farrukh Hassan. It would also be pertinent to point out at this stage that the claim of the plaintiff/respondent No.1 is based on a sale agreement. On the other hand, the claims of respondent No.3 Asghar Haider Jafri and present appellant Farrukh Hussain are based on registered documents viz. 'B' Lease and Sale Deed respectively. It is now well settled that an unregistered sale agreement does not confer any ownership right and it could not be given preference over a registered document. In the case of Mohammad Yousuf v. Munawar Hussain and 5 others reported in 2000 SCMR 204, Honourable Supreme Court held as under: "The agreement to sell by itself cannot confer any title on the Vendee because the same is not a title deed and such document does not confer any propriety right, and thus, it is obvious that the declaratory decree as envisaged by section 42 of the Specific Relief Act, cannot be awarded because declaration can only be given in respect of a legal right or character." In another case reported as Mst. Naseem v. Mst. Shehla A. Durrani and 2 others (2010 CLC 1861) Peshawar High Court held as under: "The registered deed under the law carries validity of correctness and a strong evidence is required to cast aspersion on its genuineness. Such document is not only binding on the parties in the document but equally is applicable to a third party." Similar view was also taken by this Court in the cases reported as Wazir Khoso v. Province of Sindh thorough Secretary Revenue, Government of Sindh and 7 others (PLD 2005 Karachi 43) and Asif v. Mst. Sangeeta and 3 others (2013 CLC 1597). To sum-up, it seems that the sale transaction between the plaintiff/respondent No.1 Shujauddin and the late father of respondent No.3 namely Zamir Haider Jafri has not been denied even by respondent No.3 Asghar Haider Jafri as is evident from the contents of para 5 of his written statement, "The Defendant No.1 relying on the said Col. Fazli agreed to sell the property subject to the approval of the answering Defendant, who at the material time was the exclusive owner of the suit property". However, the plea taken by respondent Asghar Haider Jafri is that as he was the exclusive owner of the subject property and his father ceased to be the owner of the property after the execution of 'B' Lease in his favour, therefore under the law he was not competent and authorized to sell out the property to the plaintiff and such sale transaction was void ab initio. I am also of the same view, particularly for the reason that even in the sale agreement allegedly entered into between late Zamir Haider Jafri and the plaintiff Shujauddin, the said Zamir Haider Jafri did not act as an attorney of respondent Asghar Haider Jafri but he executed the said sale agreement in the capacity of owner of the subject property which he was not. Yet there is another point. From the perusal of the Agreement to Sell dated 16th April, 1995 relied upon by the plaintiff Shujauddin it seems that clause 7 of the said agreement provides as under: "If the VENDOR does not honour this Sale Agreement he will pay the Vendee a sum of Rs.3,00,000.00 (Rupees Three lac only) as compensation. This sum of Rs. three lacs includes the advance of Rs.1,50,000.00 (Rupees one lac fifty thousand only) paid by the VENDEE to the VENDOR." In view of above, in case deceased Zamir Haider Jafri did not fulfill his commitment as stipulated in the sale agreement, the plaintiff had been provided remedy to claim compensation, as agreed by himself, but he cannot penalize respondent Asghar Haider Jafri for the alleged misdeeds and/or contraventions of the terms and conditions of the sale agreement committed by deceased Zamir Haider Jafri. For the above reasons instant Second Appeal is allowed and the impugned judgment dated 22.12.2016 passed by learned VIth Additional District Judge, Karachi South passed in Civil Appeal No.194/2016 filed by respondent No.1 is set aside and the Judgment and Decree 22.07.2013 passed by learned IIIrd Senior Civil Judge, Karachi South in Civil Suit No.282 of 2003 filed by respondent No.1 Shujauddin are maintained. However, the plaintiff/respondent No.1 Shujauddin shall be at liberty to pursue his remedy as admissible under the law against deceased respondent Zamir Haider Jafri through his legal heirs for the recovery of the amounts paid by him pursuant to Agreement to Sell dated 16th April, 1995, so also the compensation amount as stipulated in clause 7 of the said Agreement. Instant Second Appeal stands disposed of accordingly. There will be no order as to costs. MH/F-8/Sindh IInd Appeal allowed.