P L D 1967 Karachi 829 (PLP)

3. The agreement dated 9th March 1953, however, failed to bring about a final settlement between the plaintiff and Dr. Karimuddin. These persons, therefore, referred the disputes between them to the arbitration of one Mr. Ishaque Khan. The arbitrator made an ex parte award on 9‑5‑1953, which award was however, set aside by this Court by order dated 10‑11‑1953. On remand of the case by the Court, the arbitrator proceeded with arbitration a second time, and gave his award on 15th September 1954, by which he found a sum of Rs. 30,063 (Rupees thirty thousand and sixty‑three) due from Dr. Karimuddin to the plaintiff, and further held that the plaintiff would be entitled to retain the ground and the first floors of the building on Plot No. A.M. 331, Preedy Street, Karachi, until payment in full of his debts. The award, on being filed in the Court, was made rule of tile Court and a decree followed in terms of the award by the Court's order dated 6‑3‑1957.

4. The plaintiff then filed an execution application, being No. 44 of 1961, against the legal representatives of Dr. Karimud din and obtained in these execution proceedings attachment of the construction on Plot No. A.M.

331. This attachment was withdrawn by order dated 11‑2‑1965 on the application of the defendant under Order XXI, rule 58, C. P. C. It was found by the Court that the judgment‑debtors, namely, the legal representatives of Dr. Karimuddin, were not in possession of this property on their own account, and that the defendant Barkat Ali was the owner in possession of the property. It may here be stated that defendants Nos. 2 to 5 in the present suit, who are the legal representatives of Dr. Karimuddin, are in possession of some portions of the building in dispute as tenants of defen dant No.

1. The defendants Nos. 6, 7 and 8 are also tenants in the building.

5. On dismissal of his execution application, the plaintiff brought the present suit under Order XXI, rule 63, C. P. C. to establish, as noted above, his claim to remain in possession of the ground and the first floors of the building in dispute and to recover the amount of decree against Dr. Karimuddin by attachment and sale of this building. The suit is resisted by defendant No. 1 on the ground that he was not a party to the arbitration proceedings between the plaintiff and the late Dr. Karimuddin and the decree which followed the award made in these proceedings and, further, the building belonged to him and not to Dr. Karimuddin or his legal representatives and, therefore, could not be attached or sold in execution of the plaintiff's decree. On the pleadings of the parties, tote following issues were settled by the Court:‑ "(1) Whether the construction in suit was got constructed by Dr. Karimuddin the husband of the defendant No. 2 and the father of defendants Nos. 3, 4 and 5 through plaintiff and Barkat Ali son of Munsif, the defendant No. 1 was bound to pay for it? (2) Is the construction in suit liable to be attached and sold in execution of the decree passed in Suit No. 945 of 1954 by ‑the High Court of West Pakistan, Karachi Bench at Karachi, which is being executed in Execution No. 44 of 1961? (3) Is the defendant No. 1 bound by the decree passed in Suit No. 945 of 1954, Hussain Khan v. Dr. Karimuddin, by the High Court of West Pakistan, Karachi Bench, at Karachi, which is being executed in Execution No. 44 of 1961 ? (4) Was the decree in Suit No. 945 of 1954, obtained by the plaintiff in collusion with Dr. Karimuddin, in order to defraud the defendant No. 1 ? (5) Is the plaintiff entitled to recover rents from the defendants Nos. 6, 7 and 8? (6) Is the suit bad for misjoinder of parties? (7) Is the suit as framed not maintainable? (8) To what relief if any is the plaintiff entitled?" The case came up for hearing before me on 1‑3‑1967, when I directed that issues Nos. 2 and 3 should be tried as preliminary issues. Issue No. 3 does not present any difficulty, because Mr. Mohammad Akram, the learned Advocate for the plaintiff, agreed that the defendant No. 1 was not bound by the decree passed against Dr. Karimuddin do the award made by Mr. Ishaque Khan. The learned Advocate argued issue No. 2 at length. Under this issue, the question for determination is whether the construc tion on Plot A.M. 331, is liable to be attached and sold in execution of the decree in favour of the plaintiff against Dr. Karimuddin. Mr. Mohammad Akram's argument on this issue is two‑fold, that is, (i) since the plaintiff carried out the construction of the building on Plot No. A.M. 331, and invested his own moneys therein, he has a right to proceed against this construction and to recover the amount of his decree by attach ment and sale thereof, and (ii) under the award of Mr. Ishaque Khan, the plaintiff was entitled to retain possession of the ground and the first floors of the construction on this plot.

6. As regards the right to retain possession of the ground and the first floors, it is conceded by Mr. Mohammad Akram that the plaintiff was no longer in possession of these floors. The question of proceeding in execution against the construction on the basis of possession, therefore, does not arise. Even if the plaintiff was in possession of these two floors, he would not, merely on that account, be entitled to execute his decree by sale of the construction, because plot No.. A.M, 331, as well as the construction thereon, belongs to defendant No. 1, who was party neither to the arbitration proceedings, nor to the proceedings in Court on the award made against Dr. Karimuddin. Mr. Mohammad Akram was unable to bring to my notice any rule of law by which a decree‑holder is competent to execute his decree against the property of a person who is neither the legal repre sentatives of the judgment‑debtor, nor was he a party to the suit in which a decree was made: But Mr. Mohammad Akram contended that the plaintiff had a right to execute his decree against the construction which he carried out with his own investments. What I understand the learned Advocate to mean is, that a building contractor has a lien on constructions made by him for the payment of his bills. This kind of lien is not recognized by section 171 of the Contract Act. As stated in Hudson's Building and Engineering Contracts (VIII Edition) at page 382, no lien can arise from a building contract, whether by operation of law or under the terms of the contract. The contract may, however, confer contractual rights over materials or plant having some or all of the characteristics of a lien. But this position does not arise in the present case, because there is no contract between the plaintiff and the defendant No. 1, conferring any such contractual lien over the plaintiff. Even if the plaintiff could at all lay claim to any lien, he cannot do so now, because, he is no longer in possession of the constructions carried out by him: But the plaintiff's learned Advocate insisted that the construction carried out by the plaintiff should be treated as plaintiff's property. I am unable to agree with this view. The rule is that property in materials built into a building ceases to be the property of the contractor and becomes that of the owner. On this question, I would reproduce the following passage from Hudson's Building and Engineering Contracts (VIII Edn., p. 362):‑ "once the builder has axed materials the property in them passes from him, and at least as against him they become the absolute property of his employer, whatever the latter's tenure of or title to the land. The builder has no right to detach them from the soil or building, even though the building owner may himself be entitled to sever them as against some other person, e.g., as tenant's fixtures." I would here like to make reference to two English decisions also, which are Elwes v. Mawe ((1802) 3 East 38) and Wake v. Hall ((1883) 8 A C 195 (H L)). It is observed in the first of these cases that‑ "Whatever is annexed to the reality becomes part of it and the person who was the owner of it when a chattel loses his property in it, which immediately vests in the owner of the soil." But this broad rule was 'qualified to some extent by lord Blackburn in the second of these decisions, in which it was observed that‑ "Whenever the chattels have been annexed to the land for the purpose of the better enjoying of the land itself, the intention trust clearly be presumed to be to annex the property in the chattels to the property in the land, but the nature of annexation may be such as to show that the intention was to annex them only temporarily." It was further observed that‑ "Where a chattel is so annexed that it cannot be removed without great damage to the land, it affords a strong ground for thinking that it was intended to be annexed in perpetuity to the land."

7. It is not the plaintiff's case that the materials used by him in the construction of the ground and the first floors of the building in question were not used with the intention of perma nent annexation to the land, or that these materials can be removed without damage to the building and so it is not possible to hold that the property in the building materials did not pass from the plaintiff to the defendant No. 1 as soon as the ground and the first floors of the building were constructed. The plaintiff, therefore, cannot lay any claim to any property in the ground and the first floors of this building and, consequently, cannot proceed against these floors in execution of the decree which he obtained against the late Dr. Karimuddin. Accordingly, my finding on issue No. 2 is against the plaintiff.

8. In view of these conclusions, I am of the opinion that the present suit cannot be maintained. Hence I would dismiss the suit with costs. K.B.A. Suit dismissed.