1994MLD43 (PLP)

Mst. Roshan Ara Begum and Muhammad Yousuf, the applicants herein, had filed a slut for specific performance, declaration and injunction against Waheedullah Khan and Clifton Cantonment Board, Karachi, in respect of a plot bearing No.E-13/8 situated within an area known as Dehli Colony within the limits of Clifton Cantonment Board, Karachi. The soil of this area belongs to the Clifton Cantonment Board but was encroached upon by a number of persons and converted into Katchi Abadi. According to the averments made in the plaint the plot in dispute was occupied by Respondent Waheedullah and subsequently through an agreement executed on 27th August, 1972, half portion of it was relinquished in favour of Muhammad Yousaf, the applicant herein, who subsequently sold it to the other Applicant Mst. Roshan Ara Begum. Mst. Roshan Ara Begum approached the Clifton Cantonment Board to regularise her possession of the plot in dispute and asked for execution of lease but she was informed that opponent Waheedullah had already paid all the charges payable to them and had asked for lease of the said plot in his favour. This necessitated the filing of the suit by the two Applicants herein. The suit was contested by both the opponents. Waheedullah Khan, the first opponent herein, claimed that he had inducted Applicant Muhammad Yousuf as a tenant of the half portion of the premises constructed by him over the said plot. Muhammad Yousuf in turn let it out to Mst. Roshan Ara Begum. He further contended that the document (agreement relinquishing half of the property) allegedly executed on 27-8-1972 was forged document. On the basis of the pleadings of the parties, the trial Judge framed 12 issues and both the parties led evidence, both oral and documentary. The trial Judge by his judgment passed on 6th May, 1984 decreed the suit as prayed. Waheedullah Khan, the defendant in the suit, filed an appeal which came to be heard by the IInd Additional District Judge, Karachi (South), (Civil Appeal No.204 of 1984) and it was decided by him on 20th September, 1988. The Appellate Court accepted the appeal and set aside the judgment and decree of the trial Judge and dismissed the suit. It is against the last judgment/decree that the present application under section 115, Civil Procedure Code has been filed by the two applicants (plaintiffs in the suit). Mr. Azhar Ali Siddiqui, Advocate for the Applicants, raised the following pleas:

(1) That section 272 of the Cantonments Act, 1924 has not application in the case. (2) That at least subsection (4) of section 273 of the Cantonments Act, 1924 did not attract the provision of notice contained in its earlier subsections if the suit was for injunction. According to him the suit was filed for grant of injunction as well and a notice as contemplated by section 273(1) of the Cantonment Act, 1924 will not have application. (3) That the Appellate Court has taken Exh.P/1 whereby Respondent Waheedullah had relinquished his right over the plot in dispute in favour of Muhammad Yousuf, the Applicant No.2 herein, to be a forged document. According to him by the evidence brought on record such conclusion was not possible. Mr. Turab Ahmed, Advocate for respondent No.1, contended that the burden of proving the agreement (Exh.P/1) heavily lay on the Applicant particularly when this document was disowned by the first opponent, which they have failed to do so and that on the basis of visual examination of the alleged signature of Waheedullah Khan on this document and signatures obtained by the trial Judge in Court (Exh.9), the Appellate Court reached the conclusion that agreement Exh.P.1 is a forged document. According to Mr. Turab Ali, this is the sole basis of transfer of property in. favour of Applicant No.2 as claimed by him in the suit. He further pointed out that the Applicants had filed a claim for half of portion of the plot in dispute but on the plain reading of the document it is evident that the entire plot was allegedly transferred to Muhammad Yousuf. Thirdly, he referred to the document Exh.P/1 and pointed out that the executants had in fact mentioned date of execution to be 27th May, 1972 when the attestation of their signatures is done by the Oath Commissioner on 27-8-1972 and the document is also purchased on that date. According to him the facts apparent on the record clearly indicate that the document is a forged one. The Applicant No.2 Muhammad Yousuf, who claims to have obtained the possession of half portion of the plot from Respondent Waheedullah was examined in Court in support of his case. He clearly stated in his examination- in-chief that the plot was in his possession as the tenant of Waheedullah. When he was confronted with the document Exh.P/1, he changed his stand and said that he never paid rent to Waheedullah. When a person admits that he is in possession of the premises in dispute as a tenant he is estopped from denying A the title of the landlord and in order to resile from that stand if the claim is put forth of being purchaser subsequently burden of proving his case heavily lies on him which in the present case Applicants have failed to discharge. I am, however, inclined to accept the contention of Mr. Azhar Ali Siddiqui, Advocate for the Applicants, that the protection granted to the Board or its executive officers under section 272 of the Cantonment Act, 1924 will only be available when some act has been done by the Board or its officers. In B the present case the Clifton Cantonment Board or its officers have yet not taken any decision in determining the entitlement of the contesting parties and leased out the plot to any one of them. The provision contained in section 272 of the Cantonment Board at this stage is not attracted. Similarly, section 273(4) of the Cantonment Act, 1924 provides an exception to the provision contained in section 273(1) of the said Act, when a suit is filed for grant of injunction. The finding of the Appellate Court dismissing the suit for want of notice under section 273 of the said Act is also not correct as no notice is required to be given under section 273(4) of the Cantonments Act, 1924 if the suit is filed for grant of an injunction. The only foundation of the case of Applicants is based on the execution of the deed of relinquishment (Exh.P/1), whereby the Respondent No.1 is said to have relinquished his right to the extent of half portion of the plot in dispute in favour of Applicant No.2 has been found by the Appellate Court to be a forged document. The additional reasons for holding the said document to be a forged document have been mentioned hereinabove. The very basis of the cause goes away for such reasons as I find no merit in this revision application which is dismissed with costs. H.B.T./R-228/K Revision dismissed.