1988 PLP 186 (CLC)

9. The following additional issues were settled‑' "Issue No.6 (a). Whether defendant No.l has acquired title to the property in question by way of adverse possession? If so, what is its effect? Issue No. 6 (b). Whether the suit is barred by limitation as against defendant No.l?" The defendant No.l then examined two more witnesses. Decision with reasons thereof: Issues Nos.l and 3:

10. These two Issues are closely inter‑linked and hence I would deal with them simultaneously. A bare perusal of Deed of Gift dated 15‑3‑1941 Ex.6/1 executed between the Donor, Khan Bahadur Cowasjee Hormusjee Katrak and the Donee, St. John Ambulances Association (Pakistan) Sind Provincial Branch, Karachi (Plaintiffs) clearly indicates that.‑ (1) As per introductory recitals the donor desired to give a suitable plot of land to the donees and to construct suitable buildings thereon for the use of the donees as their headquarters and to transfer both the plot and the buildings constructed thereon by way of gift to the Donees, with the further desire that the same may also be used as headquarters for the Indian Red Cross Society (Sind Provincial Branch) Karachi as long as it is so desired. (2) In terms of the witnessing part, the Donor who was the beneficiary owner of the occupancy rights of a portion of the land with buildings and houses thereon measuring 2,198 sq. yards out of plot bearing Survey No.96 (Houses Nos. 21,21‑A, 21‑C, 21‑D and 21‑E) whole measuring 1 acre and 35 ghuntas, held on Cantonment tenure situated in Depot Lines, Karachi, had assigned and transferred the same to the said Donees, with all rights, privileges and benefits but subject to the terms of the Grant under which the plot was held from the Cantonment Authorities and subject to the Donees paying taxes, rents, cesses etc to hold the same unto the Donees and their assigns absolutely; (3) The Donees accepted the Gift of the Donor and agreed, to abide by the conditions mentioned above; (4) The Donees also covenanted with the Donor that subject to the general control of the Donees over the grounds and buildings (the subject matter of the Gift) shall also be made available for the use of the Sind Provincial Branch of the Indian Red Cross Society.

11. On the above‑noted content of the Deed of Gift it stands conclusively proved that the beneficial ownership of the occupancy rights of the said plot and the buildings thereon stood assigned and. transferred to the Donees singly and absolutely together with all rights, privileges and benefits but subject to the Grant under which the property was held by the Donor. The defendant No.2 vide their advocate's letter dated 6‑6‑1973 in reply to the legal notice of the plaintiffs dated 30‑5‑1973 (Ex.6/17) also admitted that "the Donor being impressed with the useful services of St. John Ambulance A Association donated the property in question to the said St. John Ambulance Association," although they then referred to the above‑noted portions appearing in the fore-goings paragraph at (i) and (iv) above. It is, therefore, held that upon the execution of ‑the above‑noted Deed of Gift dated 15‑3‑1941, the property gifted to the Donees exclusively vested in the Donees. Now what remains to be considered is whether by virtue of the said Deed of Gift the property in question vested absolutely in the plaintiffs or that the gift was made to both the plaintiffs as well as the defendants as has been pleaded by the defendants No.2 in para 2 of their Written Statement. The defendants' case, it may be reiterated, is that the Donor had created rights for the defendants No.2 as well and that the defendant No.2 is the co‑sharer of the property as per declaration in the Deed of Gift. It may also be stated here that the defendant No.l who is the parent body of the defendant No.2, in its written statement has stated:‑ "that a defined and specific portion of the constructed portion of the land i.e. defined portion of the building was set apart by the donor for the use of defendant No.2 and the Gift Deed, the donor's letter and his address presented to Mr. G.F.S. Collins (as he then was) the Revenue Commissioner of Sind as well as the reply to the said documents also make the position clear that legally the Defendant No.2 can make use of the building as long as the said Society desires to do so. Thus legally that position is made clear even by the documents which created the title of the Plaintiff in the suit property. To the extent provided in the above documents as shown above, the Defendant No.2's title was for that purpose created by the gift deed and the allied documents relied upon by the Plaintiff. " It is thus evident that the claim of the defendant No.2 is based on the above‑noted recitals and the covenant made by the plaintiffs in the Deed of Gift.

12. Mr. Iqbal Kazi, learned counsel for the plaintiffs submitted that the plaintiffs as transferee of the property in question acquired an absolute interest therein and the desire of the Donor as mentioned therein in respect of the user of a portion of the plot and the buildings in question by the defendant No.2 as long as they desire to do so was not of legal effect. He submitted that section 11 of the Transfer of Property Act provides a complete answer to this proposition. Before proceeding further I deem it necessary to reproduce section 11 of the Transfer of Property Act, which runs as under:‑ "

11. Where, on a transfer of property, an interest therein is created absolutely in favour of any person, 'but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction. Where any such direction has been made in respect of one piece of immovable property for the purpose of securing the beneficial enjoyment of another piece of such property, nothing in this section shall be deemed to affect any right which the transfer may remedy which he may have in respect of a breach thereof."

13. A bare perusal of the above‑noted provision of the law clearly indicates that it embodies a general rule that restrictions contrary to the interest created by a transfer may be completely ignored. A transferee of property who acquires an absolute interest cannot be restrained in his enjoyments of which by any condition inserted in the Deed of Transfer. The learned counsel for the Plaintiffs also drew my attention to the following authorities:‑ (i) Mahram Das v. Ajudhia (I.L.R.) 8 Allahabad 1886 P.452. In this case 'M', a co‑sharer in a village, transferred to 'A', another co‑sharer, a two annas share, by deed of sale. Upon the same date, 'A' executed an Ikrar‑namah in which he agreed that he would not collect the rents of the two annas transferred to him, that he would not even demand partition of that share, that he would not alienate or mortgage it or otherwise exercise proprietary rights over it. It was further provided that in the event of 'A' committing any breach of covenant the sale should be avoided and the proprietary rights in the two annas share should re‑vest in 'M'.. A suit was subsequently brought by 'M' upon the allegations that in breach of the covenants of the Ikrar‑namah, ' A' had collected the rents of the share; that he sought to obtain partition of the same by certain proceedings in the revenue Court that in consequence of his action in collecting the rents, the plaintiff had been compelled to suit the tenants; that in these suits the tenants submitted receipts given by 'A' on the basis of which the suits were dismissed; and that he had been subjected to various costs and expenses. He, therefore, claimed, by way of damages from 'A; the amount of these costs and expenses, and also to recover certain sums of money realized by 'A' as rents from the tenants and further by reason of the Ikrarnamah, to avoid the sale‑deed which preceded it. The Court held:‑"that provisions of this kind which absolutely debar the person to whom the proprietary rights have passed from exercising these rights, impose conditions which no Court ought to recognize or give effect to; that a covenant in a sale‑deed the effect of which is to disable the vendee from either alienating or enjoying the interest conveyed to him, is not only contrary to public policy, but in violation of the principle of Ss. 10 and 11 of the Transfer of Property Act, and that, therefore, as the agreement on the basis of which the plaintiff asked for relief was one which no Court should assist him in enforcing, the suit must fail." (11) Smt. Lilawati and others v. Firm Ram Dhari Suraj Bhan and another (A.I.R. 1871 Punjab and Haryana 87). The facts of this case were that the plaintiff Smt. Lilawati sold about 100 plots, the object being to start a Mandi there. The defendant purchased plot No.70. Although the sale was absolute, some conditions were introduced, one of these being that a sum of two annas in every hundred rupees would be paid as 'haq‑e‑malkana' to the vendor. Out of this sum of two annas, one anna was to be given to the village panchayat and the remainder one anna was to be retained by the vendor Lilawati. The defendant having refused to comply with the direction for payment of 'Haq‑e‑Malkhana', the plaintiff brought suit for rendition of accounts to enforce the condition. The Court held that:‑ "The property having passed absolutely to the vendee -respondents, any direction in the sale deed which is contrary to the enjoyment of such absolute estate is void and unenforce able." (iii) Ramkishorelal and another v . Kamalnarayan (A .I . R. 1963 S.C. 890) In this case the Court held as under: "Sometimes it happens in the case of documents as regards disposition of properties, whether they are testamentary or non‑testamentary instruments, that there is a clear conflict between what is said in one part of the document and in another. A familiar instance of this is where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion. What is to be done where this happens? It is well settled that in case of such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given." (iv) Kandha Das v. Indumati Devi (A.I.R. 1970 Orissa 215). In this case a settlement deed was executed in favour of the plaintiff wherein it was averred that the property described in the schedule is settled and, a right to the property is created. Therefore a restriction was sought to be imposed on the right to alienate during the life‑time of the guarantor and there was a further averment made that the property would be jointly enjoyed. Relying upon the above decision of Supreme Court reported in A.I.R. 1963 S.C. 890, the Court held:‑ "I would, therefore, hold that in terms of the principle indicated in the aforesaid decision of the Supreme Court, the subsequent clauses are not to be given effect to and title be held to have passed under Ext.3 to the daughter."

14. Since the donor, as already discussed above, had made an absolute transfer of the plot with buildings thereon in favour of the plaintiffs, the subsequent covenants either on the part of Donees with the Donor or desire of the Donor, being in conflict with the provisions of section 11 of the Transfer of Property Act, are void and of no legal effect. Consequently the defendants' version that the premises was gifted to the plaintiffs alongwith the defendant No.2 is unsustainable. The Donor in clear terms gifted the said property exclusively in favour of the plaintiffs and neither recital in the introductory clause nor the covenant in the witnessing part would come in the way of the plaintiffs to claim and enjoy the full proprietary ownership rights in the gifted property. Consequently the above issues are decided accordingly.

15. The Governor‑General in Council as Lessor of the land admeasuring 2198 Sq. yards situated at G.L.R. Survey No.96 in the Cantonment of Karachi through the Military Estates Officer of Sind Circle, Karachi held by lease Ex.6/4 between the Lessor of the one part and the Chairman, St. John Ambulance Association, Sind Provincial Centre, Karachi of the other part leased out for a period of 30 years renewable at option of lessee upto ninety years on the terms embodied therein. Upon the execution of the said indenture of Lease Ex.6/4 the plaintiffs in their own rights became the lessee/ beneficial owner of the occupancy right of the said plot which originally formed part of Survey No.96 measuring one acre and 35 ghuntas and the occupancy rights were held and occupied by them. P.W. 1 Iqbal Qureshi has deposed that the lease was later on renewed. Consequently with the execution of the said Indenture of Lease dated 28‑3‑1984 the plaintiffs have exclusively acquired the rights of the lessor in. the said plot. This Issue is answered accordingly.

16. Issue No.4: In view of the averments made in the Deed of Gift (Ex.6/1) as well as in the minutes of the meeting of the Executive Committee of the plaintiffs held on 13‑2‑1968 (Ex.6/6/1) under the Chairmanship of the Deputy Commissioner, Karachi who was also the Chairman of the defendant No.2 coupled with the deposition of the plaintiffs' witness, Mr. Iqbal Qureshi, I am satisfied that the possession of the defendant No.2 of the premises in question is of permissive nature The legal position has already been discussed while considering the Issues Nos.l and 3 above.

17. Issue No.5: The defendants have not produced any document to prove) that the construction carried out by the defendant No. 2 on the premises was with the permission of the plaintiffs who were, as already held, vested with the right of ownership of the said premises. Since the property was, as already held, wholly and exclusively transferred in favour of the plaintiffs, the construction carried out by defendant No.2 without obtaining the permission of the plaintiffs or any other competent authority leads to an irresistible conclusion that the construction so carried out was unauthorised. Plaintiffs' witness Mr. Iqbal Qureshi has deposed that the defendant No.2 subsequently without obtaining permission from the plaintiffs constructed certain areas marked B" and B3 on the Sketch (Ex.6/3) and they are in occupation of these areas also. He further deposed that another area was also constructed by the defendants and that is shown as B4 in Ex.6/3. This statement of the plaintiffs' witness could not be rebutted in cross‑examination. No evidence, as stated above, has been adduced on behalf of defendant No.2 to prove that the construction raised by it has been raised either with the permission of the plaintiffs or with the permission of any other competent authority. In this view of the matter, there is no escape from the conclusion that the defendant No.2 has raised unauthorised construction of the premises as alleged. This Issue is answered accordingly.

18. Issues Nos. 6 (a) and 6 (b): The reason assigned by the plaintiff impleading the defendant No. l as a party as given in the plaint is that the defendant No.2 is their provincial branch. The plaintiffs have nowhere pleaded in the plaint that the defendant No.l are in possession of the property in question or any portion thereof. No relief whatsoever has been claimed against defendant No.l in the plaint. In their Written Statement defendant No. l have also nowhere mentioned that they are in possession of the property in question or any part thereof. What they have pleaded is elaborately mentioned in para 5 above. Even in the amended written statement filed by defendant No.l no attempt has been made to assert their possession over the property in question either from the execution of the Gift Deed on 15‑3‑1981 or on any other subsequent date so as to establish the plea of adverse possession. The evidence led by the defendant No.l after the amendment of the written statement and the framing of above‑noted two issues does not render any assistance to the case of defendant No.l, in this behalf. D.W. Najmal Hassan has admitted that he had no connection with defendant No.l. He has also admitted that they, namely the defendants, were there in the premises because they were allowed to use the premises. He has also stated that the construction of the hall by the defendants was objected to by the plaintiffs. He further deposed that in 1959 the Headquarter of the defendant No.l was located in the same building but it was shifted later on to another building at Dawood Pota Road, which was constructed by them as their own building. D.W. Sultan Ahmed Ansari, has specifically admitted that the Pakistan Red Cross Society Headquarter are not occupying the disputed premises as owners.

19. For the above reasons I have come to the conclusion that the defendant No.l has failed to establish that they acquired the title to the property in question by way of adverse possession and, consequently, the suit against the defendant No.l cannot be held to be barred by limitation. In the result, both the above Issues are decided against the defendant No.l.

20. Issue No.6. The plaintiffs vide their advocate's notice dated 16‑2‑1973 (Ex.6/12) revoked the leave and licence granted to defendant No.2 to the use of the property in question and consequently called upon them (the defendant No.2 to remove all their goods and other effects etc. within a fortnight from the receipt thereof. Since the defendant No.2 failed to comply therewith, the plaintiffs are entitled to the compensation w.e.f. 16‑3‑1973 upto the date of the filing of suit and for future compensation until the delivery of possession at the rate of Rs.1,000 per month. In view of the findings recorded on the above‑noted Issues and in appreciation of the fact that the leave and licence of defendant No.2 has been duly terminated but they have filed to vacate the premises as required, I hold that they have rendered themselves liable to be evicted from the premises and also to pay compensation for the use and occupation to the plaintiffs a~ stated in the plaint.

21. Issue No.7 The suit is decreed with costs as prayed. A.A./S‑118/K Suit decreed.