2018 PLP 36 (CLCN)

MAHMOOD AHMED KHAN, J.

This is a suit for partition, accounts, damages and injunction filed by Siddiqi Masjid against defendants (1) Mst. Zainab (2) Mohammad Aslam (3) Anees (4) Sohail sons of Haji Ibrahim Bharda, (5) Rukhsana, (6) Yasmeen, (7) Rozena, (8) Haseena daughters of Haji Ibrahim Bharda, (9) Owais son of Haji Ibrahim Bharda and (10) Karachi Building Control Authority.

2. The case as made out by the plaintiff in abbreviation but with all the relevant details is that the plaintiff Siddiqi Masjid a registered trust as claimed through its Managing Trustees/Mutawalli vide declaration of Waqf dated 18.06.1988. It is also claimed that the said trust owns plot bearing No.O.T.6/95 and 6/96 with one third share in each plot and the remaining 2/3rd is owned by defendants Nos.1 to

9. The defendant also owned entirely plot No.O.T.6/101, which is adjacent to O.T.6/95 and 96, vide site plan as well as extracts issued by the Property Register of Karachi District and Taluka Karachi in respect of aforesaid six plots as O.T.6/95, 96 as well as O.T.6/101. That the defendants Nos.1 to 9 through defendant No.4 viz. Sohail son of Haji Ibrahim Bharda amalgamated the above three plots for raising multi-storied building thereon and agreed to provide 1/3rd plot for constructing Siddiqui Masjid and on the remaining 2/3rd raise multistoried building in accordance with the approved plan of the defendant No.10. The defendant No.10 approved plan for ground plus 3 stories with two shops only but the defendants Nos.1 to 9 raised ground plus 6 storeys with 33 shops by providing the plaintiff Masjid area of 261.67 square feet on plot No.6/95 and donated 180 square feet on the upper portion of pot No.O.T.6/101. The defendants Nos.1 to 9 failed to provide any space to the plaintiff out of plot Nos.O.T.6/95 or 6/96 but constructed 33 shops on the ground floor and 18 flats on upper floors with one flat on the mezzanine floor renting them out by receiving a sum of Rs.4 crores as goodwill. The defendant No.1 is said to have agreed to provide a passage to Siddiqui Masjid leading to Bombay Bazar but the same has been encroached by raising one shop No.22 thereon and the defendant No.1 also blocked the window measuring 4 x 4 feet on the western side by raising balconies in the building on 1st to 6th floors and as a result of which, tenants of the said floors throw dirty water and other garbage in the open verandah of the plaintiff adjacent to the said windows. The plaintiff claims that defendants Nos.1 to 9 dishonestly declared themselves as sole owners of the subject property to the exclusion of the plaintiff as owners of 1/3rd share before the Excise and Taxation Authority. The plaintiff requested the defendant No.4, attorney of other defendants to remove the encroachment and to pay the plaintiff 1/3rd share of the tenancy rights i.e. Rs. 1,34,00,000/-, which the defendant has failed to honor and as such, plaintiff claims a direction and removal of said encroachment, demolition of un-authorized construction, accounts and profits as claimed to be 1/3rd share in tenancy rights. In the written statement filed by defendants Nos.1 to 9, they admitted to the joint ownership of the plaintiff as 1/3rd in the plot No.O.T.6/95 and 2/3rd in 6/96, however, as to plot No.O.T.6/101, the same was said to be exclusively owned by the said defendants. It is further claimed that plot No. O.T.6/96 is not adjacent to the said plot No. O.T.6/101 and the same being apparent from the site plan filed by the plaintiff. Further the plaintiff's claim was said to be based upon misrepresentation and concealment of facts. The plaintiff is said to be exclusively owner of the plot No.O.T/93 whereon the plaintiff's mosque was original situated. The defendants claim to be exclusive owner of the Plot No. O.T.6/101 and joint owners of plot Nos.O.T.6/95 and O.T.6/96 in the shares of 1/3rd and 2/3rd respectively. It is further stated by the defendants that in the year 1991, the trustee of the plaintiff negotiated with the answering defendants for demolition of the old structure of all the said four plots (i.e. O.T.6/93, 6/95, 6/96 and 6/101) for the purpose to reconstruct a new building and a new mosque on the respective plots with necessary adjustments as per the share of the parties in the relevant plots owned by them jointly and exclusively, as such, agreement dated 11.05.1991 was signed along with sketch dated 07.05.1991 showing adjusted portion from the joint ownership of the said defendants for the smooth running of the plot No.O.T.6/93. The defendants claimed that they have acted in accordance with the said understanding and gave-up to the plaintiff's share in plot No.O.T.6/96 in lieu of obtaining a portion from plot No.O.T.6/101 of the exclusive ownership of the said defendants as it happened to be adjoining to the said Mosque plot for necessity of prayers in the Mosque. It is further claimed that when the said defendants were about to raise the new construction on the plot NO.O.T.6/95, 6/96, 6/101, the said trustee got adjustment from the area of the plot No.O.T.6/95 and 6/101 on the plea of proper Qibla direction of the compact/one-unit Mosque premises. That thereafter Mosque building on plot Nos.O.T.6/93 and extended area 20' x 19' and 38' x 48' on the roof portion of the ground floor of the said plot whereas the answering defendants constructed ground floor and the roof of the said portion on plots Nos.O.T.6/95 and 6/101 as ear-marked for the Mosque at their own cost, in order to facilitate the mosque, the said building construction was completed by both the parties in February to August, 1992. The said defendants claim that they have provided 11 shops covered on the ground floor and under the said roof portion so ear-marked on the plot No.O.T.6/95 and 6/101 for the plaintiff Mosque while the answering defendants have been dealing with the remaining shops and flats of their building on the said plots since August, 1992 with the full knowledge of the plaintiff. It is further claimed by the said defendants that the plaintiff demanded Rs.5,00,000/- from the defendants and their refusal resulted in filing the suit by exploiting the opportunity when the answering defendants asked to get sub-division and re-adjustment of the said plots in the record of City Survey. The said defendants, as such, claim that they have given 83 square yards out of the plots as against the actual entitlement of about 75 square yards. The defendant No.10 in the written statement has raised preliminary objections on the maintainability of the suit being barred by various provisions of law including for want of mandatory notice under section 20-A of S.B.C.O. 1979 and challenged the cause of action/locus standi to file suit against it. It is specifically stated that no amalgamation permission is given in the matter, which is illegal and the additional un-authorized floors are beyond the approval of building plans and such construction as well as encroachment is liable to be demolished. The said defendant has also claimed that no case is made and the suit is liable to be rejected summarily.

3. Issues in the matter were settled on 20.11.1994 as under;

1. Whether the suit is bad in law for want of notice under section 20-A of Sindh Building Control Ordinance, 1979?

2. Whether the plaintiff have no cause of action/locus standi to file the present suit against the defendant No.10?

3. Whether the defendants Nos.1 to 9 through the defendant No.4 lawfully amalgamated 3 plots viz. O.T.6/95, O.T.6/96 and O.T.6/101 for raising multi storied building? If so, what is its effect?

4. Whether the defendants agreed that they will provide 1/3rd portion of plot Nos.O.T.6/95 and O.T.6/96 to the plaintiff in accordance with the share of Siddiqi Masjid in the said plots? If so, whether the defendants have delivered the agreed area to the plaintiff?

5. Whether the plaintiff signed agreement dated 11.5.1991 and sketch dated 07.5.1991? if so, what is the effect?

6. Whether the defendants donated 180 square feet (2) square yards) on the upper portion of plot No.O.T.6/101 to the plaintiff masjid? If so, what is the effect?

7. Whether the entire construction on plots No.O.T.6/95, O.T.6/96 and O.T.6/101 has been carried out by defendants Nos.1 to 9? If so, to what effect?

8. Whether the K.B.C.A. defendant No.10 approved the plan for ground plus 3 stories with 2 shops only but the defendants Nos.1 to 9 raised building ground plus 6 stories with 33 shops on suit plots? If so, what is its effect?

9. Whether the defendant No.1 agreed to provide a passage to the Siddiqi Masjid leading to Bombay Bazar?

10. Whether the defendants Nos. 1 to 9 blocked the window of plaintiff masjid measuring 4 x 4 ft. on the western side by raising balconies on its first and sixth floors? If so, what is its effect?

11. Whether the defendants Nos.1 to 9 posed themselves as the sole owners of property on plot No.O.T.6/95 and O.T.6/96 to the exclusion of the plaintiff masjid? If so, what is its effect?

12. Whether the defendants Nos.1 to 9 sold the tenancy rights of the shops and flats constructed on the suit plot for a sum of Rs.1,34,00,000/- to the exclusion of plaintiff masjid? If so, what is its effect?

13. To what relief or reliefs, if any, the plaintiff masjid is entitled?

4. The evidence of the parties was led by way of commission. PW-1 Haji Essa, the plaintiff's Mutawali was examined as Ex:P-1/1, who produced his affidavit-in-evidence as Ex:P-1/2, photo copy of sketch/plan as Ex:P-1/3, photo stat copy of Indenture of sub-lease as Ex:P-1/4, photo copy of map as Ex:P-1/5 and agreement as Ex:P-1/6. PW-2 Sajid son of Wahid Ali, Clerk in office of Sub-Registrar T-Division, Karachi was examined as Ex:P-2/7, who produced attested copy of the Day Book dated 17.3.1997 as Ex:P 2/7, Ex:P-2/8, Ex:P-2/9 and Ex:P-2/10. The defendants examined DW-1 Sohail Haji Ibrahim, who produced his affidavit-in-evidence as Ex:D-1/2, report of the Official Assignee in original as Ex:D-1/3, photo copy of power of attorney in original as Ex:D-1/4 and sketch signed by him and Haji Issa as Ex:D-1/5.

5. Learned counsel for the plaintiff was absent on the date of hearing without any intimation however as written arguments/synopsis stood field by the contesting parties, having heard the case before, taken notes thereto and even reserved the matter for judgment, notwithstanding the absence of assistance, the matter is being considered on the basis of the record. Learned counsel for the defendant who was present adopted and reiterated the same on his part. It is contended on part of the plaintiff that KBCA has confirm the averments of the plaint by the written statement filed in the matter produced as P/7, the contesting defendants have undertaken to provide a passage to the plaintiff leading to Bombay Bazar but has been encroached by unauthorized construction which stands proved by photograph annexure "G" to the plaint produced as Ex.P/8, the nuisance of dirty water and garbage being thrown in the open verandah of the plaintiff as alleged stands proved by photographs annexure "H" & "I" to the plant produced as Ex.P/9 and P/10. The contention of the defendants dishonestly declaring themselves as sole owners of property on plot Nos.O.T.6/95 and 96 excluding the plaintiff as owners of 1/3 share before Excise and Taxation Authority Government of Sindh by P.T.1. 92-93 stands proved by producing Ex P/11 the annexure "J" to the plaint, the plaintiff has proved the demand made on the contesting defendants for Rs.1,34,00,000/- by Mutawali/Managing Trustee along with the removal of encroachment, the contesting defendants have admitted in the pleadings that 11 shops stood earmarked for the plaintiff whereas the contesting defendants have constructed 33 ships on plot bearing Nos.O.T.6/75 and 6/96 the amount in the tunes of lacks of rupees acquired from flats constructed thereon have been pocketed without sharing the same with the plaintiff proved by Ex.P/12. The defendants have relied upon an agreement dated 11-5-1991 said to be executed by the plaintiff which cannot be considered as the plaintiff has produced P/13 and 14 establishing the said agreement to be forged and fabricated, the defendant while admitting the plaintiff owner of 1/3rd share in the plot Nos.O.T.6/95 and 96 cannot sell shops and flats to various persons as an exclusive owner having executed sale deed registered on 17-3-1998 Ex.P/15 void for lis pendens and also brought up by deposition of Clark of concerned Sub-Registrar recorded as P/W-2 on 5-3-2003. Learned counsel has relied upon 2012 SCMR 983, 2000 SCMR 45, 2000 MLD 495/1581 and sections 52 and 41 of Transfer of Property Act 1882. Whereas it contended on part of the learned counsel for the defendants that the ownership of the plots is an admitted position. The plot No.O.T.6/96 is not adjoining to plot No.O.T.6/101 whereas Plot Nos.6/95 and 6/101 are adjoining to the Plot No.6/93 of the plaintiffs masjid and Plot No.6/96 is not adjoining to Plot No.6/93. The plaintiff relinquished 1/3rd share in plot No.6/96 in lieu of a portion from the Plot No.6/101 of the defendants. Construction stands made by the parties, the plaintiff have constructed 3 storied on the area as agreed by the parties at their own cost and completed by August 1992. The trustee demanded Rs.5,00,000/- which was not entertained as such this suit has been filed although the defendants have given 83 sq yards from the plot Nos.6/95 and 6/101 as against 1/3rd share of 75 sq yards in Plot Nos.95-96. The actualities of the matter also stands verified and its bears from the record during the proceedings of High Court Appeal No.273/1999 from these proceedings filed by the plaintiff on rejection of an application of receiver by the Official Assignee as Commissioner through site inspection along with the assistance of Surveyor of City Survey Officer, reporting with sketch resulting in the said appeal being dismissed. That it is admitted by the plaintiff during cross-examination that the construction of the plaintiff is of ground plus 3 and 85 sq. yards from both plots were provided without any agreement in writing, no agreement of donation by the defendants have been brought on record, the plot No.6/101 is adjacent to mosque plot No.6/93, shops were never agreed to be given to the mosque, number of 33 ships is not confirmed, new building of the mosque on plot No.6/93 is extended to plot No.6/101. Referring to the element of burden of proof as provided under Qanun-e-Shahadat Articles 117, 118 and 129 learned counsel has discussed the various issues relying upon portions of the cross-examination in support of his contentions. Learned counsel has relied upon PLD 1991 Peshawar 29, PLD 1961 Karachi 511 and 2010 SCMR 1630. In short it is contented by the plaintiff that as he and the contesting defendants were having joint ownership in the specific proportion the plaintiff is entitled to benefit from the structure/ construction on the subject plots in the same proportion which is claimed accordingly, the same be provided to the plaintiff, un-authorized construction in violation of approved plan be removed and further the plaintiff is faced by nuisance on part of acts of the contesting defendants. The contenting defendants contend that the plaintiff has been provided the agreed area, rather more than its earlier covered area as such no more entertainment is available. Having heard the learned counsel and gone through the record at this final stage and in the circumstances as preset, I prefer to recast the issues which in my humble understanding cover all the issues framed in the matter for a convenience of presentation and conclude the matter with the fallowing discussion;

1. Whether the suit is maintainable and having cause of action?

2. Whether the actions as present on part of the parties are legally covered, if so what is the effect thereto?

3. Whether the parties had agreed to each other as alleged, if so what order/s are to be passed in the matter?

4. What should the decree be? Issue No.1. Whether the suit is maintainable and having cause of action? The maintainability including cause of action (which has to be in accordance with law) of a civil proceedings is of two folds. The first being based upon law and the later on facts. As to the first element if the case is not maintainable, mostly the same is unable to reach the final stage. Whereas for the second element on the final stage based upon the conclusion of evidence, the maintainability is determined for the application of law to the proved facts (which were not earlier clear on account of evidence not having been concluded) i.e. on merits. In the present matter the maintainability dependent upon merits being discussed under the fallowing issues, only the findings as to cause of action on the basis of merits found legally being not available as such this issue is decided in negative. Issue No.2. Whether the actions as present on part of the parties are legally covered, if so what is the effect thereto? and Issue No.3. Whether the parties had agreed to each other as alleged, if so what order/s are to be passed in the matter? These issues being interdependent are taken up together. It bears from the record that the construction as present as a whole i.e. made by/for the plaintiff as well as the defendant is illegal i.e. without any approved plan. This behavior unfortunately has been present from the start, when the constructed started without a legal amalgamation of the plots and naturally thereafter the structure/s as raised and present are without any building plan, however a further un-fortunate element is that no attempt seems to have been made for regularization also. The understandings which may even be called agreements between the parties for what so ever they were including the terms and conditions as such will always remain so, however they cannot become contracts and no legal sanctity can be granted to them, even otherwise the grievances of the plaintiff are after obtaining benefit and extra land now being treated as donation (quite difficult to comprehend that extra land can be considered donation and not adjustment) where the parties were in knowledge of the actualities during the process/ time of constructions. The grievances of the plaintiff irrespectively on account of never acquiring the status of contract i.e. enforceability cannot be entertained and this issue is decided accordingly as the said suit being not maintainable. Irrespective to the fore given where it is observed that the construction is not in accordance with law action by Defendant No.10 is open and available, however under the principles of natural justice and considering our social norms, it is ordered that where the Defendant No.10 is not restrained to take action in accordance with law, for any such action first consideration be made for the plaintiff and only thereafter the construction of defendants Nos.1 to 9 be put to any disturbance. The conduct of the plaintiff observed also requires that any continuation or these proceedings coming from the plaintiff hereinafter is to be made subject to availability of a resolution of the office bearers duly authorized in this this regard for actual benefit of the plaintiff trust. Issue No.4. What should the decree be? The result of the above discussion is that the suit of the plaintiff fails and is dismissed with cost/s being not maintainable on merits, office to prepare the decree accordingly. MH/S-62/Sindh Suit dismissed.