Recovery of possession

2024 CLC 682 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 25Scheme for Management and Disposal of Urban Evacuee Trust Properties, 1977, Chapter VI-A, Cl. 18-A(5)Constitution of Pakistan, Art. 199Constitutional petitionEvacuee property, status ofRecovery of possessionBuilding structureEntitlement structure vests in the Board

Petitioners after remaining unsuccessful till Supreme Court assailed act of recovery of possession of "subject property" by respondent Board

Validity

Petitioners could not take refuge under the doctrine of election to protect their possession, which was not only unauthorized but illegal

Petitioners being not entitled for superstructure built upon "subject property", as in terms of Cl. 18-A(5) Chapter VI-A of Scheme for Management and Disposal of Urban Evacuee Trust Properties, 1977, structure raised on evacuee trust property vested in respondent Board

Petitioners after being unsuccessful in first round arising from civil suit had devised mechanism to protect their illegal and unauthorized possession upon "subject property" by filing a Constitutional petition

Petitioners did not have any right in "subject property" and filing of Constitutional petition was nothing but to thwart and circumvent process of law

Constitutional jurisdiction was not meant to provide aid to a party, who was adamant to grab property of State

On account of unauthorized possession, petitioners had already earned a lot of money through rent received from tenants of shops constructed on "subject property"

High Court declined to interfere in matter as it was not only frivolous but vexatious

Constitutional petition was dismissed, in circumstances.

2022 MLD 645 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.8Recovery of possessionProperty sold more than share in joint khata

Respondents instituted suit for declaration with prayer to declare the impugned sale deed as illegal based on fraud etc. since seller had lesser share in joint khata, which was decreed by trial Court

Predecessor-in-interest of petitioners filed separate suit seeking possession of suit property on basis of impugned sale deed being prior in time, which was dismissed

Petitioners' appeals and subsequent revision petitions were dismissed either

Validity

Respondents' sale deed was not challenged rather the possession was prayed for in the petitioners' suit

Record showed the suit property falling in joint khata

Co-sharer was not entitled to alienate more than his share in the joint holding

Sale deeds of two vendees by two different vendors in a joint khata to the extent of shares of their respective vendors were not necessarily/invariably mutually exclusive rather the vendees step into the shoes of their vendors respectively and become co-sharers

Title to the extent of land under entitlement of the purported vendees of the predecessor-in-interest of the petitioners was under dark clouds, which the beneficiary was bound to prove through positive evidence

Petitioners as legal heirs could resort to legal course only against such respondent or her attorney who executed the petitioners' sale deed even though she had title in property lesser than that mentioned in sale deed

No cloud as to the ownership and possession of the respondents in the said khata

Impugned sale deed and that of respondents were executed by two different vendees in a joint khata, though mentioning same khasra numbers and such fact alone could not render both the sale deeds mutually destructive as the petitioners and respondents had been considering it

Any transfer out of joint khata even with regard to a specific khasra numbers was always subject to final adjustment by way of partition

Impugned sale deed had been thrown under the dust of illegality without considering/determining the issue to the extent of the admitted legal share of vendee of the predecessor-in-interest of the petitioners

Revision petition was allowed and concurrent findings to the extent of declaring impugned sale deed void, bogus and fraudulent were set aside with clarification that the impugned sale deed would not operate against the right of the respondents qua the suit property by virtue of the respondents' sale deed.

2020 YLR 578 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 2, 3 & 4Notification SRO No. 141(KE)/2005 dated 14-11-2005Recovery of possessionMagistrate, powers ofQuestion of jurisdiction

Petitioners were lessees on land owned by Karachi Port Trust and were aggrieved of order passed by Trial Court and Lower Appellate Court dispossessing them

Plea raised by petitioners was that judicial magistrate was not competent to try case in question

Validity

Question of jurisdiction could be raised at any stage which went to roots to case

Such was not a mere technicality but jurisdiction to try complaint was conferred to authorized officer by law and under notification issued by Federal Government specifically to exercise all powers vested in authorized officer under Port Authorities Lands and Buildings (Recovery of Possession) Ordinance, 1962

Magistrate and Trial Court had no jurisdiction to try complaints filed by Karachi Port Trust and order passed by them were coram non judice

Initial orders were without jurisdiction therefore, appellate court judgment affirming such orders was also without jurisdiction and needed to be corrected

Objection to jurisdiction could not be construed or regarded as mere technicality but in pith and substance it had much significance

No court could assume jurisdiction not provided under law

High Court set aside orders passed by Trial Court and Lower Appellate Court and remanded matter for de novo trial by authorized officer

Constitutional petition was allowed accordingly.

2018 PLD 431 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 105 & 107Sindh Rented Premises Ordinance (XVII of 1979), S.15Lease and rented premisesRecovery of possessionDistinction

Difference between Transfer of Property Act, 1882, and Sindh Rented Premises Ordinance, 1979 is the procedure of recovering possession

In the matter of lease, period of lease is necessary because during continuance of lease the transferor or owner cannot recover possession of premises except under a decree of Court while under the Ordinance, landlord becomes entitled to recover possession only on fulfilment of conditions laid down in relevant sections of the Ordinance even during the period of tenancy

Under a leasehold right, lessee enjoys right of ownership for a certain period and the same is extendable even after expiry of the period of lease.

2017 PLD 622 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 42 & 54Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2Suit for declaration and injunctionInterim injunction, grant ofRecovery of possessionVehicle in question was detained by Customs authorities alleging the same to be a smuggled vehicle

Plaintiff sought recovery of possession of vehicle on the plea that he was bona fide purchaser of vehicle which was sold by Customs authorities in auction

Validity

No element of mens rea existed on the part of plaintiff who purchased the vehicle against valuable consideration after due verification of title of its former owner

No reasonable grounds existed to postulate and predicate that plaintiff was in any way concerned in carrying, removing, depositing, harbouring, keeping or concealing or in any manner dealing with smuggled goods or any goods with respect to which there could be reasonable suspicion that they were smuggled goods

Judicial discretion could be exercised for release of vehicle on Superdari/surety

If a court could grant final relief, it also possessed inherent jurisdiction to grant temporary relief pending before it

High Court directed the authorities to hand over possession of vehicle in question to plaintiff subject to final outcome of adjudication proceedings finalized by Customs authorities

Application was allowed in circumstances.

2013 YLR 2714 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 2(i) & 13(2)Specific Relief Act (I of 1877), S.42Civil Procedure Code (V of 1908), O.I, R.10Constitution of Pakistan, Art.199Constitutional petitionEjectment of tenantRecovery of possessionDenial of relationship as tenantApplication by subsequent purchaser to be impleaded as party in ejectment proceedingsRent Controller accepted application of subsequent purchaser and impleaded him as partyEffect

If a tenant denied the relationship of the landlord and tenant he should first vacate the premises in his possession and then contest his proprietary rights

Tenant remained a tenant, he could not prolong his occupation by exercising his right of being subsequent purchaser unless so held by the court of competent jurisdiction

Tenant had no status to justify his possession and if he denied the relationship of landlord and tenant he would be an illegal occupant

Ejectment proceedings were between land owner and tenant and entry or interference by the third party was to be jealously guarded

Constitutional petition was allowed

Application filed by the subsequent purchaser was dismissed.

2013 YLR 1881 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.17Specific Relief Act (I of 1877), S.42Civil Procedure Code (V of 1908), O.I, R.10Constitution of Pakistan, Art.199Constitutional petitionEviction of tenantRecovery of possessionDenial of relationship as tenantApplication by subsequent purchaser to be impleaded as party in eviction proceedingsRent Controller accepted application of subsequent purchaser and impleaded him as partyEffect

If a tenant denied the relationship of the landlord and tenant he should first vacate the premises in his possession and then contest his proprietary rights

Tenant remained a tenant, he could not prolong his occupation by exercising his right of being subsequent purchaser unless so held by the court of competent jurisdiction

Tenant had no status to justify his possession and if he denied the relationship of landlord and tenant he would be an illegal occupant

Ejectment proceedings were between land owner and tenant and entry or interference by the third party was to be jealously guarded

Constitutional petition was allowed

Application filed by the subsequent purchaser was dismissed.

2012 PLD 390 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 7Recovery of possessionReceiver/custodian, appointment ofScope

Such appointment against property in question is not tenable or sustainable under law.

2010 YLR 2836 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.8Recovery of possessionDisputed titleFailure to seek declarationConcurrent findings of fact by the Courts belowPlaintiff sought recovery of possession of roof of building in question without seeking declaration of titleTrial Court and Lower Appellate Court concurrently dismissed the suit and appeal filed by plaintiffValidityBuilding plan was sanctioned in year, 1975, and thereafter construction was completed

Plaintiff filed suit for recovery of possession which was not proceedable because plaintiff was estopped by his conduct to file the suit

Properties in question were allotted to parties during decade of 1950 to 1960 but plaintiff never bothered about the possession which he claimed in year, 1987, in shape of suit after completion of construction by other party, therefore, suit for possession was barred by time

As ownership of property was disputed, therefore, suit for possession without seeking relief of declaration was not maintainable and there were concurrent findings of facts against plaintiff

High Court in exercise of revisional jurisdiction declined to interfere in concurrent judgments and decrees passed by two Courts below

Revision was dismissed in circumstances.