2014 S C M R 1059

2014 S C M R 1059

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Amir Hani Muslim and Ejaz Afzal Khan, JJ

SHAHZADA MUHAMMAD ASLAM---Appellant

Versus

SOOFI WALI MUHAMMAD and others---Respondents

Civil Appeals Nos.977 and 978 of 2006, decided on 17th December, 2013.

            (On appeal against the judgment dated 24-3-2005 passed by the Lahore High Court, Multan Bench in C.R. No.590 and Writ Petition No.591 of 2000)

(a) Pakistan (Administration of Evacuee Property) Act (XII of 1957) [since repealed]---

----Ss. 20 & 21---Civil Procedure Code (V of 1908), S. 12(2)---Evacuee property exchanged with local Muslim---Change in status of property from evacuee to non-evacuee--- Confirmation by Custodian, requirement of---Subject shop was initially owned by a non-Muslim---Plaintiff, who was a Muslim, exchanged his original shop with the subject shop by way of a registered exchange deed---After such exchange revenue authorities changed status of subject shop to non-evacuee property---Plaintiff and his step-mother/defendant entered into litigation in relation to subject shop, whereafter both parties entered into a compromise agreement by which plaintiff was declared the exclusive owner and suit was decreed as such---During pendency of such suit defendant, in defiance of the terms of the decree, filed an application for transfer of subject shop to her under a scheme, which was accepted by the Deputy Settlement Commissioner, and subject shop was transferred in the name of defendant---Defendant consequently entered into an agreement to sell the subject shop to the purported buyer---Revenue authorities in the mean-time set aside order of Deputy Settlement Commissioner, whereby subject shop was transferred to the defendant---Purported buyer filed suit for specific performance of agreement  to sell with the defendant and also filed an application under S.12(2),  C.P.C. against plaintiff alleging fraud and mis-representation---Held, since the date of exchange, plaintiff remained in possession of the subject shop and presently his successors/appellants were in its possession---Defendant never denied the fact that she was a party to the suits which were decreed in terms of compromise agreement and plaintiff was declared exclusive owner of the subject shop, nor at any point of time she ever produced and/or placed any material on record to establish that she was in physical possession of the subject shop when she made an application to Deputy Settlement Commissioner for transferring the same to her under a scheme---Under the said scheme, any applicant who sought allotment of property had to establish his possession over the property, but defendant was never in possession of the subject shop, therefore order of transfer of subject shop in favour of defendant was erroneous---Under the said scheme only evacuee properties could be disposed of, however status of subject shop changed from evacuee to non-evacuee when its non-Muslin owner exchanged it with the plaintiff, who was a Muslim---Such change in status of subject shop found support from the orders of the settlement authorities, wherein subject shop was deleted from different lists of evacuee properties published in the year 1960 and 1971---Defendant never challenged the compromise decree by which plaintiff became the exclusive owner of the subject shop---Confirmation by the Custodian in terms of Ss.20 & 21 of the Pakistan (Administration of Evacuee Property) Act, 1957 was not required in the present case, as the subject shop after coming in possession of plaintiff was extended the status of non-evacuee property by the competent authority---Revenue authorities had set aside order of Deputy Settlement Commissioner by which subject shop was unlawfully transferred to the defendant, and such finding was affirmed up to the Supreme Court---Since the transfer order  of  the  subject  shop  in  favour  of  defendant  was  not in accordance  with  law, consequently she could not have been transferred  the  subject  shop  and  the sale   agreement  executed  by her  with  the purported  buyer  was nullity  in  the  eyes  of  law  and no right could be conferred on the purported buyer to seek its enforcement against the plaintiff or his successors---Purported buyer could not have alleged fraud or misrepresentation against plaintiff or his successors through an application under S.12(2), C.P.C. for a transaction which took place prior to the extension of the sale agreement---Compromise decree was passed on 29-4-1980 whereas defendant  claimed  to  have  been   transferred  the  subject  shop  on 25-1-1978 and the sale agreement was executed on 8-7-1978, therefore, the application of the purported buyer under S. 12(2), C.P.C. was liable to be dismissed on such score alone---Appeal was allowed accordingly.

            Qutub Ali v. Custodian, Evacuee Property, Lahore PLD 1964 SC 58 and Maj. Mehtab Khan v. The Rehabilitation Authority and another PLD 1973 SC 451 distinguished.

(b) Civil Procedure Code (V of 1908)---

----S. 12(2)---Bar to further suit---Application under S. 12(2), C.P.C., fling of---Grounds---Such an application could only be made on the ground of fraud or mis-representation or if an order or decree was passed by a court lacking jurisdiction.

            Mian Allah Nawaz, Advocate Supreme Court for Appellant.

            Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court for Respondents.

            Date of hearing: 17th December, 2013.

JUDGMENT

            AMIR HANI MUSLIM, J.---These appeals, by leave of the Court, are directed against the common judgment dated 24-3-2005 of the Lahore High Court, Multan Bench, whereby the civil revision and writ petition, filed by the respondent No.1, were allowed.

2.         Facts necessary for the disposal of the present proceedings are that the dispute between the parties relates to Shop No.7 which is located inside Pak Gate, Multan (hereinafter referred to as the 'subject shop'. The subject shop was initially owned by one Hindu Lala Ram Chand before partition, whereas Shop No.5 which was originally owned by Lala Balaqi Ram, who had mortgaged it to one Jhangi Ram. The shop No.5 was purchased by three brothers namely Sh. Inayat Ali, Sher Ali and Saeed  Anwar sons of Sheikh Sultan Bakhsh by way of Sale Deed dated 8-1-1946, which was registered on 25-3-1946. The above named three brothers exchanged the Shop No.5 with non-muslim owner of Shop No.7 by means of Registered Exchange Deed dated 19-6-1947.

3.         In the year 1957, the Pakistan (Administration of Evacuee Property)  Act was  promulgated,  section  20  of  which  provides  as  under:--

            "....whatsoever on or after the first day of March, 1947, by or on behalf of an evacuee, or by or on behalf of a person who has become an evacuee after the date of such creation or transfer, shall be effective so as to confer any right or remedy on any party thereto or on any person claiming under any such party, unless it is confirmed by the custodian."

4.         However, after partition the shop No. 5 was treated as 'Evacuee Property' and was allotted to Displaced Persons within the ambit of Displaced Persons (Compensation and Rehabilitation) Act, 1958, as regards Shop No. 7, it remained as a 'Muslim Property' and was enjoyed, possessed and was in use of aforesaid Muslim owners. Nevertheless, in the year 1960, the subject Shop was included in the list of evacuee properties and put to auction. Sh. Inayat Ali father and predecessor of appellant filed an application before the Settlement Authorities stating therein that he had acquired the subject shop in exchange through a registered Exchange Deed dated 19-6-1947, therefore, it was not an evacuee property. On 13-2-1960, on his application, the Inspector of the Settlement Department reported that no order of the Custodian exists in regard to declaring the subject shop as non-evacuee. The Report of the Inspector was considered and after examining the record, the subject shop was deleted from the auction list by the Competent Authority.

5.         In the year 1971, the subject shop was again included in the auction list of the evacuee properties for the purposes of putting it to auction, upon which the Predecessors-in-interest of the appellant again moved an application on the identical grounds. The Deputy Settlement Commissioner, Multan, by his order dated 20-1-1973, declared the subject property to be 'Muslim Property' (non-evacuee) and deleted it from the auction list.

6.         Meanwhile, Sheikh Sultan Bakhsh (father of Sheikh Inayat Ali and husband of Mst. Khursheed Jahan Begum) passed away and a dispute started amongst his legal heirs with regard to devolution of the estate left by deceased Sultan Bakhsh as he had children from his three wives namely Fatima Bibi, Raj Bibi and Khurshid Jahan Begum. Accordingly, on  29-4-1977,  Administration  Suit  tiled  as  'Sheikh Shams Ali etc. v. Sh. Hassan Ali etc.' was filed. Likewise another suit for partition, titled as 'Anwar Ali etc. v. Inayat Ali etc.' was also filed. During pendency of the Suits, parties entered into an Agreement on 29-4-1980, which Agreement, upon the request of the parties, was made the Rule of the Court  and  consequently  both  the  suits  were  decreed  by  the trial Court  in  terms  of  the  Agreement  arrived  at  between the  parties. Pursuant to the arrangement agreed between the parties, which was decreed by the Court, Sheikh Inayat Ali became the exclusive owner of the subject shop.

7.         In the intervening period, on 28-1-1975, an Act to be known as the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, was promulgated whereby certain evacuee laws were repealed and all properties available for allotment on the Ist Day of July, 1974, were transferred to the Provincial Government for its disposal. Nevertheless, on 16-10-1977, Mst. Khurshid Jahan, stated to be a step mother of the appellant's father, in defiance of the terms of the decree passed by the Civil Judge in above suits referred to hereinabove, filed an application for transfer of the subject shop under a scheme to be known as "Scheme for the Management and Disposal of Available Urban Properties". On 25-1-1978,  the Deputy, Settlement Commissioner allowed the application moved by Mst. Khurshid Jahan and transferred the subject shop in her favour. On 8-7-1978, Mst. Khurshid Jahan entered into an Agreement to sell the subject shop with Sofi Wali Muhammad, the respondent No.1.

8.         In the meanwhile the Predecessors-in-interest of the appellant filed a Revision Petition before the then Additional Commissioner (Revenue)/Administrator, Residual Properties, challenging the order dated 25-1-1978 passed by Deputy Administrator (Residual Evacuee Properties)/Deputy Settlement Commissioner, Multan, whereby the subject shop was transferred in favour of Mst. Khurshid Jahan. The said Revision was allowed on 8-12-1979 and the case was remanded to the Deputy Administrator, Residual Properties/Deputy Settlement Commissioner, Multan. Against the said order, Mst. Khurshid Jahan (Predecessor of the respondent No.2) filed Writ Petition bearing No.208/R/80 before the Lahore High Court, which was withdrawn by her on 15-12-1986. Another W.P. No.426/R/1980 filed by Sufi Wali Muhammad, the respondent No. 1 in the Lahore High Court Multan Bench, Multan, whereby he challenged the order dated 8-12-1979 passed by Additional Commissioner (Revenue)/Administrator (Residual Evacuee Property) Multan Division, Multan, wherein the Revision Petition titled as 'Sheikh  Inayat  Ali  etc.  v.  Mst.  Khurshid  Begum'  was  accepted and  the case  was  remanded  to  the  Deputy  Administrator  with direction to decide the matter afresh on merits. The learned Single Judge (in Chambers) heard the matter and disposed of the Petition as pre-mature vide order dated 13-3-1988. The relevant paragraph is reproduced as under:--

            'After hearing the learned counsel for the petitioner I am of the considered view that this writ petition is pre-mature. The case has been remanded by respondent No.1 to Deputy Administrator where it is pending. Learned counsel for respondents have no objection if the present petitioner is impleaded as, party in the said proceedings pending before Deputy Administrator and he be also heard. In this view of the matter, the Deputy Administrator shall implead the petitioner as party in the said proceedings if the petitioner approaches him for that purpose and he shall also hear him and record his finding on the pleas which he might raise. There is no justification for interference in the matter at this  stage  in  exercise  of  constitutional  jurisdiction  under Article 199 of the Constitution. The writ petition therefore subject to above observations is disposed of as pre-mature.

9.         Thereafter, the matter was taken up by the Additional Deputy Commissioner/Deputy Settlement Commissioner (Urban)/Deputy Administrator Evacuee  Properties,  Multan,  who  by  his  order  dated 13-8-1988, affirmed its earlier order dated 25-1-1978, whereby the subject Shop No.7 was declared as 'Evacuee Property'. The Predecessors-in-interest of the appellant filed Revision Petition against the order dated 13-8-1988 before the Additional Commissioner (Revenue)/Administrator Residual Properties Multan Divisions, which was allowed by order dated 29-9-1988 declaring the subject shop as 'Muslim Property' (non-evacuee) reversing the order of the Deputy Settlement Commissioner. Against this order, both Mst. Khurshid Jahan filed Writ Petition No. 37-R/88 and the respondent No.1 filed Writ Petition bearing No. 33-R/1988 before the learned Lahore High Court, Multan Bench, which were dismissed by the learned Single Judge vide order dated 15-10-1991. Sufi Wali Muhammad, the respondent No.1, filed C.P.L.A. No.1085-L of 1991 in this Court, which was dismissed as withdrawn on 24-1-1993 as a result of which the order dated 29-9-1988, passed by the Additional Commissioner (Revenue) attained finality.

10.       After  the  decisions  of  Lahore  High  Court  and  this  Court, on 25-4-1993, the respondent No.1 filed a suit for specific performance of the Sale Agreement dated 8-7-1978 titled as 'Sufi Wali Muhammad v. Shaikh Ehsan Raza etc.' against the legal heirs of Mst. Khurshid Jahan in the Court of Civil Judge, Multan. Subsequently, Shehzada Muhammad Aslam the present appellant, who had been transferred the subject shop by Sheikh Inayat Ali, was impleaded as party in the said suit. It was pleaded in the plaint that Mst. Khurshid Jahan on 25-1-1978 after transfer of the said shop in her favour, entered into a Registered Sale Agreement dated 8-7-1978, to sell the subject shop to Sofi Wali Muhammad the respondent No.1 for a consideration of Rs.1,90,000. It was further pleaded that the possession had also been delivered to him by Mst. Khurshid Jahan and he is in continuous possession. The respondent No.1 also filed two separate applications under section 12(2), C.P.C. praying for setting aside orders dated 29-4-1980 whereby the suits of Administration of estate of Sheikh Sultan Bakhsh and Partition of the subject shop were decreed on the basis of compromise. The suit for specific performance of the respondent No.1 and his two applications under section 12(2), C.P.C. were consolidated.

11.       The appellant filed written statement taking legal and factual pleas. On the divergent pleadings of the parties, the trial Court framed various issues. Evidence of the parties was recorded and the suit of the respondent No.1 was decreed vide judgment and decree dated 15-2-1996, consequently,  the  applications  of  the  respondent  No. 1  under section 12(2), C.P.C. were allowed and the compromise decrees dated 29-4-1980 in the suits for partition and the other one for administration of property were also set aside.

12.       The appellant filed two Civil Revisions against the acceptance of applications of the respondent No.1 under section 12(2), C.P.C. and civil appeal against judgment and decree dated 15-2-1996 whereby the suit for specific performance of the respondent No.1 was decreed. The learned  Additional  District  Judge,  Multan,  vide  his  judgment  dated 25-5-2000, accepted the Civil Appeal and Civil Revisions of the appellant and dismissed the suit for specific performance of the respondent No.1 besides dismissing his two applications under section 12(2), C.P.C.

13.       The respondent No.1 filed Civil Revision No.590 of 2000 against the dismissal of his suit and Writ Petition No.8355 of 2000 against dismissal of his applications under section 12(2), C.P.C. vide judgment dated 25-5-2000 passed by the Additional District and Sessions Judge, Multan. The learned Single Judge of the Lahore High Court, Multan Bench, after hearing the arguments of the parties, accepted the Civil Revision  and  Writ  Petition  of  the  respondent  No.1 and restored the judgment and decree dated 15-2-1996 passed by the trial Court vide common judgment dated 24-3-2005, which is impugned in these appeals.

14.       The learned counsel for the appellant has contended that the subject shop throughout remained in possession of the Predecessor-ininterest of the appellant and under the given circumstances, the provisions of sections 20 and 21 of the Pakistan (Administration of Evacuee Property) Act, 1957 (hereinafter referred to as the Act of 1957) could not be attracted. He next contended that admittedly the shop No.5 was originally purchased by the Predecessor-in-interest of the appellant on 8-1-1946, before the target date and thereafter on 19-6-1947 shop No.5 was exchanged through a registered instrument, with the subject-shop, after the target date, as provided in the Act of 1957. According to him the original shop No.5 purchased by the Predecessors-in-interest of the appellant prior to the target date was treated as evacuee property and consequently was disposed of as such, the changed status acquired by shop No.5 on exchange would change the status of the subject shop as non-evacuee, therefore, the question of attracting the provisions of sections 20 and 21 of the Act of 1957 requiring confirmation by the Custodian does not arise.

15.       His next contention was that the effect of the decree in the suits was completely overlooked by the learned High Court while passing the impugned judgment. He submitted that the parties before this Court were parties to the decree and according to the terms of the compromise on the basis of which the decree was passed, the Predecessors-in-interest of the appellant, was declared as exclusive owner of the subject-shop. He submitted that the said decree which attained finality on 29-9-1988 was never challenged instead Mst. Khurshid Jahan, the step mother of the appellant, under the garb of the Scheme for the "Management and Disposal of Available Urban properties" claimed her entitlement to the said shop and got transferred the said shop in her name whereafter, she executed a sale agreement with the respondent No.l. He submitted that even the order passed for transfer of the said shop was violative of the provisions of the Evacuee Property And Displaced Persons Laws (Repeal) Act, 1975. According to him, under the said provisions of law, it has been specifically mentioned that after 1-7-1974 status of a property cannot be change and or challenged unless such property is under litigation and or is available for disposal.

16.       His next contention was that in any event, the respondent No.1, who claims his title on the basis of a sale agreement entered into between him and Mst. Khurshid Jahan, in law, cannot perfect the title of his predecessor by invoking the provisions of section 12(2), C.P.C. challenging the decree by compromise passed much before the sale agreement between him and Mst. Khurshid Jahan.

17.       As against this, the learned counsel for the respondents has contended that the subject shop was never confirmed as non-evacuee by the Custodian in terms of sections 20 and 21 of the Act of 1957. He submitted that in such an eventuality, this Court in the cases reported as Qutab Ali v. Custodian, Evacuee Property, Lahore (PLD 1964 SC 58) and Maj. Mehtab Khan v. The Rehabilitation Authority and another (PLD 1973 SC 451) has held that the property, which is not confirmed by the Custodian after the target date, has to be treated as evacuee property, therefore, the order of transfer in favour of Mst. Khurshid Jahan passed on 8-7-1978 was a valid order and she was competent to sell subject shop to the respondent No.1.

18.       We have heard the learned counsel for the parties and have perused the record. It is an admitted position that the Predecessors-in-interest of the appellant had purchased shop No.5 on 8-1-1946 before the target date. It is also not in dispute that through the registered exchange deed shop No.5 was exchanged with the subject shop by the Predecessors-in-interest of the appellant on 19-6-1947, after the target date i.e. 1-3-1947. It is also not in dispute that since the date of exchange, the Predecessors-in-interest of the appellant were in possession of the subject shop and presently the appellant is in possession of the subject shop. It is also not denied that the Administration suit titled as Sheikh Shams Ali and others v. Sheikh Hassan Ali and others was filed on 29-4-1977 and likewise another suit for partition titled as Anwar Ali and others v. Inayat Ali and others was filed in which the Predecessors-in-interest of the appellant and respondent No.2 were parties. During the pendency of the aforesaid suits, the parties entered into an agreement and on the basis of the said agreement, on 29-4-1980 the trial Court decreed the suits. Pursuant to the terms of the agreement between the parties, Sheikh Inayat Ali, the Predecessors-in-interest of the appellant became exclusive owner of the subject shop. Under these circumstances, Mst. Khurshid Jahan, who has never denied that she was not a party to the suits which were decreed in terms of compromise nor at any point of time she ever has produced and or placed any material on record to establish that she was in physical possession of the subject shop when she made an application on 16-10-1977 for transfer of the subject shop under the Scheme for the Management and Disposal of Available Urban properties. We have noticed that under Chapter III of the Scheme, an Applicant who seeks allotment under the Scheme has to establish his possession over the property. We have scanned the entire record and are of the considered view that Mst. Khurshid Jahan was never in possession of the subject shop on 16-10-1977, when she made an application for allotment of the subject shop under the said Scheme, which is a condition precedent for the allotment. Therefore, the order of transfer of subject shop in favour of Mst. Khurshid Jahan was erroneous.

19.       On perusal of the said scheme, we have further noticed that the properties which are meant for disposal under the Scheme have to be available for disposal as evacuee properties. In the first place, the subject-shop was never available for disposal in as much as the shop No.5, purchased by the Predecessors-in-interest of the appellant before the target date, was disposed of by the settlement authorities treating it as an evacuee property, as on exchange of the shop No.5 with the subject shop, the subject shop was treated as non-evacuee. This fact finds support from the order of the settlement authorities passed at times by deleting the subject shop from the different lists of evacuee properties published in the year 1960 and 1971. Moreover, the confirmation by the Custodian in terms of sections 20 and 21 of the Act of 1957 was not required in the present case, as the original shop No.5 purchased by the Predecessors-in-interest of the appellant prior to the target date, on exchange, was treated as evacuee property and the subject shop in place of the original shop was extended the status of non-evacuee property by the Competent Authority. Additionally, on the cut off date i.e. 1-7-1974, the subject shop was not available for disposal which was owned and possessed by the Predecessors-in-interest of the appellant, therefore, its status could not have been changed to that of evacuee property, in order to attract the provisions of the said Scheme.

20.       The order of the transfer of subject shop under the said Scheme by Deputy Settlement Commissioner/Deputy Administrator (Residual Evacuee Properties) in favour of Mst. Khurshid Jahan was also nullity in the  eyes  of  law,  as  the  subject shop was  not  available for  disposal on 16-10-1977. Besides this, the transfer order in favour of Mst. Khurshid Jahan was otherwise, set aside by Additional Commissioner (Revenue)/Administrator Residual Properties, Multan Division, and such findings were affirmed up to this Court.

21.       Under these circumstances, since the transfer order of the subject shop in favour of Mst. Khurshid Jahan was not in accordance with law, consequently she could not have been transferred the subject shop and the sale agreement dated 8-7-1978 executed by her with the respondent No.1 was nullity in the eyes of law and no right could be conferred on the respondent No.1 to seek its enforcement against the appellant. More so, Mst. Khurshid Jahan was party to the suits in which the Predecessors-in-interest of the Appellant became exclusive owner of the subject shop in terms of the compromise decree. The application of the respondent No.1 in the given circumstances was liable to be dismissed. An application under section 12(2) can only be made on the ground of fraud or mis-representation and or if an order or decree is passed by a Court lacking jurisdiction. None of these ingredients were available to the respondent No.1 to seek a finding in his favour against the appellant. It is also a matter of record that Mst. Khrushid Jahan was never in possession of the subject shop nor had challenged the compromise decree by which the appellant's Predecessor became the exclusive owner of the subject shop. The respondent No.1, in such like circumstances, had no right to challenge the compromise decree through collateral proceedings in an attempt to perfect the title of his predecessor i.e.  Mst.  Khurshid Jahan,  which  right  was  never  lawfully  devolved upon her.

22.       Moreover, the respondent No.1 could not have alleged fraud or misrepresentation through an application under section 12(2), C.P.C. for a transaction which took place prior to the extension of the sale agreement. The compromise decree was passed on 29-4-1980 whereas Mst. Khurshid Jahan claims to have been transferred the subject shop on 25-1-1978 and the sale agreement was executed on 8-7-1978, therefore, the application of the respondent No.1 under section 12(2), C.P.C. was liable to be dismissed on this score alone.

23.       We have already dealt with the issue of status of the subject shop which was never treated as evacuee throughout the proceedings between the parties nor it was available for disposal at any point of time. Under these circumstances, we are constrained to hold that the provisions of sections 20 and 21 of the Act of 1957, requiring confirmation of the Custodian would not be attracted. The case-law relied upon by the learned Counsel for the respondents is distinguishable on facts. The impugned judgment is based on mis-appreciation of law and facts and therefore is not sustainable in law. The above are the reasons, for our short order dated 17-12-2013, which reads as under:--

            "Despite notices and citation in the Daily Nawa-e-Waqt dated 29-11-2013 none has appeared for respondents Nos. 2 to 4. They are proceeded ex parte.

            For reasons to be recorded later in the detailed judgment, both these appeals are allowed and the impugned judgment is set aside".

MWA/M-11/SC                                                                                  Appeals allowed.