2015 C L C 1687
[Balochistan]
Before Jamal Khan Mandokhail and Muhammad Ejaz Swati, JJ
Mrs. ELSA MARRI and 7 others ----Appellants
versus
PHILLIPS M. IRANI ----Respondent
R.F.A. No.70 of 2004, decided on 26th May, 2015.
(a) Specific Relief Act (I of 1877) ---
----S 8---Suit for possession of immovable property ---Defendant was occupying the property in
question with the consent of trustee/brother of plaintiff as his attorney ---Possession of a servant,
deputee or appointee for the benefit or on behalf of the master or the person deputing or
appointing him was in fact the possession of the later ---Possession of defendant over the suit
property was unlawful ---Defendant was appointed as an attorney but he tried to get undue
advantage ---Suit property was specified for trust and plaintiff being son of Wakif had rightly
filed the suit ---Defendant had failed to justify his possession and plaintiff had succeeded to prove
his case ---Trial Court had rightly appraised the evidence available on record and had come to
correct conclusion ---Evidence produced by the plaintiff was forceful as compared to the
evidence of the defendant ---No illegality, irregularity or jurisdictional defect had been pointed
out in the impugned judgment and decree ---Trial Court had rig htly decreed the suit with the
direction to the defendants to vacate the property in question ---Defendants were occupying the
property in question illegally ---Defendants were directed to pay rent for the period they had
occupied the suit property and they should vacate the same after specified period ---Appeal was
dismissed in circumstances.
(b) Civil Procedure Code (V of 1908) ---
----O. XLI, R. 1 ---Appeal, filing of ---Requirements ---Appeal should be preferred in the form of
memorandum signed by the appe llant or his pleader ---Such pleader must have an authority on
behalf of the party to sign the memorandum of appeal otherwise its presentation would be
invalid ---Appeal would be incompetent if same was filed by the pleader not authorized to sign
the memoran dum of said appeal by the appellant.
Ramzan v. Sohrab Khan PLD 1990 Lah. 314 rel.
Ayaz Zahoor and Arthor Victor for Appellant.
Abdul Rauf Lehri for Respondent.
Date of hearing: 9th March, 2015.
JUDGMENT
JAMAL KHAN MANDOKHAIL, J. --- 1. Facts of the case are that the predecessor of
the respondent ("hereinafter called as the plaintiff") filed a Suit No. 136 of 2000 for possession,
declaration and permanent injunction against the predecessor of the appellants, namely Mir
Khuda Bakhsh Ma rri, ("hereinafter called as the defendant") before the Court of the Civil Judge,
Quetta ("the trial Court") in respect of a property, description whereof has been mentioned in
para-3 of the plaint ("hereinafter called 'as the property in question"). The p laintiff alleged that
the property in question belonged to the plaintiff's father, namely Cawas Asphand Yar Irani, who
bequeathed the same upon a Trust to charity, through a registered Will. According to the
plaintiff, his father appointed Rustam Cawas Ira ni, the brother of the plaintiff, as Trustee,. who
appointed Mir Khuda Bakhsh Marri, as his attorney' to look -after the Trust property. The
plaintiff further contended that after the death of his father, he became owner of the property in
question.
2. The plaintiff alleged that on 2nd November, 1987, the predecessor of the appellants filed
a suit bearing No.53 of 1987 for declaration on the basis of adverse possession against the
plaintiffs brother. The said suit was dismissed by the Court of the Addition al District Judge -III,
Quetta ("the appellate Court") vide judgment and decree dated 15th April, 1990, which remained
unchallenged, hence attained finality.
3. According to the plaintiff, the defendant filed another suit, bearing No.72 of 1992, on 1st
July, 1992, against him as well as on the basis of an adverse possession. The said suit finally
came up before the Hon'ble Supreme Court of Pakistan through Civil Appeal No. K -1870 of
1996. At the time of final arguments before the Hon'ble Supreme Court of P akistan, the
defendant requested for withdrawal of his Suit, which was allowed on 9th December, 1997,
hence his second suit also stands dismissed as withdrawn.
4. Thereafter, the plaintiff asked the defendant to vacate the property in question, but he
refused to do so, hence the plaintiff filed the present suit against the defendant with the following
prayer:
"It is therefore, respectfully prayed that the decree may kindly be passed with costs in
favour of plaintiff and against the defendant in the fol lowing terms ---
(a) declaring that plaintiff is legal owner of the property in question.
(b) declaring that the defendant is in wrongful and illegal possession of the property in
question;
(c) declaring that the plaintiff is entitled to the possessio n of property in question;
(d) directing the defendant to handover the vacant possession of the property to the plaintiff;
(e) restraining the defendant from changing the nature of the property in any way
demolishing or further constructing the same;
(f) declaring that the trust through its plaintiff/trustee deserves right of incomes which have
been deprived to the trust by the defendant over the period of his illegal occupation and
enjoyment of the trust property:
(g) directing the defendant to handover all documents to the plaintiff/trustee, pertaining to
property acquired during period of his illegal occupation and enjoyment of the trust property;
(h) any other relief which his Hon'ble Court deems right and proper in this in terest of
justice;"
5. The defendant filed his written statement, contending therein that the mutation entries
effected on the name of the plaintiff were not in accordance with the provisions of the Land
Revenue Act, 1967, therefore, he is not the lawful owner of the property in question, as such, the
suit is incompetent. It is further added that the registered Will of the plaintiff's father is not
applicable to the property in question, which is situated at Quetta Pakistan, whereas the Will has
been regi stered at Bombay, therefore, the suit is not maintainable. An objection was also raised
that since the suit for possession filed in the year 2000, after a period of more than 12 years is
barred by time. Out of the pleadings, the trial Court framed the foll owing issues:
"1. Whether the suit is not maintainable in view of P/O's to D of W/s?
2. Whether the suit is barred by time?
3. Whether the plaintiff has got locus standi to file the instant suit?
4. Whether the plaintiff is the legal owner of the p roperty in dispute?
5. Whether the defendant is in wrongful and illegal possession of the property in question?
6. Whether plaintiff is entitled for the relief' claimed for?
7. Relief?"
6. The plaintiff, in support of his case, produced four witnes ses, exhibited certain
documents and recorded his statement through an attorney. In reply, the defendant produced five
witnesses. It is important to mention here that despite provision of several opportunities, the
predecessor of the appellants did not app ear before the trial Court to record his statement, as
such, his right to record his statement was closed on 20th February, 2003, but till 17th April,
2004, no effort was made by the defendant to record his statement. Finally, after hearing the
parties, th e learned counsel for the parties, the trial Court decreed the suit by means of the
judgment and decree dated 27th May, 2004, hence this appeal. During pendency of the appeal,
predecessor of the appellants died, as such, they are made as appellants.
7. The learned counsel for the appellants stated that defendant and after his death, the
appellants are occupying the property in question for decades, therefore, the suit, after such a
long period, was liable to be dismissed, as being barred by time, but the trial Court has failed to
consider this legal aspect of the case. He states that the mutation entries on the name of the
plaintiff were illegal, on the basis of which, he cannot be consider as a lawful owner of the
property in question, therefore, the suit under section 42 of the Specific Relief Act, 1877 ("the
Act") was incompetent. He added that the trial Court has failed to properly decide the legal
objections raised in the written -statement, nor the evidence has been appreciated in its true
perspective, which act amounts to mis -appreciation and non -appreciation of the evidence and the
material available on the record. The learned counsel, while concluding the arguments, stated
that due to illegalities and irregularities, the impugned judgment and decree are liable to be
dismissed.
8. The learned counsel for the respondent opposed the contention and stated that though in
the title of the appeal, the name of the predecessor of the respondent as appellants does mention,
but he did not sign the memo of the appeal, as admittedly, he was out of the country. According
to him, he did not authorize anybody to file the appeal, ther efore, the appeal signed by the
counsel is not a proper presentation. The learned counsel contended that possession of the
predecessor of the appellants over the property in question was permissive, being an attorney of
one of the Trustee (the brother of t he original plaintiff), as such, no limitation runs till the time.
According to him, possession of the predecessor of the appellants over the property became
illegal, when in the year 1997, the predecessor of the respondent asked him to vacate the
property in question, but he refused to do so, hence the limitation would starts thereafter, as such,
the suit is within time. He argued that the predecessor of the appellants have though raised
objection upon the mutation entries effected on the name of the prede cessor of the respondent,
but he admits the fact that the property in question actually belonged to the grandfather of the
respondent. According to the learned counsel, by operation of law, the predecessor of the
respondent became owner of the property in question, hence the appellants have no right to
challenge the entitlement of the predecessor of the respondent. He added that even otherwise, the
appellants or their predecessor never challenged the mutation entries effected on the name of the
predecessor of the respondent, therefore, the objection in this behalf is immaterial. The learned
counsel, in the end, stated that the trial Court was right in decreeing the suit.
9. We have heard the learned counsel for the parties and have perused the record. The claim
of the plaintiff, in his suit, was that he is a lawful owner of the property in question, which was
bequeathed by his father for a Trust, which was occupied by the defendant and requested its
possession. The appellants raised objection that the suit is barred by time, besides the plaintiff
was not a lawful owner of the property in question, hence had no locus standi to file this suit.
With regard to the present appeal, the respondent raised an objection that it has not been filed by
the predecessor of the appellants, nor had authorized the Advocate to sign the memo of the
appeal, therefore, it has not competently been filed. To decide the appeal, following points for
determination are formed:
(A) Whether the appeal has properly been presented by Mr. Basharatullah, Advocate on
behalf of the appellants?
(B) Whether the suit was barred by time?
(C) Whether the predecessor of the respondent had a locus standi to file the present suit?
(D) Whether the predecessor of the appellant, and after his death the appellants are illegally
occupying the property in question?
Point 'A':
Whether the appeal has properly been presented by Mr. Basharatullah, Advocate on
behalf of the appellants?
It is a fact that Mr. Basharatullah, Advocate had filed the appe al through his signature,.
The power annexed with the appeal does not clarify as to who was its executant. No doubt, Order
XLI, Rule 1, C.P.C. prescribes that every appeal shall be preferred in the form of a memorandum
signed by the appellant or his pleade r, but such pleader must have an authority on behalf of the
party to sign the memorandum of appeal, otherwise it presentation will be invalid. On
comparison of signature of the defendant, appearing on the original written statement, with the
signature on t he power, there is apparent difference between the two. It has come on the record
that the defendant did not appear before the trial Court to record his statement, as he was
seriously ill and was out of the country. There is no evidence to establish his re turn from abroad,
nor signed the appeal or power at some later stage to rectify its deficiency, but admittedly, he did
not come up to do so. Facts and circumstances reveals that Mr. Basharatullah, Advocate, was not
authorized by the predecessor of the appe llants to sign the memorandum of the appeal, therefore,
it was filed by an unauthorized person, as such, the same was incompetent. Reliance is placed on
a case, titled as Ramzan v. Sohrab Khan, reported in (PLD 1990 Lahore 314).
Point `B':
Whether the suit was barred by time?
The defendant, in his written statement, raised an objection that the suit of the plaintiff is
barred by time. As discussed above that the appellants filed two suits, one against the uncle of
the respondent and second against t he predecessor of the respondent on the basis of adverse
possession, but failed to succeed, which means that his possession was not adverse against the
owners. Admittedly, the predecessor of the appellants was occupying the property in question on
the basi s of a power of attorney issued to him by brother of the predecessor of the respondent,
therefore, it was permissive possession. The predecessor of the respondent became hostile
against the predecessor of the respondent. when in the year 1997, the predeces sor of the
appellants was asked to vacate the premises. On his refusal to vacate the same, the cause of
action accrued to the plaintiff. Thus, from such point to time, the limitation would be calculated.
The suit has been filed in the year 2000, after a pe riod of three years of the denial by the
predecessor of the appellants, was within time, hence the objection is overruled.
Point 'C':
Whether the predecessor of the respondent had a locus standi to file the present suit?
The predecessor of the appellants in his written -statement raised a plea that the
predecessor of the respondent was not a lawful owner of the property in question on the pretext
that the mutation entries effected on his name were not proper and legal. It i s an admitted fact
that the property in question earlier belongs to the grandfather of the respondent (the father of the
predecessor of the respondent), thereafter upon his death, the predecessor of the respondent,
being his legal heir, became its recorded owner, therefore, he being a lawful recorded owner of
the property, had a locus standi to file the suit. The appellants have failed to show a legal
preposition in support of their contention. Under such circumstances, the suit filed by the
predecessor of the respondent was quite competent, hence the objection of the appellants has no
force in it.
Point 'D':
Whether the predecessor of the appellant, and after his death the appellants are illegally
occupying the property in question?
It is a settled principle of law that possession of a servant, deputee or appointee for the
benefit or on behalf of the master or the person, deputing or appointing him is in -fact the
possession of the later. Admittedly, the defendant was occupying the property in questio n on the
basis of adverse possession by filing two was occupying the property in question with consent of
the Trustee/Brother of the plaintiff, as his attorney. The predecessor of the appellants tried to
become Civil Suits, detail whereof has been discusse d hereinabove, but he failed to succeed,
which proves the fact that his possession was not adverse till the year 1997. Thus, possession of
the defendant was permissive, till the time when the predecessor of the respondent asked him to
vacate the same. Upon his denial to vacate the premises, possession of the predecessor of the
appellants became illegal and unlawful. Under such circumstances, cause of action accrued to the
predecessor of the respondent, when in the year 1997, the predecessor of the appellant s refused
to vacate the premises, hence from that period of time, his possession became illegal and after his
death,' possession of the appellants over the property in question is unlawful. The appellants and
their predecessor were since not entitled to re tain possession of the property in question,
therefore, the trial Court was right in decreeing the suit with direction to the predecessor of the
appellants to vacate the same.
10. The defendant was appointed as an attorney, but his conduct is proof of th e fact that he
misused his status and tried to get an un -due advantage. Late Cawas Asphand Yar Irani specified
this property for a Trust, therefore, the predecessor of the appellants might have thought that this
is an ownerless property, hence he twice att empted to become its owner, on the basis of an
adverse possession, but failed. The property in question was since bequeathed by its previous
owner, therefore, his son, the plaintiff, by exercising his authority, has rightly filed the suit, so as
to impleme nt the commitment of his father and to establish a Trust in the property in question.
The defendant has failed to justify his possession, whereas the plaintiff has succeeded to prove
his case. The trial Court, after proper appraisal of the evidence and the material available on the
record, has come to a correct conclusion. Each and every issue has been discussed in the light of
the evidence available on the record and keeping in view the fact that the predecessor of the
appellants did not appear before the Court, his remaining witnesses do not confirm the contents
of the written -statement. The evidence produced by the predecessor of the respondent was
forceful, as compared to the evidence produced by the predecessor of the appellants. The learned
counsel for the appellants has failed to point out any illegality, irregularity or jurisdictional
defect, warranting us to interfere in the well reasoned impugned .judgment and decree of the trial
Court.
Thus, in view of what has been stated and discussed hereinab ove, the Appeal is
dismissed, with cost of Rs.25,000 (sic) (Rupees Twenty Thousand Only). Besides, since the
appellants and their predecessor are occupying the property in Question illegally, w.e.f. 1997, till
date, therefore, the appellants shall pay mont hly rent of the property @ Rs.5,000 (Rupees Five
Thousand Only), till December, 2011. They shall pay an enhanced amount of the rent @
Rs.10,000 (Rupees Ten Thousand Only), per month for the last three years starting from 1st
January, 2012. The amount shoul d be deposited in the account of the Registrar of this Court, so
that the same be transmitted to the Trust, after its establishment. The appellants shall vacate the
premises by or before 301h June, 2015. The Deputy Commissioner, Quetta, shall get its
posse ssion and charge of the property in question. The attorney for the respondent should
arrange a meeting of the respondent with the Deputy Commissioner, Quetta, to materialize
creation of the Trust. The Advocate General Balochistan should assist the Deputy C ommissioner,
Quetta, in this behalf, and to submit a fortnight report before the Registrar of this Court for our
perusal in Chamber.
ZC/74/Bal. Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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