PLJ 2025 Quetta 46
Present: G UL HASSAN TAREEN , J.
SHOUKAT DAS and others --Petitioners
versus
SHAZIA RIAZ alias POLY and others --Respondents
C.R. No. 453 of 2019, decided on 17.5.2024.
Specific Relief Act, 1877 (I of 1877) --
----Ss. 42 & 54--Transfer of Property Act, (I of 1882), S. 10--Constitution of Pakistan, 1973,
Arts. 23, 24(1) --Allotment of
plots --Transfer of-- Suit for declaration, mandatory and perpetual injunction--Dismissed --Appeal -
-Dismissed --Non -transferable plots --Perpetual clog --Void condition--Jurisdiction --Right to
disposed of property-- Challenge to --Disputed plot was allotted to mother of Yasir Masih (not
impleaded in petition) by society imposing a perpetual clog that she couldn’t dispose of same --
Though, plot was transferred but clog attached to such transfer was illegal and unconstitutional --
Petitioners had no right under Section 10, Act 1882, consequently, suit was not competent under
Section 42 of Specific Relief Act, 1877 for no legal right of petitioners was denied by
respondents --Any condition which was derogatory to title of transferee was simply void--Courts
had been vested with jurisdiction to declare terms of a contract which had been incorporated in
violation of Article 23, Constitution and Section 10, Act 1882--Enforcement of terms of contract would amount to deprive transferee of his allotted property, which was violation of Article 24(1),
Constitution too--The PWs in their cross -examination admitted that number of houses in society
had been sold out where Muslims were residing-- Petitioners failed to prove that land was waqf
property--The impugned judgments passed by subordinate Courts did not suffer from any material illegality; any error of law and of jurisdiction --Revision petition dismissed.
[Pp. 49, 50 & 51] A, B, C, D & E
PLD 1966 (W.P.) Karachi 618 ref.
Mr. Muhammad Saleem Lashari, Advocate for Petitioners.
Syed Iqbal Shah, Advocate for Respondents Nos. 1- a to 1 -b.
Mr. Muhammad Ali Rakhshani, Addl. Advocate General (AAG) for Respondent No. 4.
Date of hearing: 7.5.2024.
J
UDGMENT
Instant civil revision petition assails concurrent judgments and decrees passed by the subordinate
Courts, whereby civil suit instituted by the petitioners was dismissed.
2. Briefly, facts of the case are that petitioners instituted civil suit for declaration,
mandatory and perpetual injunction against the respondents. According to contents of the plaint, Petitioner No. 1 is the Chairman, Bashirabad Welfare Housing Society and Petitioner Nos. 2 and 3 are inhabitants in the said society. In 1988, Ex -Minority, Member Provincial Assembly, Bashir
Masih had purchased 11 acres land in Nawan Killi, Quetta to establish a housing society for Christian community and donated the same to the deserving poor members of such community. On such land, a Christian Housing Society was established and the said MPA was chairman of the society, who had distributed the plots among the community members through written contracts. The contract had contained conditions, that the allottee would utilize the allotted plot for his own use and would not depart with possession thereof in favour of non- Christian. After
death of Ex- MPA, the Christian Housing Society was not functional, however, the inhabitants of
the society established a Welfare Society Bashirabad to look after the affairs of the society and got it registered with the Directorate of Social Welfare, Government of Balochistan, vide
registration certificate dated 12 August 1998. At then, notices were affixed on the walls of the housing society that plots would not be sold out to any unchristlike. A plot admeasuring 1000
sq.ft. located adjacent to the main entrance of the society was allotted to Mst. Parveen Bibi. The
said along with her son, Respondent No. 3 constructed a house and sold it out to Amanullah
(Defendant No. 7 in the suit) in violation of the terms of the contract. A market comprising upon shops in the main street were constructed within the premises of the society to cater the basic needs of the members of the society. Shops bearing Nos. 1 and 2 were allotted to the predecessor of Respondent Nos. 1- a and 1- b on good will basis, however, the said had sold out both the shops
to the Respondent Nos. 2 and 3 who started construction on the said shops. The predecessor of
Respondent Nos. 1- a and 1 -b and the Respondent No. 3 were approached and Respondent Nos. 2
and 3 were asked to avoid any sale transaction and interference within the Bashirabad Housing Society, however, no heed was paid. In prayer clause, petitioners prayed for the declaration that plots in Bashirabad Housing Society are waqf property for Christian community, which are not for sale and possession is not transferable, declaration that Respondent Nos. 1, 2 and 3 are bound to abide by the terms of the contracts, declaration that the sale and transfer of possession to the Respondent Nos. 2 and 3 and construction by such respondents is illegal; declaration that Respondent Nos. 1 to 3 have violated the conditions of transfer deed, removal of construction and perpetual injunction.
3. Predecessor of Respondent Nos. 1- a and 1 -b, Respondent Nos. 2 and 3 submitted
contesting written statements. On such pleadings, the Trial Court framed issues and after
recording evidence, vide judgment and decree dated 02 February 2019 had dismissed the suit,
which was affirmed on appeal by the learned Additional District Judge -V, Quetta vide impugned
judgment and decree dated 26 June 2019.
4. Mr. Muhammad Saleem Lashari, learned counsel representing petitioners states that plots
in the Christian Social Welfare Society were not transferable to non -Christians, however,
Respondent No. 1 had violated the terms of contract, whereas, the Courts below have overlooked such fact. He states that the land of the Christian Welfare Housing Society was a waqf property, which was not transferable; however, material documents in this regard couldn’t be brought on
record, which are necessary for deciding the real controversy between the parties to the petition.
In this regard, learned counsel states that he has made an application under Order XLI Rule 27 read with Sections 141 and 151, the Civil Procedure Code, 1908 (‘C.P.C.). In conclusion, states that petitioners may be allowed to produce document dated 15 January 1994 and document dated 19 January 2015 and any other relevant document as additional evidence either before this Court
or the Trial Court. Learned counsel placed reliance on the following case laws:
Inayat Bibi v. Issac Nazir, (PLD 1992 Supreme Court) 385,
Hassan Abbas Rizvi v. the State, (1993 PCrLJ 1630),
Muhammad Asghar v. Hussain Ahmed, (PLD 2014 Supreme Court 89),
Faisal v. The State, (PLD 2007 Karachi 544),
Nazir Hussain v. Abdul Manan, (1998 MLD 678). 5. Syed Iqbal Shah, learned counsel representing Respondent Nos. 1- a and 1 -b does not
oppose petitioners’ counsel contentions. 6. Heard and have gone through the record.
7. The main contention of the petitioners in their pleading was that the plots allotted to the
members of Christian community were not transferable, but since Defendant No. 3 (not
impleaded) had transferred his allotted plot, as such, committed violation of the terms of
contract. Therefore, the transfer was illegal. The terms of contract are relevant, which are reproduced hereunder:
“2. The second party is responsible to construct the home for their own and personal use.
[sic]
3. …
4. The second party cannot handed over the possession of the said plot to any other person
or party (non- Christian).” [sic]
The afore reproduced terms of the contract were absolute restraint on the legal incident of the allotted property. Disputed plot was allotted to the mother of Yasir Masih (not impleaded in the petition) by the society imposing a perpetual clog that she couldn’t dispose of the same. Though, the plot was transferred but the clog attached to such transfer was illegal and unconstitutional. In this regard, Section 10, the Transfer of Property Act, 1882 (‘Act 1882’) is relevant, which reads as under:
“10. Condition restraining alienation: Where property is transferred subject to a
condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or
limitation is void, except in the case of a lease where the condition is for the benefit of the
lessor or those claiming under him: provided that property may be transferred to or for the benefit of a woman (not being a Hindu, Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein.”
The afore reproduced terms of the contract, whereby the allottee was restrained from parting with or disposing of his interest in the allotted property were void under Section 10, the Act 1882. The object of Section 10 is that the transferor should not be allowed to put a clog on the right of transferee so as to repugnant to the nature of property transferred. Where a property is
transferred, a condition which brings about a diminution of that absolute transfer is imposed, the
condition so annexed amounting inevitably to a circumvention of law and being repugnant is not
enforceable, as such, void. By institution of suit, the afore reproduced terms of the contract were intended to be enforced of which, petitioners had no right under Section 10, the Act 1882, consequently, the suit was not competent under Section 42 of the Specific Relief Act, 1877 for no legal right of petitioners was denied by the respondents. As already observed, any condition which is derogatory to the title of the transferee is simply void. Reliance is placed on the case reported as Ghulam Hussain Meherally v. Shirin Bai PLD 1966 (W.P.) Karachi 618. The
relevant therein is reproduced hereunder:
“16. The respondent has also filed cross -objections to challenge the validity of the gift
made by her in respect of 70 sq. yards, piece of land out of the plot in dispute, Mr. K. A. Ghani, the learned counsel for the respondent contended that the gift being conditional is void and not binding on her. In this connection it will be observed that a reference to Exh. 11 would show that the respondent made the gift for the purpose of the residence
only of the donee and his heirs from generation to generation but imposed a condition that they will have no right to sell, mortgage, or alienate it in any way. The respondents counsel contended that this condition militates against the absolute transfer of the property. In our opinion this contention has no force because the second portion of the property in dispute was gifted in perpetuity. In such circumstances, the condition imposed has no validity in the eye of law. The appellant has referred us to Sections 10 and 11 of the Transfer of Property Act. It is provided in these provisions of law that any condition which is derogatory to the title of the party are void and inoperative in law. The learned Single Judge was, therefore, perfectly justified in holding that such conditions are invalid and that the gift was valid. We would, therefore; repel the contention of the respondent in this respect.”
8. Besides Section 10, the Act 1882, the afore referred and discussed terms of the contract
were violative of the Fundamental Right of the transferee. Article 23 of the Constitution is relevant which reads as under:
“23. Provision as to property. Every citizen shall have the right to acquire, hold and
dispose of property in any part of Pakistan, subject to the Constitution and any reasonable restrictions imposed by law in the public interest.”
There was no provision in the Constitution and in the Act 1882, which had imposed any
reasonable restriction on the transferee to put a clog on his Constitutional and legal right to dispose of his allotted property. Article 23 vests every citizen with a Fundamental Right to dispose of his property by way of sale, mortgage, exchange etcetera. Courts have been vested with the jurisdiction to declare terms of a contract
which have been incorporated in violation of Article 23, the Constitution and Section 10, the Act
1882. Enforcement of the terms of contract would amount to deprive the transferee of his allotted property, which is violation of Article 24(1), the Constitution too. Therefore, the terms of such contract defeat the provision of Article 23, the Constitution and Section 10, the Act 1882; as such, are void under Section 23, the Contract Act, 1872.
9. In the instant civil revision petition, petitioners made an application under Order XLI rule
27, the C.P.C. It is quite correct that this Court is competent to admit additional evidence. The
documents which petitioners intend to bring on record are available on record (Page Nos. 18 to 20). The documents were not refused to admit in evidence by the Trial Court, whereas, they are not required by this Court to enable it to pronounce judgment. The terms of these documents have been discussed in the preceding paragraphs of this judgment. The suit was purportedly instituted on 28 January 2015, but petitioners did not bother to bring such documents on record. Hence, application is rejected.
10. The PWs in their cross -examination admitted it correct that number of houses in the
society have been sold out where Muslims are residing. Petitioners failed to prove that the land was waqf property.
Case laws cited by petitioners’ learned counsel are not relevant.
The impugned judgments passed by the subordinate Courts do not suffer from any material illegality; any error of law and of jurisdiction, therefore, instant civil revision petition is dismissed with no order as to costs.
(Y.A.) Revision petition dismissedThis 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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