Form No: HCJD/C-121

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

(JUDICIAL DEPARTMENT)

W.P. No.3853/2021

Ghulam Ahmed Chaudhry (deceased) through legal heirs

Versus

Akbar Hussain (deceased) through legal heirs & 4 others

Petitioners by : Syed Asghar Hussain Sabzwari, Advocate

Respondents by : Mr Shajjar Abbas Hamdani, Advocate.

Mr Daniyal Hassan, Advocate.

Date of Hearing : 14-06-2022.

ATHAR MINALLAH, C.J.- The legal heirs of Ghulam

Ahmed Chaudhry (hereinafter referred to as “Petitioners”) (Ghulam

Ahmed Chaudhry shall be referred to as the “Predecessor-in-

Interest/Defendant”) have invoked the jurisdiction of the Court

under Article 199 of the Constitution of the Islamic Republic of

Pakistan, 1973 (hereinafter referred to as the „Constitution‟)

seeking the following prayers.-

“It is therefore respectfully prayed that this honourable

court may graciously be pleased to call for the record,

examine the same, accept this petition, set aside the

impugned judgment and decree and restore that of the

trial court rejecting the Suit of the Respondents.

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Any other relief, which this Honourable Court deems

appropriate, may also be awarded to the Petitioner”.

2. The facts and circumstances of the case are peculiar. The

case highlights the hardship of an Overseas Pakistani, who despite

taking utmost care had lost his property through fraud. The Overseas

Pakistani, Akbar Hussain (hereinafter referred to as the

“Owner/Plaintiff”) had pursued his case since 1979 and during the

pendency of the litigation he passed away. He was survived by a son

Muhammad Lehrasib (hereinafter referred to as the “Surviving

Heir”) and his widow Mst Raheem Jan. The latter also passed away

while the protracted litigation remained pending.

3. The Owner/Plaintiff purchased plot no.31, street no.32,

sector F-6/1, Islamabad (hereinafter referred to as the “Property”).

The title of the Property was transferred in his name by the Capital

Development Authority (hereinafter referred to as the “CDA”) vide

letter, dated 22-11-1972. He constructed a house and left for the

United Kingdom. It is noted that the Owner/Plaintiff was settled in the

United Kingdom and the Property was taken care of by one of his

nephews, Muhammad Banaras. The Property was rented by the latter

and rent was being received regularly. However, the nephew also

went abroad in connection with his employment. On his return in

1977, he discovered that the Property was in possession of the

Predecessor-in-Interest/Defendant. The Owner/Plaintiff was informed

and pursuant thereto he visited Pakistan and made inquiries from the

CDA. The latter informed him that on the basis of an application, the
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Property was transferred in the name of one Tasaddaq Hussain vide

letter, dated 02-04-1977. The said Tasaddaq Hussain was shown as

the son of the Owner/Plaintiff. Tasaddaq Hussain had transferred the

Property in the name of the Predecessor-in-Interest/Defendant vide

letter, dated 13-05-1977 i.e. after about a month of the transfer in

his own name. The Owner/Plaintiff had not visited Pakistan during the

period when the purported transfer in the name of Tasaddaq Hussain

had taken place. The Owner/Plaintiff filed a written complaint at the

police station Kohsar and pursuant thereto a criminal case i.e. FIR,

dated 29-10-1978, was duly registered. Simultaneously, a suit was

also filed on 20-01-1979 by the Owner/Plaintiff. It was explicitly

asserted in the plaint that the transfer in the name of Tasaddaq

Hussain was based on fraud because he was neither his son nor the

application was filed by the Owner/Plaintiff. The suit was contested by

the Predecessor-in-interest/Defendant by filing written statement.

Seven issues were framed by the learned trial court out of the

divergent pleadings. After recording of evidence and affording an

opportunity of hearing to the parties, the learned trial court vide

judgment, dated 28-07-1987, dismissed the suit of the

Owner/Plaintiff on the sole ground that the Predecessor-in-

interest/Defendant was a bonafide purchaser. Regular First Appeal

No.27/1987 was allowed by the learned Lahore High Court,

Rawalpindi Bench, vide judgment, dated 07-06-2001, and resultantly

the judgment and decree, dated 28-07-1987, was set aside and the

matter was remanded to the learned trial court for deciding the suit

afresh after impleading Tasaddaq Hussain as one of the defendants.

The amended plaint was accordingly filed by the Owner/Plaintiff. The

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judgment of the learned Lahore High Court, dated 07-06-2001, was

assailed before the august Supreme Court through C.P.L.A.

No.2391/2001. During pendency of the proceedings, the

Owner/Plaintiff passed away and, therefore, his legal heirs were

impleaded in the suit. The apex Court vide judgment, dated 18-04-

2002, upheld the judgment of the learned Lahore High Court and

disposed-of by directing the learned trial court to decide the suit

within a period of four months. The suit of the Owner/Plaintiff was

again dismissed by the learned trial court vide judgment, dated 14-

12-2002. It is important to note that Tasaddaq Hussain who had

fraudulently claimed to be the son of the Owner/Plaintiff was

impleaded as one of the defendants. The latter could not be traced

nor the Predecessor-in-interest/Defendant or the CDA were able to

identify him. It is further disturbing to note that investigations in FIR,

dated 29-10-1978, remained inconclusive. The State was not able to

trace the identity of the person who had fraudulently posed himself

as the son of the Owner/Plaintiff. The identity card produced by the

person posing to be Tasaddaq Hussain at the time of transfer of the

property was subsequently found to be forged. It is ironic that the

record relating to FIR, dated 29-10-1978, mysteriously went missing.

The legal heirs of the Owner/Plaintiff filed R.F.A. No.167/2003. The

appeal was, however, dismissed for want of prosecution vide order,

dated 08-06-2009. One of the legal heirs, Muhammad Lehrasib,

travelled to Islamabad in 2012 and discovered that the appeal was

dismissed for non-prosecution in 2009. Petition under Order XLI, rule

19 of the CPC alongwith an application under section 5 of the

Limitation Act, 1908 was filed for restoration of the appeal and
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condonation of the delay. The said petition was dismissed by the

learned Additional District Judge, Islamabad vide order, dated 14-12-

2013. The said order was assailed before this Court through C.R.

No.429/2015, which was allowed vide judgment, dated 03-05-2019.

The order of this Court was challenged before the august Supreme

Court vide Civil Appeal No.750/2020 and it was dismissed vide order,

dated 26-05-2021. It is noted that the order, dated 13-05-2019,

passed by this Court had consequently attained finality. The learned

Additional District Judge vide judgment, dated 29-07-2019, allowed

the appeal filed by the legal heirs of the Owner/Plaintiff. Civil Revision

No.335/2019 was dismissed by this Court. However, the august

Supreme Court vide order, dated 26-05-2021, allowed C.P.

No.749/2020 and consequently remanded the matter to the learned

appellate court. Pursuant to the remand, the learned appellate court

allowed the appeal vide judgment, dated 22-09-2021.

4. The learned counsel for the petitioner has mainly argued

that the latter was a bonafide purchaser and, therefore, his rights

were protected. He has further argued that the onus was on the

respondents to prove that the Owner/Plaintiff had not visited Pakistan

at the time when the title of the Property was transferred in the name

of Tasaddaq Hussain.

5. The learned counsel for the respondents, on the other

hand, has argued that no right can be claimed on the basis of fraud

and, therefore, the principle of bonafide purchaser is not attracted.

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6. The learned counsels have been heard and the record

perused with their able assistance.

7. Admittedly the Owner/Plaintiff was an Overseas Pakistani,

permanently residing in the United Kingdom. After discovering that

the Property was in possession of the Predecessor-in-

interest/Defendant, he had registered a criminal case i.e. FIR, dated

29-10-1978. It was an obligation of the State to trace the person who

had presented himself before the CDA as “Tasaddaq Hussain”. As

already noted, the identity card of the person who had represented

himself as “Tasaddaq Hussain” was later found to be forged.

Mysteriously, the record relating to the criminal case also went

missing. The Owner/Plaintiff had filed a suit and had taken the

specific plea of fraud. On the criminal side, it was the duty of the

State to trace the person who had posed himself as Tasaddaq

Hussain on the basis of a forged identity card and pursuant thereto

had fraudulently managed to transfer the property in his name. The

evidence brought on record unambiguously establishes that the CDA

had not exercised due diligence nor had observed the prescribed

procedure at the time of transfer of the Property in the name a

person who had posed himself as the son of the Owner/Plaintiff. The

Owner/Plaintiff had taken all reasonable steps that a prudent person

would have taken in the circumstances. He was an Overseas Pakistani

and was permanently living in the United Kingdom. The learned

counsel for the petitioner, despite his able assistance, could not point

out any misreading or non-reading of the evidence. However, he had

mainly argued on the basis of the status of the predecessor-in-

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interest of the respondent as a bonafide purchaser. There is no force

in the argument that the Owner/Plaintiff may have committed fraud.

This argument is fallacious because the Owner/Plaintiff could not

have gained any benefit whatsoever by fraudulently transferring his

own Property in the name of a mysterious person who had posed as

“Tasaddaq Hussain”. No benefit or gain could be derived by the

Owner/Plaintiff. The latter’s conduct i.e. registration of a criminal case

and filing a suit, was sufficient to establish the bonafide of the

Owner/Plaintiff.

8. The august Supreme Court, in the case titled “Ghulam

Rasool and others v. Noor Muhammad and others” [2017 SCMR 81],

has described the essential ingredients regarding a bonafide

purchaser and the same in the language of the august Court are as

follows.-

“The essential ingredients of this section are,

(a) that the transferor was the ostensible owner; (b)

that the transfer was made by consent express or

implied of the real owner; (c) that the transfer was

made for consideration; and (d) that the transferee

while acting in good faith had taken reasonable care

before entering into such transaction. These four

imperative/essential ingredients must co-exist in

order for a person to takes the benefit of the

equitable principle, however, merely on account of

some error committed by the revenue staff in the

revenue record unintentional or deliberate or

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motivated which excludes the name of the lawful

owner of the property therefrom and the property,

shown to be in the name of some other person who

is not the owner of the whole or a part thereof by

itself shall not deprive and denude the true and

actual owner from the title of the property and this

by no means can be construed that the transfer to

the person claiming protection of the rule of equity

ibid by a person who actually is not the owner is

being made by consent express or implied of the

real owner.”

9. It is settled principle of law that fraud vitiates all

proceedings. The august Supreme Court has unequivocally held that

there is no cavil to the proposition that all instruments, deeds,

judgments or decrees obtained through fraud are a nullity in the eyes

of law and can be quashed at any time so much so that such

documents can be ignored altogether by any court of law. The factum

of fraud vitiates the most solemn proceedings and that no party can

be allowed to take advantage on the basis of fraud nor any right or

superstructure can be based thereon. Moreover, a right cannot be

claimed in case of transfer of property through deceit or without

knowledge of its owner. Reliance is placed on “Muhammad Zafarullah

through L.Rs. and others v. Muhammad Arif through L.Rs. and

others” [2007 SCMR 589] and “The Chief Settlement Commissioner,

Lahore v. Raja Muhammad Fazil Khan and others” [PLD 1975 S.C.

331], “Lal Din and another v. Muhammad Ibrahim” [1993 SCMR

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710], “Muhammad Younas Khan and 12 others v. Government of

N.W.F.P. through Secretary, Forest and Agriculture, Peshawar and

others” [1993 SCMR 618], “Government of Sindh through the Chief

Secretary and others v. Khalil Ahmed and others” [1994 SCMR 782].

10. In the facts and circumstances of the case in hand, the

above highlighted principles regarding equitable principle of bonafide

purchaser are not attracted. The person who had posed himself as

Tasaddaq Hussain does not exist and such a presumption could not

be rebutted by the Petitioners nor the CDA. The State had also failed

in its duty to identify the person who had maneuvered the fraudulent

transfer of the Property. The transfer of the Property in the name of a

person posing himself as Tasaddaq Hussain was based on fraud and

thus it was void. It is an embedded principle of law that when the

basic order is without lawful authority, then all superstructure built on

it would fall on the ground. Reliance is placed on the cases titled

“Yousaf Ali v. Muhammad Aslam Zia and 2 others” [PLD 1958 SC

104] and “Rehmatullah and others v. Saleh Khan and others” [2007

SCMR 729]. The Court is, therefore, satisfied that the impugned

judgment does not suffer from any legal infirmity nor the Court while

exercising jurisdiction under Article 199 of the Constitution can

reappraise the evidence brought on record and substitute the opinion

of the appellate court. The CDA, as a custodian of the Property, had

failed in its duty to exercise due diligence, rather, its complacency in

perpetuating the fraud cannot be ruled out. The Court is, therefore,

satisfied that the principle of equity i.e. bonafide purchaser, is not

attracted in the case in hand.

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11. For the above reasons, the petition is without merit and,

therefore, accordingly dismissed.

(CHIEF JUSTICE)

Announced in the open Court on 06-07-2022.

(CHIEF JUSTICE)
Luqman Khan/*