Judgment sheet

IN THE HIGH COURT OF SINDH AT KARACHI

Present
Mr. Justice Muhammad Jaffer Raza

Suit No. 1548 of 2006

Najmuddin through his legal heirs & others

Versus

Mst. Zaitoon Alavi and others

Suit No. 37 of 2004

Mohsin Ali

Versus

Mst. Zaitoon Alavi and others

Plaintiffs : Najmuddin through his legal heirs &

others through Mr. Muhammad Arif,
Advocate

Defendant No.3 : Mohsin Ali, through Mr. Rehan

Aziz Malik, Advocate

Date of Hearing: 20.02.2025

Date of announcement: 24.02.2025

JUDGMENT

MUHAMMAD JAFFER RAZA – J : Both these suits have been filed by the

respective Plaintiffs seeking relief in respect of the same subject property i.e. portion

of lands measuring 450.93 sq. yds., bearing survey Sheet No.LR.3, Lawrence Road,

Karachi. For the purposes of clarity, the usage of the terms Plaintiffs and Defendants

shall indicate the relevant parties for the purposes of Suit 1548/2006.

Brief facts in Suit 1548/2006

2. Learned counsel for the Plaintiffs in suit 1548/2006 has argued that the

Plaintiffs entered into a Sale Agreement dated 22.07.1974 with the Defendants No.1

and 2 for the subject property described fully in paragraph No.1 above. The details of

the sale agreement for the purposes of the present suit are not relevant as the Plaintiff

seeks the following prayers: -

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 a) To dispossess/eject the defendants, their agent or any person(s)
claiming through or under them from portion of land measuring
450.93 sq. yds. of Plot bearing Survey No.1, Sheet LR.3 Lawrence
Quarters, Karachi and order to hand over the vacant and peaceful
possession to the plaintiffs.

b) To direct the defendants No.1 to 3, to pay the sum of

Rs.75,000/- per month to the plaintiffs as being Mesne Profit from 31
December, 2002 to December, 2005 amounting to Rs.18,00,000/- and
so future Mesne Profit at the rate of 10% increase rate per annum till
the recovery of the same.

c) To grant Permanent Injunction restraining the defendants from

selling, transferring, encumbering and creating third party interest,
from raising any sort of construction in the suit property.

d) Any other relief’s which this Hon’ble Court under the

circumstances deem fit and appropriate in the interest of justice, equity
and law.

3. The learned counsel has argued that the Defendants No.1 and 2 did not honour

their commitment under the Sale Agreement mentioned above on one pretext or the

other, leaving the Plaintiffs with no option but to enforce their rights through courts of

competent jurisdiction.

4. The exhaustive history of litigation between the parties is as under: -

(a) Civil Suit No.1550/1996 was filed by the present Plaintiffs

against Defendants No.1 & 2. The suit of the Plaintiffs was
decreed vide judgment and decree dated 24.12.2001. Further, the
Defendants were directed to execute the sale deed in favour of
the Plaintiffs within thirty (30) days from the date of judgment
and in case of failure to do so, the Nazir was directed to execute
the same in favour of the Plaintiffs.

(b) Thereafter, Civil Appeal bearing No.51/2002 was filed by the

present Defendants No.1 and 2 against the Plaintiffs. The said
Civil Appeal was dismissed on 24.12.2002 and the learned
Appellate Court found the Appellants (Defendants No.1 and 2 in
the present suit) committed breach of contract.

(c) Thereafter, a Revision application was preferred against the order

of the above-mentioned Civil Appeal bearing No.28/2003 and
the same was also dismissed vide order dated 11.07.2003.
Thereafter, the conveyance deed was executed in favour of the

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 Plaintiffs for the subject property by the Nazir of the trial Court
and the same according to learned counsel for the Plaintiffs, is
still in the field.

5. The learned counsel for the Plaintiffs has further stated that though the

registered conveyance deed is in the favour of the Plaintiffs, the Defendant No.3 is

denying the Plaintiffs possession of the suit property and the instant suit has been filed

for possession and mesne profits.

6. The Defendants No.1 and 2 filed their respective written statement and perusal

of the same reflects that they did not specifically deny the history of litigation

highlighted in paragraph No.4 above and neither did they deny the execution of the

above-mentioned Sale Agreement.

7. Written statement was also filed by Defendant No.3. In the same the said

Defendant denied the execution of the Sale Agreement and essentially claimed himself

to be the owner of the Suit Property. The said Defendant took the stance that the

property was purchased by him from Defendant No.1 and 2. Interestingly, the written

statement filed by the Defendants No.1 and 2 is silent regarding any purported sale to

Defendant No.3. The said Defendant No.3 admitted to be in possession of the Suit

Property and stated that he is carrying on his business from the same. To augment his

stance vis a via possession the said Defendant annexed various utility bills. Lastly, the

said Defendant, incongruously, stated that the earlier suit decreed in favour of the

Plaintiffs (Civil Suit No.1550/1996) was a result of collusion between the parties to

the said suit and he was oblivious to the same.

Brief facts in Suit 37/2004.

8. The said suit has been filed by the Plaintiff (Defendant No.3 in Suit

1548/2006) seeking the following prayers: -

A. For a declaration that the Suit property is in exclusive and

uninterrupted possession of the Plaintiff and his predecessors-in-
interest since 1942, and that Defendants 1 and 2 had agreed to sell the
Suit property to Plaintiff’s predecessors-in-interest and had received
the entire agreed sale consideration in pursuance of such agreement;

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 B. For a declaration that, in view of the exclusive and uninterrupted
possession of the Suit property since 1942 and after payment of the
entire agreed sale consideration to Defendants 1 and 2, and also after
the death of Mst. Rubab Bai, the Plaintiff is the sole and absolute
owner of the Suit property, and Defendants 1 and 2 are liable to
complete the sale in favour of the Plaintiff;

C. For specific performance directing the Defendants 1 and 2 to

execute a proper sale deed in respect of the Suit property in favour of
the Plaintiff, and in case of their failure, the Nazir of this Hon’ble
Court may be directed to do the needful;

D. For a declaration that Defendant 3, 4 and 5 have no right, title or

interest in the Suit property, and that the Decree in Suit No.1550/1996
(old Suit No.727/1981) was obtained by them through fraud,
misrepresentation and collusion;

E. For Cancellation of the alleged conveyance deed in respect of the

Suit property executed in favour of Defendants 3, 4 and 5 on
14.07.2003 by the Nazir in Execution No.05/2002 before the IInd
S.C.J. Karachi South;

F. For permanent injunction restraining the Defendants, jointly and

severally, from claiming any right, title or interest in the Suit property
and/or from interfering in Plaintiff’s peaceful possession of the Suit
property;

G. For any other / additional relief(s) that this Hon’ble Court may
deem fit and proper in the facts and circumstances of this case; and

H. Costs of the Suit.

9. Without reiterating the stance adopted by the parties, suffice it to say that the

parties principally adopted the stance taken in suit 1548/2006. However, it is

noteworthy that the Defendants No.1 and 2 (also Defendants No.1 and 2 in Suit

1548/2006) in the present suit have categorically denied the execution of any

purported Sale Agreement between themselves and the Plaintiff in the present suit.

10. After filing of the respective written statements, on 25.01.2010 the following

consolidated issues were framed: -

(1) Whether the plaintiffs being owner of the suit property, by virtue of sale deed
executed by the Nazir of IInd Sr. Civil Judge, Karachi South, is liable to get
the physical and constructive possession of the suit property? If not what is its
effect?

(2) Whether the possession of the defendant No.3 is illegal on the suit property
and he is liable to be ejected from the suit property?

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 (3) Whether the defendants are liable to pay the plaintiffs, being owner of the suit
property, a sum of Rs.75,000/- per month from December, 2002 till the time
vacant and constructive possession is handed over to the plaintiffs and also
future mense profit at the rate of 10% increase rate per annum till recovery of
the same?

(4) Whether the defendants are in collusion with each other?

(5) Whether the defendant No.3, being the adopted son, has any locus standi to
defend this suit?

(6) What should the decree be?

FINDINGS

ISSUE NO:1 ………………. In Affirmative

ISSUE NO:2 ………………. In Affirmative

ISSUE NO:3 ………………. In Affirmative

ISSUE NO:4 ………………. In Negative

ISSUE NO:5 ………………. Answered accordingly

ISSUE NO:6 ………………. Suit of the Plaintiff is decreed as prayed

in terms of prayer clause (a) and (b).

11. Thereafter, on 24.03.2014, by consent, Mr. Kabeeruddin Khan, Advocate, was

appointed as Commissioner to record evidence. The worthy commissioner recorded

the evidence of the respective parties and returned the commission to this court.

The findings on the above issues are as under: -

Issues Nos.1 & 2

12. Both these issues are interlinked and will be dealt with collectively. Brief facts

of the case have already been dilated upon in the foregoing paragraphs, hence the

same need no reiteration.

13. I have heard the learned counsels and examined the plaint and affidavit-in-

evidence of the witness, namely, Aziz Najmuddin. In paragraph 6 of the plaint, it is

stated that an Execution application was filed by the Plaintiffs vide Execution No.5 of

2002, before the learned trial Court for execution of the decree in Suit 1550/1996. In

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this regard Nazir of the trial court executed Conveyance Deed dated 14.07.2003

(registered at No.1156 Book No.I Sub-Registrar T. Div. VI-B) in favour of the

Plaintiffs and execution application was disposed of. After the execution of the

conveyance deed, by the Nazir of the trial Court, the Plaintiffs were legally entitled to

the possession of the suit property being lawful owners of the same. In response to the

said paragraph, all the Defendants have denied the averments made therein and have

in a nutshell stated that the proceedings which resulted in the execution of the

conveyance deed are a result of collusion, fraud and misrepresentation. It is ironic for

the Defendants to make the above submissions in light of the previous litigation

mentioned above, which has attained finality.

14. The Defendants (more particularly defendants No.1 & 2) availed respective

remedies as highlighted above and failed in their endeavors. I have also examined the

file of Suit No.37/2004. The Plaintiff in the said suit (Defendant No.3 in Suit

No.1548/2006) is seeking cancellation of the conveyance deed, which has been

executed by the Nazir of the trial Court vide judgment and decree passed by courts of

competent jurisdiction. No appeal was filed by the said Defendant in respect of any of

the litigation highlighted in paragraph No.4 above. Further, the said Defendant has not

annexed with his written statement in Suit No.1548/2006 and Suit No.37/2004 an iota

of evidence, whereby, he can claim ownership of the subject property. To the contrary

his claim for ownership and/or specific performance has been categorically denied by

Defendants No.1 and 2. The said Defendant (Plaintiff in Suit No.37/2004) is seeking

declaration of ownership based on uninterrupted possession since the year 1942 and is

further seeking specific performance for an agreement entered into by himself with

Defendants No.1 & 2, which has been denied by the said Defendants. In this respect it

is held that this Court is not a Court of appeal and the prayers sought for by the

Plaintiff in Suit No.37/2004 cannot be granted by this Court.

15. The stance taken by the Plaintiffs has gone unrebutted and the Plaintiffs even

otherwise has proved through cogent evidence that he is entitled to the relief sought.

The evidence file reveals that the examination in chief of Aziz son of Najamuddin,

PW-1, was held on 06.12.2014 and the learned counsel on behalf of the Defendants

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sought various adjournments (as reflected in the Commissioner report dated

11.03.2017) and failed to cross examine the Plaintiffs’ witness. It is a settled principle

of law and under Article 79 of the Qanoon-e-Shahadat Order 1984 (“Order”), a

registered instrument is presumed to be correct unless it shown otherwise. The said

provision is reproduced below for the sake of convenience: -

“79. Proof of execution of document required by law to be attested. If

a document is required by law to be attested, it shall not be used as
evidence until two attesting witnesses at least have been called for the
purpose of proving its execution, if there be two attesting witnesses
alive, and subject to the process of the Court and capable of giving
evidence: Provided that it shall not be necessary to call an attesting
witness in proof of the execution of any document, not being a will,
which has been registered in accordance with the provisions of the
Registration Act, 1908 (XVI of 1908), unless its execution by the
person by whom it purports to have been executed is specifically
denied.” (Emphasis added)

Under Article 129 of the Order the court also has the power to presume the existence

of any fact/s it thinks likely to have happened. The same is reproduced below: -

“129. Court may presume existence of certain facts. The Court may
presume the existence of any fact which it thinks likely to have
happened, regard being had to the common course to natural events,
human conduct and public and private business, in their relation to
the facts of the particular case.

Illustrations

The Court may presume—

(e) that judicial and official acts have been regularly performed;

In the case of Mst. NAZEERAN and others Versus ALI BUX and others1 the

Honourable Supreme Court of Pakistan in paragraph Number 13 held as under: -

“13. The standard of evidence required to discharge the initial burden

depends on the facts and circumstances of each case. It cannot be said
that it will be consistent in all situations. Sometimes, a simple denial is
adequate to shift the burden to the opposite party, while at other times,
material evidence is necessary for the same purpose. Therefore, the
standard of evidence is not uniform when challenging a registered
document as compared to challenging an unregistered document. It
has been observed that in disputes relating to registered documents, a

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2024 S C M R 1271

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 common misconception may arise when an executant attempts to
dispute the validity of the document through mere denial. It is essential
to emphasize that the act of registration is not a perfunctory formality
but rather a deliberate and legally binding process. When a document
is registered, it becomes an official record available to the public. This
adds credibility to the authenticity and legal purpose of the
transaction.

On the other hand, unregistered documents lack the same level of legal
endorsement. While they may carry evidentiary weight, their value is
inherently lessor as compared to the registered document. The absence
of registration renders unregistered documents vulnerable to
challenges regarding their authenticity and enforceability. Moreover,
a document duly registered by the Registration Authority in
accordance with the law becomes a legal document that carries a
presumption as to the genuineness and correctness under Articles
85(5) and 129(e) of the Q.S.O. and which cannot be dispelled by an
oral assertion that is insufficient to rebut the said presumption.”
(Emphasis added)

16. The Defendants have only filed their respective written statements and have

not cross-examined the witness of the Plaintiffs. Therefore, in this regard the

averments made in the plaint and affidavit-in-evidence are deemed to be admitted by

the Defendants. Moreover, registered instrument i.e. conveyance deed has been

registered in favour of the Plaintiffs and despite the same it is Defendant No.3, who is

enjoying the possession of the property. The Defendant No.3 has not stepped into the

witness box and neither has the said Defendant filed any document with his written

statement, demonstrating that he is in legal occupation of the property. In light of what

has been held above, I see no cavil in holding that the Plaintiffs being the owners by

virtue of the conveyance deed are liable to get physical and constructive possession of

the suit property and the Defendant No.3 is liable to be evicted from the suit property.

The said issues are answered in the affirmative.

Issue No.3.

17. Plaintiffs in prayer clause (b) are also seeking mesne profit for the period that

they have not been in possession of the subject property. Mesne profits are defined in

Section 2 (12) of the CPC as under: -

“(12) "Mesne profits" of property means those profits which the

person in wrongful profession of such property actually received or
might with ordinary diligence have received therefrom, together with

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 interest on such profits but shall not include profits due to
improvements made by the person in wrongful possession:”

The power of the court to grant mesne profit stems from Order XX Rule 12 CPC. The

same is reproduced as under: -

“12-(1) Where a suit is for the recovery of possession of immovable

property and for rent or mesne profits, the Court may pass a decree
a) for the possession of the property;
b) for the rent or mesne profits, which have accrued on the property
during a period prior to the institution of the suit or directing an inquiry
as to such rent or mesne profits;
c) directing an inquiry as to rent or mesne profits from the institution of
the suit until
i. the delivery of possession to the decree-holder;
ii. the relinquishment of possession by the judgement-debtor with
notice to the decree- holder through the Court; or
iii. the expiration of three years from the date of the decree
whichever event first occurs.
(2) Where an inquiry is directed under clause(b) or clause (c), a final
decree in respect of the rent or mesne profits shall be passed in
accordance with the result of such inquiry.”

In the case of Gul Bano Versus Shahnaz Bano and others2 the learned single judge

of this court in paragraphs number 10 and 11 held as under: -

“10. It is an established position that mesne profit is damage

or compensation recoverable from a person, who has been in
wrongful possession of an immovable property. It is a settled
principle of law that wrongful possession is the very essence of
claim for mesne profit and for seeking mesne profit, a person
must be owner of the captioned property or having right to its
possession. Clause (12) of Section 2, C.P.C. gives meaning to
the term "mesne profit" to include those profits, which the
person in wrongful possession of such property actually
received (or might with the ordinary diligence) have received
therefrom. According to the said clause, a person becomes
entitled to mesne profit only when he has right to obtain
possession from another person whose possession is
unauthorized and who keeps the former deprived of such a
possession. The first and foremost condition for awarding
mesne profit is the unlawful possession of the occupant of the
property.
11. A bare reading of the above definition makes it is clear that
any person in possession of a property and enjoying benefit
therefrom to the exclusion of rightful owner(s) is liable to pay
rent or mesne profit.”

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2023 C L C 861

9
18. The test for grant of mesne profits can be broken down as follows: -

a. The person seeking mesne profit has to first establish entitlement

and/or ownership of the property;
b. Thereafter, the person seeking means profit has to establish wrongful
possession by the person against whom a decree of mesne profit is
sought.

19. It is well established that once the court records a finding that the Defendant

was in unauthorised possession or that it was the Defendant who was instrumental in

depriving the Plaintiff of the lawful enjoyment of his property, he would be liable to

pay mesne profits. It has already been established in the findings given in respect of

Issues No.2 and 3 that the Plaintiffs are owners of the subject property and entitled to

the possession of the same, consequently I see no cavil in holding that the Plaintiffs

are entitled to mesne profits as prayed. Therefore, this issue is answered in the

affirmative.

Issue No.4.

20. The Plaintiffs have not led any cogent evidence in this regard regarding the

alleged collusion between all the Defendants. It was specifically enquired from the

learned counsel for the Plaintiffs as to what benefit this issue, if answered in

affirmative, would be to the Plaintiffs. Learned counsel in response, very categorically

stated that he does not wish to allege the said collusion as long as the suit is decreed in

terms of prayer clause (a), (b) (c), therefore, this issue is answered in negative.

Issue No.5.

21. It has been claimed by the Plaintiffs that the Defendant No.3 is the adopted son

of Plaintiffs No.1 & 2. Learned counsel for the Plaintiffs in this regard has very

categorically and correctly stated that under Islamic injunctions there is no concept of

adoption and his adoption, if at all, is otherwise immaterial to the case. I agree with the

contention of the learned counsel for Plaintiffs. Once the ownership and/or entitlement

of the Plaintiffs has been adjudicated upon in earlier rounds of litigation (mentioned in

paragraph number 4) there is no need to deliberate the parentage of the Defendant

No.3. This issue being of no consequence is answered accordingly.

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22. In light of what has been held above the suit is decreed in favour of the

Plaintiffs in terms of prayer clauses (a), (b) and (c), as prayed.

Office is directed to prepare the decree in favour of the plaintiffs in the above

terms.

JUDGE

Nadeem

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