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Suit No. 602 of 1981 and Civil Miscellaneous Applications Nos. 4287, 4288, 4289, 4290 of 1981, decided on 3rd November, 1983.

‑‑ O. XXXIX, rr. 1 & 2‑Prohibitory injunction‑Plaintiff suing for declaration, possession etc. in respect of two plots of land purchased by predecessor‑in‑interest of plaintiff on ground that predecessor‑in- interest of defendants who was holding power‑of‑attorney on behalf of said plaintiff misusing his position as attorney mutated same in name of defendants‑Defendants contesting suit on ground that pro perty belonged to a partnership in which said plaintiff had only one‑fourth share which was also sold by him to his said attorney who was husband and father of defendants‑After expiry of first lease of 12 years defendants had extended for another period of 12 years in favour of another defendant to be used by it as Petrol Filling Station‑Held, defendants were enjoying uninterrupted possession and benefits of suit property for past so many years‑Such defendant could not be disturbed on mere allegations and assumptions‑‑Con duct of said plaintiff during his lifetime and plaintiff's after his death was not such as to inspire confidence in their story‑Prohibi tory injunction restraining defendants from enjoying suit property, refused in circumstances with directions that defendants should not dispose of property without prior notice to plaintiffs.

Ismail Kassim for Plaintiffs.

Saeed Ghori for Defendants Nos. 1 to 4.

Amjad Hussain for Defendant No. 5.

Date of hearing : 26th October, 1983.

C. M. A. No. 4287 of 1981

This suit has been filed for "declaration, cancellation of instruments, correction of record‑of‑rights, possession, recovery of Rs. 1,12,500 and permanent injunction".

Facts of the case may be briefly stated ; One Ch. Abdul Razzak pre decessor‑in‑interest of the plaintiffs purchased two plots bearings Nos. G/1 and G/3, G/4. Both are adjacent and are situated on R. B. 3/10, Survey No. III‑A‑30, Ram Bagh Quarters, Karachi, and may be called "Property". Abdul Razzaq had purchased these two Plots from two different owners. It is the case of the plaintiff that Abdul Razzak appointed one Major Zulfiqar Ali Bukhari who is the predecessor‑in‑interest of defendants Nos. 1 to 4 to look after and manage the property as the said Abdul Razzak was resident of Rawalpindi. It is alleged that this Zulfiqar Ali Bukhari with questionable motives, utilizing the power of attorney got the (two plots)' property mutated in the names of defendants Nos. 1, 2, 3 and 4. It may be stated that the two plots (the property) were acquired for utilizing them for running a petrol pump. On 13th May, 1965, under an agreement of lease the property was leased out to Burmah Shell, defendant No. 5, and a sum of Rs. 55,000 which was paid by the Burmah‑Shell was received by Abdul Razzak. On 3rd March, 1967, a regular lease deed was executed in favour of Burmah‑Shell by Zulfiqar Ali Bukhari on behalf of "Abdul Razzak and company" for a period of 12J years. An amount of Rs. 2,65,000 was paid by the company in advance for the entire term of the lease.

The main point of controversy in this case is that plaintiffs claim that this is the exclusive property of Abdul Razzak and as such they are entitled to have it as the legal heirs of Abdul Razzak. On the other hand the defendants main tain that the property belonged to a partnership in which Abdul Razzak was only a shareholder to the extent of four annas. The remaining 12 Annas belonged to the defendants Nos. 1, 2 and 3 in the proportion of a share of four Annas each. This assertion is made on the basis of a, partnership deed executed between Abdul Razzak and defendants Nos. 1, 2 and 3. It may be stated that both Abdul Razzak and Zulfiqar Ali Bukhari are now dead. Abdul Razzak died on 2‑11‑1972 and Zulfiqar Ali Bukhari died in January, 1981.

On 9‑9‑1968 an application was moved by Abdul Razzak to the City Deputy Collector praying therein that the property in question was purchased by him on behalf of himself as well as three other partners who are co‑owners in the property. As such their names may be mutated in the record. This application was supported by an affidavit of the same date. A copy of the partnership deed dated 1‑4‑1965 was also filed in support of this application. On this application the City Deputy Collector recorded the statement of Major Z. A. Bukhari who was representing Abdul Razzak as the latter's attorney. And this application was granted. Names of four persons including Abdul Razzak were mutated as owners of this property. Later, on 14th October, 1968, another application was moved by Syed Ali Suleman Bukhart praying therein that the 4 Annas share which was held by Abdul Razzak in the property has been purchased by him for a sum of Rs. 46,000 by virtue of a sale‑deed executed on 17th October, 1969, and ,duly registered on 31st January, 1970. It was prayed that his name may be mutated in the record as full owner . of 1/4 share in place of Abdul Razzak who was holding this 1/4 till the time of making of this application. This request was also granted and the result was that defendants Nos. 1, 2, 3 and 4 appeared as full owners of the entire property in the record of rights.

As stated above the terms of the original lease which was for a period of 121 years expired sometimes in March, 1978 and a fresh lease was executed on this date between Burmah‑Shell Company, defendant No. 5. and the defendants Nos. 1, 2, 3 and 4. It is alleged that the company has paid a sum of Rs. 1,12,500 as advance for a period of ten years from March, 1978, onward. This amount has admittedly been paid by the defendant No. 5 to the defendants Nos. 1 to 4.

It is contended on behalf of the plaintiffs that Abdul Razzak died on 2‑11‑1972, and they have had no knowledge about this property. They carne to know about it after the death of their uncle and have filed this suit for rectification of the records, cancellation of 'the documents and recovery of money.

The above is narration of the facts. Now the plaintiffs by filing a suit on 19th November, 1981, are seeking to re‑open the transactions which took place during the year 1968. They are now saying that the partnership deed is bogus. The applications and affidavits on the basis of which the mutation has taken place were not signed by the Abdul Razzak. That the defendant Zulfiqar Ali Bukhari on the strength of the general power of‑attorney dated 31st December, 1968, has played fraud and to acquire illegitimate gains has concocted and has forged documents.

The learned counsel for the defendant who contest the claim of the plaintiff on behalf of defendants Nos. 1 to 4 has contended that the story set up by the plaintiffs is totally imaginary and unfounded. He has empha tically denied the allegations of fraud and forgery attributed to the late Zulfiqar Ali Bukhari. He states that the suit is hit by the doctrine of estoppel the doctrine of acquisance and is clearly time‑barred. There is no doubt that the plaintiffs will have to substantiate their claim on merits by establish ing that these documents and the official record which shows the plaintiffs as the true owners of the property are not genuine. That the delay in coming to the Court as late as 1981 for re‑opening transactions which were concluded in 1969 is explainable.

I have given a serious considerations to these conflicting claims and have formed some opinion. But it is not proper to express that opinion at this stage lest it may prejudice any of the parties. I may, however, reproduce a paragraph of the partnership deed which to my mind might yield wealth of information at the time when the parties turn up for final hearing with evidence ; and further evidence is forthcoming. A paragraph which has drawn my attention is occurring in the partnership deed. It is as follows:‑

"Whereas the 1st Party had entered in verbal agreement to purchase Plots Nos.III‑A‑30, R. B. 3/10 and III‑A‑3U, R. B. 3/10 with a view to run a Petrol Pump and Service Station, but not having sufficient capital to undertake this venture on his own, approached 2nd, 3rd and 4th parties to exercise their influence and negotiate with Burmah -Shell for setting up of a Petrol Pump and Service Station on the basis of advance receipt of rent which would pay for the purchase of the said property and offered to share the said property and business equally amongst the aforesaid partners each one getting 1/4th share in tae said property as well as business."

What I visualize, subject to what comes in the evidence, is that Zulfiqar Ali Bukhari had some pull with the Burmah‑Shell and was in a position to pursuade them to instal a petrol pump on the land and also to pay advance for a period of 12j years. With this bargaining position he entered into an agreement with Abdul Razzak to lend his name to be mentioned' in the documents. For showing this favour he would be taken a partner and would be given a share to the extent of 4 annas. Perhaps the purchase of the property was financed by the advance money realized from the Burmah‑Shell as advance rent. And, in this way Z. A. Bukhari intro duced his wife and his two minor sons in the business of petrol pump. To secure his interest further he obtained general power‑of‑attorney from the said Abdul Razzak so that he could regularize this transaction from time to time as occasion and necessity demanded. That in pursuance of the agreement or undertaking between himself and Abdul Razzak he moved the applica tions before the City Deputy Collector and obtained mutations etc. It is quite possible that he might have reached some undertaking with Abdul Razzak in respect of his 4 Annas share also which he purchased in the name of his son the defendant No. 4 by a duly registered sale‑deed dated 31‑1‑1970. (filed in this suit as Annexure M' to the plaint). I may at once say that these observations may not be taken as findings in the case and should not pre judice the interest of any party. 1t is hard to believe that Abdul Razzak would have allowed a stranger to continue to hold a general power of attorney executed as early as 31st December, 1966, and till he died. The nature of the property is such that after the final lease deed was executed on 3rd March, 1967, and full amount of lease money for a period of 122 years was recovered from the petrol company nothing remained for the attorney to do for which this power‑of‑attorney could be left with Bukhari. The story that such an important event and his ownership of such a valuable unit of property should not have been mentioned by Abdul Razzak to the family does not also inspire confidence. The plaintiffs have sought to explain the delay in filing suit by stating that the documents relating to this property were not with Abdul Razzak at the time of his death but were held by the uncle of the plaintiffs who was an elder of the family. That the plaintiffs came to know about it after the death of the uncle. I may repro duce the version of the plaintiffs in their own words. In para. 14 of the plaint it is stated :‑------

"14. That as per the family traditions of the plaintiffs the title documents of the properties and the securities were being handled and taken into the custody by the elders of the family i.e. late Muhammad Khurshid who was the elder brother of the late Ch. Razzak. On the death of said Ch. Abdul Raazak the plaintiffs received the estates and securities available at the relevant time through their uncle. However, since the said property was under lease for twelve and a half years and the rent thereof was received in advance by their late father they were not aware of these properties on the death of their father. The said Muhammad Khurshid even tually also died on 20‑8‑1980 at London. The plaintiffs thereafter sometime in early 1981, came to know about the title deeds of the said property owned by their late father at Karachi."

As stated above Abdul Razzak died on 2nd November, 1972, and till then did not say anything to any one nor objected to mutations etc. which took place in 1968. That after his death the uncle Muhammad Khurshid remained setting over the documents till 20th August, 1980, when he died. That no mention was made by either Abdul Razzak or Muhammad Khurshid about this property all these long years requires concrete proof. It may be mentioned that the term of 121 years expired in 1978, and a fresh lease has been executed by defendants Nos. 1 to 4 and a substantial amount of money has also been recovered by them as advanced rent. In my opinion this was an important occasion when the uncle who was still alive and allegedly was holding the documents should have made efforts to recover this handful of money which was in sight in March, 1978.

The defendants who are enjoying the possession and benefits of the property undisturbed and uninterrupted for all these cannot be disturbed on mere allegations and assumptions. The conduct of Abdul Razzak during his life time and of the plaintiffs after his death also does not leave an impression that the story set up is fool proof and convincing. The plaintiffs at the time of final hearing may be able to substantiate and establish their version and prove the allegations of fraud and forgery but for the present I am not inclined to issue a prohibitory injunction restraining the defendants from enjoying the property. I may, however, say that the case should be expe dited. That if the plaintiffs went to dispose of or transfer interest in the property they should not do so without prior notice to the plaintiffs who at that time would be entitled to approach the Court for such orders as may be deemed necessary in the circumstances of the case at that time. In para. 10 of the counter-affidavit they have denied the allegations and have said that they have no intention of disposing of the property. In these terms the application is disposed of. Parties to bear their own costs.

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