Find a Lawyer

Execution Application No. 9 and Civil Miscellaneous Application 1284 of 1984, decided on 4th January, 1987.

‑‑‑0. XXI, Rr. 10, 58, 59 & 60 read with S. 151‑‑Law Reforms evidance ' (XII of 1972), Sched., C.P.C., S. 6 (viii) (f) ‑‑‑Execution of decree‑ Attachment of property‑‑Investigation of claims and objections‑ Intervenor, on account of amendments made in Rr.58, 59 & 60 of O.XXI, C.P.C by Law Reforms Ordinance, 1972, cannot make out a case for a release of attachment in an application under, R.58 OXXI, C.P.C. by only establishing that he was in possession but h would have to establish that his possession was such, which was recognized by law as a right or interest in the property‑‑Trespasser or a bare licensee was not a person who could be said to have any title to or right or interest in the property but, on the other had, a person having obtained possession under an agreement of sale and having paid part or whole consideration would be a person hand a right or interest in the property.

‑‑‑0. XXI, Rr. 58, 59 & 60 [as amended by Law Reforms Ordinance (XII of 1972)]‑‑Execution of decree‑ ‑Attaolment of property‑‑Objection by intervenor‑‑ Objections to execution application earlier filed by judgment‑debtor averring that the property in dispute had been sold Ito intervenor already rejected by Court‑‑Fact of filing such like application by intervenor under R. 5P of 0. XXI, C.P.C. only few days after rejection of earlier objection indicating that the judgment debtor and the intervenor were in league ,with each other attempting to save the property in dispute from being attached and sold in execution‑‑ Evidence adduced by intervenor about the agreement of sale and payment of consideration to the judgment‑debtor was not confidence inspiriting and was found to be suffering from various material contradictions and such documents appearing to have been prepared later on in an attempt to set up a defence so as to get out of attachment and sale of property in dispute‑‑Agreement of sale also not a genuine document‑‑Intervenor, held, had not been able to establish that he had any title, right or interest in disputed property And as such his objection application was liable to be dismissed.

Mir Laik Ali v. Standard Vacuum Oil Company (Esso) P L D 1964 S C 220 held not applicable. Ali Akbar for the Decree‑Holder. S. Hamid Hussain for the Intervenor.

Suit No. 926 of 1978 was filed by Mst. Razia (3hafoor (decree -holder) for compensation under the Fatal Accidents Act. The suit was decreed in the sum of Rs.1,68,000 with interest and costs subject to the limitation that the decree against defendant No.l, the Insurance Company, was only for Rs.20,000. By the decree, the decretal amount was also apportioned amongst legal representatives of deceased S.M.A. Ghafoor (husband of the decree‑holder). The decree not being satisfied, the present Execution Application No. 9 of 1984 was filed by the decree- holder against the judgment‑debtors praying, inter alia, for attachment and sale of the House No. E‑331; Kausar Town, Khokhrapar No.l, Karachi, and C/47/13, Malir Tanky, Karachi, belonging to judgment debter, No. 3, Muhammad Shafi son of Hasan Ali. On notice of the execution application being issued to the judgment‑debtors, judgment debtor No.3, Muhammad Shafi filed objections averring that he had already transferred the aforesaid House No. E‑331 to one Maqsood Ahmad son of Sultan Ahmad annexing a copy of the agreement of sale dated 16‑11‑1981 and that he had also handed over the vacant possession to the said purchaser. In para. 5 of the objections filed on 11‑10‑1984, judgment‑debt" or No. 3 stated that he was "completely bankrupt and pauper and he is not at all in a position to pay the decretal amount and also he has no property in his own name, the house in question has already been transferred to the above‑named person who is already in possession of the house in question." The objection regarding the aforesaid property i.e. House No. E‑331 was rejected by this Court by order dated 28‑10‑1904 observing as follows:‑

"Judgment‑debtor has filed objections stating that in respect of House No. E‑331 he has entered into an agreement of sale with Maqsood Ahmad s/o Sultan Ahmad and the said Maqsood Ahmad is in possession of the said house. It is however admitted that the property has not. yet been mutated or finally transferred in the name of the said N4'aqsood Ahmad. Decree‑holder has also disputed the genuinene, of this document. With regard to C‑47/13, Malir Tanky ids concerned, in the counter‑affidavit nothing has been stated about this house. The learned counsel at the time of hearing 'contended that it is rented premises where judgment‑debtor is residing .............................

.......... I, therefore, for the present direct attachment and sale of the immovable property bearing No.E‑331 and C‑47/13 mentioned in the execution application."

Thereafter intervenor Maqsood Ahmad s/o Sultan Ahmad appeared on the scene by filing an application under Order XXI, Rule 58 read with section 151, C . P . C . (C . M . A . No.1284 of 1984) dated 18‑11‑1984 praying that an investigation be made for the purpose of satisfying the Court that the intervenor has title to or right or interest in the said property E‑331 in Kausar Town, Malir,. measuring 120 sq. yds. and that this property was not liable to attachment. A request was also made for release of the property from attachment on the ground that it was not liable to be attached as it belongs to the intervenor exclusively. By order dated 3‑3‑1985 it was observed by this Court that the dispute raised by the inervenor was to be resolved after proper evidence and scrutiny and, by order dated 20‑5‑1985, the following questions were framed for determination in respect of C . M . A . No.1984 of 1984 filed by the intervenor: ‑

(a) Whether the alleged agreement dated 16‑11‑1981 is a genuine document

(b) Whether the intervenor has acquired any right, title or interest in the property in question in good faith and for consideration

2. What should be the order

On the same day, on behalf of the intervenor, the following three witnesses were examined in support of C.M.A. No. 1284 of 1984:‑

(1) Intervenor Maqsood Ahmad (Exh.l).

(2) Manzoor Hussain (Exh.5).

' (3) Muhammad Hussain (Exh.6).

Mr. Ali Akbar, learned counsel for the decree‑holder, made a statement on 20‑5‑1985 that he did not want to examine any witness. I have heard the arguments of Mr.S.Hamid Hussain, learned counsel for the intervenor and Mr. Ali Akbar, learned counsel for the decree‑holder.

2. Learned counsel for the intervenor submitted that the evidence adduced on behalf of the intervenor establishes that the agreement dated 16‑11‑1981 Exh.2 for the sale of the House No. E‑331, entered into between judgment‑debtor No.3 Muhammad Shafi and intervenor Maqsood Ahmad is a genuine document and so also the receipt dated 16‑11‑1981 Exh.3 for Rs.1,34,000. It was further submitted by the learned counsel for the intervenor that the evidence has also proved that possession of the house in question was also delivered to the intervenor in 1981 immediately after execution of the agreement dated 16‑11‑1981. It was further submitted that no evidence in rebuttal of the intervenor's case was led by the decree‑holder and the decree‑holder also did not come in the witness‑box.

On the other hand, Mr. Ali Akbar, learned counsel for the decree‑holder submitted that the sale agreement is a fake document prepared later on to resist the execution application. It was submitted that no case at all had been made out by the intervenor and the evidence adduced on his behalf is patently of a doubtful character and that there are major contradictions in the evidence of the intervenor. It was also submitted by the learned counsel that the case set up by the intervenor on the basis of the agreement dated 16‑11‑1981 had also been earlier set up by the judgment‑debtor No.3 Muhammad Shafi through his objections but that case was not accepted by this Court by order dated 28‑10‑1984 and the intervenor cannot set up the same case through the present application. According to the learned counsel C.M.A. No. 1284 of 1984 is barred on account of the order dated 28‑10‑1984. It was further submitted by the learned counsel for the decree‑holder that the property still stands in the name of judgment‑debtor No.3 Muhammad Shafi and the intervenor has no right, title or interest in the property.

3. In his evidence, Intervenor Maqsood Ahmed stated that he is the son of a Zamindar who is owner of about 23 acres of land in Kashmore and that the Intervenor himself was in Karachi for about 5 or 6 years and his father had asked the intervenor to purchase a house in Karachi for which he sent an amount of Rs.1,00,000 to the Intervenor and thereafter he searched for a house and ultimately he negotiated for purchase of Quarter No. E‑331 in Kausar Town after having come to know that judgment‑debtor Muhammad Shaft wanted to sell the said quarter. According to his deposition, Muhammad Shafi had informed the intervenor that he had constructed the quarter after having taken loan from House Building Finance Corporation. The amount of loan was Rs.86,000 and that intervenor had also been informed by Muhammad Shafi that no amount had been repaid to the House Building Finance Corporation. It was deposed that after negotiations, the bargain was struck at 2,20,000 through agreement dated 16‑11‑1981 Exh.2. According to the intervenor, he paid an amount of Rs.1,34,000 to Muhammad Shafi and obtained a receipt Exh.3 and immediately after execution of the agreement he obtained physical possession of the quarter in November 1981 and since then the intervenor was living in the said quarter and some times the said quarter was occupied by his tenant. He further stated that for 7 and 8 months his tenant Muhammad Iqbal was residing in the quarter paying Rs.800 per month as rent.

In his cross‑examination, he gave his date of birth as 1‑1‑1963 and that National Identity Card was issued to him on 26‑10‑1981 from Jhelum and that his father was residing at Kashmore since 1960. He stated that he has three brothers and two sisters and they were also residing in Kashmore. About the amount of Rs.1,00,000 sent to him by his father, he had stated that his maternal‑uncle Muhammad Azam had brought the said amount of Rs.1,00,000 in cash from his father and handed over the same to the intervenor at Karachi and that this amount had been paid one month before the agreement was made with Muhammad Shaft and that he had kept the said money in Habib Bank Limited, Khokrapar Branch, Malir Extension Colony, Karachi. In answer to questions put by the Court in this regard, the intervenor stated as follows: ‑

"I had withdrawn the said amount of Rs.1,00,000 from my account in bank about 1 month or 1i months before the agreement Exh. 2 was made. I had kept the said cash amount in my briefcase at my residence D‑14, a room in Jamia Millia Hostel. With me used to reside one boy in the said room whose name is Jahan Khan. I had not told him that I had Rs.1,00,000 in my briefcase. I used to keep my briefcase in the locker which was big enough. There were separate lockers for other students."

As according to the intervenor, an amount of Rs.1,34,000 had been paid to Muhammad Shafi, a question was asked in the cross- examination as from where did he pay Rs.34,000 when his father had sent him only Rs.1,00,000 through his maternal‑uncle Muhammad Azam. He gave the following reply:‑

"The remaining amount of Rs.34,000 was also sent by my father about a week or so before the agreement Exh.2 was made. This amount of Rs.34,000 was brought by one Maqbool Ahmed, a friend of my father and he handed over the same to me."

According to the intervenor, his maternal‑uncle Muhammad Azam is in Government service at Dera Ghazi Khan and Maqbool Ahmed was residing at Kashmore and he had come to Karachi in connection with his own work and intervenor's father had sent the said amount with Maqbool Ahmed.

In reply to further questions put by the Court he stated as follows

"I had written to my father that the agreement had been arrived at between me and Muhammad Shafi for purchase of the house in question and that I required Rs.34,000 more in that connection to pay to the seller. My father had sent a letter alongwith a sum of Rs.34,000 with Maqbool Ahmed. That letter received by me from my father is not presently with me. I had informed my father about the agreement Exh.2 made with Muhammad Shafi by a letter. The said letter was sent by post by me to my father, and a photo copy of the said agreement was enclosed with it."

To a further question put in cross‑examination, the intervenor stated that he had not paid any instalments to the House Building Finance Corporation towards repayment of the loan and he could not give any reason why no instalment had been paid when this had been agreed to under Exh.2, except that his father had not sent the money. He also stated that he had not made any agreement in writing with his tenant Muhammad Iqbal. He denied that Muhammad Shafi was related to him but he could not say whether Muhammad Shaft was also from Jhelum.

The intervenor also stated that he had purchased the stamp paper on which Exh.2 was written and that both the agreement Exh.2 as well as receipt Exh.3 were written and executed at the same time in the City Courts and that both the documents were executed before a Magistrate but only the agreement was attested by the Magistrate. As regards the stamp paper, on which Exh.2 had been written, he stated that it had been purchased by him from a stamp‑vendor in the City Courts compound. When the stamp‑paper was shown to the intervenor, on which it is mentioned that it had been purchased by Muhammad Shaft, the intervenor then stated that the stamp paper had been purchased by Muhammad Shafi. He gave names of several tenants who had been occupying the ground floor of the quarter in question from time to time stating that he had been residing on the first floor of the quarter since 16‑11‑1981. He stated that, when he purchased the house in question in 1981, he was student of First Year in Jamia Millia Government College. It was pointed out to the intervenor that in the agreement his address was shown as "B‑101/2 Malir Extension Colony, Karach‑37" whereas he had stated earlier in his evidence that at the time he entered into the agreement he was residing in the Hostel, the intervenor replied as follows:‑

"I had given the address of the house mentioned in the agreement as a place of my residence for making agreement. In fact the said house is that of my relation. I in fact was residing in the hostel. "As regards the two attesting witnesses, the intervenor states that they were both his friends and they were Government servants and they resided in the same area about two miles away from his residence. When his attention was drawn to Exh.2 where Manzoor Hussain's address was also given as "House No.B‑101/3 Malir Extension Colony, Karachi," which was also the address of the intervenor given in the agreement, the intervenor stated as follows:‑

"Manzoor Hussain was a tenant at that time in the House No. B‑101/3, Malir Extension Colony, Karachi. He was tenant of my relation, Muhammad Yousuf. Muhammad Yousuf is my mother's.

He also stated in the cross‑examination that the house in question still continued to be in the name of judgment‑debtor Muhammad Shafi; the electric meter was also in the name of Muhammad Shafi and that he had applied 1 or 11 years earlier for change of the electric meter in his name but the change had not been made in his name and that although he had a copy of such application, the same was not available with him at the time he was giving evidence; in the Taxation Department also the property was still in the name of Muhammad Shafi and he had not applied for mutation of the property in his name in the Taxation Department and that he was paying taxes in respect of the property in question but not in his name.

He further stated that he had not received any letter through post after filing his application under Order XXI, Rule 8, C.P.C. at the address of the house in question. He stated that he had no document or letter showing that he had been residing in the house in question since 16‑11‑1981 except the agreement Exh.2. He denied the various suggestions put to him that Exhs. 2 and 3 had been fabricated in collusion with judgment‑debtor Muhammad Shafi in order to help the intervenor. He also denied other suggestions made to him about his case being false.

4. The other witness examined on behalf of the intervenor was Manzoor Hussain Exh.5. He stated that he had accompanied the intervenor to the City Courts and in his presence Rs.34,000 were paid by the intervenor but then he voluntarily stated that father of the intervenor in his presence had paid Rs.34,000 to Muhammad Shaft in the City Courts at the time when the document was signed. According to Manzoor Hussain, Exh.2 was made in his presence and it bore his signature (as an attesting witness). In his cross‑examination, he stated that Exh. 2 was not attested by the Magistrate in his presence. He stated that he knew judgment‑debtor Muhammad Shafi who lived in the same locality. In answer to a suggestion that judgment‑debtor Muhammad Shafi and intervenor Maqsood Ahmed in collusion fabricated Exhs. 2 and 3, witness Manzoor Hussain replied as follows:‑

"I am not in a position to give any answer of this question."

5. The last witness on behalf of the intervenor is Muhammad Hussain Exh.6, the other attesting witness of Exh.2. According to him, father of the intervenor had purchased the house in question in the presence of the witness from Muhammad Shafi. According to him, the intervenor had paid Rs.34,000 in his presence to Muhammad Shafi and Exh.2 was written in his presence in the City Courts compound. In his cross examination, he stated that he knew judgment‑debtor Muhammad Shafi since about two years prior to the date of the agreement. He also stated that the father of the intervenor had not gone to the City Courts where the agreement was executed but he was at that time present in Karachi. To Court, this witness stated as follows:‑

"The agreement which was written in my presence was of Rs.34,000 and the receipt which was given in my presence to Maqsood Ahmed by Muhammad Shaft was also for Rs.34,000 and not for any other amount." '

In his further cross‑examination he stated that in his presence an amount of Rs.34,000 had been paid and the consideration for sale was agreed to be Rs.2,20,000 and that he was not concerned with the transaction and he was not explained the contents of the agreement but he was only asked to sign the agreement as a witness.

6. It may be observed here that Mr. S.Hamid Hussain, learned counsel for the intervenor, had relied upon Order XXI, Rule 60, C.P.C., which is to the following effect:‑

"60. Release of property from attachment.‑‑Where upon the said investigation the Court is satisfied that the claimant or objector had title to, or right or interest, in, the said property, and the said property was not, by reason of such title, right or interest, wholly or partly liable to attachment, the Court shall make an order releasing the property, wholly, or, as the case may be, to such extent as it is not so liable from attachment." According to the learned counsel for the intervenor, the mere fact, that conveyance deed had not been registered in favour of the intervenor, did not mean that the intervenor had no interest or right in the said property, as the intervenor was in possession of the property having paid the entire consideration to judgment‑debtor Muhammad Shafi (minus the House Building Finance Corporation loan of Rs.86,000 which was to be paid by the intervenor under the agreement) of sale, dated 16‑11‑1981 Exh.2. Learned counsel also relied upon a decision of the Supreme Court in the case of Mir Laik Ali v. Standard Vacuum Oil Company (Esso) P L D 1964 S C 220. In this judgment, after referring to Rules 58, 59, 60 and 61 of Order XXI of the Code of Civil Procedure, it was observed that there can be little doubt on a perusal of the aforesaid provision that the only inquiry that affects the decision (in an investigation under Order XXI, Rule 58, C . P. C .) is the enquiry for ascertainment of possession and that title may have a bearing on the question of possession and for that purpose may be relevant but an inquiry into title as such is of no avail.

The aforesaid judgment of the Supreme Court was delivered prior to the amendment of Rule 60 of Order XXI, C . P. C . by Ordinance XII of 1972. This rule as amended by Ordinance XII of 1972 has already been reproduced earlier. Substantial amendments have been made in Rules 58, 59, 60, 61 and 62 of Order XXI, C.P.C. by Ordinance XII of 1972 and according to the amended provisions, an investigation of claims and objections under Rule 58 of Order XXI, C.P.C. relates not to possession but to title, right or interest of the intervenor in the attached property. In my view, on account of the amendments made in the aforesaid rules, the intervenor cannot make out a case for release of attachment in an application under Order XXI, Rule 58, C.P.C. by only establishing that he was in possession. He will have to establish that the possession is such, which is recognized by law as a right or interest in the property. For example, a trespasser or a bare licensee is not a person, who can be said to have any title to or right or interest in the property. On the other hand, a person having obtained possession under an agreement of sale having paid part or all the consideration would be a person having a right or interest in the property.

7. In the instant case, the intervenor has tried to make out a case that he acquired possession after having entered into the agreement of sale Gated 16‑11‑1981 Exh.2 having paid the entire sale consideration (minus Rs.86,000 House Building Finance Corporation loan liability whereof had been taken over by the intervenor under the terms of the agreement) and as such if the intervenor had not become the owner of the property in question, according to the learned counsel for the intervenor, the intervenor had acquired right or interest in the property and as such under Order XXI, Rule 60, C . P. C . the property was not liable for attachment and sale in the present execution application. The evidence adduced on behalf of the intervenor has already been referred to above in sufficient detail. The intervenor in his evidence has stated that apart from Exh.2, the sale agreement, he has no other document to establish that he was in possession of the property and that the only documents, which show that he had "purchased" the property, are the sale agreement Exh.2 and receipt Exh.3. The case of the intervenor, therefore, depends on these two documents. I have not been impressed by the evidence adduced on behalf of the intervenor about the execution of these two documents in 1981. The evidence of intervenor Maqsood Ahmad is full of contradictions and it appears that these two documents were prepared at a later stage at the instance of judgment‑debtor Muhammad Shafi to avoid attachment and sale of the property in this execution application. The entire version given by the intervenor in his evidence that he was asked by his father, who lives in Kashmore, to purchase a property in Karachi, for which purpose the intervenor, a student of First Year in Jamia Millia and living in Hostel, entered into the bargain with judgment‑debtor Muhammad Shafi and paid him Rs.1,34,000 appears to be suspicious from the evidence adduced by the intervenor himself. From his own testimony, it had appeared that the entire amount of Rs.1,34,000 had been paid by the intervenor to the judgment‑debtor Muhammad Shaft at the time of the execution of the agreement in the City Courts on 16‑11‑1981 but the evidence of the two other witnesses, namely, Manzoor Hussain and Muhammad Hussain is to the effect that only Rs.34,000 had been paid at the time of the execution of the agreement. Then first intervenor stated that he had been sent Rs.1,00,000 in cash by his father through his maternal‑uncle Muhammad Azam but later on, when he was reminded, that according to him, he had paid Rs.1,34,000 the reply came that after having received Rs.1,00,000 and the bargain having been struck, apparently after receipt of Rs.1,00,000 by intervenor from his father, the intervenor wrote to his father to send another amount of Rs.34,000, which was brought by a friend of his father. The intervenor had stated that he had written letters to his father asking for the money and the money was sent alongwith letters by his father but the letters of his father were not produced. Then the amount of Rs.1,00,000 was kept in cash, after having been taken out from the bank, in a briefcase in the room in the hostel, shared by another student and this amount was kept there for nearly a month. The evidence in this regard does not inspire confidence.

There is clear contradiction between the evidence of the intervenor and his two witnesses about the presence of the intervenor's father in Karachi on the day when the agreement Exh.2 was supposed to have been executed. According to the evidence of the intervenor, his father was not in Karachi and he had sent the money to the itnervenor, whereas, according to Manzoor Hussain Exh.5, Rs.34,000 were paid by the father of the intervenor to Muhammad Shafi in the City Court at the time the agreement was executed and according to the other witness, Muhammad Hussain Exh.6, father of the intervenor was in Karachi, when the agreement was executed but he had not gone to the City Court. This is a major contradiction in the evidence adduced on behalf of the intervenor and it reflects adversely on the veracity of the case set up by the intervenor about the execution of the agreement Exh.2.

According to the intervenor, no loan instalment had been paid by the intervenor to the House Building Finance Corporation nor any effort was made to get the loan transferred in his name. If the case of the intervenor was that he had paid the entire consideration to Muhammad Shafi, then why no effort was made to get a convenyance deed registered in his favour and mutation in the record of the Excise and Taxation Department for over 5 years now. The electric meter was not got transferred in his name. Apparently no notice was published in the newspapers by the Intervenor before or after 18‑11‑1981 that he was intending to purchase the property inviting objections against the sale. Such step is usually taken by an intending purchaser to safeguard his interests. All these questions remain unanswered. It is an admitted position that the property still stands in the name of Muhammad Shafi in the relevant records and the taxes of the property have also been paid in the name of Muhammad Shafi.

If the intervenor had been residing in the house in question since 1981, as alleged by him, then he would have received at least one or two if not more letters on the address of this house upto the date of filing his application in Court but no such letter was produced.

There is also contradiction in the evidence of the intervenor himself about the purchase of the stamp paper, on which Exh.2 is typed. First he stated that he had purchased the stamp paper himself but later on, on being shown the endorsement on the stamp paper that it had been issued to Muhammad Shaft, the intervenor changed his position and stated that the stamp paper had been purchased by Muhammad Shaft. In Exh.2 the address of the intervenor is shown as "B‑101/2, Malir Extension Colony, Karachi‑37", whereas in his evidence he deposed that at the time the agreement was executed he was residing in Jamia Millia Hostel.

The evidence of the two witnesses, friends of the intervenor, also does not inspire confidence. Then Muhammad Shaft also was not examined.

It has also been noted that judgment‑debtor Muhammad Shaft had earlier filed objections to the execution application, in which he had averred that the property bearing No.E‑331 had been sold to the Intervenor but objection in this regard was rejected by this Court by order dated 28‑10‑1984. A few days later to be precise, on 18‑11‑1984, the intervenor filed this application under Order XXI, Rule 58, C.P.C. This also indicates that the judgment‑debtor and the intervenor were in league with each other. First an attempt was made by the judgment -debtor to save this property from being attached and sold in this execution application and when this attempt failed, the intervenor entered appearance.

8. On going through the evidence adduced by the intervenor, it has been found that there are various material contradictions in such evidence and it is apparent that the agreement Exh.2 and receipt Exh. l3 were prepared later on in an attempt to set up a defence so as to get out of the attachment and sale of the property in the present execution application. The agreement Exh. 2 is not a genuine document. The intervenor has not been able to establish that he has any title, right or interest in the property and as such his application is liable to be dismissed.

C . M. A . No:1284 of 1984 is accordingly dismissed

A.A./R‑1/K Application dismissed

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.