PLJ 2010 Karachi 132
Presaent: Mushir Alam and Aqeel Ahmed Abbasi, JJ
NAZIMUDDIN AHMED--Appellant
versus
AINUDDIN AHMED and 2 others--Respondents
High Court Appeal No. 403 of 2008, decided on 29.1.2010.
Limitation Act, 1908 (IX of 1908)--
----Art. 91--Limitation--Cancellation of document--No claim in suit--Art. 91 of Limitation Act, provides three years would not govern the suit--Limitation in the instant case would be governed under Art. 210 of Limitation Act, which provide six years from the date when the right to sue accrued. [P. 137] A
Limitation Act, 1908 (IX of 1908)--
----Arts. 91 & 120--Specific Relief Act, (I of 1877), Ss. 39 & 42--Law Reforms Ordinance (XII of 1972), S. 3--Intra-Court Appeal--Declaration of title and cancellation of document--Benamidar, suit against--Limitation--Suit was dismissed by Single Judge on the ground that it was barred under Art.91 of Limitation Act, 1908--Validity--First application was filed by plaintiff on 15-12-1996, to authorities requesting not to issue any duplicate document to defendant--Sale agreement was executed by defendant on 30-1-1997, representing himself as owner, which document had come to the notice of plaintiff much later--Reckoning six years limitation from application dated 15-12-1996, cut off date for suit of such nature would be expiring on 13-12-2002--Limitation for cancellation of transfer in favour of buyer was to be reckoned within six years from the date of knowledge of disputed entry in the record of rights as maintained by authorities--As the disputed entry in record of rights was 26-5-1997, therefore, under Art. 120 of Limitation Act, 1908, time would run out on 26-5-2003 for declaration of title--Suit was filed on 28-11-2002 and it was well within the period of limitation--Right to sue accrued to real owner against Benamidar, when hostile claim of ownership by Benamidar/ostensible owner had come to the knowledge of real owner--Single Judge of High Court did not properly consider factual position narrated in plaint in the context of cause of action and evidence available on record, thus judgment was on wrong assumption in its entirety, therefore, the same was set aside and suit was decreed in favour of plaintiff--Division Bench of High Court directed the authorities to mutate plot in-question in favour of plaintiff--Intra-Court Appeal was allowed. [P. 137] B & C
PLD 1957 Dacca 575 at 585 and 1995 MLD 397 403 rel.
Mr. I.H. Zaidi, Advocate for Appellant.
Nemo for Respondents Nos. 1 and 2.
Mr. Manzoor Ahmad, Advocate for Respondent No. 3.
Date of hearing: 12.11.2009.
Judgment
Mushir Alam, J.--Appellant above-named has impugned the judgment dated 3-11-2008 handed down by learned Single Judge of this Court in Suit No. 1220/2002 whereby the said suit was dismissed being hit by Article 91 of the Limitation Act.
2. Facts as may be necessary to attend the controversy in the instant appeal, appears to be that in the year 1983 the plaintiff applied for allotment of plot in the name of his brother the Defendant No. 1 himself, however, ballot was drawn only in favour of the brother, the Defendant No. 1. Plot No. 39, Block-I, Scheme-36, Gulistan-e-Johar, Karachi, measuring 400 square yards was allotted on 26-3-1985. It is the case of plaintiff entire consideration was made by him, which fact was acknowledged by Defendant No. 1, who had executed the Declaration of Gift dated 12-11-1992 Exh.P/20 and all the other necessary documents to acknowledge the right and title of the plaintiff in the subject property (Exhs.P/21 to P/26). It is the case of plaintiff that being in service of PIA was posted to India in 1997. He remained posted out of Pakistan up to 1999.It was further asserted that taking advantage of his absence from Pakistan, his brother turned hostile and managed to obtain transfer of the said plot in favour of Defendant No. 2 on the basis of forged declaration and manipulated documents. Plaintiff on coming to know of such mischief, approached the Defendant No. 3 i.e. KDA succeeded by CDGK through various applications are representation first being letter dated 15-12-1996 (Exh.P/13), however KDA, paid no heed and entertained Defendant No. 1 and transferred plot in favour of Defendant No. 2. On the follow-up by the plaintiff, the KDA the Defendant No. 3 cancelled the transfer in favour of Defendant No. 2 on 10th January 1998 Exh.P/38 and restored Defendant No. 1 as owner, which cancellation was challenged by the Defendant No. 2 in Suit No. 95 of 1998 Exh.P/39. Appellant joined the suit, filed written statement, and defended his position as stated above. The suit was dismissed for non-prosecution on 28-10-1998 Exh.P/46. Plaintiff informed the KDA, the Defendant No. 3 of such orders and through letter dated 21-6-2000 Exhs. P/47, P/48. However, CDGK (succeeding KDA) informed the plaintiff through reply dated 21-6-2000 reiterated on 29-5-2001, Exhs.P/49, P/59 "that the plot still stand in the name of Mr. Ainuddin (original allottee), thus you may decide your matter amicably through Court of law, till such time no action will be taken in this regard".
3. It is the case of plaintiff that the CDGK the Defendant No. 3 on the ill-advise of its law officer again restored the property in favour of Defendant No. 1 on 28-10-2000 Exh.P.50. Several protests yielded no result and the plaintiff was advised to approach the Civil Court for redressal, therefore, the suit was filed seeking declaration of his ownership of the property in addition to damages and compensation for mental torture and financial expenses.
4. From the record, it appears that Defendants Nos. 1 and 2 were served in suit and declared ex parte on 12-1-2004. The Defendant No. 3 contested the suit, filed the written statement and did not raise any question of limitation. Only defence raised was that the property was transferred in favour of Ahmed Yar Khan, the Defendant No. 2, on the basis of legal opinion from the law department. The evidence of plaintiff was recorded on commission. The defendants chose not to appear or lead any evidence. The case came up for final arguments when the learned Judge in Chamber heard the plaintiff and dismissed the suit on the ground of limitation through impugned judgment dated 3-11-2008.
5. Mr. I.H. Zaidi, learned counsel for appellant, contended that the Issues were struck down on 7-3-2005. Since no issue of limitation was raised, therefore none was framed nor there was any occasion to lead any evidence on such issue. It was argued that the Court misdirected itself on the basis of wrong assumption and decided the suit being barred by limitation. According to the learned counsel, the Court has erred in computing the limitation from 15-8-1996 on the assumption that such fact has been narrated in Para. 6 of the plaint. Learned counsel took us to Para.6 of the plaint, which is also reproduced in Para. 2 of the impugned judgment. It was urged that the plaintiff had simply narrated the facts and chronology of the events. When the plaintiff learnt that the Defendant No. 1 on the basis of false declaration claimed the duplicate documents and later sold the property to Defendant No. 3 through sale agreement dated 30-1-1997. It is contended that the representation of plaintiff bore fruit and the property was reverted back to its original position i.e. in favour of Defendant No. 1 on 10-1-1998 and the plaintiff was pursuing the matter with the defendant and the cause of action accrued when the property was again transferred in favour of Defendant No. 2 on the ill-advise of legal counsel of Defendant No. 3. Plaintiff filed the Suit No. 1220 of 2002 on 28-11-2002.
6. It was argued that the suit is not hit by Article 91 of the Limitation Act, which provides three years limitation to seek cancellation of document. Mr. Manzoor learned counsel for the CDGK; the Respondent No. 3 supported the impugned judgment of the trial Court. He however, stated that any order passed by this Court will be followed. We have heard the arguments and perused the record.
7. From record it appeared that notice through courier was served at the address of Respondents Nos. 1 and 2 on 23-2-2009 and 27.2.2009 respectively, again it was delivered through courier at Respondents Nos. 2 and 3 on 29-4-2009. Notice was pasted on 7-5-2009 several attempts by the bailiff shows that family members of the respondents refused to receive the notices. In this view of the matter and in consideration of the sub-rule (3) to Rule 14 of the Order XLI, C.P.C. (Sindh Amendment), where the respondent who have made no appearance before the trial Court at hearing, whose decree is assailed before the appellate Court, the appellate Court may dispense with service on such absenting respondents. In instant matter since the Defendants Nos. 1 and 2 (Respondent Nos. 1 and 2 herein) were ordered to proceed ex-parte on 12-1-2004 by the trial Court. Therefore, on 1-10-2009 were deemed expedient to dispense with any further service on said Respondents Nos. 1 and 2 and directed to proceed with the matter in their absence.
8. The reliefs claimed by the plaintiff are couched in the following terms:--
"(a) Declare that the plaintiff is the real owner of the said plot and direct cancellation of the transfer in favour of Defendant No. 2;
(b) Permanently restrain the Defendants 1 and 2 from claiming any right title or interest in the said plot;
(c) Judgment and decree for a sum of US$ 8100 against Defendant No. 1 as recovery of amount received as loan;
(d) Award compensation against the defendants jointly and severally to the tune of Rs.5 million for causing mental torture and financial expenses;
(e) Any other relief(s) which this Honourable Court may deem fit and proper in the circumstances of the case; and
(f) Cost of the suit."
9. From the perusal of the prayer clauses, it is clear that the plaintiff in addition to declaration as to title has also sought cancellation of transfer in favour of Defendant No. 2 as notified on 26-5-1997. Plaintiff has sought declaration of his title as actual owner against the Defendant No. 1 being ostensible owner, no period of limitation is provided in the Limitation Act for a suit of the nature. Suit to seek declaration of title against a benamidar is governed under Article 120 read with Section 18 of the Limitation Act, right to sue would accrue and six year limitation in such case would commence from the time hostile or fraudulent assertion of the benamidar first became known to the person injuriously affected. Right to sue for declaration of title would accrue to the affected person within six years of knowledge of the such entry in the record of title by the authority under law enjoined to maintain and keep such record under Article 120 of the Limitation Act.
10. Article 120 of the Limitation Act, 1908 reads as follows:
Description of suit Period of limitation Time from which
period begins to run
120. Suit for which no Six years When the right to
period of limitation is sue accrues.
provided elsewhere in
this schedule.
From the material on record, Exhibit P/31 dated 15-12-1996, available at Page 189 of the Court file, it transpires that the plaintiff notified the defendant not to issue the duplicate documents to the Defendant No. 1 as all the original documents pertaining to the plot are with him. The plaintiff requested the Defendant No. 3 on 23-5-97 to keep the matter pending till end of May 1997 (Exh.P/33) as he is posted to India. However, the Defendant No. 3 notified the plaintiff through letter dated 26-5-1997 that property has been transferred in the name of Defendant No. 3. Later plaintiff obtained the documents Exhibit No. P/27 i.e. sale agreement dated 30-1-1997, available at Page 159 of the Court file, wherein the Defendant No. 1 posed himself to be the owner of subject property and agreed to sell the same to Defendant No. 2. It may be observed, that the Defendant No. 1 being ostensible owner had no right or authority to sell the subject property. Claim in suit is not for cancellation of documents therefore, Article 91 Limitation Act providing three years would not govern the suit. Limitation in instant suit would be governed under residuary Article 120 of the Limitation Act, 1908 which provide six years from the date when the right to sue accrued. In the instant case from evidence on record first application by the plaintiff to Defendant No. 3, as stated above, was through Exhibit No. P/31 dated 15-12-1996, wherein KDA was requested not to issue any duplicate documents to the Defendant No. 1. The Defendant No. 1 executed sale agreement representing himself as owner on 30-1-1997. Which document came to the notice of the plaintiff much later. However taking worst case and reckoning six years limitation from Exhibit No. P/31 dated 15-12-1996, the cut off date for the suit of the nature would be expiring on 13-12-2002 and limitation for cancellation of the transfer in favour of Defendant No. 2 would be reckoned within six years from the date of knowledge of impugned entry in the record of rights as maintained by the competent authority, which in instant case is 26.5.1997 under Article 120 of the Limitation Act for last mentioned relief time would run out on 26-5-2003. The suit was filed on 28-11-2002, well within the period of limitation. As observed above right to sue accrues to the real owner against the benamidar, when hostile claim of ownership by the benamidar/ostensible owner comes to the knowledge of the real owner. (One may see Nazir Ahmed Seran v. Benoya Bhuson Saha PLD 1957 Dacca 575 @ 585 and Abdul Rashid Velmi v. Habibur Rehman 1995 MLD 397 @ 403).
11. Upshot of above discussion is that the learned Single Judge had not properly considered the factual position narrated in the plaint in the context of cause of action and evidence available on record as discussed above. Impugned judgment is on wrong assumption in its entirety. Since there is no material in support of prayer clauses (c) and (d), appeal is allowed, suit is decreed in terms of prayer clauses (a), (b), (e) and (f) only. Consequently Respondent No. 3 is directed to mutate the Plot No. 39 Block-1 Scheme-36, Gulistan-e-Johar, Karachi measuring 400 square yards in favour of the appellant/plaintiff. By our short order dated 12-11-2009, we had allowed the instant appeal and above are the reasons for the same.
(R.A.) Appeal allowed.
Presaent: Mushir Alam and Aqeel Ahmed Abbasi, JJ
NAZIMUDDIN AHMED--Appellant
versus
AINUDDIN AHMED and 2 others--Respondents
High Court Appeal No. 403 of 2008, decided on 29.1.2010.
Limitation Act, 1908 (IX of 1908)--
----Art. 91--Limitation--Cancellation of document--No claim in suit--Art. 91 of Limitation Act, provides three years would not govern the suit--Limitation in the instant case would be governed under Art. 210 of Limitation Act, which provide six years from the date when the right to sue accrued. [P. 137] A
Limitation Act, 1908 (IX of 1908)--
----Arts. 91 & 120--Specific Relief Act, (I of 1877), Ss. 39 & 42--Law Reforms Ordinance (XII of 1972), S. 3--Intra-Court Appeal--Declaration of title and cancellation of document--Benamidar, suit against--Limitation--Suit was dismissed by Single Judge on the ground that it was barred under Art.91 of Limitation Act, 1908--Validity--First application was filed by plaintiff on 15-12-1996, to authorities requesting not to issue any duplicate document to defendant--Sale agreement was executed by defendant on 30-1-1997, representing himself as owner, which document had come to the notice of plaintiff much later--Reckoning six years limitation from application dated 15-12-1996, cut off date for suit of such nature would be expiring on 13-12-2002--Limitation for cancellation of transfer in favour of buyer was to be reckoned within six years from the date of knowledge of disputed entry in the record of rights as maintained by authorities--As the disputed entry in record of rights was 26-5-1997, therefore, under Art. 120 of Limitation Act, 1908, time would run out on 26-5-2003 for declaration of title--Suit was filed on 28-11-2002 and it was well within the period of limitation--Right to sue accrued to real owner against Benamidar, when hostile claim of ownership by Benamidar/ostensible owner had come to the knowledge of real owner--Single Judge of High Court did not properly consider factual position narrated in plaint in the context of cause of action and evidence available on record, thus judgment was on wrong assumption in its entirety, therefore, the same was set aside and suit was decreed in favour of plaintiff--Division Bench of High Court directed the authorities to mutate plot in-question in favour of plaintiff--Intra-Court Appeal was allowed. [P. 137] B & C
PLD 1957 Dacca 575 at 585 and 1995 MLD 397 403 rel.
Mr. I.H. Zaidi, Advocate for Appellant.
Nemo for Respondents Nos. 1 and 2.
Mr. Manzoor Ahmad, Advocate for Respondent No. 3.
Date of hearing: 12.11.2009.
Judgment
Mushir Alam, J.--Appellant above-named has impugned the judgment dated 3-11-2008 handed down by learned Single Judge of this Court in Suit No. 1220/2002 whereby the said suit was dismissed being hit by Article 91 of the Limitation Act.
2. Facts as may be necessary to attend the controversy in the instant appeal, appears to be that in the year 1983 the plaintiff applied for allotment of plot in the name of his brother the Defendant No. 1 himself, however, ballot was drawn only in favour of the brother, the Defendant No. 1. Plot No. 39, Block-I, Scheme-36, Gulistan-e-Johar, Karachi, measuring 400 square yards was allotted on 26-3-1985. It is the case of plaintiff entire consideration was made by him, which fact was acknowledged by Defendant No. 1, who had executed the Declaration of Gift dated 12-11-1992 Exh.P/20 and all the other necessary documents to acknowledge the right and title of the plaintiff in the subject property (Exhs.P/21 to P/26). It is the case of plaintiff that being in service of PIA was posted to India in 1997. He remained posted out of Pakistan up to 1999.It was further asserted that taking advantage of his absence from Pakistan, his brother turned hostile and managed to obtain transfer of the said plot in favour of Defendant No. 2 on the basis of forged declaration and manipulated documents. Plaintiff on coming to know of such mischief, approached the Defendant No. 3 i.e. KDA succeeded by CDGK through various applications are representation first being letter dated 15-12-1996 (Exh.P/13), however KDA, paid no heed and entertained Defendant No. 1 and transferred plot in favour of Defendant No. 2. On the follow-up by the plaintiff, the KDA the Defendant No. 3 cancelled the transfer in favour of Defendant No. 2 on 10th January 1998 Exh.P/38 and restored Defendant No. 1 as owner, which cancellation was challenged by the Defendant No. 2 in Suit No. 95 of 1998 Exh.P/39. Appellant joined the suit, filed written statement, and defended his position as stated above. The suit was dismissed for non-prosecution on 28-10-1998 Exh.P/46. Plaintiff informed the KDA, the Defendant No. 3 of such orders and through letter dated 21-6-2000 Exhs. P/47, P/48. However, CDGK (succeeding KDA) informed the plaintiff through reply dated 21-6-2000 reiterated on 29-5-2001, Exhs.P/49, P/59 "that the plot still stand in the name of Mr. Ainuddin (original allottee), thus you may decide your matter amicably through Court of law, till such time no action will be taken in this regard".
3. It is the case of plaintiff that the CDGK the Defendant No. 3 on the ill-advise of its law officer again restored the property in favour of Defendant No. 1 on 28-10-2000 Exh.P.50. Several protests yielded no result and the plaintiff was advised to approach the Civil Court for redressal, therefore, the suit was filed seeking declaration of his ownership of the property in addition to damages and compensation for mental torture and financial expenses.
4. From the record, it appears that Defendants Nos. 1 and 2 were served in suit and declared ex parte on 12-1-2004. The Defendant No. 3 contested the suit, filed the written statement and did not raise any question of limitation. Only defence raised was that the property was transferred in favour of Ahmed Yar Khan, the Defendant No. 2, on the basis of legal opinion from the law department. The evidence of plaintiff was recorded on commission. The defendants chose not to appear or lead any evidence. The case came up for final arguments when the learned Judge in Chamber heard the plaintiff and dismissed the suit on the ground of limitation through impugned judgment dated 3-11-2008.
5. Mr. I.H. Zaidi, learned counsel for appellant, contended that the Issues were struck down on 7-3-2005. Since no issue of limitation was raised, therefore none was framed nor there was any occasion to lead any evidence on such issue. It was argued that the Court misdirected itself on the basis of wrong assumption and decided the suit being barred by limitation. According to the learned counsel, the Court has erred in computing the limitation from 15-8-1996 on the assumption that such fact has been narrated in Para. 6 of the plaint. Learned counsel took us to Para.6 of the plaint, which is also reproduced in Para. 2 of the impugned judgment. It was urged that the plaintiff had simply narrated the facts and chronology of the events. When the plaintiff learnt that the Defendant No. 1 on the basis of false declaration claimed the duplicate documents and later sold the property to Defendant No. 3 through sale agreement dated 30-1-1997. It is contended that the representation of plaintiff bore fruit and the property was reverted back to its original position i.e. in favour of Defendant No. 1 on 10-1-1998 and the plaintiff was pursuing the matter with the defendant and the cause of action accrued when the property was again transferred in favour of Defendant No. 2 on the ill-advise of legal counsel of Defendant No. 3. Plaintiff filed the Suit No. 1220 of 2002 on 28-11-2002.
6. It was argued that the suit is not hit by Article 91 of the Limitation Act, which provides three years limitation to seek cancellation of document. Mr. Manzoor learned counsel for the CDGK; the Respondent No. 3 supported the impugned judgment of the trial Court. He however, stated that any order passed by this Court will be followed. We have heard the arguments and perused the record.
7. From record it appeared that notice through courier was served at the address of Respondents Nos. 1 and 2 on 23-2-2009 and 27.2.2009 respectively, again it was delivered through courier at Respondents Nos. 2 and 3 on 29-4-2009. Notice was pasted on 7-5-2009 several attempts by the bailiff shows that family members of the respondents refused to receive the notices. In this view of the matter and in consideration of the sub-rule (3) to Rule 14 of the Order XLI, C.P.C. (Sindh Amendment), where the respondent who have made no appearance before the trial Court at hearing, whose decree is assailed before the appellate Court, the appellate Court may dispense with service on such absenting respondents. In instant matter since the Defendants Nos. 1 and 2 (Respondent Nos. 1 and 2 herein) were ordered to proceed ex-parte on 12-1-2004 by the trial Court. Therefore, on 1-10-2009 were deemed expedient to dispense with any further service on said Respondents Nos. 1 and 2 and directed to proceed with the matter in their absence.
8. The reliefs claimed by the plaintiff are couched in the following terms:--
"(a) Declare that the plaintiff is the real owner of the said plot and direct cancellation of the transfer in favour of Defendant No. 2;
(b) Permanently restrain the Defendants 1 and 2 from claiming any right title or interest in the said plot;
(c) Judgment and decree for a sum of US$ 8100 against Defendant No. 1 as recovery of amount received as loan;
(d) Award compensation against the defendants jointly and severally to the tune of Rs.5 million for causing mental torture and financial expenses;
(e) Any other relief(s) which this Honourable Court may deem fit and proper in the circumstances of the case; and
(f) Cost of the suit."
9. From the perusal of the prayer clauses, it is clear that the plaintiff in addition to declaration as to title has also sought cancellation of transfer in favour of Defendant No. 2 as notified on 26-5-1997. Plaintiff has sought declaration of his title as actual owner against the Defendant No. 1 being ostensible owner, no period of limitation is provided in the Limitation Act for a suit of the nature. Suit to seek declaration of title against a benamidar is governed under Article 120 read with Section 18 of the Limitation Act, right to sue would accrue and six year limitation in such case would commence from the time hostile or fraudulent assertion of the benamidar first became known to the person injuriously affected. Right to sue for declaration of title would accrue to the affected person within six years of knowledge of the such entry in the record of title by the authority under law enjoined to maintain and keep such record under Article 120 of the Limitation Act.
10. Article 120 of the Limitation Act, 1908 reads as follows:
Description of suit Period of limitation Time from which
period begins to run
120. Suit for which no Six years When the right to
period of limitation is sue accrues.
provided elsewhere in
this schedule.
From the material on record, Exhibit P/31 dated 15-12-1996, available at Page 189 of the Court file, it transpires that the plaintiff notified the defendant not to issue the duplicate documents to the Defendant No. 1 as all the original documents pertaining to the plot are with him. The plaintiff requested the Defendant No. 3 on 23-5-97 to keep the matter pending till end of May 1997 (Exh.P/33) as he is posted to India. However, the Defendant No. 3 notified the plaintiff through letter dated 26-5-1997 that property has been transferred in the name of Defendant No. 3. Later plaintiff obtained the documents Exhibit No. P/27 i.e. sale agreement dated 30-1-1997, available at Page 159 of the Court file, wherein the Defendant No. 1 posed himself to be the owner of subject property and agreed to sell the same to Defendant No. 2. It may be observed, that the Defendant No. 1 being ostensible owner had no right or authority to sell the subject property. Claim in suit is not for cancellation of documents therefore, Article 91 Limitation Act providing three years would not govern the suit. Limitation in instant suit would be governed under residuary Article 120 of the Limitation Act, 1908 which provide six years from the date when the right to sue accrued. In the instant case from evidence on record first application by the plaintiff to Defendant No. 3, as stated above, was through Exhibit No. P/31 dated 15-12-1996, wherein KDA was requested not to issue any duplicate documents to the Defendant No. 1. The Defendant No. 1 executed sale agreement representing himself as owner on 30-1-1997. Which document came to the notice of the plaintiff much later. However taking worst case and reckoning six years limitation from Exhibit No. P/31 dated 15-12-1996, the cut off date for the suit of the nature would be expiring on 13-12-2002 and limitation for cancellation of the transfer in favour of Defendant No. 2 would be reckoned within six years from the date of knowledge of impugned entry in the record of rights as maintained by the competent authority, which in instant case is 26.5.1997 under Article 120 of the Limitation Act for last mentioned relief time would run out on 26-5-2003. The suit was filed on 28-11-2002, well within the period of limitation. As observed above right to sue accrues to the real owner against the benamidar, when hostile claim of ownership by the benamidar/ostensible owner comes to the knowledge of the real owner. (One may see Nazir Ahmed Seran v. Benoya Bhuson Saha PLD 1957 Dacca 575 @ 585 and Abdul Rashid Velmi v. Habibur Rehman 1995 MLD 397 @ 403).
11. Upshot of above discussion is that the learned Single Judge had not properly considered the factual position narrated in the plaint in the context of cause of action and evidence available on record as discussed above. Impugned judgment is on wrong assumption in its entirety. Since there is no material in support of prayer clauses (c) and (d), appeal is allowed, suit is decreed in terms of prayer clauses (a), (b), (e) and (f) only. Consequently Respondent No. 3 is directed to mutate the Plot No. 39 Block-1 Scheme-36, Gulistan-e-Johar, Karachi measuring 400 square yards in favour of the appellant/plaintiff. By our short order dated 12-11-2009, we had allowed the instant appeal and above are the reasons for the same.
(R.A.) Appeal allowed.
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