2017 SCMR 468 SUPREME-COURT

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NASIR FAHIMUDDIN VS CHARLES PHILIPS MILLS 2002 SCMR 1330, 2014 SCMR 513, S. 18---Qanun-e-Shahadat (10 of 1984), Arts. 92 & 114---Evacuee property---Proof---Whether suit property was evacuee property---Respondent claimed that suit property was not evacuee property, and that appellants were only in possession as licensees---Appellants contended that suit property was sold by respondent's mother to an evacuee before partition of sub-continent; that on partition the property was treated as evacuee property, and as appellants were displaced persons, the Settlement Department, transferred the same in their name---Validity---Suit property was sold by respondent's mother in favour of a hindu evacuee/purchaser, and name of the purchaser was duly reflected in the record of the Municipal Corporation, which record carried presumption of correctness in terms of Art. 92 of the Qanun-e-Shahadat, 1984---Respondent's mother, after selling the property, never paid property tax till the date she remained alive; she never even contacted the appellants for the purposes of seeking the possession of the property or asserting herself to be the owner; she had also not been registered as an owner with the relevant tax authorities---Respondent's mother in her lifetime had never challenged the Permanent Transfer Deeds in favour of the appellants or sought the eviction of the appellants from the property---Such conduct on her part proved that she was not claiming the ownership of the property and, therefore, was estopped in terms of Art. 114 of the Qanun-e-Shahadat, 1984---Consequently, no valid locus standi would pass on to her son/respondent for claiming ownership of suit property --- Respondent had obtained a consent decree in respect of ownership of suit property without any notice to appellants, in a clandestine manner, which otherwise was not binding upon the appellants---Immediately after obtaining the consent decree, respondent purportedly sold the property to a third party in a dubious manner---Respondent had failed to discharge the onus that appellants were licensees in the suit property---Consent decree obtained by respondent was set aside in circumstances and suit filed by him was dismissed--- Appeal was allowed accordingly.