SUITE FOR DECLARATION, SPECIFIC PERFORMANCE, DAMAGES & PERMANNAT INJUNCTION.
IN THE COURT OF SENIOR
CIVIL JUDGE MIRPURKHAS.
Civil Suit No. /2015
Muhammad
Rasheed
S/O
Muhammad Sardar,
Muslim,
Adult, By Cast Jat,
R/O
Deh 195, Tando Jan Muhammad,
Taluka
Degree. …… PLAINTIFF
VERSUS
1. 1. Umer
Hayat S/O Matwalli,
Muslim, Adult, By Cast Jatt,
R/O Deh 186, Tando Jan
Muhammad,
Taluka Digri.
2. 2. Nasir
Hayat S/O Ghullam Yaseen @ Ghullam Hussain,
Muslim, Adult, By Cast Jatt,
R/O Deh 186, Tando Jan
Muhammad,
Taluka Digri.
3. 3. Mst.
Nusrat D/O Ghullam Yaseen @ Ghullam Hussain,
Muslim, Adult, By Cast Jatt,
R/O Deh 186, Tando Jan
Muhammad,
Taluka Digri.
4. 4. Mst.
Musarat Wd/O Zafar Hayat,
Muslim, Adult, By Cast Jatt,
R/O Deh 186, Tando Jan
Muhammad,
Taluka Digri.
5. 5. Mst.
Iqra D/O Zafar Hayat,
Muslim, Adult, By Cast Jatt,
R/O Deh 186, Tando Jan
Muhammad,
Taluka Digri.
6. 6. Mst.
Nimra D/O Zafar Hayat,
Muslim, Adult, By Cast Jatt,
R/O Deh 186, Tando Jan
Muhammad,
Taluka Digri.
7. 7. Assistant
Commissioner,
Taluka Digri, Revenue
Department,
Office at Taluka Digri.
8. 8. Mukhtiyarkar,
Taluka Digri, Revenue
Department,
Office at Taluka Digri.
9. 9. Sub
Registrar Properties,
Taluka Digri, Revenue
Department,
Office at Taluka Digri.
10. Sub
Registrar Properties,
District Mirpur Khas, Revenue Department,
Office at District Mirpur Khas. ………. Defeandants.
SUITE
FOR DECLARATION, SPECIFIC PERFORMANCE, DAMAGES & PERMANNAT INJUNCTION.
That
the plaintiff respectfully submits as under:
1.
That
the plaintiff above named is a landlord having land around 105 Acres and is a
resourceful person with paying capacity to purchase agricultural land. He was
eager to purchase some more agricultural land within the Area of Taluka Digri
and in this regard through area people & family relatives, he had
negotiated with defendants No; 01, 02,
03, 04, 05 & 06, for purchase of their un-partitioned / un-divided shares, total
as a whole, in their family’s jointly owned land. Thereon with mutual consent
& amicably, the plaintiff had executed sale agreement dated: 10th
November 2014, with them. In terms of sale agreement the plaintiff has a right
to claim by filing of this suit. The copy of sale agreement is attached
herewith As Annexure “P”.
2.
That
the defendant No. 01 & his real brother namely Ghullam Yasin @ Ghullam
Husain were sole owner in possession of property / agricultural land of total
Area 45 Acres & 36 Ghuntas (45.36 Acres).
After
the death of said Ghullam Yasin @ Ghullam Husain, his legal heirs (1) Nasir
Hayat who is defendant No.02 (2) Mst. Nusrat, who is defendant No.03 (3) Zafar
Hayat since died through his wife and two daughter, who are Defendant No.04, 05
& 06, had inherited all rights / shares / interests of said Ghullam Yasin @
Ghullam Husain, which is equal to 22 Acre 36 Ghuntas (22.36 Acres).
Further
the defendant No.01, in addition to his remaining share, which was about to 23
Acres, had also purchased more 10 Acres agricultural land, through sale deed
from one Muhammad Ali. Thus his total share / land had become 33 Acres.
Having joint family system,
the defendants No; 01, 02, 03, 04, 05 & 06, were living and cultivating
their land jointly which is total 55 Acres and 36 Ghuntas (22.36 + 23.00 +10.00
= 55.36 Acres).
3.
That
the above said, jointly owned & un-partitioned property / land, is
described in records of rights as Survey Nos. [70/1 to 16 Area – 16.00 Acres]; [74/1 to 08 Area – 8.00 Acres]; [74/9
Area – 00.22 Ghuntas]; [74/10 to 14 Area – 05.00
Acres]; [74/15 Area – 00.26 Ghuntas]; [68/1
to 12 Area – 12.00 Acres]; [68/13 Area - 00.32 Ghuntas]; [68/14
Area – 00.32 Ghuntas]; [68/15 Area – 00.32 Ghuntas]; [68/16
Area – 00.32 Ghuntas]; [43/3 to 08 Area - 12 to
15 and 16 Acres];. This total land / Area, 55 Acres & 36 Ghuntas
(55.36 Acres), is situated in Deh 186, Tappo Abring, Taluka Digri, which is
subject of an action in this plaint and shall be referred to as property in
suit herein after. The Copies of “Form VII” are attached herewith as Annexure “P1
& P2.
4.
That
the property in suit was subject to be partitioned with specific shares between
the defendants No: ; 01, 02, 03, 04, 05 & 06, through mutual consent or by
way of any other legal means. But the plaintiff having bonafide & good
faith, made lawful contract / agreement with the defendants for purchase of
their respective shares/ interest, wholly & solely, in property in suit. In
this regard all share holders had appointed with mutual consent, to defendant
No.02 for administration and division of sale proceed among themselves.
5.
That
in accordance with main features of subject agreement, amongst others, it was
settled between plaintiff & defendants No; 01, 02, 03, 04, 05
& 06,
that……
A. The
plaintiff and defendants No; 01,
02, 03, 04, 05 & 06,
are agreed that the sale proceed for Area / agricultural land / suit property
will be lump sum Rs: 02,25,550,00/= [Two caror twenty five Lac & fifty Five
thousand rupees only], as with rate of 04,10,000/= per Acre.
B. The
plaintiff has paid cash Rs: 08,0000/= [ Eight lac only] to Mr. Umer Hayat as an
advance / token money towards sale consideration of SAID PROPERTY, for which
the
Nasir Hayat S/O Ghullam
Yasin @ Ghullam Husain also, doth hereby admit, confirm and acknowledge by
signing of this deed / Agreement.
C. That before
or in month of March-2015, for new harvesting season, the defendants be bound
to handover the possession of property in suit to plaintiff and the plaintiff
will pay 1st installment Rs: 32,00,000/= (Thirty two lac only) to
defendants through Nasir
Hayat S/O Ghullam
Yasin @ Ghullam Husain.
D. That
within 30 days of taking over the possession of property in suit, the plaintiff
will be bound to pay 2rd Installment, Rs: 50,00,000/= (Fifty hundred
Thousand only) to defendants through Nasir Hayat S/O Ghullam
Yasin @ Ghullam Husain.
E.
That
within 120 days, from date of payment of 2nd Installment, the
plaintiff be bound to pay remaining amount Rs: 60,00,000/= [Sixty hundred
thousand only] as 3rd Installment / payment towards sale consideration and defendants.
F.
That
within one year from the date of payment of 3rd Installment but not
later than 30-June-2017, the remaining 4th & full / final
payment Rs: 75,50,000/= (Seventy Five Lac & Fifty hundred thousand) will be
paid by plaintiff and the defendants will
be bound to transfer all rights / interests / shares, in the name of plaintiff, through registered sale deed and plaintiff shall
bear transfer charges / fee, documentation charges in connection with transfer
of the aforesaid property.
6.
That
in pursuance of subject agreement the plaintiff had paid token money Rs:
0800000/= (Eight Lac only) regarding purchase of property in suit and
thereafter till & before 15-March-2015, the plaintiff had also paid 1st
Installment i.e Rs: 32,00000/= (Thirty
Two Lac only). Thereon in furtherance of subject sale agreement, the defendants No:
; 01, 02, 03, 04, 05 & 06, by executing undertaking / settlement
dated 13-March-2015, had handed over the peaceful vacant possession of property
in suit to plaintiff. All payments of worth RS; 3200000/= (Thirty two lac only)
in respect of 1st Installment were paid through cheque and the
details are as under:
|
Sr
|
Date
|
Cheque
Nos
|
To
whom
|
Amount
|
Payees
account Nos.
|
|
01
|
02-12-2014
|
81546124
|
Nasir
Hayat
|
300000/=
|
HMB-134466
|
|
02
|
02-12-2014
|
81546125
|
Nasir
Hayat
|
150000/=
|
HMB-134466
|
|
03
|
02-12-2014
|
81546126
|
Nasir
Hayat
|
50000/=
|
HMB-134466
|
|
04
|
14-12-2014
|
81711250
|
Nasir
Hayat
|
163382/=
|
HMB-134466
|
|
05
|
18-12-2014
|
81546124
|
Nasir
Hayat
|
1000000/=
|
HMB-134466
|
|
06
|
08-01-2015
|
56999659
|
Nasir
Hayat
|
600000/=
|
HMB-134466
|
|
07
|
11-02-2015
|
82090788
|
Nasir
Hayat
|
100000/=
|
HMB-134466
|
|
08
|
11-02-2015
|
84020486
|
Nasir
Hayat
|
176000/=
|
HMB-134466
|
|
09
|
02-03-2015
|
84387452
|
Nasir
Hayat
|
140000/=
|
HMB-134466
|
|
10
|
03-03-2015
|
84387465
|
Nasir
Hayat
|
100000/=
|
HMB-134466
|
|
11
|
06-03-2015
|
84592927
|
Nasir
Hayat
|
270000/=
|
HMB-134466
|
|
12
|
09-03-2015
|
84592938
|
Nasir
Hayat
|
150000/=
|
HMB-134466
|
[Copy
of undertaking, certificate of possession by Mukhtiyarkar, Copies of Bank
statement are attached herewith as Annexure P3, P4 & P5].
7.
That
thereafter with in stipulated time of 30 days of taking over the possession of
property in suit, the plaintiff had approached to defendant No. 02, to go ahead
in finalization of deal and to pay 2nd installment Rs: 50,0000/=
(Thirty Lac only). But for the reason best known the defendant No. 02, he showed
reluctance and did not come forward to take further payment and to go ahead in
finalization of deal. Thereon the plaintiff had approached to defendant No.01,
who disclosed that his whole family has made escape to take shelter from any
action in revenge against lodging of FIR by defendant No. 02. Thereafter the
defendant No. 01 had insisted to pay this 2nd installment directly
to him, but the plaintiff, just to save from any confrontation and
to not violate the terms of subject sale agreement regarding property in suit,
had not preferred to pay him. Thereon the defendant No.01 had become annoyed.
[Copy FIR is attached herewith as Annexure “P ”].
8.
That
in month of April, May 2015, the defendants No. 01, 02, 03, 04, 05
& 06,
had changed their residence at somewhere in Punjab. And thereafter during last
week of June 2015, the defendant No. 02, himself had contacted to plaintiff,
and time by time, he further took amounts from plaintiff which are detailed as
: (1) On 25-Jun-15, through UBL OMINI cash deposit Rs: 25,000/= (2) On 25-Jun-15, through cash deposit in UBL account of Nasir / defendant No. 02, Rs: 100,000/= (3) On 06-Jul-15, through cash deposit in UBL account of Nasir / defendant No. 02, Rs: 50,000/= (4) On 31-Jul-15, through cash deposit in UBL account of Nasir / defendant No. 02, Rs: 500,000/= (5) On 12-Aug-15, through cheque deposit in UBL account of
Nasir / defendant No. 02, Rs: 300,000/=
(6) on 19-Aug-15, through cash deposit in UBL account of Nasir / defendant No. 02, Rs: 300,000/= (7) On 28-Oct-15, through cash deposit in UBL account of Nasir / defendant No. 02, Rs: 20,000/= (8) On 28-Oct-15, through EASY PAISA and MOBICASH to Nasir
/ defendant No. 02, Rs: 20,000/=. [Total Rs: 12,95,000/=
Twelve Lac & Ninty Five thousand]. Copies of payment sheet & receipts
are attached herewith as Annexure “P ” P ].
9.
That
during the time the defendant No.1 has shown his intention & reluctance to
perform specifically his part and further he has also conveyed the message for cancelation
of subject sale agreement. But the defendant No. 01 is insisting to pay full
& final payment and side by side he has received further amounts, with
fraudulent gains.
10.
That
thereafter on 30-10-2015, when the plaintiff objected the bad intention of
defendant No. 01 before defendant No. 02, the dispute had arisen and finally
the plaintiff found reply of defendant No. 02 also, that they have declined to
abide by their commitments / agreement to sell, But the physical possession of
property in suit is in hand of plaintiff. The certificate issued in
continuation of earlier by Mukhtiyarkar is attached as Annexure .
11.
That
the plaintiff has come to know through some defendant’s family relatives that
the dispute has arisen between the defendants No; 01, 02, 03, 04,
05 & 06 for settlement of their account
in respect of their
shares individually as the defendant No.02 is not passing their share in money
received from plaintiff.
12.
That
the defendant No. 01 & 02 have issued threat to plaintiff that they will dis-possess
/ take back the possession of property in suit forcibly, for which the
plaintiff is suffering with apprehension that the defendants will take law in
hand and also suffering for losses of non performance by defendants to mature
the deal.
13.
That
the plaintiff is all along ready to perform his part according to sale
agreement of property in suit. Thereon to resolve the issue without any
litigation & confrontations with defendants, the plaintiff has contacted
well wishers to intervene. But the plaintiff has come to know that the
defendant No: 01 is trying to sale out the suit property to some on else on
higher price. Thereon the plaintiff preferred to submit applications to
defendant No. 07, 08, 09 & 10 and also the plaintiff had published
objection in News paper. [Copy of applications & News papers publication is
attached herewith as Annexure ].
14.
That
due to willful misconduct & repudiation of the defendants NO. 01 & 02, the
plaintiff have suffered monetary losses i.e cost for bringing the suit in court, emotional
distress, tension, throughout the period for which the defendants No;
01, 02, 03, 04, 05 & 06 are also bound to compensate jointly or
severally and the plaintiff has assessed & evaluated it to the extent of
Rs: 70,00000/= (Seventy Lac only).
16. That
the plaintiff have left with no other option except to get his right secured
through this honorable court and in this regard and in consideration of
aforesaid facts he is entitled for specific performance of contract or to get recover back Rs: 5295000/= [Fifty
two lac & Ninty Five thousand] along
with consequential liability at the rate of 20% per year.
17. That
the cause of action had arose firstly on ____ November-2014, when the agreement
to sell was executed and finally on 30-10-2015 when the defendant No; 01, 02,
showed their inability in oppressive and fraudulent manners to finalize the
deal and also time to time when the defendant No.1 & 2 received payments. The
same is still continued with losses for non performance & losses naturally
arose in usual course for breaching the subject deal/ agreements.
18. That
I say that suit property is situated within territorial jurisdiction of police
station Tando Jan Muhammd which falls
within jurisdiction of this Honorable court.
19. That
for the purpose of court fee & pecuniary jurisdiction the suit is stamped
properly.
PRAYER
The
plaintiff therefore prays for the judgment & Decree as under:
A. Declare
that the plaintiff is owner in possession of property in suit which is
described in records of rights as Survey Nos. [70/1 to 16 Area – 16.00 Acres];
[74/1 to 08 Area – 8.00 Acres]; [74/9 Area – 00.22 Ghuntas]; [74/10 to 14 Area
– 05.00 Acres]; [74/15 Area – 00.26 Ghuntas]; [68/1 to 12 Area – 12.00 Acres];
[68/13 Area - 00.32 Ghuntas]; [68/14 Area – 00.32 Ghuntas]; [68/15 Area – 00.32
Acres]; [68/16 Area – 00.32 Ghuntas]; [43/3 to 08 Area - 12 to 15 and 16
Acres];. Total land / Area, 55 Acres & 36 Ghuntas (55.36 Acres), situated
in Deh 186, Tappo Abring, Taluka Digri, and plaintiff is entitled to get the
same transferred in his name by way of specific performance.
B. Declare
that the dispute between the defendants No; 01, 02, 03, 04, 05 & 06,
for settlement of account regarding calculation of shares in suit property,
cannot damage & detriment to plaintiff’s legal right / claim over property
in suit.
C. By
way of specific performance direct the defendants No; 01,
02, 03, 04, 05 & 06, to relinquish their rights / interests in suit
property i.e Survey Nos. [70/1 to 16 Area – 16.00 Acres]; [74/1 to 08 Area –
8.00 Acres]; [74/9 Area – 00.22 Ghuntas]; [74/10 to 14 Area – 05.00 Acres];
[74/15 Area – 00.26 Ghuntas]; [68/1 to 12 Area – 12.00 Acres]; [68/13 Area -
00.32 Ghuntas]; [68/14 Area – 00.32 Ghuntas]; [68/15 Area – 00.32 Acres];
[68/16 Area – 00.32 Ghuntas]; [43/3 to 08 Area - 12 to 15 and 16 Acres];. Total
land / Area, 55 Acres & 36 Ghuntas (55.36 Acres), situated in Deh 186,
Tappo Abring, Taluka Digri, for transferring / changing the records of rights of
same, in favor of plaintiff. And if the said defendants avoid the execution of
relinquishment of their rights / interests in favor plaintiff then the Nazir of
this Honorable court may be appointed and directed to execute the same on
behalf the defendants.
OR
Grant money decree by
directing the defendants
No;
01, 02, 03, 04, 05 & 06, jointly or severally, to pay Rs:
5295000/= [Fifty two lac & Ninty Five
thousand] with
interest rate i.e @ 20% per year along with consequential liabilities / damages
of worth
Rs: 70,00000/= (Seventy Lac only) and
also for cost of bringing suit in court, Rs: 02,00,000/= [Two
hundred thousand only].
D. Grant
permanent injunction / status quo in favor of the plaintiff thereby restraining
the defendants, their agents, subordinates, legal heirs from dispossessing the
plaintiff from property in suit and from transferring / changing the records of
rights of suit property i.e Survey Nos. [70/1 to 16 Area – 16.00
Acres]; [74/1 to 08 Area – 8.00 Acres]; [74/9 Area – 00.22 Ghuntas]; [74/10 to
14 Area – 05.00 Acres]; [74/15 Area – 00.26 Ghuntas]; [68/1 to 12 Area – 12.00
Acres]; [68/13 Area - 00.32 Ghuntas]; [68/14 Area – 00.32 Ghuntas]; [68/15 Area
– 00.32 Acres]; [68/16 Area – 00.32 Ghuntas]; [43/3 to 08 Area - 12 to 15 and
16 Acres];. Total land / Area, 55 Acres & 36 Ghuntas (55.36 Acres),
situated in Deh 186, Tappo Abring, Taluka Digri, in favor of anybody
else and may also be restrained from creating third party interest or from
taking adverse action against the plaintiff in breach of deal / Contract
involved in this matter.
E. Grant
any other or better relief or reliefs which this Hon'ble Court may deem
fit and proper under the circumstances.
Karachi. PLAINTIFF
Dated;
ADVOCATE FOR THE PLAINTIFF
VERIFICATION
I, Muhammad
Rasheed S/O Muhammad Sardar, Muslim, Adult, By Cast Jat, R/O Deh 195, Tando Jan
Muhammad, Taluka Digri, holding NIC No: , do hereby state
on oath and Verify that whatever has been stated above in plaint are true and
correct to the best of my knowledge and belief.
Karachi. DEPONENT
Dated;
The deponent is
identified by me.
ADVOCATE.
Solemnly
affirmed before me at Mirpur Khas on this ___ day of December- 2015, by
the deponent abovenamed who is identified by Mr. Advocate who is known to me personally.
COMMISIONER
FOR TAKING AFFIDAVITS.
Documents
filed. :
Annexure "P" to "P45".
Documents
relied upon :
All relevant documents.
Address
of the
Plaintiff :
As mentioned in Title.
Address
of the Plaintiff's
Counsel.
:
As mentioned in Vakalatnama
Miscellaneous Application:
IN THE COURT OF SENIOR
CIVIL JUDGE MIRPURKHAS.
Civil Suit No. /2015
Muhammad
Rasheed …… PLAINTIFF
VERSUS
Umer
Hayat S/O Matwalli & Ors.
……. Defeandants.
APPLICATION
UNDER ORDER 39 RULES 1 & 2 C.P.C
R/W
SECTION 151 CPC
For the facts and reasons
disclosed in accompanying affidavit it is respectfully prayed on behalf of the
plaintiff that this honorable court may be pleased to grant injunction / status
quo in favor of the plaintiff thereby restraining the defendants, their agents, subordinates,
legal heirs from dispossessing the plaintiff from property in suit and from transferring
/ changing the records of rights of suit property i.e Survey
Nos. [70/1 to 16 Area – 16.00 Acres]; [74/1 to 08 Area – 8.00 Acres]; [74/9
Area – 00.22 Ghuntas]; [74/10 to 14 Area – 05.00 Acres]; [74/15 Area – 00.26
Ghuntas]; [68/1 to 12 Area – 12.00 Acres]; [68/13 Area - 00.32 Ghuntas]; [68/14
Area – 00.32 Ghuntas]; [68/15 Area – 00.32 Acres]; [68/16 Area – 00.32 Ghuntas];
[43/3 to 08 Area - 12 to 15 and 16 Acres];. Total land / Area, 55 Acres &
36 Ghuntas (55.36 Acres), situated in Deh 186, Tappo Abring, Taluka Digri, in
favor of anybody else
and may also be restrained from creating third party interest or from taking
adverse action against the plaintiff in breach of deal / Contract involved in
this matter.
Ad-interim order is
highly solicited.
Karachi.
Dated: Advocate for Plaintiff.
For
Immediate use in Court.
IN THE COURT OF SENIOR
CIVIL JUDGE MIRPURKHAS.
Civil Suit No. /2015
Muhammad
Rasheed …… PLAINTIFF
VERSUS
Umer
Hayat S/O Matwalli & Ors.
……. Defeandants.
AFFIDAVIT
IN SUPPORT OF APPLICATION
U/O
33 RULE 1&2
I, Muhammad
Rasheed S/O Muhammad Sardar, Muslim, Adult, By Cast Jat, R/O Deh 195, Tando Jan
Muhammad, Taluka Digri, holding NIC No: , do hereby state
on oath as under:
1.
That
I say that I am plaintiff in above said case as such am fully conversant with
the facts of the case.
2.
That
I say that the accompany application under order 39 rule 1 & 2 CPC has been
moved on express instructions of the Plaintiff and the contents of the same as
well as plaint may kindly be treated as part and parcel of this affidavit.
3.
That
I say that I have serious apprehension that in breach of contractual
obligations, the defendants will try to
frustrate the attainment of my legal right or to negate my claim they will try
to dispossess me from possession property in suit or they will create third
party interest.
4.
That
I say that I have good prima facie case and balance of convenience lies in my
favor.
5.
That
I say that until unless the accompanying application is allowed I shall
seriously be prejudiced.
6.
That
I say that whatever stated above is true and correct to the best of my
knowledge and belief.
Karachi. DEPONENT
Dated; /12/2015.
The deponent is identified by
me.
ADVOCATE.
Solemnly affirmed before
me at Karachi on this ___ day of December 2015, by the deponent above
named who is identified by Mr. ___________ Advocate who is known to me
personally.
COMMISIONER FOR
TAKING AFFIDAVITS
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