ORDER  SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Civil Revision Application No. 53/ 2009

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Date                      Order with signature of Judge

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For hearing of main case.

21.09.2016.

QaziHifzur Rehman, advocate for the applicants.

Umer, the respondent No. 1, present in person.

Nazar Akbar,j.This Revision has been filed by the applicant against concurrent decisions whereby Suit No. 482/1996 filed by him was dismissed by V-Civil Judge, Karachi-South and Civil Appeal No. 70/2007 was also dismissed by II-Additional District Judge, Karachi-South by order dated 31.03.2009.

Briefly stated the predecessor-in-interest of present applicant filed suit in the year 1996for possession of portion of a plot from the respondent. According to the applicant the respondents have encroached upon their land when their chowkidarhas proceeded to his native place, who was looking after the Plot bearing No. LY-12/57, Mir Muhammad Baluch Road, Lyari, Karachi (the suit plot). The respondents in their written statement have denied the allegation and trial Court framed the following issues :-

i. Whether the suit is not maintainable?

ii. Whether the disputed property i.e. quarter is situated within the area of Plot No. LY-12/57?

iii. Whether the plaintiffs are also owners of the suit property/quarter constructed on Plot No. LY-12/57 measuring about 16 feet by 12 feet?

iv. Whether the construction raised over the suit property/quarter by the defendants is illegal and is liable to be demolished?

v. Whether the plaintiffs are entitled for possession of the suit property?

vi. Whether the plaintiffs are entitled for permanent injunction in their favour?

All the above issues were decided against the applicants by trial Court and affirmed by the appellate Court.

I have heard learned counsel for the applicant and Respondent No. 1, present in person, his counsel is absent.  After hearing learning counsel for the applicant, he was required to comment on the following passage from the impugned judgment of appellate Court:-

“It is important to note that the appellants/plaintiffs, in support of this contention, did not examine their chowkidar or his brother. The appellants/plaintiffs have based their case on three sale deeds Ex. P/1/A, Ex. P/1/B and Ex. P/1/C, but none of these sale deeds have shown any extract/site plan of Plot No. LY-12/57. On the contrary, the respondents/defendants have produced two sale deeds at Ex. D/2 and Ex. D/3, which clearly show that in schedule of property extra land has been shown, thus I am of the view that the appellants/plaintiffs have failed to prove their claim over the quarter in question. There is word against word and the appellants/plaintiffs have failed to examine a material witness in support of their claim. Even otherwise during the whole proceedings, the appellants/plaintiffs have not filed any application for calling the record from the concerned department or to examine any witness form City Surveyor Department or any otherGovernment official, who have issued the extract or sketch of both the plots, thus the appellants/plaintiffs have miserably failed to shift the burden upon the shoulder of the respondents/defendants,who have placed sufficient material on record to show that they are the bona-fide purchaser of the property in question.”

Learned counsel for the applicants, after going through the above passage of the appellate Court’s judgment stated that a site plan was filed before the trial Court, however, he failed to established that why the site plan was not available with any of the three sale-deeds through which he claimed to be the owner of the suit property. He has referred to page 77, he claimed that page 77 is a site plan. I have examinedeven this document which was not part of the pleading before the trial Court. Be that as it may, I found that it does not reflect any authenticity, neither it has been signed by any government functionary dealing with lands in Lyari nor by KMC or KDA. The jurisdiction of this Court is limited in the Revision to set-aside current findings on the facts.

In view of the above, no case is made out of interference. The Revision Application is dismissed.

JUDGE

Zahidbaig