ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI.
IInd Appeal No.37 of 2008
Date Order with Signature of Judge
23.04.2009.
Mr. Zayyad Khan Abbasi, Advocate for the appellant.
Mr. S. Zahir Hussain Chishti & Mr. S.M. Tahir, Advocates for respondents No.1 & 2.
Syed Sultan Ahmed, Advocate for CDGK.
Mr. Shahzad Qureshi, Advocate for the Auction Purchaser.
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MUNIB AHMED KHAN J.;-
This second appeal has been filed against the judgment dated 25.2.2008 in C.A. No.171/2006, whereby, the judgment passed by the Senior Civil Judge dated 19.10.2006 in Suit No.232/2005 has been maintained.2. Learned counsel for the appellant submits that the order of the Civil Court is totally incorrect as it has been passed on the presumption that admission has been made in Para-10 of the written statement. He has pointed out Para-10 of the plaint as well as Para-10 of the written statement and stated that the suit has been decreed as per prayer clauses No.1 & 2, wherein, besides the property bearing Quarter No.21, Block-66, Sector 11-F, New Karachi, Karachi there involve Gold/Cash and mesne profit at the rate of Rs.100/= per day for 35 months. He submits that at the most there is admission in the written statement to the extent of immovable property only and entitlement of the appellant and co-owner to that while the appellant was holding that property as his ancestral property and has every right to continue the possession. He submits that decree can be passed only to the extent of the immovable property and not to the extent of golden ornaments and mesne profit. He has relied upon 2000 CLC 519.
4. Learned counsel for respondents No.1 & 2 submits that there is admission on the part of the appellant and that the respondents are satisfied if the decree is confined to the extent of above house and its mesne profit while he acknowledges that there is no admission in respect to the gold/cash, which he is not pressing.
5. After hearing the learned counsel, Para-10 of the plaint has been perused, wherein, claim has been raised, said para is reproduced as under:-
"
10. That under circumstances it would be just and proper to Declare that Suit Property is belongs to Plaintiffs & Defendants No.1 & 2 being legal heirs of deceased and Plaintiffs are also one of Co-sharer & Co-owner of Suit Property which has to get partitioned through the Office of Defendant No.3 amongst legal heirs of Deceased and to recovery respective share of Plaintiffs out of Ornaments, Goods of Deceased mother namely Mehmooda & brother namely Mubarak from Defendants No.1 & 2 with interest thereon plaintiffs with relief of Injunction."
6. Whereas in Para-10 of the written statement, following reply has been submitted:-
"
10. That contents of para No.10 are partly admitted and partly denied, it is admitted that plaintiffs No.1 & 2 are co-sharer being sisters of defendants No.1 & 2 are co-sharer being sisters of defendants No.1 & 2 and rest contents of same para is denied as mother of defendants and plaintiffs not left ornaments, similarly deceased brother namely Mubarak also not left any precious item but left only goods in shop which are toffees, suparis, etc. and defendants No.1 & 2 gave him Rs.4000/- for purchasing toffees, suparis etc. to run his shop in the suit property."
7. The above contention of the parties, coming out on record, proves that the immovable property, being subject matter of the suit, is admittedly under the co-ownership of the legal heirs while the appellant is in possession for the longer period. The authority relied upon by the appellant is not applicable in this case as the circumstances of that case are different to that of this case, therefore, keeping in view the statement of Mr. S. Zahir Hussain Chishti, it is ordered that the suit is being decreed to the extent of house as well as mesne profit as the appellant is in possession of the same for a longer period while issue of gold and cash has not been taken into account. Since Mr. Zahir Hussain Chishti is not pressing for these gold ornaments and are satisfied with the share in the property and mesne profit, therefore, it is ordered with the consent of learned counsel that there is no claim in respect to gold ornaments.
8. The learned counsel for the Auction Purchaser states that an amount has been deposited by him in this court. The said amount will remain here as according to the counsel for the appellant he has to contest the auction proceedings before the trial court and willing to purchase the property. Amount will be paid amongst the legal heirs according to shariah after decision of the civil court in respect to finality of order in the matter of auction.
With this clarification this appeal is disposed of.
Judge