IN THE HIGH COURT OF SINDH, KARACHI

Civil Revision Application No. S - 100 of 1999

Muhammad Faheem.…….……………………………..…………....Applicant

Versus

Muhammad Faiz and others………………………….….........…Respondent

Mr. Imtiaz Ali Effendi, advocate for applicant.

Mr. Raja Aftab Ahmed Khan, advocate for respondent No.1

Date of hearing: 17.09.2018

Date of Judgment: __________.

J U D G M E N T

Fahim Ahmed Siddiqui, J- By filing the instant civil revision application, the applicant has assailed the impugned Order dated 22-04-1999 by the Additional District Judge-II, Karachi West in Civil Appeal No. 29/1998, whereby the appeal filed by the respondents was allowed; resultantly the judgment and decree passed by the learned Civil Judge Karachi West in Civil Suit No. 1461/1987 was set aside. As the applicant was the beneficiary of the aforesaid judgment and decree; therefore, he preferred the instant revision application with a prayer that the impugned order be set aside and the judgment and decree passed by the court of first instance be restored.

2. The factual matrices of the case are that the father of the applicant, late Muhammad Saleem purchased a plot measuring 200 square yards in the name of applicant in the year 1952 from one Syed Saleh Shah, who was allegedly landlord and owner of his village land i.e. Shershah Village and he issued a possession order for lease in his favour on 20-12-1952. Allegedly, the said plot is situated on a 20 feet wide road, Class-V, Block-C in the then plan of the said village, which was a Katchi Abadi. In the year 1963, Excise and Taxation Department conducted a survey in absence of the applicant or his father (as they were in Dhaka) and the said plot was bifurcated into plots, one measuring 150 square yards and the other measuring 50 square yards and they were given numbers as M-II/E(C) 109 and M-II/E(C) 130 respectively. The plot bearing number M-II/E(C) 109 was further subdivided into two plots in 1982. Amongst them, one measuring 70 square yards numbered as M-II/E(C) 109-A, which is allegedly in unlawful possession of the respondents. The applicant claims that his father raised construction over the plot in question in 1952-53, when the applicant was only seven years old. Meanwhile, the father of the applicant was transferred from Karachi to Dhaka. However, he continues to receive rent from the tenants through his friend Muhammad Ishaque, who continued to receive rent on behalf of his father till 1968, when he has shown his inability to collect rent to his father during his visit of Karachi. The father of the applicant then asked his cousin Qasim to collect rent in his absence and he used to collect rent from all the tenants except the respondents. In 1968, the suit property was rented out to respondent at a rate of Rs. 25/- per month by one of the tenant of his father namely Muhammad Haneef, who was authorized to do so by his father. Respondent continued to pay rent till December 1968 directly to the father of the applicant, as he was on a visit to Karachi during that period. After the departure of the applicant's father to Dhaka, the respondent stopped payment of rent. Nevertheless, Muhammad Qasim continued to pay taxes and other charges pertaining to the said property on behalf of the father of the applicant. Owing to non-clearance of his repatriation paper, the father of the applicant could not repatriate from Dhaka and expired there in 1983. However, the applicant came to Karachi in 1982 and soon after his return to Karachi, he contacted respondent and other tenants for payment of rent including arrears. The remaining three tenants of the premises agreed to pay rent but the respondent refused to pay rent and insisted upon his claim of ownership. The applicant has sent a legal notice to respondent on 17-03-1984 demanding the payment of outstanding rent and also for vacating the suit property. Since, respondent avoided paying rent; therefore, the applicant filed a rent case and on direction of learned Rent Controller, he filed a suit which was decreed but unfortunately met a fate of dismissal in appeal. As the appellate Court has reversed the judgment and decree; therefore, the instant civil revision application is filed.

3. The learned advocates appearing for both the parties have filed the synopsis of their written arguments and thereafter they preferred to make oral submissions also.

4. While pressing the instant revision application, the learned counsel for the applicant submits that regarding the suit property lease was granted by Syed Umeed Ali Shah, who is the admitted owner of the entire property i.e. Shershah Land as per a judgment of the honourable Supreme Court reported as 2007 SCMR 181. He goes on to say that the property in question was let out to Muhammad Hussain by Muhammad Haneef as said Muhammad Haneef was a trustful person of the father of applicants namely Muhammad Salim. According to him, the property was malafidely bifurcated into two portions on the basis of survey which was held in the absence of the father of the applicant, as such it has no value or worth. The learned counsel for the applicant submits that the applicant along with his father went to Dhaka in the year 1962 and could not return back till 1982 when he found that the property bearing plot No. M-II EC/109-A measuring 150 square yards was in possession of Manzoor and Ali Muhammad, who have further bifurcated the subplot in two parts on the basis of certain documents and they declined to return the property in question to the applicant. According to him a defence witness namely Azizullah Baloch admits that they did not change the status of property in question and bifurcations was done on the instigation and directions of the then Councillor. He submits that from these facts it is clear that the property in question was actually owned by the applicant and the respondents are usurpers of the said property and they did so in collision of the Councillor of the area, as such the judgment of the lower appellate Court is bad in law and without considering the material available on the record. In the end, he prays for setting aside the impugned order/judgment and restore the judgment of the trial Court. According to him, the applicant has earlier filed a rent case against the respondents which was dismissed with direction to the applicant to establish his title over the property in question by filing a civil suit, as such the suit was filed which was decreed in his favour. According to him, it becomes evident from the observation of the learned Rent Controller that the applicant at least has some right over the suit property and that right was established by him under a decree, which was subsequently turned down by the appellate Court. He submits that the order of the appellate court is arbitrary and passed in a capricious manner, which has to be set aside.

5. While opposing the instant civil revision application, the learned counsel for the respondent submits that the impugned order passed by the lower appellate forum is proper and meritorious. According to him, the applicant has no title over the property in question. He submits that the property is situated in a Katchi Abadi, which is still unleased area. He submits that the respondents are residing in the property on their own right, which was admitted by the Excise and Taxation Department at the time of survey, as such PT-1 was issued in favour of the respondents. According to him, since the applicant has no legal character or right over the property in question; therefore, the suit filed by him was rightly dismissed by the appellate forum. He submits that since the learned counsel for the applicant could not point out any material error in the impugned judgment; therefore, it does not require any interference by this Court. He points out that cost was imposed upon the applicant but the same was not paid, as such the instant civil revision liable to be dismissed. In support of his contention, he relies upon PLD 1986 Supreme Court 88, 2000 SCMR 1647, 2005 CLC 1032, PLD 1988 Karachi 433, 1999 MLD 2156, PLD 1997 Karachi 292 & 2001 SCMR 1992.

6. I have heard the arguments advanced and have gone through the material available in the record. It is the contention of the applicant that the property was purchased by his father in his name from the original owner of village Shershah and he has leased out the same in his name. In this respect, he placed heavy reliance on an unregistered lease deed purported to be executed in the year 1952 by the owner of the land in favour of the applicant. From the contents of the said document, it transpires that the same has conveyed the perpetual right of ownership in favour of the applicant. It is the contention of the learned counsel for the applicant that Syed Umed Ali Shah is the actual owner of the entire land of the village of Shershah. It is pertinent to mention that a lease deed is required to be registered being a compulsory registrable document.

7. Another aspect of the case is critical. Although the applicant claims his right of ownership over the property in question through Syed Umed Ali Shah son of Syed Kasim Ali Shah but he could not establish that the said Syed Umed Ali was actually the owner of the entire land wherein the land in question is situated. It is the contention of the learned counsel for the applicant that the entire land in and around Shershah belongs to one Sher Shah and his family is dwelling there as their own right of ownership since centuries. He further submitted that being the offspring of Sher Shah; Syed Umed Ali Shah family enjoys the right of ownership of the said land and they are empowered to issue lease or sub-lease. In this respect, the learned counsel for the applicant has relied upon the case of Muzaffar Khan v/s Sachi Khan and another (2007 SCMR 181) and submits that in the said case law, the Apex Court of the country has acknowledged the right of ownership of Syed Umed Ali Shah and his family members. I have gone through the cited case law. In the case of Muzaffar Khan (supra), only possession was restored to one of the party but it does not speak anything about the ownership of Umed Ali Shah and/or his family. On the contrary, it does not recognize the right of ownership of Syed Umed Ali Shah on the suit property. Since the applicant is claiming the right of ownership over the plot in question but he could not establish that the said Umed Ali Shah himself enjoys a good and transferable title over the suit land/plot. Although, the applicant has produced PW Sher Ali, who claims that he is the owner of the entire Sher Shah village and the property in question was purchased by the father of the applicant. However, the question remains the same, as the said Sher Ali did not substantiate or establish his right over the property and if he or his family had no right over the property, it could not be transferred. As far as possession is concerned, it might be that the same was handed over by some of the elders of Mr. Sher Ali to the father of the applicant but it cannot be sufficient to create a declaration of ownership in favour of the applicant.

8. It is also the case of the applicant that his father has transferred to Dhaka after purchasing and renting out the plot in question but he could not establish through credible evidence that after purchasing, possessing, constructing and subsequent renting out the plot in question, his father transferred to Dhaka. It is the case of the applicants that even after transferring to Dhaka, his father was able to get control over the property in question initially through his friend Muhammad Ishaque and then his cousin Qasim. However, this aspect of the case could not be established through some credible evidence. It is also the case of the applicant that the rent was being collected till 1968 and thereafter it was stopped. For filing a suit, the applicant claims that he could not repatriate to Pakistan after the creation of Bangladesh until 1982 but in this respect, also he could not produce any documentary evidence regarding his repatriation. It is also necessary to establish this point because the respondents succeeded in getting PT-1 issue in their names in the year 1982 and the first suit was filed in the year 1984, which was withdrawn with permission to file fresh in the year 1987.

9. It is also the case of the applicant that his father has purchased the property in question from Syed Umed Ali Shah but no sale agreement could be placed on record to verify such contention of the applicant. As far as, the document which was filed as a lease, itself is a questionable document because neither it is a registered document nor it establishes the title of Syed Umed Ali Shah. It is also the case of applicant that his father was in possession of the property in question but this fact also could not be established through credible evidence before the trial Court. The applicant has produced a witness namely Muhammad Haneef, who claimed to be the tenant of the applicant since 1960. In his examination in chief, he states that he and other tenants were paying rent since 1960 but the opponents (respondents) did not pay rent. Muhammad Haneef in his deposition admits that he had deposed thrice in favour of the applicant. This witness in cross-examination also admits that the entire area of Shershah belongs to KMC. Regardless of the fact that, there are certain loopholes in the deposition of Muhammad Haneef but even if his deposition is given some weight, it does not establish that the property which is under occupation of the respondents was ever in possession of the applicant.

10. I have also gone through the judgment of the trial Court in which the learned trial judge has decided the most controversial issue i.e. issue No. 5 in favour of the applicant. This issue pertains to possession of respondent in his own right. At the time of deciding this issue, the learned trial judge relied upon the deposition of respondent Muhammad Ali, who stated that he had purchased the property from Muhammad Salim (father of the applicant) and he never remained his tenant. The learned trial Court makes it a great point in favour of the applicant. But it is a settled law that no one can establish his right solely on the ground of weakness of the case of his opponent. Besides, from the deposition of Muhammad Ali, it can be said that he had taken possession of the property from the father of the applicant but not in the capacity of tenant. It has also come on the record that the respondents have never paid rent to the applicant and there is no proof of payment of rent by respondents or their late father to the father of the applicant. It is also an admitted position that the possession of the premises is with the respondents since long. I am; therefore, of the view that the applicant could not establish the right of ownership or possession. After careful scanning of impugned order/ judgment in the light of available material, I could not find any legal infirmity in the impugned order/judgment. In my view, there is no misreading or non-reading of the available evidence.

11. The ultimate of the outcome of the above discussion is that the instant criminal revision application is dismissed.

J U D G E