JUDGMENTSHEET
IN THE HIGH COURT OF SINDH AT KARACHI.
PRESENT: MR.JUSTICE SADIQ LAGHARI, J.
Date of hearing: 27.3.2003.
Applicant: Nisar Fatima through Mr. Khalid Iqbal Ansari, Advocate.
Respondent: Syed Zawar Hussain through Mr. Syed Mohammad Haider, Advocate.
***
MOHAMMAD SADIQ LAGHARI, J. Present Revision application has been filed by the legal heirs of Syed Kazim Abbas against the concurrent decisions pronounced by Civil Judge Malir and Second Additional District Judge Malir, whereby the former decreed the Suit No. 57/94 filed by Syed Zawar Hussain against Syed Kazim Hussain Shah and the letter dismissed the appeal filed by the applicant.
2. The facts of the case are that the applicants are residing in a house constructed upon Plot No. L-1/5 Abbas Town (Bakhar Goth) Karachi, which they claim to have constructed by their predecessor in interest Kazim Abbas after occupying the plot more then two decades back. However Syed Zawar Hussain claims that he purchased plot L-I/5 Mirza Abul Hassan Isphani, Road, Bakhar Goth (Abbas Town), Karachi from its owner Jhanda Khan Gabole with hetman on 5th August under an agreement of sale dated 5.8.1974 and then raised construction thereupon. That in 1981 he allowed his close friend Kazim Abbas to reside in that house. After some time Syed Kazim Abbas refused to vacate the house claiming ownership upon it.
3. Syed Zahar Hussain filed Suit No. 1570/89 against Kazim Abbas in the Court of Second Senior Civil Judge Karachi, East, for declaration that defendant Kazim Abbas was residing in the disputed house under his/plaintiff’s (Zawar Hussain) permission. The other prayers were for issuing direction to Kazim to put plaintiff Zawar Hussain into vacant possession of the house and restraining him from parting with the possession thereof.
4. Kazim Abbas the defendant resisted the Suit and filed written statement denying therein the claim of Plaintiff Zawar Hussain. He assailed that the house in his possession was constructed by him on a plot of Abbas Town which was a locality different than Bhakkar Goth. He (Kazim Abbas) expired during the pendency of the Suit and was replaced by his legal heirs.
5. After recording the evidence of the parties the Civil Judge Malir decreed the Suit filed by Syed Zawar Hussain, by judgment dated 18.1.2001 which was followed by decree dated 24.1.2001. Appeal filed by the applicant/defendant was also dismissed by Second Additional District Judge Malir wide judgment and decree dated 25.9.2001 respectively.
6. Mr. Khalid Iqbal Ansari, learned Advocate for the applicant argued that present is the case where the two courts below did not attach any weight to the admitted fact that applicant are residing in a pacca construction house on the plot since more than two decades and electricity connection in the premises is also in the name of their predecessor in interest Kazim Abbas.
7. He argued further that infact that learned Courts granted decree in favour of respondent only on the basis that number of the plot whereupon appellant’s residential house was existing was proved to be the same which Zawar Hussain the respondent/plaintiff claimed to be its number. According to learned Advocate if the applicant/defendant claimed the number of plot to be other than one claimed by the respondent/applicant the Suit could not be decreed in favour of the respondent/applicant the Suit could not be decree in favour of the respondent/plaintiff only for the reason that number of plot was proved to be that which he was claiming to be its number. As according to the learned Advocate the approach of the learned two courts below was totally against the law and principal of appreciation of evidence. If a person with false claim gives correct number of the disputed property he can not get that property for that reason alone even if number given by the other side was incorrect for getting the property the claimant/plaintiff has to prove his right and entitlement over the plot and the construction existing thereupon which Zawar Hussain failed to do in present case.
8. Syed Muhammad Haider the learned Advocate for respondent defended the impugned decisions arguing that the two courts below appreciated the evidence on record and recorded their finding properly. Those findings do not suffer from any legal infirmity therefore can not be interfere with in exercise of revisional jurisdiction. He contended that disputed property is situated in Kachi Abadi therefore no documentary evidence could be produced. However huge oral evidence brought by respondent/plaintiff Zawar Hussain he proved that the house was handed over to Kazim Abbas by him (Zawar Hussain) for temporary use.
9. It must be mentioned at the very out set that the house in which the applicants are residing was constructed on a plot of unauthorized colony. The evidence has proved and also the applicant’s learned Advocate has admitted during the course of argument that the plot was in Bakhar Goth new name whereof is Abbas Town. It is proved through evidence specially that of Junaid Ahmed Usmani Assistant Engineer KESC, examined as Court witness No.2 that the electricity meter in the name of Kazim Abbas is at the address L-1/5 Abbas Town Bakhar Goth Karachi. The ____________produced containing the name Kazim Raza and his wife Mst. Jamila and ___________their address L-1/5 Abbas Town, therefore it is also established that number of the plot was L-1/5 which according to the evidence of P.W. 5 Ejaz Hussain was assigned by one Kashif at the time when he prepared the map of the abadi. He has not given the year of preparation of the map. However it is clear that an unofficial number of the plot in question was L-1/5 which is situated in old Bakhar Goth new name Abbas Town.
10. It was rightly argued by Zafar Iqbal Ansari that for reason that the evidence proves that plot to be No.L-1/5 Bakhar Goth new name Abbas Town the decree in favour of Zawar Hussain plaintiff/respondent could not be granted. That the evidence on record has proved that the _________________________house is constructed on L-1/5 of Abbas Town previously called Bakhar Goth.
11. The plaintiff/Respondent Zawar Hussain was required to prove his right and ___________the plot and house existing thereupon.. In his seven line examination in chief Zawar Hussain deposed that he purchased the Suit Plot from Jhanda Khan Gabole on 5.8.1974 and then started residing therein. Throughout in his entire evidence including the cross-examination he has not stated that he constructed house on the plot after purchasing it from Jhando Khan. In August 1974. Although in the plaint he claimed to have purchased the plot under a written agreement but in his entire evidence neither he talked such agreement nor produced the same. On the question of construction house upon the plot also he did not express a word. On the contrary, he deposed that the after purchasing the plot he started residing therein and in 1981 gave that house to Kazim Abbas due to friendship. It is not known that when and by whom the house was constructed upon the plot after purchasing it in August 1974. Also nothing is in the evidence of Zawar Hussain as to where he shifted after inducting Kazim Abbas in the house. His entire evidence is vague and not of the standard which could be accepted as proof of a case about ownership of the plot and house and then delivery whereof to Kazim Hussain.
12. Other evidence in his support is of Musharaf Hussain who deposed that Zawar Hussain had purchased the plot and then raised construction thereupon resided therein and then he handed over the keys of that flat to a person whose name he does not remember. The third witness is Mazhar Hussain who has deposed that the plot in dispute is property of plaintiff. He is residing therein since 1974. He constructed the house. And he handed over the keys to Kazim Hussain
13. First Zawar Hussain never claimed to have delivered the keys of house Kazim Hussain in presence of these two persons namely Musharaf Hussain and Muzaffar Hussain. Secondly the two persons have spoken sweeping and vague language. Musharaf say that Zawar Hussain handed over the keys to one man whose name he does not remember whereas Muzaffar Hussain says that keys were handed over to Kazim Abbas. Prayed not till______________where Zawar Hussain himself shifted after handing over possession of the house to Kazim Abbas. It is surely not the evidence of the standard which could establish the case of respondent/plaintiff Zawar Hussain.
14. Out of the remaining two witnesses of Respondent/plaintiff Zawar Hussain only Ehsan Raza talked of the plot at one place only in following words:-
“I do not know other but know that the plot
in dispute belong to plaintiff.”
For appreciation of his evidence two other sentences from it are to be reproduced which are:-
“I do not know whether the defendant had
constructed the house with his own funds.”
I do not know whether the (refers to the plaintiff)
Never remained in the same house.”
Evidence of this witness is therefore not on the question of construction of _____________and handing over the possession thereof to any one.
15. The last witness of Zawar Hussain is Ejaz Hussain Shah whose evidence shows that in 1980 the writ petition was filed in the High Court by the Welfare Association of Bakhar Village in which the list of residents of Bakhar Goth was filed. According to him name of Zawar Hussain Shah was among those residents of Bakhar Village. That fact by itself does not prove that Zawar Hussain Shah was residing in a house constructed upon Plot No. L-1/5 specially when at the time when he recorded his evidence he claimed to be residing at Plot No. 1/10 Bakhar Goth/Abbas Town. Nothing is on the record that when he started residing there. Thus simple presence of his name among the residents of Bakhar village is no support to the case of Zawar Hussain against the applicants.
16. The above discussed evidence therefore, does not establish that the plot and the house where the applicants are residing belong to Respondent Zawar Hussain and he had put their predecessor Kazim Abbas thereof in possession during 1981.
17. On applicant side is the strong evidence of their possession over the house since more than two decades and sanction of electric connection in the name of Kazim Abbas the predecessor in interest.
18. The evidence of Zawar Hussain is suffer from further absurdity on the question of construction. It is in the evidence of his own witnesses Ejaz Hussain Shah that in 1980 Bakhar Village was dismantled and Zawar Hussain Shah also admitted that fact adding hurriedly that his house was spared for the reason that he was residing there. This explanation can not be believed. Firstly his own witness Ejaz Hussain did not state that any or some of the houses were spared during demolition process. Secondly it is not believable that other house which were demolish all were lying vacant.
19. Against the evidence of respondents/plaintiff side the evidence of applicants side is convincing/weighty. That Mst. Nisar Fatima the widow of Kazim Abbas has deposed that the house constructed by them first was demolish by the authorities in 1980 and they had raised the construction again after intervals . By intervals she means in phases. She also named Muhammad Shareef as one of the Mesons having worked. Witnesses Muhammad Sharif Meson has supported her deposing that he had worked during construction of the house of Kazim Abbas after 1980.Evidence of this witness was not challenged at all as not a single question was put to him in cross-examination.
20. As clear from the above, this Court entered into exercise of appraisal of the evidence for the reason that the learned two courts below based their decisions simply on the evidence regarding number of the plot.
21. The upshot of the above discussion is that Suit filed by Zawar Hussain the respondent was decreed wrongly against the applicants. The decisions of the learned two courts below are therefore set aside and the Suit filed by Zawar Hussain is dismissed. Consequently the revision application stands accepted with costs.
JUDGE