1. ' S. ALI ASLAM JAFRI, J.--- Appellant/plaintiff has filed this appeal calling in question the judgment and decree passed by a learned Single Judge of this Court on original side dismissing the suit of the plaintiff for declaration, cancellation of declaration of gift, specific performance, possession and permanent injunction, however, with an observation "that in view of the continuous possession for a considerable length of period of the first floor by the plaintiff which in any case has been constructed from his own funds, the plaintiff would be entitled to the use and occupation of the entire first floor of his bungalow. However, should the plaintiff want to claim title to the entire property, he would be bound to pay the value of 15/16 share in the property at the market rate to the defendants Nos.2 and 3 who are the present owners of these shares by way of gift".
2. ' The facts relevant for the purpose of decision of this appeal are short and simple. The plaintiff who migrated from Bombay (India) in 1947 came and settled down in Karachi where he took possession of an evacuee property being Bungalow No,83-J.M. 4 at 82 Ajmal Khan Road, Karachi. After promulgation of Displaced Persons Settlement Laws he applied for transfer of the said bungalow.
3. Since he was a non-claimant as such he exercised his option of purchasing the property by associating a claimant. Abdul Karim who was husband of his sister the present respondent No,1 being a claimant was requested to make payment from his Compensation Book to which he agreed and the amount of price was adjusted accordingly. Permanent Transfer Deed was issued on 21-11-1961 showing the share of the plaintiff as 1/16 and that of Abdul Karim as 15/16. Abdul Karim died on 26-11-1962 leaving behind one son by name Asif Karim who also died on 21-6-1969 in an accident. Respondent/defendant No,1 being the sole surviving heir of Asif Karim claimed the entire share viz. 15/16 (i.e, fifteen annas out of a rupees which used to be of sixteen annas as that time) which had devolved upon Asif Karim after the death of his father Abdul Karim, being the sole surviving heirs of her son Asif Karim after the latter's death. It is the case of the plaintiff that defendant No,1 gifted her 15/16 annas share in the property to the plaintiff's nieces (daughters of another brother) in violation of the agreement of association dated 27-10-1960 executed between the plaintiff and late Abdul Karim because none of the said two co-sharers could alienate their respective share without the consent of the other side. The plaintiff challenged the said alienation so also set up a plea of adverse possession claiming himself to be in continuous possession of the house/bungalow in suit.
4. ' In their joint written statement the defendants denied and refuted the claim of the plaintiff and stated that they had been in continuous possession of the property and the plea taken by the plaintiff is absolutely false. It was alleged that in the year 1974 plaintiff in violation of the agreement between him and Abdul Karim had rented out first floor of the bungalow and thereafter he has never lived in the said premises. Defendant No,1 claimed to be the only legal heir of Asif Karim and asserted her ownership to the extent of 15/16 Annas share in the said bungalow. They objected to the plaintiff's desire to purchase the share of Abdul Karim which had ultimately devolved upon the defendant No,1 and thereafter upon the defendants Nos.2 and 3 being the lawful donees of the said property at a throw away price and showed their willingness to purchase the plaintiff's share if so required on the same terms.
5. ' In view of the pleadings of the parties, following issues were framed:-- "(1) Whether the suit is not competent not maintainable?
(2) -Whether the suit is time-barred?
(3) Whether the suit is bad for misjoinder of causes of action and for misjoinder of the defendants?
(4) Whether the plaintiff has remained in continuous and undisturbed adverse possession of the bungalow in suit for over 12 years to the detriment of Abdul Karim, his son Asif Karim and latter's mother Mst. Aneesa Azhar?
(5) Whether the plaintiff owns only 1/16 share in the suit property?
(6) Whether the defendant No,1 became owner of 15/16 share in the suit property on death of her son Asif Karim?
(7) Whether the defendant No,1 gifted her share in the suit property to the defendants Nos.2 and 3?
(8) Whether the gift by the defendant No,1 in favour of the defendants Nos.2 and 3 concerning the suit property is valid and legal?
(9) Whether the first floor of the bungalow in suit was constructed from the funds raised by the plaintiff alone?
(10) Whether the first floor of the bungalow in suit was constructed from the funds of the alleged joint business being run by the plaintiff and his brothers including Qadeer Fateh in the name of Fateh International Trading Company?
(11) Whether the plaintiff has forfeited his right if any, to the discretionary relief of specific performance?
6. (12)Whether the plaintiff is liable to be burdened with special costs under section 35-A of C.P.C.?
7. (13)Whether the plaintiff is entitled to specific' performance by the defendant No,1 of the agreement of Association dated 27-2-1960 allegedly entered into by late Abdul Karim with the plaintiff and if so, on what terms and conditions and to what extent?
8. (14)What should the decree be?"
9. ' Plaintiff examined himself and five other witnesses (wrongly mentioned as only two other witnesses in the impugned judgment) but the defendants did not lead any evidence.
10. Issues Nos.1, 2 and 3 regarding maintainability of the suit, limitation and the suit being bad for misjoinder of causes of action and parties/defendant were not pressed either before the learned Single Judge or before this Court, hence the findings recorded by the learned Single Judge do not require any interference and the said issues are replied as "Not pressed". Issue No,4 regarding continuous undisturbed adverse possession of the bungalow in suit by the plaintiff was decided against the plaintiff. In view of the admitted position that plaintiff is entitled only to the extent of 1/16 share no finding was found necessary on Issue No,5. On Issues Nos.6 and 7 regarding the ownership of defendant No,1 to the extent of 15/16 Annas share which is admitted and acknowledged by the plaintiff in cross-examination and the fact that a gift has been made by her in favour of defendants Nos.2 and 3, it was no more a point of controversy as such no findings were necessary to be recorded. In respect of Issue No,8, it was held that the gift by defendant No,1 to defendants Nos.2 and 3 was legally and validly made. Issue No,9 has been decided in favour of the appellant/ plaintiff as there was no evidence in rebuttal. While deciding Issues Nos.10, 11, 12 and 13 together the learned Single Judge came 'to the conclusion that though first floor of the bungalow was constructed by the plaintiff from his own funds, but he had no right for the discretionary relief of specific performance or special costs under section 35-A, C.P.C. And the suit was decided/disposed of in the above terms as reproduced above.
11. ' Mr. Muhammad Tasnim learned counsel for the appellant/ plaintiff tried to assail the findings of the learned Single Judge recorded against the appellant/plaintiff on different counts. His main contention was that in fact six (6) witnesses including the plaintiff were examined on behalf of the plaintiff but the learned Single Judge has stated that only two witnesses were examined, which is factually incorrect hence the evidence of the remaining witnesses and the documents available on record were neither considered nor discussed and as such it is case of non-reading of the evidence. His next contention was that the gift in favour of defendants Nos.2 and 3 was invalid as the defendant No 1 . Was herself not the owner of the share of 15/16 Annas in the property and further more she was not in possession of the said property so that it could be transferred to the donees. Learned counsel further urged that terms of agreement between the plaintiff and late Abdul Karim have specifically laid down that none of the party to the agreement could alienate his share in any way in favour of any other person except with the consent of the other sharers, hence the alienation is illegal and unlawful.
12. ' Ms. Rizwana Ismail who has appeared for the respondents disputed the contentions raised by Mr. Muhammad Tasnim and argued that the plaintiff in his cross-examination has himself admitted that defendant No,1 was the owner of 15/16 Annas share of the property in suit, apart from other material viz. Mutation entries in the City Survey. Record in favour of defendant No,1 and subsequent entries in favour of defendants Nos.2 and 3 as the donees, which were never challenged by the plaintiff before any competent authority at any time. With reference to the plea of adverse possession it has been argued that the plaintiff miserably failed to establish such plea and more particularly after the decision of the Honourable Supreme Court declaring the plea of adverse possession to be against the Injunctions of Islam the same plea is no more available to the plaintiff.
13. Even otherwise, co-sharer cannot raise this plea against other co-sharer because it is well-settled that each co-sharer even though not physically in possession of the property in which he has a share to any extent shall be deemed to be in possession of property, as in this case, a co-sharer is presumed to be in possession in every inch of the property jointly owned by him with other co- sharers. Lastly, it was urged that appeal is without any merit and liable to be dismissed.
14. ' The other Appeal being No,15 of 2000 filed by defendants Nos.2 and 3 calling in question the findings of the learned Single Judge in respect of Issues Nos.9 and 10 regarding the repairs of the first floor carried out by the plaintiff from his own funds or joint funds was not pressed by Ms. Rizwana Ismail and as such it was dismissed, however, with no order as to costs.
15. ' So far the contention of the learned counsel for the plaintiff/ appellant Mr. Muhammad Tasnim in support of his appeal are concerned, we have given due consideration and with his able assistance examined the material viz. The pleadings of the parties, so also the documents and evidence available on record. We do not find any force in any of the contentions of the learned counsel for the appellant. Though initially it was argued that defendant No,1 is not owner of 15/16 Annas share of the property in suit and as such no gift could be made in respect thereof but when the attention of the learned counsel was drawn to the admission of the plaintiff in his cross- examination that he acknowledged the share of defendant No,1 in the bungalow in suit to the extent of 15/16, learned counsel tried to argue that an admission against law has no force because defendant No,1 in any case could not inherit the whole of the property which belonged to her deceased son. When asked to point out from the evidence whether the said deceased Asif Karim left any other legal heir, learned counsel for the appellant was unable to substantiate the said contention. In alternate, he again took the plea of adverse possession though the same is no more available under the law of land as regretly pointed out by the learned counsel. Even on facts that in case if the law of Adverse Possession would have not been declared as repugnant Injunction of Islam. Lastly, the learned counsel urged that in view of the agreement of association entered between the appellant and late Abdul Karim at the time of filing of Agreement of Association and making payment to the price there exist such condition in the agreement. Learned counsel urged that the sharers in the property in question could not alienate their share in any manner whatsoever without the consent of the other one. We pointed out to the appellant as to what prejudice has been caused to the appellant in view of the observations of the learned Single Judge by giving him an option either to sell his one Anna share to the defendants or to purchase their share on the market value of the property, learned counsel had no reply to the same.
16. ' In view of the discussion made above, we do not find any force in the contention that it is a case of non-reading of the evidence simply for the reason that in the impugned judgment the number of witnesses examined on behalf of the plaintiff is shown to be two (2) instead of six (6). Learned counsel was unable to refer to any piece of evidence from the statements of the remaining witnesses, which could improve the case of the appellant/plaintiff in view of the admitted facts of the case and particularly the admission made by the plaintiff in his evidence/cross examination.
17. ' Finding no merits in this appeal, we have dismissed the same by a short order, dated 11-9-2003 and above are the reasons for the same.