ANWAR ZAHEER JAMALI, J.---Through this Civil Revision Application under section 115 C.P.0 judgment and decree, both dated 17-7- 2004, passed by IInd Additional District Judge Hyderabad, in Civil Appeal No,131 of 1997, dismissing the said appeal of the applicant, and the other judgment dated 27-9-1997 followed by decree dated 29-9-1997, passed by the Court of IIIrd Senior Civil Judge Hyderabad, in F.C. Suit No,395 of 1987, dismissing the suit of the applicant, have been challenged.
2. The relevant facts of the case may be summarized as under:-- On 10-7-1996 applicant Abdul Shakoor filed suit for declaration and injunction against the respondents, being F.C. Suit No,395 of 1987 inter alia stating therein as under:-- "That the plaintiff is in possession of C.S. Nos.2495/2 and 2494/A parts being property evacuees Mangharm Chaitram and others.
That the plaintiff has constructed a pucca house over the said evacuee plot and got water, sui gas and electricity connections in his name.
That, the defendant No,4 was moved to sale the said evacuee property in possession of the plaintiff but as there is ban over the - disposal of balance evacuee property the defendant No,4 relied the plaintiff that at present it may not be disposed of however defendant No,4 admitted that the property in possession is an evacuee property and available for disposal.
That the defendants Nos.1 to 3 filed a suit for declaration that they were owner of the C.S. No,2495/2 and the defendant No,4 has no power to transfer it to the plaintiff. This suit was decreed on admission of the plaintiff that in presence of the PTD and registered sale-deed in favour of the father of the defendants the ownership is admitted of the specified area as shown is PTD No,11604 dated 6-3-1965 and registered Sale-deed No,56 dated 10-1-1969.
That, the PTD and registered sale-deed itself shows that the parties of C.S. Nos.2495/2 and 2495/10 were purchased by father of the defendants and the total area was 1067 sq. Ft. Of both numbers.
That, the City Sureveyor Hyderabad surveyed the site and the area in possession of the defendants and plaintiff are as under:-
(a) C.S.No,A/2495 area 158 sq. Yds. 5 sq.Ft (b), C.S.No,A/2494/2 area 116 sq. Yds. 6 sq.Ft.
(c) C.S.No,A/2495/3 area 70 sq. Yds. 2 sq.Ft.
(d) C.S.No,A/2495/7 area not shown but.
(e) A/2495/10 area 58 sq. Yds. 5 sq.Ft. 435 sq. Yds. 8 sq.Ft. 435-8-9/3905 sq.Ft.
Out of this 3905 sq. Ft. The plaintiff is owning about 300 sq.Ft. From part of C.S. No,2495/2 only. Hence the total area in possession of the defendants Nos.1 to 3 is about 3605 sq.Ft. And their father has purchased only 1067 sq.Ft.
That the remaining area 3605-1067=2538 sq.Ft is available for disposal by the defendant No,4 according to new policy.
That the plaintiff filed Constitution Petition No,144 of 1987 before the Honourable High Court and the Honourable High Court called comments from the Additional Deputy Commissioner-1, Hyderabad Sindh reported that the father of the defendants Nos.1 to 3 purchased property from one Jamal to whom himself occupied three Kothries (small rooms) along with one Kothri occupied by one Abdul Majid has transferred by City Survey Numbers A/2495/2 and A/2495/10-A.
That, the said Jamal Khan sold the three Kothries 'i,e, excluding the Kothri of Abdul Majeed to one Bundoo the father of the defendants Nos. 1 to 3 and that the correct City Survey number of the property transferred to said Jamal is A/2495/3, 2495/8, A/2495/8, A/2495/10 and that for correction of the City Survey number in the permanent transfer deed the defendants Nos.1 to 3 have filed application before the Additional Deputy Commissioner-1 Hyderabad which is pending for disposal and that the application for transfer of the evacuee property to the plaintiff consisting of City Survey No,A/2494 measuring 9.00 sq.Yds. And A/2495/2 measuring 23.8 sq. Yds. Is also pending before the Additional Deputy Comissioner-1, Hyderabad Sindh.
That, the defendants Nos.1 to 3 are falsely and fraudulently claiming the evacuee property to be their's on the basis of PTD, registered sale-deed and decree passed by this Honourable Court in Suit No,152 of 1986 of the above whole area in possession of the plaintiff and defendants though no such decree is passed regarding the whole area."
3. On the basis of above assertions applicant had prayed for grant of following reliefs in the suit:-
(a) It be declared that the correct City Survey number of the Evacuee property in possession of the plaintiff is A/2494 measuring 9 sq. Yds. And A/2495/2 measuring 23.8 sq. Yds. And for the transfer of which application is pending before the Additional Deputy Commissioner-1, Hyderabad and that the defendants Nos.1 to 3 are not the owner of the said property occupied by the plaintiff.
(b) A permanent injunction against the defendants directing them not to disturb possession of the plaintiff till the disposal of the evacuee property by the defendant No,4 to the plaintiff and defendants Nos.1 to 3 of C. S. No, A/2494/2 part A/2495, A/2495/2, A/2495/3 and A/2495/7.
(c) Costs of the suit be borne by the defendants Nos. 1 to 3.
(d) Any other relief deemed fit by this Honourable Court.
4. The respondents Nos.1 to 3 while contesting the suit filed their written statement in denial of the claim of applicant and submitted that their father had purchased Property No,A-2495/2 measuring 1067 sq.Ft from the original transferee from the Settlement Department through registered sale-deed dated 1-1-1969. As the applicant is in occupation of a portion of the said, property, thus his claim was not tenable. Maintainability of the suit was also challenged on the grounds being barred under section 9 C.P.C. And sections 34 and 41 of Pakistan Administration of Evacuee Property Act.
5. As the official respondent No,4 failed to submit their written statement in the suit, they were declared ex parte vide order dated 4- 8-1990.
6. On the above pleadings of the parties following issues were framed in the suit:--
(1) Whether the suit is not maintainable in law?
(2) Whether the plaintiff has no legal character vested right to file their suit?
(3) Whether the suit is barred under section 42 of Specific Relief Act?
(4) Whether the suit is time-barred?
(5) Whether the suit is barred under section 41 of the Pakistan Administration of Evacuee Property Act XII of 1957?
(6) Whether the Court has no jurisdiction to try the suit?
(7) Whether the application of plaintiff is pending before the Additional Deputy Commissioner-1 Hyderabad, for transfer of suit property? If so, what is its effect?
(8) Whether the defendants Nos.1 to 3 are not the owners of disputed property occupied by the plaintiff?
(9) Whether the plaintiff is entitled to relief as prayed for?
(10) What should the decree be?
7. At the stage of evidence, in order to prove his case, applicant examined himself before the Lower Court as Exh.132 and produced documents Exh.133 to Exh.151. He also examined Muhammad Younis, the Record Keeper from the Settlement Department as Exh.152, who produced photostat copy of PTD as Exh.
153. Both these witnesses were cross-examined by the learned counsel for the respondents Nos.1 to 3, whereafter applicant's side was closed. From the side of respondents Nos.1 to 3, respondent No,3 examined himself as Exh.165 and after his cross-examination side of respondents Nos. 1 to 3 was also closed.
8. The Court of learned IIIrd Senior Civil Judge Hyderabad by passing its judgment dated 27-9-1977 dismissed the suit of the applicant. Such judgment was challenged by the applicant through Civil Appeal No,131 of 1997, which was allowed vide judgment dated 7-3-1998 and case was remanded to the Lower Court in the following terms.
"The actual dispute in between the parties is that:
(1) Whether the area in possession of the plaintiff is a part and parcel of the area of property purchased by father of the respondents Nos.1 to 3 by virtue of a sale-deed?
(2) Whether the area of premises purchased by the father of the respondents Nos.1 to 3, vide sale-deed Exh.133, is in possession of the respondents Nos. 1 to 3?
Under these circumstances, I allow this appeal, set aside the impugned judgment and decree and remand the case back to the learned trial Court, with directions to frame the above two issues and record the evidence, which may be adduced by the parties and thereafter decide the case afresh. There shall be no order as to costs."
9. Aggrieved by the above referred judgment dated 7-3-1998 Civil Revision Application No,93 of 1998 was preferred by respondents Nos.1to 3 before this Court, which was allowed and disposed of vide order dated 15-11-2000 in the following terms: "The impugned order of the learned IVth Additional District Judge, Hyderabad in C.A.No,131 of 1997 dated 7-3-1998 is therefore set aside. The case is remanded back to the learned IVth Additional District Judge, Hyderabad with the direction that the parties may be heard afresh at an earlier possible date and finding should be given on all the issues legal and factual. The revision application is allowed in the above terms with no order as to costs."
10. It is after the above referred order of this Court, that Civil Appeal No,131 of 1997 was again heard by the Appellate Court and impugned judgment has been passed, thereby the judgment of the Lower Court, dismissing the suit of the applicant, has been maintained.
11. Mr. Rafiq Ahmed, learned counsel for the applicant during his arguments has made detailed reference to the pleadings of the parties as well as bunch of documents produced by the applicant in his evidence, to add force to his submission that it is wholly due to the lack of knowledge of the two Courts below about the actual working procedure in the Custodian Department, Settlement Department and City Survey Department, that the suit as well as appeal of the applicant have been decided against him. He submitted that the copy of draft valuation list (DVL), prepared by the Excise and Taxation Department for assessment purposes, was obtained by the Settlement Department from their officer and it was made basis for assigning property number to the transferees, which were mentioned in their P.T.Ds. But in most of the cases such property numbers shown in the PTDs did not tally with the corresponding City Survey numbers as shown in the City Survey record and Site Maps. Further one property number assigned in the PTD may correspond to several City Survey numbers or parts thereof, vice versa, one City Survey number may correspond to several property numbers assigned by Settlement Department in the PTD, depending upon the peculiar factual position of each property at site. Summing up his arguments in this regard and to explain the factual controversy involved in the present proceedings Mr. Rafiq Ahmed made further reference to the detailed comments dated 11-10-1987 prepared by the Additional Deputy Commissioner-1 Hyderabad, who was the concerned notified officer under the Displaced Persons Laws repealing Act of 1975 at the relevant time to deal with the residuary work of the Settlement Department. He contended that if the two Courts below had bothered to carefully examine this report, which was not disputed by any of the parties to this litigation at any stage of proceedings, and had visualized the correct factual position then the whole controversy would have been clear as regards the grievance and the claim of the applicant, which has forced him for tiling the instant suit for declaration and permanent injunction.
12. Further elaborating the case of the applicant Mr. Rafiq Ahmed made reference to the title documents of Jamal Khan son of Wazir Khan, who had sold his property to Babu Khan through registered sale-deed dated 1-1-1969, to show that under the PTD (Exh.153) the original transferee was transferred Houses Nos.2495/2 and 2495/10A and not these City Survey numbers as misunderstood by the two Courts below. Referring to the said PTD (Exh.153) he further submitted that from the two numbers mentioned in the PTD also, the original transferee Jamal Khan was transferred only the portion in his possession and in possession of Abdul Majeed, which fact is not only confirmed from the contents of PTD but also from the order dated 13-10-1970 (Exh.146). Making reference to the registered sale-deed of the predecessor-in-interest of respondents Nos.1 to 3 dated 1-1-1969 Mr. Rafiq Ahmed also contended that from the contents of this deed it is evident that vacant possession of the house purchased by Babu Khan was delivered to him by the original transferee at the time of execution of sale agreement dated 26-12-1968, thus the belated plea of respondents Nos.1 to 3, that Qasim, from whom the applicant has followed his possession over the suit property, was licensee of Jamal Khan has no force. In the same context Mr. Rafiq Ahmed also made reference to the written statement filed in the suit on behalf of respondents Nos.1 to 3 to show that it was nowhere pleaded by them that the possession of whole property purchased by their predecessor Babu Khan was not delivered to him at the time of execution of sale agreement dated 26-12-1968, followed by registered sale-deed dated 1-1-1969 or Qasim was occupying any portion of the property purchased by Babu Khan from Jamal Khan, as licensee of Jamal Khan.
13. Making reference to the previous litigation between the parties, more particularly the proceedings in F.C. Suit No,152 of 1986 Mr. Rafiq Ahmed submitted that right from day one the case of the applicant is that he has no concern whatsoever with Houses Nos.2495/2 and 2495/10-A Jaccob Road, Hyderabad (portion in possession of Abdul Majeed) transferred to Jamal Khan vide PTD Exh.153, which was subsequently purchased by the private respondentspredecessor Babu Khan, under registered sale-deed dated 1-1-1969. He contended that it was under these circumstances that on institution of baseless suit by the private respondents, being F.C. Suit No,152 of 1986, statement in writing was submitted on behalf of the applicant in line with their above instance.
14. Mr. Rafiq Ahmed further contended that the private respondents Nos.1 to 3 are in possession of much more area at site than 1067 sq.Ft purchased by their predecessor under registered sale-deed and it was for this reason that repeated requests of the applicant for site inspection and taking of measurements, were strongly opposed by them. In the end Mr. Rafiq Ahmed again made reference to the elaborate report of the Additional Deputy Commissioner-1 Hyderabad dated 11-10-1987 to conclude his submissions that without touching a single inch from the property of respondents Nos.1 to 3, the applicant is entitled for the reliefs claimed in the present suit.
15. Conversely, Mr. S.A.Shaukat Naqvi, Advocate for private respondents has strongly resisted the claim of the applicant. He contended that since the concurrent findings of facts recorded by the two Courts below are based on proper assessment of evidence and there is no misreading or non-reading of evidence, same are not open to questioning the revisional jurisdiction of this Court. He made reference to the certified true copy of the City Survey Extract of Property No,A/2495/2 and contended that if the PTD, registered sale-deed dated 1-1-1969, and the copy of this City Survey Extract are kept in juxta-position it will be clear that the original transferee Jamal Khan and thereafter the present respondents Nos.1 to 3, through their predecessor Babu Khan, are exclusive owners of whole City Number A/2495/2 and thus any claim of the applicant over C.S.No,A/2495/2 is not legally tenable. He also made reference to the statement in writing submitted by the applicant in the earlier Suit No,152 of 1986, whereby, according to Mr. Naqvi, he has conceded to such claim of the private respondents. Mr. Naqvi was also critical in his arguments as regards the reply/comments Exh.143 dated 11-10-1987 filed by Additional Deputy Commissioner-1 Hyderabad in C.P. No,D-144 of 1987. He contended that though these comments, had put up the case of Settlement Department before the High Court but the same are not binding on the private respondents. He, however, did not dispute that parties have never disputed the authenticity of this document.
16. To a suggestion from the Court whether the respondents Nos.1 to 3 will be willing for site inspection of the disputed properties so as to ascertain the actual area of property in possession of the applicant and the private respondents, Mr. Naqvi opposed such suggestion and contended that as regards possession, respondent No,3 has already deposed in his evidence that even before purchase of House Nos.2495/2 and 10/A, transferred to Jamal Khan by the Settlement Department, Babu Khan was in possession of other Property bearing C.S.No,2495/3, 7, thus inspection of site to ascertain the respective areas in possession of private respondents and applicant would serve no purpose to resolve such dispute between the parties.
17. I have carefully considered the arguments advanced by the learned counsel and perused the material placed on record, which goes to show that in nutshell the whole dispute between the private parties to the present litigation is regarding the confusion of property numbers assigned by the Settlement Authorities in the PTD of Jamal Khan and corresponding City Survey numbers of the said property. It is a matter of common knowledge, more particularly for those dealing or attached with the Custodian Department, Settlement Department, and City Survey Department that the number of properties assigned by the three Departments need not tally with each other. In the instant case also the position seems to be, that the respondents Nos.1 to 3 and their predecessor Babu Khan have confused the transfer of Property Nos.1495/2 and 2495/10-A to Jamal Khan (portion in his possession and possession of Abdul Majeed) with the corresponding City Survey Nos.2495/2 and 2495/10-A, though it is not the actual position at site An elaborate and exhaustive document, available on record, coming from the independent source, which elucidates this position, is the report/comments of Additional Deputy Commissioner-1 Hyderabad, (Exh.143) produced by the applicant in his evidence. For the sake of convenience relevant portions of such report are reproduced as under:-- No,DC/EF/-138 of 1987 Office of the Deputy Commissioner, Hyderabad Dated 11-10-1987.
To The Superintendent, High Court of Sindh, Hyderabad Circuit, Hyderabad.
Subject: Parawise comments of Constitutional Petition No,D/144 of 1987 Abdul Shakoor Mujahid versus Rent Controller Ward 'Aand others.
Reference is made to your Letter No,3921/87 dated 28-9-1987 in the above matter.
The Constitutional Petition as cited in the subject filed by Abdul Shakoor Mujahid is mainly directed against the order dated 15-8- 1987 passed by the Second Senior Civil Judge and Rent Controller in R.A. No,322/1986 preferred by Abdul Wahid and others impleaded as respondents Nos.4 to 6 in the present petition.
The facts pertaining to the transfer of the properties by the defunct Settlement Department and parawise comments are as under: There is a double storey building actually constructed on C.S. Nos. A/2495/3, 2495/4, 2495/5, 2495/6, 2495/7, 2495/8, 2495/9 and 2495./10 owned by evacuees namely, Gurabi Bai w/o Tolaram, Gomi Bai w/o Pahlaj Rai and Jasi Bai w/o Passumal as per record maintained by the City. Survey Officer. But in fact the same was wrongly surveyed and assessed by the Excise and Taxation Department, which assigned Nos.A/2495, A/2495/1, A/2495/2, A/2495/6, and 2495/10. Similarly, the names of the Hindu evacuee owners were also recorded wrongly as Kundi Bai alias Khemi Bai w/o Lalchand and Chelaram. Since the survey record prepared by the Excise and Taxation Department was adopted by the defunct Settlement Department during 1959 for the purpose of transfer of evacuee properties in Hyderabad City. The two tenements on the upper storey were assigned No, as A/2495 and the six tenement on the ground floor were assigned and transferred to the following persons.
S.No,Name of transfereeAccommodationNo, Assigned Gross annual rent Ground floor tenements
1. Mst. Fatima One kothri small room self-possession A/2495/1 Rs,30
2. Mst. Amina Khatoon One godown self-possession A/2495/A-1 Rs,30
3. Jamal Khan (predecessor in interest of respondents Nos.4 to 6).3 kothries self-possession. One kothri in possession of Majeed Khan A/2495/2 A/2495/10-ARs,40 Rs,20
4. Asghar Ali One kothri self-possession A/2495/10 Rs,25
5. Nazar Hussain One kothri in possession of Sadntddin A/2495 Rs,25
6. Abdul Ghani One kothri self-possession A/2495 Rs,40 As a result of difference in the Nos. Of the properties the Nos. Assigned by the Settlement Department on the basis of survey record of the Excise and Taxation Department do not tally with the basic and permanent record of rights of the properties maintained by the City Survey Officer, Hyderabad.
The correct City Survey of the above tenement of the building are also different from those shown in the transfer documents. The correct position of the C.S. Nos. Of the tenements i,e, two on the first floor and six on ground floor according to the City Survey site map are as under: S. No,Name of transfereeNo, shown in the transfer documentCorrect City Survey No, First floor tenements
1. Abdul Rauf A/2495First floor over C.S. Nos.A/2495/3, 2495/4, 249515, 2495/6, 2495/7 (Part), 2495/8 and 2495/9
2. Muhammad Ali Khan A/2495First floor over C.S. Nos.A/2495/3, A/2495/7 (Part) and A/2495/10 1.Mst. Fatima(surrendered in favour of Mst. Suriya). A/2495/1 One Kothri C.S. No.A/2495/10 (Part)
2.Mst. Amina Khatoon A/2495/1 -A One godown C.S. No.A/2495/9 3.Jamal Khan(predecessor ininterest of respondents Nos.4 to 6).A/2495/2 3 KothriesA/2495/10-A One KothriC.S.Nos.A/2495/3 (Part) and A/2495/10
(Part) C.S.No.A/2495/8 4.Asghar Ali A/2495/10 One Kothri C.S.No.A/2495/3 (Part)
5.Nazar Hussian A/2495/4 A/2495/4 6.Abdul Ghani A/2495/5 and A/2495/6 A/2495/5 and A/2495/6 Necessary corrections of C.S. Nos. Have already been made in the transfer documents of three transferees shown at S.Nos. 1, 2 and 6 on the basis of Rubkaries issued by the City Survey Officer (copies enclosed) and marked annexure AA, BB, CC and possession plans marked annexure DD, EE and FF. The respondents Nos.4 to 6 also applied for correction of C.S. Nos. As per Rubkari of the City Survey office in the transfer document of Jamal Khan shown at S. No,3. But it is still pending in this office due to civil litigation. The other transferees have not yet come forward for necessary corrections in their transfer documents.
It is necessary to clarify here that the correct and actual C.S. Nos. i,e, A/2495/1 and 2495/2 are self-independent plots and have their separate entity thereby having no concern with the subject double storey building. The said plots are still undisposed of and by virtue of section 3 of the Evacuee property and Displaced Persons Laws (Repeal Act) 1975 stand transferred as Government property to the Provincial Government in the Land Utilization Department of the Board of Revenue, Sindh.
As mentioned above, Jamal Khan was transferred his self-occupied three kothries (small rooms) along with one Kothri occupied by Abdul Majid assigning C. No,2495/2 and A/2495/10-A, again on the basis of record maintained by the Excise and Taxation Department and with the consent of said Abdul Majid. Necessary PTD was issued to him to the extent of said portion accordingly.
(photo copies of appendix, PTO and PTD enclosed and marked annexure GG and HH and JJ. Copy of consent signed by Abdul Majeed also enclosed and marked annexure II).
Jamal Khan sold the tenement in his possession i,e, 3 Kothries bearing No, A/2495/2 (Part) corresponding to correct City Survey Nos.A/2495/3 (Part) and A/2495/10 (Part) to one late Bundoo Khan. The other Kothri occupied by Abdul Majeed bearing correct C.S. No, A/2495/8 as against wrongly assigned Nos. As A/2495/10-A was also sold to one Muhammad Sharif. However, the sale-deeds between the parties were executed without getting the transfer documents mutated in the City Survey Record. The mistake of the S. No, could not therefore be detected at the time of registration of the sale-deed. It was not even got authenticated from the Settlement Department. It was also not mutated in the City Survey Record.
On 7-11-1985, Abdul Waheed (respondent No,5) applied to the City Survey officer for mutation of PTD and sale-deed along with possession plan showing correct C.S. No, of the three kothries transferred to Jamal Khan along with part of independent plot bearing Nos.A/2495/1 and 2495/2 which have never been transferred to Jamal Khan as earlier reported.
In reply to the said application the City Surveyor issued a Rubkari advising Abdul Waheed to get the PTD and sale-deed corrected from the competent authority. Pursuant thereto. Abdul Whaeed then moved an application in this office on 4-2-1986 for assigning correct City Survey No, as per City Survey Record and possession plan. This application could not be processed and disposed of because of civil litigation as in the meantime respondents Nos.4 to 6 in the present petition had filed suit in the Civil Court. (Copies of application dated 4-2-1986, Rubkari dated 4-3-1986 and possession plan enclosed and marked annexure KK, LL and MM respectively).
The Civil Suit No,182 of 1980 filed by respondents Nos.4 to 6 against the present petitioner was disposed of by the Civil Court on filing a statement by his counsel dated 22-12-1986 (Annexure M of the plaint). In this statement the counsel for the present petitioner is shown to have conceded to the ownership of respondents Nos.4 to 6 on the basis of registered sale-deed executed between the parties. As already pointed out, the position of ownership is quite different. The suit could not therefore, proceed on merits nor was any evidence recorded from either side as well as the then Deputy Settlement Commissioner, Hyderabad at the time of disposal of the said suit. Had the suit been proceeded in detail, the above mentioned discrepancies in C.S. Number as well as the accommodation would have been brought to the notice of the IVth Senior Civil Judge Hyderabad to keep the record straight and to reach a correct decision.
Since the portion of C.S. No,A/2495/2 along with portion of A/2495 was not claimed by the respondents Nos.4 to 6 it remained undisposed of and reported as available property for disposal under the new scheme concerning disposal of undisposed of evacuee properties by the Board of Revenue Sindh vide this office letter dated 2-4-1987, (copy enclosed along with possession plan supplied by the petitioner and marked annexure NN and PP). Here it may be pointed out that the Federal Government through its Cabinet. Decision dated 31-12-1983 imposed ban on the disposal of the undisposed of evacuee properties, both occupied and un- occupied.
The portion of actual C.S. Nos.A/2495/1 and A/2495/2 being plots and occupied by respondents Nos.4 to 6 measuring 513 sq.Ft and 622 sq.Ft respectively and the same were never transferred to Jamal Khan. As earlier reported he is transferee of only 4 kothries bearing correct C.S. Nos. As A/2495/3 (Part), A/2495/10 (Part) and A/2495/8. Besides the possession of the contesting parties, some portions of the said two plots are also occupied by certain other persons.
As also earlier reported, the portion of the plot over which the petitioner has raised pucca house does not belong to respondents Nos.4 to 6 and has remained undisposed of. It now vests in the Government of Sindh in the Land Utilization Department of the Board of Revenue Sindh The petitioner is not a tenant of respondents Nos.4 to 6 either.
Parawise comments on the plaint.
Para. No,1 of the plaint.
It is admitted. The petitioner is in physical possession of portion of evacuee Plot Nos.A/2495 and 2495/2 measuring 9-0 and 23-9 sq.
Yds. Respectively; over which he has constructed a pucca house.
Para. No,2 of the plaint.
It is admitted. The portion in possession of the petitioner is an undiposed of evacuee property, transferable under the relevant scheme by the Land Utilization Department of the Board of Revenue Sindh, in the light of the decision of the Government and after lifting of ban.
Para. No,.3 of the Plaint.
It is not denied. It is however, further clarified that Mr. Jamal Khan was transferred the portion in his possession consisting of 3 rooms along with one room in possession of one Abdul Majid, assigning its No, as A/2495/2 and A/2495/10-A on the basis of Nos. Assigned by the Excise and Taxation Department. These Nos. Do not tally with the City Survey Nos. As shown in the City. Survey site map.
According to the City Survey site map the said 4 kotries (Rooms) are situated on C.S. Nos. A/2495/3 (Part), A/2495/10 (Part) and A/2495/8 (full) on the ground floor of the building. The three rooms which were in physical possession of said Jamal Khan which are actually situating on City Survey No,A.2495/3 (Part) (two kothries) and A/2495/10 (part) (one Kothri) where sold by him to late Bundo Khan, the father of the respondents Nos.4 to 6, showing its Nos. As A/2495/2 through sale-deed, The remaining 1 room which was assigned No, as A/2495/10-A in his transfer document by the Settlement Department, which was in possession of Abdul Majid had been sold out by him to one Muhammad Sharif. This room actually bears correct City Survey No,A/2495/8 according to the City Survey site map.
That since the Nos. Do not tally with the City Survey Record the respondent No,5 was refused mutation of the PTD and the sale-deed by the. City Survey officer and he was advised to get the PTD and sale-deed corrected-from the competent authorities vide Rubkari dated 9-1-1986. Accordingly Abdul Waheed respondent No,5 moved an application before the Additional Deputy Commissioner-1, Hyderabad for necessary correction on 4-2-1986. The said application could not be proceeded by this office on account of filing of various cases in the Civil Court. The same was also not persuaded by the said applicant Abdul Waheed, present respondent No,5, hence the same is still pending.
Para. No,4 of the Plaint.
It is 'clarified here that the sale-deed in favour of the father of the respondents Nos.4 to 6 is regarding 3 rooms which were in possession of Jamal Khan. The No, of the tenement was wrongly shown as A/2495/2(Part) in the PTD which is actually situating on correct C.S. Nos. A/2495/3 (Part) and A/2495/10 (Part). The area mentioned as 1067 sq. Ft. In the sale-deed is an unauthorized insertion not mentioned in any of the transfer documents and PTD issued by the Settlement Department was never got authenticated by the transferring authority viz. Settlement Department, nor mutated in the City Survey Record. The sale-deed has therefore been executed without mutation of the PTD in the City Survey Record.
18. Perusal of report/comments reproduced above and other material placed on case record reveal that it is not only this report which clarifies the whole factual position at site, but also documents Exhs.146, 147, 149 and 150 lend support to the case of the applicant that he has nothing to do with the property transferred to Jamal Khan from the Settlement Department.On the basis of PTD Exh.153. The submissions of Mr. Rafiq Ahmed are further fortified from the fact that though PTD of the property now owned by the respondents Nos.1 to 3 was issued in favour of Jamal Khan on 6-3-1965 and this property was purchased by Babu Khan on 1-1-1969 but they did not pursue their matter before the City Survey Department to seek entry in the City Survey Record regarding the corresponding City Survey number of their property up till 7-111985, when for the first time respondent Abdul Waheed approached the City Survey Department for mutation of P.T.D. And registered sale-deed, upon which. Rubkari was issued by the City Survey Department for getting correction of numbers in the PTD from the Settlement Department, which as per the above reproduced report corresponded to City Survey numbers A/2495/3 (Part) A/2495/10 (Part) and A/2495/8. It is thus obvious that both the Courts below while passing their respective impugned judgments could not comprehend the correct factual position as regards the difference between the house number/property number mentioned in the PTD by the Settlement authorities and the corresponding City Survey number(s), which may or may not tally with eachother. If the oral evidence adduced by the parties in the present case is read carefully with reference to certain other documents on record it becomes abundantly clear that the defence taken by the respondents Nos.1 to 3 to counter the claim of the applicant was wholly ill-founded, misconceived, mischievous and mala fide, both on law and on facts. The submission of Mr. Rafiq Ahmed as regards the afterthough story of posing Qasim, being licensee of Jamal Khan, has also much force as this plea was not raised by the respondents Nos.l to 3 in their written statement, and it is also belied from the contents of their own registered sale-deed dated 1-1-1969. Moreover, the contents of the report/comments of A.D.C-1 (Exh.143), referred and reproduced above showing House Nos.A-2495/2(3 Kotries) and A/2495/10-A corresponding to City Survey No,A/2495/3, (part), A/2495/10 (part) and A/2495/8 also gets corroboration from the admission of respondent No,3 in his evidence that Survey No,2495/3, 7 are in their possession. However, further assertion of respondent No,3 in his evidence that his father Babu Khan used to reside in these survey numbers prior to purchase of property from Jamal Khan is belied from the Certified true copies of the orders Exhs.146, 147, letters Exhs.149, 150 and report/comments Exh.143 as in these documents name of Babu Khan finds place nowhere. It is pertinent to note that at no stage of the proceedings in the suit, appeal before this Court the authenticity and genuineness of these documents has been questioned by any of the parties to this litigation, thus the objection of Mr. Shaukat Naqvi that the comments/report Exh.143 cannot be looked into or considered by this Court has no force.
19. No other ground has been urged/argued by the partiescounsel. However, to further examine the legality or otherwise of the two impugned judgments I have gone through the same carefully and seen that the applicant was also non-suited by the two Courts below on the ground that he had no legal character or status over the disputed property regarding which declaration has been sought by him, therefore, his suit was barred under section 42 of Specific Relief Act. Such observations also seem to be fallacious and ill-founded. It is the case of the applicant that he is occupying a portion admeasuring about 300 sq. Ft of the Property bearing C.S. No,A/2495/2, which is still available for transfer under the scheme framed for disposal of available properties under the C Evacuee Property Displaced Persons Laws (Repeal) Act, 1975. The possessions of the applicant over such area is not disputed by the respondent while documents Exhs.149 and 150 lend full support to such claim of the applicant. It is, therefore, clear that for filing the suit in respect of the property in his possession applicant had the legal character and legal right within the meaning of section 42 of the Specific Relief Act, and his suit was thus maintainable in law.
20. For the foregoing reasons, I am of the considered opinion that both the judgments passed by the two Courts below suffer from patent misreading of evidence and thus liable to be set aside in exercise of revisional jurisdiction of this Court under section 115 C.P.C. Further on the basis of oral as well as documentary evidence adduced by the parties the applicant is entitled for the reliefs claimed by him in the suit.
21. Foregoing are the reasons for the short order passed on 7-10-2005, whereby this Civil Revision Application was allowed and consequently both the impugned judgments were set aside and suit of the applicant/plaintiff was decreed.