' ANWAR ZAHEER JAMALI, J.---This Civil Revision Application under section 115, C.P.C. Is directed against the judgment and decree dated 29-1-2001 passed by IV-Additional District Judge, Karachi West, in Civil Appeal No,57 of 2000, whereby the said appeal was dismissed and consequently the earlier judgment dated 29-3-2000 and decree dated 8-4-2000, passed by the court of IV-Senior Civil Judge Karachi West, in Suit No,177 of 1997, dismissing the said suit of the applicant, were maintained.
2. Relevant facts, leading to this litigation briefly stated, are as under:--
3. On 26-2-1997, applicant Muhammad Tahir Bhatti had instituted a suit for declaration and permanent injunction against the respondents (initially only against respondents Nos. 1 to 4) in respect of plot No,230 (admeasuring 140 Sq. Yds) at Hawks Bay Truck Stand Karachi, which was allotted to him by the respondents Nos. 1 to 3 on 16-8-1994. According to the applicant, 1/4th price of this plot, amounting to Rs,21,000 was paid by him to respondents Nos. 1 to 3 on 13-7-1994 and he is in possession of the said plot since 16-8-1994. Further case of the applicant is that the respondent No,4, who is his step mother and real mother of respondents Nos. 5 to 7, due to a family dispute and rivalry against him, had filed an application before the respondent No,3, claiming share in the said plot through her son,. In the background that her minor son Zeeshan Ahmed Bhatti (respondent No,5) was partner in the business of M/s. Al-Tahir Goods Transport Company after the death of his father on 26-9-1979 and in respect of his share in the said partnership Firm the litigation had begun in the year 1982 by way of suit No,462/1982 and the other suit No,761/1985, which were consolidated and such litigation ended in the passing of decree in suit No,345/1983, whereby the applicant and his brother Maqbool Ahmed Bhatti were found liable to pay Rs,96,274.50 each, vide final decree dated 6-11-1993, to Zeeshan Ahmed Bhatti, the minor son of respondent No,4. Since the plot in suit was also acquired on the basis of same dissolved partnership business before the alleged non-payment of decretal amount, thus, respondent No,4 had claimed share in the said property, which was allowed by impugned order dated 30-1-1997 passed by respondent No,3. It is also the case of the applicant that under no circumstances, the respondent No,4 was entitled to have any share in the suit plot, which is exclusively owned by the applicant and has been acquired by him much after the dissolution of partnership and the passing of final decree.
4. In her written statement filed in the suit the respondent No,4 has not disputed her relationship with the applicant, but has stated that the allotment of plot in the exclusive name of the applicant was obtained by fraud and misrepresentation, therefore, it was rightly cancelled by respondents Nos. 1 to 3. The respondent No,4 has also admitted the institution of two earlier suits regarding the claim of her minor son in the assets of dissolved partnership business and passing of decree in the said suit in her favour, which, according to her, had justified insertion of 50% share in the suit plot in favour of respondent No,4.
5. The respondents Nos. 1 to 3 in their joint written statement havewhole-heartedly supported the claim of respondent No,4 and stated that the allotment of suit plot in the name of the applicant has many legal flaws. The share of partner Zeeshan Bhatti in the assets of partnership Firm was decided by way of judgment in suit No,345/1983 but without distribution of the shares of legal heirs of deceased, no rights of the partnership business were conferred on the applicant. They have further pleaded that dissolution of subsequent partnership between the parties was an eyewash to deprive the step mother/respondent No,4 and her three minor sons from their legal claim in the assets of partnership business of deceased Merajuddin Bhatti and in such circumstances the act of the respondents Nos. 1 to 3 by granting 50% share to respondent No,4 in the suit plot was justified.
6. After framing of issues and recording of evidence of the partiesin the suit, the suit of the applicant was dismissed by the court of Senior Civil Judge with the observation that after the death of Merajuddin Bhatti, regarding the business of Messrs Al-Tahir Goods Transport Company, another partnership was established on 6-7-1980, wherein minor step brother Zeeshan Bhatti was partner of the plaintiff/applicant through respondent No,4. However, this partnership was finally dissolved on 10-11-1988 by judgment of the Civil Court therefore, neither the applicant nor the respondent No,4 or her son has any right over the partnership assets of M/s. Al-Tahir Goods Transport Company as its exclusive owner, but the same has devolved on the legal heirs. After passing of decree in Suit No,345/1983, its compliance was not made by the applicant and his other brother, who were equally liable for making payment to the respondent No,4 in terms of the said decree, therefore, the applicant was not entitled to seek declaration that he was sole proprietor of the concern. M/s. Al-Tahir Goods Transport Company, and that the order of respondent No,3 was unjustified. The lower court had further observed that even the incorporation of the name of respondent No,4 in the allotment order and the exclusion of names of other legal heirs of Merajuddin Bhatti was not in accordance with law, therefore, the applicant was not entitled for the reliefs claimed by him in the suit.
7. The Civil Appeal No,57/2000 preferred by the applicant against the above referred judgment and decree of the lower court, was heard by the Court of I Additional District Judge, Karachi, West, and it was dismissed with the observations that the view taken by the lower court about non-inclusion of the names of other legal heirs of Merajuddin Bhatti was correct and the earlier non-insertion of the name of respondent No,4 in the allotment order issued by the respondents Nos. 1 to 3 in favour of applicant was not warranted by law, therefore, the applicant was also not entitled for any relief in the suit.
8. At this stage, it will be apt to mention that earlier vide judgment dated 18-4-2003, this Revision Application was allowed by learned Single Judge of this Court and the case was remanded to the trial court for fresh decision in accordance with law after hearing the parties on available record, for the following brief reasons:-- "On examination of record, it is found that the case of the applicant was that he is an exclusive owner of the plot in question while the respondent No,4 has pleaded that the plot was of the predecessor in interest of the applicant and respondents Nos.4 to 7 and thus legal heirs were entitled to share in it. While there was pleadings to this effect and issue to this effect and parties also having led evidence on this point, the trial Court as well as the appellate Court in their respective judgment and order did not decide this issue between the parties but proceeded on the assumption that the plot belonged to the legal heirs . The question whether the applicant is an exclusive owner of the plot never came to be considered and decided by the two. Courts below."
' However, vide judgment dated 20th June, 2005 passed by the Hon'ble Supreme Court in CPLA No,289-K/2003, such order of remand of case was not approved by the Hon'ble Supreme Court and, therefore, the case was remanded to this Court for its decision afresh on merits on the basis of available record.
9. Mr. Raja Ali Asghar, learned counsel for the applicant has made detailed reference to the facts of the case, particularly with regard to the previous round of litigation between the private parties in the form of civil suits Nos. 462/82 and 761/85, which ended in the form of judgment dated 10-11-1988 and the framing of preliminary decree on 15-11-1988 and final decree dated 6-11-1993 in favour of the respondent No,5 and contended that in this manner the dispute between the parties regarding dissolutions& partnership and rendition of accounts was finally resolved: therefore, the respondent No,3 had no authority whatsoever to entertain the application of respondent No,4 as guardian of his minor son, the respondent No,5 Zeeshan Ahmed Bhatti, and to pass the impugned order dated 30-1-1997 in their favour, whereby directing the incorporation of the names of other legal heirs of late Mairajuddin Bhatti in the allotment order of the applicant in respect of the disputed plot and granting them, 50% share in the suit plot. Learned counsel in this context also made reference to the bundle of documents produced .By the applicant in evidence before the lower court to show that such overwhelming documentary evidence, which was not even questioned by the respondents, was brushed aside and ignored by the lower Court for no valid reasons and contended that during the proceedings before the lower Court, all the facts stated by the applicant regarding the previous round of litigation and its final, disposal in the form of final decree dated. 6- 11-1993, were undisputed and had, therefore, completely closed the chapter of any further dispute between the applicant and the respondents Nos. 4 and 7, in respect of suit plot, but in a slipshod manner, though conceding to the claim of the applicant, the suit was strangely dismissed by the lower court. Referring to the judgment of the appellate court, learned counsel again contended that the judgment of the appellate court is also a slipshod and fanciful judgment, which has been passed by the learned Additional District Judge without adverting to a single document produced by the applicant before the lower court or even examining the merits of the undisputed facts between the parties from which it was fully established that even in the dissolved partnership business, entered into between, the minor son of respondent No,4, namely, Zeeshan Ahmed Bhatti, the applicant, and his brother Maqbool Ahmed Bhatti, their respective share was 20%, 40% and 40%, thus, even on that basis, respondent No,3 could not have ordered insertion of names of all the legal heirs of Mairajuddin Bhatti or granted 50% share in the suit plot to the respondent No,4 or his minor son Zeeshan Ahmed Bhatti, now respondent No,5 in this Revision Application. Learned counsel also made reference to the fact that his brother Maqbool Ahmed Bhatti has been separately allotted another plot in the same scheme, but such entitlement of the other partner of the Firm has not been questioned at all by the respondent No,4 and only the present applicant has been made a scapegoat for getting relief from respondent No,3 through mala fide tactics. Lastly, learned counsel contended that New Al-Tahir Goods Transport Company is a totally independent entity, which was established by the applicant as a sole proprietorship concern, therefore, from no stretch of imagination, any right over the plot of the applicant could have been conferred upon respondent No,4, or her son, the respondent No,5. He therefore, contended that the judgments of the two courts below, which are based on complete misreading of evidence may be set aside and the suit instituted by the applicant may be, decreed as prayed.
10. Mr. Ataullah Khan, learned counsel for respondents Nos. 4 to 7 has not disputed the facts that
(a) the share of respondent No,5 Zeeshan Ahmed Bhatti in the dissolved partnership Firm M/s. New Al-Tahir Goods Transport Company was 20%, while remaining 80% share was owned by the applicant and his brother Maqbool Ahmed Bhatti equally; (b) earlier to the institution of suit No,177/1997, suits Nos.462/82 (suit No,345/1983) and 761/85 were instituted by the respondent No,5 through respondent No,4, being his, mother and legal guardian and proceedings in these suits.
Ended by the passing of judgment dated 10-11-1988 followed by preliminary decree dated 15-11- 1988 and final decree dated 6-11-1993, based on statement dated 15-2-1993, whereby the respondent No,5 was finally found entitled for payment of Rs,97,274.50 by each of the two defendants in the suit, i,e, the present applicant and his brother Maqbool Ahmed Bahtti. He was also unable to controvert the submissions of the learned counsel for the applicant on the point as to how and in what manner, on humanitarian grounds, the official respondents could have granted 50% share in the suit plot to the respondents Nos. 4 and 5 in lieu of their alleged claim allegedly emanating from the dissolved partnership business between the applicant, his brother Maqbool Ahmed Bhatti and Zeeshan Ahmed Bhatti, though admittedly the share of Zeeshan Ahmed Bhatti in the said partnership business was only 20% and that two had finally merged in terms of the final decree through which the applicant was also entitled for recovery of the said amount. Learned counsel however, to improve the case of respondents Nos. 4 and 5, made reference of section 37 of the Partnership Act and contended that till the final payment of the decretal amount due and payable by the applicant, was not made by him to the respondents Nos.4 and 5, all profits earned through such dissolved partnership business were liable to be shared by Zeeshan Ahmed Bhatti.
He, however, could not controvert that taking to be the best case of Zeeshan Ahmed Bhatti, he could have claimed 20% of the profit earned in the business, but could. Not have claimed anything more than that/or any property in lieu thereof.
11. Mr. Raja Ali Asghar, learned counsel for the applicant in his reply submissions, 'contended that the official respondents had no authority or jurisdiction under any provisions of law to disturb the entitlement of the applicant in respect of the disputed plot and, therefore, all the proceedings taken by them in this regard, are not only with ulterior motives and mala fide, but also without jurisdiction and liable to be quashed on that account alone.
12. I have carefully considered the submissions of the learned counsel and perused the whole record, available before me, which goes to show that the private parties to this litigation have a chequered history of past litigation. Earlier the respondent No,4 in her capacity as mother and next friend of Zeeshan Ahmed Bhatti had filed two suits against the applicant and his brother regarding the dispute of partnership business of M/s. Al-Tahir Goods Transport Company and the proceedings in these . Two cases have culminated in the form of final decree dated 6-11-1993 as referred above, which also seems to be based on the consent of the parties. There is nothing on record in support of the contention of respondents Nos. 4 and 5 that the amount agreed in the preliminary decree was not paid to them. In any case, if there was any such dispute between the parties, the course available to the respondent No,4 was to initiate proceedings for the execution of such decree against the two Judgment-debtors, i,e, the applicant and his brother. Section 37 of the Partnership Act referred to by the learned counsel for the respondents Nos. 4 to 7 only envisages sharing of profits of the business which have accrued, during the intervening period before final settlement of accounts, in favour of the outgoing partner. The scope of such provisions of the Partnership Act cannot be stretched to the extent that a person, who has subsequently acquired such property from his independent source is to be made responsible to share such property, with a person with whom his partnership business stood dissolved much earlier through a court decree and final settlement of accounts had also taken place between the parties, whereafter only 6% interest could be claimed on the unpaid share. The perusal of documents placed on record by the applicant (Exhs.P/2 to P/9) clearly indicates that after the dissolution of partnership business of M/s. New Al-Tahir Goods Transport Company in terms of the decree, the applicant had established a sole proprietorship concern under the same name and he was the only person paying income tax as its sole proprietor. The allotment of plot in the form of Allotment Order dated 16-8-1994 is also based as per his entitlement and, therefore, on a misc. Application of the respondent No,4, moved on behalf of the legal heirs of decreased Mairajuddin Bhatti, the official respondents had no jurisdiction to open-up the Pandoras Box by taking the decision for incorporation of names of the legal heirs of late Mairajuddin in the allotment order of the applicant. In case the respondents Nos.
4 to 7 have any such claim then the proper remedy available for them was to approach the court of law for seeking declaration of their rights on the basis of which, subject to proof directions could have been issued to the concerned authorities for doing the needful. It is also pertinent to mention here that as per the case of the applicant, the share of his minor step brother Zeeshan Ahmed Bhatti in the dissolved partnership business was 20% while as per the assertion of respondent No,4 in her deposition, his share was 25%. In such circumstances, it is not understandable that in what manner and on what basis, an arbitrary decision was taken by the official respondents to insert the names of all the other legal heirs of late Mairajuddin from respondent No,4 in the allotment order of the disputed plot in favour of the applicant. More so, the official respondents in their written statement have themselves admitted that share of partner Zeeshan Ahmed Bhatti in the dissolved business of the firm as 20% and they have gone to the extent of disputing the decree for dissolution of partnership and rendition of account passed by the civil Court by labeling it as an eye-wash to deprive the other legal heirs of deceased Mairajuddin. This fact alone is sufficient to hold that the proceedings before the official respondents initiated at the behest of respondent No,4 were with some ulterior motives and mala fide intention.
13. From the above discussion, it is clear that both the courts below, while passing their respective impugned judgments and decrees did not bother to go through the relevant evidence adduced by the parties and, therefore, the two judgments passed by the lower courts are based on patent misreading of evidence. It is also clear from the record that after the issuance of allotment order in favour of the applicant in respect of the disputed plot, the official respondents had no jurisdiction to entertain the application of the respondent Np.4, and to order insertion of the names of other legal heirs of Mairajuddin in the Allotment. Order of the applicant.
14. The upshot of the above discussion is that the impugned judgments and decrees passed by the two courts below are set aside and the suit of the 'applicant is decreed as prayed.