RANA BHAGWANDAS, J.---Petitioner seeks leave to appeal against Sindh High Court judgment, dated 14-3-2005 dismissing petitioner's Civil Revision against the judgment passed by Additional District Judge, Karachi West, whereby appeal preferred by respondent Sanchi Khan was accepted and judgment and decree dismissing latter's suit by the trial Court was set aside.
2. Respondent Sanchi Khan filed a suit for declaration, possession permanent injunction and mesne profits against the petitioner and respondent No,2 on the ground that he had purchased the property in suit from one Yahya Khan through an agreement of sale, dated 12-6-1966 for consideration of Rs,5,000 and received vacant possession of the suit property. It was alleged that petitioner Muzaffar Khan and respondent No,2 Rehmat Hussain illegally and by use of force occupied the suit-land on the averment that their brother Noor Ali Gul had purchased the same from one Mst. Hafeez-un-Nisa sometimes in 1960 through an agreement of sale. On the pleadings of the parties as many as eight issues were settled by the trial Court. Both the parties adduced evidence in support of their respective contentions. On evaluation of evidence trial Court by its judgment, dated 29-11-1999 dismissed the suit. Aggrieved by dismissal of the suit respondent Sanchi Khan preferred an appeal before Additional District Judge which on reappraisal of evidence was accepted and the suit decreed as prayed vide judgment, dated 14-7-2000.
3. Petitioner being aggrieved by appellate judgment preferred Civil Revision before High Court of Sindh which has been dismissed vide judgment impugned in this petition. High Court in the impugned judgment has non-suited the petitioner on merits as well as non-production of relevant documents and copies of the pleadings as required by section 115, Civil Procedure Code. It is as against this judgment that the petitioner seeks leave to appeal.
4. We have heard the petitioner at some length while Mr. Abdul Qadir Khan, Advocate Supreme Court entered appearance on caveat on behalf of respondent No,1. Notice of the petition issued to respondent No,2 has been returned with the endorsement that he is no more available at the given address.
5. It is contended by the petitioner that his brother Noor Ali Gul had purchased the property in dispute in 1960 from Mst. Hafeez-un-Nisa for a sum of Rs,6,000. According to him the brother of the petitioner continued to remain in lawful possession of the property and he occupied the same in 1999-2000. Nevertheless there is no document of title in favor of Mst. Hafeez-un-Nisa or Noor Ali Gul, the alleged purchaser of the property as contended.
6. Conversely learned counsel for respondent No,1 has pointed out that the trial Court while dismissing the suit of respondent Sanchi Khan had decided issues Nos. 4 and 5 against the petitioner who had claimed that his brother Noor Ali Gul had purchased the disputed property from Mst. Hafeez-un-Nisa or that the petitioner and Rehmat Hussain were occupying the disputed property illegally.
7. We have carefully considered through the judgment of the trial Court and find that the submission made by the learned counsel is not without substance as the petitioner and respondent No,2 utterly failed to adduce any cogent evidence in support of their plea. Furthermore these A findings were neither assailed by way of appeal nor through cross objections with the result that such findings of fact attained finality in the eyes of law, casting heavy clouds on the right, interest and title of the petitioner to claim such right or interest through his brother. Learned counsel rightly contended that since the petitioner did not assail the findings of fact as regards his right, interest and possession of the property in his own rights, he could not legally maintain Civil Revision before the High Court. Mr. Abdul Qadir Khan has drawn our attention to the judgment of this Court in the case of Masta v. Sarang and another PLD 1969 SC 26L The precedent relied upon by learned counsel fully supports his view and there can be no cavil with the proposition of law laid down by this Court.
8. Adverting to the decree in favor of respondent No,1 passed for declaration of title we find that in law such a decree could not have been passed in favor of respondent No,1 as the property in dispute was not leased in favor of Yahya Khan through whom he derives his right, interest and title to it. Learned counsel has referred to a document at page 11 of the Supplementary Paper Book filed by him tending to show that one Syed Saleh Shah being the owner landlord and lessor of entire village had handed over physical possession of two units plots of 200 sq. Yards in favor of Sanchi Khan. This document is purportedly dated 12-6-1966. Even this document does not tend to confer any right or title in favor of respondent No,1, except the right to possession, therefore, merely on the basis of extracts containing entries in his favor in PT-I maintained by Excise and Taxation Office M.
Division Karachi could not be held to be the owner of the property. At best the plaintiff/respondent No,1 would be entitled to a decree for protection of possession on the basis of the evidence adduced by him and not controverted by other side. In the absence of any concrete evidence on the question of mesne profits we are in a manner of doubt whether such decree could be passed in his favor as against petitioner and respondent Rehmat Hussain.
9. We would, therefore, convert this petition into appeal and modify the judgment and decree of the appellate Court and the judgment of the High Court and decree the suit only for the relief of possession. Petition is accordingly converted into appeal and disposed of. No order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.