' KHAWAJA NAVEED AHMED, J.---In this case suit bearing No, 130/ 1999 was filed by 'Mst. Hajiani Hawabai against Abdul Sattar, in the Court of IVth Sr. Civil Judge and Rent Controller, Karachi (Central). The Court upon perusal of pleadings had framed the following issues:-
(i) Whether the suit is not maintainable?
(ii) Whether this Honourable Court has no jurisdiction to try the present case?
(iii) Whether the suit is under-valued?
(iv) Whether the defendant has got thumb impression of the plaintiff on some papers?
(v) Whether all along a so much period, plaintiff kept quiet and after filing of suit by defendant plaintiff brought counter blast suit mere shown licenseee?
(vi) What should the decree be?
2. The learned IVth Sr. Civil Judge and Rent Controller, Karachi (Central) had given his findings on Issue No,6 as under:- ' "As a result of my findings on issues Nos.1 to 5, specifically on issue No,4, I am of the opinion that after death of Mst. Hawabai, Mr. Suleman Soomar and the defendant along with other legal heirs became for the shares in the property left by deceased Mst. Hawa Bai as such in my view Mr. Suleman Soomar alone is not entitled to the relief of possession of the suit property. After the death of plaintiff Mst. Hawa Bai, the remedy available for filing suit of the administration of the estate of deceased Mst. Hawa Bai after joining all the legal heirs of the deceased. In such circumstances the suit of the plaintiff to the relief claimed is hereby dismissed with no order as to costs."
3. The defendant/applicant Suleman, being aggrieved by the judgment, dated 21-9-2004 passed by learned IVth Sr. Civil Judge and Rent Controller, Karachi (Central) has filed Civil Appeal No,165 of 2005 in the Court of District Judge, Karachi (Central), which was transferred to Ist Additional District.
Judge, Karachi (Central) for disposal and the learned Ist Additional Sessions Judge, Karachi (Central) after hearing the parties was pleased to observe in his judgment, dated 8-3-2006 as under:- ' " In light of the evidence reproduced above it is further revealed that appellant is not only the legal heir of deceased Mst. Hajiani Hawa Bai. Appellant himself admitted that there are other legal heirs of deceased including respondent, therefore, all legal heirs are entitled to inherit the property as per their respective shares according to personal law, undisputedly. After the death of Mst. Hajiani Hawa Bai all legal heirs become share holders in the property left by deceased Mst. Hajiani Hawa Bai, as such, learned IVth Senior Civil Judge correctly hold that appellant alone is not entitled to other relief of possession of the suit property. I do not find any substance in the appeal to reverse the judgment passed by learned IVth Senior Civil Judge Central Karachi. I hereby maintained the judgment and decree and dismissed the appeal with no order as to costs."
4. There are findings of the two Courts below against the applicant. Learned counsel for the applicant has submitted that both the Courts below have decided the case on the issues which were never raised before the Courts below and no issue was framed "whether Mst. Zulekha Bai was legal heir of Mst. Hajiani Bai?" Learned counsel has vehemently argued that the only issue which should be adjudicated in this case is that "whether Mst. Zulekha Bai was a licensee or a tenant?"
Learned advocate says that this issue has indirectly been decided in favour of the applicant as the Courts below have held that the respondent is not the 'tenant. Learned advocate formulates his arguments on this point on the plea that since it has been held that the respondent is not a tenant, therefore, the respondent is automatically a licensee. Learned Advocate has further argued that both the Courts below have based their findings on the so-called admission by the applicant regarding relationship between the parties. Learned advocate has argued at length that after an admission is made without knowing one's legal rights such admission is not binding on the person making the admission. He has further argued that it is a question of law as to who are the legal heirs of deceased Mst. Hajiani Hawa Bai. Learned counsel has further submitted that according to Muhammadan Law, Mst. Zulekha Bai is not the legal heir of the deceased Mst. Hajiani Bai.
5. In support of the above contentions, learned counsel for the applicant has placed reliance on the following case law:--
(i) Abdul Hafiz v. Muzaffar Karim PLD 1973 Karachi 253;
(ii) Abdul Karim v. Bashir Ahmed PLD 1974 SC 61;
(iii) Jan Muhammad Khan v. Shah Mir Hussain 1985 SCM R 2029;
(iv) Qabil Shah v. Shaday PLD 1992 Peshawar 144;
(v) 1994 M LD 2464
(vi) Muhammad Bakhsh v. Province of Punjab 1994 SCM R 1836;
(vii) Manager, State Bank of Pakistan v. Muhammad Ikram 1999 SCM R 2578; (viii)Fiaz Hussain v. Muhammad Din 1999 M LD 1386;
(ix) Sardar Muhammad v. Muhammad Akram 2000 YLR 1824;
(x) Rashid Beg v. Rehmat Ullah Khan PLD 2001 SC 443; and
(xi) Mumtaz Khan v. Nawab Khan 2003 M LD 399;
6. The authority referred by learned counsel for the application at serial No,(i) above is on the point of pleas, which were not raised by the parties during the pleadings. It states that a judgment cannot be based on such pleas as contemplated under Order VI, Rule 7, C.P.C. The authority referred by the learned counsel for the applicant at serial No,(ii)above holds that new facts must be specifically pleaded by the applicant. The authority referred by the learned counsel for the applicant at serial No,(iii) above is on misreading of document of Courts below. This authority deals with the scope of revisional jurisdiction of this Court and observes that the High Court is justified in interfering with concurrent findings of a fact where on examination of the record the High Court finds that the Courts below have arrived at an erroneous conclusion which is based on misreading of documents; The authority referred be learned counsel for the applicant at serial No,(iv) above stated that no evidence could be looked into upon the plea not raised in the pleadings. Learned counsel for the applicant has further drawn my attention to Article 30 of the Qanoon-e- Shahadat which deals with admissions. It has been held that evidentiary admissions would be relevant but not conclusive and the same could be shown to be wrong. Admission which was wrong on point of fact and evidently made in ignorance of legal rights was incorrect and would have no binding effect on the person making such admission.
7. Learned counsel for the applicant has further relied upon Article 30 and findings given by the Peshawar High Court in Qabil. Shah's case (supra). In this case it was held that an erroneous admission made by the plaintiff in his statement before the Court that he was in possession bf land in question being not conclusive of his right and title therein, would not get extinguished on account of such admission.
8. The authority referred by learned counsel for the applicant at serial No, (v) above is on the point of Order VI, Rule 7, C.P.C. Which states that where a question of fact has not been specifically taken in the pleadings, the defaulting party could not be allowed to make up a new case in evidence and any such point raised in evidence would not be worth consideration.
9. The case law referred by the learned counsel for the applicant at serial No,(vi) above, deals with the revisional jurisdiction and on the point of concurrent findings of facts rendered by the two Courts below.
10. I am in total agreement with all the above authorities referred by learned counsel for the applicant. I appreciate the hard work done by learned counsel for the applicant in preparation of the case. The fact remains that the controversy hardly raised questions of law but is rather dependant upon resolution of facts, which I am afraid has already been determined by the concurrent findings of the two Courts below and no defects in appreciation of facts have been pointed out. The facts of the case are that Mst. Hajiani Hawa Bai in her life time had allowed her niece Mst. Zulekha Bai to occupy a house. Mst. Zulekha Bai has a son namely Abdul Sattar, who is respondent in this case. Mst. Zulekha Bai died in the life time of Mst. Hajiani Hawa Bai and Abdul Sattar the son of Mst. Zulekha Bai continued to occupy the house. In the meantime, Mst. Hajiani Hawa Bai also died. Applicant Suleman claims to be one of the legal heirs of Mst. Hajiani Hawa Bai.
All he wants is to eject respondent Abdul Sattar from the demised premises. Now these two persons i.e, applicant and respondent, who claim to be relatives and legal heirs of (late) Mst.
Hajiani Hawa Bai are basically contesting on the possession of a house owned by Mst. Hajiani Hawa Bai. The proper course is that applicant Suleman should file a suit for Administration in the Court of law and get his right established during the course of trial and thereafter he should seek possession of the premises in occupation of respondent Abdul Sattar, if he is successful. Presently, the respondent has been taking the plea that he is a tenant. The applicant is taking the plea that respondent is a licensee. Learned counsel for the applicant states that the Courts below have given finding in his favour that he is not a tenant. At the same time, the trial Court has not given finding that he is a licensee. If he is neither a licensed nor a tenant then what the Court can presume is that he is. Illegal Occupant and applicant is entitled to file suit for possession if he is declared as the legal heir of Mst. Hajiani Hawa Bai through the Court of law then he can take possession of the premises. It is very unfortunate that parties had been fighting amongst themselves for a long time without knowing that the type of suit they should have filed.
11. With the above observations, the judgments of the Courts below are upheld and the revision application No, 106 of 2006 stands disposed of. Observations made in this case are tentative in nature and should not affect the rights of the parties in their future litigation, if any.