1. ' MUHAMMAD TASNIM, J.--- Through this revision, the applicants have called in question the judgment and decree dated 6-2-2007 passed by learned IIIrd Additional District Judge, Karachi Central in Civil Appeal No,43 of 2006, whereby appeal filed by the present applicants was dismissed and judgment and decree passed by the learned IV-Senior Civil Judge, Karachi Central was maintained.
2. ' Brief facts leading to the present controversy are as under: ' The Plot No,B-190, Sector 11-G, measuring 240 square yards in North Karachi Township was allotted in 1969 to Mr. Abdul Haq son of Essa, Muhammad Yousuf son of Abdul Haq and Muhammad Saeed son of Abdul Haq. Said plot was subsequently bifurcated into three plots and were numbered as B- 190/1 belonged to Abdul Haq, B-190/2 belonged to Muhammad Saeed and B-190/3 belonged to Muhammad Yousuf. Aforesaid plots were leased to the persons named with the plot numbers. In 1985 Abdul Haq, owner of Plot No,B-190/1 died, who was the father of applicant No,1 and respondent No,1 and grandfather of applicant No,2. It was claimed that by relinquishment of the rights by legal heirs of deceased Abdul Haq, the Plot No,B-119/1 was mutated in the name of applicant No,1 vide mutation order dated 6-1-1992. The applicant No,1 raised construction over the plot and continued to live with his mother in the said house. It is further case of the applicants that respondent Muhammad Yousuf has sold out his Plot No,B-119/3, Sector 11/G, Measuring 80 Square yards situated in Central Karachi Township to the applicant No,2 Muhammad Yaseen against the consideration of Rs,50,000 under sale agreement dated 2-11-1991. The K.D.A. Had also transferred afore-said plot in the name of applicant No,2. At the time of execution of sale agreement respondent No,1 Muhammad Yousuf handed over the physical possession of Plot No,B-190/3 (half portion) to Muhammad Yaseen who raised construction and started living therein.
3. ' Respondent No,1 filed suit against present applicants being Suit No,624 of 1997 before IV-Senior Civil Judge, Karachi Central for Possession, Declaration, Injunction and Cancellation of Lease. That applicant No,2 also filed suit against respondent No,1 being Suit No,686 of 1997 for Possession and Mesne Profit before the same Court. Both the suits were consolidated and consolidated issues were framed.
4. ' Muhammad Yousuf examined himself in Suit No,624 of 1997 at Exh.P/1, he produced allotment order at Exh.P/2 and application made by him to K.D.A. At Exh.P/3 and P/4. He was also cross- examined by the learned counsel for defendants Nos.1 and 3. On the other hand Muhammad Saeed examined himself in support of his Suit No,686 of 1997.
5. ' Learned IV-Senior Civil Judge, Karachi Central heard the arguments of the parties and decreed the Suit No,624 of 1997 filed by Muhammad Yousuf and dismissed the Suit No,686 of 1997 filed by Muhammad Saeed.
6. ' The present applicants felt themselves aggrieved and challenged the afore-said judgment and decree before learned IIIrd Additional District Judge, Karachi Central through Civil Appeal No,43 of 2006. Learned Appellate Court heard the parties and vide judgment and decree dated 6-2-2007 dismissed the appeal and maintained the judgment and decree passed by the learned original Court. The last judgment and decree by the Appellate Court has been challenged through this revision application.
7. ' I have heard Mr. Amir Malik, Advocate for applicants, Mr. Muhammad Akram, Advocate for respondent No,1 and Mr. Sultan Ahmed, Advocate for respondent No,2 and have examined the record with their assistance.
8. ' Learned counsel for applicants has made the following submissions:--
(I) Point of limitation was raised by the applicants before the Courts below and even issue was framed to said effect, but neither any findings on the afore-said issue were recorded nor the same was dealt with by the Courts below.
(II) Burden to prove fraud was upon respondent, but Courts below wrongly shifted the said burden upon the present applicants, hence committed serious error of law calling interference in the revisional jurisdiction of this Court.
(III) Applicants were non-suited due to fault of K.D.A. Who had not produced any evidence on record relating to transfer and subsequent lease.
9. ' On the other hand Mr. Muhammad Akram, learned counsel for respondent No,1 has supported the judgment and decree passed by the Courts below and has made the following submissions:--
(I) That concurrent findings of fact have been recorded by the two competent forums having the jurisdiction in the matter hence cannot be disturbed in the revisional jurisdiction.
(II) That no illegality or material irregularity in conduct of proceedings by the lower forums have been pointed out by the applicants, hence judgment and decree passed by two Courts below cannot be disturbed in the revisional jurisdiction.
(III) That findings of facts recorded by the Courts below are strictly in accordance with evidence available on record, hence does not call for any interference by this Court.
(IV) That issue of limitation was not seriously contested by the applicants before the trial Court, however same was raised before the Appellate Court and the Appellate Court has recorded its finding on the point of Limitation strictly in accordance with law.
10. ' Learned counsel has relied upon following judgments in support of his above submissions:---
(1) Dr. Shabbir Ahmed and 4 others v. Abdul Haleem and 3 others 2000 SCM R 1287, (2) Wali and 10 others v. Akbar and 5 others 1995 SCM R 284, (3) Majeeduddin Khan and others v. Sardar Khan and others 1990 SCM R 1031, (4) Mst. Surryia Begum and others v. Mst. Suban Begum and others 1992 SCMR 625, (5) Nawab Din v. Ghulam Qadir and 9 others 1994 M LD 1275, (6) Shamsher Ali v. Sardar Khan 1991 CLC Note 133, (7) Abdul Aziz v. Muhammad Ashiq and others 1991 CLC 820.
11. ' Now taking up the first submission of the learned counsel for applicants relating to point of limitation, which according to applicants was raised before the Courts below and even issue was framed, but neither any findings were recorded nor the same was dealt with. The examination of the record and judgment passed by the learned original Court shows that applicants have not seriously contested the point of Limitation. Neither any issue was framed on the above point by the learned trial Court nor any evidence was led in support of such point by the applicants. However such point was raised before the Appellate Court, who has formulated point of limitation being point No,4, appearing at page No,33 of the record. The learned Appellate Court has recorded its findings on the point of limitation as under:-- "On appraisal of the material it has been proved that the K.D.A. Had transferred the property in the name of the appellants without observing requisite proceeding and acted contrary to the law. The issuance of the lease in favour of the appellants dated 6-1-1992 is the result of collusion and fraud thus the limitation starts from the date of knowledge and the suit has been filed within time.
12. Reliance is placed on 1989 SCMR 3350, 1989 CLC 1721, 1990 CLC 177, 2000 SCM R 1287."
13. 'Since point of Limitation has been dealt with extensively by the learned Appellate Court, it does not call for interference by this Court in its revisional jurisdiction. The judgments cited by the learned counsel for respondent fully support the findings recorded by the Appellate Court. The findings of learned Appellate Court are strictly in accordance with law and in line with the rule laid down by the superior Courts hence cannot be disturbed.
14. ' With regard to point No,2 raised by the learned counsel for applicants that burden to prove fraud was upon respondents, but Courts below wrongly shifted the said burden upon the present applicants, hence committed serious error of law. The learned original Court has dealt with this point in its judgment dated 15-2-2006, relevant appears at page No,275, which is as under:- "The perusal of evidence on this issue would itself show that burden to prove that all the legal heirs of Abdul Haque relinquished their shares in respect of Plot No,190/2 in favour of defendant Muhammad Saeed was on defendant Muhammad Saeed but he has failed to adduce any independent corroborative evidence. Plaintiff Muhammad Yousuf in cross-examination has denied that Plot No,190(1) was transferred in the name of Muhammad Saeed through a joint declaration. It is pertinent to mention here that the defendants in support of their claim had failed to produce the evidence of any of the legal heirs of deceased Abdul Haq. Apart from K.D.A. Has also failed to bring on record the transfer documents in respect of transfer of portion of plot in question in the Name of deceased Abdul Haque. Since the burden of proof is on the shoulders of defendants but they have miserably failed to prove the same, consequently issues Nos.3 and 4 are answered as not proved."
15. ' Learned original Court further held as under:-- "It is also matter of record that evidence of the plaintiff in Suit No,686 of 1997 is not consistent with his plaint in Suit No,686 of 1997 as in the para No,1 of the plaint it is stated that plaintiff is owner of house constructed on Plot B-190/3, Sector 11-G, Godhra Colony, North Karachi, having purchased the said plot with construction thereon from the defendant No,1 who is plaintiff in Suit No,624 of 1997 for valuable construction and mutation was made in the record of K.D.A. Vide transfer letter No,KDA/AD(KNT)/B-190(3)11-G NKT/84 dated 6-1-1992 but in the examination-in-chief he has himself negated the very first para of his plaint by deposing that he has purchased the half portion of Plot No,190/3 from the Yousuf (plaintiff in Suit No,624 of 1997) he has also failed to bring before the Court even marginal witnesses of the sale agreement between him and Yousuf (plaintiff in Suit No,624 of 1997) which admittedly contains two thumb-impressions with the place of Vendor and it is also admitted fact that the said sale agreement is not registered document. The KDA has not cross-examined the defendant No,3 nor KDA has adduced any evidence to show that Plot No,190/3 was legally and properly transferred in the name of Muhammad Yaseen."
16. ' The aforesaid point was also considered by the learned Appellate Court, who recorded its findings as under:-- "The appellant has failed to place on record any Relinquishment Deed of the respondent or other legal heirs to establish that they had relinquished their shares in favour of the appellant No,1 Muhammad Saeed. There was nothing on record to demonstrate that the K.D.A. Authority has got recorded the statement of the legal heirs of late Abdul Haque at the time of transfer of the property or they conducted any verification regarding the heir ship of late Abdul Haque. In fact the property in question was owned by late Abdul Haque and the K.D.A. Was only custodian of the property. No any witness was examined by the appellant Muhammad Saeed in order to corroborate his version that the other legal heirs of late Abdul Haque had relinquished their shares in favour of the appellant Muhammad Saeed. It has come on record that late Abdul Haque had expired in the year, 1985 and the property was transferred in the year, 1992. There was no contention that the deceased Abdul Haque had gifted the property in favour of the appellant Muhammad Saeed and disinherited other legal heirs or left any will. According to the Muhammadan Law, all the legal heirs are entitled to their shares in the property of the Muslim in accordance with Muhammadan Law. It is pertinent to mention here that the appellant has failed to bring on record any satisfactory and convincing evidence to establish that the respondent or other legal heirs had relinquished their shares in the property left by the deceased Abdul Haque."
17. ' Learned Appellate Court finally concluded as under:--- "I have already discussed supra that the K.D.A. Authority has never recorded the statement of any legal heir nor observed any proper procedure for transfer of the property in accordance with law as such there was no Relinquishment Deed in writing nor they got recorded the statement of the legal heirs thus the transfer of the whole property in favour of the appellant was illegal, ultra vires and collusive and having no legal effect."
18. 'In view of above findings of the Courts below, I do not see any illegality or material irregularity necessitating exercise of jurisdiction under section 115 of C.P.C. Findings of facts have been recorded by two competent forums, which are in line with the evidence on record and no jurisdictional defect, illegality or material irregularity in the conduct of proceedings has been pointed out in the impugned judgment and decree, hence cannot be interfered with in the revisional jurisdiction of this Court.
19. ' The third and last point raised by the learned counsel for applicants that these were non-suited due to fault of K.D.A. Who had not adduced any, evidence on record relating to transfer and subsequent lease. The applicants had approached the Court, it was their duty to establish their case through cogent evidence and cannot take advantage of the weakness of the other side. As held above, the proceedings conducted by the two Courts below are in accordance with law and the evidence on record. Entire material has been appreciated by the Court below. The judgments cited by the learned counsel for respondent fully support his case.
20. 'In the circumstances I find no merits in the present Revision, accordingly same is dismissed with no order as to costs.