' FAISAL ARAB, J.---On partition of British India, Muhammad Naseem Siddiqui immigrated to Pakistan along with his family and settled in Karachi. His family consisted of his wife and two children, namely Muhammad Hanif and Fehmida Begum. As the immigrants on the basis of their refugee status were being allotted residential quarters for their permanent rehabilitation, Muhammad Naseem in 1951 applied for two, one in his own name and the other in the name of his son Muhammad Hanif. Thus Quarter No. 2/605 was allotted in the name of Muhammad Naseem whereas Quarter No. 2/606 in the name of his son. Each of the two quarters measured 90 square yards. Fehmida Begum after attaining the age of majority obtained a job in the Civil Hospital. She later got married but her marriage did not last much. On account of matrimonial disputes she was divorced, who then left her ex-husband's house and came back along with her children to live with her parents. She and her children started living in Quarter No. 2/606. Her brother Muhammad Hanif who had joined Railway Police in 1964, was transferred to the former East Pakistan in 1971 and after the fall of Dhaka, became prisoner of war. He returned to Pakistan in 1974 and lived in Quarter No. 2/605.
2. On 27.10.1974 Fehmida Begum applied to KMC for the grant of lease of Quarter No. 2/606 in her name which was granted and a registered lease deed was executed on 29.8.1975. According to Fehmida Begum, the basis for seeking lease of Quarter No. 2/606 in her exclusive name was that in the year 1968 late father Muhammad Nasim (who died in 1970) had asked Muhammad Hanif to execute a relinquishment deed of the said quarter in favour, of Fehmida Begum which he did on 20.5.1968. Muhammad Hanif on his part however moved an application to the Administrator, KMC on 24.12.1975 seeking cancellation of lease that was executed in his sister's name and denied execution of the relinquishment deed. Pursuant to such application, the KMC though did not cancel the earlier lease executed in favour of Fehmida Begum but executed another lease deed of the same quarter on 21.1.1978 in the name of Muhammad Hanif. Thus a fresh lease deed was executed by KMC of the same plot.
3. When Fehmida Begum came to know about the execution of a fresh lease in the name of her brother, she filed suit No. 2437 of 1978 in the Court of III Senior Civil Judge, Karachi, seeking its cancellation.
' Muhammad Hanif contested the proceedings claiming that as he is the original allotee of Quarter No. 2/606 and had not executed the relinquishment deed in favour of Fehmida Begum, she had no right over Quarter No.2/606. While Fehmida Begum's suit was still pending, Muhammad Hanif filed a suit of his own on 2.6.1979 seeking declaration, possession and the cancellation of lease deed that was executed in 1975 in favour of Fehmida Begum. Both the suits were later consolidated.
4. Before recording evidence of the parties, the Court gave direction to the office of the Registrar for the production of documents pertaining to the registration of the disputed quarter. On such direction one Muhammad Mazhar, a senior clerk of the department appeared and placed on record copies of the relinquishment deed and the lease deed executed in favour of Fehmida Begum. When the process of recording evidence of the parties concluded, the trial court summoned an official of the Land Department as court witness. One Hafiz Abdul Rehman, a clerk of Land Department appeared whose deposition was recorded. The trial court then decreed the suit of Fehmida Begum and dismissed that of Muhammad Hand vide its consolidated judgment dated 08.01.1992. Muhammad Hanif preferred appeal which was dismissed vide judgment dated 13 12.1995. He then preferred Revision Application No. 68/1996 before the High Court of Sindh. Both brother and sister died during the pendency of the revision application and were substituted by their respective heirs. The Revision application was then allowed vide impugned judgment dated 12.11.2007 dismissing the suit filed by Fehmida Begum. Being aggrieved by such decision, her heirs filed Civil Petition No. 80-K/2008 before this Court which was converted into present appeal.
5. Mr. Imran Ahmed, learned counsel for the appellant argued that there were concurrent findings of the Trial Court as well as of the Appellate Court in favour of the appellants and the learned Single Judge reappraised the evidence to reach a different conclusion which was beyond the scope of revisional jurisdiction. He contended that Muhammad Hanif was residing in Quarter No. 2/605, which was also obtained by father in 1951 on the basis of family's refugee status and after father's death in 1970, the said quarter was transferred in the name of the mother and after the death of the mother the same is in the occupation of legal heirs of Muhammad Hanif. Learned counsel further submitted that the claim of Muhammad Hanif is based on the allotment of Quarter No. 2/606 that was though made in his name in 1951 but at that time he was only a minor and for the rehabilitation of the immigrants who had emigrated from India to Pakistan, one quarter, was to be allotted in the name of late father but as he obtained two, one in his own name and the other in the name of his minor son, Muhammad Hanif could not have made this as basis to claim absolute right of his own in Quarter No.2/606 to the exclusion of Fehmida Begum. He next contended that Fehmida Begum was a working lady employed in Civil Hospital and through her own resources raised construction on Quarter No. 2/606 and till her death lived there with her children. He next contended that even if the relinquishment deed is not made basis for the grant of lease in favour of Fehmida Begum, mere fact that both the quarters were obtained by father and Fehmida Begum, after her divorce, along with children was in exclusive possession of Quarter No. 2/606, there existed a valid justification for grant of lease in her favour. He next argued that the learned Single Judge also did not take into consideration that the suit filed by Muhammad Hanif for cancellation of lease was barred by time as the same was filed on 2.6.1979, well after three years of coming to know of the execution of lease in favour of Fahmida Begum. He explained that it has come on record that Muhammad Hanif had himself moved an application to the KMC for the cancellation of the lease deed on 24.12.1975 thus when three year period of limitation as provided under Article 91 to the Schedule of Limitation Act is reckoned from that date, the suit filed on 2.6.1979 was clearly barred by time.
6. Mr. R.F. Virjee, the learned counsel for Muhammad Hanif on the other hand contended that from the refugee identity card issued in 1951, it is apparent that Muhammad Hanif was not a minor then as in the identity card it is mentioned that he is a rickshaw driver. He submitted that as the original allotment of Quarter No. 2/606 was made in favour of Muhammad Hanif then the very execution of lease in favour of Fehmida Begum was a nullity in law. He next contended that the relinquishment deed which was made basis to seek lease in favour of Fehmida Begum was a forged document never executed by Muhammad Hanif and there is material on record to establish that even the construction on the disputed quarter was raised by Muhammad Hanif. As to the delay in the filing of the suit for the cancellation of lease deed in favour of Hamida Begum, Mr. Virjee explained that it was the mother who prevented Muhammad Hanif from suing his sister and Muhammad Hanif filed his suit only when Fehmida Begum filed suit against him. He submitted that even otherwise Article 120 and not 91 to the Schedule to the Limitation Act was attracted to the case in hand which provides a period of six years for the filing of the suit. In support of this contention he referred to the cases of State of Gujarat v. Narges K. Panthaky (AIR 1996 SC 739) and Fatahuddin v. Zarshad (1973 SCM R 248).Mr. Virjee concluded his argument by submitting that this appeal may be dismissed.
7. In rebuttal, counsel for the appellant contended that Muhammad Hanif himself appeared as witness in the case and disclosed his age. When his age is calculated backwards, he was still minor in the year 1951, hence, he was not entitled to the grant of allotment of Quarter No.2/606 which was obtained by the father, albeit in the name of his son, and it was the father who asked Muhammad Hanif in 1968 to execute relinquishment deed in favour of Fehmida Begum which he did. As to the alleged forgery, he submitted that the Trial Court itself compared the signature of Muhammad Hanif on the relinquishment deed with that of his other signatures and came to the conclusion that Muhammad Hanif had executed the same.
8. The Trial Court first summoned the record of the registrar's office pertaining to Quarter No. 2/606 which was produced by a senior clerk of the said department on 15.1.1986. The copies of the relinquishment deed as well as of the lease deed that was registered in the name of Fehmida Begum were tendered by the said clerk for the record of this case. The clerk was not cross- examined as he was summoned by the Court only for the production of documents. Thereafter, evidence of the parties was recorded. After the conclusion of the process of recording of the evidence of the parties, the court summoned a functionary of the Land Department and one Hafiz Abdul Rehman, a clerk in the Land Department appeared as court witness with complete record of the disputed quarter. He deposed that on 27.10.1974 Fehmida Begum had moved an application for grant of lease of Quarter No. 2/606 in her name and along with such application, she had appended the relinquishment deed of his brother Muhammad Hanif and thereafter lease was executed in her name on 29.8.1975. He also deposed that subsequently on 24.12.1975 Muhammad Hanif moved an application seeking cancellation of lease granted to Fehmida Begum and thereafter lease of the same quarter was executed in favour of Muhammad Hanif on 21.1.1978. He was shown the copy of the relinquishment deed from the court's record and after seeing the same he confirmed that it is the same that was on the record of the Land Department. This witness was not cross-examined on the genuineness or otherwise of the relinquishment deed by the counsel of Muhammad Hanif.
9. It is an admitted position that both the quarters were obtained in the year 1951 on the basis of family's refugee status and at that time Muhammad Hanif, as per the age that he disclosed before this Court at the time of recording his deposition, had not attained the age of majority. When Muhammad Hanif's age is calculated from such disclosure, it clearly shows that he was minor in the year 1951. Fehmida Begum in her deposition had stated that the late father (apparently to secure the futureof his divorced daughter and her children) asked Muhammad Hanif to execute relinquishment deed relating to Quarter No. 2/606 in her favour which he did on 20.5.1968 and then the relinquishment deed was delivered by father to her. Such assertion of Fehmida Begum was not specifically refuted when she was being cross-examined. Leaving the relinquishment deed aside for a while, when this Court asked the counsel for Muhammad Hanif to explain the delay in the filing of the suit, he stated that it was the mother who asked Muhammad Hanif not to file suit against his sister and he duly complied with such direction at that time but later filed the suit only because Fehmida Begum had filed suit against Muhammad Hanif. This also shows that whatever claim Muhamtnad Hanif may have had on the disputed quarter, after the execution of lease in favour of Fehmida Begum, he at mother's direction gave it up and acquiesced to the grant of lease in favour of Fehmida Begum. It is also an admitted position that Quarter No.2/606 remained in exclusive possession of Fehmida Begum after she was divorced where she lived with her children until her death. Furthermore, the intention of the father to secure the future of his divorced daughter having children to support cannot be ruled out. Even otherwise, the allotment of both the quarters was sought by the late father. The fact that one of the quarters was allotted in the name of Muhammad Hanif, who was then a minor, is to be regarded under the ownership of the head of the family i.e. The late father. This right of the father apparently prompted him to direct his son to execute relinquishment deed in favour of his sister. Furthermore, the fact that the mother also prevented Muhammad Hanif from taking legal action against Fehmida Begum to which he also agreed, albeit for the time being, also shows that the intention of the mother was also to provide security of home to Fehmida Begum and her children. This decision of the parents to provide exclusive home for Fehmida Begum also implies that she too would not claim any right over the other quarter i.e. Quarter No. 2/605, which was originally allotted to the father and now stands in the name of their late mother. The Quarter No. 2/605, therefore, is to be regarded to be exclusively owned by Muhammad Hanif and after his death by his heirs.
10. The fact that both the quarters were allotted in the year 1951 and as discussed above, are to be regarded as owned by late father Muhammad Naseem, therefore, even from such perspective, after the death of the parents, the son would have got 2/ 3rd whereas the daughter 1/3rd share in both the quarters. So 1/3rd share of Fehmida Begum in both the quarters would mean 2/3rd share in one quarter. She was divorced and lived in Quarter No. 2/606 in her father's lifetime along with her minor children, where she lived till her death. It has also come in evidence that she was gainfully employed, therefore, it cannot be said that she did not have the financial ability of her own to raise construction on the disputed quarter which has an area of only 90 square yards.
Therefore, it can also be presumed that the entire construction on this property was raised by Fehmida Begum. The decision of the parents as discussed above and execution of relinquishment deed only gave 1/3rd share more to Fehmida Begum, which otherwise would have gone to Muhammad Hanif. On the basis of the evidence that has been discussed above in some detail, Fehmida Begum had become entitled to exclusively own Quarter No. 2/606.
11. In the circumstances, referred above, the High Court in its revisional jurisdiction ought not to have interfered with the concurrent findings of the courts below. We, therefore, allow this appeal, set aside the impugned judgment and restore that of the Appellate Court.
H.R.C. NO. 30266-S OF 2610
12. As we have accepted the main appeal filed by Fehmida Begum and have set aside the impugned judgment, this H.R.C. Has become infructuous and is disposed of accordingly.