' SYED MUHAMMAD FAROOQ SHAH, J.---Captioned appeals are directed against the conflicting findings of learned courts below. For the sake of convenience, Civil Appeal No,57/2012 is treated to be leading appeal.. The appellants above named instituted Civil Suit No, 1110/2002 (Old No, 672/1996) with the prayer for mandatory injunction, directing the Karachi Port Trust to execute lease deed in their favour in respect of subject property bearing No, 72 (Old No, 06), Jackson Bazar, Keamari Township, Karachi (West), measuring about 755.52 sq. meters or the about and get it registered before the Registrar of Registration; in the alternative, Nazir of the Court be directed to execute lease deed on the same terms as have been settled between the plaintiffs in respect of the subject property before the Registrar of Registration office. Another prayer clause to grant permanent injunction restraining the defendants from creating any interest, encumbrance or claim in respect of the subject property had also been made. A perusal of record shows that the said Suit was contested by the defendants and the parties led their evidence on the issues settled by the Court. By judgment pronounced on 13.03.2009, the suit for mandatory injunction was decreed by the trial Court, i,e, Vth Senior Civil Judge, Karachi (West). The Civil Appeal No, 30/2009 preferred by the defendants/ Respondents was allowed, thereby afore-stated judgment delivered by the trial Court in the said suit was reversed/ set-aside vide appellate judgment dated 30.03.2012 and decree dated 05.04.2012 passed by the IIIrd Additional District Judge, Karachi (West), which has been impugned through the instant second appeal.
2. The appellants averred in these appeals that judgments of both courts below needs reappraisal of the evidence adduced by the parties to establish that the evidence produced by the appellants is trustworthy of reliance as the appellants have succeeded to establish their assertion that the land in dispute is in possession of the appellants since 1953 and their application to the KPT for grant of lease in their favour was acceded to through resolution No, 250 dated 02.09.1993, who paid security charges of Rs, 53,557/- through challan dated 17.08.1994 and indenture of lease in respect of the suit property in favour of the appellants was rightly issued and keeping in view the mentioned circumstances, the suit of the appellants was decreed against which KPT and Respondents Nos. 6 to 12, preferred two separate appeals Nos. 35/2009 and 36/2009 and the First Appellate Court has seriously been erred to dismiss the suit vide judgment dated 30.03.2012, whereby the judgment of the trial Court was reversed on the ground that the appellants herein have failed to establish legal right and character in obtaining lease of the property in question from KPT and they, being encroachers/trespassers, having no title documents could not get decision from the Courts and could not continue their unauthorized and illegal possession over the property in question belongs to KPT; more particularly, five suits filed earlier by the appellants herein for declaration and injunction were dismissed in non-prosecution, which fact has been concealed before the Court; more so, notice as required under Section 87 of KPT Act had not been served upon the KPT before filing the suit, therefore, the suit was not maintainable and barred under Sections 21, 42, 54 and 56 of Specific Relief Act. Learned First Appellate Court further observed that on the death of original owner MessrsMorsum jiwan, the disputed plot was transferred in the name of widows, one widow Mrs. Jerbal gifted her shares to Mr. Perin Rustomji, Mrs. Shirin Bai and Mrs. Perin Rustomji were the lessees of plot No, 72, vacated the same and handed over to Sardar Muhammad Ibrahim and Khairu Shah. The KPT regularized the occupancy rights of the widow of Mrs. Jarbai Hormusjee Dubash and Shirin Bai Curstji of Messrs Jiwan Curstji jiwan, who subsequently transferred their tenancy rights from the name of the two parsi ladies to Sardar Muhammad Ibrahim and Khairu Shah and they are also in possession of the said property.
3. In their comments, respondents Nov. lo to 22 raised preliminary legal objections that the appeal is barred by law as well as the appellants have no legal character hence, they are not liable to get remedy under section 87 of KPT Act and the decision delivered by the lower appellate Court is based on justice and that the appellants have neither any title or any legal documents nor possessing the questioned property hence, the present appeal under section 100 of C.P.C. is not tenable. Respondents Nos.16 to 22 claimed their ownership over the disputed property by way of inheritance; that the said plot was transferred by the widows of original allotee to Sardar Muhammad Ibrahim and Khairoo Shah. The said Khairoo Shah died on 05.4.1966 leaving behind Muhammad Hanif Shah (father of respondents Nos.16 to 22) as the only legal heir and after the death of Muhammad Hanif Shah (father of respondents Nos.16 to 22), the disputed plot came in the possession of respondents Nos.16 to 22 and as such, business and possession of both the plots was practically and lawfully looked after by the respondents Nos.16 to 22 in regards to its affairs and the legal heirs of Sardar Muhammad Ibrahim has ceased to have had any concern with the said plot No,72 in this case; that the answering respondents are in possession of disputed plot being bona fide possession holders. The legal heirs of Khairoo Shah are / were in possession of plot No,72 and the respondents Nos.16 to 22 had rented some portion to Maqsood son of Muhammad Qassim and the Maqsood was defaulter in payment of rent and was ejected from the said plot by the order of Rent Controller passed in Rent Case No,23/ 2005, which is crystal clear that the respondents Nos.16 to 22 are real allotees of questioned plot No,72. These respondents further stated in their comments that the appeal is barred by law under section 12(2) of C.P.C. as the appellants had also made fraud with this Court by making themselves as dummy parties, tried to usurp the questioned suit property by filing Suit Nos.590/1991 to 594/1991 on same issues and on same plot bearing No,72 and the mentioned suits were dismissed on account of non-prosecution and the application for restoration of the suit was also dismissed, which order attained finality, hence: the appellants mala fidely filed suit and appeal. The respondent No,22 being attorney of respondents Nos.16 to 21 has prayed for dismissal of the present appeal.
4.In counter affidavit, filed by Syed Faisal Aijaz, a representative of KPT/ respondents Nos.2 and 3 supported impugned appellate judgment and stated almost the similar facts/ grounds which were raised earlier in the memo of appeal filed before the lower appellate Court. He has supported the impugned judgment by stating that the judgment / decree passed by the lower appellate Court in favour of the respondents Nos.2 and 3 are absolutely legal and passed as per jurisdiction vested in the said Court; that appellants have failed to point out any illegality, defect or substantial error in the impugned judgments; more particularly, the lease of the subject property had never been signed by any of the trustees / Chairman of the KPT and never been registered before the concerned Sub-Registrar. However, it is stated that on 19.04.1973 the answering respondents / KPT passed a resolution No,593 to withdraw the offer of grant of lease of the subject property to the heirs of Sardar Muhammad Ibrahim due to default in payment of KPT dues and during the proceedings the legal heirs of the deceased deposited all dues in deceitful manner whereas, the answering respondents never ever transferred the tenancy rights in the name of Khairoo Shah.
Lastly, a prayer for dismissal of appeal with cost has been made.
5. A perusal of record reflect that the subject property was originally allotted by the Respondent No, 2 to Messrs Hormusjee jiwan and Curstji jiwan through tenancy agreement dated 26.08.1933 and after their death, the occupancy rights were transferred by the Respondent No, 2 in the names of their respective widows and subsequently transferred by the Respondent No, 2 in favour of Messrs Perin Dubash, which cannot be transferred with the permission of Respondent No, 2 in favour of one Sardar Muhammad Ibrahim (Abu Seth) without obtaining permission of Respondent No,2. After the death of Sardar Muhammad Ibrhaim on 29.04.1968, his heirs, who were not in occupation of the subject property, applied to the Respondent No,2 for transfer of tenancy rights in their favour. On 18.01.1972, KPT offered to grant lease to the heirs of Sardar Muhammad Ibrahim subject to certain terms and conditions stated in the offer letter and the said heirs of Sardar Muhammad Ibrahim failed and neglected to get execute the lease deed and further committed default in payment of the occupancy; consequently, KPT through Resolution No, 593, dated 19.04.1973 resolved to withdraw the said offer of grant of lease to the heirs of Sardar Muhammad Ibrahim. The appellants, who have been in continuous physical possession of the subject property since the year 1953, submitted application seeking grant of joint lease in their favour on the same terms and conditions as were offered to the heirs of Sardar Muhammad Ibrahim. The request of appellants was considered by the KPT through Resolution No, 250 dated 2nd September, 1993 and letter of offer was sent on 18.10.1994 to the appellants requiring them to get the indenture of lease stamped from the office of the District Registrar and to send it back after signatures for formal execution and registration. The appellants sent indenture of lease back to KPT after signatures on 31st October, 1994 and a sum of Rs,53,557/-, security deposit were also paid against challan No, 31 dated 17.08.1994.
6. The Respondents, in their written statement beside raising legal objections have vehemently denied the claim of the appellants. On pleadings of parties, the following issues were settled by the trial Court:- i). Whether the suit as framed and filed by the plaintiffs is hit and barred by the provisions of section 42 of the Specific Relief Act, 1877? ii)Whether the suit of the plaintiffs is not maintainable? iii)Whether the plaintiffs are not at all entitled to be transferred leased out di, premises in any manner Whatsoever by the Defendants Nos. 1 and 2 in this case? iv)Whether the plaintiffs have any locus standi or legal character to file the suit, if so what is it effect? v) Whether the plaintiffs had fulfilled all the terms/conditions of the defendant KPT office letter dated 18.10.1994 for grant of joint lease to them of the suit property? vi)Whether the defendant KPT had accepted the plaintiffs legal status as "Lessees" by accepting the respective dues from them and also getting stamped the subject lease deed from them for the purpose of execution thereof in their favour? vii)Whether the defendants KPT had malafidely and illegally and withheld and otherwise avoided/ refused to present the stamped lease deed i,e, Annexure P/I2 before Sub-Registrar for its execution in favour of plaintiffs by violating the terms conditions of their own office letter? viii)Whether defendants KPT are bound and under legal obligations to get execution/ Registration of the Subject Lease Deed of the Suit plot in favour of the plaintiffs? ix. Whether the interveners defendant Nos. I to 7 have no rights/interest/title and claim of whatsoever over the suit property? x) Whether the plaintiffs are entitled for the relief claimed? xi)- What should the decree be?
7. On the above issues, the appellants in order to prove their case filed affidavit in evidence through their attorney namely Essa Khap, son of Sardar Khan whereas the Respondents Nos. 2 and 3 filed their affidavit in evidence through one Zia Ahmed Siddiqui; respondents Nos. 16 to 22 filed their affidavit in evidence through Fazal Muhammad Shah son of Haneef, being their attorney. They were cross- examined. In his affidavit in evidence, the plaintiff No, 5 in the suit and duly constituted general attorney of the plaintiffs Nos. 1 to 4 reiterated averments of the plaint in detail. He was cross-examined on behalf of the defendants Nos. 1 and 2 (KPT), wherein he has denied illegal occupation of the suit property and that he had not served with notice under Section 87 of KPT Act prior to filing of suit. The representative of KPT namely Zia Ahmed Siddiqui (Assistant Estate Manager) filed affidavit in evidence of defendants Nos. 1 and 2, being KPT witness and stated that the plaintiff has no character or title to file the suit, hence plaint is liable to be rejected under Order VII Rule 11, C.P.C. He has further stated that the plaintiffs are encroachers/trespassers and unauthorized occupants of the subject property and concealed the facts of earlier filing of respective suits Nos. 590/1991 to 594/1991 by the present plaintiffs in respect of subject property of the suit, which had been dismissed in non-prosecution and restoration application was too dismissed. He has reiterated the contents of the written statement and stated that same may be treated as part of affidavit in evidence for brevity sake and to avoid repetition. In paragraph-10, he has stated that due to some mistake of facts and on the basis of fraudulent and misleading conducts/reports information of some of the officials of the KPT/Defendant No, 1, in collusion of the plaintiffs, the Resolution No, 250 had been passed on 22.09.1993, but on coming to the conclusion and reality that the plaintiffs have no right or legal character as neither they are the lessee or licensee or allotees of the subject property, the said resolution has not been approved by the competent authority of the KPT; more particularly, legal heirs of Sardar Muhammad Ibrahim and other occupants made objections for issuing any lease to the plaintiffs, who had filed a suit No, 476/1995 against the KPT in this Court in respect of the subject property. It has further ben stated by the said witness that plaintiff had no locus standi or legal character to file the suit in appeal unless lease or license is issued by the Defendant No, 1 (KPT) to them in respect of the subject property. It shall be advantageous to reproduce herein below the cross-examination of witness of the KPT, therein he has made the following admissions, being a witness of KPT:-- "It is correct that KPT is managed by Board of Trustee. It is correct that there is no resolution of Trustee along with my letter of authority which 1 produced before the Court regarding authorization to give evidence. I am working as Assistant Estate Manager in Estate Department, KPT since August, 2000. It is correct that the litigation remained between the parties, prior to the suit and the numbers of suit, which I have been given in my Affidavit in Evidence the same are in information and knowledge. It is not in my knowledge that Suit No, 476/95 filed by one Muhammad Ashraf against the KPT regarding the same suit property before the Hon'ble High Court. The plaintiffs unauthorizedly occupied the suit plot prior to filing of this suit but I do not know about the current position. It is not in my knowledge whether the plaintiff are residing at suit property since, 1953. It is correct to suggest that I have no knowledge about the previous litigation between the parties, and status of that suits. I know -Bashir Ahmed Chandio. I have no knowledge about the suit No, 476/95 new Suit No, 152/2003. It is correct that the plaintiff applied for lease of the suit plot to the KPT. It is correct that the application of the plaintiff was properly entertained and processed accordingly. It is not in my knowledge whether the terms and conditions fulfilled by the plaintiff as per the form issued by KPT. It is correct that KPT for issuance of lease also gave permission for approval of suit plot in favour of the plaintiff. It is correct that Board passed Resolution bearing No, 250 in favour of the plaintiff for approval of lease. Voluntarily says that the Resolution was subsequently withdrawn by the KPT. It is correct that I have signed my affidavit in evidence after going through the contents. It is correct that I have been not mentioned anywhere in my affidavit in evidence about the withdraw and cancellation of resolution. It is not in my knowledge whether the plaintiff paid all the dues and fulfilled the conditions in respect of the suit plot. As per my knowledge the plaintiff has mot completed. all the formalities and the terms and condition of the KPT with regard to issuance of lease of suit plot. Whatever correspondence on record I know in respect of the suit properly. I do not know whether the KPT Board prepared any lease document regarding the suit property and sent to the plaintiff for the purpose of stamping and sign. It is not in my knowledge whether the plaintiff after sign and stamp that lease and sent to the KPT. I do not know whether the KPT put up that lease for registration before the Registrar, I do not know about Ex-P/11 which was issued by KPT to the plaintiff regarding the execution of lease in respect of the suit plot. The witness confronted the documents from his record and say it is not available on his record. I do not know whether the original lease deed signed by the plaintiff is in possession of KPT. It is correct that KPT has not mentioned in his written statement and affidavit in evidence about any violation on the part of the plaintiff in respect of terms and conditions and fulfillment of the requirement with regard to the lease and allotment of the suit plot. It is correct to suggest that except the plaintiff there is no claim of any other person with regard to the suit. I can disclose the name of other parties in respect of the claim of suit plot after checking my record .I do not know whether the KPT after receiving the lease have not handed over the same to the plaintiff after completion of formalities. I cannot say anything about the nature of the previous litigation and the present suit. It is correct that two suits were dismissed in non-prosecution. Since there is no lease, therefore, the question of detained of the said lease does not arise. "
8. Affidavit in evidence filed by Defendant No, 7 and on behalf of the Defendants Nos. 3 to 6 (Respondents Nos.16 to 22) is a repetition of contents of the written statement; however, his cross- examination is, material for proper adjudication of the instant appeal, which is reproduced hereinbelow:- "It is correct to suggest that on the plot i,n question plaintiff is in possession. It is correct to suggest that on the basis of the possession of the plaintiff over the plot in question the KPT passed Resolution of issuance of lease in favour of the plaintiff. It is incorrect to suggest that the plaintiff after passing Resolution for allotment of lease in her favour paid all the dues. It is correct KPT offered the lease to the plaintiff. It is correct that in that offer letter some terms and conditions were mentioned. It is incorrect to suggest that whatever terms and conditions were written in offer letter that plaintiff fulfilled all that conditions. I do not know whether the KPT with the covering letter along with seal of the KPT to the plaintiff the terms and conditions. I do not know whether that draft of lease received by the KPT office after fulfillment and payment of dues and stamp by the plaintiff I do not know whether KPT has admitted that the lease has been received to the plaintiff. It is correct that I have approached to the KPT in respect of plot in question in the year, 1992 as per Partnership Deed as D/4 as well as Ex-/7. It is correct that KPT written a letter to me on 10.05.1993, wherein the some relevant documents were to produce. It is correct that I was granted 15 days by the KPT for production of documents but I could not produce the same. It is correct that I have filed case against the KPT in respect of suit plot for seeking lease. It is correct that suit was dismissed. It is also correct to suggest that I have not preferred any appeal against the order. It is correct that I have concealed the facts and have not mentioned in my written statement as well as in my affidavit in evidence. It is incorrect to suggest that I have knowledge that my suit has been dismissed but with the mala fide intention I have entered as party in the present suit. It is correct that I am not in possession of plot in question. It is incorrect to suggest that I am not in possession of plot in question. It is incorrect to suggest that I have wrongly mentioned that the suit property was remained in the possession of Sardar Muhammad Ibrahim. It is incorrect to suggest that I have also wrongly mentioned that the suit property was handed over to my Grand father on 10th August, 1995 by Sardar Muhammad Ibrahim. It is incorrect to suggest that I have wrongly mentioned that after the death of my Grand Father Khairoo Shah the possession of property was given to Muhammad Hanif Shah. It is incorrect to suggest that I have also wrongly mentioned that after the death of Muhammad Hanif that property in question was come in my possession. It is correct that I have not annexed any rent receipt in respect of the suit plot from (sic) issued by the KPT. Voluntarily say since I was owner, therefore, the question of receipt of rent does not arise. It is correct that the property in question is the property of KPT. It is correct that 1 have no lease documents in respect of plot in question. It is incorrect to suggest that I have no right and title over the property in question. It is incorrect to suggest that the property in question has already been leased in favour of the plaintiff. It is incorrect to suggest that I have filed this false claim on the basis of false and fabricated story. It is correct that I have filed this claim after the lease of the suit plot. It is incorrect to suggest that I am deposing falsely and I have no right to claim suit plot".
9.Arguments heard. Record perused.
10.Insofar as the institution of earlier five suits bearing Nos. 590/1991 to 594/1991 in respect of the suit property, which were dismissed on 12.09.1994 in non-prosecution and their restoration application was also dismissed on 14.01.1996 and such fact had concealed by the appellants who came before the court with unclean hands is concerned, Mr. Ziaul-Haq Makhdoom, learned Counsel representing the appellants submitted that in earlier suits, the prayer sought by the plaintiff was quite different wherein the plaintiff had sought declaration that he along with other occupants are entitled to be offered and execute by the defendants Nos. 1 and 2, the necessary agreement or joint tenancy lease in their favour subject to payment of entire dues of rent, occupancy charges and other government charges and to direct the defendants 1 and 2 to execute requisite joint lease agreement of tenancy in favour of the plaintiffs in respect of the suit property before the Registrar and to grant permanent injunction restraining the defendants Nos. 1 and 2 not to dispossess the plaintiffs from the suit property whereas in subsequent suit in captioned appeals, the appellants have prayed for mandatory injunction, directing the defendant No, 1 to execute lease deed in favour of the plaintiff in respect of the suit property before the Registrar and to grant rearmament injunctions, restraining the c.4on, -ants from creating any third party in therefore, the prayer clauses and CMS' f action in the present suit and in the earlier five suits filed by the appellants are quite different.
11. Insofar as the production of documents in favour of the appellant to establish their legal right and character is concerned, learned counsel for the appellants contends that the appellants were in possession of the suit property since 1953, hence they requested to the KPT for grant of lease in their favour, which was accepted by the KPT. Learned Counsel submitted that all material documents including KPT's letter dated 29.12.1993, payment acknowledgment letter dated 23.01.1994, affidavits of the appellants to pay the dues of KPT, pay order and challans, KPT's letter of acknowledgment of dues dated 22.08.1994, KPT's letter through which they forwarded lease for stamping dated 10.10.1984, letter of appellant dated 31.10.1994, requesting to intimate them for registration of lease, lease deed, Resolution No, 250 dated 02.09.1993 and the recommendations have been placed on the record, which reflects the legal right and title of the appellants/plaintiffs in possession of the suit property.
12.Insofar as the question relates to non-service of mandatory notice under Section 87 of KPT Act before filing of the suit is concerned, learned Counsel categorically submitted that before the filing of the suit, the appellant served the KPT with mandatory notice under section 87 of KPT Act, which is available on the file. Insofar as objection raised by the defendants that the suit is barred in different provisions of Specific Relief Act is concerned, learned Counsel argued that the suit of the appellant was very much maintainable under the law as the appellants were admittedly in possession of the suit property since 1953, fulfilled all the requirements of the KPT as the KPT accepted their offer, issued lease in their favour, they got it stamped and forwarded to KPT for its registration, therefore, the appellants are not only have the right on suit property, so also have a legal character to file a suit against KPT.
13.In response to the observation of First Appellate Court, learned Counsel for the appellants contended that the appellants are neither encroachers nor they are trespassers; more particularly, the Respondents themselves admitted in cross: examination that the appellants are in possession of the suit property, therefore, per learned counsel, the findings of the lower appellate Court in this regard are totally based upon misreading and non-reading of evidence, which warrant interference of this Court. Per counsel for appellants, since there are conflicting findings on the basis of same evidence by trial court and appellate Court, therefore, reappraisal of entire evidence by this Court would be of significance. To support his contention Id: counsel placed reliance on 2006 SCM R 586.
14.Conversely, Mr. K.B. Bhutto, learned counsel representing the .L.Rs, of Respondent No, 1 namely Amir Ali Gul adopted the arguments advanced by the Counsel for the appellants and submitted that the Appellate Court did not frame point for determination as required under Order XLI Rule 31, C.P.C.; more so, the First Appellate Court has miserably failed to point out any misreading or non- reading of evidence by the trial Court; however, on the contrary, the Appellate court has misunderstood and mislead the evidence Aduced by the parties.
15.On the other hand, Learned Counsel for the KPT/ Respondents Nos. 2 and 3 supported the impugned judgments of Appellate Court and submitted that the Appellate Court has rightly dismissed the suits filed the appellants. Mr. Rana Khalid Hussain, advocate for Respondents Nos. 16 to 22 have also supported the judgment delivered by the Appellate Court. He further contended that appellant is a trespasser and unauthorized occupant of the subject property in the suit.
16.Perhaps, the Appellate Court has not gone through the cross-examination of witnesses of the parties mentioned above, wherein it has been stated that the appellants have concealed the facts of filing of five suits in respect of subject property, which were dismissed in non-prosecution; though the earlier suits were different and distinctive, filed for declaration and permanent injunction, whereas after approval of execution of lease, the appellants filed suit in appeal for mandatory injunction. The afore-reproduced evidence of representative of KPT reveals that the KPT has not only acceded the offer of the appellants but also passed resolution bearing No, 250 dated 02.09.1993 for approval of lease in their favour, which fact has been admitted by their witness, who has also admitted the possession of the appellants and stated that record of KPT does not show any infringement on the part of the plaintiffs in respect of terms and conditions and fulfillment of all requirements with regard to the lease and allotment of suit plot.
17.Crux of the aforementioned pleadings of the parties and evidence is that the Appellants filed a Suit bearing No,1110/2002 (Old No,672/1996) mandatory injunctions to execute lease deed" in respect of Plot No,72, Old No,6 measuring 755.72 sq meters, situated in Jackson Bazar, Kemari Township, Karachi before the Trial Court against only Respondents Nos.2 and 3 / Defendants Nos.1 and 2 but subsequently the Respondents Nos.4 to 22 being claimants were also impleaded as parties to the suit. The Appellants filed their suit on the basis of possession of the suit property since 1953.They submitted their application to the KPT for grant of lease in their favour. The KPT accepted their request through Resolution No,250, dated 02.09.1993. The Appellants paid, security charges of Rs,53,557/- through challans dated 17.08.1994. The KPT issued an Indenture of lease in respect of the suit property in favour of the Appellants. That the Suit of the Appellants was decreed in their favour on 13.03.2009.That the KPT and the Respondents Nos.16 to 22 preferred two separate appeals against the judgment and Decree before the lower Appellate Court through which the Suit of the Appellants was dismissed vide judgment dated 30.03.2012 on the basis of following reasons.
' Reason No,
1. That the Appellants earlier had filed five Suits bearing Nos.590 of 1991 to 594/1991 in respect of the suit property which were dismissed on 12.09.1994 in non prosecution. Their restoration application was also dismissed on 14.01.1996. They had concealed this fact in their Suit and come before Court with unclean hand.
' Perusal of prayer clause and the cause of action in the present suit and in the earlier five suit filed by the Appellants are different.
' Reason No, ii. That the Appellants did not produce any single document in their favour to establish their legal right and character to obtain lease.
' As the Appellants were in possession of the suit property since 1953, hence they requested to the KPT for grant of lease in their favour which was accepted by the KPT. KPT's Offer Letter dated 29.12.1993 (at Page No,123) Payment acknowledgment letter dated 23.01.1994 (at Page 127). Affidavit of the Appellants to pay the dues of KPT. (at Page No,129). Pay Order and Challans (at Pages Nos.131 to 137). KPT's Letter of acknowledgment of dues dated 22.08.1994. (at Page No,139). KPT's Letter through which they forwarded lease for stamping dated 10.10.1984. (at Page No,145). Letter of Appellant dated 31.10.1994 requesting to intimate them for registration of lease. (at Page 147). Lease Deed. (at Page No,153). Resolution No, 250 dated 2.9.1993. (at Page 213). Recommendation. (at Page 223).
' Reason No,iii. That the Appellants did not serve mandatory notice Under Section 87 of KPT Act upon KPT before filing of their Suit.
' Record shows that before filing of the suit, the Appellants served the KPT with mandatory notice under Section 87 of the KPT Act.
' Reason No,iv. That the suit is barred under Sections 21, 42, 54 and 56 of Specific Relief Act.
' A perusal of record shows that the Appellants were in possession of the suit property since 1953 and they had fulfilled all the requirements of the KPT, the KPT also accepted their offer, issued the lease in their favour, they got it stamped and forwarded to the KPT for its registration, therefore, the Appellants not only have the rights over the suit property but also have a legal character to file a suit against KPT.
' Reason No,v. That the Appellants are encroachers and trespassers and have no legal character to suit against the KPT.
The Appellants are neither the encroachers nor they are trespassers, the Respondents themselves admitted in the cross-examination that the Appellants are in possession of the suit property. The findings of the lower appellate court in this regard are totally based upon mis-reading and non- reading of evidence.
18. Suffice it to say that the judgment delivered by the trial Court on the above issues is well reasoned, based on correct appreciation of evidence, thereby discussed each issue on the basis of evidence and material available on record. On the contrary, the impugned appellate judgment is without tangible reasons, appears to be passed in hasty and slipshod manner, without considering the evidence and material brought on the record. It need not to iterate that it become settled proposition that law leans adjudication on merits rather on technicalities. Even otherwise, the first appellate Court did not specifically mention any misreading or non-reading of evidence in the judgment pronounced by the trial Court. Resultantly, the impugned judgment dated and decree in Civil Appeal No, 35/2009 and in Civil Appeal No: 38/2009 are set aside; consequently, the judgment and decree passed by the trial Court in suit No:1110/2002(old No, 672/1996) dated13-03-2009 is maintained.
(C.M.A. No,3079/2013 and C.M.A. No,2185/2012):- A perusal of record reflects that the listed application for compromise under Order XXIII Rule 2 r/w section 151, C.P.C. (C.M.A. No,3079/ 2013) was filed on 01.06.2013, wherein the respondent No, 22 self and being attorney of respondents Nos.16 to 21 and legal heirs of respondent No,1 have made a prayer for compromise among themselves on certain terms and conditions. It appears that the said application has not been contested/ pressed since last about more than three years period, which shows that perhaps the signatories of the said application have lost interest to pursue the same; more particularly, the counsel for respondents Nos.16 to 22 did not like to contest the same, which reflect from the order of this Court dated 23.08.2016, when the matter was adjourned with note of caution that in failure of counsel for respondents Nos.16 to 22 to attend this Court on the next date, the matter shall be heard and decided in his absence. Suffice it to say that the signatories of listed application for compromise did not show their appearance before this Court and matter has finally been argued, therefore, the said application become redundant. Another listed application under Order XXXIX, Rules 1 and 2, C.P.C. r/w section 151, C.P.C. (C.M.A. No,2185/ 2012) has already been taken up for hearing along this appeal, which is accordingly disposed of.
Resultantly, appeals are allowed B with no order as to costs.