1. This is a suit under section 9 of the Specific Relief Act for possession of House No. N. Q. A. 20 at Quaidabad, Landhi, Karachi. The Plaintiff has alleged that he was living in this house alone as his were and children had gone to Shah Aqil in District Thatta. On 20th September, 1978, when the plaintiff was away from the house the defendant wrongfully dispossessed him. A report was lodged with the police but nothing happened. The plaintiff filed a suit to the Court of 16th Civil Judge, (and Class) but the plaint was returned as it was beyond the pecuniary jurisdiction of that Court. The plaintiff then filed this suit for possession of the said house. The defendant has filed written statement where besides the legal objections all the facts relating to wrongful possession of the defendant have been denied. It has been alleged that the complaint lodged by the plaintiff with the police was found to be incorrect and was filed. It has been pleaded that Me3srs Haji Ismail and Hajl Abdul Rehman's had started Awami Flour Mill on the land adjacent to Quarter No. 20 under partnership-deed dated 24th June, 1967. On 7th March, 1978, Haji Abdur Rehman's transferred his share in the mill to his were Mst. Ruqqiya Begum who was the owner of Quarter No. 20. On 20th September, 1978, the defendant purchased quarter No. 20, its adjacent land and share of Awami Flour Machine from Ruqqiya Begum for a sum of Rs. 65,000. The defendant claims to have purchased the remaining half from Haji Abdur Rehman's under a sale agreement and took possession of the property from both the owners. It has further been pleaded that the plaintiff had filed a suit against the defendant and Mst. Ruqqiya Begum in the Court of 16th Civil Judge but it has been dismissed. On the basis of these pleadings the following issues were framed :-
(1) Whether the plaintiff is entitled to possession of House No. 20. N. Q. A. Situated in Qaidabad, Karachi ?
(2) Whether the plaint is bad for non-joinder of proper patties ?
(3) Whether plaintiff had paid proper court-fee ?
(4) Whether the suit is time-barred ?
(5) Whether the plaintiff is owner of the House No. 20 N. Q. A. Situated in Qaidabad, Karachi, as against the defendant ?
(6) What should the decree be ?
2. The plaintiff has examined himself and two more witnesses. The defendant's counsel was present but the defendant and their witnesses were not present. Therefore, defendant's side was closed and .Arguments were heard. My findings on the issues are as under :- Issue No. 1. -This is the main Issue relating to possession of House No. 20, Qaidabad, Karachi. In this regard it has first to be determined whether the plaintiff was in possession of this house and has been wrong--fully dispossessed by the defendant. In order to prove his title to the property the plaintiff has produced an agreement dated 16th August, 1978, under which he claims to have purchased the house from Haji Abdur Rehman's. Under this agreement the plaintiff seems to have purchased the house as well as other premises attached to it which contained a chakki or grinding machine, for Rs. 65,000. This document also mentions that possession was delivered to the plaintiff.
3. Besides this document the plaintiff has also produced an affidavit of Haji Abdur Rehman's which he had executed at Manjheri (India) confirming the sale to the plaintiff. The agreement relied upon by the plaintiff relates to the sale and transfer of immovable property which includes the house and flour grinding machine which is affixed to the earth and also the premises attached to it. This document is not registered. Any interest in immoveable property cannot be transferred or created except by a registered deed. The learned counsel for the plaintiff has contended that the land belongs to the Government and the plaintiff bad only purchased the mal6a or the construction thereon. The fact remains that the construction which admittedly exists has been transferred and this construc--tion cannot be said not to be immovable property. Therefore for the purposes of determining the possession it is not possible to rely upon this document. The second document, that is, the affidavit, cannot be relied upon as it has not been properly proved.
4. Now coming to the oral evidence it is contradictory and plaintiff's case is not supported by the witnesses. The plaintiff has stated that he had taken possession of the house after tie purchased it from Haji Abdur Rehman's and at the time when he was dispossessed he was not present there end the house was vacant. He has, however, stated that his servant Ghulam Murtaza was there in whose presence the defendant along with his companions had forcibly occupied the house in the night on 20th September, 1978. In this regard the evidence of P. W. Ghulam Murtaza is very significant. He has stated that at the time when the property was sold to the plaintiff Ruqqiya the were of Haji Abdur Rehman's was residing in that house, He has further stated that the family members of plaintiff were not residing there, and the house was in possession of Haji Abdur Rehman's whereas the godown and the flour mill was in possession of the plaintiff. He further stated that when Ruqqiya Begum left the house some unknown persons whom he does not know occupied the said house. He has, however, admitted that he was a witness to the agreement for sale. This witness, therefore, completely contradicts the story of the plaintiff who had stated that the plaintiff's were and children were residing in the house whom he had sent to Shah Aqiq and the house was in his possession when the defendant forcibly occupied it. The plaintiff has examined Miran Shah who has stated that on 20th September, 1978, at about 9 or 10 p.m. The defendant alongwith his accomplice broke open the lock and occupied the house. He has explained his presence at this odd hour by saying that he deals in purchasing and selling old goods and stores his goods in the space between the disputed house and shop which are in the same premises. He has stated that on that night he had come to store the goods there and found that the defendant was breaking open the lock. He has stated that at the time when the Respondents had taken possession of the house plaintiff's servant was present. The statement of P. W. 3 completely contradicts the statement of P. W. 2 who has stated that he was not present at the time when the defendants had taken possession. If at all it is accepted that P. W. 3 was present. He himself has stated that he used to come to store the goods, whenever he has been able to collect the goods which he used to purchase by roaming about in the streets. The presence of this witness at an odd hour at about 10 or l l p. m. Is doubtful. Usually persons who deal in business like this do not stay so long till about 10 or 11 p.m. In the night. They wind up their business by sunset. It is, therefore, doubtful that in the manner stated by the witness he would have been present to witness the incident. The plaintiff on the basis of the evidence produced by him has failed to prove that he was in possession of the disputed house and was dispossessed by the defendant. In view of this finding the plaintiff is not entitled to possession under section 9 of the Specific Relief Act Issue No. 2.--The learned counsel for the defendant has stated that the plaintiff had alleged that there were about 5 or 6 persons who had dispossessed the plaintiff against whom the plaintiff has filed criminal complaint and therefore all those persons should have been made defendants.
5. Plaintiff has stated that the defendant alongwith his accomplices came and took possession of the house. So in fact the unauthorised act was of defendant No. I with the help of his companions and it is defendant No. 1 who is holding possession of the house. In these circumstances defendant No. 1 is the proper party and my finding is in the negative.
6. Issue No. 3.-The plaintiff has paid half of the ad valorem court --fee on the value shown in the plaint. My finding is in the affirmative.
7. Issue No. 4.-According to the plaintiff the incident occurred on 20th September, 1978, and the suit was filed on 21st February, 1979. A suit under section 9 of the Specific Relief Act should be filed within 6 months, of the accrual of the cause of action. In this way according to the learned counsel for the plaintiff the suit was filed within six months. From the record it seems that the plaintiff had not paid proper court-fee at the time of presentation of the plaint, Objections were raised by the office on 24th February, 1979, but the court-fee stamps were paid on 13th June, 1979. During this period it seems that the plaint remained under objections. The time complying with the objections was being granted from time to time when finally on 26th May, 1979, compliance was ordered to be made within one week. But it seems that the plaintiff did not file the court-- fee stamp which was presented on 13th June, 1979. It, therefore, follows that the plaint when it was presented on 12th February, 1979, was without proper court-fee stamps and was not a proper presentation in the eyes of law. The suit, therefore, due to filing of court-fee stamp3 on 13th June, 1979, has become time- barred.
8. Issue No. S.-This issue relates to title to the house. In a suit filed under section 9 of Specific Relief Act the question of title cannot be determined. Only a decree for possession can be granted if the plaintiff has been wrongfully dispossessed. Although this Issue was adopted with the consent of the parties no finding can be given on this Issue in the present proceedings.
9. The suit is dismissed with no orders as to costs.