' These two second appeals are directed against the impugned judgment dated 19th January, 1974 of learned IIIrd Additional District Judge, Karachi, dismissing two appeals filed against consolidated judgment in two suits, which were dismissed by the learned XVIII Civil Judge, Ist Class, Karachi.
2. Briefly stated they relevant facts are that the dispute between the parties is with regard to House No, A.K. VII-11-8-46, situate on Fida Husain Shaikha Road, Lyari Quarters, Karachi, Abdul Karim Qureshi . Appellant before me filed suit No 273/68 before the Civil Judge, Ist Class, Karachi, on 14th March, 1968, for ejectment and delivery of possession. According to the plaint, Abdul Karim was the owner of the house mentioned above and he had put Abdul Khaliq in possession of a portion of the house as licensee vide agreement, dated 24th February, 1967. The period of licence had expired as such it was cancelled and legal notice was served upon Abdul Khaliq for handing over vacant possession of the premises but he did not do so, hence the suit. Written statement was filed by Abdul Khaliq setting up a plea therein that plaintiff was not the owner of the property in question and both the plaintiff as well as defendant were tenants of one Abdul Bari. Execution of agreement as alleged by the plaintiff was denied. It is further stated in the written statement that the house in dispute was divided into three tenements out of which two tenements were occupied by defendant and one by the plaintiff. Defendant handed over one tenement to the plaintiff at his request to accommodate his son who was to marry. It was agreed that plaintiff would pay Rs, 20 per month as rent to the defendant in respect of that tenement which was given to him by the defendant.
Subsequently, the plaintiff stopped 'paying rent and started harassing the defendant and indulged in litigation to coerce the defendant to hand over the remaining tenement to the plaintiff. It appears that after filing the written statement defendant Abdul Khaliq died during the proceedings and his L Rs, were brought on record. Another development which took place in the suit proceedings was that Abdul Hakim joined the proceedings as intervenor on the basis of purchase of property in question under a registered sale-deed from Abdul Bari, hence he was joined as defendant and he also filed written statement. In view of the pleadings of the parties issues were framed and evidence was recorded after which ultimately the suit was filed was dismissed. Abdul Karim plaintiff in the suit having been aggrieved by the dismissal of the suit filed ist Appeal No, 49/73 in the Court of IIIrd Additional District Judge, Karachi. At this stage it would be pertinent to point out that after Abdul Hakim joined the proceedings in the suit as purchaser of the property in question Abdul Karim filed another suit No, 2290/68 on 7th November, 1968 in the same Court for declaration and injunction against Abdul Hakim, who had purchased the property in question, Abdul Bari who had sold the property in question to Abdul Hakim and City Deputy Collector, who was supposed to finalise mutation in the record of rights. It is stated in the plaint that the suit property on the same plot number as in the other suit with a bet on it was purchased by Abdul Khaliq, who subsequently built a proper house on it with four rooms, one verandah, two W. C., two bath-rooms and one courtyard. Abdul Khaliq subsequently sold this house to plaintiff Abdul Karim for consideration of Rs, 3,000 vide agreement, dated 24th February, 1967 and gave possession of two rooms, one veranda one W. C. One bath-room and courtyard on the same date and was allowed to remain as licensee in the remaining portion of the house temporarily and further Abdul Khaliq promised to vacate the remaining portion of the suit property after his retirement which was due after a few months. Said Abdul Khaliq deceased did not vacate the house as such plaintiff had filed suit No, 273/68 for ejectment and delivery of possession which is pending. It is further stated in the plaint that in January, 1968 one Abdul Bari filed application for ejectment in the Court of Rent Controller against deceased Abdul Khaliq, who challenged relationship of landlord and tenant between the parties and the ejectment application was dismissed on 22nd May, 1977. Abdul Bari then never claimed ownership of the house in question. On 16th August, 1968, plaintiff Abdul Karim received a notice from defendant Abdul Hakim, who claimed to have . Purchased the house in question from Abdul Bari by way of registered sale-deed and it was alleged in the plaint that this deal was illegal and fraudulent as deceased Abdul Khaliq acquired title by adverse possession against Abdul Bari. In the suit City Deputy Collector was impleaded as a defendant to seek stay against him not to carry out mutation in the record of rights on the basis of registered sale-deed executed between Abdul Hakim and Abdul Bari.
3. In the suit Abdul Hakim filed written statement raising therein preliminary objections on legal grounds and denied allegations made in the plaint. It was further stated in the written statement that deceased Abdul Khaliq had admitted to be a tenant in the written statement filed in suit No, 273/68. So far the property in suit is concerned it was stated that the said property was owned, by Abdul Bari and that plaintiff was tenant in respect of two rooms, one verandah, one W. C. One bath- room and courtyard at the rental of Rs, 25 per month and plaintiff used to pay rent to Abdul Bari.
Deceased Abdul Khaliq was originally tenant of the whole house and subsequently sublet one portion as stated above to the plaintiff and retained the remaining portion of the house which was then taken over by defendant Abdul Hakim. Abdul Khaliq had no right in the property in question as such the question of his selling the property to any one did not arise. It was further averred in the written statement by Abdul Hakim that he had purchased the property in question vide registered sale-deed No, 633, dated 20th June, 1968 as such he is indisputable owner of the property in question.
4. The trial Court in view of the pleadings of the parties framed consent issues in both the suits which were consolidated and after further proceedings according to law dismissed both suits vide common judgment The plaintiff in suits filed two appeals I. A. No, 49/73 against dismissal of Suit No, 273/68 and both these appeals were again dismissed by the learned 3rd Additional District Judge, Karachi, by a common judgment which is impugned in both these Second appeals filed by Abdul Karim Kureshi, who had lost the suits before the trial Court and appeals before the appellate Court.
5. I have heard Mr. S. S. Hamid, Advocate for appellant and Mr. Hussain Adil Khatri, Advocate for respondents at great length. When asked as to how these second appeals are maintainable when the judgments of two Courts below are concurrent and against him and particularly when all the issues in suit relate to the questions of fact, Mr. S. S. Hamid stated that there has been gross misreading of evidence giving rise to illegalities and several documents have not been discussed.
On the other hand, I find that both the Courts below have written judgments which are sufficiently in details in which each piece of evidence produced by the parties has been effectively discussed.
So far evidence is concerned appellant/plaintiff Abdul Karim has examined himself before the trial Court as Exh. 4 (page 43 of the paper book) and has also examined two other witnesses, namely, Abdul Gharoor Exh. 5 (page 60 of paper book) and Dost Muhammad Exh. 6 (page 63 of the paper book). The stand taken by Abdul Karim in his deposition is that he has purchased the suit property from deceased Abdul Khaliq vide agreement Exh. 4/1 and he was put into possession of the half portion immediately after the execution of agreement of sale and the other half portion remained in possession of deceased Abdul Khaliq which was to be handed over to him after some time. This agreement of sale Exh. 4/1 which is also mentioned in the record as Exh. 5/1 is dated 24th February, 1967. Other documents filed by Abdul Karim are objections in rent case filed by Abdul Khaliq Exh.
4/2, order of Rent Controller dismissing the ejectment application Exh. 4/3, order of Additional Commissioner Exh. 4/4 and then some tax receipts and other extracts and ration-card.Of Abdul Khaliq. All these documents particularly the tax receipts, extracts from register of Excise and Taxation and Ration Card tend to show possession. So far the question of title is concerned, the whole case of plaintiff in the suit is based upon that agreement of sale Exh 4/1. P. W. 2 Abdul Gharoor is Oath Commissioner, who has produced before the trial Court original agreement Exh.
5/1 between Abdul Khaliq and Abdul Karim and stated that it was signed by him. P. W. 6 Dost Mohammad is attesting witness of the agreement of sale. So far the case of the respondents/defendants is concerned, it is already stated above that the first suit was filed initially against Abdul Khaliq who was the alive and who had filed written statement in that suit denying allegation of sale of the suit property to Abdul Karim and further stated that he and Abdul Karim were both tenants in that, house. Abdul Khaliq died after filing of written statement and his L. Rs, were brought on the record. Mr. S. S. Hamid contended that written statement of Abdul Khaliq is useless and cannot be relied upon because he could not be relied upon because he could not be examined in the Court. He put reliance upon the case of Muhammad Nawaz v. Jiand Rai and others (1). In the reported case it is held that a written statement filed by the respondent, if it is not verified on oath and the respondent has not been examined, such written statement cannot b treated as evidence. I am in full agreement with the proposition laid down in the reported case. In the reported case the respondent who had file written statement was not examined. In the instant case Abdul Khaliq die
(1) 1981 CLC 867 ' immediately after filing the written statement, hence his L. Rs, were brought on the record. Be that as it may, that the written statement cannot be considered then likewise objections filed by deceased Abdul Khaliq in another rent case filed by Abdul Bari also cannot be considered for the same reason because Abdul Khaliq was not there either to affirm or deny the same. The case of the plaintiff stands where it was that he claims title on the basis of agreement of sale executed by Abdul Khaliq deceased who could not be examined because he died before he could come in the box. Subsequently, in that suit after the death of Abdul Khaliq, Abdul Hakim came as intervenor, joined proceedings and participated as defendant claiming to be the owner of the suit property which he had purchased from Abdul Bari by way of registered sale-deed. Abdul Hakim examined himself as D. W. 1 (page 64 of the paper book). He producad sale-deed as Exhs. 8 and 9. He also produced registered Power of Attorney of Haji Abdul Bari given to Abdul Ghani Exh.
10. Abdul Ghani executed sale-deed Exh. 8 in favour of Abdul Hakim. The date of execution of sale- deed is 20th June, 1968. Abdul Hakim has further deposed that there were three tenements in the building in question and when he purchased it deceased Abdul Khaliq was occupant of two tenements and Abdul Karim was in occupation of one tenement. He gave notices to the tenants and produced copies as Exhs. 11/1 and 2. He has further stated that tenants used to pay rent to the previous owner. He filed rent cases against Abdul Khaliq and Abdul Karim. After the death of Abdul Khaliq, he took possession of one tenement and in the meantime Abdul Karim had already filed a suit against Abdul Khaliq before his death. He further produced receipts of previous landlord in favour of Abdul Khaliq Exh.
13. He further stated that Abdul Khaliq and Abdul Karim were tenants inducted by Ramzan Ali. He produced certified copy of extract from record of rights Exh. 14 (page 85 of the paper book) which shows the names of previous owners of the said property and the names of the last three owners are Muhammad Ramzan son of Bachal, Abdul Bari son of Abdul Rehman and Abdul Hakim son of Maqbool. He has also produced rent receipt Exh. 13 issued by previous owner in favour of Abdul Khaliq (page 14 of paper book).
6. D. W. 2 is Ramzan Ali (page 88 of paper book). He has deposed that suit property was owned by his maternal uncle Ismail and after his death was inherited by his legal heirs and eldest son namely Sadiq Husain was appointed as guardian by the High Court. This witness has further stated that he was appointed as attorney and he used to look after the property and collect rent. He has further deposed that Abdul Karim was a tenant and he had inducted him as tenant in the year 1954. Abdul Khaliq was tenant in two tenements and Abdul Karim was tenant in one tenement. He used to issue receipts of rent. He acknowledged his signature on rent receipt Exh. D-13. Sadiq Husain and other heirs of Muhammad Ismail had sold 93 sq. Yds. By registered sale-deed which was attested by him in January, 1956, He admitted to be correct Exh. 9 bearing his attestation.
Abdul Khaliq and Abdul Karim both were paying rent upto 1956 till the property was purchased by Abdul Bari.
7. D. W. 3 is Abdul Rauf. He has deposed that Abdul Karim approached him about 18-19 years ago as he wanted some house to live in. He brought him to the house where Abdul Khaliq was already a tenant, who used to pay rent to Ramzan Ali. This evidence as stated above including documentary evidence is more than enough to belie the claim of Abdul Karim and prove the title of defendant Abdul Hakim.
8. It was then contended by Mr. Hamid that no issue was framed with regard to the declaration and cancellation of documents. The plain answer to this is that the trial Court had framed consent issues which were signed by both the advocates appearing for the parties which is quite appearent at page 28 of the paper book and these consent issues were adopted by the learned trial Judge vide his order, dated 10th February, 1972.
9. It was then contended by Mr. Hamid that no issue was framed with regard to the adverse possession of deceased Abdul Khaliq against Abdul Bari, the benefit of which was taken over by plaintiff in the suits. In support of his argument the learned counsel cited some authorities also.
There is no question of adverse possession for the reason that even if I do not go into the written statement filed by deceased Abdul Khaliq in the first suit in which he admitted that he and Abdul Karim were both tenants in the suit property there is plenty of other evidence supported by documents as stated above which proves firstly title of Abdul Hakim and secondly that Abdul Karim and Abdul Khaliq were both tenants in the house in question. The question of adverse possession has been adverted to by the two Courts below in their judgments and they have come to concurrent findings that it is not established. The trial Court has said so at page 100 of the paper book and the 1st Appellate Court at page 137 of the paper book.
' Lastly, Mr. S. S. Hamid submitted that the land in question was property of the Government as such was not transferable. This plea he has taken rather belatedly. No such plea was taken in the two Courts below. This plea is inconsistent with the claim of appellant/plaintiff, who has filed two suits claiming title to the property in question. It was then argued by Mr. S. S. Hamid that two Courts below have not considered the decision of Additional Commissioner. Mr. Hussain Adil Khatri pointed out that decision of Additional Commissioner has been considered by the two Courts below and also has pointed out relevant portions from the judgment of the trial Court at page 108 of paper book and the judgment of the 1st Appellate Court at page 138 of the paper book. In any case, the order of the Additional Commissioner which is Exh. 4/4 (page 50 of the paper book) shows that the stand taken by the representative of the Collector was that original lessee was Abdul Bari and lease was temporary 'D' type and the land was not transferable unless compliance of condition No, 4 of the lease agreement was made. Counsel of appellant Abdul Karim admitted before the Additional Commissioner that he was interested in the structure only and not in the land. The Additional Commissioner has observed in the order that the land and structure both go together. In any case, no final decision was given by the. Additional Commissioner on this aspect of the case as the matter was subjudice before a competent civil Court and the appeal was dismissed. The admission of the appellant before the Additional Commissioner shows shifty attitude on the part of appellant and further throws doubt on his claim to the title of the property. In any case, both the Courts below have adverted to this aspect of the matter and the analysis of the evidence brings me to the conclusion that there is absolutely no need to interfere with the findings of the two Courts below which are concurrent and against the appellant and further that both Courts below have with proper application of mind assessed the evidence in a just and legal manner, hence their conclusions are consistent!' with evidence and law. There has been no misreading of evidence. I am satisfied with appraisement of evidence by two Courts below, which is strictly according to law and merits. In the result, I decline to interfere and dismiss both second appeals with costs.