' By a short order announced today this appeal was allowed and the suit of the appellant against respondent No,1 was decreed with costs for reasons to be recorded later. Following are the reasons:- ' The plaintiff/appellant was allotted Plot No,175/W, Block-11, P.E.C.H. Society, Karachi vide allotment order No,2448 dated 14th May, 1950. A sub-lease was also executed by the Society in favour of the appellant and duly registered before the Sub-Registrar. The appellant also made payment for the plot and fee for non-utilisation of the plot upto 3rd February, 1972. It is alleged that the appellant also constructed the boundary wall around this plot.
2. On 13th January, 1972 he visited the plot and found that the respondent No,1 had trespassed upon it after demolishing a portion of the boundary wall. The appellant, therefore, filed suit being Suit No,1960 of 1975 for possession and mesne profits against the respondent.
3. In his written statement the respondent No,1 alleged that he had got this plot from his uncle Akbar Khan vide an agreement which was executed in 1956 and that he is in possession of this plot since 1950. He had been applying for regularisation of the plot in his name, but the Society did not regularise it. Hence his title has become complete by adverse possession.
4. Respondent No,2 is the P.E.C.H. Society, Karachi, who .Is admittedly the owner of the disputed plot.
In its written statement, the Society has completely supported the case of the appellant and pleaded that respondent No,1 is a trespasser and is liable to be ejected.
5. On the pleadings of the parties following issues were framed:-- "(1) Whether the suit is maintainable in law ?
(2) What is the effect of earlier litigation between the parties in respect of the suit plot ?
(3) Whether the defendant is entitled for adverse possession of the plot, if so, its effect ?
(4) Whether the defendant No,1 is a trespasser, if so, its effect on the suit and whether the plaintiff is.
The allottee/lessees of the plot having got from defendant No,2 ?
(5) Whether the defendant No,1 is holding the plot in his own rights since 1953/54 or alternatively ?
(6) Whether the defendant No,1 is entitled for adverse possession of the plot, if so, its effect_?
(7) Whether the plaintiff is entitled to mesne profits, if so, to what extent ?
(8) What should the decree be ?"
' During his evidence appellant produced the allotment order (Exh. 5/0), receipts for payments as Exh. 5/E to Exh. 5/J, sub-licence (Exh. 5/K), further receipts for payments as Exhs. 5/L/1 to 5/L/6 and Exh. 5/M. The most important document which the appellant produced in his evidence is letter Exh.
5/N, which the respondent No,1 had written to Police for protection. As this is the most important document having bearing on the claim of adverse possession of respondent No,1, hence it needs to be reproduced in extenso. It runs as under:-- ' To ' The Station House Officer, Ferozabad Police Station, Karachi.
' Subject:- Request for protection.
Sir, ' I beg to inform you that I have inhabited my family in my Plot No,175-W, Block No,2, P.E.C.H. Society (Tariq Road), Karachi from today, the 13th January, 1972. There are some miscreants who have been unnecessarily harassing me for some time.
' Therefore, I request you to give protection to my family members and see that no body harassed them when I am at duty. I shall remain grateful to you for this act of kindness. Thanking you.
Yours faithfully, (Sd/-) Fazalur Rehman, 13th January, 1972 s/o Abdul Majeed, Peon, Sind Employees' Social Security Institution, ST-2/4/C, Block U, North Nazimabad, Karachi-53. Copy to:-
(1) The Executive Engineer P.E.C.H. Society Ltd., Karachi.
(2) The Governor and Martial Law Administrator, Sind, Governor House, Karachi."
' It may be stated that this letter has also been referred to by the plaintiff specifically in para. 6 of his plaint. The respondent has not denied having written this letter or application to the Police. In this letter respondent No,1 has categorically stated that he took possession of the plot in question on 13th January, 1972. The appellant was not cross-examined on this letter by the respondents' counsel. Even respondent No,1 in his deposition (Exh.9), has not denied this letter. It shall, therefore, be presumed that the genuineness of this letter is not doubted by the respondent.
6. It is surprising that the learned Civil Judge has not referred to this letter at all in determining whether this respondent had been in adverse possession of this plot for 12 years proceeding the filing of the suit.
7. The learned Judge has only relied on an agreement executed by Akbar Khan in favour of this respondent and has presumed that whatever was stated in this agreement amount to facts proved. This agreement has been produced by Fazalur Rehman as Exh. 9/1 in which Akbar Khan states that the plot in question was granted to him by His Excellency the Governor-General and that he was transferring it to his nephew Fazalur Rehman (respondent No,1), who has been residing therein since 1953 and that he has also received Rs, 1,350 from this respondent for this plot. The learned Judge has presumed that Akbar Khan was the rightful owner of this plot and had rightly transferred its possession to the respondent No,1. There is nothing on the record to suggest that the Governor or the Governor-General had allotted this plot to Akbar Khan. The fact mentioned in the agreement about the possession of Fazalur Rehman since 1953 has also been taken by the learned Civil Judge as a fact proved, although the respondent categorically stated in his letter to the Police (Exh. 5/N) that he has settled on the plot in dispute since 13th January, 1972. The learned Civil Judge has also conveniently omitted to refer to various documents of title produced by the appellant in support of his ownership over the plot in dispute.
8. It may also be mentioned that before 1972, the respondent received letters at the address of 'Cafe Olympia' such as the letters Exh. 9/5, dated 4th August, 1971 and Exh. 9/6, dated 20th October, 1972. These letters have been produced by the respondent himself. However, the letter Exh. 9/4 which is dated 28th July, 1975 is addressed to this respondent by the address of the house on the disputed plot. This will show that he came into possession only after January 1972, as stated by him in his letter to the Police (Exh. 5/N) dated 13th January, 1972. This letter which stands proved on the record completely falsifies the claim of respondent No,1, to have completed his title by adverse possession.
9. Learned counsel for respondent No,2 has also supported the case of the appellant and has pleaded that in view of the admitted documents, it is disproved that respondent No,1 has been in possession of the plot in question since 1950 or 1953.
' For the above reasons the appeal is allowed, Judgment of the trial Court is set aside and the suit of the plaintiff against the respondent No,1 for possession and mesne profits is decreed with cost.
This respondent is further restrained from raising any further construction over this plot. The respondent No,1 shall also bear cost of this appeal.