' The dispute in this case relates to Quarter No, 36-C/318, Korangi Township, Karachi. Respondent No, 1 in this second appeal is the son of appellant No, 1 from her first husband and appellant No, 2 is the second husband of appellant No,
1. The facts giving rise to this second appeal are as follows :- ' The respondent had filed a suit being suit No, 1708/75 in the Court of XXI Civil Judge at Karachi, far a decree for possession of Quarter No, 36-C/ 318 and a decree for mesne profits for Rs, 750 and further mesne profits at the rate of Rs, 50 per month from 10th June, 1975 till the delivery of possession. The case set up in the plaint was that after the death of the father of the respondent, the respondent his brother Khalid Hussain, the sisters and the appellant who as stated above is the mother were residing in the quarter. Some times in 1973 the appellant No, 1 developed intimacy with the appellant No, 2 and also contracted the marriage. The respondent and other brother and sisters were quite annoyed on this attitude of the appellant but tolerated it out of respects to her.
As a result of the marriage the appellant No, 2 also came to occupy the house in order to live with appellant No,
1. It is alleged that the appellant No, 2 requested the family to allow him to live in this quarter only for a limited period of four months whereafter he should shift to a house he was constructing in Akhtar Colony on plot No, 10-2180. That on this assurance he was allowed to stay in the quarter. After completion of the house in Akhtar Colony the appellant No, 1 did not shift and failed to give vacant possession of the quarter in dispute to the respondent obliging the respondent to serve a notice through an Advocate by registered post and calling upon the appellant to vacate the house after 30 days of the service of the notice and hand over vacant possession of the quarter to the plaintiff. The appellant failed to comply with the request contained in the notice and surrender possession to the respondent resulting in the filing of the suit out of which this second appeal has arisen. The plaintiff prayed for the following reliefs in the plaint :-
(a) Decree for possession of Quarter No, 36/C/318, Korangi Township Karachi-31 as against the defendant.
(b) Decree for Rs, 750 as mesne profits and for the amount accumulated during pendency of the suit at the rate of Rs, 50 per month from 10-6-1975 and onwards.
(c) Cost of the suit.
(d) Any other relief which in the circumstances of the case this Hon'ble Court deem fit and proper."
' The two defendants filed their written statement and besides raising technical issues set up their defence that appellant No, 2 had been residing in the quarter No, 36-C/318 alongwith Muhammad Hanif, son of Rajab Khan and had purchased this quarter from Muhammad Hanif. That the appellant No, 2 had paid Rs, 7,000 to the said Muhammad Hanif who had "executed agreement, dated 25th September, 1972 in favour of defendant No, 2". It would be profitable to quote para. 5 of this written statement which is as follows :- "5. That the defendant No, 2 is actually owner of the said quarter and the allegation of the plaintiff that he was allowed to reside in the quarter as a licensee from 6-7-1973 is nothing but false, frivolous and concocted one."
' It is not necessary to quote other paragraphs which indicate that after the death of the father of the respondent relations between the appellant No, 1 and sons and daughters of the said appellant from her first husband had become very strained. On these pleadings the learned Judge struck as many as 8 issues, some of them were formal but issues Nos. 3, 4, 5, 6 and 7 are relevant and are reproduced below :- "3. Whether the plaintiff has obtained allotment order of the quarter in question forged documents ?
4.Whether the defendants are licensee of the plaintiff from 6-7-1973 ?
5.Whether the plaintiff is the owner being a licensee of quarter No, 36-C/318, Korangi Township, Karachi-31 ?
6.Whether the licensee has been revoked and the defendants hold the possession as trespassers ?
7.Whether the defendants are liable to pay to the plaintiff mesne profits ? If so at what rate and for which period ?"
' When evidence in the case opened before the trial Court the plaintiff examined himself and one Shaikh Hyder in support of his claim. On behalf of the two appellants the two appellants were examined. The learned' Judge on the pleadings and the evidence before him decided issues in favour of the respondent/plaintiff and decreed the suit for possession of the disputed quarter and directed the appellants to hand over the possession of the same forthwith to the plaintiff. He also decreed the claim of mesne profits at the rate of Rs, 25 per month from 9th March, 1974 till the delivery of possession of the quarter in dispute.
2. Against this decree the appellants filed an appeal before the Additional District Judge, Karachi after hearing the parties dismissed this appeal by his judgment, dated 15th December, 1979. The appellants have now filed this second appeal against the two concurrent Judgments of the two lower Courts.
3. The learned counsel for the appellants has argued before me that the decree of the learned trial Court as well as the judgment passed in appeal by the learned IlIrd Additional District Judge, Karachi are erroneous in law and must be set aside. The learned counsel for the appellants has attacked the concurrent findings in the two judgments in a general way and has not been able to show how the findings against him are contrary to law. His arguments are on two aspects of the case.
(1) He says that the documents of title in favour of the plaintiff have been forged by him and are not genuine. The burden to prove this assertion was on the appellant. Except the bare word of the appellants there is not an iota of evidence in support of this assertion. It may be mentioned that the possession of the plaintiff/respondent in respect of this plot was regularized by K. D. A. On 13th June, 1973 and a lease deed has also been executed by the K. D. A. In favour of the plaintiff/respondent. This document has been relied upon by the respondent/plaintiff in the plaint, copy has been filed which shows that this was registered in his favour by the K. D. A. Vide serial No, 3057, pages 43-45, volume 430 duly registered with the Sub-Registrar of `T' Division, Karachi. I find nothing wrong with concurrent findings that the plaintiff has failed to prove that the transfer of title in favour of the respondent/plaintiff was in any way objectionable on account of the alleged misrepresentation and fraud attributed to the respondent/plaintiff by the appellants. So long as these documents remain in tact and are not revised and the transfer is not annulled by the K. D. A.
The plaintiff's title cannot be disputed Once the ownership of the respondent remains undisturbed it is for the appellants to show in what right they are occupying the quarter. A plea was raised, by the appellant No, 2 that he had purchased this property from one Hanif Khan and also paid a sum of Rs, 7,000 to the so-called seller.
' For whatever this plea may be worth even this alleged purchase is no supported by the documents mentioned by the appellant No,
2. Neither the receipt for Rs, 7,000 nor the agreement said to have been executed by this unknow Hanif Khan in favour of the appellant No, 2 is forthcoming. It remains to be explained how the respondent/plaintiff who is not even living with the appellants had managed to steal and take away these documents from the possession of these appellants. The photostat copies of the receipt and other documents without proof of the loss of the originals were rightly disallowed to be produced by the trial Court. The learned appellate Court then dealing with this argument of the learned counsel has pointed out that the suit was filed by the plaintiff on 30th July, 1975, written statement was filed by the appellant on 22nd September, 1975, issues were framed on 28th January, 1976 and the evidence of the plaintiff was completed on 2nd April, 1978 and no where the theory of the loss of documents was ever pleaded. No such case was put to the plaintiff in his cross-examination. As such the loss of originals on account of theft was an afterthought and an attempt to produce the photostat copies of these documents with an application moved for the first time on 14th May, 1978 under Order XIII, rule 2 was rightly rejected.
The learned counsel has failed to show how in the circumstances narrated above the findings of the two Courts below are erroneous.
4. In this view of the matter nothing remains to support the plea of purchase and as such the two concurrent findings are to be sustained.
5. On the question of the authenticity or genuineness of the documents of the so-called purchase from Hanif the observation of the learned first appellate are noteworthy.- I may quote:- ' I have even seen the photo copies of the documents in question which to the great extent are neither readable nor authentic. If there would have been any truth in the matter at least the appellants would have produced certined copies of the F. I. R. Recorded under section 448, C. P. C. ?
This all reflects over the benefits of appellants that these both applications were afterthought and accordingly rightly rejected by the learned trial Judge on sound reasons:"
6. I agree with the above findings that not only the conduct of the plaintiff in raising this plea of theft of the originals is highly suspicious but even the photostat sought to be produced at the fag- end of the trial are also open to question. The counsel has referred to PLD 1964 Kar. 549 ; PLD 1957 Kar. 631, PLD 1957 Kar. 80, PLD 1981 Kar. 255, 1975 PLC 55, but more of these cases has the remotest connection with the points involved in the case. Here the short point is whether the plea of ownership set up by the defendant on the strength of the so-called purchase from Hanif for a sum of Rs, 7,000 has been accepted by the two forums and if not whether the concurrent findings can be reversed in this second appeal. The learned counsel has not been able to show that the findings that the theft of the originals by the respondent was not proved and the photostat sought to be produce at a very late stage could not be allowed to be produced are in any manner not in accordance with law or suffer from excess of jurisdiction or in manner irregular exercise of jurisdiction.
7. In the circumstances no case is made out to reverse the concurrent findings of the two Courts below. This appeal should be dismissed with costs. The respondent/plaintiff is entitled to possession and the mesne profits as awarded to him in the decree of the trial Court.