1. ' This Second appeal brings into challenge the judgment and decree, dated 31-8-1968 passed by the 3rd Civil Judge 1st Class, Karachi and Judgment in appeal passed by the 3rd Additional District Judge, Karachi on 10-11-1969.
2. ' The appellant had filed a suit for declaration and injunction against the respondent claiming that he was allottee of the plot No,A-84/1, Khudadad Colony, Karachi and that the respondent who had made unauthorized construction of Plot No,84/3 and had given the same on rent to one Rafi brother of the appellant but the same had been demolished by K.D.A. and that the respondent had issued distress warrant against Rafi and falsely got the parts of a dismantled automobile attached from the workshop of the plaintiff. It was also alleged in the said suit that the respondent had instituted ejectment proceedings in the Court of Rent Controller against Rafi brother of the appellant and had been bringing the bailiff of the Court to the workshop of the appellant and wrongly serving notice on the wall of the appellant, and that eventually the respondent had got an ejectment order passed against the brother of the appellant for vacating the premises but the said order was not binding on the appellant as he was not a party to the proceedings. An injunction was claimed against the execution. It was not asserted in the plaint. that the appellant had remained unaware of these proceedings.
3. ' The respondent claimed that his quarter had not been demolished by K.D.A. and only two feet in breadth was demolished and the rest of the house was intact which fact was, clear from a letter of .Rafi brother of the appellant who had undertaken to vacate the premises after 12 months after the K.D.A. had demolished the quarter.
4. ' Ten issues were framed by the trial Court. Issues 5, 6, 7 and 9 were relevant issues which were, decided together.
5. ' The order of the two Courts below are concurrent in respect of those issues. The main ground upon which this second appeal was admitted was that the documentary evidence produced by the appellant in support of his case had been ignored. Mr. Yousuf Rafi, learned counsel for the appellant also submitted that the two decisions are based on the misreading of evidence. He particularly referred to the judgment of the trial Court where evidence of Aqeel Muhammad P.W.1 had been considered but only that part of statement was referred where he had admitted that the map and plan of Khudadad Colony did not show A-84/1 on the map. The learned counsel submitted that the Civil Judge had failed to take into consi deration the examination-in-chief of that very witness who had stated that in 1960 there were four portions of Plot No,A-84 and that portions Nos. 84/3 and 84/2 had been demolished. I find that although this witness did make a statement about four portions of Plot No,A-84 in 1960 in examination-in-chief but when he was confronted in cross-examination with the improvement plan of Khudadad Colony he had to admit that there was no mention of Plot No,A-84/1 and only Plot No,A/84 was shown in the map. Therefore, the answer in cross-examination was really the most material part of that statement which has been taken into consideration by the learned Civil Judge and, therefore, there is hardly any misreading in the said judgment.
6. ' In respect of submission that documents produced by the appellant were not considered I find that to the extent of the order of the Civil Judge this submission is correct but the same is not correct so far as the order of the Additional. District Judge in appeal is concerned. He has taken into consideration the share certificate of Khudadad Co operative Housing Society issued in favour of the appellant dated 21st August, 1963 where there is a mention of the appellant being allottee of A-84/1 and so also he has taken into consideration three receipts of taxation starting from 30-6-64 to 30-6-65 which are receipts of tax of K.M.C. where Plot No,A-84/1 is mentioned and they had been issued in favour of Riaz. There is also receipt of 8-3-63 showing payment by Riaz to Co-operative Society. However, all these are receipts of a date after 1962 when the Rent Case No, 1315 of 1962 had been filed by the respondent against Rafi and, therefore, they do not materially change the situation because in fact what is important is whether there was actually demolition of the house of the respondent before 1961 or not. Mr. Yousuf Rafi has tried to emphasize that the basic question was of the numbers of the house and the same has been left out of consideration. I do not agree with this submission. It has been clearly established from the cross-examination of P.W.1 Aqeel Ahined that in 1960 there, were no subdivision of Plot No,A-84 into four portions and, therefore, these subdivisions are of no consequence. It has been further established from the evidence of same Aqeel Ahmed that the demolition by K.D.A. had taken place in April, 1960 and by which time only Plot No,84 had been shown in the map and, therefore, what is important to see is whether the portion belonging to the respondent in which Rafi was a tenant had been actually demolished or not. In this respect there is a very important letter issued by Rafi to Idrees Exh.24 on 8-2-1961 whereby Muhammad Rafi has undertaken in his letter that he will vacate the house of Muhammad Idrees bearing No,84/3. Whether it was in fact house bearing No,84/3 or 84/1 is not so much important as the factum that the portion of Plot No,84 which was in possession of Muhammad Rafi on 8-2-1961 as a tenant of Muhammad Idrees was intact on the said date, which was admittedly after the demolition by K.D.A. of some portion of Khudadad Colony. And hence this letter clearly establishes that the house of Muhammad Idrees was intact on 8-2-1961 which Muhammad Rafi was in occupation of. If Muhammad Rafi was in occupation of the house of the appellant Muhammad Riaz on 8-2-1961 then he would not have written said letter Exh. 24 to Muhammad Idrees undertaking to vacate the said house by 5th Shawal 1380. This according to me is the most important and crucial aspect of-the whole case because otherwise there is a confusion in respect of numbers of which the appellant wants to take advantage.
7. I am, therefore, of the view that the most important aspect of the case has been considered by the two Courts below namely the demolition of the structures by K.D.A. in 1960 and the factum of Muhammad Rafi being in possession, thereafter, of the house of respondent Muhammad Idrees in February, 1961 and, therefore, the documents of a date written in 1963 are not really crucial and relevant to decide the question as to what was in fact demolished in 1961 and what had remained in .possession of Muhammad Rafi as a tenant of Muhammad Idrees in 1961. The documents of a latter date could have been arranged by Muhammad Riaz in order to avoid the ejectment of his brother Muhammad Rafi or may be in the effort to lay his claim to the house which had remained in existence after demolition of some structures by the K.D.A.
8. An important matter in this case is that Muhammad Riaz has been keeping silent upto November, 1964 in this respect although he should have known and had known all along that the respondent Muhammad Idrees was laying claim to the house in possession of Muhammad Rafi since a long time and he had filed even an ejectment case against him and had been claiming rent through distress warrant proceedings and had also filed execution for ejectment of Muhammad Rafi being Execution Application No,136 of 1964. He has awakened himself too late and has to accept responsibility for his slumber.
9. ' In these circumstances this second appeal is hereby dismissed with costs. These are reasons of short order dated 2-5-1984.