1. ' By this Revision Application the applicants have impugned the judgment of District Judge Thatta (Mr. Taj Muhammad Abro), dated 24th May, 1982 whereby the appeal filed against the judgment of Senior Civil Judge, Thatta (Mr. S. Hassan Shah Bukhari), dated 7-1-1982 decreeing the suit filed by the respondent against the applicants was dismissed.
2. ' The facts leading to this case are that respondent is a Hindu Public Religious Charitable Trust known as Wadho Akharo Trust with its office at Karachi. The said Trust is managed by a Board of Trustees and Seth Tirathdas is its managing trustee. The Wadho Akharo Trust owns certain properties at various places including Mirpur Bathoro in the Sind Province. The dispute between the parties is over a shop situating at Mirpur Bathoro. The Wadho Akharo Trust claims the disputed shop to be a part of the property belonging to the said Hindu trust. The case of the respondent is that the deceased Haji Muhammad Ismail the predecessor-in-interest of the applicants who had been in possession of the disputed shop was a trespasser as he had occupied the shop illegally at the time when the other property of the said Trust at Mirpur Bathoro was unlawfully taken over by the Evacuee Property Trust Board. Subsequently in compliance with the High Court's decision in Writ Petition No.99/77 though the Trust Board returned the trust property to the respondent Hindu Trust, the said Haji Muhammad Ismail continued to hold the possession of the disputed shop. He was, therefore, given notice dated 11-1-1977 requiring him to vacate the shop but by his reply dated 17-1- 1977 he denied the respondent's title over the disputed shop and refused to vacate the same. The respondent Hindu Trust therefore filed a suit against the said Haji Muhammad Ismail which was decreed vide judgment of the Senior Civil Judge, Thatta, dated 7-1-1982. As stated above the appeal preferred by Haji Muhammad Ismail against the decision of the Senior Civil Judge was dismissed by the District Judge Thatta by his judgment dated 24th May, 1982 and hence this revision petition has been filed in which the correctness of the judgment of both the lower Courts has been contested.
3. ' I have heard Mr. Muhammad Ali Shaikh elaborately in support of the applicants' case and Mr. Zia Abbas submitted his arguments on behalf of the respondent Trust. With the assistance of the learned counsel for the parties I have also gone through the written material available on the record. The learned counsel for the applicants contended that the Courts below have misappreciated and misread the evidence and that their findings are based on surmises and conjectures. He also pointed out that the lower Courts have failed to consider the question of maintainability of the suit and that even the legal effect of non-joinder of the necessary parties has escaped their attention.
4. ' It appears the trial Court framed 7 issues from which the issue No.1 on which the fate of the whole case hinges is to the following effect: "To whom does the disputed shop belong, the plaintiffs or the defendants and his brothers"?
5. ' Both the Courts below have decided the above issue which is of factual nature in favour of the Wadhe Akharo Trust. It is a settled law that concurrent findings of fact of the lower Courts are not disturbed by this Court in exercise of its revisional jurisdiction. However as pointed out above the learned counsel for the applicants vehemently urged that because the findings of the lower Courts are erroneous, being based on misreading and non-reading of the evidence, the inter ference by this Court would be justified. In this connection he has placed reliance on Abdul Salam and others v. Noor Nisa 1983 SCMR 1012 wherein it was held: "It cannot be seriously disputed that where a manifest misreading of evidence on a material point affecting the application of law is involved or material evidence has been altogether ignored, the revisional powers can be appropriately exercised as it would not be proper exercise of jurisdiction possessed by the fact finding Courts. We, on appraisal of the portions omitted or ignored, find that this is abundantly borne out from the record and the interference was called for."
6. It would be noticed that it is the above Hindu Trust which has claimed the disputed shop to be a part pf the Trust Property and in order to establish this claim it filed suit. Therefore the initial burden to prove the title of the Trust over the disputed shop was on the Trust. In support of its claim Seth Tirathdas, the managing trustee has come forward to give evidence. Through him serveral documents have also been produced. Tirathdas has stated in his evidence (Exh.41) that two plots measuring 3911 sq.ft., with temple built on one plot and 4 shops including the disputed shop on the other, which are situate at Mirpur Bathoro are the property of the Wadho Akharo Trust. He has further stated that defendant (Haji Muhammad Ismail) had unauthorisedly occupied the disputed shop when the other trust property was illegally taken over by the Evacuee Property Trust Board. His evidence further shows that although in pursuance of the decision of the High Court, the Trust of which he is the managing trustee got back the trust property from Evacuee Property Trust Board, the defendant Muhammad Ismail did not vacate the disputed shop. He has further stated that the defendant was given notice for vacating of the shop but he denied the title of the Trust over the shop in dispute, claiming further that it is the property of the defendant and his brothers.
7. The first document relied upon by the Trust is the Government notification (Exh.56). It shows that 2 plots one having temple on it and other with 4 shops built on it at Mirpur Bathoro belong to the Wadho Akharo Hindu Trust. Tirathdas has also produced two orders of the High Court (Exhs.43 and 44) which support his statement to the extent that Wadho Akharo Trust was declared as non- evacuee and hence the property owned by the said Trust including of course the shop in dispute is non-evacuee trust property. Another document produced by Tirathdas is the certified copy of the site sketch (Exh.53). It gives location of the two plots of trust with temple and four shops on them.
8. No doubt the extracts from Survey card register (Exhs.49,50 and 52) and statements of Shewaram, Lilaram and Seth Ibrahim (Exh.45) before Enquiry Officer of Survey Department go to show that the above property with exception of the shop bearing S.No.62 belongs to the Wadho Akharo Trust and is in possession of the said Trust. As for the shop bearing S.No.62 which is the disputed shop, the extract from city survey record (Exh.48) shows that it is entered in the said record in the name of defendant (Muhammad Ismail) and his three brothers Muhammad Ishaque, Muhammad Ibrahim and Karamullah. Those entries are shown to have been made on the basis of the survey enquiry made in 1967. According to the said entries, the defendant Muhammad Ismail and his aforesaid brothers were in possession of the disputed shop. Even otherwise the survey record is proof of possession of the person in whose name the property stands in the said record. Even according to the respondent, the defendant Muhammad Ismail who had illegally occupied the said shop had been in its possession since then. Thus there is overwhelming evidence to prove that the disputed shop had been in possession of defendant Muhammad Ismail since prior to 1967 when survey was carried out in Mirpur Bathoro Town.
9. ' As against the claim of the above Hindu trust the case of the defendant Muhammad Ismail set up in his written statement is that the disputed shop was purchased by his father Muhammad Umer from Mst. Hakima widow of Seth Julio Memon. In this connection para. 5 of the written statement which is relevant is reproduced as under:- "That the contents of para. 5 of the plaint are false and are denied. It is also denied that the defendant has ever un authorisedly or illegally trespassed on a shop of plaintff. The defendant is however running a Medical Store in a shop situated on City Survey No.62, Tak No. C admeasuring 37-2 sq.yds. Mirpurbathoro, district Thatta. The said shop alongwith other property was purchased by our father Muhammad Umer for his sons namely Muhammad Ismail (defendant) Muhammad Ibrahim and Muhammad Ishque from Mst. Hakima widow of Seth Jurio Memon through a registered deed, dated, 1st November, 1944. The said plot is entered in the name of defendant in the C.S. record of Mirpurbathoro."
10. ' In support of his plea of ownership of the plot, the defendant has relied not only on the registered sale-deed (Exh.46) but also on his own statement and statements of Haji Muhammad Yakoob and Seth Ejaz (Exh.46) made before the Enquiry Officer of the Survey Department and extract from city survey record as stated above. No doubt the registered sale-deed produced by the defendant shows that his father Muhammad Umer had purchased six shops, four houses and three godowns from Mst. Hakima widow of Seth Jurio Memon for Rs.6,000 in 1944 for the benefit of defendant Muhammad Ismail, and his two brothers, Muhammad Ibrahim and Muhammad Ishaque. The question is whether the disputed shop was one of the shops purchased by the defendant's father under the said sale-deed. Since survey of the Mirpur Bathoro Town was first made in 1967, the shops and other buildings mentioned in the sale-deed are not identified by S.Nos. In absence of Survey record the shops under the sale-deed can only be located by their physical boundaries and area. It appears that geography of the purchased shop which is said to be the disputed shop does not tally with that of the latter shop. It appears from the sale-deed that at least two other shops purchased by the defendant's father in the same transaction situate in the neighbourhood of the shop in dispute. But according to the site sketch the disputed shop stands in isolation and no other shop belonging to the defendant or his father is in the vicinity of that shop. Even the area of the two shops is not same. The disputed shop mentioned in the sale-deed is 48 sq. yards in size whereas the actual area of the disputed shop entered in the survey record is 37-2 sq. yards. The learned trial Judge who had visited the site has disclosed in his report that no other property of the defendant is adjoining the disputed shop and other shops adjoining the latter shop belong to the plaintiff Trust.
11. Thus, it is clear from the evidence on record that the disputed shop is not amongest those shops which the defendant's father C had purchased from Mst. Hakima. If the said shop was really purchased from the above-mentioned lady, some one from that lady's family or any of the attesting witnesses of the sale could have been produced in evidence to pin point the physical location of the purchased shop.
12. Apart from above, the defendant's plea that his father had purchased the disputed shop is contradicted by his own statement that he had given before the enquiry officer of Survey Department. In course of the enquiry conducted by Survey people in 1967, he and his witnesses Haji Muhammad Yaqoob and Seth Ejaz Ali had given statement (Exh .46) that the disputed shop was ancestral property of the defendant and his brothers, which had been acquired by their forefathers prior to the British rule and it was owned by the defendant and his three brothers in equal shares.
13. This statement is obviously poles apart from the defendant's case disclosed in the written statement. As stated above the plea taken by the defendant in the written statement is that the disputed shop was purchased by his father in 1944 for him and his two brothers whereas his statement in survey enquiry shows that he and his three brothers (not two brothers as stated in the written statement) have inherited the disputed shop from their forefathers (not father) who had acquired the same prior to British rule (and not purchased in 1944). In this way the defendant's case stands repudiated by his own statement. After giving my best thought to the above evidence, J am inclined to agree with concurrent findings of the two Courts below that the disputed shop is the property of Wando Akharo Trust.
14. ' In view of above findings that the plaintiff Trust is the owner of the disputed shop, the defendant becomes trespasser and as such he is liable to pay mesre profits to the plaintiff-Trust as decreed by the trial Court.
15. ' The argument of the learned counsel for the applicants that the suit is bad for non-joinder of parties has also no force. Admittedly the defendant alone was in occupation of the disputed shop and was running medical store there. There is no evidence to the effect that the medical store was being run by the defendant Muhammad Ismail and his brothers jointly. Moreover as has been found above, he alone was trespasser in the shop. In these circumstances the suit was rightly brought against the defendant and joining of his brothers was absolutely uncalled for.
16. ' It was also argued by the learned counsel for the applicants that the suit was hit by S.39, Specific Relief Act as no prayer was made by the plaintiff for declaration and cancellation of the sale-deed.
17. It appears that this point was not raised in the lower Courts. No specific plea to this effect was taken even in the written statement. Even if it is allowed to be raised at this stage, it has no force. In view of the finding that the disputed shop is not the one purchased by the defendant's father, the question of seeking cancellation of the sale-deed did not arise.
18. ' For the foregoing reasons the Revision Application is dismissed with no order as to costs.