' The background of this case is that respondent Mst. Haseen Zamani Begum had filed Suit No, 1590/78 against Mohammad Ismail (predecessor-ininterest of the applicants) in which she had claimed that the disputed house was the property of her late father Jamaluddin who had gifted it to her through a written gift-deed and sought the possession of the house from the said Muhammad Ismail Khan and Mst. Chunni Begum. In that suit Mohammad Ismail Khan and Mst.
Chunni Begum had taken up the defence that late Jamaluddin had gifted the house to them. That suit was dismissed by the learned Civil Judge, Karachi on 30-9-1981 and it was held that neither the plaintiff nor the defendants had proved their claim that late Jamaluddin had gifted the house to either of them. Mst. Haseen Zamani Begum went in appeal before the IVth Additional District Judge, Karachi (Civil Appeal No,372 of 1981) which was also dismissed on 4-5-1985 and Revision Application No,164/85 filed by Mst. Hasecn Zamani Begum was also dismissed by this Court on 27- 1-1986. Now, plaintiff Mst. Hasecn Zamani Begum and defendant No,2 Mst. Chunni Begum were real sisters and this Court while dismissing the revision application had also casually observed that while the claim of Mst. Haseen Zamani Bcgum that late Jamaluddin had gifted the house to her had not been proved, yet she as one of the legal heirs of her deceased father might be entitled to her share in the said house and could seek the possession of her share. Thus, the first round of litigation having been over with the rejection of revision application of Mst. Haseen Zamani Bcgum by this Court on 27-1-1986, she alongwith her two other sisters Mst. Mobeena Bano and Mst. Lqbal Zamani filed Suit No,511 of 1986 against the .Sons and daughters of Mohammad Ismail Khan and Mst. Chunni Bcgum who both had died in the meantime. These sons and daughters, Iqbal Khan and others were impleaded as Defendants Nos.1 to 8. However, even this suit was dismissed by learned trial Court vide judgment dated 14-5-1988 mainly on ground that late Jamaluddin was not owner of the land on which the house in dispute had been built and, therefore, the parties to the suit, who derived their title from late Jamaluddin, had inherited nothing because the deceased did not own the land on which the house was built. Civil Appeal No,194/88 filed by Mst. Haseen Zamani Begum and her other two sisters was partly allowed by learned District Judge (South) Karachi vide judgment dated 12-3-1989. Learned District Judge held that even though late Jamaluddin was not the owner of the land but he was nevertheless owner of the superstructure built thereon and, therefore, the parties were entitled to inherit at least this superstructure, even if they were not entitled to inherit the land on which the house built and, therefore, learned District Judge held the appellants/plaintiffs entitled to inherit the share in the house and he directed that if all the L.Rs, of deceased Jamaluddin were not prepared to live together, the house should l sold and the amount of the sale price should be divided between the parties in accordance with their share. It is against this judgment that the present revision application is directed.
2. The suit-house is in possession of the defendants/applicants and the plaintiffs/respondents claimed a share in it through inheritance and sought its possession by partition on the ground that it was the property of their deceased father Jamaluddin. All the eight defendants are the sons and daughters of plaintiffs' another sister Mst. Chunni Begum who and her husband Mohammad Ismail Khan had died before the institution of the suit. The relationship between the parties is shown in the following pedigree-table:- IAMALUDD1N{{TABLE}} I I I I Mst. Haseen Mst. Mobina Iqbal Mst. Chunni Zamani Bano Zamani Begum Plaintiff Plaintiff Plaintiff I No,
1. No,
2. No,
3. I I I I I I Iqbal In tizam Intizar Anwar A kh laq I Khan Khan Khan Khan Khan I Def. Def. Def. Def. Def.
No,
1. No,
2. No,
3. No,
4. No, 5. i I Shahnawaz Rehana Sultana Khan Begum Begum Def. Def. Def.
No,
6. No,
7. No, 8.
3. It is an admitted position that late Jamaluddin was not the owner of the land on which he had built the house. He was an encroacher and had built the house on the encroached land and the house is now in the possession of the sons and daughters of Mst. Chunni Begum. The plaintiffs/respondents filed Suit No, 511 of 1986 which was dismssed on 14-5-1988 but appeal filed by respondents/plaintiffs was partly accepted by learned District Judge vide judgment dated 12-3- 1989. It is this judgment which is being challenged in this revision application.
4. The only point raised in this revision application is as to whether the 5.
6.
7.
8.
9. house in dispute, having been built by late Jamaluddin on land which did not belong to him and of which he was an unauthorised occupant, could be inherited by his legal heirs.
5. It was argued by learned counsel of the applicants that late Jamaluddin had only possessory title which came to an end with his death and that he could not bequeath what he did not own.
Reliance was also placed on the judgment reported as AIR 1937 Nagpur 281 (P.B. Marwadi v. S. B.B.
Pardeshi Teli) to show that the applicants are in peaceful possession of the disputed house and shall be deemed to have possessory title. On the other hand, learned counsel of the respondents claimed that, notwithstanding the lack of title of late Jamaluddin in the plot of land, he had constructed house from his own resources and, therefore, he could bequeath it to his legal heirs.
6. After hearing learned counsel of the parties I am of the view that late Jamaluddin could not transfer a better title, even by way of inheritance, to his legal heirs than he himself had over the land which was nil. As such, the plot of land could not be inherited by his heirs. The applicants, being successors-inpossession of the land, shall be deemed to be in unauthorised possession in their own right. As for the superstructure which the deceased had raised from his own resources, even it could not be inherited by his heirs because it has not separate entity from the land over which it stands. "Immovable property" has not been exhaustively defined in any piece of law but Article 3 (25) of the General Clauses Act states that immovable property include "things attached to earth" and this phrase "things attached to earth" is defined in Section 3 (b) of Transfer of Property Act as follows:- "S.3 (b) 'Attached the the earth' means---
(a) .............................
(b) Imbedded in the earth, as in the case of walls or buildings; or
(c) ......................
7. Sub-clause (b) of section 3 (b) leaves no doubt in my mind that the superstructure raised by late Jamaluddin has no separate entity of its own; it is integral part of the land which, as pointed out above, cannot be inherited by the heirs of late Jamaluddin.
8. Learned counsel of the respondents referred to the observations of learned Civil Judge under issue No,8 in his judgment dated 30-9-1981 in Suit No,1 590/78 where he held that plaintiff had failed to prove the gift but she was "ontitled to her share in the house as co-sharer". Learned counsel also referred to the following observations in the last but one para of the judgment, dated 4th May 1985 in Civil Appeal No,372/81 of learned Additional District Judge "The. ;Appellants (i,e. The respondents in the present revision application) and other legal heirs of late Jamaluddin are co-sharers in construction material of house in question". Finally, he also referred to the last para of the judgment passed by this Court In Revision Application No,164 of 1985 whereby, while dismissing the revision application of the present respondents, it was held that the applicant was at liberty to file suit for partition and separate possession if he is so advised. Learned counsel then contended that all the three judgments, while they were against the respondents inasmuch as their claim to be owners on the basis of gift was rejected, nevertheless held that they were co-sharers and entitled to their share in the inheritance. These observations arc of no avail to the respondents since in all the three proceedings (the suit, the appeal and the revision) the question at issue was the alleged gift in favour of Mst. Haseen Zamani Begum. The question of co-sharership was not at issue and only a passing reference was made to it and it is no more than obiter dicta.
9. In view of what has been held above, I would accept the revision application, restore the findings of learned Civil Judge on issue No,3 that none of the parties inherit anything in the disputed house and would, therefore, partly set aside the judgment dated 12-3-1989 passed by learned Additional District Judge Karachi South in Appeal No,194/8K The suit of the respondents thus stands dismissed.