1. ' This judgment will dispose of Second Appeals Nos.1 and 2 of 1991 which involved same question of law and facts and are against the common judgment dated 7-8-1991.
2. ' The facts leading to the filing of the above appeals are that the first. Respondent hid filed suit against appellant for possession. The case of the first respondent as set out in the plaint, is that the first respondent is owner of house bearing Custodian No, IC-160/173 corresponding to C.S. No, 1802/1803, situated in Mohallah Manuabad, Nawabshah, was an evacuee property. The said house was transferred to him by the Settlement Authorities vide PTD No, 13378/1092 dated 26-6-1974.
3. According to the first respondent on or about 1965, the appellant who had no house, approached to him and requested to provide a temporary shelter. The first respondent allowed him to live in the said house on its upper storey portion. After some time, the first respondent asked the appellant to vacate the said house and hand over its possession to which the appellant requested him to allow some period so that he could make alternate arrangement for his accommodation. According to the first respondent, the appellant thereafter fraudulently applied to the Settlement Department for the transfer of the upper storey of the said house through a NCH Form under a fake No, 173/A dated 31-12-1973. However, his application was rejected by the Additional Settlement Commissioner vide order dated 10-5-1978. It was also alleged that the appellant had misused the permission and licence granted by him and had refused to hand over the possession of the house to him. In these circumstances the first respondent filed the above suit. The appellant resisted the suit by filing his written statement and denied the allegations levelled against him. The appellant submitted in his written statement that the property bearing Custodian No,IC- 160/173 corresponds to CS No, 1802/1803 Ward 'A', Nawabshah but in fact C.S. No, 1803 corresponds to Custodian No,IC/173-A, Nawabshah. He further stated that the first respondent is transferee of C.S. No, 1802 only. He further stated that written statement of first respondent given the possession of the house being his maternal uncle and in fact the entire house was occupied by the appellant and first respondent was given the lower portion of the said house by him. The appellant denied that first respondent had put him in possession in 1965 on the upper storey of the house. The further case of the appellant as set out in the written statement is that there was an agreement between him and first respondent that the entire house was got transferred from the Settlement Department and he had paid an amount of Rs,6,000 to the first respondent under a written agreement. Subsequently the first respondent resiled from his commitment and therefore the appellant applied to the Settlement Authorities for the' transfer of the house in his possession and the same has been transferred to him. He further contended that he had paid its price and other Government dues and final transfer order had been issued in his favour. He further claimed to be the owner of the upper storey of the said house.
4. ' During the pendency of the above suit, the first respondent filed another suit bearing No,269/1979 against the Government of Sindh through Deputy Settlement Commissioner, Settlement Commissioner Sindh, Deputy Settlement Commissioner Nawabshah and the present appellant praying therein that the transfer documents of the portion bearing Custodian No,DS No, IC-160-173 in favour of the appellant as DS No,IC/173A under Scheme No, VIII was wrong and illegal and as the same was not available for transfer to the appellant being already transferred to the first respondent. The first respondent further pleaded that the Settlement Commissioner was not competent to cancel the PTD issued in favour of the appellant. The above suit was contested. By the appellant wherein he reiterated the same facts as have been given in his written statement in Suit No,140/1978. Both the suits were consolidated by order dated 25-10-1981. On the pleadings of the parties the following consolidated issues were framed by the trial Court:- "(1) Whether house bearing Custodian No,IC-160/1973 corresponding C.S. No, 1802/1803, has already been transferred to the plaintiff as one unit?
(2) Whether G.S. No, 1803 and its upper storey correspond to Custodian No,IC/173-A and is rightly transferred to the defendant?
(3) Whether IC/173-A was available for transfer to the defendant under Settlement Scheme VIII?
(4) Whether defendant is liable to be ejected from premises C.S. No,1803 and its upper storey?
(5) Whether plaintiff is entitled to the relief claimed?
(6) What should the decree be?"
5. ' The parties led their evidence in support of their respective contentions. The t rial Court on assessm ent of the evidence decided issues Nos. 1, 4 and 5 in the affirmative while issues Nos.2 and 3 were decided in the negative. On issue No,6, suit was decreed. On issues Nos.1 and 2 learned 1st Senior Civil Judge, on assessm ent of the evidence, has come to the conclusion that the house bearing Custodian No,IC-160/173 is corresponding to C.S. No, 1802/1803 which is the suit property and admittedly transferred to first respondent in 1960 and it was not available for transfer under Scheme No,VIII. The trial Court placed reliance on documents Exhs. 67, 68 and 66 which are true copies of the enquiry form and PSR. He found that the authenticity of these documents is not disputed by the learned counsel appearing for the appellant. Apart from this, the learned trial Court also reproduced para. 3 from the order of Settlement Commissioner wherein he came to the conclusion that upper floor accommodation was part of IC No,
173. In this view of the matter, he held that house bearing Custodian No,IC-160 and 173 corresponds to C.S. No, 1802/1803 which is suit property and admittedly transferred to first respondent and the structure on the roof of C.S. No,1803 is the part and parcel of property bearing Custodian No, 173 corresponding to. C.S. No, 1803: ' Issue No,3 is whether IC/173-A was available for transfer to the defendant/appellant under Settlement Scheme No,VIII. This issue was decided in the negative. The finding on this issue is based on Exh. 61 which is order of Settlement Commissioner. It has come on record that the burden was on him which he failed to discharge. The learned Senior Civil Judge decided issue No,3 in the negative and consequently on issue No,4 he found that the appellant is not in occupation of property as a tenant of the plaintiff/firstrespondent and therefore he cannot take advantage of any notice as required under repealed Act 1958, Sindh Rented Premises Ordinance, 1979 or under section 106 of the Transfer of Property Act. Thus the defendant/appellant being unauthorised and illegal occupant was liable to be ejected from the property bearing C.S. No,1803. In view of findings on issues Nos. 1 to 4, the suits were decreed. PTO No, 14332 dated 29-9-1977 was thereby cancelled .
6. The appellant was directed to hand over peaceful vacant possession of the suit property to the first respondent within 30 days from the date of the decree.
7. ' The appellant being aggrieved against the impugned judgment and decree dated 18-1-1987 went in appeal before the District Judge Nawabshah which was ultimately heard by the IlIrd Additional District Judge, Nawabshah. The learned Additional District Judge, on re-assessment of the evidence, has affirmed the findings of the trial Court.
8. ' Being aggrieved with the consolidated judgment and decree of the Additional District Judge, the defendant has filed the present appeals.
9. ' I have heard Mr.Z.K. Jatoi, learned counsel appearing for the appellant in support of the above appeals. I have perused the judgment of the Courts below. Mr. Z.K. Jatoi learned counsel for the appellant has raised the same contentions as were raised before the first appellate Court. There are concurrent findings of fact by the Senior Civil Judge and the Additional District Judge that the property bearing No, C.S. No,1802/1803 corresponded to Custodian No, IC-160/173 and both C.S. Nos.
10. 1802/1803 had already been transferred to the first respondent. It was held that it was not available for transfer under Settlement Scheme No,VIII. Their findings are based upon evidence of PW 1 who produced certifed copies of order passed by Settlement Commissioner Sindh on 27-5-1979 as Exh.
11. 61, order passed by Deputy Settlement Commissioner, Nawabshah as Exh. 62, certified copy of Form for issuance of Compensation Book as Exh. 63, order declaring both houses as one unit as Exh. 64, transfer order, enquiry form as Exhs. 65 and 66, extracts from Survey Register Exhs. 67 and 68, true copy of PTO as 69 and certified copy of PTD as Exh.
70. Appellant also produced NCH Form as Exh.
94. The judgments of the two Courts below show that the evidence adduced by the parties in this regard was fully discussed by both the Courts and they accepted the evidence of first respondent in preference to appellant. These are all findings of fact arrived at by the Courts below. It can not be said that either the lower appellate Court has not considered any material piece of evidence or has construed the evidence in such a manner on the basis of which no reasonable man can come to the conclusion which has been arrived at by the lower appellate Court. The submissions of the learned counsel for the appellant are in the realm of appreciation of the evidence. The appreciation made by the Courts below does not appear to be in any way perverse so as to be interfered with by this Court in second appeal. In my view, the finding of the lower appellate Court that the appellant has not been able to prove that upper floor is separate property and was available for transfer under Settlement Scheme No,VIII, is a pure finding of fact based on considerations of all the relevant materials on the record and the said finding, therefore, cannot be interfered with in these second appeals. Mr. Z.K. Jatoi tried to raise new pleas namely identity was not established as no attempt was made to summon surveyor and/or officer from Settlement Department which were not raised in the Courts below. Mr. Z.K. Jatoi fairly conceded that these pleas were not raised in the written statement before the trial Court nor the same were taken in evidence. He further conceded that the appellant did not summon surveyor. It has come on record that the property in suit stood transferred to the first respondent and the same was not available for transfer under Settlement Scheme No, VIII. The other contention that the Settlement Commissioner had rightly transferred the same to the appellant, is devoid of force.
12. ' The above are the reasons for my short order dated 3-11-1991 dismissing both the appeals in limine.