1. ' The plaintiffs have filed this suit for possession, declaration, permanent injunction and mesne profits. The plaintiffs are the owner of the Plot No,42(1-D/15) Sheet No,25, Liaquatabad, Karachi. This plot was occupied by plaintiff No,1 who started using it as Godown for storing construction material.
2. Subsequently he got this plot regularised in the year 1975 in the name of plaintiff No,2. In 1963 defendant No,1 was appointed by the plaintiff as Chowkidar on the aforesaid plot. A room was constructed to accommodate defendant No,1 Gul Rehman for his residence as Chowkidar. The plaintiff also raised boundary wall on the plot. Defendant No,1 continued to remain in service and occupied the said quarter as their licensee and with the permission of the plaintiff, defendant No,1 brought his wife also who started residing therein. In the year 1976 the plaintiffs constructed two more rooms and rented out the same to one Allah Mahar to be used as workshop. The said Allah Mahar vacated the said rooms after 8 months and defendant No,1 was allowed to occupy these rooms also at his request and defendant No,1's son Shamsul Qamar, defendant No,3 in the suit, was also allowed to live therein. So far as the open space is concerned, it continued to be used by the plaintiffs for storing building material, to be guarded by defendant No,1. In the year 1984 when the plaintiffs, decided to raise construction and applied for approval of the plan, they asked defendant No,1 to vacate the premises and shift to another plot of plaintiff No,1 situated at Tin Hutti. Defendant No,1 did not give any reply thereto. Subsequently when the plaintiff sent his men for bringing some building material lying in the plot, defendant No,1 did not allow them to do so and claimed to be owner of the plot. The plaintiff therefore, reported the matter to the police. When the police made inquiry from the defendants they showed documents pertaining to electricity, gas and water connection in the name of his wife, defendant No,2, although payment thereof was made by the plaintiffs. The plaintiffs also came to know that defendant No,1 had applied for grant of lease for the said plot in the name of his wife. The defendants are alleged to be in wrongful possession of the plot. It is alleged that the defendants have illegally retained building material belonging to the plaintiff, valued at Rs,1,50,000. Mesne profits are claimed at the rate of Rs,500 per month.
3. ' The defendants filed their written statement jointly and have denied the averments made in the plaint and haVe claimed that the defendant No,2 is the owner of the plot and had raised construction thereon. It is alleged that the defendants are in possession of the plot since 1958. The plaintiffs were allowed to store construction material in the courtyard of the plot on payment of Rs,500 per month since June, 1981. The plaintiffs are alleged to be the tenants. It is alleged that the plaintiff No,1 is in arrear of rent since January 1982. It is denied that the construction was raised by the plaintiffs. It is alleged that the plaintiffs had obtained the lease of the plot by fraud and misrepresentation. It is stated that plaintiff No,1 had appointed defendant No,1 as Chowkidar for his building projects in progress at various places in Karachi and defendant No,1 performed his duties in such capacity. It has been denied that plaintiff No,1 had appointed defendant No,1 as Chowkidar on the plot in suit. It is further pleaded that defendant No,2 is the owner of the plot and defendants Nos. 1 and 3 are residing therein alongwith their children for the last 27 years. It is denied that they are living there as licensees. It has been denied by them that Allah Mahar was tenant in respect of the portion of the premises in dispute. It is stated that the said Allah Mahar has never been in occupation of the property in dispute in any capacity whatsoever. It is claimed that plaintiff No,1 has failed to pay rent from January 1982. In January 1984 plaintiff No,1 gave temptation to the defendants that is consideration of long services of defendant No,1, he wanted to raise pucca construction on the site of the said plot as a gift or reward to defendant No,1 for the long and selfless services rendered by defendant No,1, He asked the defendants to vacate the plot for the said purpose. The defendants asked plaintiff No,1 to give such arrangement in writing as they were doubtful about the honesty of plaintiff No,1. Plaintiff No,1 became angry on such request of defendant No,1 and began to threaten them. Plaintiff No,1 terminated the services of defendant No,1 and snatched his National Identity Card and other belongings and pushed him out of the building project situated at Soldier Bazar, Karachi where he was performing his duties at that time. Later on it was revealed that the plaintiffs by misrepresentation and fraud and in collusion with Deputy Commissioner's Office and Excise and Taxation Department managed to obtain lease of the said plot in the name of plaintiff No,2. It is stated that defendant No,2 is going to file suit for cancellation of lease of the said plot in appropriate Court of law. It is stated that defendant No,2 at his own costs and expenses had obtained the Electricity and Sui Gas connection and the plot in dispute is shown as their address in NIC and Ration Card. It is further stated the P.T.I. is in the name of defendant No,2 and she has been paying taxes regarding the said plot. It is stated that this Court had passed an order in the suit for removal of the building material from the plot in question. It is stated that defendant No,2 had made various applications to the Deputy Commissioner, Assistant Commissioner, Karachi West and Martial Law Authorities and also to the Excise and Taxation Department and K.M.C. for cancellation of the lease of the said plot obtained by plaintiff No,2 but it has been denied that the plaintiff is entitled to the lease, ' On pleadings of the parties the following issues were framed:---
(1) Whether the plaintiff No,2 is the owner of the property in suit?
(2) Whether the plaintiffs obtained transfer of plot in suit by fraud and misrepresentation and in collusion with the office of Deputy Commissioner and other officials concerned?
(3) Whether the defendants are in possession as licensees from plaintiffs' title?
(4) Whether the defendants are estopped from challenging plaintiffs' title?
(5) Whether the plot in suit ever remained in possession of the plaintiffs?
(6) Whether the defendants Nos.1 and 2 first occupied the plot in suit in or about 1958 when it was open and lying vacant and since then they are in continuous and independent occupation and possession of the same in their own rights?
(7) Whether the construction over the said plot was made by the defendant No,2 or the plaintiffs?
(8) Whether the electricity and gas connection were taken on the said plot by the defendant No,2 at her own costs or the plaintiffs?
(9) Whether the property and Municipal taxes in respect of the plot in suit have been paid by the defendant No,2 as owner of the said plot or by the plaintiff?
(10) Whether plaintiffs are entitled to mesne profits? If so, to what amount?
(11) To what relief, if any, are the plaintiffs or any one of them entitled? My findings on the above Issues are as under:---
(1) In affirmative.
(2) In negative.
(3) In affirmative.
(4) In affirmative.
(5) In affirmative.
(6) In negative.
(7) As under.
(8) Not proved.
(9) Not proved.
(10) In affirmative. Plaintiffs are entitled to mesne profit at Rs,500 per month.
4. ' Plaintiff No,1 has been examined as witness at Exh.4 and has produced documents at Exhs.4/1 to 4/12. Defendants remained absent and their side was closed.
5. ISSUE NO.1.
6. ' Exh.4/1 is letter, dated 30-12-1975 issued by the office of the Mukhtiarkar, Karachi West, addressed to plaintiff No,2, calling upon her to pay occupancy charges at Rs,7 per square yard for Plot (No,42/25(I)-D/15). Exh.4/2 is `Sanad' issued by the Government of Sindh in the name of plaintiff No,2, Exh.4/3 is certified copy of the Extract from the property register maintained by the Revenue Authorities and site plan Exh.4/4 shows the location of the plot in dispute. The above document establish the title of plaintiff No,2 in respect of the property in dispute. Exh.4/5 is an Extract of the entries maintained by the Excise and Taied on Department in P.T.I. Register under the provisions of West Pakistan Urban Immovable Property Tax Act, 1959. In these documents the name of plaintiff No,1 is mentioned in the column of ownership. As per the entries in the said document the building is shown to be in occupation of plaintiff No,1. Exh.4/7 shows that plaintiff No,2 had preferred appeal before the Director, Excise and Taxation at Karachi against the assessment carried out by the Excise and Taxation Department in respect of the plot in dispute. Exh.4/9 which is an extract from P.T.I. Register above the name of plaintiff No,2 as owner of the plot and construction of the two rooms in occupation of the owner. Exh. 4/6 pertains to payment of property tax, Exhs.4/10 and 4/11 establish payment of taxes by plaintiff No,2, Exh.4/12 states that property tax has been paid up to June, 1984. The aforesaid documents coupled with the deposition of Abdul Latif Khan, establish the ownership of plaintiff No,2 in respect of property in dispute. This issue is, therefore, answered in affirmative.
7. ISSUE NO.2: ' The burden of proof of this issue is on the defendants. Since they have failed to lead evidence, this issue is replied in negative.
8. ISSUES NOS.3 and 4: ' It has been deposed by plaintiff No,1 that the plaintiffs had permitted the defendants to occupy the plot in question in view of the fact that defendant No,1 was in employment of the plaintiff No,1 and was inducted in the suit plot to look after the said plot and the building material kept in the plot in dispute. The defendants, therefore, are the licensees of plaintiff No,2 and since they were inducted in such, they capacity are estopped from challenging the title of plaintiff No,2. Both the issues are accordingly replied in affirmative.
9. ISSUE NO.5: ' The evidence of the plaintiff shows that the plot was occupied by the plaintiff, and construction was raised by plaintiff No,1 for keeping building material and defendants were put in possession by plaintiff. This issue is, therefore, answered in affirmative.
10. ISSUE NO.6: ' In view of the above findings, this issue is answered in negative. ISSUE NO.7: The plaintiff in his deposition stated that the construction was raised by him and since there is no rebuttal, it is held that the construction over the said plot has been raised by the plaintiffs.
11. ISSUE NO.8: ' No evidence has been brought on record and as such this issue is not proved.
12. ISSUE NO.9: ' In view of Exhs.4/9 to 4/11 it is held that the property tax and so also Municipal Tax have been paid by the plaintiff No,2. Exh.4/12 further shows that property tax up to June, 1984 was paid by plaintiff No,2. It is held that all the said taxes have been paid by plaintiff No,2.
13. ISSUE N0,10: Plaintiff No,1 in his deposition stated that in case the property had been rented out with construction it would have fetched rent at Rs,500 per month. It is also established that the defendants are licensees and on filing of the suit the licence stood revoked and the defendants are in unauthorized possession of the suit plot. They are therefore liable to pay mesne profit at Rs,500 per month.
14. ISSUE NO.11: ' In view of the above findings of the aforesaid issues, the suit of the plaintiffs is decreed as prayed with cost excepting that so far as prayer clause (c) is -concerned the mesne profits are granted from the date of suit, pendente lite and till delivery of possession to the plaintiffs at the rate of Rs,500 per month.