' The applicants have called in question the judgment passed by the learned VIIth Additional District Judge, Karachi dated 13-1-1983 allowing the respondents' appeal and setting aside the judgment passed by the learned Fourth Senior Civil Judge and Assistant Sessions Judge, Karachi, dismissing the respondents' suit filed for cancellation of certain documents etc.
2. The dispute between the parties related to a piece of land measuring 450 Sq. Yards, situated in the Commercial Area of Liaquatabad, Karachi. Both the applicants as well as the -respondent claimed right of ownership over the said plot. The respondent filed a suit against the applicants before the learned trial Court claiming transfer of the said plot to him under an order of the Deputy Refugee Commissioner dated 17-4-1953. The case of the respondent was that he had erected a boundary wall on the said plot and constructed three rooms and a shop thereon at his own cost, after physical possession of the same had been given to him by the concerned authorities. After the respondent had enjoyed the peaceful possession of the said property, he was displaced by Anwar Hussain, the applicant No,2 who informed him that Mst. Majeedan, the applicant No,1 had acquired the ownership of the said plot. Thereafter, in 1973 the applicant No,1 filed Suit No,641/73 in the Court of the learned VHIth Civil Judge, Karachi against the respondent and thereafter it transpired that the said applicant had forged an allotment order dated 10-8-1955 and then approached the Administrative Officer, K.M.C. And fraudulantly and collusively obtained a lease deed in her favour thereafter took forcible possession of the plot in question as pointed out earlier.
The respondent then filed a suit for cancellation of the said lease deed before the learned Fourth Senior Civil Judge and Assistant Sessions Judge, Karachi.
3. The learned trial Court framed as many as eighteen issues in the case and after recording of evidence respectively adduced by the parties dismissed the respondent's suit vide its judgment dated 6-4-1980. The learned trial Court held that the respondent had not been allotted the plot in question. It further held that in fact the applicant No,2 was the real allottee and occupant of the plot in question as such all the construction thereon was heRs, Consequently, the learned trial Court came to a conclusion that the claim of the respondent in the suit had not been established and it dismissed respondent's suit accordingly.
4. The respondent then appealed before the learned VIIth Additional District Judge, Karachi who allowed the appeal vide its judgment dated 13-1-1983 and set aside the judgment of the learned trial Court and hence the revision.
5. It may be pointed out at the very outset that when this case came up for hearing, it was disposed of by another learned Judge of this Court vide his judgment dated 5-3-1989 and it was found that the judgment of the learned Appellate Court was not in conformity with the provisions of Order XLI, Rule 31, C.P.C. And therefore the Judgment of the learned Appellate Court was set aside and the case was remanded to the learned District Judge for a fresh disposal. The Judgment of the learned Judge has, however, been set aside by the Hon'ble Supreme Court vide its Judgment in Civil Petition No,518-K/89 dated 25-1-1990 and the case has been remanded to this Court for passing of a fresh order in accordance with the law keeping in view the provisions of section 115, C.P.C.
6. I have now heard Mr. M.G. Dastgir, learned counsel for the applicant and Mr. S.A. Samad, learned Counsel for the respondent.
7. The only ground upon which the impugned judgment has been assailed is that the learned Appellate Court has taken into consideration the certified copies of statements of certain witnesses namely, Hikmatullah Exh.5/42, Matloob Hussain Exh.5/43, Allah Bux Exh.1/43 and Saifur Rehman Exh.5/46 which had been recorded in certain other proceedings without examining the said persons as witnesses in the present suit and such procedure, according to the learned counsel, was not warranted by law. Although Mr. S.A. Samad, learned Counsel for the respondent No,1 is not able to controvert the factual position as stated by Mr. M.G. Dastgir but the learned Counsel has further contended that nothing can be spelt out from the judgment of the learned Appellate Court to suggest that it was in any manner influenced by the said statements or in other words, according to him, the judgment of the learned Appellate Court is not based on sue statements.
8. The judgment of the learned Appellate Court shows that respondent No,1 who had examined himself before the learned trial Court as P.W.1 had produced certified copies of various documents including those of the said statements given by the said persons who had been examined as witnesses in Suit No,834/73 pending between the parties in the present proceedings. It is further evident from the Judgment that the learned Judge has referred to the said deposition given in the said suit. He has also found the authenticity of all the documents produced by respondent No,1 in evidence including the said deposition recorded in another suit as unquestionable since the said respondent had not been cross-examined by the Counsel for the applicants Nos,2 and 3. However, the judgment further shows that the learned Additional District Judge has also taken into consideration the evidence of all other witnesses recorded by the learned trial Court in the present suit. P.W.4 Hisburuddin who, according to the learned Additional District Judge, was an important witness had been examined as a witness by the learned trial Court in the present suit as well as in the said previous proceedings and the statement given by him in the previous proceedings had been introduced into evidence by respondent No,1 as Exh.5/47. It is, therefore, clearly evident from the judgment that the learned Additional District Judge has made reference to the evidence of the witnesses examined by the parties before the learned trial Court as well 'as to the depositions of certain persons recorded in the earlier proceedings. The basic question, therefore, which requires consideration is whether the mind of the learned Judge was influenced by the depositions of the said persons which had not been recorded in the present case because the opposite-party evidently did not have an opportunity to cross-examine the said persons.
9. Mr. S.A. Samad asked me to refer in this regard to the last paragraph in the judgment of the learned Appellate Court as, according to the learned Counsel, the entire case of the parties has been summed up in the said paragraph. The said paragraph reads as follows:- "All issues relate to the allotment and possession of the parties. The appellant has proved abundantly that he is allottee of the suit property since, 1953. Ho has also proved that the possession was delivered to him in 1956. He has paid revenue to the DRC, Taxation Department and K.M.C. Till the time 1972 when he was forcibly dispossessed by the respondent 3 and some other men for which the litigation was started between the parties. On the other hand the allotment produced by the respondents 2 and 3 of the year 1955 had been determined to be forged by the witnesses Hisburuddin who was Allotting Authority in those days. On the contrary Hisburuddin has confirmed the claim of the appellant that he was allottee in the year, 1953. He has also affirmed the claim of the appellant that he was put in possession in 1956. This evidence is accepted by respondent No,1 that the Officer of the K.M.C. Had practiced fraud and issued fraudulently lease.
Deed. Since the respondent No,1 has not opposed appeal at the bar through his arguments as well as through written statement, I come to the conclusion that the lease deed executed in favour of the respondent No,2 was fraudulent and illegal. The issuance of lease in favour of respondent No,2 was without notice, as such the appeal is allowed with costs against the respondents 2 and 3 and in case of the respondent No,1. It is allowed without costs as to the respondent No,1 has admitted the fraud has been committed."
10. As is evident from the above paragraph, hardly an inference as proposed by Mr. S.A. Samad can be drawn therefrom. No doubt, the learned Judge has placed reliance upon the evidence earlier recorded in the case by the learned trial Court, but nothing can be spelled out therefrom to show that the findings of the learned Judge are based purely upon such evidence and his mind was not influenced by the said depositions recorded in the earlier proceedings between the parties. In case of slightest doubt, the judgment would be liable to be set aside because the said depositions which were recorded in different proceedings cannot be read as evidence in the case. There being no controversy in regard to the factual position, the contention raised by Mr. Dastgir appears to be correct.
11. In the result, I accept this revision and set aside the judgment of the learned appellate Court. The case is remanded to the said learned Court for disposal in accordance with the law.