' This revision arises out of the judgment passed by the learned District Judge, Karachi (East) dated 3-9-1986, allowing the appeal filed by one Abdul Hamid Memon, the predecessor of respondent No,5 in this revision and reversing the judgment of the learned Vth Senior Civil Judge, Karachi (East) in Civil Suit No,2439/1982 which has been decreed in favour of the applicant vide judgment dated 29-5-1985.
' Briefly the facts of the case are that, the applicant who is now being represented by her legal heirs (No,1 to 8) had filed a suit against respondents No,2 to 4, seeking declaration that she was entitled to enjoy her rights in the properties, No, G-1, 2, 3 and 1/2 (Entire) J.M. 3/303 (VII D-274), situated in Cosmopolitan Cooperative Housing Society, Karachi which had been transferred to her by virtue of P.T.O. No,17110 dated 25-10-1963 issued in her name by Ministry of Rehabilitation, Government of Pakistan. She sought a further declaration that the sale-deeds dated 9-3-1978 and 27-9-1947 were void as ab initio and inoperative as against the applicant. The applicant also sought mandatory injunction to direct respondents No,3 and 4 to refrain from entering the names of respondents No,1 and 2 in the record of rights maintained in respect of the said property. A perpetual injunction was also sought to restrain respondent No,2 from selling, transferring or encumbering the said property in any manner, except in the due course of law.
3. The said respondents though served remained absent and were declared ex parte.
4. On the basis of the evidence adduced on behalf of the applicant the learned trial Court decreed the applicant's suit against the said respondents vide its judgment dated 30-4-1985. The said Abdul Hamid Memon (respondent No,5) then filed appeal before the learned District Judge, Karachi (East), who allowed the appeal and set aside the judgment of the learned trial Court vide his judgment dated 3-9-1986 as pointed out earlier. Although, an objection was raised before him in regard to the maintainability of the appeal on the ground that the said respondent was not a party to the original suit and thus had no locus standi to file an appeal but the objection was brushed aside by the learned District Judge. It was held by him that as the said respondent was in possession of a portion of the house in question and has also entered into an agreement of sale in respect thereof with the previous onwer of the property, he was thus an aggrieved party and, therefore, the appeal filed by him was maintainable. Reliance was placed by the learned Judge on PLD 1969 SC 65 and PLD 1965 Kar 603, wherein it was held that a party which was not a party to the original suit but was nevertheless an aggrieved party could appeal against the judgment of the Court pronounced in the original suit.
5. The contention of Mr. Rashiduddin Ahmed Khan, learned counsel for the applicant has been that the finding of the learned Appellate Court that the respondent No,5 was an aggrieved party was factually incorrect as nothing can be spelt out from the record to indicate that he had any interest in defending the said suit. Mr. Niazi Abdul Khaliq, learned counsel, who now represents the legal representatives of respondent No,5 on the other hand, has fully supported the impugned judgment, as according to him, the said respondent was in occupation of a portion of the property in question.
6. It is pertinent to point out that although there has been no controversy on the point that respodent No,5 was in occupation of a portion of the property, but, nevertheless it has been conceded by Mr. Niazi himself that there was no sale agreement executed by respondent No,5 and the previous owner of the property. However, the learned counsel, has referred to the earlier litigation in respect of the suit property. In this regard the learned counsel has invited my attention to ground No,(e) of the Memorandum of Appeal which was filed by respondent No,5 before the learned appellate Court. The said paragraph, no doubt, refers to certain previous litigation pending before the various Courts at Karachi, which according to the learned counsel, was in respect of the suit property, however, admittedly, the said respondent was not a party to the said litigation. Mr. Niazi Abdul Khaliq, has nevertheless maintained that in case the applicant had succeeded in her suit, respondent No,5 might have beep ejected from the demised premises. The learned counsel was, however, unable to show that the said respondent has any legal right to occupy the said property. Admittedly, neither he had any interest in the title thereof nor had any tenancy rights in respect of a portion of the property which was in his occupation and his possession at best was that of a trespasser.
7. It is thus clear that respondent No,5 was neither a party to any agreement of sale nor he had any legal character in respect thereof. The observation made by the learned trial Court that he had executed agreement of sale in respect of a portion of the property in his possession is also factually incorrect as has been - conceded by Mr. Niazi Abdul Khaliq, himself, the findings of the learned Judge that the appellant had locus standi to file an appeal are, therefore, ex facie erroneous. The mere fact that the said respondent was in possession of a portion of the property without proof of any legal character was not sufficient to give him locus standi to file the said appeal. The ratio of the two judgments referred to by the learned District Judge in his judgment, is not attracted to the facts of the present case. I am, therefore, clearly of the view that the learned appellate Court had clearly erred in setting aside the judgment of the learned trial Court. Since, none of the respondents who were party to the suit filed by the applicant had appealed against the said judgment of the learned trial Court, the same under the circumstances has attained finality.
8. In the result, I allow this revision and set aside the judgment of the learned appellate Court dated 3-9-1986. The parties are left to bear their own costs.