1. ' The dispute in this case concerns a quarter bearing No,749-N, Korangi Township, Karachi. It was allotted to one Nanney Khan by the Karachi Development Authority under a Rehabilitation scheme and its price was to be paid in monthly instalments. The said allottee died on 10-8-1971 leaving behind Respondent Abdur Rashecd, his son from his first wife, and Mst. Shakooran, Applicant herein, his widow as the only legal heirs under the Muslim Law of Inheritance. The deceased allottee had paid instalments of the quarter in question upto July, 1964. After the death of her husband Mst.
2. Shakooran applied to the Karachi Development Authority, Respondent No,2 herein, for the transfer of the quarter in question in her name which was allowed. She paid the remaining instalments and lease deed was registered in her favour.
3. ' Respondent Abdur Rasheed filed a suit for declaration and possession in the Court of VIlith Civil Judge, Karachi on 30-1-1974. He claimed that the quarter in question on the death of Nanney Khan devolved on him and Applicant Mst. Shakooran to the extent of 3/4th share and 1/4th share respectively as the only legal heirs of the deceased but the Applicant Mst. Shakooran misrepresented to the Karachi Development Authority and obtained a registered lease deed in her favour on 9-11-1973. He therefore sought judgment and decree against the Karachi Development Authority and the Applicant Mst. Shakooran as under:- "(a) Judgment and decree for a declaration that after the death of Nanney, allottee of Quarter No,749-N, Korangi Township, Karachi, the Plaintiff is entitled to 12 annas share in Quarter No,749-N as his legal heir.
(b) Judgment and decree for a declaration that the action of Defendant No,1, in transferring the ownership of the said quarter in favour of Defendant No,2 exclusively by executing and registering the Lease in respect of the Quarter on 9-11-1973 is illegal, void and inoperative and cancelling the same.
(c) That the Plaintiff be given possession to the extent of 12 annas share in Quarter No,749-N, Korangi Township, Karachi.
(d) Cost of the suit be granted.
(e) Any other. Relief or reliefs which this Hon'ble Court deems fit and proper in the circumstances of the case be granted."
4. ' The Karachi Development in their written statement admitted that the quarter in question was transferred to Mst. Shakooran as she was a co-allottee and property was gifted to her by Nanney Khan in lieu of her dower debt. They generally denied the other averments made in the plaint.
5. ' Applicant Mst. Shakooran stated in her written statement that Nanney Khan was a disabled person and was looked after by her. He had gifted the quarter in question to her due to her services and in lieu of her dower debt. She denied other averments made in the plaint.
6. ' On the basis of the pleadings of the parties, the trial Judge settled the following 6 issues:-
(1) Whether the K.D.A's dues were paid by the Defendant No,2?
(2) Whether the suit quarter was allotted to deceased Nanney Khan and he held the same till his death?
(3) Whether the quarter in suit devolved on Plaintiff and defendant No,2 in proportion to 3/4 and 1/4 respectively after the death of Nanney?
(4) Whether the quarter in suit was validly allotted and leased out in favour of Defendant No,2 by Defendant No,1, after the death of the allottee Nanney?
(5) Whether the suit as framed is maintainable?
(6) What should the decree be?
7. ' All the three parties led evidence and the trial Judge dismissed the suit with costs.
8. ' The facts concerning the first two issues settled by the trial Judge were in fact admitted by the parties and it neither required framing of these issues nor any evidence was required by law to be led by either of the two parties on these issues. The trial Judge dealt with Issues Nos,2, 3 and 4 together. While discussing such issues he held that Iqrarnama, Exh.7/1 was executed by deceased Nanney Khan during his life-time and it supported the case of the Applicant to the extent that the quarter in question was gifted to her in lieu of her services and dower debt. The deceased had in fact divested himself of the quarter, the only immovable property that he had and therefore at the time of his death he left no property to be inherited by Applicant or Respondent Abdur Rasheed. He further recorded that deceased Nanney Khan had mentioned name of the Applicant as his heir and had disclosed the name of Respondent Abdur Rasheed to be also his heir as the allotment order. The Respondent No,2 had validly transferred the quarter to the Applicant while Respondent Abdur Rasheed could not even produce succession certificate. On the basis of such facts he concluded that Respondent Abdur Rasheed did not have any case at all. On the basis of such findings he dismissed the suit filed by Respondent Abdur Rasheed.
9. ' Respondent Abdur Rasheed being aggrieved by the judgment and decree mentioned hereinabove filed an appeal which was accepted by the judgment dated 29th February, 1984 passed by the Ex Officio Additional District Judge, Karachi. He allowed the appeal and decreed the suit as prayed. The Appellate Judge found that the Iqrarnama, Exh.7/1, which was the basis for the claim of Mst. Shakooran in respect of the quarter in dispute was a fabricated document as according to him this document was for the first time produced in the suit. He was also not satisfied that the document in question was actually signed by the attesting witnesses. He further held that the allotment order, Exh.6/1, did not indicate that the quarter in question was jointly allotted in the name of deceased Nanney Khan and his wife and, therefore, stand taken by Karachi Development Authority to that effect was factually incorrect. On the basis of such conclusion he set aside the judgment and decree passed by the trial Judge and decreed the suit. It is Against his judgment that the present application under section 115, Civil Procedure Code has been filed by the Applicant.
10. ' Mr. Abrar Hassan, Advocate for the Applicant, contended that the allotment order, Exh.6/1, shows Mst. Shakooran to be co-allottee of the quarter in question and such fact is also stated in para. 3 of the Written Statement filed by Karachi Development Authority. According to him Iqrarnama, Exh.7/1, was sufficient to prove that the quarter in question was transferred to Mst. Shakooran by deceased Nanney Khan by way of a valid gift.
11. ' He also contended that gift of property made in lieu of "Haq Mahar" is in fact "Hiba Bil-Aiwaz" recognised by Muslim Law. In support of his such cotention he referred to the cases reported in the PLD 1984 SC 392 and PLD 1976 BJ 37.
12. ' Mr, Aziz Khan, Advocate appearing for the Respondent No,1, contended that Applicant had mainly based her case on the basis of Iqrarnama, Exh.7/1, which has been rightly found to be a fabricated document by the Appellate Court. He further contended that the Karachi Development Authority had examined Abdul Waheed, one of its officers, whose evidence clearly indicates that the mutation was not ordered on the basis of Iqrarnama. According to him, Applicant was not able to substantiate stand taken by her in the Written Statement. He supported the judgment passed in Appeal. He referred to the cases reported in AIR 1949 Privy Council 159 and PLD 1975 SC 678.
13. ' The Advocate appearing for the Applicant, has not been able to point out any ground on the basis of which finding of facts arrived at by Appellate A Court can be disturbed by this Court in exercise of its jurisdiction under section 115, Civil Procedure Code. On examination of Exh.6/1, which is the original allotment order, Mst. Shakooran is shown to the wife of deceased Nanney Khan and dependent on him. She has not been shown to be the coallottee as is stated by the Karachi Development Authority in their written statement. The Iqrarnama, Exh.7/1, although is sdid.To have been executed by Nanney Khan in his life-time but no action seems to have been taken on that till after he was dead. This document has been held by the Appellate Judge to be a fabricated document and no reliance can, therefore, be placed on it. As for the only point raised by Mr. Abrar Hassan that gift of property made in lieu of "Haq Mahar" is to be treated "Hiba Bit Aiwaz under the Muslim Law, there can be no two opinions about it. In this case gift itself has not been proved and the document relied upon by the Applicant cannot be made the basis of such gift.
14. ' As pointed out earlier the Appellate Court has decreed the suit as prayed. The Respondent Abdur Rasheed had claimed a share of 12 annas in the quarter. The Appellate Court by granting the decree as prayed for has exercised its jurisdiction with material regularity as the Applicant Mst.
15. Shakooran is entitled to 1/8th share in the property and not 1/4 share as decreed.
16. ' For the foregoing reasons there is no merit in this application which is dismissed with no order as the costs except that the share of the Applicant in the quarter as widow of deceased Nanney Khan will be to the extent of 1/8th share and the decree may be modified to that extent only.