1. ' By this common judgment the above cited two Civil Revision Applications are bring disposed of.
2. ' These two Civil Revision Applications arise out of a common judgment passed by First Additional District Judge, Karachi South on 31-3-1991 whereby he had allowed the two appeals filed by respondent Haji Muhammad Sharif (being Civil Appeals Nos. 80 of 1987 and 82 of 1987). The facts in case in nutshell are to the effect. That the applicants in these revision applications, namely, Mst.
3. Mariam, Mst. Hasina, Mst. Ayesha and Mst. Fatima had filed Suit No,3207 of 1985 in the Court of Civil Judge, Karachi South with the prayer as under:- "(a) To pass a judgment and decree against the defendant in favour of the plaintiffs declaring that the plaintiffs are in possession of a portion of a plot of land with construction thereon bearing No, R.C.3/35 as shown 'A' in red in the sketch Annexure 'X' prior to 20-12-1958 and have also acquired right title and interest over adverse possession and the defendant has no right, title, interest or claim over the said portion of land;
(b) To grant permanent injunction against the defendant, his agents, subordinates or employees from interfering or disturbing the possession of the plaintiffs over the portion of the plot of land with construction thereon or dispossessing the plaintiffs of demolishing the construction in any manner whatsoever and blocking the common passage in any manner Z whatsoever as he has no right, interest or claim thereon;
(c) Costs of the suit;
(d) Any other relief that the Hon'ble Court may deem fit and proper under the circumstances of the case."
4. ' Another suit, bearing Suit No, 3208 of 1985, was filled by respondent Haji Muhammad Sharif (now dead). This suit was in fact as counter suit to the earlier Suit No,3207 of 1985 filed by the applicants.
5. Since the subject-matter and the parties in both the suits were the same, the original Court consolidated the two suits and the same by common judgment, by the IXth Civil Judge, Karachi South vide order dated 24-1-1987 whereby Suit No, 3207 of 1985 was decreed while the counter Suit No, 3208 of 1985 filled by Haji Muhammad Sharif was dismissed. This judgment was Challenged by two appeals abovementioned and these appeals were decided by the First Additional District Judge, Karachi South, setting aside the decision of the original Court and holding that Haji Muhammad Sharif was entitled to possession and mesne profits of the land dispute while the applicants Mariam and others were not found to be entitled to the declaration of the title to the land in dispute on the basis of adverse possession and for other reasons.
6. ' The following issues were tackled by the original Court as well as the First Appellate Court:--
(1) Whether the plaintiffs are in occupation of the portions of Plot Nos. R.C.3/35 and R.C.3/41, as a trespasser?
(2) Whether the plaintiffs are in occupation of the premises since 20-12-1958. If so its effect?
(3) Whether the plaintiff occupied the portion of Plot No, R.C.3/35 in 1975?
(4) Whether the plaintiffs are entitled to notice under section 30 of D.P. Act?
(5) Whether the plaintiffs have acquired title over the suit premises by adverse possession?
(6) Whether the open space is the part of defendant's plot?
(7) Whether the plaintiffs have acquired rithts of easements over the open space/passage, if so, its effect?
(8) Whether the suit is not maintainable?
(9) Who is entitled to relier claimed?
(10) Whether the plaintiffs have any cause of action against the defendants Nos.1, 2 and 3?
(11) Whether the suit is barred by limitation?
(12) Whether the suit is barred by section 32 of the Transfer of Property Act?
(13) Whether the defendant is entitled to recovery of mesne profits at the rate of Rs,10 from the date of suit from the defendants?
(14) What should the decree be?"
7. ' After the said decision of the learned First Additional District Judge, Karachi South, the present Applications were filed in this Court on 28-5-1991.
8. ' The main challenge to the order of the First Additional District, Karachi South from the side of the Applicants was that it was in conflict with the original judgment of the Civil Judge and that the First Appellate Court had ignored and side tracked the evidence on record and that he had decided the case against the applicants on conjecture. It was further contended that the applicants had gained the easement rights over the property in dispute in the shape of a right of passage and that the same was not considered. Lastly, the applicants claimed that the applicants had matured their title over the land in dispute under the law of adverse possession, which was also not considered.
9. At the stage of hearing of a revision under section 115 of the C.P.C., this Court shall not reopen the factual controversies unless the same are based on principles which deny justice like misreading or non-reading of evidence, erring on legal platform and that the challenged judgment was neither legal nor proper. This revision was admitted on 30-5-1991 on the ground that the two judgments of the Courts below were conflicting and, as such, the evidence had to be reconsidered.
4. While proceeding with this matter, the learned counsel for the applicants assisted me in going through the evidence recorded by the original Court and argued that evidence relied upon by the original Court in the shape of ration cards produced by the applicants have been ignored by the First Appellate Court and submitted that such ration cards prods prove the adverse posession of the applicants. The second point with regard to the non-consideration of the evidence which was pointed out to the effect that the applicants, although were entitled to transfer of the property in dispute (which was evacuee property) in the capacity of displaced persons, but the respondent had deprived them as he had acted as their leader and had got the property in dispute included in the property known as "Cluster" and the entire cluster property measured about 12,000 sq. Yards and that the applicants were hardly occupying an area of 12' x 9' which, in all fairness, should have been transferred to them as their evacuee share.
10. ' The learned counsel for the respondent controverted the case of the applicants by stating that the said "cluster" property was lawfully transferred to 141 occupants who were occupyants the same as a "cluster" in the year 1947-48 when refugees had come from India just after partition and were rehabilitated by the Government in vacant places left by Hindus. The counsel for the respondent invited attention of the Court to the fact that among 141 transferees the name of any of the applicants does not appear and that even if it be accepted for argument sake that the respondent had acted as leader of the refugees, there was no reason for the applicants to remain silent for all these years till the rehabilitation laws were repealed and they tailed to get the property in dispute transferred in their name. Apart from that, the plea of adverse possession was totally denied and it was contended that the applicants were, in fact, in occupation of an adjacent property which is a non-evacuee property and even if they are in possession of the property in dispute which is a part of the cluster property, the applicants have not fulfilled the conditions of remaining in adverse possession against the respondent. Therefore, the First Appellate Court has rightly corrected die mistaken judgment of the original Court and that valid reasons have been advanced by the First Appellate Court for the same including the rejection of evidence of ration cards.
11. ' I have considered the arguments of the learned counsel from both sides and have also gone through the record of the case and have considered the documentary as well as oral evidence.
12. ' The alleged evidence of production of ration cards has been rightly discarded by the First Appellate Court for the reason mentioned in the judgment and obviously the original Court had not taken care of examining the said ration cards from a critical point of view. Apart from that, the original Court had erred in law in holding the applicants to have matured their title under the law of adverse possession as in fact no such evidence appears to be recorded to prove that the possession of the applicants fulfilled all the conditions required to prove adverse possession. Firstly the possession has to be proved to be hostile to the knowledge of the other party and that it presupposes about the title of the property against whom claim is being made to have snatched his title by remaining in adverse possession. Recently the law of adverse possession has not been approved by our superior Courts to be a just and fair law when examined from Islamic principles. In the case of Maqbool Ahmed v. Government of Pakistan 1991 SCM R 2063 the Shariat Appellate Bench of the Supreme Court of Pakistan has held as under:{{URDU TEXT}} In the case of Yar Muhammad v. Shabbir Hussain 1992 CLC 798 it has been held that "in order to claim ownership of property through adverse possession, the claimant had to establish that his possession was open and hostile to original owner to his knowledge".
13. ' Here, the case of the applicants has been based on fraud as they have alleged that the respondent being leader of the refugees had deprived them of their right of allotment as he had ill- will against them, thus, they are not accepting the respondent to be the owner of the property, in dispute.
14. In order to prove the fraud allegedly committed by the respondent, the same should have been pleaded expressly and proved and appropriate relief applied for but the same is lacking in this case. I have given my due consideration to the two judgments which have been challenged by these two revision applications, I do not find that the judgment of the original Court was justified and at the same time also I do not find any fault with the judgment of the First Appellate Court.
15. ' Consequently, these two revision applications wherein the judgment of the First Additional District Judge, Karachi South has been impugned, fail and the said judgment is upheld while the judgment of the original Court passed by the IXth Civil Judge, Karachi South is rightly set aside. The revisions we dismissed.