' DEEDAR HUSSAIN SHAH, J.---This petition for leave to appeal is filed against order of the learned High Court of Sindh dated 11-1-1999 whereby R.A. No,263 of 1987 filed by the petitioner was dismissed.
2. Brief facts of the case are that lease hold rights in an open plot of land measuring 12304.7 yards (over 968 sq.Yards) bearing Survey No,316 in Garden East Quarters Karachi belonged to Radha Krishna Shewaram, Madhavdas Shewaram Jagumal Shewaram and Atmaram. At the time of independence, due to migration of above lessees to India some time in 1947, the leasehold rights in the property became evacuee property and vested in the Custodian. The leasehold rights of the said plot were allotted to the respondent by Deputy Rehabilitation Commissioner for the construction of a residential house thereon under allotment Order No, 4725 ARC dated 6-12-1950.
Subsequently sale deed dated 1-6-1960 was registered in the office of the District Registrar Karachi and Permanent Transfer Deed in his favour was also issued by the Settlement Department.
Respondent constructed a residential bungalow on the said plot in 1951-52 according to a plan approved by the authorities. He left some open space on open three sides of the building except on back side. Adjoining Plot bearing No,315 was allotted to the petitioner who encroached upon an area of about 68.5 sq.Yds. Out of Plot No,316 by constructing a boundary wall. When the respondent came to know about the encroachment, he got the plot surveyed. During this process the petitioner approached the Deputy Rehabilitation Commissioner for allotment of the encroached land to him but his request was turned down. He then approached the respondent and requested to allow his gate and boundary wall to remain there for some time. He undertook not to make any further construction and also to remove the encroachment whenever required by the respondent to do so.
In view of such an undertaking, the respondent agreed to this request temporarily. After some time the respondent asked the petitioner to remove the encroachment but instead of complying with it he started construction thereon. The respondent approached the Court and filed suit for possession before the VI-Civil Judge First Class Karachi which was contested by the petitioner who denied the averments made by the respondent. Trial Court settled the issues and recorded evidence. Finally suit was decreed in favour of the respondent. Petitioner assailed the judgment and decree of Civil Judge before Ex-officio Additional District Judge in Appeal No,145 of 1982, who dismissed the appeal. Petitioner challenged the above judgment in Revision Application which also did not find favour with the learned Judge of the High Court, hence the present petition for leave to appeal.
3. Mr. Iqbal Kazi, learned Senior Advocate Supreme Court for the petitioner, contends that the Courts below have not properly analyzed, examined and assessed the evidence; that the petitioner is in adverse possession of disputed portion of the plot since 1949 and as such he is owner. Learned counsel referred two cases of Indian jurisdiction viz., Annada Mohon Roy Chowdhury v. Kina Das (1923) Calcutta Weekly Notes 66) and Ayyagari Venkata Suryanarayana v. Makka Venku Naidu (97)
1926 I.C. 253).
4. Mr. M.G. Dastgir, learned Advocate Supreme Court for the caveator pointed out that after migration of Hindu lessees, the property vested in the Custodian and the Deputy Rehabilitation Commissioner transferred the property in favour of the petitioner free from all encumbrances; that PTO and PTD in favour of the respondent were respectively issued on 1-10-1960 and 28-10-1963 and the record of rights was also mutated in his favour; that plea of adverse possession raised by the learned counsel for the petitioner is not supported by any evidence recorded by the trial Court.
Learned counsel pointed out that the petitioner approached the Collector and Deputy Rehabilitation Commissioner on 16-5-1992 through application dated 24-4-1992 mentioning therein that he had been given the opinion by the City Deputy Collector to have the encroached area allotted to him and amalgamated it into his plot but his request was also turned down.
5. For just decision of this petition for leave to appeal, it would be pertinent to refer to a legal notice, dated 1st November, 1971 sent by the respondent's advocate informing the petitioner that "you had included the strip of land within the compound of your bungalow by constructing a boundary wall thereon and by fixing a gate at the Road side end... That you then approached my client and requested him to let your boundary wall and the gate stand there for the time being. In view of the very cordial friendly relations which had developed between you and him, my client allowed the said constructions to stand till such time as he did not require it for his own use... My client hereby revokes the license granted to you and calls upon you to immediately stop the cementing of the land and to remove the wall and the gate within 24 hours of the receipt of this letter. In evidence before the trial Court, the petitioner stated asunder:-- ' "I applied for regularisation of the encroachment area. It is not a fact that I have not applied for regularisation. I see Exh.7 and say that it is same. The same application which I had moved. It is a fact that the excess mentioned in Exh.7 was the same for which I was informed by the Inspector of C.D.C. Department and I applied to the Administrator of Rehabilitation."
' He also admitted that he received legal notice of the plaintiff in 1971. The request of the petitioner for allotment of piece of land was rejected by the Assistant Rehabilitation Commissioner in the following manner:-- ' "I am directed to inform you that the encroachment cannot be legalised. The building may, however, be allowed to stand, for the time being, as purely 'unauthorised 'construction' provided Mr. Iftikhar Hussain Khan, allottee of Plot No,316 Garden East has no objection to it."
6. By narration of above facts, it appears crystal clear that the respondent became owner of the plot in 1960 which was an evacuee property and lease deed was also executed in his favour..
Respondent also served legal notice and finally filed suit on 6th November, 1971. Since at the time of independence the property was declared as evacuee property and vested in the Custodian, the same was lawfully transferred in favour of the respondent.
7. The claim of the petitioner that he is in adverse possession of the disputed portion of the plot is belied by the evidence adduced by the parties and documents Exhibited before the trial Court as such is not tenable.
8. The respondent being the neighbourer of the petitioner and due to cordial relations did his best to get the possession of his property by approaching the petitioner and issuing the legal notice, but of no avail. Consequently, the respondent approached the Court of law to get justice.
9. With due deference with the cases cited by Mr.Iqbal Kazi, the same are quite different and distinguishable and not applicable to the present petition. There are three concurrent findings of fact recorded by the trial Court, first appellate Court and the learned High Court of Sindh. The Courts below have properly appreciated the evidence referred to hereinabove. We also do not find any misreading or non-reading in the evidence or any jurisdictional error in the impugned judgment which is unexceptionable.
' For the above facts, circumstances and reasons, the petition is dismissed and leave is refused.