1. Both the revision applications arise out of same set of facts and therefore, they have been heard together and are disposed of by this single consolidated judgment.
2. Briefly stated the common facts are that the applicant filed Suits Nos,262 of 1984 and 578 of 1985 in. the Court of First Senior Civil Judge, Karachi (West) seeking declaration that the applicant has possessory title, over Plot No,11, Sector 4/F, Orangi Township, Karachi and Plot No,31, Sector 4/F Orangi Township, Karachi. Further, relief was sought to the effect that Sher Muhammad son of Muhammad Akbar and Faqir Muhammad son of Muhammad Akbar (brothers inter se) may be evicted from the possession of respective plots and the possession of the respective plots may be restored to the applicant/plaintiff. Permanent injunction was also sought against defendants Sher Muhammad, Faqir Muhammad or any other person on their behalf restraining them from interfering with the possession and enjoyment of the applicant/plaintiff of the said plots.
3. The case of the applicant/plaintiff in both the suits was that he was in possession and occupation of the two plots. Each plot was measuring 101 sq. yards. The applicant/plaintiff constructed boundary wall and one room over each plot. According to applicant he fell seriously ill in the year 1982 and shifted to Patel Para, where his son and other family members were living. Both the plots were entered in the name of applicant/plaintiff in the Excise and Taxation record and PT-1 were issued in his name. In his absence his two plots were forcibly and unauthorisely occupied by the two brothers namely Sher Muhammad and Faqir Muhammad, the respondents in the present revision applications. They in collusion with K.M.C. Staff got the respective plots regularized in their names. The applicant submitted applications to the K.M.C. for cancellation of allotments in the name of respondents and an inquiry was initiated.
4. The respondents Sher Muhammad and Faqir Muhammad contested the suits contending that the suit plots were allotted in their favour by K.M.C. on 28-11-1982 and thereafter they raised construction.
5. On the pleadings of the parties, following issues were framed:- Suit No,262 of 1984
(1) Whether plaintiff was in occupation of Plot No,11, Sector No,4/F, Orangi Township and constructed a room and boundary wall over the same?
(2) Whether the plaintiff was dispossessed wrongfully from the said plot by the defendant?
(3) Whether the defendant has any right over the suit plot?
(4) Whether plaintiff is entitled to the relief claimed?
(5) What should the decree be?
6. Suit No,.578 of 1985
(1) Whether the plaintiff is the owner of the suit plot?
(2) Whether K.M.C. have regularized the plot in favour of defendant vide its Letter No,AD/805/82, dated 28-11-1982?
(3) Whether defendants forcibly occupied the suit plot?
(4) Whether plaintiff is entitled to the relief claimed?
(5) What should the decree be?
7. The parties led their respective evidence. All the issues in both the suits were decided in favour of the applicant/plaintiff and both the suits were decreed.
8. While deciding Suit 262 of 1984 the trial Court after examining evidence on record which included the evidence of P.W. Abdul Karim Sub.Inspector, Excise and Taxation Department, held that the applicant/plaintiff Dawood Shah was residing on Plot No,11 Sector 4/F, Orangi Township at the time of survey and his name in PT-I, was entered on the basis of physical survey. The learned trial Court further held on the basis of evidence on record that the applicant/plaintiff was in possession of the suit plot and the defendant unauthorisely occupied the same. The learned trial Court further observed that the defendant has taken changing versions at different times. He has taken different pleas pertaining to the duration for which he was in possession of the suit plot. Sometimes he claimed the possession for 6 years, and on other occasions for 3 years, 5 years and 13 years. The learned trial Court came to the conclusion that the defendant has fabricated the documents pertaining to his possession. The learned trial Court further held that the regularization letter issued in favour of defendant was cancelled after holding inquiry and the suit tiled by the defendant assailing the cancellation of regularization letter was also dismissed. The trial Court ultimately held that the possessory title of the applicant/plaintiff was established and the defendant/respondent was a mere trespasser and was liable to be ejected.
9. Likewise, the learned trial Court while deciding Suit No,578 of 1985 held that the evidence of plaintiff's witness on the point of possession of plaintiff/applicant over Plot No,31, Sector "4/F, Orangi Township, had gone unchallenged. It was observed that the defendant in the said suit did not step into the witness-box personally to disprove the possession of the plaintiff and the evidence of attorney of the defendant was full of contradictions. Similar findings were given in this suit also as in the earlier suit. It was held that the regularization letter in respect of .suit plot was obtained illegally which was subsequently, cancelled and the suit filed assailing the cancellation of regularization was also dismissed. Similar relief was allowed in this suit also as in the earlier suit.
10. Being aggrieved with the judgment and decree of the trial' Court, the respondent preferred first appeals being Civil Appeal No,77 of 1992 and Civil Appeal. No,53 of 1994, respectively. Both the appeals were decided by the same First Additional District Judge, Karachi on 29-2-1996. Both the appeals were allowed, the judgment and decree in both the suits were set aside and both the suits were directed to be dismissed.
11. The learned First Appellate Authority framed the following points for determination:--
(1) Whether respondent has right over the suit property and entitled for the possession?
(2) Whether the impugned judgment and decree requires interference?
(3) What should the order be?
12. The First Appellate Court held that admittedly the suit plots belong to K.M.C. and the title in the suits plots does not vest in any of the parties. It was regularized in the name of respondents Sher Muhammad and Faqir Muhammad in the year 1982 and the said, regularization was subsequently, cancelled. On the basis of this material, the learned First Appellate Court observed that the respondents were in possession of the suits plots and further held that the possession of the applicant/plaintiff over the suits plots was not established. The First Appellate Court further observed that the plaintiff/applicant produced K.M.C. receipts for the period from 1984 to 1987 but the suits were filed prior to the said date. The First.Appellate Court further observed that Dawood Shah, did not file any FIR. or complaint against respondents tor committing trespass by breaking Open the lock. The learned First Appellate Court further disbelieved the evidence of tenants inducted by applicant Dawood Shah. The First Appellate Court ultimately came to the conclusion that Dawood Shah had no title when he filed the suit for possession and that the respondents were claiming title over the suit property on the basis of possession. It was further observed that the suit for recovery of possession can be filed under sections 8 and 9 of the Specific Relief Act. It was further observed that it was not the case of possession under section 9 of the Specific Relief Act and under section 8 of the Specific Relief Act, a person entitled to the possession of specific immovable property may recover in the manner prescribed by Code of Civil Procedure. It was held that under section 8 of the Specific Relief Act, the Court can grant possession to the person having title only and there is no law whereby a person being in possession can acquire a title except in case of adverse possession. It was further held that it was not a case of adverse possession and the suit property was owned by K.M.C., therefore, the parties can approach the K.M.C. for allotment and lease in their favour and should seek redress from K.M.C. The First Appellate Court observed that the above legal position escaped the consideration of trial Court with the result chat the trial Court did not decide the issues correctly. The findings of the trial Court on Points Nos,1, 2 and 4 were reversed and the Points Nos,1 and 2 framed for determination by the First Appellate Court were decided in affirmative. The judgment and decree of the trial Court in both the suits were set aside and both the suits were dismissed.
13. Being aggrieved with the judgment of the First Appellate Court, the applicants have preferred these revision applications.
14. By consent, the learned Advocates for the parties have submitted their written arguments. The learned counsel for the applicant has submitted that the learned First Appellate Court, has totally ignored the evidence available on record and thus, it is the case of non-reading of the material evidence which has rendered the findings of the First Appellate Court, to be illegal and perverse. He has submitted that there is undisputed evidence on record that applicant Dawood Shah was in possession of both the suit plots. This fact is established with the evidence of official witnesses who have stated that physical survey was conducted and applicant Dawood Shah was found in possession of the suit plot. Such entries were made in the record of Excise and Taxation Department and on the basis of physical survey, P.T-I. was issued in favour of applicant Dawood Shah. He has further submitted that it is also undisputed tact that the respondents got the suit plots regularized on the basis of misstatement and misdeclaration. On the application of applicant Dawood Shah, inquiry was initiated and it was proved that Dawood Shah was in possession of the suit plots and the respondents had fraudulently obtained the regularization order from K.M.C. which were cancelled after issuance of show-cause notice to the respondents. It is also undenied fact that the respondents filed the suit assailing cancellation of regularization in their favour but the suits were dismissed and subsequently, the K.M.C. granted leases in favour of applicant Dawood Shah. The respondents contested the matter up to the High Court but were not able to obtain any relief. The learned counsel for the applicant has vehemently argued that the First Appellate Court, has ignored all this material available on record and it is a case of total non-reading of evidence.
15. He has submitted that the impugned findings of the First. Appellate Court are totally perverse and against the material available on record. He has further contended that the observation of the First Appellate Court, that the title of the suit plots belonged to K.M.,C. is also against the material available on record. He has contended that documents on record fully establish that the applicants were in possession of the suits plots when the physical survey was conducted and subsequently, leases of the suit plots have been granted in favour of the legal heirs of the applicant Dawood Shah. He has further submitted that the leases in favour of the legal heirs of Dawood Shah are subsisting and have not been challenged by anyone with the result that the entitlement of the applicant Dawood Shah and through him in favour of his legal representatives is without any cloud.
16. The learned counsel has forcefully argued that the First Appellate Court's order being totally illegal and perverse is liable to be set aside.
17. The learned counsel for the respondents is not able to rebut any contention raised by the learned counsel for the applicant. His main contention is that the findings of the Appellate Court, should not be interfered by this Court in exercise of revisional jurisdiction. In support of his contention he has placed reliance on the following judgments:-
(1) Abdul Qadir v. Haji Ghulam Qadir 1996 CLC 1216 (Karachi),
(2) Muhammad v. Mst. Banuk Naz KhatoQn 1989 CLC 1819 (Quetta) S.B. and
(3) Abdul Jabbar v. Muhammad Latif 1986 CLC 603 (Lahore) S.B.
18. A perusal of the above judgments shows that they are of no help to the respondents. In the case of Abdul Qadir (supra), a learned single Judge, has held that in the event of conflicting judgments of two Courts below, findings recorded by Appellate Court should ordinarily be preferred to findings of trial Court unless same was not supported by legal evidence or was based on surmises and conjectures. However, after giving this proposition of law, the learned single Judge held that, in the cited case, the evidence on record clearly indicated that Appellate Court had misdirected itself by taking different view from the view taken by trial Court and committed a gross error by misappreciating evidence adduced by parties. Appellate Court by adopting a view not supported by material on record had committed jurisdictional error of law thereby causing gross injustice which earnestly deserved interference by High Court in exercise of its revisional jurisdiction in order to do substantial justice and to obviate miscarriage of justice. The revision application was allowed by the learned single Judge of this Court and the appellate decision was set aside while the judgment of the original Court was restored.
19. In the case of Muhammad v. Mst. Banuk Naz Khatoon (supra), learned single Judge of the Quetta High Court observed that when reasoning arrived at by Appellate Court were sound and plausible, normally interference in the appellate Judgment was not warranted in revisional jurisdiction of High Court. There can be no cavil to the proposition of law. However, in the present case, the findings of the First Appellate Court are totally perverse and suffer from misreading of material available on record and, therefore, the principle is not applicable.
20. In the case of Abdul Jabbar v. Muhammad Latif (supra), learned single Judge of the Lahore High Court held that the view taken by First Appellate Court after scrutiny of plaint being not arbitrary, shall not he interfered with in exercise of revisional jurisdiction. I totally agree with the view of the learned single Judge of the Lahore High Court, but the principle is not attracted to the present case.
21. After careful examination of the material available on record I am constrained to observe that the observations made and the findings given by the First Appellate Court are so perverse that it is totally shocking to the judicial conscience. The trial Court had considered the entire material available on record and had rightly held that the K.M.C. to whom the subject plots belonged had accepted the right of plaintiff/ applicant over the suit plots and has shown the plaintiff/applicant as owner in its record. The First Appellate Court, however, ignored overwhelming evidence on record and gave a finding which is not sustainable in law at all. A grave injustice has been done by the First Appellate Court, and therefore, I am of the considered opinion that it is a fit case in which this should interfere in exercise of its revisional jurisdiction to undo the miscarriage of justice and obviate the same.
22. Consequent to the above discussion, the First Appellate judgment and decree in both the cases are hereby set aside and the judgments and decrees of the trial Court in both the suits are hereby restored. Both the revision applications are allowed with cost throughout.