MUHAMMAD ASHRAF LEGHARI, J.--- The applicants through this Revision Application have challenged the judgment dated 30.4.1998 passed by Vllth Additional District Judge, Hyderabad in Civil Appeal No. 183 of 1994 whereby he allowed the appeal filed by the respondents Nos. 3 to 11, by which the judgment and 'decree dated 31.3.1994 and 18.4.1994 respectively passed by IVth Senior Civil Judge, Hyderabad Sindh were set aside. The Trial Court. By the aforesaid judgment had dismissed the suit filed by the respondents Nos. 3 to 11.
2. Briefly, the facts giving rise to this Revision Application are that respondents Nos. 3 to 11 filed suit against Mst. Mumtaz Jehan the predecessor/mother of present applicants Nos. 1 to 5 and respondents Nos. 1 and 2 for declaration and injunction valued at Rs.400/- in respect of House No. C/739 and C/741.
3. During pendency of suit applicant Mst. Mumtaz Jehan died and her legal representatives, the applicants Nos. 1 to 5 has been brought on record as applicants.
4. Respondents Nos. 3 to 11 in their suit, urged that they had filed L.H. Form for transfer of House No. C1739, which was in the joint occupation of all the four brothers namely Muhammad Ramzan, Qadir Bux, A.I Bux and Muhammad Usman. The said house was transferred in the name of Ramzan and PTO was issued in the year 1960 and after payment of price PTD was issued in his favour in the year 1966.
5. In the year 1969 his brother Qadir Bux received notice from Mst. Mumtaz Jehan wherein she demanded read at the rate Of Rs.150/- per month as he had become her statutory tenant. She claimed that she had purchased Plot No. C/741 in an auction held on 27.6.1968 which was confirmed on 11.7.1968 and as such she had become owner of the plot. On receiving such notice, the defendant Qadir Bux made inquiries in regard to the correctness of number of his house in his occupation from the office of City Survey Hyderabad and came to know that correct city survey number of the house in his occupation was C/741 and part of C/740.
6 He, therefore, moved Deputy Settlement Commissioner, Hyderabad, for correction of number of his house in transfer deed, who issued notice to Mst. Mumtaz Jehan. After that Deputy Settlement Commissioner visited the site alongwith city survey inspector in presence of parties and after going through the entire record recommended the cancellation of PTD issued in favour of Mst. Mumtaz Jehan. On recommendation, the Settlement Commissioner Sindh called the partie's and after hearing them cancelled PTD vide order dated 31.5.1973 issued in favour of Mst. Mumtaz Jehan.
7. Being aggrieved by that order Mst. Mumtaz Jehan filed a Constitutional Petition Bearing No. 711 of 1973 in the High Court of Sindh against the cancellation of PTD. This Constitutional Petition was allowed and the parties were directed to resort the jurisdiction of Civil Court for seeking proper relief for challenging the issuance of PTD. They stated that they were the L.Rs. Of Muhammad Ramzan who died issueless. One Katcha house comprising of four rooms, courtyard, two kitchens and one wash room were occupied by the sons, daughters and widow of their ancestor Haji Mehmood. The house in question was occupied by their ancestor namely Haji Mehmood he was succeeded by one Abu his elder son. After the death of said Abu the house was occupied by Muhammad Ramzan, the next eldest son of Haji Mehmood. In the year 1959 joint L.H. Form was filed by all the four brothers namely Muhammad Ramzan, Muhammad Usman, Qadir Bux and A.I Bux for the transfer of said house. The number indicated in the form was C1739. The applicant Mst. Mumtaz Jehan was transferred a plot which was occupied by one Nawaz Khan.
8. After the death of Muhammad Ramzan he was succeeded by respondents Nos. 3 to 11. In the year 1969, they received notice from Mst. Mumtaz Jehan that she has purchased plot No. C1741 in auction held on 27.6.1968 which was confirmed on 15.7.1968 she then filed a Rent Application Bearing No. 289/1969 before Rent Controller Hyderabad against Qadir Bux, the brother of Muhammad Ramzan on the ground of default in payment of rent.
9. Notices in the suit filed by respondents Nos. 3 to 11 were issued to defendants/applicants, who filed written statement wherein it was pleaded that the defendant/applicant Mst. Mumtaz Jehan was owner of property No. C/741 which she had purchased in open auction which was lateron Confirmed by Settlement Department and permanent transfer deed was issued in her favour. The Settlement record shows that Qadir Bux was the occupant of said plot hence he became the statutory tenant of Mst. Mumtaz Jehan. As such he was liable to pay rent to her at the rate of Rs.150/- per month . In order to avoid the payment of rent, they started creating clouds over the title of applicant Mst. Mumtaz Jehan. The cancellation of her PTD was organized by the plaintiff in collusion with settlement authorities. They had no power to cancel PTD. She further pleaded that petition was filed in High Court wherein it was observed that Civil Court was proper forum to give decisions in regard to the issuance of PTD. The property transferred to the applicant Mst. Mumtaz Jehan was quite 'different from the property transferred to respondents. Property in possession of Qadir Bux was transferred to her and not the property in possession of Nawaz Khan. It is stated in the written statement that Nawaz Khan had left the possession long back and handed over to Qadir Bux. She further raised legal pleas regarding the maintainability of suit and pleaded that the plaint may be rejected under Order 7, Rule 11, CPC.
10. On the pleadings of the parties, the. Trial Court framed the following issues:-
(1) Whether the suit is not maintainable under the law?
(2) Whether this Court has no jurisdiction to try the matter?
(3) Whether the suit is barred by Section 22 of and 25 of D.P. Act?
(4) Whether the suit is hit by Section 42 of Specific Relief Act?
(5) Whether the suit is not properly valued?
(6) Whether the plaintiff ever applied for the transfer of plot C/741 at Khai Road, Hyderabad?
(7) Who is in possession of Plot No. C/741 Khai Road, Hyderabad at the time of auction as recorded tenant?
(8) Whether the property bearing C.S. No. 741 stood transferred to Muhammad Ramzan under a wrong number of C.S. No. C/739 in 1959- 60?
(9) Whether the plaintiffs are the legal/heirs.
(10) Whether the plaintiffs are the legal/heirs representatives of deceased Muhammad Ramzan?
(10) What should the decree be?
11. After framing the issues, the plaintiff/respondents Nos. 3 to 11 examined Qadir Bux P.W.1, Aziz-ud- Din P.Ws.-2, Muhammad Bachal P.W.3, Mehmood P.W.-4 'and Syed Mehmood All P.W.-5 whereas.
Applicants examined P.W.-1 Tariq Hussain. The parties closed their sides.
12. On examining the evidence of parties, the Trial Court dismissed the suit filed by the respondents whereas the Appellate Court set aside the said judgment and decreed the suit filed by the respondents Nos. 3 to 1 1 .
13. I have heard Mr. Qazi Munawar A.I, Advocate for the applicants, Mr. Hamid Hussain, Advocate for respondents Nos. 3 and 11 and Mr. Rasheed A. Qureshi learned Asstt. A.-G. For official respondents Nos. 1 and 2.
14. Mr. Qazi Munawar All argued that the suit filed by the respondents was barred by time. It was legal issue and the point of limitation could be agitated at revisional stage. He argued that his C.M.A. No. 797/2002 may be allowed and it may further be observed that the Civil Court had no jurisdiction and he may be allowed to take-up the point of limitation at this stage. It is submitted that plot No. C/741 was transferred to Mst. Mumtaz Jehan and after payment of price PTD was issued in her favour which was wrongly cancelled by the Depot Settlement Commissioner. The suit was filed by the respondents in order to avoid payment of rent. The Settlement Authorities had become functus officio after issuance of PTD. He pointed out certain misreadings and non- readings in the record and according to him the discrepancies pointed out by him tantamount to misreading of the record. He further urged that the Appellate Court had given observation that the Plots Nos. C/739 and C-741 were contiguous but that is not borne out from the record. The plaintiff had applied for house No. C/739 which was transferred to them. He stated that no new material was given by the respondents in their suit but they produced some documents which were already considered by the Trial Court and the Honourable High Court whereby the PTD issued in favour of Mst. Mumtaz Jehan was restored. Reliance has been placed upon the cases of Mst. Ghulam Bibi and 'others v. Sarsa Khan and others (PLD 1985 SC 345), Hakim Muhammad Buta and another v.
Habib Ahmed and others (PLD 1985 (SC) 153).
15. Mr. Hamid Hussain pleaded that limitation point was neither raised in written statement nor same was taken at Appellate Stage. He stated that the said plea cannot be agitated at Revisional Stage. He submitted that all the four' brothers were in joint possession of house. The area of house No. C-739 was only 25 Sq.Yds but L.H. Form shows that the house consisted of four rooms. Mst.
Mumtaz Jehan was transferred the house which was occupied by one Nawaz Khan. It is indicated in L.H. Form, Column No. 8 and City Survey number, in Settlement matters has no much importance.
Neither any legal point has been raised or any irregularity has been shown. There is absolutely no misreading or non-reading in the record. The respondents are admittedly occupying the house bearing No. 741 and the same was not available for auction to applicant on 27.6.1968. They have paid the price and detailed report. Was given by Deputy Settlement Commissioner after visiting the site. Reliance is placed upon the cases of Muhammad lqbal and others v. Shah Muhammad and others, reported in 1985 SCMR 789, Sadiq Hussain and others v. Ghulam Rasool, 1986 SCMR 322, Allahyar Khan v. Mst. Sardar Bibi and others, 1986 SCMR 1957, 1988 SCMR 1526, Muhammad Rafiq and others v. Barkat A.I, 1988 SCMR 1526, Province of Baluchistan v. M/s. Tribal Friends Company, Loralai, Civil Revision No. 25/1977 and Province of Baluchistan v. M/s. Tribal Friends Company, Loralai, 1986 PLD Quetta 321.
16. I have gone through the entire record and the evidence oral as well as documentary adduced by the parties. The respondents examined P.W. Qadir Bux as Ex.41 who produced L.H. Form Ex.42 PTO Ex.43 and the order dated 2.12.1969 passed by Additional Settlement Commissioner, Hyderabad as Ex.46. The next witness examined by them was Azizuddin Settlement Inspector from Office of Deputy Settlement Commissioner who produced bid sheet Ex.50, order dated 8.11.1972 passed by Deputy Settlement Commissioner and the order passed by Settlement Commissioner.
Plaintiffs/respondents also examined P.W. Muhammad Bachal at Ex.64, he was city surveyor who produced the sketches to show locations of the various plots. P.W. Mehmood was examined as Ex.69 who 'produced judgment of Honourable High Court of Sindh and he deposed that the plaintiff was in possession of the premises since partition.
17. Admittedly the plots/houses were transferred to the parties on the basis of occupancy rights by way of filing L.H. Form. The disputed house was transferred to Muhammad Ramzan on the basis of possession but the number mentioned in the L.H. Form was C/739 instead of C/741 and Part of C/740. Accordingly PTO was issued in the name. Of Muhammad Ramzan and after payment of price PTD was also issued in his favour. After about 8/10 years Qadir Bux received a notice from applicant Mst Mumtaz Jehan that he was occupying house No. C/741 which was transferred to her and as such he was her statutory tenant and he should pay the rent at the rate of Rs.150/- per month. After that the respondents made inquiries and came to know .That the house transferred to them was infact bearing No. 0/741 and not C/739.
18. The controversial point between the parties is that whether Ramzan and his brothers were occupying and transferred house No. 'C/739 or C/741 and that house No. C/741 was available for auction to applicant on 27.6.1968. Plaintiffs/respondents examined the ,city surveyor Muhammad Bachai who produced the sketch as Ex.66 which indicates that City Survey No.0/739 and C/741 are contiguous. The measurement of Plot C/739 is only 25 Sq.Yds whereas it has come in evidence that they were in possession of four rooms, and other amenities. Such a huge accommodation cannot be constructed in 25 Sq.Yds only. Now the point needs consideration is whether plot .Bearing No. C/741 ever remained in possession of Mst. Mumtaz Jehan. Admittedly the reply is in negative. L.H.
Form and the entries in record of DVL inditate that C/739 is a shop and is contiguous to the rooms in possession of Muhammad Ramzan. The record does not reveal that Mst. Mumtaz Jehan ever remained in possession of plot/house bearing No: C/741 as such, the very basic principle for transfer of plot in her favour is not valid and legal. Deputy Settlement Commissioner, Hyderabad visited the site in presence of Settlement Inspector and came to the conclusion that the respondents/plaintiffs were in possession of City Survey No. C/741. No doubt the order of Deputy Settlement Commissioner and Settlement Commissioner were set-aside by this Court in C.P. But then that question was left open for. The Civil Court to decide this factual aspect of the case on the basis of the evidence adduced by the parties. The official witnesses Muhammad Bachal City Surveyor Azizuddin Settlement Inspector, plaintiff Qadir Bux and Mehmood have supported the case of plaintiffs on the aforesaid points. Extract of entries in register CSC Ex.59 demonstrates that plot No. C/741 was in occupation of Nawaz Khan. This fact was admitted in written statement by Mst. Mumtaz Jehan but then she stated that lateron the plot was occupied by Qadir Bux.
19. The applicant has also through a Misc. Application No. C.M.A..797 has sought permission to raise the point of limitation and allow him to take that plea at this revisional stage. According to the learned counsel the suit was barred and as such Civil Court had no jurisdiction under Section 9, CPC. This plea was neither specifically taken in written statement nor at appellate stage. Event hat ground has not been taken in memo. Of revision, this application is separately moved at Revisional Stage. The learned counsel has placed reliance upon the case of Hakim Muhammad Buta and another v. Habib Ahmed and others (1986 SCMR 153). The facts and circumstances of aforesaid case are altogether different from the instant case. In the cited case it has been observed that plea of limitation is a mandatory one and is granted by the statute which cannot be waived at the will of parties.
The next case upon which the learned counsel has emphasized is of Mst. Gul Bibi and others v.
Sarsa Khan and others (PLD 1985 SC 345), this case again is based on quite distinguishable facts.
20. On the other hand the learned counsel for the respondents has placed reliance upon the cases of Allah Yar Khan v. Mst. Sardar Bibi and others (1986 SCMR 1957, Sadiq Hussain v. Ghulam Rasool (1986 SCMR 322) and Muhammad Rafiq and others v. Barkat A.I and others (1988 SCMR 1526).
21. In the last case their Lordships refused to grant leave to appeal and observed as under:- "Questions raised by the learned counsel are: in deficiency of the court-fee paid by the respondents' side, and (ii) that of limitation on the basis of that the suit was presented within time but before a wrong Court.
The first point has not been pressed much by the learned counsel as the same stands concluded against the petitioners in the case of Siddique Khan (PLO 1984 SC 289).
As regards the second point, the same not having been raised before the lower Court, it cannot be entertained now. The learned counsel relied upon Muhammad Bute v. Habib Ahmed (PLO 1985 SC 153) to contend that there was no bar in this behalf. When we invited the attention of the learned counsel to a later judgment of this Court in Allah Yar Khan v. Mst. Sardar Bibi (1986 SCMR 1957) and further to the fact that in the judgment relied upon by him the fact that in the judgment relied upon by him the facts were distinguishable, while the judgment in the other case pointed out to him would cover the present case, he could not press the point of limitation any further. Accordingly, leave to appeal is refused."
Even otherwise this point has no force because the possession of the disputed house is with the plaintiffs. Admittedly, the respondents are in possession of that house for the last more than 55 years. The transfer of this house on the basis of L.H. Form was the occupancy right. The house No. C/741 was not available for auction to applicant Mst. Mumtaz Jehan. The suit was well in time and they filed it after exhausting their remedies before the other forums and they were directed by this Court to seek their remedy before Civil Court and after that the plaintiffs filed the suit which had been rightly decreed by the Appellate Court.
22. The aforesaid points have been elaborately discussed and evaluated by the Appellate Court.
The judgment of Appellate Court is sound and well-founded which needs no interference.
23. The case-law cited at the bar by the learned counsel for the applicant has no relevance and bearing to the facts and circumstances of instant case. Civil Revision Application stands dismissed with no order as to cost. .