ABDUL KARIM Versus ABDUL SHAKOOR

The dispute in this case relates to a small residential building admittedly constructed on a plot of land belonging to the Karachi Municipal Corporation (K . M . C .) . It is common ground that in the beginning there was a small hutment constructed over the plot in dispute but some where in the year 1965 or 1966 permanent structure was raised after removing the hutment previously existing.

2. The case of the respondent is that he had acquired possession of a large plot of land from its previous occupant Messrs Govind Moti and Company who was lessee from the K.M.C. Subsequently the said Company migrated to India in 1955 and the respondent continued in possession of the plot. In the meantime in 1950 the respondent built 3 huts and 2 Paka houses on the plot and let them out to tenants. In one of the huts the applicant was put in occupation as a tenant. In 1966, with the agreement of the parties, as already stated, Paka construction was raised in place of the previous structure. On the other hand the applicant claims to have occupied the portion of plot covered by the present structure, on his migration to Pakistan after the partition of the Sub-Continent and set up a but thereon. According to him he has built the existing Paka structure in 1965, and has denied that he is the tenant of the respondent.

3. In the first place in May, 1966 respondent sought to eject the applicant through proceedings before Controller under the Rent Restriction Ordinance but his application was dismissed in view of the dispute raised between the parties regarding the ownership of the premises. The respondent then filed the suit out of which the present revision application has arisen before the civil Court in 1967 claiming a declaration regarding his ownership of the property and the status of the applicant as his tenant. Both parties produced oral evidence as well as documentary evidence in support of their respective contentions. But the Xth Civil Judge, Karachi dismissed the suit of the respondent on 14-4-1975. The respondent then challenged the decision in appeal and by the impugned judgment the learned Vth Additional District Judge, Karachi allowed the appeal and decreed the suit of the respondent on 27-1-1979. The applicant now seeks to challenge the aforesaid judgment in this revision application

4. Before me it has been contended on behalf of the applicant that since the respondent was seeking the relief of declaration of ownership in respect of the disputed property, the burden of proof lay upon him but no evidence has been produced by the respondent to prove that he had raised the construction. I have carefully gone through the judgment of the Courts below with the assistance of the learned counsel and have also perused the depositions of the parties to this case. The learned Appellate Court below has based its judgment primarily on the documentary evidence produced by the respondent consisting of the receipts for the payment of taxes to the Excise and Taxation Department and the rent to the K.M.C. by the respondent. Additionally the, respondent was shown in the record of the Excise and Taxation Depart ment as the owner of the disputed property and the applicant as its tenant. The next important document on which the appellate Court below placed reliance was Exh. 'P-2' in which the applicant admitted to be the tenant of the respondent. According to the evidence of the respondent the dispute between the parties was referred to the Chairman Jinnah Abad Union Committee No. 42 before whom parties compromised which was reduced into writing whereby the applicant agreed to pay Rs. 13 per month as rent to the respondent. The applicant in his evidence was confronted with this document in which he seems to have admitted his thumb-impression on it but his contention was that his thumb-impression was obtained by the Chairman by fraud and mis representation. The Chairman was examined on behalf of the respondent and he has supported his case that the dispute was voluntarily settled. The Court below rightly held that this admission is binding on the applicant as no evidence of fraud and misrepresentation was produced by the applicant on whom lay the onus of proof on this point. In addition to the aforesaid documentary evidence the appellate Court below also relied on the oral evidence of the witnesses produced by the respondent in preference to the oral evidence produced by the applicant. No documentary evidence was produced by the applicant.

5. In view of the aforesaid, the findings of the appellate Court below are not liable to be interfered with in the revisional jurisdiction.

6. The only other contention raised on behalf of the applicant is that Exh. 'P-2' the compromise document between the parties was in substance an award and as such was not admissible in evidence as a dispute between the landlord and tenant could not be referred to Arbitration. I find no substance in this contention. The document was, not being relied for the purpose of enforcing it as an arbitration award but merely as an admission on the part of the applicant. Since the execution of the document has been proved on the record in my opinion it was admissible as an admission. In view of the statement made in the document the applicant is estopped under section 116 of the Evidence Act from challenging the title of the respondent as landlord of the property. No other contention was raised in support of this revision.

7. In the result there is no merit in this revision which is accordingly dismissed with no order as to costs.

M. Y . H . Petition dismissed.