QAMAR ALAM Versus JHAMANDAS
ARSHAD HUSSAIN KHAN, J.--- The applicant through instant Revision has challenged the Judgment and Decree dated 18.03.2006 and 22.03.2006 respectively passed by the learned Additional District Judge, Shahdadpur maintaining the Judgment and Decree dated 17.12.2003 and 22.12.2003 respectively passed by Senior Civil Judge, Shahdadpur, whereby suit bearing No.115 of 1994, filed by the respondents was decreed.
2. Brief facts leading to the filing of this revision application are that the respondents/plaintiffs filed suit for possession, mesne profits and permanent injunction against the applicant/defendant on 13.12.1994 in the court of learned Senior Civil Judge Shahdadpur, stating therein that respondent No.1/plaintiff No.1 is the owner of shop constructed on C.S. No.791 Ward-A, Shahdadpur and there is a Thalla in front of the said shop bearing. C.S. No.789 Ward 'A' and out of it 1/3rd Thalla is in front of the shop of the respondents/plaintiffs and remaining 2/3rd Thalla is in front of shops Nos.790 and 791 Ward 'A' Shahdadpur and 1/3rd Thalla in front of it is owned by the respondent/plaintiff No.1 to the extent of 50 paisa and whereas the remaining 50 paisa are owned by respondents/plaintiffs Nos.2 to 5. It is stated that applicant/defendant is in possession of Shop No.791 and 1/3rd Thalla in front of it wherein flour mill, is installed, the said area hereinafter is referred to as 'suit property'. It is also stated that the applicant/defendant is in illegal occupation of the suit property since long, neither he is vacating the same nor paying mesne profits, hence suit bearing No. 115 of 1994 was filed before the learned Court of Senior Civil Judge, Shahdadpur with following prayers: "a) The defendant be ejected from the suit property bearing C.S. No.791 along with thalla of C.S. No.789 Ward 'A' Shahdadpur, (thalla) in frontage of shop No.791 and its vacant possession be handed over to the plaintiffs. b) Mesne profits at the rate of Rs.500/- P.M. of the said suit property for the period of three years preceding filing of this suit in the ejectment of defendant from the suit property be awarded to the plaintiffs. c) Permanent Injunction be issued against defendant by which the defendant or any other person on his behalf be restrained from putting any encumbrance or charge upon the suit property, so also from handing over its possession to any person except the plaintiffs. d) Cost of the suit be borne by the defendant and the same be awarded to the plaintiffs. e) Any other relief which this Honorable Court may deem fit and proper be awarded to the plaintiffs."
3. Upon notice of the above said suit; the applicant/defendant filed its reply by way of written statement denying the claim of respondents/plaintiffs and claimed ownership of the suit property along with his brother namely Khursheed Alam being inherited from his father [late] Hafiz Imamuddin. The applicant/defendant claimed that the suit property was occupied by his father in the year 1948 when same was declared evacuee property as the father of respondents/plaintiffs Seth Janimal and Seth Cholomal had migrated to India. It is also stated that the father of the applicant/defendant owned the suit property upon payment of price of the shop hearing custodian No.I-A 700/701 corresponding C.S. No.790/791 to the Settlement Department and PTO and PTD were issued in his name and after death of the applicant's father in the year 1994, the shop was inherited by the applicant/defendant. It is also stated that the flour mill was installed in the shop and electric meter was obtained in the year 1950 and the flour mill is being run till date by the applicant/defendant.
4. The learned trial court on the pleadings of the parties framed following issues:-
1. Who is the owner of the disputed shop bearing C.S. No. 791 and in front of it 1/3 portion of Thalla Constructed on C.S. No. 789 Ward "A" Shahdadpur?
2. Whether the defendant is in illegal and unauthorized occupation of the suit property?
3. Whether the plaintiffs are entitled to claim Mesne profits at Rs.500/- P.M. as prayed?
4. Whether the suit is not maintainable?
5. Whether the suit is barred by law?
6. Whether the suit is bad for non-joinder of necessary party?
7. Whether the plaintiff is entitled to relief prayed for?
8. Whether the defendant and his brother and father Hafiz Imamuddin are in peaceful lawful and continuous un-disputed possession of the suit property since 1948 till today and have become the owners due to the adverse possession long ago before the filing of this suit?
9. What should the decree be?
5. The learned trial court after recording of the evidence heard the arguments and decreed the suit of the respondents/plaintiffs, vide its Judgment dated 17.12.2003. The said judgment and decree of the suit were subsequently challenged by the applicant/defendant in the civil appeal, which was dismissed by the learned Additional District Judge, Shahdadpur, vide its order dated 18.03.2006. The applicant has assailed the concurrent findings of facts arrived at by both the courts below through the impugned judgments and decrees by filing the instant Civil Revision.
6. Learned counsel for the applicant during the course of arguments has contended that judgments and degrees impugned in the present proceedings are bad in law, based on misreading and non-reading of the material evidence and against the law applicable to the facts of the case. He further contended that the learned courts below while passing the impugned judgments have failed to consider the evidence available on record and have also misapplied the judgment dated 26.11.1988 passed by this court in L.P Appeals 11 of 1966 and 91 of 1966 filed by Janimal and others. It is also contended that the learned courts below while considering the judgment dated 26.11.1988 have failed to consider the fact that the point of consideration before the court was the order of the Deputy Custodian dated 7.5.1960 and the order dated 24.2.1962 passed by the Assistant Rehabilitation Mukhtiarkar in partition proceedings withdrawing the earlier order of Rehabilitation Mukhtiarkar, Shahdadpur dated 7.9.1959 and order dated 29.3.1961 passed by Deputy Commissioner in respect of agricultural lands and not in respect of the suit property. He further contended that learned courts below have also failed to consider the material fact that the possession of the suit property was with the deceased father of the applicants since 1948 and after his death the applicant being legal heir is in possession of the same. The courts below also failed to consider fact that the Settlement department transferred the suit property in favour of the applicant's father [Late] Hafiz Imamuddin on 20.07.1960 and thereafter P.T.D was issued on 18.06.1981. Furthermore, the respondents/plaintiffs neither sought any declaration nor challenged the said Transfer Order of the suit property in favour of the deceased father of the applicant and as such in its absence no relief could be granted to the respondent/plaintiffs for possession and or mesne profits in respect of the suit property. It is also contended that the learned courts below while passing the impugned judgments and decrees have acted illegally in as much as the title of the respondents in respect of the suit property is decided merely on the basis of disputed entries in the city survey record as under the law mutation by itself would not be sufficient proof or evidence of the title of the respondents/plaintiffs and there is no evidence on record to prove the title of the plaintiff/respondents in respect of the suit property. Lastly, contended that impugned judgments and decrees are not sustainable in law and are liable to be set aside. Learned counsel in support of his contention, has relied upon the cases of ' Abdul Ghani v. Settlement and Rehabilitation Commissioner Hyderabad and Khairpur Divisions and 5 others ' reported in 1971 Law Notes 222, ' Muhammad Hussain and 3 others v. Additional District Judge and Ex-Officio Settlement and Rehabilitation Commissioner and another ' (PLD 1972 Karachi 632), ' Mst. Sardar Begum v. Sub-Maj. (Rtd.) Aziz Ahmad and 9 others ' (PLD 1982 Supreme Court 645), ' Mst. Tayyabun Nisa and others v. Abdul Ghani and others ' (NLR 1985 UC 234) ' Ram and another v. Settlement and Rehabilitation Commissioner, Khairpur Division, Khairpur and others ' (PLD 1969 Karachi 412) and Judgment dated 26.11.1988 passed by this Court at Karachi in L.P.A. No. 11 of 1966.
7. Conversely, learned counsel for the respondents/plaintiffs while supporting the impugned judgments and decrees has vehemently controverted the stance of the applicant in the present revision application. Learned counsel while rebutting the above said arguments has argued that the judgments and decrees impugned in the present proceedings are well reasoned, within the four corners of law and equity, hence does not warrant any interference by this court in the present revision. It is also argued that the facts of the present case have been discussed and evaluated by the learned trial Court and after framing issues, dilating on each issue on the basis of the documentary evidences available on record, had decreed the suit in favour of respondent/ plaintiffs. Learned counsel further argued that the suit property belongs to Hindus and was never declared as evacuee property it was all along remained a non-evacuee property and further this court in LPA No. 11 of 66 declared the properties of the predecessor in interest of the respondents/plaintiff as non-evacuee property. Lastly, argued that the present revision application has no merits and is liable to be dismissed.
8. I have heard the arguments of the learned counsel for the parties and with their assistance have perused the material available on record as well as the case law cited at the Bar.
It is well settled that revision is a matter between the higher and subordinate Courts, and the right to move an application in this respect by the Applicant, is merely a privilege. The provisions of section 115, C.P.C., have been divided into two parts: First part enumerates the conditions, under which, the Court can interfere and the second part specify the type of orders which are susceptible to revision. In numerous judgments, the apex Court was pleased to hold that the jurisdictions under section 115, C.P.C., are discretionary in nature, but it does not imply that it is not a right and only privilege, therefore, the Court may not arbitrarily refuse to exercise its discretionary powers, rather, to act according to law and the principles enunciated by the superior Courts. The legislatures in their wisdom have couched section 115, C.P.C. in the following language:-
"S. 115. Revision :---(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears...
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity," the High Court may make such order in the case as it thinks fit.
[Provided that, where a person makes an application under this subsection, he shall, in support of such application, furnish copies of the pleading, documents and order of the subordinate Court, and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court.]
9. From bare reading of the above section, it is manifest that on entertaining a revision petition, the High Court exercises its supervisory jurisdiction to satisfy itself as to whether the jurisdiction by the courts below has been exercised properly and whether the proceedings of the subordinate Court do suffer or not from any illegality or irregularity. Reference may be placed in the case of Muhammad Sadiq v. Mst. Bashiran and 9 others (PLD 2000 SC 820).
10. Precisely the case of the applicant is that the suit property originally was an evacuee property and was allotted to the applicant's father namely Hafiz Imamuddin in claim when he migrated to Pakistan from India and by virtue documents viz. the Notice of Transfer dated 20.07.1960 issued by (Exh. 117) issued by Deputy Settlement Commissioner and Transfer Order dated 18.06.1981 (Exh.121) issued by Deputy Settlement Commissioner, the applicant claims ownership right over the suit property. Upon the death of said Hafiz Imamauddin the suit property inherited by the applicant along with his brother being their legal heirs. It is also claimed that the possession of the suit property is with the applicant since 1948; initially with his father and after his death with applicant. From the record, it appears that the respondents/plaintiffs have disputed documents Exh.117 and Exh.121 produced by the applicant before the trial court being bogus and false, however, the applicant failed to rebut the said allegation through evidence as he did not examine any witness from the settlement department in support of his stance in the case and to prove the said documents as genuine. He has withheld the best evidence, if any, for the reasons best known, to him. Whereas the respondents in support of their claim that the suit property was never an evacuee property, produced various documents as well as relied upon the judgment of this Court passed in LPA Nos.11 of 1966 and 91 of 1966, wherein this court has held that all the properties belonging to Janimal and Chulomal whether purchased by them or inherited through Belomal were declared as non-evacuee.
11. Furthermore, learned trial court while dealing with the issue of ownership of the suit property has held as under:
"In the light of above evidence and from the perusal of documents produced by the parties in their respective claim, I am of humble view that the plaintiffs are owners of disputed shop bearing C.S. No.791 and in front of it 1/3 portion of Thalla constructed on C.S. No. 789 Ward 'A' Shahdadpur as the names of plaintiffs are also in tact till today in the record of City Survey and claim of the defendant has not been proved through documentary proof as till to-day suit shop was not transferred in their names in the record of City Survey. For above reasons I am of the humble view that the plaintiffs are owner of the suit shop."
The learned trial court while dealing with the issue of possession of the suit property has held that since the issue of ownership of the property has been answered in favour of the respondents/plaintiffs, therefore, the possession of the applicant/defendant was found illegal and un-authorized over the suit property. As regards the claim of the applicant that he is owner of the suit on the basis of adverse possession since 1948, the learned trial court has held that the adverse possession was declared repugnant to the injunction of Islam and in this regard judgment of the Honourable Supreme Court reported as 1991 SCMR 2063 was relied open by the trial court. The learned trial court has held that in the light of findings on the issues of ownership and possession of the suit property arrived at by the learned trial court the respondents/plaintiffs were found entitled to the possession and mesne profits in respect of the suit property.
12. Learned lower appellate court while upholding the judgment of learned trial court has held as follows:-
"I have given careful consideration to the arguments of the learned counsel for the respective parties and has gone through the evidence and so also documents produced by both the parties at the time of their evidence. From perusal of the documents and evidence I am of the opinion that the respondents/plaintiffs have produced sufficient material in the shape of documents to prove themselves as an owner of the suit property. It is also admitted fact on the record that the Honourable High Court has declared that the suit property as non-evacuee property. His Lordship Mr. Justice Saeed-uz-Zaman Siddiqui in his judgment dated 26.11.1988, after hearing of the parties has declared the suit property as non-evacuee property and His Lordship has discussed each and everything in his Judgment which amounts to 61 pages. His Lordship while discussing the points has declared the suit property as non-evacuee and has also declared that the respondents/plaintiffs are owner of the suit property, once the superior courts have declared the respondents/plaintiffs as owner of the suit property, therefore, it is not necessary that each time parties approached to the court and sought declaration. In view of my above discussion and from perusal of all the documents I am of the humble view that the respondents/plaintiff are owner of the suit property and they are entitled for the relief as prayed in their suit."
13. Besides above, from the perusal of record it appears that the claim of the applicant in respect of ownership of the suit property is based on the Notice of Transfer Order dated 20.07.1960 issued by (Exh.117) issued by Deputy Settlement Commissioner and Transfer Order dated 18.06.1981 (Exh.121) issued by Deputy Settlement Commissioner. Whereas it is an admitted fact that the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XLVIII of 1958) was repealed by the promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975) on 28-1-1975. After the repeal of said Laws the settlement commissioner possessed no jurisdiction to dispose of any of the properties. By virtue of section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance XV of 1974 and later under section 2 of the Evacuee Property and Displaced Persons Law (Repeal) Act, 1975, several Acts including the said Displaced Persons (Compensation and Rehabilitation) Act, 1958 were repealed. Subsection (2) of section 2 of the said Act 1975 provides that upon the repeal of the aforesaid Acts and Regulations, all proceedings, which immediately before such repeal, May be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid. Only such matters which were either actively pending consideration before Authorities for final disposal or had been remanded by the High or Supreme Court were to be finalized by the "Notified Officers". In the present case admittedly the applicant's claim of ownership is based on transfer order dated 18.6.1981 issued by Deputy Settlement Commissioner Nawabshah after the repeal of Displaced Persons (Compensation and Rehabilitation) Act, 1958 whereas after the said repealed law, the Settlement Commissioner possessed no jurisdiction to dispose of any of the properties. Thus, the transfer Order [Exh.121] issued by Deputy Settlement Commissioner Nawabshah was devoid of lawful authority and deemed to have no legal effect.
14. Further more, the respondents/plaintiffs have disputed documents Ex.117 and 121 produced by the applicant before the trial court being bogus and false, however, the applicant did not examine any witness from the settlement department in support of his stance in the case to prove that the said documents are genuine. Further respondent No.1 has not produced in his evidence the Record-keeper of the Settlement to prove the genuineness of documents Exh.117 and Exh.121. He has withheld the best evidence, if any, for the reasons best known to him. This Court has, no option but to derive an inference against the applicant. The findings of both the courts below are based on the evidence available on record.
15. The upshot of the above is that no illegality, irregularity or jurisdictional error, in the concurrent findings of the learned courts below, which resulted into the impugned judgments and decrees could either been pointed out or observed. Resultantly, the revision petition in hand being devoid of any force and merit is dismissed.
JK/Q-2/Sindh Revision dismissed.