1992 PLP 1898 (CLC)

Iqbal lntizam Intizar Anwar Akhlaq I Khan Khan Khan Khan Khan I Def. Def. Def. Def. Def. I No. 1. No. 2. No. 3. No. 4. No. 5. I I

I I I Shahnawaz Rehana Sultana Khan Begum Begum Def. Def. Def. No.

6. No.

7. No. 8.

3. It is an admitted position that late Jamaluddin was not the owner of the land on which he had built the house. He was an encroacher and had built the house on the encroached land and the house is now in the possession of the sons and daughters of Mst. Chunni Begum. The plaintiffs/respondents filed Suit No. 511 of 1986 which was dismissed on 14‑5‑1988 but appeal filed by respondents/plaintiffs was partly accepted by learned District Judge vide judgment dated 12‑3‑1989. It is this judgment which is being challenged in this revision application.

4. The only point raised in this revision application is as to whether the in dispute, having been built by late jamaluddin on land which did not belong to him and of which he was an unauthorised to occupant could be belong inherited by his legal heirs.

5. It was argued by learned counsel of the applicants that late jamaluddin had only possessory title which came to an end with his death and that he could not bequeath what he did not own. Reliance was also placed on the judgment reported as AIR 1937 Nagpur 281 (P.B.Marwadi V. S.B.B.Pardeshi Teli) to show that the applicants are in peaceful possession of the disputed house and shall be deemed to have possessory title. On the other hand learned counsel of the respondents claimed that notwithstanding the lack of title of late jamaluddin in the plot of land he has constructed house from his wown resources and therefore he could bequearth it to his legal heris.

6. After hearing learned counsel of the parties I am of the view that late Jamaluddin could not transfer a better title even by way of inheritance to his legal heirs than he himself had owner the land which was nil. As such, the plot of land could not be inherited by his heirs. The applicants being successors in possession of the land shall be deemed to be in unauthorized possession in their own right. As for the superstructure which the deceased had raised from his own resources even it could not be inherited by his heirs because it has not separate entitly from the land over which it stands. Immovable property has not been exhaustively defined in any piece of law but Article 3 (25) of the General Clauses Act states that immovable property include things attached earth and this phrase things attached to earth is defined in Section 3(b) of Transfer of Property Act as follows:- S. 3 (b) Attached the earth means___ (a) (b) Imbedded in the earth as in the case of walls or buildings or (c) .

7. Sub-clause (b) of section 3 leaves no doubt in my mind that the superstructure raised by late jamaluddin has no separate entity of its own it is integral part of the land which as pointed out above cannot be inherited by the heiurs of late Jamaluddin.

8. Learned counsel of the respondents referred to the observations of learned Civil Judge under issue No. 8 in his judgment dated 30‑9‑1981 in Suit No.1590/78 where he held that plaintiff had failed to prove the gift but she was "entitled to her share in the house as co‑sharer". Learned counsel also referred to the following observations in the last but one para of the judgment, dated 4th May 1985 in Civil Appeal No.372/81 of learned Additional District Judge "The appellants (i.e. the respondents in the present revision application) and other legal heirs of late Jamaluddin are co‑sharers in construction material of house in question. Finally, he also referred to the last para of the judgment passed by this Court in Revision Application No.164 of 1985 whereby, while dismissing the revision application of the present respondents, it was held that the applicant was at liberty to file suit for partition and separate possession if he is so advised. Learned counsel then contended that all the three judgments, while they were against the respondents inasmuch as their claim to be owners on the basis of gift was rejected, nevertheless held that they were co‑sharers and entitled to their share in the inheritance. These observations are of no avail to the respondents since in all the three proceedings (the suit, the appeal and the revision) the question at issue was the alleged gift in favour of Mst. Haseen Zamani Begum. The question of co‑sharership was not at issue and only a passing reference was made to it and it is no more than obiter dicta.

9. In view of what has been held above, I would accept the revision application, restore the findings of learned Civil Judge on issue No.3 that none of the parties inherit anything in the disputed house and would, therefore, partly set aside the judgment dated 12‑3‑1989 passed by learned Additional District Judge Karachi South in Appeal No.194/88. The suit of the respondents thus stands dismissed. AA/1‑193/K Revision accepted.