2002 PLP 1971 (CLC)

This instant revision application is directed by applicant Maqsood Ahmed through his L.Rs. against the judgment/decree, dated 31‑8‑1991 and 7‑9‑1991 passed by the learned Additional District Judge‑II, Khairpur and judgment/decree, 7‑12‑1985 and 24‑12‑1985 respectively passed by the learned Senior Civil Judge‑II, Khairpur, both the lower Courts have concurrently decided the matter in issue against the above applicants. Facts giving rise to the instant revision application briefly stated are that the Shop No. C. S. No. 97 corresponding to Custodian No. L.C'F and Rehabilitation No. 1253 situated in Shahi Bazar, Khairpur was inherited by Shrimati Bhagwani Bai alongwith her mother from father Nanik Mal. Afterwards the said property was bequeathed in favour of Shri. Bhagwani Bai through registered deed, dated 3‑8‑1945. She was a Pakistani National and her property was declared as non‑evacuee by the Assistant Custodian Evacuee Property on 20‑12‑1947. It however appears that the same property obviously through a mist a as transferred to respondent No.2 as evacuee property and P.T.O. was also issued in his favour. However, on an appeal filed by Shrimati Bhagwani before the Additional Settlement Commissioner, Khairpur, the allotment was cancelled from the name of Abdullah and the property was taken out from compensation pool. Shrimati Bhagwani Bai, thereafter gave a notice to Abdullah to restore the possession of shop and also warned him not to create any charge over the property. Abdullah did not respond to the notice and registered notice was received back with an endorsement of "refusal". The Settlement Authorities thereafter advised Shrimati Bhagwani Bai to file a civil suit which she did by instituting suit against Abdullah and Maqsood Ahmed who were in occupation of the shop. After receipt of the notice, the respondent No. l filed written statement wherein he denied all the allegations and vehemently urged that he had filed C.P. No.1272 of 1994 wherein he had challenged the cancellation of his P.T.O. and the maintainability of the suit beside raised other legal pleas. It appears that the suit remained on dormant file for quite some time till 16‑9‑1998 when the Constitutional petition filed by Abdullah was dismissed through an exhaustive order maintaining the cancellation of the P.T.O. and declaring the ownership rights of Shrimati Bagwani Bai in the shop in question etc. and all documents referred to above are available on record. The suit proceeded and in spite of applying delaying tactics it was ultimately decreed as prayed. During the proceedings Abdullah died and his L.Rs. Mohammed Yousif and Mohammed Zafar were impleaded. It is strange in the record of Court file. Mohammed Yousif and Muhammad Zafar are sons of Nanha Khan but not the sons of respondent No.2 (Abdullah). It is obvious that they were neither the L.Rs. of Abdullah nor they have any concern with the shop in question, thus applicant Maqsood Ahmed remained in the field who claimed that during his lifetime Abdullah has rented out the shop to him at the monthly rent of Rs.70 which he offered to Shrimati Bhagwani but she refused to accept the same nor acknowledged him as a tenant. Consequently he is paying the ‑same in the Court of Rent Controller, Khairpur. Out of the pleadings of the parties, the leaned trial Court framed as many as six issues which for the sake of brevity are not reproduced here. The applicant's main attack before the two Courts below as well as before this Court is that he had taken the shop on rent for which he was regularly depositing rent with the Rent Controller and as such he is a tenant. He has also claimed the status of a statutory tenant in the misconception that the property was an evacuee property and he claimed privilege of section 30, D.P. Act for his eventual eviction from the said shop. The applicant also challenged the maintainability of the suit on the ground that a declaration of the title should have been obtained by the plaintiff in the suit. The learned trial Court has dealt with all such issues separately. Issue No. 1 in a very exhaustive manner and in my view no exception can be taken against 'his findings on all issues. At the confirmation of the title by the Assistant Custodian and Additional Rehabilitation Commissioner and finally by the High Court through Constitutional Petition it would have been futile for the plaintiff to have insisted upon the grant of declaration of the title by the Civil Courts as the plea of the applicant about his being tenant of the shop suffice it to say that he could not produce any rent agreement nor any receipt for payment in that respect in the trial Court as well as in the Appellate Court. The plea taken by the applicant is to be rejected outright as being false and fabricated invented to perpetuate his illegal possession over the shop for more than 30 years without any legal justification. The learned Appellate Court has fully endorsed the view of the learned trial Court on all the issues. Mr. Shaikh Fazaluddin has relied upon PLD 2001 SC 443 (b). This authority is based, in respect of the point of limitation. Conversely, Mr. S. Zaheer Hassan, Advocate for the respondent has supported the concurrent findings of the two Courts below and moreover the allotment order in favour of Abdullah was cancelled which has been exhibited in the evidence as Exh.42. I have heard the learned Advocates of the respective parties at length and with their assistance I have thoroughly scanned the R&P of the case, I am convinced that the applicant has no right of occupation of the shop in question. He has been able to perpetuate his illegal possession depriving the real owner to enjoy the benefits of his property for about 30 years. Before parting with the case, I must express my deep indignation for the inordinate delay which was caused by the various reasons created by the applicant which resulted in delaying the dispensation of justice. Consequently I dismiss the present revision application and it would be, just and proper' to saddle the applicant with cost of Rs.10,

000. I have been informed by the learned counsel for the respondent that execution application for restoration of possession is pending before the learned Senior Civil Judge, who is directed to initiate expeditious steps to decide the same and simultaneously a Commissioner be appointed to ascertain the main profit of right from the date of occupation of the same by the appellant till its possession is finally restored to the respondent Tikam Das who is now the real owner of the property. The progress report of each date of hearing be communicated to this Court through Additional Registrar. Q.M.H./M.A.K./M‑350/K?????? Revision dismissed.