1989 PLP 2066 (CLC)

‑‑‑S. 51‑‑Person raising construction on property of another‑‑Effect‑‑Where a person raises construction on the property, adjudged to be of another, in derogation to the rights of that other, he does so at his own risk and peril and as soon as property was determined to be of that other the latter would take the contravening constructions with the property on which the same was found to subsist. (e) Suits Valuation Act (VII of 1887)‑‑ ‑‑‑S. 3‑‑Civil Procedure Code (V of 1908), S.115‑‑Question of valuation raised at revisional stage‑‑Effect‑‑High Court refused to consider the question of valuation raised at the revisional stage, because that was too late a stage to go into technicalities, which could have no bearing on the substance of relief‑‑No case for interference in revisional jurisdiction was made out‑‑Revision dismissed. Badruduja for Appellant. Date of hearing: 5th July, 1989. This Revision Application is directed against the concurrent findings of the two Courts below in the matter of the alleged gift/transfer of the disputed property in favour of the applicant No.1, which having been held to be fraudulent, findings in that behalf have not been assailed, learned counsel limiting himself to urge that the two Courts have not properly framed the Issue relevant to raising of constructions viz. Issue No.10. It has been pointed out that the provisions of Section 51 of the Transfer of Property Act, 1882, have been ignored, the Courts below have failed to consider acquiescence/waiver on the part of the plaintiffs in the raising of constructions on the disputed property and, further, it has been over‑looked that no prayer for removal of constructions raised by applicant No.1 was made, thereby dis‑entitling the plaintiffs for any decree in the suit. It has also been urged that no issue as to under valuation of the suit was struck even though K.DA., as a defendant, had raised that plea. As regards the jurisdiction of this Court to set aside or re‑call concurrent findings in revisional exercise of power it is urged that the rule laid down in the Full Bench case reported in S.Zafar Ahmad v. A. Khaliq PLD 1964 Karachi 149 as reaffirmed in Barkat Ali v. Fazal Hussain 1989 CLC 1255 is that justice is to be done in such proceedings according to law, irrespective of any other consideration in the matter. 2. 1 have heard the learned counsel at length and find that the essential ingredient for relief of compensation etc. under section 51 of the Transfer of Property Act, to a person, who raises constructions in the belief that, he is the owner of the property whereon constructions are raised, is the existence of bona fides in such belief where the claim or title is based on fraud, as concurrently held here, and not questioned, it cannot be said that the belief of the person instrumental in raising the constructions was bona ride and, therefore, the' remedial provisions in section 51 of Transfer of Property Act shall have no application. Even otherwise, on a plain reading of section 51 a claim, if any, under that provision would emanate, if all requirements are satisfied, after the claimant I for relief has effectively been evicted.

3. On the cognate question of purported imperfect casting of Issue No.10, all that can be said is that the argument is being stretched too far since that Issue was based on an averment in the plaint made by the two plaintiffs that their predecessor in title namely, their father, had raised constructions on the property m dispute and such plea was denied by the present applicants saying that no such construction was raised by him and if any additional construction was raised it was by themselves. They did not render any details of the constructions raised by themselves if any, nor advanced any plea that they were entitled to compensation in such behalf nor was it spelled out as to what amount, if any, was spent or incurred on the same. Even in evidence apart from a bald assertion, applicants themselves remained all but reticent on the subject and even their witness Riazat Ali, D.W.2, who was questioned on the point, did not assert that the present applicants raised any construction and all that he stated was that the predecessor of the plaintiffs did not raise one, as the quarter on the disputed plot stood already built prior to the allotment. On such state of pleadings and Issues it, uncontrovertedly, appears that nothing was further from the thoughts of the applicants than a clam under section 51 ibid, evidently, because they had no mind to part with the property of the, once minor, plaintiffs, with the set objective of perpetuating their fraudulent gain. As such, it cannot be said that the Issue was improperly struck. Clearly, if a plea in terms of section 51 of the Transfer of Property Act had to be taken it should have been properly and specifically taken and, then, evidence in that behalf should have been led. Since that has not occurred, on that score, as well, neither can it be said that Issue No.10 was improperly drawn nor can it be argued that a case under section 51 of the Transfer of Property Act was or is made out.‑The decisions reported as Karan v. Budh Sen 1,938 Allahabad 342, Sadhu v. Dt Board Gurdaspur AIR 1960 Punjab 172, Narayana v. Basavar Ayappa PLD 1957 SC India 127, cited at the Bar, are all decisions on section 51 ibid and refer to conditional decrees being passed or other relief accorded where proper pleas are raised and due evidence is advanced and where the case squarely falls under section 51 of the Transfer of Property Act. But in view of what has been said above, neither the principle of section 51 aforesaid nor the ingredients involved therein came to apply or occurred in this case.

4. Reliance is also placed by the learned counsel on the decision reported as Ramanathan Chetty v. Ramasawmi Chetty 30 MU 1; 32 IC 5 where one of the views is that it is immaterial whether the transfer of the person claiming benefit under section 51 of the Transfer of Property Act is or is not valid and that relief under that provision would be available where transfer being bona ride constructions are raised on that basis. This citation is also distinguishable for the same reasons, as discussed above, touching upon the bona fides of the claim, on the one hand, and absence of proper pleas or evidence on the other.

5. Learned counsel has further argued that this case presents elements of acquiescence/waiver and cites the decisions reported in Venkata Swami Naidu and another v. Muniappa Mudaliar & others AIR 1950 Mad. 53 and Ramanathan v. Ramasami 32 Indian Cases 5 for urging that, estoppel by conduct, would come into play on the facts and circumstances of this case, since the construction was raised in 1980 and the suit was filed by the plaintiffs in 1982, without, during the intervening period or otherwise, registering any objection to the construction and that being the position, the plaintiffs having been standing by, without objection or demur, they would not be entitled to the property at all. I am afraid even this ground must fail as, for one thing, the cited case law does not squarely, unequivocally and with consensus lay down any such broad proposition and the rule seems restricted to estoppel involving representation by one, alteration of position on such basis by another and then the former raising claim, irrespective of the result of his representation and, for another, in the event, such a broad principle, as convassed, is accepted or laid down then a person merely by raising of a structure, without apparent objection from the other side would become owner adversely, without even satisfying the law as to prescriptive rights contemplated in the Limitation Act. Even otherwise, applicants would not be entitled the benefit of the pleas of acquiescence or waiver on the basis of such an assertion, at this stage, for no positive evidence has been led on the point whatever. In the absence of due foundation in pleadings or evidence no such acquiescence/waiver can be held to have come to subsist on the facts and circumstances of this case.

6. Lastly, it is urged that since no decree for dismantling or removal of the structures raised, if any, by the applicants was sought, that circumstance dis?entitles the plaintiffs for a decree of possession. This contention also has no substance and should fail for the simple reason of absence of pleadings and proof, on the one hand, and established law, on the other, that if a person raises constructions on the property, adjudged to be of another, in derogation of the rights of that other, he does so at his own risk and peril and as soon as the property is determined to be of that other, the latter shall take the contravening constructions with the property on which the same are found to subsist.

7. Most of the above contentions have been raised for the first time in this Court and could have been rejected on that short ground. Nonetheless, detailed discussion has been made with the sole purpose of doing complete justice between the parties and with a view to determine whether on the record, as it stands, any case, as brought out, can be found. None, however has been so found. I am not inclined to consider the question of valuation as neither was that question raised by the applicant nor was it pressed by KDA, if that was raised by it, and this is too late a stage to go into technicalities, which can have no bearing on the substance of relief.

8. In view of the foregoing, no case for interference at the revisional level is made out and this revision application, therefore, not meriting any relief, is dismissed in limine. 9.???????? In view of the dismissal of the Revision C.M.A. 639 of 1989 is also dismissed. AA./Y‑37/K ?????????????????????????????????????????????????????????????? Revision and application dismissed.