1986 PLP 1230 (MLD)

Date of hearing: 12th March 1986. . eal under section 100, C.P.C. is filed by one of against two concurrent judgments of the Courts below. The respondent No.1 instituted Suit No. 1104/71 in the Court of Civil Judge, 1st Class, Karachi for possession and mesne profits, against the appellant and respondent No. 2 on the allegation that the, appellant and respondent No‑2 had trespassed in the premises which was in the tenancy of the appellant. It 'was alleged in the suit by respondent No‑1 that he was the lawful tenant in respect of tenement No.41 on the portion of Plot No. 14/84 Bazar Quarters, Sain Allappa Street, Karachi on a monthly rent of Rs.

40. Both the appellant and the respondent No.2 denied the claim of the appellant and on the basis of the controversy between the parties the Court frame the following issues: ‑ (1) Is the suit maintainable? (2) Is the plaintiff entitled to sue? (3) Is the suit under valued? (4) Is the suit bad for misjoinder and non‑joinder of parties? (5) Whether the defendants have trespassed into the premises of plaintiff (Tenement No. 41, Plot No. 14/84, Bazar Quarters Sain Allaps Street, Karachi? (6) Whether the defendants are liable to pay to the plaintiff mesne profits at the rate of Rs. 2.00 per day? (7) To what relief the plaintiff is entitled to? Issues 1, 2, 5 and 6 were answered in the affirmative while Issues Nos. 3 and 4 were decided in negative. As a result of affirmative finding on issues Nos. 1, 2, 5 and 6 and the negative finding on issues Nos. 3 and 4 the trial Court decreed the suit against both the appellant and respondent No.

2. Both appellant and respondent No.2 filed two separate civil appeals being Civil Appeals Nos. 1‑2/77 and 8/77, respectively. The appeal filed by, respondent No.2 was allowed by the learned first appellate Court and the decree against respondent No.2 was set aside while the appeal filed by the appellant was dismissed. The appellant has now come in second appeal against the order of the learned first appellate Court rejecting Civil Appeal No. 12/77.

3. Learned counsel for the appellant contends that the findings of the two Courts below holding appellant as trespasser in respect of tenement No. 41, Plot No. 14/84, Bazar Quarters, Sain Allappa Street, Karachi is based on misreading of evidence and non‑consideration of the contentions of the appellant in the case. It is contended by the learned counsel that the evidence on record did not prove that respondent No.1 was the tenant in respect of tenement No.41 of the aforesaid building. It is also contended by the learned counsel that in fact there was no tenement in existence on the above plot which bears No.

41. After hearing the learned counsel for the parties at length, I am of the view that no case for interference is made out. In his plaint in Suit No. 1104/71 the appellant categorically stated that he was the tenant of tenement No. 41 on Plot No. 14/84, Bazar Quarters, Sain Allappa Street, Karachi, on a monthly rent of. Rs. 40 and that the appellant and respondent No.2 had trespassed in said premises. In support of his contention respondent No.1 examined himself and produced original agreement of tenancy executed between him and Wadho Akharo Trust Exh. A/6. He also produced rent receipt showing payment of rent to Wadho Akharo Trust, in respect of tenement leased out to him as Exh. A/5. The respondent No.1 in support of his case also summoned and examined one Noor Muhammad, Manager of Wadho Akharo Trust and through him he produced rent receipts Exhs. A/2 and A/3. The agreement Exh. A/6 produced by respondent No., 1 shows that a portion of plot measuring 199.15 Square foot was let out to respondent No.1 by Wadho Akharo Trust on 9th April, 1963 .and under the aforesaid agreement respondent No.2 was authorised to raise Katcha construction on the aforesaid portion. The lease agreement Exh. A/6 further shows that a sum of Rs. 480 being rent from 1‑8‑1962 to 31‑7‑1963 was also paid at the time of execution of the aforesaid agreement. The receipts Exhs. A/2, A/3 and A/5 proved payment of rent by respondent No.1 to the owner Messrs Wadho Akharo Trust. The contention of the learned counsel for 'the appellant before me is that appellant is not in occupation of tenement No.41 but he is tenant of tenement No.40 as sub‑tenant of one Qurban Hussain. This plea was never raised by the appellant in his written statement filed in the suit nor any such issue was framed in the suit. On the contrary in his written statement appellant consistently pleaded that he was a sub‑tenant in suit premises (which is described in the plaint specifically as tenement No.41) but he claimed that he was the sub‑tenant of Qurban Hussain. Qurban Hussain was examined in support of the plea of the appellant alongwith other witnesses and he stated that he was tenant of tenement No.40 in the aforesaid building. Qurban Hussain further admitted in his evidence that his tenement is separate from tenement of respondent No.1 by a dividing wall. There is nothing on record to show that appellant was tenant in respect of tenement No.

40. The rent receipts alleged to have been issued in favour of appellant by the son 'of Qurban Hussain, do not mention tenement number in possession of the appellant. Similarly copies of the judgment relied upon by the appellant before the Courts below also do not mention any property number which was subject‑matter of dispute in those proceedings. In view of categorical statement made by respondent No.1 in his plaint that appellant has trespassed in tenement No.41 which was in his tenancy and reply of appellant in his written statement that he was a tenant in the suit premises the Courts below rightly held that the appellant has failed to establish that h was the lawful sub‑tenant of the premises in suit. The contention o the learned counsel for the appellant that the tenement occupied b the appellant is tenement No.40 and " not tenement No.41 cannot be considered in the second appeal as this contention was never raised is the original Court nor before the learned first appellate Court. Learned counsel was unable to point out any misreading of evidence o non‑consideration of any material document by the Courts below in arriving at the conclusion that the appellant is a trespasser in tenement No. 41 which was in the tenancy of respondent. No case for interference is made out. This appeal is accordingly dismissed but in the circumstance of the case I will, make no order as to costs. A.A. Appeal dismissed.