2014 PLP 158 (MLD)

AFTAB AHMED GORAR, J.

Through this Civil Revision Application the applicant, Adnan Ali Chohan, has challenged the judgment dated 18-12-2010 passed by learned 1st Additional District Judge, Karachi East whereby he allowed Civil Appeal No.85 of 2010 filed by the respondent and set aside the judgment and decree dated 22-12-2009 and 6-2-2010 respectively passed by learned IIIrd Senior Civil Judge, Karachi East in Suit No.944 of 2008 whereby the suit filed by the applicant was decreed. Precisely the facts of the case are that applicant filed a civil suit for possession and permanent injunction claiming therein himself to be the transferee of original allottees of plots bearing Nos.R-1671 and 1672, Scheme No.35, Caegtory-1 of Gulshan-e-Zahoor. known as Lines Area, Karachi and he had paid Rs.10,125 each towards transfer in his favour. It was further asserted that after submission of challan the respondent issued possession letters dated 4-8-2008 and the respondent was bound to given physical possession of the plots to the applicant but after lapse of four months the respondent failed to do the needful despite repeated requests made and issuance of legal notice. The respondent contested the matter and filed written statement stating therein that the possession has already been handed over to the original allottees and the respondent was not bound to hand over the possession to the applicant who ought to have asked the vendors for the possession. The Plot No.136, Sector-7 was allotted in favour of Mst. Zahida Khatoon in 1998 and Plot No.R-734, Sector 2-D was allotted in favour of S. Mukarram Ali in 1998. The Plot No. 136, Sector-7 was changed with R-569-A, Sector 8-B on 5-9-2006 and the allocation of plot No.R-734, Sector 2-D was changed to R-569-A, Sector 8-B and both of these plots were transferred in favour of Adnan Ali in January, 2007. Thereafter once again numbers of both the plots were changed as R-1671 and R-1672, Sector-1 on 24-5-2008. According to the respondent defendant if the plaintiff/applicant had purchased the suit property from the original allotees, it was seller's duty to hand over the possession and not of the LARP. Initially the plaint was rejected under Order VII Rule 11 C.P.C. vide order dated 26-9-2008 which order was challenged in appeal and vide judgment dated 1-8-2009 the appellate court set aside the said order and remanded the matter to the trial court with the direction that after recording the evidence and hearing the parties', suit may be decided on merits. On remand evidence was recorded and after hearing the parties, the suit was decreed, however on appeal the judgment and decree was set aside and the suit filed by the applicant stood dismissed, hence this Civil Revision Application. Learned counsel for the applicant contended that the trial court after recording evidence of both the sides, arrived at just and proper conclusion and its judgment is in accordance with law. According to him, the judgment and decree passed by the trial court is well-reasoned and has been passed after appreciating each and every point involved as per settled principles of law. He further contended that the appellate court erred in law and on facts while reversing the findings of the trial court. The appellate court did not properly appraise the evidence adduced by the parties before the trial court. He prayed for setting aside of the judgment of the appellate court and maintaining the judgment and decree passed by the trial court. Conversely, learned counsel for the respondent supported the judgment passed by the appellate court contending that the trial court erred in law and on facts while passing the judgment and decree. He further contended that the appellate court has properly reappraised the evidence of the parties and has given cogent and sound reasons for reversing the findings of the trial court. He prayed for maintaining the judgment passed by the appellate court and dismissing the revision application which, according to him, is not maintainable. I have heard the learned counsel for the parties and perused the material available on the record. It appears that the applicant had allegedly purchased the plots in question from the original allottees namely. Mt. Zahida Khatoon and Mukarram Ali, as such it was the duty of the applicant to have asked the original allottees to deliver the possession of the plots. He has not filed a single document showing the term and conditions of the sale and purchase between him and the original allottees, nor has he filed any document which creates any liability upon the department to hand over the possession of the plots in question to the transferee. According to the respondent the possession of the plots in question was handed over to the original allottees and thus they have fulfilled their obligation and did not owe any responsibility liability to the transferee and, in fact in case the applicant had purchased the plots in question from the original allottees. It was the responsibility of the original allottees to deliver the possession to the applicant but in no case the applicant could demand the possession of the plots from the department. It also seems very strange that the applicant would have made entire payments towards the sale consideration of the plots in question to the original allottees without seeking the possession of the plots. Even he has failed to produce any document to show that the original allottees had given any undertaking that they would hand over or would cause to have delivered the possession of the plots in question to the transferee viz. the applicant. Needless to say that it is well settle principle of law that documentary evidence vis-a-vis the oral evidence would be preferred. Admittedly the assertions of the applicant are merely words while the respondents have produced documental evidence that the possession of the suit plots was handed over to the original allottees. It is also apparent that at no stage of the proceedings the applicant had impleaded the original allottees as parties in those proceedings whose presence was, is very important and necessary and, rather the suit filed by the applicant also seems to be hit for non-joinder of necessary parties. In view of above discussion. the Revision Application merits dismissal. Accordingly the Revision Application is dismissed in limine along with pending applications. consequently the judgment of the appellate court is maintained. AG/A-81/K Application dismissed.