1994 PLP 622 (CLC)

The dispute in this case relates to a piece of land situated within New Kalri Quarters, Karachi. The entire area belongs to the Government of Sindh and has been occupied by various encroachers, some of whom have constructed Katcha and Pacca structures thereupon. The Karachi Municipal Corporation by their Resolution No. 979 passed on Ist January, 1965 with the previous sanction of the controlling authority decided to grant the leases of such quarters to the persons in actual physical possession thereof. This Resolution was being implemented and on 5th February, 1978, the lease of new Plot No. 1976 (Old No. 1003) marked in the map of 1966 measuring 61 sq.yds. was executed in favour of Yousuf Shah, the Applicant herein. Yousuf Shah married Mst. Naimat Bibi, the Respondent No.l, in the year 1956 or thereabout and started living with her in the premises in dispute which she claims to have purchased earlier and constructed two huts thereon. Mst. Naimat Bibi, the wife of the Applicant, when she became aware that Yousuf Shah has managed to get lease in his favour from the Karachi Municipal Corporation tiled a suit against him for declaration and injunction in the Court of I Senior Civil Judge Karachi (South) with the following prayer: "(a) That it be declared that the Defendant No.l was admitted in the property No. 1976 (1003), Kutchi Colony, Gali No. 15, opposite Rehmania Mqsque, Juma Balouch Road, New Kalri Quarters, Karachi as a result of the incidence of marriage in the capacity of husband of the plaintiff and the defendant No.l was not entitled to act against the interest of the plaintiff and the 99 years lease registered in favour of the defendant No.l by the defendant No.2 before the Sub Registrar, "T" Division VI, Karachi under No. 539 at pages 113 to 115, Volume No. 313 of Book No.l, Addl in respect of the said property under new number 1976 (1003) in the Lyari Quarters, Karachi is fraudulent and collusive and in any case the said lease deed does not affect the right of the plaintiff in the said property and the plaintiff continues to be owner/landlady thereof and the lease executed by the defendant No.2 in favour of the defendant No.l has enured for the benefit of the plaintiff. (b) Permanent injunction may be granted restraining the defendants from denying the title and status of the plaintiff in respect of the property in suit and restraining the defendants from claiming property in suit as the property of the defendant No.l and denying the rights and interests of the plaintiff in respect of the property in suit and restraining the defendant No.l from claiming any benefit out of the 1pase deed in respect of the said property and transferring any right by virtue of the said lease in any manner." ‑ She impleaded Karachi Municipal Corporation as the second Defendant in the suit. This suit was resisted by both the Defendants and ultimately, the trial Judge by his judgment dated 22nd February 1986 held that the suit was barred under Section 88 of the Sindh Local Government Ordinance, 1972 and dismissed it. Mst. Naimat Bibi being aggrieved by the judgment passed by the trial Judge filed an appeal before the District Judge Karachi (South) which came to be decided by IV Additional District Judge Karachi (South) on 21st July, 1990, The Appellate Judge did not agree with the conclusion of the trial Court and decreed the suit. It is against this last judgment/decree that the present application under Section 115, C.P.C. has been filed by Yousuf Shah who originally was the Defendant in the suit. Mr. Khalilur Rahman, Advocate for the Applicant, has mainly contended: (i) that the Appellate Court has committed an error by accepting oral evidence of Respondent No.l as against oral and documentary evidence adduced by the Applicant in the suit; (ii) Sections 88 and 94 of the Sindh Local Government Ordinance, 1972 is a clear bar to the filing of the present suit; (iii) that the plaint itself does not carry the prayer for cancellation of the lease deed as a consequential relief; and (iv) that Respondent No.l did not succeed before the Municipal Authorities and, therefore, decision of the Municipal Authorities is final and a suit is not competent when malafides of those authorities is not even alleged in the suit. Mr. Shamdas, Advocate for Respondent No.l, answering the contentions raised by Mr. Khalilur Rehman, Advocate for the Applicant, contends that the entire proceedings of the lease deed of the plot in question commenced on the basis of the Resolution passed by the Karachi Municipal Corporation, as is evident from the lease deed itself, in 1965 and therefore the grant or refusal of the lease deed is not controlled by the Sindh Local Government Ordinance, 1972. He further contends that Respondent No.l had produced documentary evidence in the form of certain representations made to the authorities alongwith the Ration Card and related documents to prove that she had purchased the premises in question from one Ismaeel before her marriage in the year 1956 to the Applicant and was in its physical possession. She had in addition examined 5 witnesses to support her case. Evidence clearly indicates that two huts were constructed by her at her cost. The admitted facts in the case are that the plot in dispute is the property of the Government having unauthorised construction thereupon. According to Mst. Naimat Bibi, Respondent No.l, she had purchased two huts on the said plot from one Ismaeel and she has been in possession of the property since then. But after her marriage to Yousuf Shah, the Applicant herein, came to live with her as her husband, but having no right, title or interest in the premises in question. The factum that she had purchased the plot from Ismaeel is not disputed by the Appellant himself. All that has been raised in this application is the technical ground of transfer of property. In the cases like the present one, it is actually de facto possession which is a relevant consideration for granting the lease. Yousuf Shah, no doubt, at the time of survey by the Karachi Municipal Corporation was living with her as her husband but was not in exclusive possession of the premises in question as its owner. The documents of Excise and Taxation department showing that the taxes to the department and even the KMC were being paid by Yousuf Shah will not establish that he was in possession exclusively of the premises in question as that department does not keep or maintain Record of Rights under law. As husband of Naimat Bibi, the Respondent No.l, he could have conveniently paid the taxes on her behalf and in her name and instead of doing so he, being elected councilor of the Karachi Municipal Corporation, made the deposit in his own name. The allegations in the suit are that he has fraudulently managed the preparation of the documents of lease in his favour. Be that as it may, the Appellant has not been able to establish that he was in exclusive possession of the premises in question entitling him to grant of lease and no grounds have been shown to appear in the case to enable this Court to exercise the powers of revision under Section 115, C.P.C. and the Revision Application is, therefore, dismissed with no order as to the costs. A.A./Y‑70/K Revision Dismissed,