2016 PLP 315 (YLR)

SADIQ HUSSAIN BHATTI, J.

The Appellant is aggrieved by the judgment dated 18.2.2014 passed by V-Additional District Judge, Karachi (East) in Civil Appeal No.15/2012, which was dismissed, and the judgment and decree dated 30.11.2011 passed by the learned VI-Senior Civil Judge, Karachi, East in Suit No.147/2009, filed by the Respondent therein, whereby the suit was decreed in favour of the Respondent, was maintained.

2. Facts of the case, in brief, are that House No.30/2, Sheet No.23, measuring 354 Square Yards, situated in Model Colony, Karachi ("Suit Property"), was owned by one Chaudhry Nazeer Ahmed, father of the Respondent, by virtue of Sanad dated 03.12.1969, issued by the office of the Mukhtiarkar, Karachi and Enquiry Officer Model Colony, Malir, Karachi. The said Chaudhry Nazeer Ahmed expired on 22.7.1997, thereafter names of the legal heirs of the said deceased were mutated in the record of rights by virtue of Order of A.C.S.O., East dated 16.11.2000 in Takrari Register at Page No.80 and signed by the City Survey Officer, Karachi, East dated 16.11.2000 and Form VII, Fauti Khata of the records dated 22.11.2000. All the legal heirs relinquished their respective rights and share in the suit property in favour of the Respondent by virtue of Relinquishment Deed vide Registration No.2307, Book-1, dated 01.8.2003 before the Registrar T-Division III-A, Karachi. The deceased has constructed House on 185 Square Yards, within the total area of 354 Square Yards and inducted his brother, the present Appellant, therein as licensee. In the year 2006, the Respondent asked the Appellant to vacate the suit property, but he requested for two years' time, even after passing of two years, the Appellant did not vacate the suit property. Hence, the Respondents served a legal notice on the Appellant, but when the same was not replied, the Respondent filed the suit for declaration, possession and mesne profit, which was decreed and the appeal, filed by the Appellant against the judgment and decree passed in the said suit, was dismissed. Now the Appellant has assailed the judgment and decree of two Courts below through the present second appeal.

3. Learned counsel for the Appellant assailed the impugned judgment on the grounds that the Courts below have ignored the material evidence, available on record. It was submitted by the learned counsel that out of total area of 354 Square Yards, an area of 185 Square Yards was gifted by the deceased to him as the Appellant was sending money to him from abroad for construction of the house thereon. Learned counsel has also raised the point of limitation by arguing that since Gift Deed was executed by the deceased in the year 1971 and the suit for declaration, possession and mesne profit was filed in the year 2009 i.e. almost after 38 years of the execution of the Gift Deed and, therefore, the suit was hopelessly time barred, but the Courts below ignored this important aspect of the case. It was also argued that material documents available on record were ignored by the Courts below, therefore, the impugned judgments are the result of non-reading and misreading of evidence and, therefore, same are liable to be set aside. In support of his contentions, learned counsel has relied upon the cases of (1) Amroo Khan v. Dhanney Khan [1994 CLC 519], (2) Australasia Bank Ltd. v. Mangora Textile Industries [1981 SCMR 150], (3) Nishadah Begum v. Muhammad Ayub Khan [PLD 1988 SC AJ&K 203] and (4) Abdul Manan v. Sikandar Khan [1992 CLC 505].

4. On the other hand, learned counsel for the Respondent fully supported the impugned judgments and stated that same are well reasoned and well founded, as such do not call for any interference by this Court. Learned counsel also stated that there are concurrent findings against the Appellant and this Court usually will not disturb such concurrent findings. He also submitted that the Courts below have fully scrutinized the evidence on record and thereafter delivered the judgment, therefore, there is no misreading and non-reading of the evidence. In the end he prayed for dismissal of the instant appeal.

5. I have heard the learned counsel for the parties, perused the record and have gone through the case law cited above.

6. The whole case of the Appellant, in nutshell, is that the suit property was gifted by deceased Chaudhry Nazeer Ahmed to the Appellant and the Appellant himself constructed the house over the plot from his own resources and for this purpose the Appellant, who was working in Saudi Arabia, used to send remittance from abroad for the construction of the house on the plot. In this regard it has been stated in Paragraph 12 of the memo of appeal as well as in the Written Statement, that following remittances were sent by him: - i. 30th March, 1976 US$ 562/- ii. 16th May, 1976 US$ 425/- iii. 4th July, 1976 US$ 900/- iv. 14th October, 1976 US$ 1000/- v. 14th October, 1976 US$ 500/-

7. It may be pointed out that son of the Appellant namely Muhammad Azhar Gulzar appeared as a witness on behalf of the Defendant/Appellant and in the cross-examination he stated that "It is correct that remittance receipts dated 14.10.1976 for an amount of US$ 500 was meant for house hold expenses and in the name of Fazal Ellahi and Company, Akhtarabad, District Sahiwal." Thus, the claim of the Appellant that house on the said plot was constructed by him through remittances sent from abroad, is doubtful. Then the said witness further stated that "I was born on 07.10.1976, I was born in the same house, wherein I [am] still residing viz. House No.23/30-A". Therefore, it is very doubtful that a sum of US$ 1000 sent on 14.10.1976 was meant for construction of suit property, as the attorney of the Appellant himself admitted that he was born in the said house on 07.10.1976, thus proves beyond any doubt that family of the Appellant was already living in a house on the said plot. A perusal of other remittance receipts (available at Pages 75 to 83 of the Court file) shows that all those amounts were for household expenses, therefore, the trial Court as well as Appellate Court were justified in not believing that the house on the said plot was constructed through the money sent by the Appellant from abroad.

8. So far as the question of Gift is concerned, the same has been dealt with by the trial Court under Issue No.4. The learned trial Court has observed that when the alleged gift was made in the year 1971, what prevented the Appellant to get the gifted property transferred in his name. Rather it was necessary that the suit property was transferred in the name of the Appellant during the lifetime of Chaudhry Nazeer Ahmed as in his presence nobody would have objected to transfer the suit property in the name of the Appellant. The learned trial Court stated that from the record produced by the Respondent / Plaintiff as well as the concerned Mukhtiarkar, it has been proved that the property was in the name of the Respondent and was never transferred in the name of the Appellant. It was also observed that once a gift is reduced into writing that in terms of Provisions of Section 17(1)(a) of the Registration Act, 1908 its registration is must if it is in respect of the immoveable property worth Rs.100/- or more. The trial Court also observed that on the affidavit two different stamps of Oath Commissioner Muhammad Ashfaq are appended and on both these stamps the signatures of Oath Commissioner are different. It was also pointed out that in case all the area of 182 Square Yards out of 962 Square Yards, was gifted by the deceased in favour of the Appellant in the year 1971, then how in the year 1980 when the deceased sold an area of 615 Square Yards to one Mst. Rashida Sherazi, the plot of 962 Square Yards bifurcated in two plots of 615 Square yards sold by the deceased to Mst. Rashida Sherazi and 354 Square Yards, which remained in the name of deceased, which was later on mutated in the name of the Respondent. In view of this discussion, the trial Court decided the issue regarding gift in favour of the Respondent. I, therefore, do not find any illegality, misreading and non-reading of the evidence in the findings of the trial Court.

9. It is well settled law that concurrent findings of facts by the Courts below cannot be disturbed by the High Court in second appeal, unless the Courts below while recording the findings of fact have either misread the evidence or have ignored the material piece of evidence on record from the findings recorded by the two Courts below is perverse. Reference in this regard may be made to the case of Haji Muhammad Din v. Malik Muhammad Abdullah [PLD 1994 SC 291].

10. So far as the question of limitation is concerned, suffice it to observe that the suit filed by the Respondent was not for the cancellation of Gift Deed. The Gift Deed was produced by the Appellant for the first time in the evidence to support his claim that suit property was gifted by Chaudhry Nazeer Ahmed to the Appellant. This aspect has been dealt with by the Courts below, who have decided the issue against the Appellant. It has not come in the evidence at any stage prior to these proceedings, it was claimed by the Respondent that the suit property has been gifted to him by deceased Chaudhry Nazeer Ahmed.

11. Learned counsel for the Appellant has not able to refer to any misreading or non-reading of the evidence. The judgments impugned herein are well reasoned and based on the evidence on record, therefore, in my view, the same do not call for any interference by this Court.

12. In view of above discussion, I find no merit in this second appeal, which is hereby dismissed and the impugned judgments and decree are maintained. MM/G-12/Sindh Appeal dismissed.