1988 PLP 1117 (CLC)

Date of hearing: 16th August, 1987. This IInd Appeal is directed against the judgments/decrees dated 8‑8‑1967 and 14‑7‑1973 passed by the learned VII Civil Judge, First Class, Karachi and the learned IInd Additional District Judge at Karachi in Suit No. 193 of 1966 and Civil Appeal No. 198 of 1967 respectively. 2. (a) The brief facts leading to the filing of the above appeal are that plot bearing No. 26‑K‑3 (new No. LY 7/17), measuring 4775 sq. yards, situated in Lyari Quarters belonged to a joint Hindu family comprising Bulchand Alumal and his two sons Jethanand and Menghraj. MeAghraj filed a Suit No. 16 of 1941 in the Sind Chief Court for partition. In the above suit the Nazir of the Court was appointed as the Receiver on 19‑9‑1949. It appears that Suit No. 1000 of 1952 (re‑numbered as Suit No. 736 of 1956) was filed by the Nazir for ejectment against one Hussain son of Ismail in respect of tenement No.

26. It was alleged in para. 5 of the plaint that said Hussain son of Ismail was a monthly tenant at Rs.2 p.m. in respect of the above tenement. In reply to the above averment the said defendant in para. 8 of the written statement had pleaded as follows:‑‑ "That regarding para. 5 of the plaint it is' submitted that Seth Alimchand Tikamdas, as owner, about 35/40 years ago gave the present portion occupied by the defendant to him and allowed him to put up compound walls thereon and build a hut, in the alternative, the defendant claims the said portion occupied by him by means of adverse possession which has been open, continuous and public, and opposed to that of the plaintiff and the owners. It is denied that the defendant ~at any time has paid any rent, that 'any rent was fixed and received by the owners or paid by the defendant, and that there can be any arrears as alleged. The said 'Alimchand's successors also have acquiesced in the claims of the defendant." (b) On the basis of pleadings of the parties a number of issues were framed. The suit was decreed by the learned IVth Civil Judge by a judgment and decree, dated 30th Mar, 1959. Against the above judgment/decree the said Hussain son of Ismail filed Civil Appeal No. 217/59 which was allowed ‑on. 24‑2‑1961 by the learned Additional District Judge at Karachi. In the above judgment it was held that in any case Hussain was in adverse possession of the above tenement for more than 12 years and, therefore, the suit could not have been decreed against him either as a tenant or as a licensee. Against the above appellate judgment no further appeal was filed by the Receiver or anybody else. (c) It appears that after the above appellate judgment, dated 24‑2‑1961 the legal heirs of Hussain approached the City Survey Office and got mutation recorded in their favour to the extent of 1/3rd. of the above plot. Against the above mutation the' Nazir filed Suit No. 193 of 1986 for declaration and injunction which was dismissed by the learned VIIth Civil Judge First Class, Karachi by his aforesaid judgment and decree, dated 8‑8‑1967. Civil Appeal No. 198 of 1967 filed by the appellant i.e. the Nazir against the above judgment and decree was also dismissed by the learned IInd Additional District Judge, Karachi by his aforesaid judgment /decree, dated 14‑7‑1973. The appellant has, therefore, filed the present Ilnd Appeal.

3. I have heard the learned counsel for the parties and also gone through the four judgments referred to hereinabove and pleadings of the two sets of litigation. It is evident that in the previous suit the only property which was in dispute was tenement No. 26, which was allegedly let out by the owner at Rs.2 p.m. to late Hussain who is now represented by his legal heirs i.e. the respondents in the present Ilnd Appeal. The appellate Court by the aforesaid judgment, dated 24‑2‑1961 passed in Civil Appeal No. 217 of 1959 held that adverse possession was in respect of the said tenement and not in respect of 1/3rd portion of the plot. But both the courts below in the present suit and the 1st Appeal have not dilated upon the question, whether the area of above tenement No. 26 was 1/3rd as mutated by the City Survey Office or it was merely very small portion as contended by the appellant. The adverse possession was in relation to the above tenement as observed hereinabove and, therefore, basic issue was as to what was the area of above tenement and what was its location at the time of filing of the first suit namely Suit No. 1000 1952, re‑numbered 736/56 on transfer of the case from the Sind Chief Court to the civil Judge. I would, therefore, allow the above appeal and set aside the two judgments/ decrees but remand the case to the learned Civil Judge with the direction to allow the parties lead evidence on the question, what was the area of aforesaid tenement No. 26 and what was its location which was the subject‑matter of Suit No. 736 of 1956. The suit will have to be disposed of in terms of the finding on the above question. The suit is to be disposed of within six months from the date of receipt of the copy of the judgment as the 'parties have been litigating since 1952. There will be no order as to costs. H.B.T./G‑57/K Appeal allowed/Order accordingly.