1998 PLP 90 (MLD)

10. From the record of the case, I find that the applicant produced among others the following documents through his attorney, Zamir Ahmed Ansari. (1) Tenancy agreement dated 1-6-1976 executed by the applicant and Mst. Qaiser Jehan Begum. (2) Receipts showing payment of three months advance and fixed deposit. (3) Extract from Excise and Taxation Department showing Mst. Qaiser Jehan Begum as owner and the applicant as occupant. (4) Letter of Habib Bank sent to the applicant at his address being the disputed property. (5) Copy of the F.I.R. (6) F.I.R. certificate dated 6-5-1986 issued by Income Tax Department and showing residential address of the applicant at the said property. The applicant examined the following witnesses:-- (a) Zamir Ahmed Ansari. (b) Masood A. Abbasi. (c) Wazir H. Rizvi. (d) Saeedur Rehman.

11. Zamir A. Ansari is the general attorney of the applicant and also one of the witnesses to the tenancy agreement executed between the applicant and his landlady. He also produced the documents mentioned above and similarly Masood Ahmed Abbasi is the general attorney of the landlady. Mst. Qaiser Jehan Begum and he is also her husband. He admitted tenancy agreement and also the possession of the said premises by the applicant. Wazir H. Rizvi and Saeedur Rehman both of whom are independent witnesses stated that they had visited the disputed premises and met the applicant there in connection with some work which they wanted to assign to the applicant who was a petty contractor. The statements of these witnesses as well as the documents produced by Zamir Ahmed Ansari go to prove that the applicant had been in possession of the suit property. It is established legal position that in a suit for specific performance under section 9 of the Act what is relevant is his possession and not the title although contrary has been erroneously observed and concluded by the learned trial Court.

12. The provisions of law contained in section 9 of the Act has four ingredients:-- (1) persons suing must have been dispossessed; (2) such dispossession must be from immovable property; (3) dispossession should be otherwise without consent and (4) dispossession should be otherwise than in due course of law;

13. As was held by the Hon'ble Supreme Court, in Dr. Riaz v. Razi Muhammad, 1982 SCMR 741 that section 9 of the Act in no way controls the operation of section 26 of Qanoon-e-Shahadat Act and has no concern whatsoever with title, but is merely a law for restoring possession which has been disturbed otherwise than in due course of law. It may be emphasised that no question of title either of the plaintiff or of the defendant can be raised or gone into in this case. Furthermore, the possession of the applicant in respect of disputed property has been fully established by the evidence on record. I also find that the general attorneys of the applicant as well as of the land lady appeared in court and examined themselves as witnesses. Their statements would therefore be as good as the statements of the applicant and his landlady. Mere fact that the applicant did not appear in person or that the landlady did not herself attend the Court will not in any manner prejudice the case of the applicant.

14. After having found that the applicant was in possession of the suit property the next question which arises is whether he was dispossessed according to law? It is established by the material on record that the respondent Nos. l and 2 forcibly occupied the disputed property during the absence of the applicant who has clearly made out a case for restoration of this possession. Therefore, Suit No.437 of 1979 (New No.438 of 1988) is decreed as prayed.

15. So far Suit No.2385 of 1985 (for mesne profit and damages) is concerned, it was pointed out by the learned counsel for the applicant that an appeal against the dismissal of this suit was preferred before the learned IInd Additional District Judge, Karachi Central and that appeal is still pending. Therefore, on disposal of this revision no further comment is required as the learned appellate Court is seized of the matter and would be at liberty to dispose of the same according to law. Since the respondents Nos. l and 2 did not come forward to contest this revision application there would be no order as to costs. A.A./F-22/K Order accordingly