2008 PLP 1659 (CLC)

KHAWAJA NAVEED AHMED, J.

This is a dispute between the family members of legal heirs of late Nisar Ahmed Khan. There are concurrent findings of the Courts below in favour of respondent Nb.1, Riaz Ahmed and Shakeel Ahmed. The learned III Senior Civil Judge, Karachi (East), by order dated 23-12-2005 has decreed Suit No.1248 of 1999 on admission made by the applicant/defendant in the written statement. The relevant petition of the order is reproduced hereunder: "Before proceeding further, the relevant paras of written statement filed by the defendant are reproduced here as under for the sake of brevity. (4) That the contents of para No.4 of the plaint are partially admitted and partially denied. It is submitted that as the plots of Gabool Town are not given through allotment/lease deed, therefore, the same could not be gifted out or transferred. The defendant has offered to give said 100 sq. yds. land of Gabool Town Plots. (5) That regarding Para 5 of plaint it is submitted that the plaintiff has made misleading and version of incorrect facts. It is submitted that the 1/3rd share gift in my name and was made with joint contest/decision and the plaintiff is/are illegally making construction. The portion of defendant was his legal right and h. is ready to give possession of 100 yards land of Gabool Town Plots. (6) That the contents of Para.No.6 of the plaintiff are denied being false and misleading it is submitted that the defendant did not violate the mutual settlement and the land of Gabool Town was not mutated, leased and can not be gifted legally. The defendant is ready to deliver the possession to the plaintiffs i.e. 100 sq. yds. each. Apart from above the defendant has raised same objections and pleas in the counter-affidavit of instant application which do not come in the way of his application. From the perusal of record and written statement it clearly reflects that the defendant has admittedly the claim of the plaintiff in above paras. as a whole in the written statement and there is no other ground to discard the written statement and counter affidavit filed by the defendant. The offer with free conscious of mind amounts the acceptance, until and unless the mala fide or other ground is not raised. Hence, the above paras. of written statement of defendant already show his acceptance and admission of claim of plaintiff in respect of 100 square yards of plot as claimed. Under the circumstances and in view of case law coupled with clear admission of the defendant in his written statement dated 9-2-2000 and counter-affidavit dated 12-11-2005, I am of the humbly view that the case of the plaintiff stands proved and the suit is decreed upto the extent of possession of 100 square yards from factory along with mutation. There will be no order as to cost." Being aggrieved by the order of the trial Court, the applicant preferred Civil Appeal No.4 of 2007 but the learned 1st Additional District and Sessions Judge, Karachi (East), was pleased to uphold the order of the trial Court. Now, this Revision Application has been filed by Ejaz Ahmad against the concurrent findings of both the Courts below with a prayer to set-aside the judgments impugned herein. I have heard the learned counsel, the applicant, the respondent No.1 as well as Mst. Zareen Saba, the eldest sister of both the brothers. Mst. Zareen Saba states that when Ejaz Ahmed was in Saudi Arabia, Shakeel Ahmed and Riaz Ahmed clandestinely got the house of their mother transferred in their names. Thereafter objection was raised by other family members and it was amicably resolved between the family members that Shakeel Ahmed and Riaz Ahmed will transfer the house in the name of all legal heirs and in return respondent No.1, Riaz Ahmed will get a plot of 100 square yards in the industrial area and that will be within the factory of applicant Ejaz Ahmed. The agreement arrived at between the family members is admitted and there is no dispute about it. However, since the agreed plot of 100 square yards will be near the factory premises of applicant Ejaz Ahmed, there is imminent apprehension that dispute will continue between the two real brothers upon running the factory. Therefore, it has been amicably resolved that applicant Ejaz Ahmed will purchase the plot of 100 square yards of equal value as that of his plot, in the same vicinity and will give it to respondent No.1 applicant Ejaz Ahmed and respondent No.1 Riaz Ahmed, present in Court, agree to this proposal. Mst. Zareen Saba, who has just appeared today to help both the brothers to resolve, also agrees to this proposal. By consent of the parties and their Advocates present, it is ordered that applicant Ejaz Ahmed will purchase a plot of 100 square yards of equal value as that of his plot in the same vicinity, wherein his factory is located and shall give it to respondent No.1, Riaz Ahmed, on ownership basis. In case of failure of Ejaz Ahmed to purchase, transfer and handover the plot of 100 square yards within three months to the respondent No.1, it will be opened for the respondent No.1, Riaz Ahmed to pursue the Execution Application. With above order, the Revision Application along with the listed application in dismissed with no order as to costs. H.B.T./E-5/K?????????????????????????????????????????????????????????????????????????? Application dismissed.