1988 PLP 1323 (MLD)

This revision is directed against the judgments/decrees dated 20‑3‑1983 and 22‑7‑1986 passed by the learned VIth Senior Civil Judge, Karachi and the learned IVth Additional District Judge, South Karachi respectively in Suit No.450 of 1977 and Civil Appeal No.156 of 1983 respectively.

2. The brief facts leading to the filing of the above Revision are that Respondents Nos.1 to 3, who are the legal heirs, being widow and children of Muhammad Juman Sarno filed the aforesaid suit for permanent injunction and partition in respect of a portion of a plot bearing No.1Y/11/35, situated in Lyari Quarters against the present petitioners and respondent No.4 KMC. The above suit was resisted by petitioners Nos.1 to 4 inasmuch as they filed joint written statement. The learned Civil Judge on the basis of the pleadings of the parties framed the following four issues:‑ "(1) Whether Flat No.1/VVI Jacob Lines Karachi is joint property and is liable to be partitioned? (2) Whether the defendants are entitled to raise counter‑claim in this suit? (3) To what relief the parties are entitled? (4) What should the decree be?" The respondents 1 to 3 in support of the suit examined respondent No.1 herself Ex.5, Mst. Barkat Bibi Ex.6, Mst.Zaibunnisa Ex.7 and one M.I.D. Changazi Ex.8; whereas the petitioner No.1 examined himself as Ex.10 and one witness Vakil Ahmad Ex.11; whereas petitioners 2 to 5 examined one Abdul Ghani Ex.12. The above suit was resisted inasmuch as a joint written statement was filed by the petitioners 1 to 5`in which petitioner No.1 prayed for partition of flat No.1/V/VI second floor, Jacob Lines Karachi, hereinafter referred to as the flat, as a counter‑ claim. The learned Civil Judge after hearing the parties decreed the suit but dismissed the counter‑claim in respect of the partition of the above flat. The petitioners being aggrieved by the aforesaid judgment/decree dated 20‑3‑1983 filed two separate appeals namely, Civil Appeal No.156 of 1983 which was filed by petitioner No.1 and Appeal No.157 of 1983 which was filed by petitioners 2 to

5. The above appeals were dismissed by the aforesaid common judgment/decree dated 22‑7‑1986 by the learned IVth Additional District Judge South, Karachi. The petitioners being aggrieved by the above two judgments/decrees have filed the present Revision Application.

3. In support of the above appeal, Mr Ali Muhammad F.Sethi, learned counsel for the petitioners has urged as follows:‑ (i) That since the flat was allotted in order to compensate the damage caused to the construction which was situated on the suit plot and which was owned jointly by deceased Muhammad Juman Sarno and the petitioner No.1, the latter was entitled to have equal share in the flat. (ii) That factually the area of the jointly owned plot was only 1832 square feet and not 1500 square feet as mentioned in the plaint or 1507 square feet as mentioned in the plan Ex.5/4. On the other hand Mr.Gulab M.Rang, learned counsel for respondents 2 and 3 has contended as follows:‑ (i) That the flat was allotted to respondents 1 to 3 in order to provide alternate accommodation in lieu of the possession of the tenement which existed on the suit plot and, therefore, the petitioner No.1 had no interest in the same. (ii) That factually the area of the plot at site is 1507 square feet and not 1832 square feet and, therefore, the partition is to be effected of the area which is at the site. Mr.Muslim Naqvi learned counsel for respondent No.4 has submitted that the partition is to be effected in respect of the portion of Plot No.1Y 1135 (OLD No.K‑5/55) which was leased jointly in favour of Abdul Karim and 4 others. As pointed out above that Plot No.1Y 1135 (OLD No.K‑5/55) measuring 306 square yards was leased out jointly in favour of Abdul Karim the predecessor- in‑interest of petitioner No.1 and his deceased brother Muhammad Juman Sarno predecessor‑in‑interest of respondents Nos.1 to 3 alongwith 4 others persons and the same was partitioned privately between the joint owners, and, therefore, only the portion which had come to said Abdul Karim has to be partitioned.

4. Adverting to the first submission of Mr.Sethi, it may be observed that I have gone through the record and 1 find that a building known as Bismillah Building having five storeys which was situated adjacent to the suit plot and the construction thereon had collapsed resulting into death of over 100 persons. The Government paid cash compensation for the death to the legal heirs and allotted flats in lieu of the possession of the flats which were let out by the owners of said Bismillah Building. The suit property was situated adjacent to Bismillah Building and because of the collapse of the said building he structure of the said plot also fell on the ground resultinf in the death of Muhammad Juman Samo and 2 children. Respondent No.1 Mst. Hamida, widow of Muhammad Juman Samo was allotted a flat in Jacob lines alongwith survived occupants of said Bismillah Building. In this regard it may be patient to refer to Ex.12, which is a survey report containing the full details of the occupants of Bismillah Building and the adjacent building. The other piece of evidence is the ocular evidence of P.W.2 Vakil Ahmad, Assistant Director, Social Welfare, who was produced by the petitioner No.1 as his witness and who in his cross‑examination has stated "it is correct that displaced persons affected by the collapse of the Bismillah Building had been provided with alternate accommodation." In my view the concurrent finding of the two Courts that the flat exclusively belongs to respondents 1 to 3 seems to be‑correct. As regards the second submission of Mr.Sethi, it may be observed that as _ submitted by Mr.Muslim Naqvi the area of the entire plot was 300 square yards of which lease was granted to five persons jointly. It was partitioned privately. The petitioner No.1 and respondents 1 to 3 are claiming through Abdul Karim, who was one of the five lessees i.e. father of petitioner No.1 and his deceased brother Muhammad Juman Samo. The Trial Court has appointed a Commissioner for apportioning the portion of the above plot which has been subject‑matter of the suit. It is clarified that the partition will have to be affected of the area which had come to the share of late Abdul Karim on account of private partition and not Ill any area which might have been unauthorisedly occupied by any of the parties. With the above clarification the judgments/decrees of the two Courts below are maintained. The Revision stands disposed of in the above terms with no order as to costs. H.B.T./A‑342/K Order accordingly.