2002 PLP 1482 (MLD)

(8) Whether the defendant No. 1 was the mother of first wife of plaintiff and was allowed to live in plot in question as licensee? (9) Whether defendant after divorce to his daughter, continued the possession and failed to vacate the plot? If so, its effect? (10) Whether the defendant No. I fraudulently in collusion got the plot transferred in her name in the record of K.M.C. the defendant No. 5? (11) Whether the defendant No. 5 without making proper enquiry, on false representation and in collusion issued lease in favour of defendant No. 1?. If so, its effect? (12) Whether orders of defendants No. 2 and 5 dated 1‑7‑1980 and 5‑3‑1978 are null and void and without jurisdiction? (13) Whether plaintiff is entitled for mesne profits? If yes, at what rate and for what period? (14) Whether plaintiff is entitled for possession of the property? What should the order be? (15) What should the order be? The parties led their evidence and ultimately the trial Court decreed the suit filed by the respondent No.

1. The applicant being dissatisfied by the judgment dated 2‑10‑1986 filed an appeal in the Court of learned District Judge, Karachi South, which was transferred to the Court of learned IVth Additional District Judge Karachi South, who dismissed the appeal and maintained the judgment and decree of trial Court. The aforesaid judgments and decrees are impugned in this revision. I have heard learned counsel for the parties and perused the record. Learned counsel for the parties have reiterated their points urged by them in their pleadings. Perusal of record shows that the daughter of applicant Mah Pari was married to respondent No.1 Malang Dad but after some time the relationship between the spouses was strained and Malang Dad divorced the daughter of the applicant. The applicant was residing on plot bearing Jamabandi Entry No. 1899 7/C whereas the respondent No. 1 was occupying plot Entries Nos. 1447 and 1900. They relate to Plot No. 7/B which belonged to respondent No. 1 whereas Plot No. 7/C was originally entered in the name of Fateh Muhammad, the husband of the applicant, according to the Jamabandi Register of 1961‑

62. Previously suit was filed by the respondent No. 1 and ultimately compromise had been arrived at between the parties before Additional Director, Excise and Taxation Department, wherein it was held that 7/C stood in the name of applicant Mah Pari. Although, this was a consent order but the revision was filed against the said order, by the respondent No. 1 which was dismissed by Director‑General, Excise and Taxation. Respondent No. 1 Malang Dad fled Constitution petition in the High Court of Sindh which was dismissed on the ground that he should invoke the jurisdiction of Civil Court. He filed Suit No. 3097 of 1980, but during the pendency of suit, the lease was executed in favour of Mst. Mah Pari hence respondent No. 1 withdraw his suit with permission to file afresh subject to the payment of cost of Rs. 100 after that Malang Dada filed second suit. The applicant has produced extract from K.M.C. Record pertaining to the year 1962 which shows that Plot No. 1899, Sheet No. K‑20 was owned by Fateh Muhammad son of Naek Muhammad. Extract is produced on record. ' Extract copy of PT‑I from Excise and Taxation Office A‑Division has been produced" in respect of Plot No. AK 20‑A/2/5/7/C which is in the name of Mah Pari pertaining to the year 1978. After the death of her husband, the respondent No. 1 took a dispute with the applicant. He sought P.T.I. from the office of respondent No.

4. She filed an appeal before Additional Director/Collector (Taxes), Excise and Taxation, Karachi, who passes an order on 5‑3‑1978 to the following effect. The said order is reproduced hereinbelow:‑‑ "This is an appeal filed by Mst. Mah Pari widow of late Mr. Fateh Muhammad regarding change of ownership of Property Unit No. AK‑20A‑2S‑&/C, Lyari Quarters, Karachi. The appellant Mst. Mah Pari, Mr. Malang, the respondent and the E.T.S.I. Mr. Rehman are present and heard. Perused the records of Assessing Authority. Since the ownership of Property Unit No. AK‑20A‑28‑7/C is Disputed between Mst. Mah Pari widow of late Mr. Fateh Muhammad and Mr. Malang. The perusal of the Extract copies from K.M.C. Revision Book of 1961‑62 shows independent ownership of the portion at Serial No. 1899 in the name of Mr. Fateh Muhammad son of Nek Muhammad now inherited in favour of Mst. Mah Pari and 1900 in the name of Mr. Malang son of Muhammad Siddiq. Therefore, the ownership may be bifurcated according to the old number amongst the, disputed parties. " The respondent No.1 Malang Dad being aggrieved by the aforesaid order filed an appeal before Director‑General Excise and Taxation, Sindh, Karachi. The parties compromised in the matter and the relevant portion of the aforesaid order is reproduced hereinbelow:‑‑ "The Advocate for the respondent also agrees that his client Mst. Mah Pari is rightful owner of Plot No. 1899 and the super? structure constructed on that plot and that his client has no concern with that Plot No. 1900 and any superstructure on such plot. From this, I find that there is no dispute about the substance of the matter. Accordingly I find that Plot No. 1899 and all super? structure on that plot are owned by Mst. Mah Pari, and Plot bearing No. 1900 and all superstructure on such plot are owned by Mr. Malang. If the record shows any discrepancy from this, it should be amended accordingly." It is pertinent to note that respondent No. 2 i.e. K.M.C. filed written statement wherein it is submitted that the lease of the plot was granted on the basis of lay out plan. And after verifying the physical possession/occupation of Plot No. 1899 Saeedabad Lyari, stood leased out on 22‑11‑1980 in favour of applicant (Mah Pari). The respondent No. 1 and the applicant were also locked in litigation in Suit No.3907 of 1980 !fled by the respondent No. 1 which was ultimately dismissed by IVth Senior Civil Judge, Karachi. The lease was granted by the competent Authorities and the respondent No.1 had failed to show any mala fide in passing the aforesaid order. Civil Court can only have the jurisdiction in respect of lease and allotment, when the authority empowered to pass such orders had passed it malafidely or in excess o its jurisdiction. Admittedly lease had been executed by the K.M.C. in favour of respondent No. 1 as well as applicant in respect of their respective plots. The Civil Court can cancel the lease, if it is found to be illegal or mala fide but cannot grant lease to somebody else and act as a land grant authority. That can only be done in exceptional and extraordinary facts and circumstances, if record manifest the things clear to do so. The applicant is in possession of the plot since long. The record and the judgments of two Courts below do not indicate from any documents that the plot bearing Entry No. 1899 belonged to respondent No. 1 or it was ever leased out to him. No documentary evidence is produced to show that the applicant was licensee of the respondent No.

1. The learned trial Court relied upon the documents Exhs. 7, 8, 9 and

10. On perusal of record it revealed that aforesaid exhibits are given dual numbers as the same exhibits are also the depositions of the witnesses. The respondent No.1 was out of the possession of the property but he made no prayer for possession being the consequential and larger relief in the suit. Although, in the body of the plaint it was stated that possession was not with plaintiff, which be delivered to him. The judgment of Appellate Court is passed in slipshod manner and he simply maintained the judgment by holding that the decision on each and every issue by the trial Court was correct. No proper reasoning has been given for maintaining the judgment of the trial Court. Mostly the documents which have been produced by the respondent No. 1 pertained to his own survey number which is still with him. The trial Court has not properly maintained the record of proceedings. From the aforesaid documents and the orders passed by competent Authority i.e. K. M. C. Director and Additional Director of Excise and Taxation Department appeared to be legal and lawful. The aforesaid orders are neither mala fide nor capricious. The judgments of two Courts below are based on misreading of evidence which are perverse and arbitrary. They have acted with material irregularities and exercised the jurisdiction not vested in them by law. The orders are passed without considering the material available on record inasmuch as they have failed to decide and discuss the vital points of entitlement of ownership of the subject‑matter which has resulted in grave injustice. Resultantly, the two judgments of Courts below are set aside and the Revision Application No. 274 of 1988 is allowed with no order as to costs. H.B.T./M‑337/K ???????? Revision allowed.