1997 PLP 1892 (CLC)

(7) Whether Suit No. 1417 of 1987 is.not maintainable. (8) Whether Suit No. 1746 of 1987 is under valued (9) Whether Suit No. 1746 of 1987 is not maintainable 10.Whether Jamia Masjid is in adverse possession of suit property (11) What should the decree be.

7. On behalf of petitioner Haji Ghaffar was examined as attorney of petitioner and since the respondent No. l died, his legal representatives were brought on record and his widow Faiza Bai was examined and two other witnesses namely Fazal Abbas and Yakoob Ali as D.W.2 and D.W.3 were examined.

8. The Trial Court vide judgment dated 10‑4‑1994 decided Issues Nos.7 and 9 and dismissed both suits. No finding was given on other issues as such ‑Appeal No. 67 of 1994 was filed by the petitioner while respondent No. l filed Appeal No. 68 of 1994 in the Court of District Judge, Karachi (South) which were sent/transferred to learned VIlth Additional District Judge, Karachi (South) (hereinafter referred to as the Appellate Court). The cases were remanded by the appellate Court, to the trial Court to decide all the issues which was complied and vide judgment dated 22‑12‑1994. The Trial Court decided all issues but maintained the same result. The appeals were heard by the appellate Court. The appellate Court reversed findings on Ist Issue which was decided by the trial Court in favour of petitioner. The findings on issue No.7 were reversed. Findings on Issue No.8 were given that the suit by the respondent No. l was under valued and was given directions to correct the value and supply deficit court‑fee. In the result the appeal filed by the petitioner was dismissed, while appeal filed by the respondent was partly . allowed vide judgment dated 17‑8‑1995 and the said judgment is impugned herein.

9. Mr. Muhammad Ashraf Bhatti, learned counsel appearing for the applicants conten0ed that the findings of the trial Court on Issue No.1 were legal and maintainable on the basis of evidence available on record while the findings of appellate Court are illegal and purverse. His further contention was that the findings of the trial ‑ Court that the applicants ought to have challenged the proceedings in High Court suit through proceedings under section 12(2), C. P. C. , were correctly upset by the appellate Court and the appellate Court was justified in reversing findings on Issue No.7 in view of judgment of Hon'ble Supreme Court in the case of Tanveer Jamshed and another v. Raja Ghulam Haider (1992 SCMR 917) and he was critical that the appellate Court illegally reversed the findings on Issue No.8, the suit of the respondent was hit by the principles of Order IX, rule 9, C.P.C. as the earlier Suit No. 1159 of 1987 was dismissed for default and his appeal also failed. According to him the suit was time‑barred and erroneously allowed by the appellate Couit. .

10. Mr. Latifur Rahman, learned counsel appearing for the legal heirs of deceased respondent stated that the findings of Irial Court on Issue No. l was not based upon evidence while the findings of the first appellate Court are based upon evidence. The finding given by the trial Court on Issue No:7 were legal and the Court of appeal reversed therein illegally. The judgment of Hon'ble Supreme Court pertained to the legal position as obtained in the year 1974 while the law was amended in 1980 and section 10(2) was introduced with such amendments as such the said judgment was not applicable. He contended that deficit court‑fee has been paid. He urged law point that there were two proceedings in trial Court two appeals in appellate Court yet only one revision was filed. According to him although the judgements were consolidated yet if the findings of both appeals were to be challenged, two revision applications should have been filed. He further contended that the Gift Deed was not registered and does not confer title on the applicants. Even otherwise appellate Court on the basis of evidence such findings were legally reversed.

11. On my enquiry the learned counsel for the applicants stated that his Revision Application may be treated as Revision against the judgment in Appeal No‑67 of 1994 and his Suit No. 1417 of 1987. 12. 1 have given anxious consideration to the pleas urged by the parties and went through the record with the assistance of the learned counsel. After the arguments were concluded the following findings were recorded in open Court on 21‑5‑1997. "Arguments concluded. My findings are as follows for which the reasons will be recorded as separately There were two proceedings one arising out of Suit No. 1417 of 1987 and Suit No.. 1746 of 1987. Both the suits were dismissed by the trial Court, two appeals were filed, Appeal No.67 of 1994 was filed by the applicant which was dismissed and Appeal No.68 of 1994 filed by the respondent was allowed. Only one Revision Application has been filed i.e. Revision Application No. 184 of 1995 and the learned counsel for the applicant categorically stated that it shall be the Revision in relation to Suit No. 1417 of 1987 it is being dealt with accordingly. The suit of the applicant was dismissed and so was his appeal. The findings on Issue No. l ,in favour of the applicant were reversed by the appellate Court. In view of conflict between the judgment of trial Court and the first appellate Court. The view of the first appellate Court is to be preferred and reliance has been placed on Mir Muhammad alias Miral v. Ghulam Muhammad (PLD. 1996 Karachi 202). In relation to the submissions made for Suit No.700 of 1979 I am afraid, sitting in the revisional jurisdiction the attack on such judgment which was given in 1979 by this Court will be beyond my authority to express any opinion on such judgment. In relation to the issues arising out of Suit No. 1746 of 1987 which was the basis of allowing the appeal filed by the respondent could not be entertained as no separate Revision Application has been filed. In relation to the judgment of Hon'ble Supreme Court reported as Tanveer Jamshed and another v. Raja Ghulam Haider (1992 SCMR 917) suffice it to say that the issues in that judgment were in relation to the period of 1974 i.e. when section 10(2) was not amended. After the amendment of section 10 no separate suit could be filed since the suit was filed in 1987 i.e. after 1980 when the law was amended the findings of the appellate Court are reversed. The net result of these findings are that the Revision Application filed by the applicant is dismissed with no order as to costs."

12. These are the reasons for such finding. (a) In the abovequoted order since only one Revision application has been filed and as maintained by the learned counsel for the applicants that his said application may be treated as a challenge in relation to his Suit No. 1417 of 1987 and Appeal No. 167 of 1994. While it is the right of the counsel to select the proceedings under challenge as such this matter will be treated arising out of Suit No. 1417 of 1987 and Appeal No.67 of 1994 and not in relation to Suit No. 1746 of 1987 and Appeal No.68 of 1994. Since the proceedings in appeal No.68 arising out of Suit No.1746 are not challenged in this Revision Application, the findings on such issues and the decision of the appellate Court are maintained as there is no challenge of such findings. (b) This brings me to the suit filed by the applicants and the issues arising there from. The trial Court on Issue No. l held as follows; "I have perused the evidence of the defendant and found that no positive proof has been filed by the defendant to show that the declaration of gift, was forged and fabricated documents. The burden of proof heavily lies upon the defendant but who has failed to discharge the same. Section 115 of Qanun‑e‑Shahadat says that whoever desires a judgment as to any legal right must prove it "otherwise the said declaration of gift has challenged for the first time in Suit No. 1746 of 1987 after expiry of 19 years. Section 90 of Qanun‑e‑Shahadat says that "the law presumes any document to be genuine which is certified by any officer of the Federal or Provincial Government." Ext.P/3 admittedly attested by First Class Magistrate and the Court shall presume that this document to be genuine and no presumption can be drawn by attestation made by on other Commissioner and the said document cannot be challenged after about 19 years on this ground otherwise the three essential under Muhammadan Law are present in the alleged gift deed and according to the section 139 of Muhammadan Law every Muslim of sound mind not a minor made disposed of his property by gift. Mst. Hasiria Bai was fully competent to make a valid gift of her property and there is no difference between Shia, Sunni or Bohri sects etc. Hence in the light of above discussion I am inclined to say that the Declaration of Gift is valid effective and genuine document." (c) The Trial Court earlier has mentioned the evidence but has not analysed the evidence. As against this finding the appellate Court has held as follows on the said issue; "The entire case of plaintiff of Suit No. 1417 of 1987 is based upon this issue. The above issue relates with the‑factum of gift. It is an admitted position that plaintiff in Suit No. 1746 of 1987 denied the factum of alleged gift and when there is denial from the side of the other side on the factum of gift than in such circumstances according to Article 118 of Qanun‑e‑Shahadat onus to prove factum of gift would lie heavily on person claiming to be the donee, but in this case donee plaintiff of Suit No. 1417 of 1987 has failed to prove the factum of valid gift for the following reasons. The first point in this case is that according to eidence of plaintiff in Suit No.1417 of 1987, Mst. Hasina Bai made vi gift of suit property on 9‑7‑1968 in favour of plaintiff of Suit No. 1417 of 1987 but the question arises which thing prevented deceased Hasina Bai from not disclosing such fact of gift before K.M.C., K.D.A. in order to change the title of building as per gift. Not only this, but although the plaintiff in Suit No.1417 of 1987 alleges that there was gift in his favour in the year 1968 yet even he too did not care to get the title changed in his favour. The another point in this case is that in support of alleged gift plaintiff in Suit No.1417 of 1987 prepared document viz declaration gift as Exh.P/3. The said document discloses the signature of Mst. Hasina Bai over it.. In order to rebut the contention of plaintiff of Suit No. 1417 of 1987, plaintiff in Suit No. 1746 of 1987 filed original passport of Mst. Hasina Bai which clearly discloses that Mst. Hasina Bai was an illiterate lady and always putting R.T.I. over the documents. Signature over document viz. declaration of gift deed creates serious doubt on the validity of gift. Another point In this case is that witness of gift deed has not been examined by the plaintiff in Suit. Magistrate who attested the gift has also not been examined by the plaintiff of Suit No.1417 of 1987 declaration of gift deed discloses the signature of Rehman who signed over said document on 9‑7‑1968 as Oath Commissioner but certificate issued .by Registrar High Court discloses that at the time of signing the declaration of gift Mr. Rahman was not the Oath Commissioner as according to certificate of Sindh Hig‑: Court Mr. Rahman became the Oath Commissioner in the year 1972. No doubt plaintiff in his deposition deposed that Mst. Hasina Bai made gift in their favour but it has nowhere been mentioned in the evidence as to‑what was motive for deceased Hasina Bai to make gift of her property. The entire evidence of plaintiff is totally silent in respect of motive of gift. None production of any concern witness and further R.T.I. of Mst. Hasina Bai over passport creates serious doubt on the existence valid of gift: This evidence led in proof of gift is far from being satisfactory. It is neither convincing nor creditable on the contrary story set up by the plaintiff in Suit No.1417 of 1987 is totally unbelievable. Although plaintiff in Suit No.1417 of 1987 alleged that he was collecting the rent from the tenants from 1979 yet here point arises as to which thing prevented the plaintiff from not collecting the rent from date of gift viz in 1968. Moreover even no rent receipt was‑ produced by plaintiff in Suit No.1417 of 1987. Attorney has deposed in his evidence that Mst. Hasina Bai has expired in India in 1969 but death certificate produced by plaintiff in Suit No.1746 of 1987 clearly discloses that Mst. Hasina Bai died in 1970. So far all purposes it has been proved that alleged story of gift is after thought just to usurp the property of real person. It is proved that gift deed is forged and fabricated. The issue is answered accordingly." (d) In the proper perspective it will be noted that the appellate Court weighed the evidence on the issue. Even otherwise Gift Deed is not registered as required under section 17 of the Registration Act of 1908. The gift is not conclusive unless registered. Moreover, the appellate Court has recorded findings of fact that late Hasina Bai was illiterate and yet the Gift Deed bears her signature. No evidence came on record that late Hasina Bai was such a religious person, that she would donate her property. Even the recipient of gift had no knowledge as to when late Hasina Bai expired. The findings of the appellate Court are inspiring more confidence as against the trial Court finding. Even otherwise this' Court has ruled in the case of Mir Muhammad v. Ghulam Muhammad (PLD 1996 Karachi 202) that .n case of conflict A findings between the trial Court and the appellate Court, the findings of appellate Court should be maintained unless they are perverse in law. Consequently, the findings of first appellate Court are maintained. (e) Op Issue No.7 the trial Court held as follows;

The above issue are very material to both the suits are interconnected. Hence I would like to discuss them first and together in Suit No.1417 of 1987 Jamia Masjid City Court has challenged the ex parte decree and judgment dated 21‑2‑1980 which was passed in Suit No.700 of 1979 and also prayed to declare the Masjid as lawful owner and further prayed to mutate his name in the record of right. In Suit No. 1746 of 1987 one Safdar Ali being a legal heir of Mst. Hasina Bai sought relief that to declare the gift deed dated 9‑7‑1967 as null void, forged and fabricated documents. I have heard the learned Advocates of both sides and keenly perused the relevant record of proceedings in appeals that the alleged gift deed was made on 9‑7‑1967 by one Hasina Bai then other of late Safdar Ali and actual owner of property bearing No.5 Sheet No.W.O. measuring 262 sq,yds. in double storey building situated in front of the aforesaid mosque. Since the mosque is in possession in respect of the property bearing Survey No.5 Sheet No.W.0.8 measuring 262 sq.yds. with building consisting upon two stories constructed thereon situated at Wadhumal Odharain Quarters opposite City Court Karachi without any objection and interference from any side. Admittedly Safdar Ali filed Rent Case against the tenant of mosque but he has not filed any case or suit against Masjid and for the 'first time he had filed Suit No.700 of 1979 and obtained ex parte decree on 27‑1‑1980 in that suit Masjid was not made party and later on he got mutated in his name in record of C.D.C. Since then Masjid Committee did not challenge the said ex prate judgment and remained fail to file an application under section 12(2), C.P.C. till filing the present suit, therefore, after about 9 years this suit is not maintainable being time‑barred. Hence dismissed with costs." The findings of appellate Court are at Page‑45 of the record and after quoting from the judgment of Hon'ble Supreme Court the appellate Court came to the following conclusions; "Learned counsel, therefore, argued that in view of the above authority there is no force in the finding of the trial Court on this issue. On the other hand learned counsel for plaintiff in Suit No. 1417 of 1987 argued that insertion of section 12(2), C.P.C. by amending Ordinance Xth of 1980 entitlement to challenge the validity of a judgment and decree on the plea of fraud and misrepresentation by way of filing in suit has been taken away by Statute hence in such circumstances plaintiff in Suit No.1417 of 1987 was not entitled to file fresh suit and, therefore, said suit was hit under section 12(2), C. P. C. and was not maintainable. I have perused the record and from its perusal it appears that plaintiff of Suit No.1417 of 1987 was not party in Suit No.700 of 1979 and, therefore, in such circumstances plaintiff can be treated as third party and in view of authority viz 1992 SCMR 918 plaintiff being third party had two options firstly either he should file separate suit or he may file application under section 12(2), C.P.C. Moreover, law also favours adjudication on merits. In the present case learned trial Court could have easily converted the above suit of plaintiff into application under section 12(2), C.P.C. So far all purposes the Suit No. 1417 of 1987 of the plaintiff was maintainable." (f) While going through the judgment of Hon'ble Supreme Court quoted 'supra, the facts of the reported judgment would reveal that the dispute in the reported case was in rent matters and was pertaining to the year 1974. While the law was amended through Ordinance X of 1980 on 26‑3‑1980. The judgment and decree in Suit No.700 of 1979 was passed on 21‑2‑1980 as shown by the applicant himself. The judgment and decree was passed by this Court was assailed before the trial Judge. The judgment and decree passed in High Court suit was in relation to civil dispute and not in rent matters. (g) It is well‑settled that the Courts decide the disputed question of law which are embedded on the some facts. The principles enunciated by the superior Courts are no doubt binding and particularly Hon'ble Supreme Court. In the reported case the issues were revolving around rent matters and pertaining to the year 1974, as stated earlier. As that time section. 12(2), C.P.C. was not added. More particularly rent matters are outside the purview of section 12(2), C.P.C. Examining the judgment of Hon'ble Supreme Court would obviously be not applicable in circumstances of this case. Moreover, this Court in this matter is not sitting as appellate Court in relation to the Suit No.700 of 1979 decreed by this Court. As such the findings of the trial Court are correct in accordance with law the findings of appellate Court are opposed to section 12(2), C.P.C. and not sustainable in law, therefore, reversed. (h) It was further contended that since Suit No. 1154 of 1987 was dismissed which was filed earlier by respondent No. l against the tenants in which the applicant was made as party, such dismissal of suit should have been taken note of before the suit of respondent No.2 (Suit No. 1746 of 1987) which was decreed by appellate Court. The plaint of that suit was not filed. The Court was prevented from such documents and was not even part of record, nor any issue was framed as such the Court cannot give findings in vacuum as no factual basis were set by the applicant. Even otherwise this revision is not dealing with appeal or findings in relation to the suit filed by the respondent No.

1. Consequently, I am unable to entertain such contention. (i) It was further contended that the gift was attested by Magistrate and could not be declared invalid as under Qanune‑e‑Shahadat Order, the presumption of correctness was attached to such gift. The appellate Judges ruled that the gift was also attested by the Oath Commissioner in 1968 while that Oath Commissioner was appointed in 1972. The seal of Oath Commissioner was proved to be false. Even the name of Magistrate who attested is not mentioned, and under which authority of law he could attest Gift Deed, was also not disclosed. As such no exception could be taken against the findings of appellate Court. (k) The last contention urged was that the respondent No.2 has not prayed for possession as such no relief could be granted to the respondent No.

1. Suffice to say that technicalities unless they pose insurmountable difficulties in the administration of justice are not to be looked into. Even otherwise this revision as stated earlier does not pertain to the, suit and the relief claimed by respondent No. l as such I am not entertaining the plea urged by the applicant. The upshot of the above discussion is that this revision application is dismissed with no order as to costs. A.A./J‑20/K Revision dismissed.