1988 PLP 1268 (MLD)

This second appeal is directed against the judgment dated 6‑12‑1978 passed by the learned Vth Additional District Judge, Karachi in Civil Appeal No.58 of 1975, whereby the judgment/decree dated 13‑3‑1975 of the learned find civil Judge, Karachi in Suit No.923 of 1969 was modified to the extent that the relief for possession was deleted and the alternate relief for payment of Rs.3,000 was substituted. The appellants being aggrieved by the above judgment have filed the present appeal.

2. The brief facts leading to the filing of the above appeal are that respondents filed aforesaid suit for possession of Quarter No.4/496, Drigh Colony, Karachi, hereinafter referred to as the Quarter, and for mesne profits. It was averred in the plaint that the Quarter was in occupation of her mother Mst. Hameeda alias Ladoo till her death. It was further averred that the Quarter was allotted to the plaintiff's brother named Samiullah, who was in England for about 15 years at the time of filing of the suit. It was further averred that defendants Nos.1 to 4/appellants Nos.1 to 4 were residing at Multan and when her mother expired, the portion in possession of her mother had fallen vacant on her death and the other portion was in possession of a tenant by the name of Hyder. It was further averred that when all the relations assembled after the death of Mst. Hameeda, it was mutually agreed upon that the Quarter should remain in the name of Samiullah while possession should be given !o one of the sisters, who might be prepared to pay a sum of Rs.3,000 in the name of God. It was further averred that the plaintiff had agreed to the above proposal but defendant No.1 did not agree to it. It was also averred that the plaintiff paid the above sum of Rs.3,000 on various dates mentioned in the plaint and a sum of Rs.1,000 was sent to defendant No.1 by money order in order to help her for arranging the marriage. It was also averred that because of the above arrangement, the plaintiff acquired title. It was also asserted that the aforesaid tenant Hyder also vacated the portion of the Quarter and, therefore, the entire Quarter had fallen vacant and was locked. It was further averred that on 4‑3‑1969 defendants came from Multan and without permission of the plaintiff occupied the entire Quarter by breaking open the lock which incident was reported to the police. Thereupon, defendant undertook either to pay Rs.3,000 or to vacate the Quarter. It was further averred that since the defendant had not paid the above sum of Rs.3,000 nor had vacated the Quarter, she had riled the suit. The defendants/appellants in their written statement had denied the allegations contained in the plaint but admitted the factum that the Quarter was allotted to the brother of the respondent No.1, who was also the brother of the plaintiff and he was in England for about 15 years. It was further averred that after the death of the mother, their father left for Multan for treatment leaving behind defendants Nos.1 to 4 in possession of the said Quarter and that in the absence of defendant No.1's father, the plaintiff and her husband wanted to take the possession of the Quarter by force which matter was reported to the police.

3. On the basis of the pleadings of the parties as many as 9 issues were framed. The plaintiff examined Mirza Abdul Hafiz as Ex.5; Hafiz Noor Muhammad as Ex.6; Umerdaraz, attorney of the plaintiff as Ex.7; Salimullah as W Ex.8; and Ashraf Khan as Ex 9, whereas the defendants/appellants did not lead , any evidence. The learned trial Court after hearing the parties passed the aforesaid judgment and decree on 13‑3‑1975 decreeing the suit for possession of the Quarter and also decreeing mesne profits at the rate of Rs.70 p.m. from the date of the suit till the delivery of vacant and peaceful possession, subject to payment. of deficit court‑fee on the mesne profits. The appellants being aggrieved by the above judgment and decree had filed the aforesaid Civil Appeal No.58 of 1975, which was allowed partly by the aforesaid judgment and decree dated 6‑12‑1978 in the above terms. The appellants being aggrieved by the above appellate judgment and decree have filed the present second appeal, whereas the respondent had filed cross‑objections.

4. As observed hereinabove that the appellants and the respondent are inter se related inasmuch as appellant No.1 and the respondent are real sisters. The learned appellate Court has passed an equitable judgment on cogent reasons A by modifying the decree as to the possession and allowing a sum of Rs.3,000 to the respondent, which amount was allegedly spent by her. The parties are reverted back to the position, when Mst. Hameeda expired. In my view, the above judgment and decree do not call for interference either in the above second appeal or in the aforesaid cross‑objections. I would, therefore, dismiss the appeal as well as cross‑objections but there will be no order as to costs. M.Y.H /W‑26/K Appeal dismissed.