2007 PLP 12 (YLR)

MUNIB AHMED KHAN, J.--Dispute in Revision Applications Nos.95 of 1992 and 96 of 1992 is in respect to share in property bearing House No.E/909, CS No.1268, Gharibabad, Mirpurkhas, measuring 800 Sq.ft.

2. The plaintiff Liaquat Ali in Suit No.54 of 1980 filed the said suit for partition and separate possession in respect of 50% share in the above property on the ground that his father Muhammad Ali was one of the legal heirs of Mst. Mehran Bibi, the grandmother of the plaintiff and 50% share of Muhammad Ali has been purchased by him through registered sale-deed dated 1-3-1977. Since the property remains in possession of Shoukat Ali the defendant in the suit, therefore, partition was asked. On the other hand Nazir Ahmed son of Shoukat Ali also filed a Suit No.78 of 1985 for Declaration and Permanent Injunction against Muhammad Ali and Liaquat Ali, praying therein that the Foti Khata of Mst. Mehran Bibi changed in respect of the above property by inserting name of Liaquat Ali as 50% owner on the basis of sale-deed may be declared invalid. Both the suits were consolidated by the Civil Court and Suit No.54 of 1980 filed by Liaquat Ali was decreed while Suit No.76 of 1985 filed by Nazir Ahmed was dismissed. Against the judgment in Suit No.54 of 1980 Nazir Ahmed filed Appeal No.64 of 1989 while against the judgment in Suit No.76 of 1985, another Appeal No.74 of 1989 was filed. Both these appeals we're heard but were dismissed by one judgment dated 11-5-1992. The Additional District Judge was pleased to maintain the consolidated judgments of the Civil Court dated 26-9-1989 both the appeals. Now the applicant Nazir Ahmed has filed both these revisions against the said consolidate judgments on the ground that although the suit filed by Liaquat Ali for declaration in respect of his portion in the property but no preliminary decree was passed which is an illegality and final decree subsequent to it is not legal. Learned counsel has further relied upon the grounds as mentioned in the revision application and are reproduced as under and have not pointed out any other illegality in the judgments: Grounds (1) That the learned lower Courts have committed gross illegality and irregularity in dismissing plaintiff/ applicant's Appeal and Suit No.78 of 1985. (2) That the learned lower Appellate Court has failed to exercise jurisdiction vested in it. (3) That the impugned judgment and decree are illegal, bad in law as well as on facts. (4) That the learned lower Appellate Court has committed illegality and had based its decision on conjectures and surmises. (5) That the impugned judgment and decree is without jurisdiction. (6) That the learned lower Courts have failed to apply their judicial mind to the facts of the case and the law referred by the plaintiff/applicant. (7) That the impugned judgment and decree are not sustainable in law.

3. I have observed from both the revisions that the ground taken in both of them are same and are reproduction of each other.

4. On the other hand, learned counsel for respondent Liaquat Ali has argued that admittedly Muhammad Ali is the son of Mst. Mehran Bibi the owner of the property and after her death the property was devolved upon the legal heirs, and since Muhammad Ali was one of the sons therefore, he also inherited with Shoukat Ali and 50% share of Muhammad Ali was purchased by him through registered sale-deed. He has further submitted that even otherwise, being a son, he could have also been entitled to the 50% share of Muhammad Ali but the defendant in the suit i.e. Shoukat Ali's legal heir, who are in possession of the suit property since 1977 or earlier have not allowed any share in the property to him and he may be given mesne profits as he remained deprived of his right from the date of registered sale-deed dated 19-3-1977. The learned counsel for the applicant have further pointed out that there were other legal heirs i.e. daughters of Mst. Mehran Bibi but have been ignored totally. To this, the learned counsel for the respondent has submitted that it is a frivolous objection as firstly the applicant himself did not try in the last more than 25 years to implead these ladies in the suit nor these ladies themselves came to the Court for becoming party for the reason that their share was given to them. The respondent counsel has further submitted that the sale-deed dated 19-3-1977 is a registered document and the said document has not been challenged nor any prayer for its cancellation has been made to the Court in the suit filed by Shoukat Ali or his legal heirs, therefore, it stand confirmed. He has further submitted that in the entire proceeding neither any effort was made by the applicant for calling the ladies as witnesses or to implead them as a party nor they being aware of the proceedings made any effort and further the issue never came before the Court in this respect, therefore, this Court to decide the issue on the basis of record available.

5. I have gone through the factual position and have considered the arguments. It is an admitted position that Muhammad Ali was one of the sons of Mst. Mehran Bibi notwithstanding fact that the defendant in the Suit No.54 of 1980 tried to ignore him as a legal heir but from the contrary documents as well as title in the another suit, which came on record, lower Courts reached to the conclusion that Muhammad Ali was one of the legal heirs of Mst. Mehran Bibi and is a legal heir. Learned counsel for the applicant could not find out any other illegality or infirmity which may be termed as material irregularity to interfere with the judgments passed by the Additional District Judge.

6. In the circumstance both these revision applications stand dismissed with costs of Rs.5,000 each. Learned counsel for the respondent further stated that he is entitled to mesne profits as the property remained in possession of Shoukat Ali and his legal heirs and at least mesne profit at the rate of Rs.200 per month from the date of sale-deed dated 19-3-1977 till now may be granted. Since there was no prayer in the suit, therefore, it cannot be granted at the moment. But since revisions are dismissed with costs, he would be compensated to some extent. H.B.T./N-32/K Revisions dismissed.