1994 PLP 2268 (SCMR)

Nemo for Respondent. Date of hearing: 23rd August, 1994. MUHAMMAD MUNIR KHAN, J‑‑‑This petition is directed against the order of High Court of Sindh, Karachi dated 7‑3‑1994 whereby the second appeal filed by the petitioners against the judgment and decree of the learned Additional District Judge, Karachi (West) dated 8‑11‑1992, was dismissed.

2. On 18‑4‑1990, Mst. Razia Sultana/respondent, filed a suit for possession on the basis of title of Plot No.D‑31‑A with all constructions thereon, permanent injunction and mesne profits, against the petitioners in the Court of Senior Civil Judge, Karachi West. The suit was resisted. As many as seven issues were framed. Parties produced their evidence. The trial Court dismissed the suit on 13‑11‑1991. The respondent filed an appeal which was allowed by the learned Additional District Judge, Karachi on 8‑11‑1993 and the suit of the respondent was decreed. Feeling aggrieved by the judgment and decree of the learned Additional District Judge the petitioners filed Second Appeal in the High Court of Sindh, Karachi which was dismissed on 7‑3‑1994. Hence this petition.

3. Mst. Razia Sultana, respondent claims entitlement to the disputed plot on the basis of gift by her deceased husband Shamimur Rahman the owner of the plot. On the other hand, Muhammad Munir, defendant/petitioner No.2 claims right to possess the disputed plot as its owner on the basis of sale‑deed Exh.D.2 allegedly executed in his favour by Arshad Mahmood Abbasi who earlier had purchased the same vide sale‑deed Exh.D.3 from Muhammad Imran, owner of the plot. The learned Additional District Judge came to the conclusion that Mst. Razia Sultana/respondent was owner of the disputed plot on the basis of valid gift from her husband and the documents relied on by the defendant petitioners were forged. The High Court of Sindh, Karachi had endorsed the finding of the learned Additional District Judge.

4. Before us, the learned counsel for the petitioners had raised the following points:‑‑ (1) That the suit suffers from non joinder of Arshad Mahmood Abbasi who vide agreement Exh.D.2 had sold and delivered the possession of the plot in dispute to defendants /petitioners. (2) That Mst. Razia Sultana, plaintiff/respondent has failed to prove her title in the plot in dispute and the fact of the matter is that Muhammad Imran, the real owner of the plot had sold it to Arshad Mahmood Abbasi who further alienated the same to Muhammad Munir, petitioner No. 2, for consideration vide sale‑deed Exh. D.2, and that documents Exhs. D.2 and D.3 are genuine, and not forged. Reliance has been placed on Emmanual Ojagar and others v. Miss Rozina Mall (1991 SCMR 1863).

5. We do not agree with the learned counsel for the petitioners. Necessary parties are persons who ought to have been joined as parties and in whose absence no effective decree can be passed. Proper parties are persons whose presence before the Court is necessary to enable it effectively and completely to adjudicate upon and settle all questions involved in the suit. In the instant case Arshad Mahmood Abbasi is not in the possession of the disputed plot. While appearing as a witness for the plaintiff (statement at pages 79 to 81 of the Paper Book), Arshad Mahmood has not shown any interest in the disputed plot. He rather stated that the disputed house belongs to the plaintiff/respondent. He has denied the execution of any sale‑deed by him in favour of Muhammad Munir/defendant. He has also denied to have received Rs.50,000 as consideration from Muhammad Munir for the sale of the house. In this view of the matter, he was/is neither necessary party, nor proper party. Even otherwise, under rule 9 of Order I, C.P.C. no suit shall be defeated by reasons of the non- joinder of parties and the Court may in every suit deal with the matter in controversy so far as regards the right and interest of the parties actually before it.

6. Adverting to point No. (2), we find that issues Nos.3 and 6 relatable to the right/title of the parties in the disputed property are issues of fact. The learned Additional District Judge and the learned High Court both have applied mind to the relevant evidence and have concurrently come to the conclusion that Mst. Razia Sultana/respondent was entitled to the disputed property on the basis of a valid gift and that the sale‑deeds relied on by the defendants/petitioners were forged. Arshad Mahmood Abbasi for whom Muhammad Munir claims to have purchased the disputed property for Rs.50,000 vide document Exh. D.2 has appeared as a witness. Strangely enough, he was not confronted with these documents. He was not even confronted with his previous statement allegedly made by him .in the criminal case in accordance with the provisions of section 145 of the old Evidence Act. The case‑law relied on by the learned counsel for the petitioners is not applicable to the facts of this case.

7. We find no merit in this petition. Leave to appeal is, therefore, refused. A. A./R‑240/S Leave refused