P L D 1988 Karachi 425 (PLP)

This IInd Appeal is directed against the judgment and decree of the learned Ist Additional District Judge, Hyderabad, dated 23‑1‑1984 in Civil Appeal No.40 of 1981, whereby he set aside the judgment and decree of the learned Civil Judge, Umerkot, dated 30‑7‑1981 in Suit No.27 of 1971.

2. The brief facts leading to this appeal are, that three shops bearing Nos. B/33, B/34 and B/35 in Dhoro Naro Town were transferred by the Settlement Authorities to three different persons. Shop No.B/33 was transferred to the appellant, Shop No.B/34 was transferred to one Dr Sami and Shot) No.B/35 is said to have been transferred to one Abdul Hakeem, but is admittedly presently owned by the respondent.. Premises bearing No.34/1 which is subject‑matter of the dispute between the parties is said to be over the roof of Shops 'bearing No.33 and

34. The staircase leading to the roof of the two shops is admittedly in between Shops Nos.33 and 34 and has independent opening on the road. Premises No.34/1 was auctioned by Settlement Authorities and in the first instance it was purchased by the appellant for Rs.1,

600. The appellant failed to pay the auction amount and consequently it was re‑auctioned by the Settlement Authorities and was purchased by the respondent for Rs.340. The appellant filed appeal and revision against this re‑auction and ultimately the Settlement Authorities gave first option to the appellant to pay original auction price of Rs.1,

600. Against this order the respondent filed constitutional Petition No.818 of 1973 in the High Court which was allowed and the order of the Settlement Authorities was set aside on the ground that after issuance of PTD in favour of the respondent the Settlement Authorities could not cancel this PTD and offer it for purchase to the appellant on the original auction price of Rs.1,

600. Appellant filed petition for leave to appeal bearing No.K‑219 of 1978 in the Supreme Court, which was dismissed by the Hon'ble Supreme Court.

3. The case of the respondent is, that some times before the premises were transferred to the respondent the appellant had taken possession of the premises from the previous occupant and because he failed to get the premises transferred in his name, he demolished the premises and misappropriated the materials of the building. The respondent filed a rent case before the learned Rent Controller for eviction of them appellant, which was allowed by the learned Rent controller but in appeal it was dismissed by the learned District 'Judge, holding, that presently there was no building on the premises in question and as such the question of tenancy did not arise. Consequently, the respondent filed the present suit for possession and mesne profit. The appellant resisted the suit inter alia on the grounds that there was no premises bearing No.34/1 in existence and that the suit was not maintainable. On the pleadings of the parties, the learned trial Court framed the following issues. (1) Whether the defendant is in unauthorised possession of the house bearing No.B‑34/1 transferred to the plaintiff'? (2) Whether the defendant has removed the doors and windows, iron teers with mala fide intention. If so, what effect? (3) Whether House No.B‑34/1 ever existed? (4) Whether the plaintiff is entitled to mesne profits of Rs.10 per month from the defendant? (5) Is the suit not maintainble? (6) Is the suit not properly framed. If so to what effect? (7) Is the suit bad for non‑joinder of Dr. Sami? (8) What should the decree be?

4. The learned trial Court dismissed the suit of the respondent but this judgment was set aside and the suit of plaintiff was decreed vide impugned judgment of the learned Appellate Court.

5. Mr. Hassan Mehmood Baig, learned counsel for the appellant did not press the issues Nos.5 to

7. He also conceded that the premises No.34/1 was transferred to the respondent. His main contention however, was, that the learned Courts below have not determined the location of this premises bearing No.34/1 and that admittedly there was no such building presently in existence and therefore, its location could not be ascertained. In the plaint, the respondent has claimed, that the premises bearing No.34/1 was on the roof of Shops Nos.33 and

34. In his deposition in the Court, he has stated, that this premises consisted of a room and bath room, a verandah and a courtyard. His two witnesses, namely, Karim Bux and Allah Rakha also stated that the premises consisted of room as well as courtyard Plaintiff /respondent has stated, that room was on Shop No.34 whereas courtyard was on the top of the roof of Shop No.33. He is supported by P. W. Karim Bux in this ‑respect . However, Allah Rakha has stated, that the premises was on the top of Shops Nos.34 and 35.

6. The learned Rent Controller had admittedly visited the site in presence of the parties and his inspection notes have been produced by the plaintiff as Exh.32. It shows, "that door of the disputed premises was lying locked and the present appellant opened the lock. The staircase leading to the upper storey was fully covered and there was another door in the end of the staircase from which one could enter into the disputed premises which was open space at that time, but there were marks of old construction over roof which was above the dispensary of Dr. Sami" . 6‑A. The admitted fact, that the appellant had purchased the suit premises in auction for Rs.1,600 and after re‑auction to the respondent, he had agitated the matter before the Settlement Authorities as well as before the Supreme Court after respondent succeeded in his constitutional petition read with the evidence of the plaintiff and his two witnesses leaves no room for doubt, that there was construction in the premises in dispute. The oral evidence of respondent and his witnesses clearly shows, that it consisted of one room over the Shop No.34 and hence it was numbered as 34/1. It may also be pointed, that the evidence of the respondent's witnesses with regard to accommodation of the premises in dispute has not been challenged in their cross‑examination. As already pointed, Mr. Hassan Mahmood Baig has conceded, that the premises bearing No.34/1 were transferred by the Settlement Authorities to the respondent. As pointed above evidence clearly slows, that the constructed portion viz. room was over Shop No.34, The real question, that requires consideration is, whether courtyard of the ,remises was on the roof of Shop No.33 as stated by the plaintiff‑respondent and his witness Karim Bux or on the roof of the shop No.35 as stated by witness Allah Rakha. The appellant has not deposed as to whether the courtyard attached to this room was on the top roof of the Shop No.35. In fact he denies the existence of the premises in question or any construction thereupon which contention is belied by evidence on record as well as the circumstances of the case. All along the dispute between the parties before the Settlement Authorities as well as before the High Court and Supreme Court was over the/roof of the Shops Nos.33 and 34. 1‑he plaintiff has stated in his deposition that 'the roof on the Shop No.35 was not part of premises bearing No.34/1 but it was separated by five feet high wall. Admittedly the staircase which leads to the disputed ;remises Is, in between the Shops Nos.33 and

34. It was claimed by the appellant in his contention before the Supreme Court that this staircase was in fact numbered by the Settlement Authorities as 34/1 and was transferred as such to the respondent but his contention was not accepted by their Lordships of Supreme Court. The location of the staircase indicates, that the premises in dispute was over the roofs of Shops Nos.33 and 34 because if premises No.34/1 had been constructed on roof of Shop Nos.34 and 35 the staircase would normally had been constructed in between Shops.Nos.34 and 35 and not between shop No.33 and 34.

7. There are two conflicting judgments of courts below. The trial Court has disbelieved the evidence of plaintiff and his witnesses and dismissed the suit, whereas, the appellate Court has believed the evidence of the plaintiff and decreed the suit. Mr. Hassan Mehmood Baig has relied upon the case of Alloo v. Sher Khan and others PLO 1985 S C 382, wherein it has been observed by their Lordships, that "if findings of fact reached by first appellate Court was at variance with that of trial Court, former would ordinarily prevail, although it would not possess same value or sanctity as a concurrent finding. Such finding by lower appellate Court would be immune from interference in second appeal only if it was found to be substantiated by evidence on record and was supported by logical reasons duly taking note of reasons adduced by trial Court which had been disfavoured in contrary finding. Finding of first appellate Court being at variance with that of trial Court, two could come in for comparison for their comparative merits in light of facts of case and reasons on which two different findings had respectively proceeded." Reliance was also placed in the case of Allah Din v. Habib P L D 1982 S C 465 wherein their Lordships set aside the judgment in IInd Appeal as no efforts were made by the Court ;while deciding IInd Appeal to examine the reasons advanced in support of their respective findings of the two Courts below with reference to evidence on record nor comparative assessment of such reason was undertaken. It was further held, that the issues in civil proceedings were to be decided on preponderance of evidence. 8. 1 have already discussed the evidence adduced by the parties and the previous litigation between the parties. I have also gone through the judgments of the two Courts below.

9. The learned trial Court in its judgment has not discussed the evidence adduced by the plaintiff /respondent but has mainly relied upon the order of the learned District Judge, Tharparker in the rent appeal referred to above, whereby he allowed the rent appeal filed by the appellant on the ground, that the building no longer existed and tenancy had to be established in respect of the building. The learned Appellate Court has ,considered this reasoning of the learned trial Court. The learned appellate Court has observed, that learned trial Court had failed to consider another relevant portion of the said Judgment whereby the learned District Judge had observed that the appellant was a trespasser, Appellate Court has further rightly pointed, that the learned District Judge had upheld the appeal of appellant only because roofless structure did not fall within the meaning of building under the Rent Restriction Ordinance and therefore there was no relationship of landlord and tenant between tile parties. The learned trial Court has not advanced any valid reasons for disbelieving oral evidence given by the respondent and his witnesses. The learned appellate Court has rightly pointed out, that the learned Civil Judge has not only misread judgment of the learned District Judge, but he has also not cared to discuss the oral and documentary evidence produced by the plaintiff /respondent and as a matter of fact has refused to consider the evidence on record other than the judgment of the learned District Judge and two letters of Settlement Authorities. The learned appellate Court has discussed all the evidence and given cogent reasons for believing evidence of the respondent and his witnesses. 10 1 have already pointed out that even according to the appellant, staircase was wrongly given number 34/1 and was transferred to the respondent by the Settlement Authorities as discussed above. This staircase leads to the roof of the two shops bearing Nos.33 and 34 and the oral, documentary and circumstantial evidence on record indicates that there had been a constructed roan: over the Shop No.34 with its compound on top of Shop No.33 which premises was purchased in auction in the first instance by the appellant and then by the respondent. Under the circumstances the sole word of the appellant, that there was no construction or that premises No.34/' did not exist at all is not' believable and has rightly been disbelieved by the appellate Court The preponderance of evidence proves the case of the a respondent, and I , therefore, ‑see no reason to disagree p with the finding of the learned appellate Court. This Ilnd Appeal is, accordingly, dismissed with no orders as to costs. H . B . T. /A‑301 Appeal dismissed.