2015 PLP 1602 (YLR)

ZAFAR AHMED RAJPUT, J.

This Second Appeal under section 100, C.P.C. is directed against the judgment and decree dated 16-8-2014 and 21-8-2014 respectively, whereby the learned Vth Additional District Judge, Karachi (South), dismissing the Civil Appeal No. 21 of 2014, maintained the judgment and decree dated 6-12-2013 and 13-12-2013 respectively, passed by the learned IVth Senior Civil Judge, Karachi (South) in Civil Suit No. 1031 of 2007, filed by the respondents/plaintiffs Nos. 1 to 5 against the appellant/defendant.

2. Briefly stated, the facts of the case are that the respondents/plaintiffs filed the aforementioned civil suit against the appellant for declaration, mandatory injunction, possession and mesne profit, alleging therein that they are real owners of the immovable property known as Ahmed Building, constructed on Plot No. WO-4/ 13-D, situated adjacent to Caf Naseem at Bambridge Road, Nanakwara, Karachi, where one Muhammad Bahadur was residing in the ground floor of said building being tenant No.2 since the time of his father's demise and the respondents accepted him as their tenant, who was paying rent to them at the rate of Rs.740 per month while, the appellant /defendant, who is step-sister of the said Muhammad Bahadur, never resided with him in the said premises, and in fact she was residing in a bungalow bearing No. PL-12-C/7, Chandni Chowk, K Area, K.D.A No. 7, Karachi. It is further alleged that the said tenement was a residential tenement and was in occupation of said Muhammad Bahadur till the time of his death, who was employed in M/s. Forbes and Forbes Campbell & Co. Ltd. Karachi and appellant/defendant had no business relationship with said Bahadur. It is case of the respondents that the appellant was motivated by her sons in breaking open the lock and affixing her own lock on the suit property and lodged a claim of tenancy on the pretext that she was doing book binding business with her late step-brother and to cover up her trespassed possession over the suit property, she filed MRC No.911/2007. As such, the respondents filed aforesaid suit with following prayers:-- (a) Declaration that the defendant is not a tenant but a trespasser. (b) Mandatory injunction restraining the defendant from occupying the premises or creating any illegal interest therein and /or selling the premises. (c) Defendant be directed to hand over vacant possession of the aforesaid premises which has been illegally occupied by her. (d) To pay mesne profit at the rate of Rs.500 per month till completion and realization of the possession of the said flat illegally occupied by the defendant. (e) Any other relief that this Court may in the interest of justice deem fit and proper.

3. The appellant/defendant resisted the suit by filing written statement and raised preliminary legal objection in respect of maintainability of the suit claiming to be barred by law and asserted that no cause of action had arisen to the respondents/ plaintiffs for filing of the suit. According to the appellant, her deceased brother was tenant of the respondents and after his death; she became the tenant of the respondents as per law of inheritance and she has been in continuous possession of the suit property. It is further alleged that after filing MRC No. 911/2007, the respondents filed the suit malafidely, even the later did not obtain any Letter of Administration/Heirship Certificate nor even got the Fauti Khata mutated, as such, they (respondents) could not be treated as bona fide owners of the suit property. It is further claimed by the appellant that the deceased Muhammad Bahadur was not only residing in the suit property, but also used to run his business of book binding along with appellant /her sister. The appellant denied to have entered in to the suit property with the connivance of her sons by breaking the locks and she prayed for the dismissal of the suit.

4. Out of the pleadings of the parties, learned trial Court framed following issues for determination:-- (1) Whether the defendant is real sister of tenant Muhammad Bahadur of the plaintiffs, in respect of suit property? (2) Whether the defendant used to reside and did business of book binding with deceased tenant, Muhammad Bahadur in the suit property? (3) Whether the defendant is trespasser in the suit property? (4) Whether the suit of plaintiff is maintainable under the law? (5) Whether the plaintiffs are entitled for the relief claimed? (6) What should the decree be?

5. In order to substantiate their claim, from respondents/plaintiffs side, the respondent/plaintiff No.1 examined himself as Exh. P/1, who produced counter foil of rent receipt No. 32 dated 5-2-2007 as Exh. P/2, counter foil and rent receipt No. 40 dated 28-02-2007, which could not be issued to said Bahadur due to his demise as Exh. P/3 and Form PT/1 in favour of the legal heirs of his father as Exh. P/4. Plaintiff's witnesses Abdul Aziz Arain and Rasheed were examined as Exh. P/5 and Exh. P/6, respectively. The plaintiff No.1 and witnesses were cross-examined by the appellant's side. Thereafter, several opportunities were provided to appellant/ defendant but she failed to lead her evidence, ultimately, her side for evidence was closed vide order dated 28-11-2013. Thereafter, the learned trial Court, after hearing the arguments of learned counsel for the parties while, answering issues Nos. 1 and 2 in negative and issues Nos. 3 to 5 in affirmative, decreed the suit of the respondents in their favour, vide judgment and decree dated 6-12-2013 and 13-12-2013, respectively.

6. The appellant /defendant preferred Civil Appeal No. 21 of 2014 against the said judgment and decree before the learned District Judge, Karachi (South), which was heard and dismissed by the learned Vth Additional District Judge, Karachi (South) vide judgment and decree dated 16-8-2014 and 21-8-2014, respectively. Thereafter, the appellant/defendant has preferred this Second Appeal against the concurrent findings of the Courts below.

7. I have heard Mr. Anwar Ahmed, learned counsel for the appellant and Mr. Muhammad Aqil, learned counsel for respondents and perused the material available on record.

8. By virtue of section 101, C.P.C. a second appeal lies only on grounds covered by section 100, C.P.C. and not otherwise. As per terms of section 100 (ibid) the prerequisites for filing second appeal are; that decision of Courts below is contrary to law; that decision is contrary to usage having force of law; Courts below have failed to determine some material issue of law; and there has been failure to determine material issue of usage having force of law. Therefore, second appeal is permissible in the following cases:- (i) When the decision is against the law. (ii) Some material point of law has been left undecided. (iii) Some substantial error, or procedural and jurisdictional defect has occurred, that resulted in error and defect in the decision on merits. But where there is nothing to show that decision given by Courts below was contrary to law or any usage having the force of law or there had been failure of Courts below to determine issue of law or issue of usage, the appeal is not main-tainable.

9. At very outset the learned counsel for the appellant failed to point out any substantial error, procedural defect, any misreading and non-reading of evidence or any misconceiving of fact or commission of any jurisdictional error by the learned Courts below.

10. It may be noted that in this case issues Nos. 1 and 2 have been framed by the learned trial Court on the pleadings of appellant while, issue No. 3 was framed on the pleadings of respondents.

11. It is matter of record that at the trial the respondents concluded their evidence on 16-7-2012, thereafter the matter was being adjourned for evidence of the appellant but she failed to lead evidence, consequently her side for evidence was closed by the learned trial Court on 29-9-2012. Then the appellant moved an application under section 151, C.P.C. for recalling of the said order dated 29-9-2012, which was allowed by the learned trial Court vide order dated 6-10-2013 with strict direction that she should adduce evidence on next date without fail, and in case of failure her side should be closed. The appellant on the next date of hearing i.e. 8-10-2013 remained absent; consequently her side was closed by the learned trial Court. Later on, again the appellant moved another application under Order XXVI, Rule 1 read with section 151, C.P.C., which was disposed of in the terms that the order dated 8-10-2013 was recalled and the appellant was again provided another opportunity to lead her evidence on the next date without fail, vide order dated 23-10-2013, but the appellant remained indolent, and she did not adduce her evidence, therefore, her side was again closed by the learned trial Court on 28-11-2013. Thus, the appellant miserably failed to prove that she is the real sister of deceased Muhammad Bahadur, the tenant of respondents in respect of the suit premises, and she used to reside with him and did business of book binding with said deceased tenant in the suit property. As such, the learned trial Court rightly decided Issues Nos. 1 and 2 in "Negative".

12. As stated above, the issue No. 3 has been framed on the pleadings of the respondents as it is claim of the respondents that the appellant is trespasser and after the death of original tenant Muhammad Bahadur she, on the instigation of her sons, entered into suit property by breaking open the lock. Such fact even supported by the witness of the respondents, namely, Rasheed Ahmed, who categorically in his evidence deposed that deceased Muhammad Bahadur was his relative as well as his neighbor, the appellant was step-sister of the deceased Muhammad Bahadur and he never seen the appellant visiting deceased Muhammad Bahadur during his life time. This witness was cross-examined by the learned counsel for the appellant, but failed to bring on record any describable fact on record, under which it could be spelt out that the evidence of this witness is not natural and /or the same is tainted with any mala fide, therefore, learned trial Court committed no illegality in answering this issue in affirmative.

13. It has been held by this Court in the case of Abdul Lateef Khan and another v. Gul Rehman and 2 others reported as 1993 MLD 643, that the plaintiffs' deposition in absence of rebuttal is sufficient proof for the claim of plaintiffs. In the case of Abdul Karim v. Ali Raza, reported as 1997 MLD 3098, this Court has held that failure to prove tenancy, the possession of the appellant would be as a trespasser. A tenant occupying the premises without the consent of the landlord is a tenant by sufferance and his status is not better than a trespasser and can be ejected at any time. Reliance can be placed in this regard on the case of Rehman Cotton Factory v. Nichman Company Ltd. reported as PLD 1976 SC 781 and Mian Abdur Rashid v. Province of Punjab, through District Collector, Okara and another reported as PLD 2003 Lahore 389.

14. In view of above discussion, as no case is made out on the ground of any substantial error, procedural defect, any misreading and non-reading of evidence or any misconceiving of fact or commission of any jurisdictional error, the impugned judgments of Courts below do not call for any interference or exercise of discretion on any point or law in the case of concurrent findings. Accordingly, this Second Appeal is dismissed along with listed applications.

15. These are the reasons of short order, announced by me in open Court on 24-3-2015. HBT/U-2/Sindh Petition dismissed.