1985 PLP 1284 (SCMR)

Nemo for Respondent. Date of hearing: 19th March, 1984. ZAFFAR HUSSAIN MIRZA, J.‑‑Petitioner No. 2 was transferred house No. 1994 on his L. H . Form by the Settlement Authorities on 4‑12‑1960. There existed factory premises adjoining the above house which was disposed of as Nos. 1992 and 1993 by auction in favour of respondent. A dispute having arisen, in that petitioner claimed that the factory existed on the property described in his transfer documents, the matter came before Deputy Settlement Commissioner, who held that property auctioned in favour of the respondent as factory actually included a portion of C.S. No. 1994 measuring 131.4 sq.yds., on which the factory partly existed. On appeal the Additional Settlement Commissioner re‑examined the case and found that the second petitioner was transferred the house in his occupation which was actually constructed over a portion of C.S. No. 1994 and the whole survey number was not transferred to him, particularly when a local was not entitled to transfer, of factory premises on L.H. Form. This was also verified by the Chief Officer, Larkana Municipality. Accordingly the appeal filed by second petitioner was dismissed by the Additional Settlement Commissioner vide his order, dated 8‑3‑1965.

2. It. appears that the second petitioner, in the meantime transferred the house transferred to him in favour of his son the first petitioner, by means of registered sale‑deed, dated 10‑12‑1962. As the first petitioner, claiming title on the basis of the sale‑deed in his favour, sought to eject the tenants of the respondent from the factory premises, the respondent, therefore, filed a suit on 20‑10‑1971 for cancellation of the sale‑deed and payment of the amount of rent recovered by the petitioners from his tenants. This suit was dismissed by the 1st Senior Civil Judge, Larkana on 24‑6‑1978. On respondent's appeal, however, the suit was decreed by the learned Additional District Judge, Larkana vide his judgment, dated 25‑4‑1982.

3. Feeling aggrieved the petitioners filed a revision before the Sind High Court which was dismissed by a learned Single Judge of that Court by judgment, dated 1‑9‑1983. The petitioners have, therefore, brought this petition seeking leave to appeal.

4. In their revision petition the petitioners had mainly raised two contentions. Their first contention was that the suit of the respondent was barred by limitation and secondly that the suit was bad in form inasmuch as no consequential relief of possession was,. prayed for. The learned Judge in the High Court did not find force in both these contentions. He held on the first point that the plea of limitation not having been raised by the petitioners in their written statement and no issue on this legal objection having been tried by the Courts below, the petitioners were not entitled to urge this objection at the revisional stage. Even otherwise it was found that on merits the plea was not sustainable. In this connection reference was made to an express averment by the respondent in the plaint that he came to know about the fraudulent sale‑deed on 26‑4‑1969. This averment was not denied by the petitioners in their written statement and since the suit was filed within three years from this date of knowledge of the fraudulent transaction, the learned Judge held that the suit was well within time. As regards the second contention since the admitted position was that some tenants were in actual physical possession of the disputed property, the learned Judge was of the view that the relief of possession was not available to the respondent. Further even this plea was not raised in the trial Court or before the appellate Court.

5. Mr. N.K. Jatoi, learned counsel appearing for the petitioners has reiterated the aforementioned two contentions in support of this petition. After hearing him at length we find that the High Court has appropriately disposed of the points urged on valid grounds and there is no error or other legal flaw in the judgment of the High Court. This petition is, therefore, without force and is dismissed. M. I. Petition dismissed.