1988 PLP 139 (MLD)

‑‑‑S. 100 & O. XX, R. 12‑‑Suit for possession and mesne profit‑‑Appellants after purchase of property in auction from a Society instituted suits for possession and mesne profit against occupants of property on allegation that they were trespassers in premises‑‑Suits were contested by occupants/respondents who claimed that they were lawful tenants having been inducted therein by original allottee of property‑‑Trial Court holding them as tenants of premises‑‑Such findings arrived at concurrently by Courts below, based on cogent reasons and evidence and not suffering from any misreading of evidence‑‑Judgment and decree of Courts below dismissing suit filed by appellant, maintained in circumstances. A. Sattar and Wajiuddin Ahmad for Appellant. S. Zafarul Haq for Respondents. Date of hearing: 12th February, 1987. This order will govern the disposal of above‑noted 18 Second Civil Appeals which were filed against common judgment, by which the learned Ist Appellate Court decided 18 first Civil Appeals arising from 9 different Civil Suits instituted by the auction‑purchasers in the P.I.B. Colony against the P.I.B. Co operative Housing Society and the occupants of the quarters for possession and mesne profits. The following admitted facts may be stated here which are necessary for disposal of these appeals and which also formed the background of present litigation. As many as 9 quarters in the Co‑operative Housing Society known as Pir Ilahi Bux‑Co‑operative Housing Society were allotted in the year of 1948‑49 to 9 different persons all of whom were Indian nationals. These allottees who were Indian nationals ‑managed these quarters through a firm known as K.T. Bad‑shah Rashid & Company. The said K.T.Badshah Rashid & Co. let out these quarters from time to time to different persons on, rent and at the relevant time the private respondents in Second Appeals Nos. 157158, 160, 161, 162; 163, 164, 165 and 166 of 1972 were the persons who were occupying these premises as tenants.. It appears that the original allottees of these quarters were Indian national did not pay the transfer price of these quarters to the Society whereupon the Society proposed to cancel their allotment on the ground of default in payment of price and referred the matter for approval of the Registrar Cooperative Society which was approved by the Registrar but on a further reference, the Provincial Government directed that the allottees may first be given time to make payment of the balance of transfer price and upon default by the allottee and after expiry of the time so allowed, the allotment may be cancelled by the Society. In spite of extension of time granted by the Society in accordance with the direction of Provincial Government it appears, that the allottees did not pay the balance transfer price whereupon the allotment made in their favour were terminated by the Society. As a result of termination of their allotment, the allottees instituted Suit No. 143 of 1962 in the Civil Court seeking a declaration that the order of the Registrar Cooperative Society dated 9‑4‑1962 was illegal and as such cancellation of their allotment in pursuance of that order was void. The plaint in the above suit was however, rejected on 21‑10‑1964 on the ground that the suit was barred under section 70 of the Cooperative Societies Act. It may be mentioned here that by about the same time the respondents in Appeal Nos. 157, 158, 160 to 166 of 1972 also instituted Suit No. 412 of 1962 in which they sought a declaration that they were tenants of the Society in respect of quarters in their respective possession. In that suit neither the original allottees nor the subsequently purchasers of these quarters in public auction were parties. This suit was subsequently withdrawn on 22‑3‑1963. Thereafter, another Suit No. 146 of 1962 was instituted in the then High Court of West Pakistan Karachi Bench by K.T. Badshah Rashid and Company on behalf of the original allottees against P.I.B. Cooperative Housing Society which ended in compromise tinder which P.I.B Society admitted claim of the allottees to the extent of Rs. 50,

000. After the above‑compromise which was recorded by the Court in Suit Nos. 146 of 1962 on 15th April, 1963, the Society auctioned the above stated 9 quarters which were purchased by the appellants in Appeals Nos. 157, 158, 160 to 166 of 1972. The appellants after purchase of the property in auction from the Society instituted units for possession and mesnc profit against the occupants on the allegation that they were trespassers in the premises. Alongwith the occupants of these quarters the Society was also made defendant in the above suit. The suits were contested by the occupants/respondents of0iese quarters only who claimed that they were lawful tenants having been inducted therein by the original allottees of the quarters. The learned trial Court as well as Ist Appellate Court on Issue No. 4 framed in these its held the private respondents in Appeals Nos. 157, 158, 160 of 1972 as tenants of the premises in their occupation and repelled the contentions of appellants in these appeals that they were trespassers. The above concurrent finding of the two Courts below is based on cogent reasoning and evidence and the learned counsel is unable to point out any misreading of evidence in this regard by the Courts below. However, the learned counsel for the appellants in all the above 18 appeals jointly contended that in so far finding of the Courts below on issues Nos. 2 and 3 holding that disposal of property by the Society in favour of appellants in Appeals Nos. 157, 160 to 166 of 1972 by sanction was not legal is concerned the same cannot be sustained in law as it is outside the scope of the suit. It appears that the private respondents in Appeals Nos. 157, 158, 160 to 166 of 1972 who claimed to be tenants of the quarters in their respective possession had pleaded in their written statements that the transfer made in favour of the auction‑purchaser by the Society was not legal and accordingly Issues Nos. 2 and 3 were drawn on the above pleas, but the decision of this issue is apparently outside the scope of suit as in the suit instituted by auction‑purchaser the controversy was restricted to the fact whether they were entitled to claim possession and mesne profit from the occupants who were claiming rights in the quarter. The transfer made in favour of appellants in appeals Nos. 157, 158, 160 to 166 of 1972 was not disputed by the Society who sold the disputed quarters to them by' auction. The private respondents in then; appeals were claiming tenancy rights in these quarters and the Courts below having found in their favour could not further declare the transfer of these quarters in favour of appellants illegal as the frame of suit did not admit of any such adjudication in favour of respondents/defendants. I accordingly allow the above appeal only to the extent that the findings of the two Courts below on Issues Nos. 2 and 3 are reversed. However, in spite of reversal of the findings of Courts below, on Issues Nos. 2 arid 3, the judgment and decree dismissing the suits filed by appellants in Appeals Nos. 157, 158 and 160 to 166 of 1972 are maintained. There will be no order as to costs. M.Y.H./S‑198/K Appeals partly allowed.