2002 PLP 1397 (MLD)

(7) Whether the defendant No.1 is illegally and unauthorisedly occupying the suit house without any legal right and that defendant No.1 to pay Rs.2,000 p.m. as mesne profits to the plaintiff? (8) Whether the plaintiff and other legal theirs as mentioned in para.2 of the plaint are the owners of property in dispute after the death of late Dawood Abdullah? (9) Whether the plaintiff or defendant No. l ever applied to KMC for regularization of the said plot? (10) What should the decree be? (11) Whether the suit barred by limitation? All the issues were decided in favour of the appellant by the learned trial Court. The appellant examined herself and produced the documents and also examined Ali Ahmed and Muhammad Yousuf, whereas respondent. Muhammad Ali examined himself and Muhammad Aslam. No evidence was led by KMC. Learned Trial Court as well as Appellate Court on the Issues Nos.3, 4, 5 and 8 relating to right and title of the subject property on the basis of registered sale‑deed came, to the conclusion that the subject property was owned by late Dawood Abdullah the husband of the appellant to which she succeeded and Mst. Aisha Siddiq hats no right, title or interest over it. The claim of the appellant/plaintiff that Mst. Aisha Siddiq was put in permissive possession of the subject property was also supported by her witnesses namely Ali Muhammad and Yousuf. Respondent Muhammad Ali failed to produce any document to show title of late Aisha Siddiq or that he is her husband. Learned trial Court having come to the conclusion that Muhammad Ali is occupying the said premises illegally and unauthorisedly as such is liable to pay Rs.2,000 p.m. from the date of institution of the suit and till vacant possession is delivered by him. Learned Appellate Court while upholding the finding of the learned trial Court in respect of title of the appellant disallowed the claim of mesne profit at Rs.2,000 p.m. as according to the Appellate Court, appellant failed to lead any evidence to prove such claim and secondly that the subject property was given to Mst. Aisha and her husband Ibrahim due to close relationship without any fair rent. Therefore, the appellant is not entitled for the mesne profit. Mr. K. B Bhutto learned counsel appearing for appellant, Muhammad Ali, in Civil Revision No.8 of 2000 (respondent in IInd Appeal No. l of 2000) contended that the title documents in respect of the subject property were not produced in the evidence in accordance with law, secondly that, the property claimed in the suit is different than what is in possession of respondent, Muhammad Ali. He further contended that suit was hit by non‑joinder of a necessary party Aslam one of the tenant judgment and decree of both the Courts below suffers from the misreading and non‑reading of the evidence and secondly the conflicting conclusion makes out a case of dismissal of the suit and revision is liable to be allowed and Second Appeal No. 1 of 2000 is liable to be dismissed and at the best the matter is liable to be remanded to the learned trial Court for decision afresh after ascertaining the identity of the subject property. Mr. Shaikh Muhammad Usman, learned counsel contended that the full description of the property has been given, identity of property it has not been disputed throughout the proceedings and at Revisional or Appellate such said controversy cannot be urged. He further contended that Muhammad Ali claimed the property by virtue of inheritance and on the basis of Will. According to him, no Will has been produced nor any evidence was produced to show that Muhammad Ali ever married with Mst. Aisha after the death of her first husband Ibrahim and now the Nikahaama that has been placed on record in this Court was never produced before the Trial or Appellate Court. It was further contended that the sale‑deed dated 1943 is a document more than 30 years old under Article 179 of Qanun‑e-Shahadat presumption of its correctness would be attached. I have heard the arguments and perused the record of learned counsel for the parties. Contention of Mr. Bhutto that there is a dispute as to identity of the property does not find support from pleadings, Muhammad Ali, never raised this controversy in fact he claimed hostile title in respect of subject property new plea cannot be allowed to be urged for the first time in revision. Mr. K. B. Bhutto, learned counsel for Muhammad Ali further contended that both the Courts below supported the findings as to title of the appellant Mst. Aisha on the premise that the case was supported by her witness Ali Muhammad and Soomar. It is stated that Soomar was not examined at all and. no finding can be based on his evidence. I have examined the record of learned trial Court, the appellant examined besides herself, one Ali Muhammad and one Muhammad Yousuf whereas the affidavit of Muhammad Soomar though filed but he was not subjected to cross‑examination. Mr. Usman learned counsel for Mst. Aysha Dawood conceded that his affidavit is to be kept out of consideration. But the fact remains that 'the appellant's case was supported by Ali Muhammad and Muhammad Yousuf. Mst. Aisha had produced the original receipt issued by KMC dated 6‑7‑1943 on account of Municipal Tax in respect of the subject property and registered sale‑deed dated 22‑7‑1943 executed in favour of Dawood in support of her claim. She denied a suggestion that sale‑deed is a forged document which was produced as Exh.5/1 in cross -examination. It was also denied that defendant Muhammad Ali was married to Mst. Aisha. Such evidence of the appellant was supported by Ali Muhammad and other witness Muhammad Yousuf nothing worth consideration came out in his cross‑examination that could support the case of Muhammad Ali. Examining the case of Muhammad Ali in his affidavit, he asserted that the subject property was owned by his wife and the conveyance deed is forged and same was never acted upon. It was also claimed that all taxes are paid by the respondent himself and said. Property was purchased by the father of her deceased wife. It was further stated that he married with Mst. Aisha after the death of her first husband Ibrhim. It was further stated that one of the portion of the property is let out to one Aslam Phattan and he is receiving rent. In support of his case, he has only produced photocopy of receipt from KW&SB dated 25‑11‑1989. KESC Bills pertaining to the years of 1982 and 1983 and Road Cutting, Permission dated 5‑4‑1980 and one Form from KMC showing payment of some taxes in the year 1960 by Mst. Aisha daughter of Sidddiq. No other documents were produced to show title of the property favouring Abdullah or Mst. Ayesha Abdullah in cross‑examination, Muhammad Ali admitted not having produced any title documents as there is none. He admitted that he has not produced any documents to show the sale‑deed produced by the appellant is false. He further admitted that he has not produced any Will in the suit. The documents referred to above produced by the respondents were photocopy and not the original. The marriage of Muhammad Ali with deceased Mst. Aisha was also seriously questioned but he did not produce any document before the trial, Court or even before 'the Appellate Court to show that he was married to Mst. Aisha. The witness of respondent, Abdullah was not able to bring anything on record that the either father of Mst. Aisha or Mst. Aisha herself was the owner of property or that respondent Muhammad Ali was married to her. It was admitted by the said witness that one tenant i.e. Aslam is occupying half of the property arid rest half is occupied by Muhammad Ali. Though Muhammad Ali stated in his evidence that when the subject property was let out to Aslam he was present which fact is denied by Muhammad Aslam when he was cross‑examined as his witnesses. Aslam admitted that the marriage of respondent was not solemnized in his presence, said witness also admitted that he has no evidence to show that he was inducted by deceased Mst. Aisha. Learned counsel for Muhammad Ali attempted to rely on a Nikahnama purportedly with deceased Mst. Aisha at this revisional stage to show that he was duly married with Mst. Aisha and he is accordingly entitled to inherit the suit property belonging to her. He has also produced photocopy of the Will purportedly executed by deceased Mst. Aisha in favour of the respondent. I am afraid such documents cannot be taken into consideration at the revisional stage authenticity and veracity of the same is challenged and even otherwise the same are not original but are photocopies. When a particular fact is disputed at the trial stage then it is incumbent on the party seeking reliance on such fact to prove it before the trial Court by producing evidence or documents sought to be relied upon, second chance to do such exercise under given circumstances can only be availed at the First Appellate Stage under Order 41, rule 27, C.P.C. I am also afraid such indulgence cannot be extended at the revisional stage said documents cannot be looked into or taken into consideration. The defence of the respondent throughout rested on a plea that subject property is owned by Mst. Aisha but as discussed above. Nothing was brought on record to substantiate this plea. On the contrary the appellant succeeded in establishing her title of the property resting on registered instrument. Under Article 85(5) read with Article 129(e) of the Qanun‑e‑Shahadat, presumption as to the genuineness, correctness and authenticity of such documents was not dispelled by the respondent and more oral assertion is not sufficient to rebut the registered instrument. In support of above contention one may refer to Moinuddin Paracha v. Sirajuddin Paracha (1994 CLC 247), Muhammad Hussain v. Waheed Ahmed (2000 MLD 281) and Syed Akhtar Hussain Zaidi v. 1988 SCMR

753. In view of the above discussion, I do not see finding on the issue of declaration as to right and entitlement of appellant calling for any interference in these proceedings, no illegality as to exercise of jurisdiction by the two Courts below was pointed out, same are accordingly maintained. Revision application challenging such finding is accordingly dismissed. Now adverting to the merits of appeal, learned counsel Shaikh Muhammad Usman contended that once Court comes to a conclusion that the possession is unauthorized then compensation by way of mesne profit ought to have been awarded. It is further contended that the occupant Muhammad Ali had not disputed the claims of mesne profit or as to the quantum of the amount stated in his affidavit‑in‑evidence of the appellant Mst. Aisha. It was further contended that the demand of Rs. 2,000 was also made through legal notice dated 13‑8‑1997 to which Muhammad Ali gave a evasive reply. Learned counsel for the respondent in this appeal, Mr. K.B. Bhutto; however, contended that since Muhammad Ali claim title of the property and secondly that he is not in occupation of the subject property as identity is disputed question of mesne profit does not arise. Since the concurrent finding as to the tile of the property has been maintained in revision. Contention of Mr. K. B. Bhutto that, respondent claims title to the property has no force on more than one Court, firstly no documents of title favouring Mst. Aisha were produced secondly, despite challenge to his marriage to Mst. Aisha, he failed to produce any evidence before, trial as well as Appellate Court, lastly claim on the basis of Will was not established. It is now established that he is in occupation of the suit property unauthorizely more particularly since the death of Mst. Aisha daughter of Siddiq who admittedly died in November, 1987. Learned trial Court allowed entire claim of Rs.2,000 on account of the mesne profit, whereas, the First Appellate Court declined such relief only on the ground that the property since was given to Mst. Aisha Siddiq and her husband Ibrahim free to rent due to close relationship, therefore, the appellant is not entitled for any mesne profit. The conclusion of the learned Appellate Court that since no rent was being charged from Mst. Aisha or Ibrahim same cannot be claimed from Muhammad Ali is without any reasoning. Admittedly, no rent for a period of occupation of Mst. Aisha or Ibrahim is being claimed by the appellant. It is being claimed from the respondent Muhammad Ali on account of his wrongful possession from the date of death of Mst. Aisha. Mesne profit as defined under section 2(12) of Civil Procedure Code reads as follows:‑‑ "'Mesne profit' of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom together with interest on such profits but shall not include profits due to improvements made by the person in wrongful possession." From the bare perusal of the above definition, it is clear that mesne profit is amount of compensation that is awarded against a person in Wrongful possession of the property of another. Since it has been established that respondent Muhammad Ali is in wrongful possession of the subject property is consequence mesne profit naturally will follow. The only question as to the quantum of the amount of such profit remains to be resolved. Learned trial Court allowed the same as claimed by tie plaintiff. Which was disallowed by the First Appellate Court merely on the premises that since appellant did not charge any rent from Mst. Aisha. But it does not mean that the appellant is not entitled to recover from Muhammad Ali who admittedly is it unauthorised possession, since after the demise of Mst. Aisha. Examining the evidence of the parties, Respondent Muhammad Ali in his evidence admitted that a portion measuring 15' x 90' of the said property is under the Tenancy of Aslam at the rate of Rs.500 per month and the area in his possession measures 30 ft into 90 ft. that is double the area of the tenant. Reasonably and on the basis of the evidence of the defendant it can be safely determined that rent. for the premises in his occupation reasonably would be Rs.1,000 p.m. In my humble opinion from the own showing of the respondent since for a premises half in size it fetching Rs.500 a fair compensation that could be awarded is Rs.1,000 p.m. from the date of institution of the suit: Accordingly, appeal is allowed, suit stands decreed for mesne profit at the rate of Rs.1,000 p.m. w.e.f. November 1987 till handing over of the possession. Finding of learned Appellate Court on the issue of mesne profit is set aside and that of learned trial Court is maintained with above modification. H.B:T./M‑328/K Order accordingly.