1980 PLP 210 (CLC)

Date of hearing : 18th February, 1978. This Revision Application is directed against the judgment dated 15th July, 1975, passed by the learned Additional District Judge, Karachi, in appeal filed by the applicant against the judgment dated 30th August 1973, passed by the learned Civil Judge, Karachi, dismissing the suit filed by the applicant against the respondent. Briefly stated, the facts are that the applicant filed a suit for declara tion that it be declared that Plot No. 307, Survey No. K-78, Old Goli mar, Karachi, was in his possession and the hutment thereof belonged to him and that the respondent had no right, title or interest in the said plot. He also prayed for permanent injunction restraining the respon dent from interfering with his peaceful enjoyment of the plot in dispute. The respondent contested the suit on various grounds and his main defence was that the disputed portion of the land was an open plot and did not bear survey No. 307 and was in his possession. On the above pleadings, the trial Court framed the necessary issues and evidence was led by both the parties. The trial Court after proper appreciation of the evidence decided all the main issues against the applicant and held that the plaintiff/applicant had failed to prove that he was in possession of the plot in dispute and dismissed the suit vide his judgment' dated 30th August, 1975. Being aggrieved, the applicant went in appeal which was also dismissed by the learned Additional District Judge and the finding of the trial Court that the applicant was not in possession of the disputed plot was affirmed. The relevant part of the judgment of the learned Additional District Judge is reproduced as under :- "It is an admitted position that the disputed plot belongs to Karachi Municipal Corporation and none of the parties has any right or title in respect of this plot. The appellant claims his possession over the disputed land since his fore fathers. It is further stated that this plot bears Survey No.

307. He has produced certain receipts regarding the payment of taxes to Karachi Municipal Corporation in respect of Plot No.

307. The report of the Commissioner (Exh. P/4), however, shows that Plot No. 307, K-28 is a huge plot on which there are various houses/buildings/constructions. The disputed plot is triangular in shape and there are roads on both the sides of this plot. The oral evidence adduced by the appellant did not convince the trial Judge who had an opportunity to see the demeanour of the witnesses. The appellant (P. W. 1) has himself given a vague evidence by taking different stands at different times. He gives different numbers of the plot one after the other. His witness Allah Bachayo (P. W. 2) and Mahmood (P. W. 3) are related to him and are thus interested. I have examined their evidence very carefully and 1 am satisfied that the learned Judge rightly rejected their evidence. The burden to prove the crucial issue, viz. Issue No. 2 lay heavily upon the appellant which be failed to discharge." Hence this Revision Application. Mr. Afzal Nabi, learned counsel for the applicant, contended that the Commissioner's report was not considered by the Courts below. .I see no substance in the contention. The perusal of the judgment passed by the Courts below would show that the Courts below have considered the report and given their finding on proper appreciation of the evidence led at the trial. The learned counsel next contended that the applicant was in possession of the premises and the Courts below have wrongly held that the respondent was in possession. I see no force in this contention as well. The finding on the issue whether the applicant was in possession of the disputed plot is a finding of fact, and both the Courts below have given a concurrent finding of fact that the applicant was not in posses sion of the disputed plot and their finding is supported by the evidence on record and the learned Counsel indeed could not assail the finding. That being so, it will neither be appropriate not open to this Court to interfere with the concurrent finding of fact in this Revision Application. No other contention was raised. For the aforesaid reasons, I see no merit in this Revision Applica tion and dismiss it with no order as to costs as the respondent has remained absent. M. A. K Petition dismissed.