P L D 1994 Karachi 135 (PLP)

From the pleadings of the parties, the following issues were settled: (1) Whether the plaintiff is bona fide and lawful owner of disputed property? (2) Whether the defendants Nos. 1 and 2 have forcibly, unlawfully and illegally trespassed into the disputed premises and are holding illegal possession thereof? (3) Whether the defendant No.3 was lawfully entitled to convey the disputed property to the plaintiff therein? (4) Whether the defendant No.3 entered into an agreement to sell with defendant No.1 in respect of disputed property, if so, what is the effect? (5) Whether the defendant is entitled to any damages, if so, what amount? (6) To what relief, if any, the plaintiff is entitled? (7) Whether lease executed in favour of defendant No.3 is genuine, valid, legal and binding on defendants Nos.1 and 2? (8) Whether subsequent transfer under sale-decd executed by defendant No.3 in favour of plaintiff is valid, legal, operative and binding on defendants Nos. 1 and 2?. (9) Whether suit is maintainable under law? At trial, the respondent examined himself and his witnesses namely, Babu Khan, Masihullah Khan, Shahabuddin and Muhammad Yasin. The applicants examined Muhammad Sharif, Amirzada Kuhati, Ghulam Muhammad and Abdul Ghaffar. On assessment of oral and documentary evidence brought on record, learned Senior Civil Judge decided issues Nos. 1, 3 and 7 in affirmative. For issue No.2 he gave the finding that applicants were residing in the quarter without any title and without consent of respondent No.l. For issue No.4, he held that execution of agreement in favour of applicants could not be inferred from the documents brought on record. This issue was also decided against the applicants. Issue No.5 was not pressed. For Issue No.8, the finding of the trial Court is that transfer of the quarter by the deceased in favour of respondent No.l was valid and if the applicants were aggrieved by the said transfer they could file suit for cancellation of sale-deed. For issue No.9, the finding was that the suit was maintainable. Accordingly the suit was decreed for possession and mense profit in favour of the respondent No.l. Learned First Appellate Court maintained the findings of the trial Court ' It is contended on behalf of the applicants that the two Courts below have failed to appreciate the evidence available on record, and, as such, reached wrong conclusion. Learned counsel also argued that the two Courts below, while exercising the jurisdiction, have acted illegally and committed material irregularity, therefore, findings are contrary to the evidence on record. Also, it has been argued that the applicants being in possession are entitled to part performance of the contract under section 53-A of the Transfer of Property Act. In support of above contentions, reliance is placed on the cases reported in (1) Mating Khi Ny v. Maung Aung Tha and another AIR 1917 Lower Burma 16, (2) Balchand Mahton v. Bulaki Singh AIR 1929 Patna 284, (3) Anwar Sultana and others v. Pakistan Cooperative Housing Society Ltd. PLD 1964 Kar. 116. (4) The Pakistan Employees Cooperative Housing Society Ltd., Karachi v. Mst. Anwar Sultana and other PLD 1969 Kar. 474, (5) Muhammad Sharif v. Mst. Sughra Bari and others 1984 SCMR 1139. In the case of Mating Kyi Nyo, it was held where a person purchases immovable property which is in the possession of a person other than the seller he must to be held to have had constructive notice of the right of the possessor, for if he had inquired he would have found out the true state of affairs. In Balchand Mahton's case, it was held. that vendee is bound by all equities in favour of third person. In Anwar Sultana's case, it was held by a learned Single Judge of this Court that section 53-A of the Transfer of Property Act does not create. any right for making a claim, but it affords merely defence against transferor attempting to enforce right other than one provided in contract in respect of property of which transferee stands in possession. In the case of the Pakistan Employees Cooperative Housing Society Ltd., Karachi, it was held by learned D.B. of this Court that protection under section 53-A, Transfer of Property Act was available to transferee both as plaintiff as well as defendant in suit by or against him to shield his title to property. In Muhammad Sharips case, it was observed by' the Supreme Court that suit for specific performance and injunction was maintainable even if plaintiff failed to sue for cancellation of registered sale-deed executed in favour of some other party while asking for specific performance of earlier sale agreement. As against above, Mr. Shafaat Hussain learned counsel for the respondent No.l cited the case of Khan Muhammad v. Muhammad Ishaque and another reported in 1975 SCMR 471 to contend that in case of concurrent findings on the point of fact of two Courts below the revision is not maintainable. He also argued that nothing material has been brought on record to show that concurrent findings of facts of the two Courts below are contrary to the evidence available on record. It stands proved from the evidence on record that respondent No.l had purchased said quarter through a registered sale-deed and that the deceased had filed a criminal complaint against the applicants for trespassing in said quarter. It is not denied nor it could be denied that the applicants were in possession of the adjoining quarter. It appears that taking advantage of such situation they forcibly occupied said quarter. Learned counsel for the applicants has laid stress on the fact that evidence of D.W. Amirzada Kohati was not appreciated in its true perspective by the two Courts below. This witness, in his deposition, stated that applicant Mst. Sharifan had made an application for regularisation of said quarter in her favour and thereafter a show-cause notice was issued to the original allottee, namely, the deceased. In cross, he deposed that he was posted at North Karachi Township sometime in the year 1973-74. He admitted that a case was registered against him by the Anti-Corruption Police and he was suspended. He also admitted that he was never re-posted in North Karachi Township. On the day his evidence was recorded i.e. 11-10-1978 he was in Master Plan Department on deputation. He admitted that nowhere his signatures appeared in the documents which he had produced. According to him, the report Exh.27 was based on the information of the Staff, which they had collected from the record. He denied the suggestion that all the documents produced by him were manipulated and were not mentioned in the record of KDA. He also denied the suggestion that he deposed in favour of applicants as applicant Ghulam Muhammad had given statement in his (witness) favour in said Anti-Corruption case. Learned Additional Sessions Judge discarded his testimony on the ground that the lease of said quarter was executed in June, 1974 ante (witness) was admittedly under suspension from March, 1974 till 1975. He also observed that said witness was caught red-handed on the spot and tainted money was recovered from his possession by the Anti-Corruption Police and it was applicant Ghulam Muhammad, who had made report against him (witness), and that subsequently applicant Ghulam Muhammad obliged the witness by deposing in his favour and latter obliged the applicants by deposing in their favour. Ex facie, the evidence of this witness does not inspire confidence and he was ! rightly disbelieved by the two Courts below. The conclusion, therefore, would be that the documentary evidence in favour of respondent No. 1 is legal, valid I and would be treated as such. The jurisdiction under section 115, C.P.C. is discretionary. All sorts of irregularities are not to be rectified under this section, but only those which, if not rectified, would cause grave injustice or hardship. It is settled proposition of law that this Court will not interfere when substantial justice has been done between the parties. Close scrutiny of the evidence reveals that neither it is the case of illegality and nor of any material irregularity. Provisions of section 53-A of the Transfer of Property Act are not attracted. It is not legally proved that the deceased had ever agreed to transfer said quarter in favour of the applicants, change in the possession of immovable property in a legal manner for the purpose of part performance of the contract is an essential element for invoking the provisions of section 53-A of the Transfer of Property Act, which in this case is missing. On the contrary, the evidence is that the applicants had occupied it unauthorisedly. Under the circumstances, the case-law cited by learned counsel for the applicants is not attracted to this case. The concurrent finding of facts recorded by two Courts below is in consonance with the evidence on record and no exception can be taken to it. In consequence, I do not find any merit in this revision and the same is dismissed with no order as to costs. A.A./S-1037/K Application dismissed.