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Revision Applications Nos. 106 and 107 of 1.982, decided on 8th Novem ber, 1982.

‑‑ S. 115‑Point not raised at any stage of proceedings before trial Court, held, cannot be raised at revision stage.

‑‑S. 115 read with Karachi Development Authority Order (P. O. 5 of 1977), Art. 131‑Concurrent finding of fact available to show that Authority did not revise scheme or change plot number in accordance with provisions of Karachi Development Authority Order and such finding found based on appreciation of evidence of employee of Authority who failed to produce any document to substantiate allega tions of appellant‑In absence of any documentary evidence trial Court and first appellate Court, held, rightly declined to accept evidence of employee of Authority‑Revision petition dismissed, in circum stances.

Syed Iqbal Ahmed for Appellant.

A. M. Hashmi for Respondents.

Date of hearing : 8th November. 1982.

By this judgment both the Revision Applications Nos. 106/82 and 107/82 will be disposed of.

2. The respondents Nos. 1 and 2 filed suit for declaration and injunction against the applicant and respondent No. 3. The relief was sought in respect of plot No. 317‑A, sector 11‑G. North Township, Karachi which was allotted to them by K. D. A. under an allotment letter dated 16th August, 1969 and possession was delivered to them on 18th August, 1969. They had alleged that in September, 1971 when the applicant occupied the said plot and collected some material for construction the respondents Nos. 1 and 2 objected to it but applicant asserted his right on the ground that the plot had been renumbered as 446 of which he is the allottee. In these circumstances the respondents Nos. 1 and 2 filed Suit No. 1442/72 for the aforesaid relief. The suit was decreed and the judgment was confirmed in appeal by the impugned judgment dated 15th July, 1976. Revision Application No. 107; 82 arises out of Suit No. 413/71 filed by Mariam Bibi and Rabia Bibi against Abdul Aziz Abbot, Yakub and two officers of K. D. A. on similar grounds except that the plot number is different. The trial Court decreed the suit against Abdul Aziz Abbot and Yakub but it was dismissed against the officers of K. D. A. An appeal was filed by Abdul ‑Aziz Abbot which was dismissed by the impugned judgment. The main allegations in Suit No. 413/71 were that Plot No. 392‑A, Sector 11‑G North Karachi Township, was allotted to respondents Nos. 1 and 2 on 25th August, 1969 by K. D. A. The possession was delivered to them by K. D. A. on 28th August, 1969. :After taking possession the respondents Nos. 1 and 2 went back to Godhra Camp, from where they had been shifted to the North Karachi Township, to bring their household articles. In their absence the applicant and respondent No. 3 unauthorisedly and in collusion with respondents Nos. 4 and 5 occupied it and got the number of the said Plot changed to 551.

3. In both the suits the defence was that after giving the possession to the allottees, i. e. respondents, the K. D. A. revised the scheme and changed the plot number. In consequence of this change the applicants were allotted the plots in suits claimed by them under fresh numbers. In trial proceed ings in R. A. 106/82 the applicant had also contended that the suit was hit under Article 131, sub‑clause (iii) as it was filed after six months of the accrual of the cause of action.

4. Mr. Syed Iqbal Ahmad the learned counsel for the applicant has raised the following contentions

(1) The co‑allottees of the applicant not having been joined, suit was bad for non‑joinder of necessary parties.

(2) That the suit was hit by Article 131 of K. D. A. Order,

(3) Both the courts below ignored the evidence of Shahid Ali, an employee of K. D. A. (Exh. 3).

(4) The trial Court erred in not framing issue regarding possession.

The applicant has stated in the written statement that the plot under fresh number was allotted to 2 persons and as the other allottee has not been joined the suit is bad for non‑joinder of parties. This issue does not seem to have been raised nor agitated at any stage. However, a perusal of the plaint makes it clear that the entire grievance of the respondents Nos. 1 and 2 was that the applicant had collected material on the plot in suit and was interfering with the possession of the respondents Nos. 1 and 2. The allegation has been made against the applicant that he is unlawfully occupy ing the plot. In these circumstances the entire allegations and the relief was directed against defendant No. 1 the applicant and, therefore, it was not necessary to join the co‑allottee as a defendant. In any. event the applicants had not agitated this point at any stage of the proceedings and it is too late now to raise it at this stage.

5. In Revision Application No. 106/82 the respondents Nos. 1 and 2 had served a notice under Article 131 of K. D. A. Order, 1957. The learned counsel for the applicant has, however, contended that the suit was hit by Article 131, sub‑clause (iii), as it was not instituted within six months of the accrual of the cause of action. Article 131, sub‑clause (ii) provides that any suit filed against K. D. A. against any of its servants in respect of any act purporting to be done under this Order or the rules or a regulation shall, unless it is a suit for the recovery of immovable property or for a declaration of a title thereto, be commenced within six months next after the accrual of the cause of action. The present suit is in respect of declaration of title and recovery of possession of immovable property. In these circumstances the suit was not hit by Article 131, sub‑clause (iii). Further, there is concurrent findings of fact that the K. D. A. did not revise the scheme or change the plot number in accordance with the provisions of K. D. A. Order. This finding is based on appreciation of evidence of Shahid Ali an employee of K. D. A. who was not able to produce any document to substantiate these allegations. There is nothing on record to show that the change in the plot numbers was according to the procedure or scheme laid down by K. D.A. Order. In the absence of any documentary evidence to this effect the learned trial Court and the first appellate Court have rightly declined to accept the evidence of Shahid Ali. Once it is established that the action taken by K: D. A. was not according to the provisions of K. D. A. Order or under it the question of applicability of provisions of Article 131 does not arise. In Revision Application No. 107/82 while dealing with this aspect of the case the trial Court in Suit No. 413/71 reached the same finding. However, it dismissed the suit against the officers of K. D. A. (who were joined as defendants Nos. 3 and 4) as the prayer sought against them was that they may be directed to assist respondents Nos. 1 and 2 in maintaining their lawful possession of the said plot by evicting the applicants under summary powers. This relief on the face of it was not maintainable and was, therefore, rightly rejected by the trial Court. In Revision Application No. 106/82 the trial Court had given its verdict against K. D. A. which was confirmed in appeal but K. D. A. did not bother to file appeal at any stage. In these circumstances the contention of the learned counsel for the applicant has no force.

6. The learned counsel for the applicant contended that the learned trial Court had ignored the evidence of Shahid Ali, Sub‑Engineer of K.D. A. and has, therefore, committed irregularity which is sufficient to vitiate the judgment. A perusal of the judgment of the trial as well as the appellate court makes it clear that at both stages the evidence of this witness was thoroughly examined and properly appreciated. While assessing the evidence and coming to a conclusion it cannot be said that the trial Court or the appellate Court have acted without jurisdiction, in excess of jurisdiction or have drawn conclusion which is perverse and arbitrary.

7. The learned counsel for the appellant lastly contended that the trial Court erred in not framing an issue on the question of possession and, therefore, the finding given by it and as confirmed by the appellate Court is defective. In Suit No. 1142/72 (R. A. 106/82) the trial Court had framed Issues Nos. 4, 7 and 8 which fully covered the question of possession. These issues directly deal with question of possession and the grievance of the applicant is, therefore, misconceived. Besides these points the applicants have neither urged any other point nor have been able to show in any manner that the judgments of the trial Court as well as of the appellate Court were in any manner hit by the provisions of section 115 of the C. P. C.

Both the Revision Applications are dismissed with no order as to costs.

M. Y. M. Revision application dismissed.

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