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Revision Application No. 302 of 1973, decided on 8th April,1986.

‑‑‑S. 3‑‑Evacuee property, determination of‑‑Where property owned by a non‑Muslim who had migrated was not treated as evacuee property either by Custodian or Settlement Authority at any time before specified date vie. 1st January, 1957, such property, held, could not be treated as evacuee property subsequently.

‑‑‑S. 115‑‑Hindu Law‑‑Joint family property‑‑Property left by a Hindu owner, occupied by a person claiming same to be joint family property/ ancestral property‑‑Such property not declared to be evacuee property before specified date‑‑Person in occupation of such property since migration of original owner and claiming to be a member of joint Hindu family to whom left over property vested‑‑Finding of Appellate Court that such property was evacuee property being not supported by documentary evidence, held, was not sustainable and was thus set aside by High Court in exercise of revisional jurisdiction.‑‑[Hindu Law].

Munawwar Abbas for Petitioner.

Kazi Munawwar Ali for Respondents Nos. 1 to 6.

Respondent No. 7 (absent).

Date of hearing: 31st March, 1986.

This revision application under section 115, C . P. C . is filed by the plaintiff /applicant against the judgment of the First Appellate Court in Civil Appeal No. 32 of 1969, dated 10‑5‑1973 whereby the judgment and decree passed by the trial Court was reversed and the suit instituted by the plaintiff /applicant against the respondent was dismissed.

The applicant instiuted Civil Suit No. 27 of 1968 before the Civil Judge, Mehar, against Deen Muhammad (who is now represented by his legal Representatives respondents Nos. 1 to 6), respondents Nos. 5 and 7 and one Faiz Muhammad for possession of a residential house with two attached shops situated in village Shah Panjo. The applicant claimed in the suit that he is the owner of the house which was let out to Deen Muhammad, respondent No. 5 and Faiz Muhammad at the instance of respondent No. 7 through Haji Khan on monthly rent of Rs.30. That the above named persons paid the rent for some time but for the last several months they failed to pay rent and accordingly the legal notice, dated 12‑3‑1968 they were called upon to vacate the premises. Deceased Deen Muhammad, Faiz Muhammad and respondent 5 filed a joint written statement while respondent 7 filed a separate written statement. The respondents in their written statement denied ownership of the applicant and pleaded that the house in dispute was an evacuee property. The jurisdiction of the Court was also objected to, to entertain the suit. On the pleadings of the parties following issues were framed by the Court:‑

"(1) Whether the plaintiff is the owner of the premises in suit

(2) Whether the defendants Nos. 2 to 4 are the tenants of the plaintiff and have defaulted in payment of rent for the premises in suit

(3) Whether the defendants have caused damages to the property in suit

(4) Whether this Court has got no jurisdiction to try the present suit

(5) Whether the defendants Nos. 2 to 4 have been served with notice under section 106 of the Transfer of Property Act

(6) Whether the defendants are estopped under section 116 of the Evidence Act to deny the title of the plaintiff

7) Whether Rehandomal is necessary party If yes, what is the effect of his non‑joinder on the suit

(8) What should the decree be "

Issues Nos. 1, 2, 5 and 6 were found in the affirmative. Issue No. 3 was decided in the negative while on issue No.4 the suit was held to be maintainable and accordingly the trial Court decreed the suit for possession in favour of the applicant. On appeal the learned First Appellate Court on issues Nos. 1 and 2 reversed the findings of the trial Court while on issue No. 4 it was held that the civil Court has no jurisdiction in the matter as the property was an evacuee property and as a consequence of reversal of findings of the trial Court on these issue the suit instituted by the applicant was dismissed. The learned counsel for the applicant has challenged in this revision the findings and conclusion of the learned First Appellate Court on issues Nos. 1, 2 and 4 and has urged that the reversal of the findings of the trial Court by the First Appellate Court is based on a misreading of the evidence and non‑consideration of the material documents which were on record The learned counsel for the respondents on the other hand supported the judgment passed by the First Appellate Court and urged that the reversal of the findings of the trial Court by the First Appellate Court was for valid reason as there was enough material on record to conclude that the property in dispute was an evacuee property and as such the suit was not maintainable by the plaintiff. After hearing the learned counsel for the parties at length I am of the view that this revisior application must succeed and the order of the First Appellate Court is liable to be set aside. The applicant in his suit asserted that the house in dispute is a non‑evacuee ancestral property of the applicant which was occupied in the year 1960 by the Chairman of the Union Council Shah Panjo but under the orders of the Deputy Commissioner, Dadu the possession was restored to the applicant who remained in its possession until 1962. It was also asserted by the applicant in his suit that in the year 1962 predecessor‑in‑interest of respondents Nos. 1 to 6 approached the plaintiff through respondent No. 7 for letting out the house which was lying vacant on account of transfer of the son of applicant and the same was let out through one Haji Khan to the deceased Deen Muhammad on a rent of Rs.30 per month. It was also urged that for some time the deceased Deen Muhammad paid the rent but thereafter, he stopped payment of rent whereupon a notice was served to vacate the premises and suit was instituted for possession. Deceased Deen Muhammad who was defendant No.2 in the suit filed a joint writter. statement alongwith respondent No. 5 and Faiz Muhammad and claimed that the house in dispute is an evacuee property belonging to one Jasuma, who migrated to India and as such the suit was not maintainable. It was claimed that the applicant owned his own house in Shah Panjo village in the North‑East of the house in the suit at a distance of about inn paces separated by a street and number of houses and he sifted therein after the migration of Jesumal as he felt unsafe in his own house In so far the occupation of the house by deceased Deen Muhammad was concerned, it was stated that after the house was got vacated by the applicant from the Chairman of the Union Council, he did not occupy the same and was lying vacant and as such they occupied the same in August 1960 and since the they were in possession of the same. Respondent No. 7 who filed a separate written statement in the suit asserted that the house was neither the inherited property of the applicant nor it was purchased. It was claimed that the property belonged to a Hindu Jesumal who migrated to India at the time of partition. It was however, admitted by respondent No. 7 in his written statement that the plaintiff resided in the house from 1947‑48 to 1956 but thereafter, he shifted to Radhen and then to Ghotki and settled there because his .son was in service at Ghotki. It was also admitted that the plaintiff left some household articles in the house in suit in the year 1960 when it was occupied by the Chairman Union Council of Shah Panjo and got it vacated though through the influence of one late Ahmed Hamid and Muhammad Majid Jatoi but the applicant used to reside at Ghotki. It was admitted by respondent No.7 in his written statement that deceased been Muhammad had occupied the house forcibly during the absence of the plaintiff and he was in continuous possession of the same alongwith others. It was denied by respondent No. 7 that the lease of the house was arranged in favour of Deen Muhammad through him. From the pleadings of the parties it is quite clear that in so far the predecessor‑in‑interest of respondents 1 to 6 (late Deen Muhammad) was concerned, he was a trespasser in the house in dispute. The case of respondents 1 to 6 and their predecessor‑in‑interest before the Court was that the house being an evacuee property the plaintiff could not maintain the suit in a civil Court. In support of his case that the predecessor‑in7interest of respondents 1 to 6 was the tenant of the applicant, the plaintiff examined Haji son of Muhammad Sumar (Exh.30) and produced through him documents which are Exhs. 31 to 36. He also examined one Abdullah (Exh.37) and three other witnesses namely Lahno Fakir (Exh.38), Rahando Mal (Exh.40) and Shafi Muhammad (Exh.41). All the witnesses examined by the plaintiff except Abdullah categorically stated that the house in dispute was let out to deceased Deen Muhammad by the plaintiff /applicant. The document Exh.31 produced by the plaintiff through witness Haji is the order of Deputy Commissioner, dated 12‑7‑1960 in which the Chairman Union Council Shah Panjo Sultan was directed to vacate the house in dispute which was unauthorisedly occupied by him and it was further directed that its possession be handed over to the plaintiff who is the owner of the house. No doubt in cross‑examination of all the witnesses an attempt was made on Platintff of the predecessor‑in‑interest of respondents 1 to 6 to show that the property belonged to Jesumal, a Hindu who had migrated to India, but there was no documentary evidence on record to show that after the migration of Jesumal the property was treated as an evacuee property either by Custodian Authority or Settlement Authority at any time before 1‑1‑1957. On the contrary it is an admitted position that the applicant had occupied the house in the year 1947 and claimed himself to be the owner of the house throughout. It is true that there was no documentary evidence on record to show that any rent deed was executed by the deceased Deen Muhammad in favour of the plaintiff but the circumstances of the case supported the conclusion of the learned trial Court that Deen Muhammad had occupied the house as a tenant of the plaintiff. Deen Muhammad in his evidence admitted that after the plaintiff got vacated the house from the Chairman of Union Council Shah Panjo under the orders of Deputy Commissioner he occupied the same as it was lying vacant. In cross‑examination he admitted that he did not obtain any allotment order from any authority and he also got no Mashirnama prepared at the time he occupied the house. The admission of the deceased Deen Muhammad that he occupied the house after about 3/4 days of the house having been vacated by the Chairman Union council Shah Panjo under the orders of Deputy Commissioner, coupled with the oral evidence in the case led by the applicant in support of his contention that the house was let out to Deen Muhammad through Haji fully, supported the conclusion of the trial Court that the house was let out by the plaintiff to deceased Deen Muhammad. The learned 1st appellate Court was much influenced by the fact that the plaintiff) and its witnsess had admitted in their cross‑examination that the house in dispute originally belonged to one Jasumal who had migrated, to India and, therefore, for all purposes the property was an evacuee property. The learned Court, however, failed to take notice of the fact that the plaintiff had claimed the house as his ancestral property and he claimed himself to be the joint family member of Jasumal who was claimed to be the uncle of the plaintiff and these facts were either controverted in cross‑examination nor by leading any evidence in rebuttal in the suit. Apart from it the learned first appellate Court also failed to take notice of a very important fact that no documentary evidence was placed on record, to show that the property in dispute was ever treated by Custodian, Rehabilitation or Settlement Authorities s the evacuee property before 1‑1‑1957. On the contrary there was ample evidence on record to show that from 1947 onwards the plaintiff occupied the house as owner thereof and in fact the Deputy Commissioner, Dadu ejected the ‑Chairman of the Union Council from the said house on he ground that he had unauthorisedly occupied the house belonging to tie applicant. On the basis of this weighty documentary evidence which found full support‑from the oral evidence of the parties, there was hardly any justification for holding that the property was evacuee property. I accordingly accept this revision application, set aside judgment of the first appellate Court and restore the decree of the trial Court. In the circumstances of the case, I will make no order as costs.

A.A. Revision accepted

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