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Revision Application No.67 of 1987, decided on 2nd March, 1987.

---S.115--Revision--Petitioner claiming to be owner of plot which in fact belonged to Municipal Corporation and ownership rights whereof had not been transferred either to Petitioner or to so-called previous owner who allegedly sold it to petitioner under an agreement of sale- Agreement of sale appearing to be doubtful to Appellate Court below as it did not bear property number and so-called previous owner was not examined to prove his signature--Physical possession of property held by respondent who was stated to be tenant of previous owner and was allowed by him to continue--Appellate Court below disbelieving tenancy on ground the there was no such mention in agreement of sale nor respondent admitted to have paid any rent to petitioner nor was ejectment application. of petitioner accepted by Rent Controller who was proper authority to determine relation-;hip of landlord and tenant between parties--Finding of Appellate Court below not shown by petitioner to be wrong or not based on facts on record--Held, on facts and grounds raised by petitioner in suit no declaration as to ownership of property could have been granted by Courts below nor Civil Courts could have ordered ejectment of respondent whom petitioner claimed to be his tenant--Interference declined by High Court in revisional jurisdiction in circumstances.

---S.43--Civil Procedure Code (V of 1908), S.115--Transfer of property--A person not owning any title to property, held, could not transfer such property.

Syed Hasan Zafar for Appellant.

Date of hearing: 2nd March, 1987.

This revision application is directed against the judgment and decree, dated 4-11-86 passed by IVth Additional District Judge, Karachi South in Civil Appeal No.256/78 whereby he set aside the judgment and decree, dated 2-5-1978 and 3-5-1978 respectively passed by the learned VIIIth Civil Judge, Karachi decreeing the Suit No.52/74 filed by the present applicant.

I have heard Mr. Syed Hassan Zaffar learned counsel appearing for the applicant and also perused the record and proceedings of the Courts below.

The brief facts leading to these proceedings are that applicant claims to be the owner of Property No. K-17-5-8-7 situated at Harchand Roy Road, (Siddiq Wahab Road) near Dharamsi Wara Karachi measuring 50' x 25' having purchased the said premises from one Jumma Bhoy son of Daney Bhai vide agreement of sale, dated 17-10-1963 and also got the possession of the property in question. It is further claimed by the applicant that the respondent was tenant of the previous owner since May, 1963 and was allowed to continue as tenant by the applicant on the monthly rent Rs.30 which he paid upto December, 1965. He however, failed to pay the rent from January, 1966 to 12-6-1968 when applicant filed ejectment application against him in which he did not succeed. He then filed for a declaration that the said property was owned by the applicant, is legally purchased from the original owner, for the ejectment of the respondent; and for mesne profit at the rate of Rs.30 per month from the date of the suit. The learned Civil Judge decreed the suit of the applicant as prayed which judgment and decree was set aside by the learned Additional District Judge vide the impugned judgment.

It is an admitted fact, that the plot in question belongs to KMC and ownership rights had not been transferred either to the present applicant or to the so-called previous owner Jumma Bhoy. A person who does not own any title cannot transfer any title in property. Further more admittedly the transfer has not taken place by any registered sale-deed. The only basis of claim of applicant is an. Alleged agreement for sale and receipt of payment of sale price executed by Jumma Bhoy. As pointed by the learned Additional District Judge, the agreement of sale which has been produced as Exh.5/A does not bear the property number. Furthermore the agreement (Exh.5/A) bears the signature of Juma Bhoy whereas Exh.5/B which is a receipt and which shows the plot number bears L.T.I. of Jumma Bhoy. This Jumma Bhoy was not examined to prove his signature or L. T.I. and therefore the learned Additional District Judge considered the documents to be doubtful. Admittedly the physical possession of the property in question could not have been handed over to the applicant as according to him, the respondent was already in possession of premises as tenant of Jumma -Bhoy and he allowed him to continue. The learned Additional District Judge has also disbelieved this contention of tenancy because there is no such mention in the sale agreement (Exh.5/A), nor does the respondent admit to have paid any rent, nor was the ejectment application of the applicant accepted by the learned Rent Controller who was the proper authority to determine the relationship of tenant and landlord between the parties and to grant ejectment in such cases. The learned Additional District Judge had rightly summarised the position in the following words:-

"The payment of taxes and P.T.I do not give any title to her for the property in suit. The plot in dispute is owned by K.M.C. and K.M.C. authorities are regularising the said plot. The parties in suit have failed lo prove their ownership for the plot in suit and both parties are having the P.T.I. and are paying the taxes. The parties in suit should approach K.M.C. authorities for the lease of the plot in question, who would grant the lease in favour of one party in accordance with their procedure and enquiry."

The learned counsel for the appellant could not satisfy this Court as to how the finding of the learned District Judge was wrong or not based on the facts on record. He has stated that now the applicant has got the lease of the K. M. C. but admitted that the same was obtained after decision of the suit as well as the appeal and as such was not produced before the Courts below. The suit was not based on the lease which is now said to have been granted to the appellant. On the facts and grounds raised by the applicant in the suit no declaration as to ownership could have been granted by the Courts below nor the Civil Court could have ordered ejectment of the respondent whom the applicant claims to be his tenant. I find no ground for interference by this Court in exercise of its revisional jurisdiction. The revision application was therefore dismissed by short order, dated 2-3-1987. The above are the reasons in support of the said order.

M.Y.H./Y-5/K Petition dismissed.

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