Find a Lawyer

Civil Revision Application No. 389 of 1980, decided on 23rd October, 1986.

‑‑S. 42‑‑Suit for declaration of rights of ownership‑‑Parties having no ownership rights over property‑‑Prayer of plaintiffs /occupants of portion of such property to be declared as exclusive owner of that property, held, could not be granted in circumstances.

‑‑S. 42‑‑Suit for declaration of entitlement of possession‑‑Ancestor of contesting parties admittedly being one, both parties were in possession of respective portion of disputed property since their ancestor's death as surviving heirs‑‑Mere payment of taxes by particular party, held, would not entitle such party to be declared in exclusive possession of entire property as a matter of right in circumstances.

‑‑‑S. 115‑‑Specific Relief Act (I of 1877), S. 42‑‑Revisional jurisdiction, exercise of‑‑Finding of Appellate Court below not only was based on misreading and non‑reading of evidence on record, but Court assumed jurisdiction which was not actually conferred on such Court‑‑Finding of Appellate Court, being based on misreading of evidence and lack of jurisdiction. was set aside by High Court in exercise of revisiional jurisdiction.

‑‑‑S.115‑‑Specific Relief Act (I of 1877), 5.42‑‑Finding incapable of being enforced‑‑Validity of such finding ‑‑Court, held, would not give such finding or decree which could not be enforced‑‑Authority empowered to regularise lease of disputed property not party to proceedings before High Court‑‑Finding if given by High Court regarding regularisation of lease would not be binding on such Authority particularly when no scheme or rules with regard to regularisation of lease was produced to enable Court to decide whether applicants were entitled to such regularisation.

Zia Qureshi for Applicants.

Diwan Bashir Ahmad for Respondent

Date of hearing: 5th October, 1986.

This civil revision application is directed against the judgment and decree passed by learned IVth Additional District Judge, Karachi on 29‑5‑1980 in Civil Appeal 300 of 1978 whereby he set aside the judgment and decree passed by learned XVIlth Civil Judge, Karachi in Suit No. 77 of 1975.

The brief facts leading to these proceedings are, that applicants claim to have inherited the plot in question bearing Old No. 383. K‑12, and new No. 750‑LY‑44, Gul Mohammad Lane, measuring 33 square yards from their grandfather Dushambay Haideri, who had obtained lease from the K.M.C. from 26th April, 1887. The applicants claim to be the only surviving heirs of Dushambay Haideri. The applicants are husband and wife inter se. The applicant No. 1 claims that Dushambay was his paternal‑grandfather, whereas applicant No. 2 claims him to be' her maternal‑grandfather. It is alleged by the applicants, that a few years before the institution of the suit, they had allowed the respondent to live in the half portion of the plot in question on the condition, that he would vacate the same, when needed by the appicants. However, when the applicants came to know, that the respondent was trying to get lease in his name with respect to the said plot from the K . M . C . or applicants asked him to vacate the plot, which he refused. The applicant No.1 also applied to the K . M. C . for the regularisation of the lease, but he was told to approach the civil court as the respondent also claimed to be in possession of the disputed plot. Hence the applicants filed the suit praying for the following reliefs:

"That the plaintiffs, therefore, pray for judgment and decree in favour of the plaintiffs and against the defendant as under:‑

(i) It be declared that the plaintiffs are the owner of the entire structure on Plot No. 750 LY‑44, Old Plot No.383, K‑12 Gul Muhammad Lane, measuring 33 sq. yards Chakiwara, Lyari Karachi and in legal occupation of the plot in question for more than about 50 years and are entitled to regularisation and lease of the plot in question.

(ii) Decree for possession against the defendant directing the defendant to vacate and hand over half portion of the plot viz. an area measuring about 161 sq. yards of the Plot No. 750 LY‑44, Old Plot No. 383, K‑12 Gul Muhammad Lane, Ghakiwara, Lyari, Karachi.

(iii) Costs of the suit.

(iv) Any other and/or further relief which this Hon'ble Court deems fit and proper or the nature of the suit may require."

The respondent contested the suit and in written statement averred, that the plot in question was purchased by his grandmother Guathak from the original owner Muhammad Murad and he inherited the same from his grandmother and was in possession since then. He also claims, that he allowed the applicant No.2 to occupy a portion of plot where she sells Pakoras. He claims to be paying the taxes of the K.M.C. On the pleadings of the parties the learned trial Court settled the following issues:‑

(1) Whether the plaintiffs are the owner of Plot No. 383 K‑12, Gul Muhammad Lane measuring 33 sq. yards with entire structure thereon and the same was leased out in the name of Dushambay Haideri the ancestor of the plaintiffs

(2) Whether the plaintiffs or the defendant were allowed to reside in half of portion

(3) Whether the suit is barred

(4) Who obtained the lease in his name from K.M.C.

(5) Was Muhammad son of Murad owner of the disputed plots If yes, to whom the plot was sold and possession handed over

(6) Are the plaintiffs entitled for declaration and possession as prayed

(7) What should the decree be

The learned trial Court answered issues Nos. 1, 3 and 6 in the affirmative. Issue No. 2 was also answered in favour of the applicants. Issue No.4 was dropped and issue No.5 was answered in negative and suit of the applicants was decreed. However, in appeal filed by the respondent, the learned appellate Court vide impugned judgment set aside the judgment and decree of the trial Court and dismissed the suit of the applicants.

I have heard the learned counsel for the parties and also gone through the record and proceedings of the case.

From the pleadings of the parties as well as from the evidence led by them, it is clear that none of the parties had ownership rights A over the plot in question. As such prayer of the applicants that they may be declared to be owners of plot cannot be granted. The real dispute between the parties appears to be as to who is in occupation of the plot and who is legally entitled to occupy it. The plot in question is situated in an unfortunate area in Lyari whose residents have, so far been, denied the rights of permanent lease of ownership of the plots in their occupation. Even in the case of instant plot, it was admittedly leased out about 100 years back, but still the rights of ownership or permanent lease were not granted to any one, which has led to present litigation. Both the applicants alongwith the depositions have produced extract of the survey sheet of Municipal Land Register, which shows, that Plot No. 383 of Survey Sheet No. K‑12 in Lyari was originally leased out to one Muhammad Murad on temporary occupation lease from 26‑4‑1987 on payment of Re.l annually to K.M.C. This record further shows, that vide K.M.C. Resolution No. 71/D, dated 13‑1‑1923 name of Murad was scored off and instead name of Dushambay Haideri was entered as occupant on the same terms and conditions. P.W. No 3 Khawaja Rafat Ali who is Senior Clerk in K.M.C. states, that the name of Dushambay still appears in the Municipal record as lessee and there has been no change in the Land Register.

It may be pointed that each of the party is in possession of a portion of the plot. The applicants are admittedly in occupation of portion of the plot on which is built a Kacha but in which applicant No. 2 admittedly sells Pakoras. The respondent is in possession of a portion or which there is a semi‑Pucca room.

It is not disputed, that the applicants are surviving heirs of Dushambay and as already pointed the Municipal record shows, that Dushambay is the lessee of the plot in question and as such the applicants would ordinarily be deemed to be in physical possession of the plot t heirs of Dushambay. The respondent claims the plot by virtue of alleg., sale by Muhammad Murad the original lessee to his grandmother Guathank However, he has not produced any sale‑deed or any other document indicating such a sale. In fact the record of the trial Court shows, that his evidence was reserved, as he wanted to produce photostat copy of the sale‑deed, which he eventually did not produce He has also relied on certain receipts of tax paid by him. The receipts of tax produced by him as Exhs.10‑A/1 to 10‑A/28 are either in the name of Muhammad Murad or in the name of Dushambay Haideri. He has produced receipt Exh.10‑A/29 which shows that he paid tax from 1963‑64 to 1967‑68 and 1974‑75 on 1‑11‑1974. He has produced a simple copy of appeal purported to have been filed by him on 4‑4‑1967 requesting for reduction of the taxes for 1963 to 1966 but no reliance can be placed on this document, which is simple copy and is not attested or certified. The taxes were, however, paid vide Exh. 10‑A/29 which shows, that these taxes were paid as per P.T.I. No. 144, dated 31‑8‑1974. This P.T.I. has been produced as Exh.10‑B. This is for year 1974‑75 in which the respondent is shown as owner of the plot and is, dated 31‑8‑1974. Another P.T.I. has been produced as Exh.10‑C, which also shows the respondent as owner and there is further endorsement that G . A . R . reduced from Rs.360 to Rs.240 vide orders, dated 30‑6‑1963 . Obviously this order, dated 30‑6‑1963 could not be in pursuance of the application Exh.10‑D, dated 4‑4‑1967.

The respondent had produced certain other receipts Exhs.10‑A/22 to 10‑A/32 and Exh.10/F which are payment of taxes by him after 1974. The applicant No. 2 has also produced one document which shows that she paid Re.l as tax on 8‑8‑1977.

As already pointed, the original lessee after Muhammad Murad is Dushambay Haideri. The objection that no sale‑deed has been produced to show that Muhammad Murad sold the plot to Dushambay has no force, because Muhammad Murad had no ownership rights but was only the temporary lessee. Grant of lease in favour of Dushambay by the Municipality as borne out from the record would confer the rights as lessee upon Dushambay. No other order of Municipality has been produced to show, that temporary lease was issued in the name of any of the parties. The applicants claim through Dushambay as his surviving legal heirs. The respondent also claims through his grandmother Guathak, who was also wife of this Dushambay. Thus, Dushambay Haider was step‑grandfather of the respondent. Not only that the ancestor of both the parties is one, but their relations appear to be cordial before this dispute, as both the parties claim that other is his licensee. As already pointed both the parties are in possession each of a portion of the plot. All these factors clearly lead to one conclusion, that since their ancestors, both the parties are in joint possession of the plot. The dispute between them arose only when there was move on the part of H K.M.C. to regularise the Kacha lease and to confer the rights of permanent lease/ownership upon the occupants. It was only then, that both parties tried to prove their occupancy by paying the taxes in their names and applying for the transfer of the lease. As already pointed the bulk of receipts produced by the respondent shows, the payment in the name of Muhammad Murad or Dushambay Haideri. The mere fact that these receipts came out from the possession of the respondent would not necessarily prove that the taxes were being pad by him. The taxes were in fact so nominal i.e. Re.l annually in the first instance and relations of the parties so cordial that any party could have made the payment and any party could have retained the receipts. However, the evidence shows that from 1974, both the parties tried to make payment in their own names. First payment was made by the respondent for the years 1963‑64 to 1967‑68 and 1974‑75. This payment was, however, made on 1‑11‑1974. This suit was filed by the appellants on 2‑1‑1975. As admitted by both‑the parties prior to 1974, both the parties were in occupation of the plot, a portion each. Therefore, the payment of taxes by any party in 1974 or afterwards would not prove that particular party is in exclusive possession of the entire plot as a matter of right.

Oral evidence produced by the parties will have to be appreciated keeping this background in view. The evidence on record and circumstances of the case clearly indicate, that both the parties and their ancestors are in respective possession of the portion of disputed plot each since long, may be since the days of Dushambay Haideri.

It may be pointed that the relief claimed by the applicants in clause (i) of para. 8 of plaint in fact consists of three reliefs. He has prayed for declaration (a) that the plaintiffs are owners of entire structure on the plot, (b) that they are in legal possession of the same, (c) that they are entitled to regularisation of lease of the plot.

The learned appellate Court has rightly held, that the rights of ownership have not devolved on any of the parties but he has further held, that the respondent is lessee of the plot. This finding of the learned appellate Court appears to be based on misreading of the document Exh.10‑H and on non‑reading of the document Exh.5‑B. Under Exh.10‑H the respondent has only been informed, that as he is in possession of the plot and Administrator of the K . M . C . is satisfied with the proof of his possession, it has been decided to give him lease of the plot for 99 years. He has been asked to deposit the amount shown therein so that the lease agreement may be executed. This letter is only by way of information to the respondent asking him to take further action so that lease‑deed may be executed. The rights as a lessee are not conferred by this letter upon the respondent but would only be conferred by a lease‑deed which was not executed. Exh.5‑B shows, that when applicant No.l moved K.M.C. for regularisation of lease of plot, he was informed, that the case was disputed one as one Saleh Muhammad had also put his claim over the same plot and, therefore, he was advised to approach the appropriate Court of law for decision of the case and in the meanwhile issuance of lease in favour of Saleh Muhammad was also stopped. The reading of these two documents clearly shows, that rights of lease had not yet been conferred upon the respondent and the finding of the learned appellate Court to this effect is not only based on misreading and non‑reading of two documents but also he has assumed jurisdiction to confer the rights of lessee upon the respondent which jurisdiction he did not have. This finding of the learned appellate Court is not tenable and is set aside. Prayer (c) as pointed also cannot be granted because K.M.C. who will issue the lease, is not a party to these proceedings and the finding if given by this Court would not be binding upon the K.M.C. The Court will not give a finding or decree which cannot be enforced. Furthermore, the scheme or rules with regard to the regularisation have not been produced to enable the Court to decide whether under the Rules the applicants are entitled to such regularisation.

From the reading of Exh.13‑A, it appears, that main criterion for regularisation of the lease or issue of permanent lease is he possession of the plot by the party concerned. There was dispute over the possession, as both the parties claimed that they were in possession of the plot and other was their licensee. It was, therefore, that K.M.C. advised the applicant to get it decided by the appropriate Court of law. The parties have also led evidence to prove their respective possession of the plot. In fact a separate issue should have been framed to the effect as to which party is in possession of plot, but in a way this issue came to be decided. While deciding issue No. 2 the learned trial Court had held, that the applicants had permitted the respondent to occupy the portion of plot thereby impliedly held the applicants to be in possession of entire plot. However, this finding was set aside by the learned appellate Court holding that the applicants have failed to prove that they had ever permitted the respondent to reside in half portion. The reading of this issue would show that the Court had to decide whether the plaintiffs or the defendants were allowed to live in half portion of the house. The learned appellate Court has failed to decide as to whether the respondent had allowed the applicants to reside in half portion. Thus, the appellate Court has failed to exercise its jurisdiction by not deciding this part of issue. We have already seen that the evidence on record and circumstances >f case clearly show that both the parties are in possession of their respective portion of the plot in their actual possession since their ancestors. Dushambay still continues to be the lessee of the plot Both the parties claim possession through Dushambay; the applicants as direct descendants of Dushambay and respondent as descendant of the wife of Dushambay.

The upshot of all this discussion is that impugned judgment of learned appellate Court is partly set aside to the extent pointed above and suit of the applicants is decreed to the extent that they are declared to be in legal possession of the portion of the plot in question which is in their actual possession and on which Katcha but is built However, under the circumstances of the case the parties are directed to bear their own costs.

H.B.T./4 36/K Order accordingly

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.