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Suit No.79 of 1983, decided on 29th September, 1986.

---O.XXXIII, Rr. 1 & 2--Suit for possession--Plaintiff seeking possession of property, purchased with possession from its owner- Plaintiff examined himself and two more witnesses who had been cross -examined at length by defendant--Defendant examining no witness nor proving contents of written statement filed by him--Plaintiff examining attesting witness of sale agreement who identified the defendant and confirmed his having signed said agreement on date of its execution--Plaintiff also examined another witness who supported plaintiff on question of dispossession by defendant forcibly- Defendant's story of gift of property by owner in favour of his ex-wife and subsequent sale of property by that lady to defendant not supported by evidence--Defendant even not turned up to give a statement in Court and offer himself for cross-examination--Held, plaintiff had proved purchase of property in his favour and therefore was entitled to its possession--Suit decreed.

Amir Ahmed Khan for Plaintiff.

Mumtaz Hussain Shah for Defendant.

Date of hearing 29th September, 1986.

This is a pauper suit filed by the plaintiff for declaration that the plaintiff is the owner/purchaser of a running business of a grinding mill, flour mill, godown and general store run on plot No. A-20 situated in Quaidabad. According to the plaint, the plaintiff has purchased this property under an agreement dated 16-8-1978 (Ex.5/1) from one Haji Abdul Rehman for a consideration of Rs.65,000. That he has paid the entire amount to the seller and was given possession of the property by the seller. That he operated the mills for some time and between the night 20th/21st September, 1987, when he had gone to Shah Aqeeq to bring back his family, he was informed by his servant Muhammad Murtaza that the defendant had raided the shop and taken forcible possession of the shop and the business ousting the servant Muhammad Murtaza from the premises. That when he protested to the defendant, the defendant first promised to vacate and restore the possession to the plaintiff, but to no avail.

The plaintiff immediately reported the matter to the police for this trespass, but the police took no action. He then filed a suit being Suit No.3390 of 1978 in the Court of learned 16th Civil Judge, but the plaint in the suit was returned to the plaintiff for want of pecuniary jurisdiction of the Court. The plaintiff then filed another suit under section 6 of the Specific Relief Act. This suit was registered as Suit No.528/79, but this suit has been dismissed by a judgment of Mr. Salim Akhtar, J. passed on 6-5-1982. This has necessitated filing of a suit for declaration of the title of the plaintiff-:, Suit property and for restoration of possession to him by the defendants. Summons were served on the defendants and the defendants have filed the written statement.

The main defence raised by the defendant in the suit is that Abdul Rehman was the original owner of the property. He gifted the property to his wife Mst. Ruqaya vide a "Declaration Deed" dated 7-3-1978 from whom the plaintiff had purchased this property. Para-5 of the written statement may be reproduced in extenso:-

5. That the contents of para-7 are correct. It is submitted that plaintiff has no right in suit property and not entitled for decree of claim in prayer of the suit. The correct position is that M/s. Haji Ismail and Haji Abdul Rehman started "Awami Flour Mills on the land adjacent to Quarter No. 20, under a proper partnership Deed dated 24-6-1978. Mst. Ruqaya Begum was the owner of Quarter No.20, its adjacent land and the share of Awami Flour Mills from Mst. Ruqaya Begum against a sum of Rs.35,000 under a proper agreement of sale. The defendant also purchased the remaining half share of Awami Flour Mills from Haji Ismail under a proper sale agreement, dated 23-9-1978 and took lawful possession of the suit property from both the owners."

On these pleadings the following issues were framed:-

(1) Whether the plaintiff on 16th August, 1978 had purchased with possession from Haji Abdul Rehman s/o Issa, house bearing No.A-20 situated in Quaidabad, Karachi with constructions thereon consisting of one shop, one flour mills, one Masala Mills, one godown, one General store and Dwelling houses If so, what is its effect

(2) Whether the aforesaid property was mutated in the name of the plaintiff after its purchase from Haji Abdur Rehman in the Records of Excise Department If so its effect

(3) Whether on 20-9-1978 when the plaintiff was away from his house the defendant illegally trespassed therein to and dispossessed him therefrom If so, what is its effect

(4) Whether in Suit No.528/79 under section 9 of the Specific Relief Act for possession which was dismissed on 6-5-1982 the question of title was not considered and the judgment is confined only to restoration of possession If so, what is its effect

(5) To what relief the plaintiff is entitled in 4the present suit

(6) What should the decree be "

My findings on these issues are as follows:-

In the affirmative.

Not proved. In my opinion mere production of Ex.5/2 or Ex.5/3 would not prove that mutation had been effected in favour of the plaintiff. Ex.5/2 is a notice and Ex.5/3 is a receipt for payment by the defendant. These documents have not been proved according to the Evidence Act, nor do they indicate whether the property had been mutated in the name of the plaintiff as owner. .

Not proved. No evidence has been led by the plaintiff to show that the plaintiff was dispossessed on 20-9-1978 through force and illegally.

Learned counsel for the defendant has tried to argue that the earlier efforts of the plaintiff in seeking relief have remained unfruitful and the evidence produced by him has not been relied upon by the Courts. Particular mention has been made of Suit No.528 of 1979 which was filed under Section 9 of the Specified Relief Act and has been dismissed by Mr. Salim Akhtar, J. by his judgment dated 6-5-1982. But that suit was totally for a different relief. That was a suit for restoration of possession irrespective of any title in the property. The merits of the pleas raised by the parties in that suit were examined in that context. Suffice to say that even in that judgment the learned Judge, while disposing of Issue No.5 in that suit which relate to the title, has disposed of this issue in the following manner:-

"This issue relates to title to the house: In a suit filed under section 9 of Specific Relief Act the question of title cannot be determined. Only a decree for possession can be granted if the plaintiff has been wrongfully dispossessed. Although this issue was adopted with the consent of the parties, no finding can be given on this issue in the present proceedings."

For the above reasons this issue is answered in the affirmative.

The plaintiff has examined himself and two more witnesses namely, Abdul Qadir and Miran Shah. These witnesses have been, cross-examined by the defendant. The defendant has not examined any evidence, nor has proved the contents of the written statement filed by him. Plaintiff in his deposition in court Ex. 5 has deposed that he has purchased this shop with the machinery and equipments of the Flour Mills from Haji Abdul Rehman. He has filed the original agreement dated 16-8-1978 Ex.5/1. He has filed Ex.5/2 to show that the property has been mutated in his name in the record of Excise and Taxation Department. He has filed Ex.5/3 which is the receipt of payment of Rs.130 for the payment of Property Tax for the year 1978-79. This receipt has been issued in the name of the plaintiff. Then there is a receipt executed by Haji Abdul Rehman s/o Essa, the seller of the property acknowledging the receipt of Rs.65,000 from the plaintiff as full and final settlement under an agreement of sale dated 16-8-1978. This receipt is Ex.5/4. The plaintiff has also produced an affidavit of Haji Abdul Rehman and it is Ex.5/5. It was sworn before the Chief Judicial Magistrate Manjeri, a place in Malabar in India. On 31-10-1979 this affidavit was obtained by the plaintiff through the Jamaat of Malabaries in Karachi in which the deponent has stated that he had sold his share in the Flour Mill known as Awami Flour Mill to the plaintiff for a sum of Rs.65,000 which was paid to him by the plaintiff vide a Sale Agreement dated 16-8-1978 and the possession of the Mill had been handed over to the plaintiff by the deponent. In para 3 the deponent has stated that he had not transferred the property to Mst. Ruqaya Begum, who was his divorced wife, nor had at any time clothed her with any authority to sell or transfer the property on his behalf. This Abdul Rehman further denies having executed any declaration of gift in favour of his divorced wife Mst. Ruqaya Begum and has stated that the document presented is forged and does not bear his signature.

The plaintiff has examined Abdul Qadeer, who is an attesting witness of agreement dated 16-8-1978. He has narrated the details how the agreement was executed and has identified and affirmed having signed this agreement on the date of its execution.

The third witness produced by the plaintiff is Miranshah, who is also a Malabari like the plaintiff and Haji Abdul Rehman and was on visiting terms with the seller Abdul Rehman. He has stated in the evidence that he was a Mabadia dealing in used and old Air conditioners Refrigerators and other articles. That he used to store these articles on the premises in suit and used to pay Rs.200 per month to Abdul Rehman for using this facility. Abdul Rehman had told him that he had sold the property to the plaintiff. He has also deposed that C after the property changed hands, he continued to enjoy the facility and started paying Rs.200 per month to the plaintiff. He also supports the plaintiff on the question of dispossession and has stated that when on the date of incident he reached the spot at about 10.00 or 11.00 p.m. in the night to look after his goods, he discovered that the plaintiff was dispossessed forcibly by the defendants Rafiq, Muhammad Ali and Begum Ruqaya.

Against this evidence which consists of not only the documentary evidence like Exh.5/1 to 5/5, but the oral version of the witnesses, there is not an iota of evidence to support the story of gift in favour of Mst. Ruqaya Begum and the sale of the property from Mst. Ruqaya Begum to the defendant. Even according to the defendant the property was owned by Haji Abdul Rehman, who allegedly gifted it over to Mst. Ruqaya Begum through a Declaration of Gift. Neither this Declaration has been proved, nor Mst. *Ruqaya Begum has been d, examined by the defendant to support the version of the defendant. On the contrary Abdul Rehman in his affidavit Ex.5/5 has made a categorical statement that he had divorced Ruqaya Begum and had never made any gift in her favour, nor had at any time authorised her to deal with the property on his behalf. Even the defendant himself has not turned up to give a statement in Court and offer himself for cross-examination.

--It is well-established principle that if the defendant does not appear in Court, the written statement filed by him has no evidential value and can be ignored all together.

The plaintiff has proved the purchase of the property. Therefore, the suit to be decreed as prayed. The plaintiff is entitled to possession of the property. The defendant or any other person found to be in possession through the defendant to restore possession to the plaintiff.

M.Y.H./M-260/K Suit decreed.

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