Find a Lawyer

---Second Appeal No.124 of 1980, decided on 2nd June, 1987.

---S.100--Second appeal--Scope--Second appeal limited to extent as provided under S.100, C.P.C.

Madhan Gopal and others v. Maran Bepari and others P L D 1969 S C 617 rel.

---Ss.17 & 49--Registration of document--Document requiring registra tion under S.17 of Registration Act not registered but produced as evidence without any objection--Admissibility of such document as evidence, held, was not barred.

P L D 1969 Kar.474 rel.

--Art.144--Adverse possession--Burden of proof--Landlord and tenant, relationship of--Appellant claimed to own a house which was constructed on land belonging to trust and inducted respondent as tenant in said house--Respondent paying rent for some time but subsequently refused to pay rent--Rent Controller dismissing appellant's application for ejectment on ground that there existed no relationship of landlord and tenant--Appellant terminated tenancy and filed suit for possession of premises--Trial Court decreeing suit but on appeal by respondent his suit was dismissed on ground that he failed to prove right or title in premises in suit--Respondent claimed that he occupied plot in 1947 and constructed house thereon without permission of any body as it was an open plot and claimed adverse possession over property in question--Appellant relying on an unregistered document showing that certain construction was purchased by husband of appellant--Evidence on record further showing that land belonged to Trust and that appellant's husband was tenant of trust and raised Pucca construction after demolishing old construction and that said construction was later on gifted away by him to his wife/appellant by an oral gift with possession--Appellate Court below observing that respondent claimed adverse possession but gave no definite finding as to whether he had been able to prove adverse possession nor respondent produced any evidence either documentary or oral in proof of his adverse possession--Held, appellant had been able to prove her right as lessee in plot and fact that he raised construction on it, while respondent was unable to prove his title and he entered into possession as a tenant, licensee or trespasser and had not, proved adverse possession upon plot in question- Judgment of appellate Court set aside and judgment and decree of trial Court decreeing suit for possession of appellant restored in circumstances.

---Art.144--Adverse possession--Burden of proof lies heavily on person claiming right of adverse possession.--[Burden of proof].

Mohammad Siddique Mazhari for Appellant.

Respondent (absent).

Date of hearing: 26th May, 1987.

This Second Appeal under Section 100, C.P.C., is directed against 'the judgment and decree dated 16-1-1980, passed by the learned 1st. Additional District Judge, Karachi, in Civil Appeal No.242/1976, whereby, .he set aside the judgment and decree passed by the Civil Judge IInd Class, Karachi, in Suit No.1281/1970 filed by the present appellant.

2. The facts leading to this IInd Appeal are that the appellant claims to own the house bearing No.E-17-S-67/4-3, situated in the compound known as Wali Mohammad Compound, Dharamsi Wars, Karachi, on the land which belongs to Wadho Akhara Trust. The appellant alleges to have inducted the respondent as tenant in the said house on the rent of Rs.10 per month. The respondent paid rent for some time but then he failed to pay the rent. Consequently, the appellant filed ejectment case bearing No.2125/1963, against the respondent, which was allowed by the learned Rent Controller, but in appeal the order of the learned Rent Controller was set aside on 4-9-1969 and the case was remanded for retrial. On retrial the learned Rent Controller vide his order dated 4-9-1969 dismissed the rent application on the ground that there existed no relationship of the tenant and landlord between the parties. The appellant then served the notice dated 27-5-1970 upon the respondent terminating his tenancy and filed a suit for possession of the premises, which was decreed by the learned Trial Court, but in appeal it was dismissed vide impugned judgment. The respondent in the written statement contended that he had himself raised construction over the plot and that he never paid any rent to the appellant and that he is in possession since 1947. He also raised certain legal pleas.

3. On the pleadings of the parties the learned Trial Court settled the following issues.

"(1) Whether suit is bad for non-joinder of proper and necessary parties, if yes, what is the effect

(2) Whether suit is not properly and adequately valued, if yes what is the effect

(3) Whether the Property in suit is evacuee trust property, if yes, whether the court has no jurisdiction to entertain and try the suit

(4) Whether the house in suit has been raised and constructed by the defendant, if yes, what is the effect

(5) Whether the defendant has perfected his title to the premises in suit by continuous, open, peaceful and adverse possession of over twelve years, if yes, what is the effect

(6) Whether the plaintiff has any right or title in the premises in the suit and is entitled for its possession

(7) What should the decree be "

4. I have heard Mr. Mohammad Siddiqui Mazhari for the appellant and have also gone through the record and proceedings of the Courts below. The respondent remained absent all along in this Court, though he was served by publication, which service was held good.

5. The learned Trial Court gave findings in negative on issues Nos. I to 5 and in affirmative on issue No. 6 and consequently, decreed the suit of the appellant. The judgment of the learned Appellate Court shows that both the learned counsel raised no dispute on issues Nos.l to 5, and stated that since there was no material quarrel on these issues, therefore, no decision was required on these issues. In other words, the decision of the learned trial Court on issues Nos.l to 5 was not disturbed by the Appellate Court.

6. This leaves us with only issue No.6 and it is to be seen whether the appellant has been able to establish her title over the house in question in order to obtain decree of possession. The scope of the second appeal is limited to the extent as provided under Section 100, C.P.C. Ordinarily, the findings of the appellate Court on facts are not interfered with in second appeal. However, in cases where there is conflict of opinion between the trial Court and the first appellate Court as to the findings of the facts, such findings of the appellate Court do not have such sanctity or value as concurrent findings on facts by both the Courts would have. In such case the second appellate Court has to compare the findings of the two Courts in the light of the facts and the reasons given by the two Courts A for arriving at conflicting findings and if the High Court finds the first appellate Court has reversed the findings of the trial Court without paying any heed to the reasoning given by the first Court or such finding of the appellate Court is arbitrary or capricious, the High Court can reverse the findings on the fact in the second appeal. Reference in this context may be made to the case of Madhan Gopal and others v . Maran Bepari and others P L D 1969 S C 617.

7. It is an admitted fact that the house in dispute, is situated on the land belonging to Wadho Akharo Trust. PW Abdul Samad husband of the appellant states that he had purchased the but on the plot in question from one Ayub and got such receipt executed by Ayub which has been produced as Ex.P/1. This Ayub is said to be dead. He further states that he later on gifted the house to his wife, the appellant. He further states that the house was given on the rent to one Waziruddin at the rate of Rs.10 per month. After Waziruddin vacated the house, the appellant raised construction upon this plot and then rented it out to the respondent at Rs.10 per month. He has also produced counterfoils of receipts signed by him as Exs.P/3 to 9. The appellant has also examined herself and she has stated the same facts as stated by her husband Abdul Samad. She has also produced the receipts of rent paid to Wadho Akharo Trust as Exs.P/18-1 to 133. These receipts are for the period from 1949 to 1969. She has also produced the documents executed by Ayub as Ex.P/1 and also P/2, which is an affidavit of Abdul Samad to the effect that he had gifted away the house to the appellant with possession on 1-1-1953. This affidavit is dated 21-7-1963. She has also produced certain other documents, which I will discuss later. Apart from the evidence the appellant and her husband as narrated above, there is also cvidence of PWs Mohammad Bux, Mohammad Ramzan, Haji Mohammad, Mehrab Shah and Noor Mohammad. P.W. Mohammad Bux is a clerk in the Taxation Department. He had brought the P.T.I. Register of the year 1963, in which year survey was made and this register shows the name of the respondent as tenant and-Abdul Samad as owner of the disputed property. He has produced the extract as Ex.P/17. P.W.Mohammad Siddiq is employee of Wadho Akharo Trust. He had produced the register of the Trust as Ex,P/19, which shows the appellant as tenant of the Trust with respect to the disputed land since 1947, and further stated that she was tenant with respect to the land and not with respect to the house on the land. He also stated that receipts Exs.P/18-1 to 133 were issued by the Trust in respect of the disputed property. He of course admits, that Ex.P/19 had been copied out from previous record, which he had not brought in the Court. However, neither he was asked to bring previous record nor was the previous register summoned by the respondent to rebut appellant's claim. P.W. Mohammad Ramzan states, that in his presence, the but was purchased by Abdui Samad from Ayub and that he had also signed Ex.P/1. His evidence has not been challenged in the cross-examination. P.W.Haji Mohammad states, that he had managed the house for the opponent from Abdul Samad at the rate of Rs.10 per month and the possession was handed over to the respondent in his presence. He has denied in the cross- examination that the appellant was his sister.

8. As against this evidence of the appellant and her witnesses the respondent had examined himself only. He states that he occupied the plot in 1947 without any permission from anybody as it was open plot and he constructed but upon it. He has examined no witness in his support. The learned Trial Court believed the evidence of the appellant and her witnesses and came to the conclusion that the appellant was rightful owner of the premises in question and the respondent was a trespasser who came into possession after 1953. The learned appellate Court however, reversed the findings mainly on the ground that the document Ex.P/1 which was not registered could not confer any title upon the appellant and, therefore, no relief could be given to her and that the respondent had claimed the right of adverse possession over the property in question. No doubt document Ex.P/1 requires registration under Section 17 of the Registration Act, 'as it created right over immovable property of the value of more than of Rs.100 but it has been produced as evidence without any objection and furthermore that after deletion of clause (c) from Section 49 of the Registration Act, its admissibility as evidence is not barred. Reliance is placed on P L D 1969 Kar.474. This document at least shows that certain construction on the land in the trust was purchased by Abdul Samad. The evidence on the record further shows that the land belongs to the trust and that appellant is the tenant of the trust. The evidence further shows that this construction which was purchased by Abdul Samad was demolished by the appellant who raised pacca construction and that this D construction was gifted away by Abdul Samad to his wife by oral gift with possession, which is a valid gift under Muslim Law. The affidavit EX.P/2 is confirmation of such gift. All this evidence does not appear to have been considered or discussed by the learned appellate Court while reversing the decision of the trial Court.

9. The learned appellate Court has observed that the respondent claimed adverse possession but has not given any definite finding as to whether he has been able to prove adverse possession. It is already pointed that he has produced no evidence either documentary or oral to prove his adverse possession except his oral evidence. The burden of proof of adverse possession was upon the respondent.

10. In this context, reference may also be made to the observation of the learned Rent Controller in his order Ex.P/12 which was passed after remand of the case by the appellate Court. The learned Rent Controller held the appellant to be lessee of the plot but he was of the view that appellant had failed to prove that there existed any relationship of the landlord and tenant between the parties.

11. From the evidence and the circumstances discussed above, it is clear that the appellant has been able to prove her right as a lessee in the plot in question. With regard to the construction, there are two versions on the record, first version is that of the appellant, that she purchased the construction and that later on she raised Pacca construction on this plot. As against this evidence which is supported by oral as well as documentary evidence there is only oral word of the respondent, that he had constructed but himself and that he had occupied the plot in 1947, when it was lying vacant and open. This version is not supported by any other evidence whatsoever. On this pleading of the respondent, issue No. 4 was framed by the trial Court which was decided against the respondent and as pointed out above this finding has not been disturbed by the learned appellate F Court. Even issue No.5, which relates to the question whether the respondent had acquired the right of adverse possession, was decided by the learned trial Court against the respondent and even this issue was not pressed before the appellate Court and the finding of the learned trial Court remains unreversed on this issue. Thus the finding of the trial Court that the respondent had neither raised construction upon the plot nor had he acquired the right by adverse possession remains effective and was upheld by the appellate Court. No other right is claimed by the respondent in the plot or in the construction over this plot.

12. Undisputedly there;/is construction over the plot and obvious conclusion that can be drawn is' that this construction was raised by the appellant. The only logical conclusion that can be drawn is that the respondent had either entered in premises as tenant or licencee of the appellant or as 'trespasser. The learned Rent Controller has held that there was no proof of existence of relationship of landlord and tenant between the parties which finding was not appealed against and has thus attained finality. As a licensee, the respondent could not have acquired any right of adverse possession as his possession would be permissive and not hostile to that of the appellant. There is no evidence to show since when his possession has become hostile. If this possession is deemed to have become hostile from the date h. refused to vacate the premises, then he could not have acquired the right of adverse possession by the time the appellant took proceeding to evict him from the premises in question. Even otherwise, as pointed above none of the Courts below has held that he had acquired an right of adverse possession. The burden of proof of such right lies heavily upon the person claiming such right and the evidence of the' respondent alone is not sufficient under the circumstances of the case, to discharge the burden of this proof.

13. In view of the above discussion there remains no doubt that' the appellant has been able to prove her right over the premises in I question whereas the respondent has failed to prove his right to retain the possession of the premises as against the appellant In view of the circumstances, the judgment of the learned appellate Court is neither supported by the evidence on record nor is it equitable or just. Consequently, the Second Appeal is allowed. The I impugned judgment/decree of the learned first appellate Court is set' aside and the judgment/decree of the learned trial Court is restored. However, the respondent has not contested this Second Appeal, the parties are directed to bear their own costs.

14. The Second Appeal was allowed by the short order dated 26th May, 1987. The above are the reasons in support of that order.

M.Y.H./F-28/K Appeal allowed.

Find a Lawyer Near You

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