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Civil Revision No. 39 of 1982, decided on 17th May, 1987

‑‑‑S. 115‑‑Revisional jurisdiction of High Court‑‑Scope of‑‑Scope of revisional jurisdiction limited in nature‑‑High Court in exercise of its revisional jurisdiction, held, could interfere in concurrent findings of Courts below only if it was shown that findings of Courts below were based on misreading/ non‑reading of evidence or were patently absurd or Courts below had failed to exercise jurisdiction vested in them or have assumed jurisdiction not vested in them.

‑‑‑Arts. 70 & 72‑‑Oral evidence and documentary evidence, evaluation of‑‑Where in proof of a fact, oral word of one party was against oral word of other party, Court, held, would rely upon documentary evidence and other circumstantial evidence to find as to which party was speaking truth.

‑‑‑ S. 63‑‑Secondary' evidence‑ ‑Production of‑‑Mode‑‑Where original document was lost, party desirous to prove contents thereof, held, would be entitled to produce secondary evidence of the lost document‑ Photostat copy was mode of secondary evidence under S. 63of Evidence Act,.

‑‑‑ S. 73‑‑Comparison of docume nts‑ ‑Power of Court to make‑‑Effect of such comparison‑‑Where signatures on a document were denied by a party, Court, held, could make comparison of such signature with admitted signaturi s ‑of such party‑ ‑Signatures on document proved to be that of appellant would support evidence of respondent that such document containing agreement between parties, in fact, was effected between parties.

P L D1971 S C 669 ref.

PLD 1968 Dacca 170rel.

‑‑‑ S. 22‑‑P.T.O. and P.T.D. issued in favour of a party‑‑No appeal or revision filed against‑‑Effect‑‑Where no appeal or revision was filed against issuance of P.T.O. and P.T.D., same held, would attain finality an'd could not be challenged in Civil Court.

‑‑‑S. 10‑‑Three claimants of disputed plot‑‑On no objection by two claimants plot transferred to third claimant‑‑ Claimants on whose statements of no objection, plot was transferred subsequently, claiming to have entered into agreement with respective rights of parties over area in their possession‑ ‑Such agreement not produced in Court‑ Effect‑‑Held, even if there was any agreement between the parties with regard to transfer of property, same by itself would not confer any right of ownership on persons setting up such agreement.

‑‑‑S. 115‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 10‑‑Revisional jurisdiction against concurrent findings of Courts below‑‑ Ef feet‑ ‑Claim of adverse possession against transferee in respect of property accepted by two Courts below‑‑Such concurrent finding on the right of adverse possession and prescription based on evidence on record, held, could not be interfered with in revisional jurisdiction.

‑‑‑ Ss. 100 & 115‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 10‑‑Entitlement of person over property who had not completed right of adverse possession and prescription but abandoned possession over plot in favour of another person for consideration‑‑Concurrent findings of Courts below on question of fact as to entitlement of property, held, could not be interfered with in second appeal‑‑Second appeal by one party and revision by the other party being devoid of merits were dismissed as not maintainable.

Abdul Qadir Helepota and Muhammad Ishaq Shams for Appellant. Moinuddin Ahmed for Respondent.

Dates of hearing: 4th and 5th March, 1987.

I intend to dispose of the Und Appeal and the Revision Application by this single judgment as' the dispute in both the matters relates to the same property and main contesting parties in both the matters are more or less same and so are the questions of fact and law involved. At the request of parties both the matters were heard together.

The main contesting parties in oth the matters are Zahoor Ali, who is respondent No. I in the 11nd Appeal and applicant in the Revision Application. Hafiz Salamatullah, who is now dead, and succeeded by his L.R. daughter, Mst. Waheeda Khanum, who is appellant No. 1. in the llnd Appeal, and respondent No. 5 in the Revision Application, and Dr. Abdul Sattar, also now dead, who is succeeded by the L. Rs. , who are respondents No. 1, No. 4 in the Revision Application. The disputed property admittedly bears No. G.N. 721/10, Fatima Jinnah Colony, Karachi. Apparently in 1959 all the three above‑named persons, namely, Zahoor Ali, Hafiz Salamatuflah and Dr. Abdul Sattar filed O.P. Forms with Settlement Authorities for the transfer of a portion each from the said plot which they claimed to be in their respective possession. Admittedly, on the no objection of Hafiz Salamatullah and Dr. A. Sattar, the Settlement Authorities issued P.T.O. of the plot in question in the name of Zahoor Ali, who subsequently was able to obtain P.T.D. in his favour.

The case of Zahoor Ali is, that entire plot was in his possession and that he had raised construction thereupon and that both Hafiz Salamatullah and Dr. A. Sattar were his licensees. He claims, that said Hafiz Salamatullah had unauthorisedly transferred and inducted the other persons in possession of the portion in his possession. Zahoor Ali, therefore, filed a Suit No. 1 of 1968 in the Court of IXth Sr. Civil Judge First Class, for possession and mesne profits, which was decreed by the learned Sr. Civil Judge by the judgment dated 13th day of October, 1978. Against this judgment Mst. Waheeda Khanum, daughter and legal heir of Hafiz Salamatullah, who in the meantime had died, filed Civil Appeal No. 150 of 1978, which was also dismissed by learned lInd Additional District Judge vide judgment dated 10‑4‑1974. The other appellant in this appeal, namely, Wahabuddin who was appellant No. 2 in the IInd Appeal has also died and the appeal filed by him has abated. It may be pointed, that Dr. A. Sattar is not a party in this civil suit or in the IInd Appeal, which is filed against the said judgment.

The case of Hafiz Salamatullah and Dr. A. Sattar is, that they alongwith Zahoor Ali, were in separate possession each of this plot No.GN‑712/10, which comprised of 245 sq. yards. Dr. A. Sattar claimed to be in possession of 56 sq. yards of t‑his area, while Hafiz Salamatullah claimed to be in possession of the 87 sq. yards, whereas, Zahoor Ali was said to be in possession of 92 sq. yards. In 1959 all the three above‑named persons filed their OP forms with the Settlement Authorities for transfer of the area in possession of each of them. This Plot No. GN‑712/10 was at that time sub‑divided and given sub‑Nos. 153, 154 and 155. According to the policy of the Settlement Department at that time, no plot of area less than 112 sq. yards could be transferred to any body. As each of three persons was in possession of less than 112 sq. yards, it could not be transferred any one of them. Consequently, they agreed, that in the first instance the entire plot may be transferred in the name of Zahoor Ali and would be subsequently transferred to each of them, either separately or jointly. All the above‑named three persons gave no objection before the Settlement Authorities for the transfer of plot in favour of Zahoor Ali, and also filed such affidavit. It is further alleged, that each of them contributed to the purchase price of the plot to the extent of area in this respective possession. P.T.D. was issued in favour of Zahoor Ali in 1963, but each continued to remain in possession of the respective area in his possession, on which each of them had separately raised constructions. In 1972, Dr. A. Sattar and Hafiz Salamatullah moved application before the Settlement Authorities for entering their names in the record of permanent transfer as joint transferree of the plot. This application was dismissed. The Revision Application filed by them was also dismissed and they were advised to seek remedy from a competent Civil Court. The respondent No. 1, therefore, filed a Civil Suit No. 396 of 1975 for declaration and permanent injunction seeking the following reliefs:‑‑

(1) "Judgment and decree for declaration that the property No. JM‑712/10/154, is owned and possessed by the plaintiff as sole and absolute owner thereof and that the permanent transfer deed issued by the Settlement Authorities in respect of Houses Nos. 712/10/153, 712/10/154 and 712/10/155 in favour of defendant No. 1 was obtained by practising fraud and misrepresentation and that it was in fact a joint transfer in favour of plaintiff , defendant No. 1 and Late Hafiz Salamatullah as the transfer price of the property was paid jointly by the aforesaid persons to the Settlement Authorities, Karachi.

(2) Judgment and decree for permanent injunction restraining defendant No. 1 or any other person acting through under or for him from disturbing in any manner whatsoever the peaceful possession of the plaintiff over the area measuring 58 sq. yards and the building constructed thereon.

(3) Cost of the suit.

(4) Any other relief which this Hon'ble Court may deem fit and expedient in the circumstances of the case."

In the written‑statement Zahoor Ali denied the averments made by Dr. A. Sattar in the plaint, and claimed to be the owner of the entire plot. He averred, that both Haji Sattar and Hafiz Salamatullah were his licensees. He further contended, that he did not practice any fraud in obtaining the permanent transfer deed. Mst. Waheeda Khanum and the Settlement Authorities did not contest the suit. On the pleadings of the parties, the learned trial Court framed the following Issues:‑‑

(1) Whether the suit as framed is not maintainable

(2) Whether the suit is under valued

(3) Whether the suit is barred by limitation

(4) Whether the suit is bad for misjoinder and non‑joinder of necessary and proper parties

(5) Whether the plaintiff and defendants jointly paid the transfer price of the plot and the plot was their joint property

(6) Whether the plot was transferred in the name of defendant No. 1 for reasons stated in para. 5 of the plaint If so, what is its effect

(7) Whether the permanent transfer deed of the plot was obtained by defendant No. 1 in his name by fraud and misrepresentation and by supersession of joint ownership of the plot

(8) What should the decree be "

Evidence in both the suits, which are the subject‑matters of the IInd Appeal and the Revision Application, was recorded separately and separate findings have been given by both the trial Courts and the Appellate Courts. As such for the purpose of discussions of the evidence, I will deal with them separately. First I will take up the Revision Application.

It may be pointed, that Issues Nos. 5, 6 and 7, as reproduced above, are Issues of fact. On these Issues, both the Courts below, have given concurrent findings. However, on the question of law the Appellate Court has held, that Issue No. 7 was not triable, as it was hit by section 22 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The findings of both the Courts below on the other Issues are also concurrent.

The scope of Revision Application is limited. This Court, in exercise of its revisional jurisdiction, can interfere in concurrent findings of the Courts below only if it is shown that findings of the Courts below are based on misreading or non‑reading of evidence or are patently absurd or the Courts below have failed to exercise jurisdiction vested in them or have assumed jurisdiction not vested in them.

In this case, there is oral word of one party against oral word of other party. The Court therefore has mainly to rely upon the documentary evidence and other circumstantial evidence to find as to which party is speaking truth. In this respect documents Exhs. P/13, P/15 and P/16 are very material. They are certified copies of the public documents and, therefore, their genuineness and authenticity cannot be disputed. Exh. P/13 is the order of the Deputy Settlement Commissioner dated 10‑8‑1960. This order shows, that three persons, namely, Hafiz Salamatullah, Hay Abdul Sattar, and Zahoor Ali, made separate applications for the transfer of three building sites on survey Nos. 712/153, 154 and 155. It also shows, that subsequently, they jointly moved another application supported by an affidavit, that building sites may be transferred in the name of Zahoor Ali. The learned Deputy Settlement Commissioner has further held, that applicants' possession is undisputed since 1948, and that they were entitled to retain the same. However, in the end it was ordered, that appendix IX be issued in the name of Zahoor Ali for abovementioned building sites. This contradiction in the order wherein, while holding all the three applicants to be in undisputed possession of the said building site and to be entitled to the transfer of the same, the order however was passed for the transfer of the entire plot in the name of the person, has been noted in subsequent orders Exhs. P/15 and P/16. Exh. P/15 is order on application of Mst. Waheeda Khanum and Hafiz Salamatullah for inclusion of their name in the transfer documents of the building in question. In this order of the learned Deputy Settlement Commissioner observed, that on the joint application the Deputy Settlement Commissioner had consolidated all the three cases and by order dated 10‑8‑1960, transferred the entire building site measuring 235 sq. yards to Zahoor Ali alone, although in the findings of this order, all the three were entitled to retain the respective portion of the plot. However, he declined to interfere in view of the Supreme Court ruling reported in P L D 1971 S.C. 669, that after issue of the P.T.D. the Settlement Authorities had become functus officio. In the order dated 8‑5‑1974 in Revision Application Exh. P/16, learned Settlement Rehabilitation Commissioner also came to the similar conclusion. He further observed, "I feel that it is very harsh case and the order of the Deputy Settlement Commissioner is defective to the extent of excluding the right of transfer of the applicants. If advised, they may go to Civil Court to seek relief, if any."

This contradiction in the order of the learned Deputy Settlement Comissionier has been explained by the respondent. According to the case of respondent, because each of the three occupants of the plot was in possession of less than 112 sq. feet of the area, under the policy, it could not be transferred to any one of them and consequently they filed a joint application before the Deputy Settlement Commissioner supported by affidavit in which, they agreed that entire plot be transferred in the name of Zahoor Ali, but they had privately agreed, that each one was to remain in possession and to pay shares of price of the respective area in his possession. The fact, that all the three occupants did make application of transfer and that they were separately in possession of some area in the plot is borne out from these three orders. D.W. No. 2, Rizwanul Hassan, who was examined by appellant, Zahoor Ali, has admitted in the cross examination, that there were instructions, from the Government, that in Fatima Jinnah Colony, a plot of land less than 112 sq. yards should not be allowed to any individual person. He was an employee of Settlement Department working in the department since 1958. He further admitted, that OP Forms submitted by three applicants were misplaced in the department and the file was to reconstituted vide order Exh. P/14, dated 28‑11‑1962. In the cross‑examination appellant, Zahoor Ali, has admitted, that there were three portions of the plot in dispute bearing Nos. 153, 154 and 155. It is admitted, that only one portion was in his possession which measured 92 sq. yards. It is admitted, that the portion in possession of Hay Abdul Sattar was 56 sq. yards in area. He denied the suggestion made to him in the cross‑examination, that the respondents No. 1 and 2 also applied for the transfer of the plot in their respective possession, but they were told by the Settlement Department, that the plot being small one could not be transferred separately to the three persons, therefore, they entered into agreement to get the plot transferred jointly in his name. His denial is belied by the order Exh. P/13. From this order it is clear that some affidavit was filed by the parties before the Settlement Commissioner alongwith application on the basis of which the transfer was made in the name of Zahoor All. D.W. Rizwanul Haque has deposed, that this record is missing from the office of the Deputy Settlement Commissioner. The respondent No. 1 in his statement has produced photostat copy of his affidavit as Exh. 12. In the trial Court no objection was taken against the production of this document. However, objection was raised before the learned Appellate Court, which was rejected by the learned Appellate Court on the ground, that no objection was taken at the time of production of the document. Even otherwise, the original being lost, the party is entitled to produce secondary evidence of the lost document. Photostat copy is mode of secondary evidence under section 63 of the Evidence Act. The appellant has denied the signature on this Exhibit, but at the same time he also denied the factum of filing of affidavit before the Settlement Authorities, which denial, as already pointed, is belied by the document Exh. P/13. The learned trial Judge had compared the signatures on this document and also on the letter Exh. P/14 to which I will advert latter and the admitted signatures of the appellant on the written statement as D well as on the Vakalatnama and came to the conclusion, that the signatures on these documents were of the appellant. The Court can make suqh comparison under the provisions of section 73 of the Evidence Act. The appellate Court in this respect has relied upon PLD 1968 Dacca 170. Exh. P/12 is signed by all the three contesting persons, namely Dr. A. Sattar, Hafiz Salamatullah and Zahoor Ali. It shows that they were residing in Plot No. 712/10, 153, 154 and 155 respectively. They have further stated therein that they were residing in the house on this plot since 1948, and each of them had raised Pucca construction with his own money. Exh. P/14 is a letter addressed to Dr. Abdul Sattar in which the appellant wrote, that the cheque of Rs.400 sent by Dr. Sattar was received by him and claims had been purchased @ Rs.51 for Rs.100 and total expenses in the share of Dr. A. Sattar came to Rs.630. By this letter he was further informed, that the entire amount had been deposited with Settlement officer who had called him to collect the P.T.O. on 12‑8‑1960, and that he had given the receipt to Hafiz Salamatullah for collecting P.T.O. but it looked difficult, that Hafiz Salamatullah could do it and therefore, he (Dr. Sattar) should collect copy of the P.T.O. I have already pointed, that in spite of denial of the signature on this letter by the appellant, on comparison of the signature, the learned trial Court came to the conclusion, that this signature was also of the appellant. This, the evidence of respondent No. 1 finds support from, the documentary evidence produced by both the parties.

It is argued by the learned counsel for the appellant, that though the P.T.O. was issued in 1960 and P.T.D. in 1962, the respondent No. 1 did not move for correction of P.T.D. or file any appeal against the order of the Deputy Settlement Commissioner till he moved the application before the Deputy Settlement Commissioner, on which order Exh. P/15, was passed. The learned counsel for the respondent No. 1 has argued, that P.T.O. was issued in the name of Zahoor Ali, with the consent of the parties but they were not aware of the issuance of P.T.D. In fact, they continued to remain in possession of their respective portions of plot and construction raised by.them thereupon. They dealt with the construction on their plot as they chose and also paid taxes receipts of which are Exhs. P/6‑1 to 28 and P/8‑1 to 8. Certain of these receipts are for the period after issue of the P.T.O. and P.T.D. in the name of the appellant. Exh. P/7 is an extract of F.I.R. register, which shows, the name of Dr. Abdul Sattar in the column of owner. It shows, that I had filed some appeal against the valuation which was decided on 24‑8‑1968. This document is dated 2‑7‑1973. Respondent No. 1 also claims to have let out the portion of the house in his possession of rent, and in support he has produced rent agreements Exhs. P/9‑1 to 5. They pertain to the period after issuance of P.T.O. and some after P.T.D. This fact is also admitted by the appellant. Zahoor Ali, in the cross‑examination.

In Civil Suit No. 1/1968, the learned Judge framed the following issues: ‑‑

"(I) Whether the plaintiff or defendant No. 7 is the owner of the property in question.

(2) Whether a portion of the said property i.e. 87 sq. yards only of land structure is in unauthorised possession of the defendants.

(3) Whether the plaintiff is entitled to recover mesne profits from the defendants

(4) Whether plaintiff is entitled to decree of possession and mesne profits

(5) Whether the plaintiff is estopped from claiming the suit property as his own

(6) Whether the suit is under valued

(7) Whether suit suffers from misjoinder and non‑joinder of parties

(8) Whether this Court has jurisdiction

(9) Whether any cause of action has accrued to the plaintiff

(10) Costs.

This suit was filed by Zahoor Ali for the possession of the area of the plot and structure thereupon in possession of Hafiz Salamatullah. The case of Zahoor Ali as well as Hafiz Salamatullah is same as narrated earlier. Zahoor Ali claims to be owner of the entire plot including area in possession of Hafiz Salamatullah, whereas, Hafiz Salamatullah claims to be in possession of the plot in his own right. Defendants Nos. 1 and 3 to 6 in this suit claim to be tenants of Hafiz Salamatullah, whereas, the defendant No. 2, Wahabuddin, claimed to have purchased the plot And structure thereupon from Hafiz Salamatullah. I have already pointed that the Und appeal filed by defendant No. 2 was dismissed after his death.

Both the appellate Court and the trial Court held, that the respondent No. 1, Zahoor Ali, was owner of the entire plot on the basis of P.T.O. and P.T.D. issued in his favour. Both the Courts have referred to the order of the Deputy Settlement Commissioner dated 10‑8‑1960 produced as Exh. P/11 in this suit they have not discussed the contents of the order except that the joint application of the three applicants the plot was transferred in the name of Zahoor Ali. However, I have already pointed, that from this order it is clear, that Hafiz Salamatullah was in possession of certain area of this plot and structure thereupon on the relevant date and had made application for the transfer of the said plot in his favour, but subsequently, all the three applicants made a joint statement, that plot be transferred in the name of Zahoor Ali. Zahoor Ali in his statement stated, that in 1960 he had given 87 sq. feet to Hafiz Salamatullah as licensee. He is belied in this by the order of the Deputy Settlement Commissioner Exh. 11, which clearly shows, that even in 1959 Hafiz Salamatullah was in possession of this area. He has denied in the cross‑examination, that he filed any affidavit before Settlement Authorities, which statement is again contradicted by the, Exh. 11. He has admitted, that in 1968 he came to know that taxes were being paid in the name of Hafiz' Salamatullah. He has also admitted, that in 1965 he came to know, that Hafiz Salamatullah had given the possession to Shafiqullah. He has denied that he did not revoke the licence of Salamatullah. One affidavit has been produced through Aziz Ahmad, a clerk of the Settlement Office, as Exh. 17. Admittedly, this affidavit was filed by Zahoor Ali in 1962 and could not be affidavit which is referred to by the learned Deputy Settlement Commissioner in his order dated 10‑8‑1960,

It appears from the evidence of the defence witnesses, that Hafiz Salamatullah had agreed to sell the disputed house to Wahabuddin and also obtained certain amount as consideration. He, therefore, executed a general power of attorney in favour of D.W. Abdul Salam. However, this sale did not materialise as admittedly no registered sale‑deed was executed by Hafiz Salamatullah or his attorney. It, therefore, appears, that case was not properly pursued on behalf of the defendant Salamatullah. I have already pointed, that defendants Nos. 1, 3 to 6 were mere tenants and, therefore, they had no right or interest in outcome of this suit. In examination‑in‑chief, D.W. Aman Hussain, Exh. 24, D.W. Salamatullah Exh. 26, and Muhammad Ismail Exh. 25, have all said, that Hafiz Salamatullah was in possession of the house since 1948. D.W. Muhammad Ismail further stated, that plot could not be transferred to Salamatullah, and therefore, P.T.O. was issued in the name of Zahoor Ali. Both D.Ws. Aman Hussain and Muhammad Ismail stated that Hafiz Salamatullah had raised construction on this plot. D.W. Wahabuddin, Exh. 15, has stated, that he purchased house in 1967 from Hafiz Salamatullah the area of which is 87 sq. yards. D.W. Abdus Salam D.W. No. 3 is nephew and attorney of defendant No. 7, Hafiz Salamatullah. He states, that Hafiz Salamatullah agreed to sell the property to defendant No. 2, namely, Wahabuddin. He has produced three receipts of payment of taxes of the house, which are Exhs. 51/1 to 3. He has produced certified copy of the application of Hafiz Salamatullah to the Settlement Authorities, Exh. 8, and letter of Settlement Authorities in respect of their application, Exh. 7. All these facts clearly show, that Hafiz Salamatullah was in possession of the house on plot in question even before 1960 when Zahoor Ali states to have inducted him as licensee. Hafiz Salamatullah did not examine himself as he had left Karachi, and did not appear to have much interest in the suit after having entered into agreement of sale with defendant No. 2. However, the case of Hafiz Salamatullah as disclosed in the written statement was put in the cross‑examination of Zahoor Ali, which of course, he denied.

Be as it may there appears to be no doubt, that the plot in question was transferred in the name of Zahoor Ali by the Settlement Authorities with the consent of Hafiz Salamatu114 as well as Dr. Abdul Sattar. P.T.O. and P.T.D. were also issued by the Settlement Authorities and no appeal or revision was filed against the issuance of the said P.T.O. and P.T.D. till 1972. Thus, the P.T.O. and P.T.D. have attained finality and could not be challenged in the Civil Court in view of bar contained in section 22 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Even the learned Appellate Court in Civil Appeal No. 390/1978, which is subject‑matter of the Revision Application, had come to the finding, that the Civil Court was barred from determining the rights of parties over the plot which was transferred to Zahoor Ali by the Settlement Authoritiey. Thus, Zahoor Ali had acquired proprietary rights over this pICA'in dispute by the operation of law.

However, this law does not debar any person from filing a suit for specific performance of any agreement with regard to this property entered into by Zahoor Ali. It is contended, that before Hafiz Salamatullah and Dr. Abdul Sattar had given no objection, the parties had entered in some agreement with regard to the respective rights of the parties over area in their possession. This agreement has not been produced in any proceedings, apparently because the agreement was misplaced in the office of the Settlement Authorities. Dr. Sattar has examined himself to give evidence as what was the agreement between the parties. However, Hafiz Salamatullah did not come in the box and the suggestions made to Zahoor in the cross examination with respect to this alleged agreement were denied by him. Even if there was any agreement between the parties with regard to the transfer of property, it by itself did not confer any right of ownership upon Hafiz Salamatullah or Dr. Sattar. None of them has filed any suit for specific performance of the agreement, if arty. In the case of Dr. Abdul Sattar, both the Courts below have come to the concurrent finding that he had acquired right of adverse possession and prescription over the area in his possession. Both the Courts below have referred to the evidence on record which shows, that even after the P.T.O. was issued to Zahoor Ali, Dr. Sattar had been exercising his right openly on the area in his possession and was not only paying taxes to the Excise and Taxation Department and Municipality but had also let out the premises to several persons. This concurrent finding on the right of adverse possession a prescription is based on the evidence on record, and therefore, cannot be interfered with in the revision application. The Revision Application is, thereofre, dismissed with no orders as to costs.

The case of Hafiz Salamatullah appears to be a different footing. He has not acquired any right of adverse possession or prescription by 1968, when Zahoor Ali filed suit for possession. In the meantime, he apparently abandoned his rights over the plot in question by entering into agreement of sale with regard to plot and handed over possession to Wahabuddin appellant No. 2. The evidence of his attorney as pointed above clearly shows, that Hafiz Salamatullah had received consideration and had handed over the possession to Wahabuddin. It is contended by the learned counsel for the appellants, in Iind Appeal No. 169 of 1985 that even if Hafiz Salamatullah is considered as a licensee, still licence could not be involved under section 60 of the Easement Act as there had been transfer of interest in the immovable property and that Hafiz Salamatullah has executed work of permanent character and incurred expenses in the execution by raising construction over the plot. This contention is also not sustainable, because there is no evidence to show, that any construction was raised after 1960, when the entire plot was transferred to Zahoor Ali. Prior to issuance of P.T.O. Zahoor Ali, could not possess any right over the plot for which he could give licence to anybody. Furthermore, even according to case of Hafiz Salamatullah, the transfer of the property, if any, did not take place after the issuance of P.T.O. The only contention, that can be raised is, that even after issuance of P.T.D. Zahoor Ali did not interfere with the possession of Hafiz Salamatullah, who not only rented out the premises, but also entered into an agreement of sale and handed over the possession to Wahabuddin. However, such act on the part of Hafiz Salamatullah do not create any right under law with regard to ownership. The fact remains, that Hafiz Salamatullah had abandoned his possession and transferred his rights if any to Wahabuddin for consideration and the appeal filed by Wahabuddin has been dismissed by this Court vide order dated 20‑3‑1983. The only appellant left is Mst. Waheeda Khartum daughter of Hafiz Salamatullah, who had abandoned his licence or right if any over the plot in question and further more after the issuance of P.T.O. he had not acquired any right of adverse possession. He had not filed any suit for specific performance of agreement if any with Zahoor Ali.

I do not find any ground to interfere in this IInd Appeal in the concurrent findings of the learned Courts below. However, the learned counsel for respondent No. I. does not press the prayer of mesne profit, because neither there is sufficient evidence on record, nor there is any reasoning given by the Courts below for arriving at the conclusion as to the quantum of the mesne profit. He further states, that the respondent No. 1 has also filed separate proceedings for recovery of mesne profit, which are pending in the competent Court of law. The decree of mesne profit is, therefore, set aside. With this modification, the IInd Appeal is dismissed with no orders as to costs.

The Revision Application as well as the IInd Appeal were dismissed by a short order dated 13‑5‑1987. The above are the reasons, in support of the said order.

A.A./Z‑24/K

Appeal and Revision dismissed.

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