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---S. 100--Second appeal--Interference by High Court in second appeal, extent of--No concurrent findings of facts of Courts below- High Court, in absence of concurrent findings of facts of Courts below, held, could interfere even in second appeal on findings of facts.

Madan Gopal and others v. Maran Bepari and others PLD 1969 SC 617 rel.

(b) Limitation Act (IX of 1908)--

---Art. 144--Adverse possession--Proof of--Claim of adverse possession on basis of co-possession of property--Mere residence with allottee of property, held, would not create any right in such property, unless person clai g such right could prove that his possession therein was hostile or adverse to that of allottee of property--Co-possession with allottee could not render such possession to be adverse to such allottee.

(c) Qanun-e-Shahadat Order (10 of 1984)--

---Art. 118--Burden to prove entitlement in property in absence of documentary evidence--In absence of documentary evidence to show that allottee had relinquished his right in property, burden, held, would lie heavily on person claiming entitlement in such property--Mere fact that person claiming entitlement as against allottee thereof was in possession of certain receipts of payment of instalments of property, such receipts being in the name of allottee, would not raise any presumption that he paid the amount of receipts.

(d) Civil Procedure Code (V of 1908)--

---S. 100--Limitation Act (IX of 1908), Art. 144--Finding of First Appellate Court based on conjecture and presumption--Effect- Conclusions of First Appellate Court that as respondent was in possession of property since 1959, so his possession was adverse to that of allottee thereof, being not warranted by any evidence on s record, held, was based on conjecture and presumption and was not sustainable---Finding of First Appellate Court on question of limitation was also fallacious as suit filed within twelve years of death of allottee would not be hit by law of limitation and hostile title, if any, would not mature in circumstances.

(e) Karachi Development Authority Order (5 of 1957)

---Art. 91--Rights in property, devolution of--Failure to produce heirship certificate--Effect--After death of original allottee two rights, held, devolved upon all the appellants, first right devolved upon was as heirs of allottee and second right as co-allottee upon one of such appellants--Only formality required to be done by appellant was to produce heirship certificate--Failure to produce heirship certificate, held, would not extinguish right that devolved upon appellant by operation of law.

Noor Muhammad v. Karachi Development Authority PLD 1975 Kar. 272 ref.

(f) Karachi Development Authority Order (5 of 1957)

---Art. 91--Civil Procedure Code (V of 1908), S. 100--Second appeal- Right over property devolved upon appellants--Respondent's entitlement over property not established--Effect--Where right over property devolved upon appellants after death of allottee, and respondent failed to establish his right thereon either by way of adverse possession or by way of purchase, acceptance of claim of respondent by First Appellate Court based on non-reading of evidence was set aside by High Court in second appeal as not sustainable in circumstances.

Manhor Lal for Appellants.

Ali Muhammad E. Seth for Respondent.

Date of hearing: 11th May, 1987.

JUDGEMENT

This IInd Appeal is filed against the judgment and decree, dated 1-4-1979, passed by the learned Vth Additional District Judge, Karachi, in Civil Appeal No. 240/1977.

Dispute between the parties relates to the possession of and right over Quarter No. R/526, Korangi Township No. 1, Karachi. This quarter was admittedly allotted to Mst. Saidan, grand mother of appellants Nos. 2 and 3, mother of appellant No. 4 and mother in law of appellant No. 1. The appellant No. 2 was shown as co-allottee with Mst. Saeedan. Respondent, who was also related to deceased, Mst. Saeedan, came to live with her in the said quarter some time before her death. According to the case of the appellants, appellant No. 2 used to reside with his grand mother, Mst. Saeedan, but after death of Mst. Saeedan, as the people were coming for condolence, he was asked by the respondent to shift to the house of his father, Wahiduddin, temporarily. It is alleged that later on the respondent refused to vacate the premises when he was so asked by Wahiduddin, son of Mst. Saeedan. Both the parties then approached the KDA for issuance of allotment order. The KDA, however, directed the parties to seek their relief from the competent Court of law, as it was a dispute of a civil nature between the parties. Consequently, Wahiduddin, Fariduddin, and Mst. Waheedan, filed a suit No. 2125/ 1972, in the Civil Court for declaration and possession of the disputed premises. The respondent however, claimed, that Mst. Saeedan was Benami allottee and, that he had paid all the dues and the possession of the quarter was with him since 1959. Wahiduddin died during the course of litigation, and appellants Nos. 1 to 3 have been joined as his L.Rs. On the pleadings of the parties, the learned trial Court framed the following issues:--

(1) Whether the suit as framed is maintainable

(2) Whether the suit is barred by Articles 142 and 144 of Limitation Act

(3) Whether Mst. Saeedan Begum was the allottee of quarter No. 526 Korangi Township alongwith co-allottee the grand son Fariduddin

(4) Whether Mst. Saeedan Begum was the Benami allottee of the quarter in dispute

(5) Who paid the price and instalments of quarter No. R/527

(6) Whether the defendant was a licensee of the deceased, Mst. Saeedan Begum

(7) Whether the plaintiff No. 2 was residing in the disputed quarter till the death of Mst. Saeedan Begum and was shifted temporarily after the death of his grand mother with his father

(8) Whether after the death of Mst. Saeedan Begum the defendant did not permit Fariduddn to live in his own house

(9) Whether Mst. Saeedan Begum left her heirs to the property as given in the plaint

(10) Whether the licence under (which the defendant was living in the disputed quarter was cancelled by the heirs to the deceased Mst. Saeedan Begum, and the defendant was asked to vacate the disputed quarter

(11) Whether under the transfer application the defendant showed himself the purchaser of the disputed quarter and produced deed of purchase which is bogus

(12) Whether the Director, Housing Management of KDA after having recorded the statement of the defendant directed the plaintiff to approach the competent Court for relief

(13) What should the decree be

The trial. Court decreed the suit of the plaintiff /appellants vide judgment dated 31-8-1977. In appeal this judgment was set aside and the suit of the appellants was dismissed.

The main contention of the learned counsel for the respondent is, that in the IInd Appeal this Court cannot go into the question of fact and the findings of the facts arrived at by the learned 1st Appellate Court are binding upon this Court. It may be pointed, that there are no concurrent findings of the facts of the Courts below and in such a case in certain circumstances the High Court A does interfere even in the IInd Appeal on the findings of the facts. Reference in this connection may be made to the case of Madan Gopal and others vs. Maran Bepari and others (1969 S.C. 617). It will be useful to reproduce the observations of their Lordships, which is as under:----

"The legal position does not admit of any doubt that a concurrent finding of fact reached by the lower Courts will not be disturbed by the High Court in a second appeal even if it disagrees with that finding on its own view of the evidence, although the concurrent finding of the lower Courts may appear to be grossly erroneous, unless, as laid down in subsection (c) of section 100, the error of defect discovered is of a substantial character pertaining, to the procedure as provided by the Code or by any other law for the time being in force which may possibly have produced an error or defect in the decision of the case upon its merits. Interference would also be justified if the decision of the lower Courts is found to be contrary to law or some usage having the force of law or has failed to determine some material issue of law or usage having the force of law. If the finding of fact reached by the first appellate Court is at variance with that of the trial Court, the former will ordinarily prevail, although it would not possess the same value or sanctity as a concurrent finding. Such a finding by the lower appellate Court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning, duly taking note of the reasons adduced by the first appellate Court, which have been disfavoured in the contrary finding. The finding being at variance with that of the trial Judge, the two will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the two different findings have respectively proceeded. If the finding of the first appellate Court cannot be supported on the evidence on record, or if it has failed to take into account a material piece of evidence or if it does not reveal a logical basis for differing from the finding of the trial Court, or is otherwise found to be arbitrary or capricious, it will have to be rejected in second appeal.

Where, therefore, the first appellate Court reversed the finding of the trial Court without paying any heed to the reasoning given by the first Court and the appellate Court had also discounted a very fundamental piece of evidence, it was held, that the High Court was right in disagreeing with the lower appellate Court and reversing its finding in second appeal and restoring that of the first Court."

Certain facts are not disputed, which in fact would go to the root of the dispute between the parties. It is an admitted fact, that Mst. Saeedan was the allottee of the quarter in question. The findings of the learned trial Court in issue No. 3 to the effect, that appellant No. 2, namely Fariduddin, was co-allottee of deceased Mst. Saeedan is not set aside by the learned appellate Court. It is also not disputed, that appellants are legal heirs of Mst. Saeedan. It is also admitted, that deceased Mst. Saeedan did live in the quarter in question at least for some time. It is also not disputed, that no allotment order with respect to the quarter has ever been issued in the name of the respondent. It is also an admitted fact, that before the death of Mst. Saeedan, the respondent was living in that quarter. The trial Court had held, that it was not proved, that appellant No. 2 was residing with Mst. Saeedan at the time of her death or that he shifted temporarily after death of Mst. Saeedan. This finding has not been set aside by the learned trial Court.

In fact, the main question, that had to be decided by the 'Courts below, was as to in what capacity the respondent was residing in the quarter. The mere fact, that he had been residing with Mst. Saeedan would not create any right unless he was able to prove, that his possession was hostile and adverse to that of Mst. Saeedan. B He does not so aver either in the pleadings or in his statement. In fact, admittedly, he was in co-possession of the quarter with deceased Mst. Saeedan, and as such his possession cannot be considered to be adverse to that of Mst. Saeedan.

This leaves us only, with one claim of the respondent, that he was the real purchaser of the plot and had paid all the instalments and dues of the quarter. It is an admitted fact, that certain payments were made through the respondent and these receipts were produced by the respondent before the KDA Authorities, when he applied for allotment of the plot. However, the fact remains, that even these receipts are not in his name, but in the name of deceased, Mst. Saeedan.

There is no documentary evidence, whatsoever, that Mst. Saeedan in any way sold or agreed to sell the quarter in question to the respondent. There is no documentary or other evidence to show, that Mst. Saeedan relinquished her right in the quarter. Under such circumstances, the burden lies heavily upon the respondent to prove his claim, that he was the owner of the quarter, and, that Mst. Saeedan was only a Benami allottee. The respondent has examined himself as Exh. D/2. The relevant portion of his evidence is reproduced as under:--

"I had no house and Mst. Saeedan had offered me to live with her and to pay the instalments of one quarter. Than I went and started living in her quarter. I paid Rs.24 and 12 annas being instalment of the quarter. I also paid such amount for C another quarter of Wahiduddin, because he has no money."

From this part of evidence it is abundantly clear, that the possession of the respondent was permissive and not hostile and further, that Mst. Saeedan had only offered respondent to live with her. He does not state, that she offered to sell the quarter to him. He states, that he paid some instalments of the quarter, but as already pointed the receipts are in the name of Mst. Saeedan. The mere fact, that he was in possession of the receipts, would not raise any presumption, that he paid the amount of the receipts. The only other witness examined by him is D.W. Muhammad Yamin, who is brother in law of the respondent. Instead of supporting the respondent, he, however, contradicts the respondent and gives al-together a different story. He states, that deceased, Wahiduddin, had approached him, and offered him one quarter, but he refused, but instead of that, he gave Rs.50 to plaintiff, Wahiduddin, who made the payment of both the quarters. He further states, that he had given the amount to Wahiduddin with the idea, that he would give one quarter to defendant/ respondent. Thus, this witness contradicts the evidence of respondent, who claims to have paid the instalment of both the quarters. It may be pointed, that it is not put in cross-examination to Wahiduddin, that he obtained any amount from D.W. Muhammad Yameen. Even if for the sake of arguments, it if accepted, that the respondent did make payment of some instalments, still by itself it would not create any right of ownership. in the respondent. The respondent admittedly is husband of the niece of Mst. Saeedan, and apparently, because of this close relationship, that she offered him to stay with her when he had no other house to live in. Under such circumstances if the respondent did make some payments, it cannot be said, that he did so with intent to purchase the quarter from Mat. Saeedan. He has pressed his claim only after death of Mst. Saeedan, when she is no longer alive to deny the claim. The respondent states, that Mst. Saeedan did not die in the quarter, but she died in quarter No. 527, which is adjacent to the quarter in dispute and is allotted to plaintiff. Wahiduddin son of Mst. Saeedan. The respondent is contradicted by his own statement in examination in chief, where he states, that Mst. Saeedan offered him to live with her in the house, meaning thereby, that Mst. Saeedan was living in the same quarter. He does not state, that as to when, why and at what stage Mst. Saeedan left the quarter in dispute and started living with her son Wahiduddin. No such question has been suggested to Wahiduddin or to his witness, Muhammad Ilyas. Rather it is suggested to P.W. Ilyas, that defendant /respondent used to reside with Mst. Saeedan in the disputed quarter in the life time of Mst. Saeedan. It may be pointed, that Exh. D/27 which is death certificate, issued by the Administrator, Union Committee No. 14, Korangi, Mst. Saeedan is shown to have died in quarter No.R/526, Korangi No. 1. All this evidence leave no doubt, that Mat. Saeedan continued to remain in possession of the quarter in question at the time of her death.

The learned appellate Court has based its finding on the ground, that there was enough proof to show, that the respondent was in possession of the quarter since 1959 and the evidence on record shows, that he has been paying the instalments etc. of the quarter in question. The learned appellate Court has not given any definite finding as to whether deceased Mst. Saeedan was residing or not residing in the quarter at the time of her death. I have already pointed, that the evidence clearly shows, that Mst. Saeedan was residing in the quarter at the time of her death and, that the possession of the respondent was permissive and in no way adverse to that of Mst. Saeedan or her heirs. The conclusion drawn by the learned appellate Court are based on conjecture and presumption, which are not warranted from evidence on record, which has been reproduced and discussed above. The conclusion of the learned appellate Court, that as the respondent was in possession since 1959, therefore, his. D possession was adverse to that of co-allottee, viz. appellant No. 2, who filed suit for possession after 12 years is fallacious. It will advert to the rights of the appellant No. 2 later, but suffice it to say, that even according to evidence on record, the right to the co-allottee in the quarter accrued after death of the allottee. The allottee Mst. Saeedan admittedly died in 1970, and therefore, after her death 12 years did not elapse before filing of suit and as such the respondent could not have perfected his title of adverse possession, if any, against appellant No. 2.

The learned appellate Court appears to have based its finding, mainly on the issue No. 1, which is with regard to the maintainability of the suit. The finding of the learned trial Court may be reproduced on this issue:--

"No specific argument has been advanced but the advocates of the parties on the point of non-maintainability and therefore the present issue stands not pressed and the suit appears to be maintainable in its form and therefore the present issue is accordingly answered."

The learned appellate Court, however, reversed the finding of the learned trial Court on this issue holding, that the plaintiff/ appellants had not obtained any allotment order with regard to quarter in question and as such, they acquired no right to file the suit. He was further of the view, that even if the respondent was a licensee, the appellants had not revoked the licence. I have gone through the memo of first appeal, and I find, that in this memo. of appeal respondent has not specifically challenged the finding of trial Court on this issue.

In this context reference may be made to the evidence of P.W. Ansar Hussain, Exh. P/21. He is Assistant Land Manager, K.M.C. He has stated, that according to rules and regulations of KDA, after death of Mst. Saeedan, the quarter was to be allotted to co-allottee Fariduddin. From order, Exh. P/12, which was passed by this witness on the application of the respondent, it is also clear, that according to law in force the property should have been mutated in the name of co-allottee, but he did not apply for mutation nor deposited dues of this quarter accrued already, but respondent applied for regularisation of the quarter in his name on basis of certain documents and that he was in its exclusive possession. This order further shows, that in the meantime, another application was received from the heirs of deceased allottee Mst. Saeedan and both parties were asked to produce the requisite heirship certificate which they did not produce, therefore, they were advised to seek redress from the competent Court, of law. Exh. P/11, is letter, addressed to appellant No. 2, with reference to application dated 31-7-1972, whereby he was informed, that the dispute over quarter No. R/526 was of a private nature and as such he may approach a competent Court of law for redress. From this evidence it is clear, that under the rules and law the right to the quarter devolved upon co-allottee but before he could make an application, respondent moved an application for the transfer of the quarter in his name on the basis of exclusive possession and certain documents. It is not clear from the order as to what were these documents, but from the evidence of the respondent it appears, that these documents were receipts of the payments, which have already been discussed above. Exh. P/11 also shows, that co-allottee did not relinquish his right but did make an application for regularisation of the quarter in his name, but because of the contentions raised by the respondent he was asked to have the dispute settled from the Civil Court. The fact, that the parties were asked to produce heirship certificate also clearly shows, the right of the allotment devolved upon heirs of Mst. Saeedan after her death, Thus two rights devolved upon the appellants. One right devolved upon all the appellants as heirs of Mst. Saeedan, and the other right devolved upon the appellant No. 2, as co-allottee of the quarter. It is contended by learned counsel for the appellant, that (sic) allotment of the quarter was not the personal right but a right in rem. In this respect reliance is placed upon the case of Noor Muhammad v. Karachi Development Authority (PLD 1975 Karachi 272), wherein a D.B. of this Court had held, that "allottee of a plot under KDA Ord. 1957, was not merely licensee or sub-licensee but had a right in rem, in respect of the plot allotted to him. This ruling is no doubt in respect of a plot allotted by KDA, but it is contended, that on the same anology, it is equally applicable to the allottee of the quarter. This contention finds support even from the evidence of witness Ansar Hussain, as well as from his order referred to above. From the evidence of witness Ansar Hussain and from the order it is clear, the right over the quarter devolved upon heirs of the deceased Mst. Saeedan as well as upon the co-allottee after her death. The only formality, that required to be done was the mutation of the record for which they were asked to produce heirship certificate. Their failure to produce the heirship certificate did not extinguish right that devolved upon appellants by operation of law. It is already pointed, that it is not disputed that the present appellants are heirs of Mst. Saeedan. Under no circumstance it can be said, that the respondent is the heir of Mst. Saeedan.

An application, Exh. P/2, was admittedly made by the respondent to the Administrator, KDA. In this application the applicant has stated, that he continued to live with Mst. Saeedan in quarter No. R/526, and that he had taken the quarter from Mst. Saeedan, who had given him possession and the papers and then left. It will be pertinent to note, that this application was made on 12-10-1971, viz. after about 1i years of the death of Mst. Saeedan. Even in this application the respondent does not specifically claim to have purchased the quarter. Copies of other applications, purporting to bear signatures of respondent, were produced by witness, Ansar Hussain, which according to him, came to his notice when he passed the order Exh. 12. These applications are prior to application, Exh. P/2, but the respondent denies the signatures on these applications. In Exh. P/22, the respondent requested for the allotment of the quarter on the ground, that deceased had no issue, and therefore, she was living with her. Even in Exh. P/2, it is not clear as to when the deceased left the quarter. As already pointed the fact stands proved from the evidence on record, that the deceased had died in the quarter in question.

Upshot of all the discussions is, that evidence on record proves, that the right over quarter in question had devolved upon appellants after death of Mst. Saeedan and that the respondent has not been able to establish his right either by way of adverse possession or by way of purchase over quarter in question. The findings of the learned appellate Court cannot be supported on the basis of evidence on record. The judgment appears to be based on non-reading of material evidence and is arbitrary. Consequently, the judgment and decree passed by the learned appellate Court is set aside, and the judgment and decree passed by the learned trial Court is restored. The appeal is allowed vAth costs. '

This find appeal was allowed by a short order, dated 21-5-1987, and these are the reasons in support of the said order.

A.A./K-29/K Appeal accepted.