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Revision Application No. 171 of 1985, decided on 7th December, 1986.

---S.2(2)--Dispute between parties over ownership of roof of tenement of first floor of building transferred to both of them by Settlement Department--Suit of respondent for possession of roof and mesne profit dismissed by trial Court but decreed by appellate Court who, held, on basis of plan of building and other evidence on point, that portion of building under dispute belonged to respondent/plaintiff- Order of appellate Court in view of evidence on the point not based on improper assessment of evidence in the case--Settlement Authorities who transferred property in dispute in favour of respondent were fully competent, by virtue of S.2(2) of Act XIV of 1975, to issue Permanent Transfer Deed in his favour or to prepare sketch map in respect of property--Evidence of Deputy Settlement Commissioner, who appeared as a witness before appellate Court and stated that when a property was transferred to any person then same was supposed to have been fully transferred to him alongwith roof, not supporting case of petitioner--Interference declined with order of appellate Court.

---S.115--Revision--Reappraisal of evidence--Revisional jurisdiction, held, was limited in nature and reappraisal of evidence was not function High Court in exercise of revisional jurisdiction.

Hassan Asghar Rizvi for Applicant.

Abdul Wahab for Respondent.

Date of hearing: 7th December, 1986.

The facts of the case are that the applicant and the respondent are transferees from the Settlement Department of tenement Nos.l/1 and 2/2 respectively, standing on the first floor and second floor respectively of the building known as Paparbai Lachimichand building situated on Napier Road, Karachi. A dispute arose between the parties over the ownership of the roof of the tenement on the first floor and consequently the respondent filed a suit bearing No. 88/76 in the Court of the Second Class Civil Judge, No. XIV, Karachi, for possession of the roof of the applicant's tenement and mesne profits. The suit was dismissed by the trial Court. The applicant then filed an appeal which was allowed by the learned First Additional District Judge (South, Karachi and the Judgment and decree passed by the learned Civil Judge were set aside and hence this revision application. The learned Appellate Court held on the basis of the plan of the building (Exhibit P/5 that the portion of the building under dispute belonged to the respondent and therefore it decreed the suit in her favour.

Mr. Hassan Asghar Rizvi, learned counsel for the applicant has raised the following contentions.

(1) That the evidence in regard to the approved plan of the building, Exhibit p/5 was erroneously relied upon by the appellate Court in support of the respondent's case as the concerned officer on whose instructions the plan had been prepared was not examined as a witness.

(2) That according to the evidence adduced by the parties before the trial Court, the plan was approved on 21-10-1975 which was after 1-7-1974 when the Displaced Persons (Compensation and Rehabilitation Act had been repealed by the Evacuee Property and Displaced Persons Laws (repeal) Act, 1975, and

(3) that the evidence of Syed Ahmed Sajjad Haider, Deputy Settlement Commissioner, who had been examined as a witness by the Appellate Court has been completely ignored by the learned Appellate Court.

The contentions appear to be completely devoid of force. A far as the first argument is concerned, no doubt, the learned appellate Court has relied upon the plan of the building showing the area on top of the tenement No. 1/1 as belonging to the respondent, but apart from the plan the learned appellate Court has also referred to other evidence on the point. Therefore, the conclusions of the appellate Court are not based on Exhibit p/5 alone. It is not necessary for me to go into entire evidence recorded in the case due to the limite nature of the jurisdiction being exercised by this Court in the present case as reappraisal of evidence is not the function of this Court in the exercise of its revisional jurisdiction. The evidence of P.W. Rizwanul Hassan, Inspector Settlement Department, however, show that the area in question on the second floor of the building was not transferred to the predecessor-in-interest of the applicant, as according to him, besides Ex. P/5 showing that the area in question had been transferred to the respondent, there was other evidence to show that the father of the applicant had made an application to the Deputy Settlement Commissioner for transfer of the very disputed area in question to him, but the same was not transferred. As regards Ex. P/5, no doubt in the cross-examination the witness had admitted that the same was prepared on the strength of the statement of his officer; Mr. Iqbal Ahmad, the then Deputy Settlement Commissioner but I do not agree with Mr. Rizvi that Mr. Iqbal Ahmed should have been examined as a witness before reliance could be placed on Exhibit P/5. The document is an official documents and the objection of Mr. Rizvi is .too technical. In any case, in view of the other evidence on the point, the order of the appellate Court does not appear to be based on improper assessment of evidence in the case and this Court in view of the limited nature of its jurisdiction under section 115, C.P.C. should be the reluctant to interfere with the same. The first argument of Mr. Rizvi is therefore repelled.

The second argument of Mr. Rizvi, also appears to be without force, as admittedly, the P T D was issued in favour of the respondent on 23-6-1975 (See conveyance Deed, Exhibit P / 2 ) This document clearly shows that the proceedings in respect of the property in question were still pending before the Settlement Authorities on 1-7-1974 and as such, the Settlement Authorities by virtue of section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act were fully competent to issue P T D or prepare the sketch map in respect of the property (Exhibit P/5). The argument of Mr. Rizvi that the approval of the plan. Exhibit p/5, which admittedly took place on 21-10-1975," was after the said target date and as such without jurisdiction, therefore, appears to be completely without merit. The second argument is, therefore, also repelled.

Turning to the last .argument, the learned counsel has contended that the evidence of witness Syed Ahmad Sajjad Haider, Deputy Settle ment Commissioner, .recorded by 'the appellate Court has not been considered at all by the latter and, therefore, the Judgment is erroneous. This witness has stated that when a tenement is transferred to any person then the same is supposed to have been fully transferred to him alongwith the roof. The witness has further stated that the PTD does not show the area of the accommodation of the tenement transferred to such persons. On the basis of this evidence, Mr. Rizvi contended that the roof of the first floor has been transferred to the appellant. I am afraid, this evidence is of hypothetical nature and it does not help the applicant at all. The question whether the roof of the second floor had been transferred by the Settlement department alongwith the tenement No. 2/2 or not, was purely a question of fact. Since the evidence of witness Syed Ahmad Sajjad Haider fails to lend any material support to the case of the applicant in this respect, then even if the same has been ignored by the learned appellate Court, it has hardly made any material difference to the applicant's case.

For the aforesaid reasons I find no force in this revision and the same is dismissed.

M . Y . H . / Z-35/ K Petition dismissed.

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