R.A No. 115/2010
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Date Order with signature of Judge
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Present: Mr. Justice Nazar Akbar
Applicant : Mehmood Ali
through Mr. Naveed Ali,advocate.
Respondent : Mst. AzraBibi
through Mr. Muhammad Ramzan
Date of hearing
and order : 23.09.2016
JUDGMENT
NAZAR AKBAR,J:- This revision is directed against concurrent findings of the two Courts below against the applicant. First is judgment dated 20.07.2009whereby Suit No. 366/2005 filed by the respondent was decreed by the Court of III-Civil Judge, West, Karachi and the second is judgment dated 01.04.2010whereby Civil Appeal No. 94/2009 preferred by the applicant was dismissed by the Court of III-Additional District Judge, West, Karachi.
2. Briefly stated facts giving rise to this revision application are that the respondent, a lawful allottee of Plot No. 175 Sector 5-E, Surjani Town, Karachihanded over original title documents to the applicant through her husband. The applicant, an old family friend of respondent, had extended his services to her to obtain letter of possession of the aforesaid quarter from the competent authority as by that time acknowledgement of possession was not issued. The applicant after some time disclosed that the documents have been lost by him somewhere, therefore, the respondent believed in his statement in good faith and lodged non-cog report and published a notice in daily DIN, to obtain duplicates. However, subsequently it transpired that the documents were not lost and they were in possession of Mehmood Ali (the applicant), to whom the husband of the respondent has handed over the same in good faith. Therefore after failing in her efforts to recover the documents peacefully, the respondent filed Suit No. 366/2005 for recovery of (moveable property) the documents from the possession of the applicant with the following prayers :-
i. To direct the defendant to rent/handover the original /papers i.e. original Allotment Letter, Possession Letter, O-Form, 04 Payment Receipts of Installments and all other relevant documents issued by KDA authorities in respect of Plot No. A-175, Block E-5, measuring 240 Sq. Yards situated at Surjani Town, Karachi-West;
ii. To restrain the defendant, his men, agents, attorneys, assistants, assigns, servants, person or persons claiming on his behalf or under his authority permanently from using the documents/dealing with the plaintiff’s Plot No. A-175, Block 5-E, Surjani Town, Karachi transferring, selling, alternating or disposing of the same and creating third party interest therein.
iii. Any other further better or alternative relief(s) that this Hon’ble Court may deem fit and property in the circumstances of the case may also be awarded.
3. The applicant in his written statement denied all the allegations and his main defencewas that in the month of July 2003, the applicant having good family terms with the respondent and her husband for over thirty years, had entered into an agreement/understanding for sale of suit property. The documentswere handed over to him against receipt of sale consideration amounting toRs.200,000/=. The trial Court from the pleadings of the parties settled the following issues on 15.05.2006 :-
i. Whether the defendant took original file consisting of original Allotment Letter, Possession Order/Letter, O-Form, Payment Receipt of Installments and all other relevant original documents issued by KDA from the plaintiff’s husband, in good faith (having) by knowing its physical possession?
ii. Whether defendant is in possession of the plot in question in the name of plaintiff?
iii. Whether the plaintiff and defendant entered into an agreement to sell and payment of it has been made by the deferent?
iv. Whether the plaintiff is entitled for the relief claimed?
4. After recording evidence and hearing the parties, learned trial Court decreed the suit directing the applicant to return the originaltitledocuments to the respondent. The applicant preferred Civil Appeal No. 94/2009 which was also dismissed by III-Additional District Judge, Karachi-West. Thereafter he has filed the instant Revision against the concurrent findings.
5. I have heard learned counsel for the parties. Learned counsel for the applicant has referred to different documents to point out discrepancies in the pleadings and evidence of the respondent. However, he was to satisfy the Court that once it is admitted by the applicant that the original title documents were in his possession then irrespective of all the evidence of the respondent, the burden was obviously on the applicant to justify that why he has not returned the documents. The only ground seems to be reasonable was that may be he entered into an agreement to sell for a consideration of Rs.200,000/=. But this oral assertion was not supported by any tangible evidence. An oral statement has no evidentiary value, particularly when the adverse party has taken the applicant to Court for recovery of the documents from his possession. According to the applicant, the documents were handed over to him against a sale consideration in the year 2003 and the suit was filed by the respondent in 2005, meaning thereby at-least in 2005 it has been categorically disclosed by the respondent that they are not going to acknowledge and accept the claim of the applicant that they have entered into a sale agreement with him. Therefore, to lawfully retain the original title documents of the property, the applicant was required to file a suit for specific performance of sale agreement even if it was oral within the limitation i.e. three years from the date of refusal/denial by the seller. The record shows that from 2005 when respondent has denied any agreement, 11 years have passed and the applicant has not filed even time-barred suit for specific performance of sale agreement against the respondent to retain the title documents. His practical silence, except defence in the case filed by respondent,is fatal to his claim that there was any agreement of sale between the parties, now the applicant cannot even approach the Court for specific performance of the so-called agreement.
6. In view of above, it was precisely factual controversy which has been decided by the two Courts concurrently against the applicant and this Court in revisional jurisdiction is not supposed to interfere with the concurrent findings on facts unless it is shown by the applicant that the Courts below have not read or misread extra ordinary piece of evidence available on record to come to a different conclusion. Learned counsel for the applicant during the course of argument has not pointed out a single misreading and non-reading of evidence by the two Courts below. Even otherwise after admission of the applicant that the title documents are with him, the burden was on him to show/prove his entitlement to retain the said documents, which he has failed to discharge.
7. In view of the above facts, the Revision Application is dismissed. The decree is modified to the extent that the applicant shall return the title documents of the suit property to the respondent within 15 days, if he fails to return the same under proper acknowledgment to the respondent, the respondent may file an execution application and coercive measure may be adopted for recovery of the documentsthrough the Court.
JUDGE
ZahidBaig