ORDER SHEET

Order Sheet

IN THE HIGH COURT OF SINDH AT KARACHI

Second Appeal No. 33 of 2019

Date	Order with signature of Judge

1. For orders on CMA No.2568/2019 (U/A) :

2. For orders on office objection a/w reply as at ‘A’ :

3. For orders on CMA No.1332/2019 (Stay) :

4. For hearing of Main Case :

25.04.2019 : Mr. Dur Muhammad Shah, advocate for the appellant.

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1. Urgency granted.

2 to 4. Suit No.1442/2012 filed by respondent No.1 against the appellant and respondent No.2 for possession, declaration, damages and permanent injunction, in respect of two rooms of House No. A-107/1, Sub-Block / Sub-Sector 51/B, measuring 160 sq. yds., Korangi Township, Karachi (‘suit property’), was decreed by the learned trial Court vide judgment and decree dated 29.04.2016 to the extent of possession of the suit property ; and, Civil Appeal No.124/2016 filed by the present appellant against the said judgment and decree was dismissed by the learned appellate Court vide judgment and decree dated 19.01.2019. The appellant has preferred this second appeal to challenge concurrent findings of the learned trial and appellate Courts.

Relevant facts of the case are that respondent No.1 is the sister-in-law (brother’s wife) of the appellant and respondent No.2 is his father, and father-in-law of respondent No.1. The above Suit was filed by respondent No.1 by claiming to be the lawful owner of the suit property by virtue of registered gift deed dated 07.12.2010 executed in her favour by her father-in-law / respondent No.2. It was the case of respondent No.1 / plaintiff that she was residing in the suit property with her family members, and the appellant (her brother-in-law) was in possession of only two rooms of the suit property ; after acquiring ownership of the suit property, she requested the appellant to vacate the said two rooms in his possession, to which he had initially agreed, but subsequently he refused to do so and started harassing her and creating problems for her ; and, the appellant also managed to fabricate false and bogus documents in order to usurp the suit property. In the above background, the Suit was filed by respondent No.1 against the appellant seeking possession of the said two rooms, damages to the tune of Rs.50,000.00 and injunction. Respondent No.2 (donor of the suit property) was joined in the said Suit as a proforma defendant. The Suit was decreed by the learned trial Court only to the extent of possession with direction to the appellant to handover vacant, peaceful and physical possession of the said two rooms to respondent No.1 without fail within thirty (30) days, and the appeal filed by the present appellant against the above decree was dismissed by the learned appellate Court.

Record shows that in his written statement it was claimed by the appellant that one portion of the suit property was gifted to him by his father / respondent No.2 through an affidavit, and as such he was entitled to retain possession thereof. It may be noted that no particulars or description whatsoever in respect of the portion allegedly gifted to him were disclosed by him. Record further shows that he did not produce any declaration of gift or other registered document in his evidence in support of his above claim.

On my query, it was conceded by learned counsel that till date the appellant has not initiated any proceedings for cancellation of the gift executed and registered in favour of respondent No.1 or for a declaration in his favour that the portion claimed by him was gifted to him by respondent No.2. It was also conceded by him that respondent No.2 / donor has also not challenged the said gift nor has he initiated any proceedings for its revocation. On the contrary, respondent No.2 / donor had supported the case of respondent No.1 by admitting in his evidence that the suit property was gifted by him to respondent No.1 with his own free will whereafter she became the sole and absolute owner thereof. It is contended that the appellant, being the real son of respondent No.2 / donor, is entitled to his share in the suit property. This contention is absolutely misconceived as his father / respondent No.2 had ceased to be the owner of the suit property after gifting it to respondent No.1, however, even if it is assumed for the sake of argument that respondent No.2 is still the owner of the suit property, the appellant still has no right to claim his share therein during the lifetime of respondent No.2.

In view of the above admitted position, it is clear that the appellant had / has no right to remain in possession of the said two rooms in the suit property. The concurrent findings of both the learned Courts below, which are based on sound reasoning, proper appreciation of evidence and correct application of law, do not require any interference by this Court. Accordingly, the appeal and listed applications are dismissed in limine with direction to the learned trial Court to execute the decree in letter and spirit within thirty (30) days of receipt of this order. Office is directed to communicate this order to the learned trial Court through learned District Judge concerned for compliance.

J U D G E