Judgment Sheet
IN THE HIGH COURT OF SINDH CIRCUIT COURT HYDERABAD
Second Appeal No. 32 of 2019
Appellants : Bundoo Khan and Muhammad Yousuf,
through Mr. Mumtaz Ali Soomro Advocate.
Respondent : Muhammad Younus,
through Mr. Mehmood Hussain Siddiqui Advocate.
Date of hearing : 09.12.2019.
J U D G M E N T
NADEEM AKHTAR, J. – First Class Suit No.73/2015 filed by the respondent against the appellants for declaration, possession, mesne profits and permanent injunction in respect of House No.50, Mir Nabi Bux Town, Noorani Basti, Hyderabad (‘suit property’), was decreed by the learned trial Court vide judgment and decree dated 11.10.2017 and 13.10.2017, respectively, to the extent of declaration and possession ; and, Civil Appeal No.287/2017 filed by the appellants against the above decree was dismissed by the learned appellate Court vide judgment and decree dated 10.05.2019. Through this second appeal, the appellants have impugned concurrent findings of both the learned Courts below.
2. Relevant facts of the case are that the parties are real brothers ; the above Suit was filed by the respondent originally against appellant No.1 claiming that he (respondent) was the sole and absolute owner of the suit property ; appellant No.1 was allowed by him to occupy the ground floor of the suit property as a licensee ; in view of some actions taken by appellant No.1 in respect of the suit property without his permission or consent, he revoked the license and asked him to handover possession of the ground floor ; instead of doing so, appellant No.1 filed Third Class Suit No.92/2014 against him for permanent injunction which was disposed of with the consent of the parties in the terms that appellant No.1 will not be dispossessed without due process of law ; and, despite his repeated requests and demands, appellant No.1 did not handover possession to him. In this background, the above Suit was filed by the respondent against appellant No.1 for declaration, possession, mesne profits and permanent injunction.
3. Appellant No.2 filed an application in the above Suit praying that he may be joined therein as a defendant, which was allowed by the learned trial Court. Both the appellants contested the Suit by filing their respective written statements. Their main defence was that the suit property was purchased jointly by the father of the parties and appellant No.1, and as such the respondent was not the owner thereof and had managed to get the same transferred in his name fraudulently. In view of the divergent pleadings of the parties, following ten (10) issues were settled by the learned trial Court :
“1. Whether suit is not maintainable and the same is barred by law of Limitation ?
2. Whether suit is barred U/s 42 and 56 of the Specific Relief Act ?
3. Whether plaintiff is exclusive owner of immovable property, house No.50, constructed over plot No.C/50, admeasuring 1000-sq.ft, C.S No.4404, Ward-G, Meer Nabi Bakhsh Town, Noorani Basti, Taluka City, Hyderabad and he constructed the suit property from his resources ?
4. Whether defendant was residing as licensee at ground floor of the premises and he obtained electricity connection in his name fraudulently ?
5. Whether plaintiff is entitled for Rs.20,000/- per month as mesne profit from last three years till the delivery of possession of the premises ?
6. Whether suit plot was purchased by the defendant and his father and plaintiff fraudulently / malafidely entered his name in record and the same of “Benami” transaction ?
7. Whether defendant No.2 has filed written statement in collusion with defendant No.1 and whether he has any right, title or share in the suit property ?
8. Whether all brothers and sisters are share holders in suit property ?
9. Whether plaintiff is entitled for relief claimed ?
10. What should the judgment and decree be ?”
4. The appellants and respondent led their respective evidence by examining themselves and other witnesses. After examining their evidence and hearing the arguments advanced on their behalf, the respondent’s Suit was decreed to the extent of declaration and possession. It was held by the learned trial Court that the Suit was not barred by limitation or under Section 42 of the Specific Relief Act, 1877 ; respondent had produced the relevant entry in his favour in the of Rights in respect of the suit property ; and, the appellants had failed to produce any document to show that the suit property was purchased by their father and appellant No.1 or that the same had been fraudulently transferred by the respondent in his favour.
5. In the appeal filed by the appellants, it was held by the learned appellate Court that the appellants had never pleaded that the gift deed executed by the previous owner of the suit property in favour of the respondent was a fabricated document ; they did not file any Suit for cancellation of the said gift deed or transfer / mutation of the suit property in favour of the respondent although this fact came to their knowledge in the year 2002 ; they also did not initiate any proceedings for claiming their share in the suit property as legal heirs of their late father ; they did not produce any evidence to prove that the suit property was purchased by their late father and appellant No.1 and even the facts regarding the name of the seller and sale consideration were not disclosed by them ; and, there was a clear contradiction in their pleadings and evidence. In view of the above findings, the learned appellate Court agreed with the findings of the learned trial Court and accordingly maintained the same by dismissing the appeal filed by the appellants.
6. I have heard learned counsel for the parties at length and have also carefully examined the material available on record. There were not only serious contradictions in the pleadings and evidence of the appellants, but they had also made some important admissions, which are briefly discussed below :
A. In paragraph 2 of his written statement, appellant No.1 on the one hand had claimed that the suit property was purchased by him and his father and the name of the respondent was entered in the record in a malafide manner, but on the other hand he had claimed that the entire sale consideration was paid by him.
B. In paragraph 5 of his written statement, appellant No.1 had claimed that he was the sole owner of the suit property.
C. In paragraph 4 of additional pleas in his written statement, it was again claimed by appellant No.1 that the suit property was purchased by him and the construction thereon was also raised by him, but it was fraudulently transferred in his name by the respondent.
D. In his examination-in-chief, appellant No.1 had stated that the suit property was purchased by his father in his own name.
E. In his cross-examination, at one stage appellant No.1 had stated that he was the sole owner of the suit property, but later on it was admitted by him that he was not the sole owner.
F. It was admitted by appellant No.1 in his cross-examination that he had not mentioned in his written statement that original title documents of the suit property were in possession of his paternal aunt Fatima.
G. It was further admitted by appellant No.1 in his cross-examination that he came to know in the year 2002 that the suit property was transferred in the name of the respondent, but he did not file any Suit for cancellation of such transfer / entry, which was still intact, and he also did not claim his share in the suit property as legal heir of his late father.
H. Appellant No.2 had also claimed in paragraph 2 of his written statement that the suit property was purchased by appellant No.1 and his father, and respondent was the benami owner thereof. However, in paragraphs 5, 6 and 7 he had stated that appellant No.1 was the sole owner, and in paragraph 5 it was also stated by him that all siblings have share in the suit property.
I. In his examination-in-chief, appellant No.2 had stated that construction on the suit property was raised by appellant No.1 from his own funds, and in his cross-examination it was stated by him that all legal heirs of his late father have inherited the suit property from their late father.
7. In addition to the above, it may be noted that appellant No.1 had filed Third Class Suit No.92/2014 against the respondent for injunction, copy whereof was filed by him along with his written statement in the respondent’s Suit and was also mentioned by him in his cross-examination. It is significant to note that in his above Suit it was claimed by him that the suit property was purchased by him when he was in service, and on the advice of his father, the same was transferred in the name of the respondent. This stance taken by appellant No.1 in his above Suit was completely opposite and contradictory to the defence taken by him subsequently in the respondent’s Suit that the suit property was fraudulently transferred by the respondent in his own name.
8. The above contradictions in the pleadings and evidence of the appellants were sufficient to belie their claim. Record shows that the respondent had successfully discharged his burden in proving that he was the owner of the suit property. The appellants had not only failed in dislodging the claim of the respondent, but had also failed in discharging the burden to prove that the suit property was purchased either solely by appellant No.1 or jointly by him and his father. Moreover, not a single document was produced nor were any details disclosed by any of the appellants in support of their alleged claim. The new stance taken by appellant No.1 in his examination-in-chief that the original title documents were in possession of his sister Fatima (referred to by him as his paternal aunt in his cross-examination) was of no value and was rightly rejected by both the learned Courts below as this fact was not pleaded by him in his written statement. It is well-settled that evidence cannot be led in respect of any fact that has not been pleaded in the pleadings.
9. The other important aspect of this case is that the appellants, particularly appellant No.1, admittedly did not file any Suit for declaration that the suit property was owned solely by appellant No.1 or jointly by him and his father, or for cancellation of the respondent’s title. The other legal heirs of the late father of the parties also did not file any Suit claiming their share in the suit property, or any application for issuance of Letters of Administration in respect thereof. This aspect becomes more important in view of the admission made by appellant No.1 in his cross-examination that the fact about the transfer of the suit property in favour of the respondent came to his knowledge in the year 2002.
10. Perusal of impugned judgments and decrees shows that both the learned Courts below have considered all the aspects of the case and have recorded their findings after proper application of mind and appreciation of the evidence available on record. The concurrent findings of the learned Courts below, being balanced, well-reasoned and in accord with the evidence on record, do not require any interference by this Court. It is well-settled that concurrent findings of fact cannot be disturbed in second appeal. Accordingly, this appeal is liable to be dismissed.
11. Foregoing are the reasons of the short order announced by me on 09.12.2019, whereby this Second Appeal and the stay application pending therein were dismissed with no order as to costs.
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J U D G E