Order Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

IInd Appeal No. S – 06 of 2010

Date of hearing: 13-09-2021

Date of order: 13-09-2021

Mr. Abdul Ahad Buriro, Advocate for the appellant.

Mr. Sarfraz A. Akhund, Advocate for respondents No.5, 7, 8, 10 & 11.

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O R D E R

Muhammad Junaid Ghaffar, J. – Through this Appeal, the appellant has impugned judgment and decree dated 10-05-2010 passed by the Vth Additional District Judge, Sukkur in Civil Appeals Nos. 80 of 2009 and 81 of 2009, whereby judgment and decree dated 10-06-2009 passed by the IInd Senior Civil Judge, Sukkur in F.C. Suit New No. 180 of 2006 (Old No. 163 of 2000) and F.C. Suit No.58 of 2003, through which the former Suit of the respondents was decreed and latter Suit of the appellant was dismissed, has been maintained.

2. Learned Counsel for the appellant submits that the Courts below have failed to appreciate the evidence led by the parties; that the property in question is owned by the appellant pursuant to a registered sale deed executed in his favour by the original owner; that the ownership documents of the respondents are fake and forged; that the Sindh Katchi Abadi notification cannot confer any title, hence, this Appeal be allowed.

3. On the other hand, learned Counsel for the respondents has supported the orders passed by the Courts below and submits that no case is made out.

4. I have heard both the learned Counsel and perused the record.

5. It appears that before the learned Trial Court, there were two Suits bearing F.C. Suit New No. 180 of 2006 (Old No. 163 of 2000) and F.C. Suit No.58 of 2003. The leading Suit was filed by the respondents, whereas, the subsequent Suit was filed by the present appellant. The learned Trial Court through its judgment dated 10-06-2009, after consolidation of the Suits, has been pleased to decree the Suit of the respondents and dismissed the Suit of the appellant; against which, the appellant preferred Appeals, however, both the Appeals filed by the appellant have met the same fate through judgment dated 10‑05-2010.

On perusal of the judgment of the Trial Court, it appears that the appellant’s case was that he was lawful owner of the property pursuant to a sale deed with a further relief of possession; however, it is an admitted position that the appellant never joined the seller from whom the appellant was deriving its title on the basis of a sale deed. While confronted, Counsel frankly conceded that this was not done; he however, made an attempt to argue that the ownership documents of the respondents are also fake, forged and cannot be taken into consideration. Such contention of the appellant’s Counsel does not appear to be reasonable nor this Court at this stage of the case can attend to such a claim. It would be advantageous to refer to the issues settled by the Trial Court, which are as under:

1. Whether the Municipal authorities was legally competent to lease out the plot in question in favour of one Muhammad Umer for the period of 99 years lease through registered deed vide R.D No.924 dated 12.8.1997? (OPP)

2. Whether the plaintiffs are legally possessing the same being inherited from the said Muhammad Umer being his legal heirs? (OPP)

3. Whether the order passed by the defendant No.2 dated 24.11.2000 is null, void, malafide and without jurisdiction and is not binding upon the plaintiffs? (OPP)

4. Whether the plaintiffs illegally occupied the suit plot which is claimed property of defendant No.5 as C.S No. 105/281? (OPD)

5. Whether the plaintiffs are liable to vacate the same and to handover its peaceful vacant possession to the defendant No.5? (OPD)

6. Whether the plaintiffs are liable to pay the mesne profit at the rate of Rs.200/- P.M since 15.1.1997 till the date of its handing over the possession to the defendant No.5? (OPD)

7. Whether any of suit is barred by any provision of law?

8. Which party is entitled for grant of relief? If so, as to what extent?

9. What should the decree be?

6. While deciding issue No.1, the Court has appreciated the evidence and the cross-examination of the appellant who admitted that he purchased the property from Nisar Ahmed through registered sale deed in the year 2002, whereas, he further admitted that possession was never handed over to him. It has further come on record that he approached the Municipal Corporation alleging illegal occupation of his property and sought cancellation of the title documents of the respondents. He has further admitted in his cross-examination that it is a fact that Nisar Ahmed did not inform him about the litigation between him and the respondents. Since apparently the title on the basis of which the present appellant is claiming ownership was by itself never proved, whereas, it was mandatory upon the appellant to join the executant of the purported sale deed as a necessary party, therefore, at this stage of the proceeding when two Courts below have arrived at an adverse finding, it is not possible to upset such findings. It has also come on record that even otherwise the appellant’s Suit for possession was hit by limitation and was hopelessly time barred. This finding has also gone against the appellant.

7. In view of hereinabove facts and circumstances of this case, it appears that the appellant has failed to make out a case for indulgence, as it was never proved that the seller of the property to the Appellant was in fact an owner and lawfully authorized to sell the same to the Applicant. The findings of the Courts below appear to be correct and unexceptionable and this Court is not inclined to upset the same; the Appeal being misconceived is hereby dismissed.

J U D G E

Abdul Basit