IN THE HIGH COURT OF SINDH, KARACHI
IInd Appeal No. 89 of 2023
[Muhammad Nadeem & another vs. Muhammad Fareed Ahmed & others]
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Mr. Juzer Q. Pishori, advocate for appellants a/w appellant No.1.
Mr. Muhammad Daud Narejo, advocate for respondent No.1.
Mr. Siddique Shahzad, advocate for Intervenors.
Ms. Deeba Ali Jaffri, AAG Sindh.
Date of hearing & Order: 09.02.2026
J U D G M E N T
ARSHAD HUSSAIN KHAN, J. This Second Appeal is directed against the judgment and decree dated 22.12.2022, passed by the learned IInd Additional District & sessions Judge, Karachi-East, whereby Civil Appeal No.263/2021 was allowed, the judgment and decree dated 26.11.2021, passed by the learned IInd Senior Civil Judge, Karachi-East in Civil Suit No.140/2015 were set aside, and the suit of the respondent No.1-plaintiff was decreed to the extent of prayer clauses A to C of the plaint with no order as to cost.
2. Brief facts of the case are that on 17.03.1976 the Karachi Development Authority (Resettlement Department) issued an allotment order vide Serial No.6320, Book No.64 in respect of Quarter No.A-20, Malir Township, Karachi, admeasuring 80 square yards (the “subject Property”), in favour of Respondent No.1/plaintiff. The property was subsequently leased in his favour vide Lease Registration No.8514 dated 06.11.1976 by Respondent No.2 (Sub-Registrar T-Division-III, Karachi). The respondent claims that since then he has been the lawful owner and in peaceful possession of the property, which consists of ground plus one floor. It is the case of the respondent that due to the poor financial condition of his brother, Latifuddin (since deceased), he permitted him to reside in the suit property on humanitarian grounds. According to the respondent, possession was returned to him in 2001; however, on 20.02.2012 the appellants/defendants, his nephews, allegedly broke open the lock and forcibly occupied the property. Despite repeated requests and an undertaking allegedly made through a Halafnama, the appellants did not vacate the premises and instead threatened the respondent, whereafter FIR No.234/2014 under Sections 448, 506-B and 34 PPC was lodged. Apprehending that the appellants might create third-party interest in the property, the respondent No.1 instituted Suit No.140 of 2015 for recovery of possession, damages, mesne profit, cancellation of documents and permanent injunction against the appellants/defendants.
3. Upon notice, the appellants filed a joint written statement denying the respondent’s claims. They asserted that the property actually belongs to Fakhruddin s/o Muhammad Sharafuddin, brother of the respondent No.1 and paternal uncle of the appellants, and that they are residing in the property with his permission. The appellants alleged that the documents relied upon by the respondent No.1 are forged and fraudulently obtained. They further contended that Fakhruddin had never transferred the property to anyone and had only left the documents with his father before going abroad. The appellants denied forcible occupation, the alleged threats, and the respondent’s claim of ownership and mesne profits, and prayed for dismissal of the suit.
4. The suit was initially dismissed vide judgment and decree dated 17.07.2019 after recording evidence and hearing the parties. The respondent No.1 filed Civil Appeal No.210 of 2019, which was allowed, and the matter was remanded to the trial court with directions to verify the respondent’s title documents from the concerned department and decide the case afresh in accordance with law, vide judgment dated 25.11.2020.
5. Upon remand, the trial court again dismissed the suit vide judgment and decree dated 26.11.2021. The respondent No.1 then filed Civil Appeal No.263 of 2021, which was allowed by the learned IInd Additional District Judge, Karachi-East, vide judgment and decree dated 22.12.2022, whereby the trial court’s findings were set aside and the suit was decreed to the extent of prayer clauses A to C. Aggrieved thereby, the appellant has filed the present Second Appeal.
6. Learned counsel for the appellants contended that the impugned judgment and decree, dated December 22, 2022, are contrary to the facts, the evidence, and the law. He further argued that the Appellate Court misconstrued or ignored vital evidence of material significance. Counsel asserted that the Court failed to judicially scrutinize or appraise the record, a process that is a sine qua non of the law. Furthermore, he maintained that while the Trial Court’s judgment was well-reasoned and based on a proper evidentiary analysis, the Appellate Court disregarded these factors and issued a slipshod decision. Consequently, he prayed for the appeal to be allowed.
7. Learned counsel for Respondent No.1 supported the impugned judgment, submitting that the First Appellate Court correctly set aside the Trial Court’s decree for failing to properly appreciate the evidence. He contended that the Trial Court’s findings were based on conjectures and surmises rather than the facts on record. Furthermore, he argued that the Appellate Court arrived at its decision through an independent application of mind, analyzing each issue individually and providing cogent reasons for its disagreement with the Trial Court. Consequently, he prayed for the dismissal of this second appeal.
8. Learned counsel for the intervenors submitted that his clients are the children and legal heirs of late Fakhruddin s/o Muhammad Sharafuddin, the alleged lawful owner of the subject property, and upon his demise the subject property devolved upon them as his legal heirs. He contended that the suit filed by Respondent No.1 claiming ownership is based on false allegations and forged documents. According to him, the Trial Court rightly found the documents relied upon by Respondent No.1 to be fraudulent and dismissed the suit. He further asserted that the late Fakhruddin never sold the property to Respondent No.1, and in this regard referred to the proceedings before the Provincial Ombudsman Sindh where Fakhruddin had affirmed his ownership and denied any transfer of the property. He therefore prayed that the application of the intervenors be allowed.
9. I have heard learned counsel for the parties and carefully perused the material available on the record.
10. A perusal of the record reveals that in the first round of litigation, Suit No. 140/2015, filed by Respondent No. 1, was dismissed on its merits following the recording of evidence and the hearing of arguments, vide judgment and decree dated 17.07.2019. This decision was subsequently challenged in Civil Appeal No. 210/2019. By way of a judgment and decree dated 25.11.2020, the learned IInd Additional Sessions Judge, Karachi-East, allowed the appeal, set aside the Trial Court's findings, and remanded the matter back to the Trial Court with specific directions.
11. In the second round, Suit No. 140/2015 proceeded in compliance with the aforementioned remand order. The suit was again dismissed by the Trial Court via judgment and decree dated 26.11.2021. This second dismissal was once against assailed by Respondent No. 1 through Civil Appeal No. 263 of 2021. In the impugned judgment and decree dated 22.12.2022, the Appellate Court allowed the appeal, reversed the findings of the Trial Court, and decreed the suit in favour of Respondent No. 1 to the extent of prayer clauses (A) through (C).
12. From the record, it appears that Respondent No.1/plaintiff, in support of his claim of ownership over the subject property, produced in evidence a registered lease deed dated 06.11.1976, allotment order dated 17.03.1976 issued by the KDA Resettlement Department, Form P.T.I dated 03.02.1982, utility bills issued by Sui Southern Gas Company Limited and Karachi Water & Sewerage Board, as well as a Halaf Nama dated 18.09.2014 executed by Muhammad Basit, brother of the appellants. The respondent No.1 further examined witnesses, namely Muhammad Fahad Fareed, Hifz-ur-Rehman and Muhammad Basit, all of whom supported the plaintiff’s version, and the said Halafnama was brought on record as Exh.3/B.
13. In addition thereto, the Court itself summoned official witnesses, namely Syed Abid Hussain Zaidi, Assistant Director KDA and custodian of record, as Exh.C/1, Munir Ahmed Nutkhani, Excise Inspector from the office of Excise & Taxation, as Exh.C/2, and Shabbir Ahmed, Assistant Director Land, Malir Town, as Exh.C/3. All these official witnesses supported the stance of Respondent No.1/plaintiff and thus lent official corroboration to the documentary evidence produced by him.
14. Conversely, the appellants/defendants, despite taking the categorical plea that they had been put in possession of the subject property by the original allottee, namely Fakhruddin, failed to produce any material documentary evidence in support of such plea, except the death certificate of Fakhruddin showing that he expired on 15.06.2017. Mere assertion, unsupported by any documentary record, could not dislodge the registered and official documents produced by the respondent/plaintiff. Besides, the learned trial Court, while recording its findings on Issue No.8, inter alia, observed that the appellants/defendants failed to produce any document to establish that they were lawful licensees or tenants of the suit property. Significantly, the said finding of the learned trial Court was never challenged by the appellants.
15. The precise case of the appellants is that the lease deed standing in favour of Respondent No.1/plaintiff is forged and fabricated and was allegedly prepared after stealing the documents of Fakhruddin. However, this contention does not inspire confidence. The record shows that the registered lease deed in favour of Respondent No.1 was executed in the year 1976. Admittedly, Fakhruddin remained alive until 2017, yet throughout this long period of over four decades he neither lodged any complaint regarding theft of documents nor initiated any legal proceedings for cancellation of the said registered instrument. He also never appeared before any competent court to support the defence set up by the appellants. Such prolonged silence on the part of the person through whom the appellants claim possession is wholly inconsistent with the plea of fraud and forgery now belatedly advanced.
16. It is by now settled that a registered document carries a strong presumption of genuineness unless the same is rebutted through cogent, reliable and confidence-inspiring evidence. In the present case, no such rebuttal has been offered. On the contrary, the official record and the testimony of official witnesses support the respondent/plaintiff. The appellants, while alleging forgery, did not take any effective legal steps for cancellation of the registered lease deed, nor produced any record from the relevant department to demonstrate that the same was fictitious or fraudulently procured.
17. It is also significant that Muhammad Basit, brother of the appellants, executed a Halafnama in support of Respondent No.1/plaintiff. During cross-examination, no question was put to him challenging the execution of the said Halafnama. Although he stated that he was appearing at the instance of his uncle, i.e. Respondent No.1/plaintiff, yet nothing could be elicited from his testimony to support the appellants’ version. His statement, therefore, remained substantially intact and provided further support to the respondent’s case.
18. In these circumstances, this Court is of the considered view that Respondent No.1/plaintiff successfully established his title through registered and official documents duly supported by oral as well as official evidence, whereas the appellants failed to substantiate their defence through any legally admissible or reliable material. The plea that the lease deed is forged and fabricated is thus nothing more than a bald allegation, devoid of proof.
19. The learned First Appellate Court, being the final court of fact-finding, discharged its duty with due diligence. It rightly observed that the learned Trial Court had misread the evidence by failing to correlate the plaintiff’s CNIC identity with the abbreviated name appearing in the documents of 1976, a common nomenclature practice that does not invalidate a decades-old chain of title. Consequently, the decision of the learned First Appellate Court to set aside the judgment of the Trial Court was justified and necessary to rectify a material illegality and prevent miscarriage of justice.
20. It is well settled that under Section 100 CPC, interference in a second appeal is permissible only where the case involves a substantial question of law. Mere concurrent or conflicting findings of fact by the Courts below do not, by themselves, justify interference. However, where such findings are the result of misapplication of law, non-reading or misreading of material evidence, or assumption or failure to exercise jurisdiction vested by law, a substantial question of law arises. In such circumstances, this Court is competent to examine the judgments and decrees of the Courts below vis-à-vis the evidence brought on record by the parties and to correct any patent illegality or jurisdictional defect. However, in the present case, the First Appellate Court has arrived at a finding of fact based on a plausible and reasoned analysis of the record, this Court finds no reason to substitute that view.
21. Regarding the Intervenors’ Application, this Court finds that the same is devoid of merit at this stage. The intervenors claim title through the late Fakhruddin; however, they did not seek to contest the proceedings during the original trial or even in the first round of appeal. Their reliance upon statements allegedly made before the Provincial Ombudsman cannot override the registered title documents and the evidentiary findings recorded in the civil proceedings. The intervenors cannot be permitted to circumvent the law of limitation or the procedural framework of the Code of Civil Procedure by seeking impleadment at this belated stage of the litigation. If they have any independent claim, the same may be pursued through appropriate legal proceedings; however, they cannot be treated as necessary or proper parties to the present Second Appeal after remaining silent for years. Accordingly, the intervenors’ application is dismissed.
22. In view of the foregoing, this Court is of the considered opinion that the learned First Appellate Court has properly appraised the evidence and applied the correct principles of law. There is no illegality, perversity, or jurisdictional error in the impugned judgment dated 22.12.2022. Consequently, the findings of the First Appellate Court are upheld, and the judgment and decree granted in favor of Respondent No.1 is maintained.
Above are the reasons of my short order dated 09.02.2026 whereby the present Second Appeal was dismissed with no order as to costs alongwith pending applications including Intervenors’ Application.
JUDGE
Naveed PA