Order Sheet

IN THE HIGH COURT OF SINDH, KARACHI

IInd Appeal No. 04 of  2026

[Sheraz  v. Wazeer Ali & others]

 

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Appellant

Through Mr. Ijaz Farooq Khan, advocate  

 

Date of Hearing & Order

 

05.03.2026

 

 

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ARSHAD HUSSAIN KHAN, J.         Through this IInd Appeal, the appellant has impugned the concurrent findings of the two courts below and seek to set aside the judgment dated 28.11.2025 passed by learned VI Additional District Judge, Karachi-Central, in Civil Appeal No.265 of 2023, whereby the lower appellate court, while dismissing the appeal, upheld the judgment and preliminary decree dated 25.10.2023, passed by the learned Senior Civil Judge-XII, Karachi-Central, in Civil Suit No.991 of 2019.

2.         Briefly, the facts giving rise to the present appeal are that Respondent No.1/plaintiff filed Suit No.991 of 2019 for partition and permanent injunction against the appellant/Defendant No.1, Respondent No.2/Defendant No.2 and others in respect of Flat No.E-179, 2nd Floor, Block-E, Sultanabad Colony Project, near Gulbahar Police Station, Gulbahar No.1, Karachi (the “subject property”). It was averred that  Zaib-un-Nisa (the ‘deceased’), wife of Sultan Ali and daughter of Mohammad Ali, was the owner of the subject property. She expired on 20.02.2015 issueless, and her husband had predeceased her. Upon her death, she left behind her two brothers, namely Wazeer Ali [the respondent/plaintiff] and Anwar Ali [father of Respondent/defendant No.2], as her legal heirs. Anwar Ali subsequently expired in 2017 leaving behind his children, namely Shahzad, Ali, Ameen and Laila [Respondent No.2(i) to (iv)]. It was further asserted that the deceased was the second wife of Sultan Ali, whereas the appellant/Defendant No.1 is the son of Sultan Ali from his first wife who, though brought up by the deceased, has no right of inheritance in her estate. It was also averred that the appellant/Defendant No.1 is illegally occupying the subject property and has refused to vacate the same or hand over the title documents despite repeated requests. Consequently, the plaintiff instituted the above suit seeking partition and distribution of the subject property among the lawful legal heirs of the deceased, which was preliminary decreed by the Trial Court on 25.10.2023.

            Being aggrieved by the aforesaid judgment and preliminary decree, the appellant filed Civil Appeal No.265 of 2023, which was dismissed by judgment dated 28.11.2025 passed by VI-Additional District Judge, Karachi-Central. The appellant has now challenged above concurrent findings through the present Second Appeal.

3.         Learned counsel for the Appellant contends that the impugned judgments suffer from a gross misreading and non-reading of the evidence on record and were passed without a proper judicial application of mind. He submits that the suit filed by Respondent No. 1 was not maintainable in law or on facts, yet the learned Trial Court failed to adjudicate the same in accordance with the settled principles of law and merit. He further contends that the findings of both the Courts below are in direct contravention of the settled law and judicial precedents established by the Superior Courts. He strongly asserts that the suit of Respondent No. 1 was hit by the doctrine of "Approbation and Reprobation," a principle that was erroneously overlooked by the learned Trial Court. He further maintains that the impugned judgments are legally infirm, carry no judicial weight, and are therefore liable to be set aside. He concluded by praying that the instant appeal be allowed as prayed for.

4.         Heard learned counsel for the appellant and perused the material available on the record.

 

5.         From the record it appears that the learned Trial Court, vide judgment dated 25.10.2023, held that the plaintiff had successfully proved that the suit property stood in the name of the deceased (Zaib-un-Nisa) and that upon her demise she left behind the plaintiff and Defendant No.2 (i to iv) as her lawful legal heirs, who are entitled to succeed to the subject property in accordance with the applicable law of inheritance. The learned lower Appellate Court, vide judgment dated 28.11.2025, while dismissing the civil appeal, upheld the findings recorded by the learned Trial Court.

6.         A careful perusal of the impugned judgments, passed by the learned trial courts and  the learned lower appellate court, reflects that both courts have concurrently recorded findings of fact after proper appreciation of oral and documentary evidence available on the record. It is also well settled law that concurrent findings of facts by the courts below cannot be disturbed by the High Court in second appeal, unless the courts below while recording the findings of fact have either misread the evidence or have ignored the material piece of evidence[1].

7.         Upon independent examination of the record, this Court finds that upon receipt of notice of Civil Suit No. 991 of 2019 filed by Respondent No.1, the appellant filed his written statement asserting ownership of the subject property on the ground that he is the only real son and legal heir of the deceased and, under the applicable law of inheritance, is entitled to succeed to her estate. However, the appellant’s case stands undermined by his own evidence. His attorney/wife, while appearing as a witness, categorically admitted during cross-examination before the learned Trial Court that

i.                    The deceased (Zaib-un-Nisa), was the second wife of Sultan Ali;

ii.                 The Appellant was born ten years prior to the marriage of the deceased from the first wedlock of Sultan Ali with Shireen Hussaini;

iii.               The Family Registration Certificate (FRC) produced by the Appellant showing him as son of deceased is incorrect.

The above admissions are sufficient to establish that the appellant is not the real son of the deceased, who was the second wife of Sultan Ali. Rather, the record reflects that the appellant is the son of Sultan Ali from his first wife, namely Shireen Hussaini. Consequently, the F.R.C. produced before the learned Trial Court showing the appellant/defendant No.1 as the son of deceased appears to be incorrect and does not reflect the true factual position. It is a settled principle of law that under Article 113 of the Qanun-e-Shahadat Order, 1984, facts admitted need not be proved. The admissions made by the appellant’s own witness during cross-examination constitute clear judicial admissions, which are binding upon the party making them and leave no room for the appellant to subsequently assert a claim of biological heirship.

Record also shows that on the basis of the above evidence, the learned Trial Court, inter alia, decreed the suit of Respondent No.1. The said judgment and decree were assailed by the appellant through Civil Appeal No.265 of 2023, wherein he attempted to introduce an altogether new stance to the effect that the deceased was not the actual owner of the subject property but merely an ostensible owner (benamidar), as she allegedly had no independent source of income, and that the property had in fact been purchased by his father, the late Sultan Ali, in the name of his wife, Zaib-un-Nisa (deceased). The appellant further claimed that the deceased had gifted the subject property to him through an alleged oral gift.

8.         Insofar as the stance of the appellant regarding the alleged ostensible ownership of the deceased  as well as the claim of an oral gift in favour of the appellant is concerned, a perusal of the record reflects that such pleas were never raised in the written statement filed before the learned Trial Court, nor was any evidence brought on record to establish that the deceased lacked the means to acquire the subject property or that the property had in fact been purchased by her husband for the benefit of the appellant. Furthermore, the appellant never instituted any independent suit claiming exclusive ownership of the property on the basis of the alleged oral gift, nor did he seek cancellation of the documents standing in the name of the deceased. In the absence of any such challenge, the documents standing in the name of the deceased continued to carry their presumption of validity. Consequently, the pleas of benami ownership and oral gift, having neither been pleaded nor proved in accordance with law, were rightly discarded by the Courts below.

9.         The present Second Appeals have been filed under Section 100, C.P.C., which restricts the jurisdiction of this Court to cases involving a substantial question of law, a material question of law left undetermined, or a substantial procedural error resulting in miscarriage of justice. No second appeal lies on any other ground. In the instant case, the concurrent findings of the courts below are based on proper appreciation of evidence and correct application of law. These findings are essentially factual and do not give rise to any substantial question of law warranting interference. The grounds urged in the present appeals merely seek reappraisal of factual issues already examined by the courts below, which is beyond the limited scope of Section 100, C.P.C.

10.       In view of the foregoing discussion, learned counsel for the appellant has been unable to point out any substantial error, illegality, infirmity, jurisdictional defect, or material irregularity in the impugned judgments passed by the Courts below. Consequently, this Second Appeal, being devoid of merit, is hereby dismissed along with all pending application(s).

 

 

 

JUDGE

 

 

 

 

Naveed PA


[1] Keramat Ali and another v. Muhammad Yunus Haji and another (PLD 1963 SC 191), Phatana v. Mst. Wasai and another (PLD 1965 SC 134) and Haji Muhammad Din v. Malik Muhammad Abdullah (PLD 1994 SC 291).