IN THE HIGH COURT OF SINDH, AT KARACHI

IInd Appeal No.17 of 2012

Present:

Mr. Justice Abdul Maalik Gaddi

Muhammad Aslam and others…………………………………….. Appellants

Versus

Muhammad Javaid and others ………………………………….Respondents

Date of hearing                                21.01.2014   

Date of order                                     21.01.2014

Ms. Asmat Ara Qureshi, advocate for the appellants.

Mr. Nadeem Ahmed Farooqi, Advocate for the respondents

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O R D E R

Abdul Maalik Gaddi,J  Through this second appeal, the appellants have assailed the legality and propriety of the orders dated 09.02.2012 passed by the learned IVth Additional District Judge, Karachi Central in Civil Appeal No.86/2011, whereby the judgment dated 19.04.2011 and decree dated 26.04.2011 in Civil Suit No.628/2007 passed by the learned Ist Senior Civil Judge, Karachi Central was maintained.

2.         Briefly, the facts of the case arising to file instant appeal are that the Respondents filed suit for Declaration, Possession and Injunction against the appellants, stating therein that they are the sons and daughters of Mohammad Arif s/o Muhammad Ismail who died on 30.1.2005 and apart from other properties he left Quarter No.23/1, Sector 5-E, New Karachi as his allotted property on 19.05.1969. It is asserted that Mohammad Arif inducted one Mst. Shakeela who is the sister in law in the said quarter as licensee and some times in 1989 deceased Mohammad Arif demanded possession of the said quarter and moved the Councilor, the husband of Mst. Shakeela accepted the ownership but refrained from giving possession to the deceased Mohammad Arif, Muhammad Saleem, the son of Mst. Shakeela expressed his desire to purchase the said quarter and a token money of  Rs.35,000/- by issuing cheque No.2370979 dated 28.06.2001 was given but later on the transaction could not be affected. It is apprehended that the Appellants will change hands, transfer or sell the said quarter during pendency of litigations in order to defeat the provisions of law until and unless they may be restrained by way of permanent injunction. Hence this suit.

3.         The appellant Nos.1 to 4 filed their joint written statement before the trial Court, whereby they denied all the allegations leveled against them and prayed for dismissal of the suit.

4.         On the basis of the pleadings of the parties, following issues were framed:

1.         Whether the suit is not maintainable and barred by law?

2.         Whether the Plaintiffs are the owners of suit property and legal heirs of deceased Muhammad Arif?

3.         Whether the deceased Aziz Ahmed father of defendants No.1 to 4 and husband of defendant No.5 had purchased the suit property from the defendant Muhammad Arif for the sum of Rs.5000/- duly paid to the said Muhammad Arif?

4.         Whether the Plaintiff is entitled for the relief claimed?

5.         What should the decree be?

5.         In support of their respective contentions, the respondent No.1 has examined one Muhammad Javed, who in his evidence has produced certain documents showing that the respondents No.1 to 4 are the owner of the premises in question. This witness was duly cross examined at length but he did not shake during his evidence. On behalf of the appellants one Muhammad Saleem has been examined, he has also been cross-examined by the respondent Nos.1 to 4 at length.

6.         After hearing the learned counsel for the parties, the learned 1^st Senior Civil Judge Karachi Central, decreed the suit of the respondents as prayed vide order dated 19.4.2011. The appellants challenged the said order in Civil Appeal No.86 of 2011. The learned first appellate Court dismissed the appeal filed by the appellants vide order dated 9.2.2012, hence this second appeal.

7.         It is contended by the learned counsel for the appellants that the impugned orders of the two Courts below are against the facts and law and both the Courts below have not appreciated the evidence on record. She has further submitted that the appellants are residing in the suit premises since long, therefore, according to her they have possessory right in the suit premises. She has further argued that as per plaint the subject property was allotted to one Muhammad Arif son of Muhammad Ismail on 19.5.1969 the deceased father of the respondents/plaintiffs. The deceased Muhammad Arif allowed Mst. Shakeela respondent No.5 to reside in the subject property as licensee being a closed relative (sister in law). She has further argued in the year 1989 the deceased Muhammad Arif demanded possession of the subject property from Mst. Shakeela and he also referred his grievance to illaqa councilor where matter was decided in favour of the appellants.

8.         On asking the question from the learned counsel for appellants, whether the appellants have any document of ownership with them, she replied in negative, however, during the course of arguments she has prayed that since the appellants are old occupants, therefore, they have every right to retain the possession of the said premises with them.

9.         On the other hand, learned counsel for the respondents has fully supported the impugned judgments of the two Courts below and stated that since there are concurrent findings of the two Courts below and it has not been shown that any finding is against the evidence on record. Counsel for the respondents further submitted that trial Court as well as Appellate Court has given cogent reasons in support of their findings and impugned orders do not call for any interference from this Court as such he has prayed that instant 2^nd appeal may be dismissed.

10.       I have examined the evidence and documents so brought on record by the parties and I have thoroughly examined the entire record in the light of arguments advanced before me by the both sides and come to this conclusion that the respondents/plaintiffs have filed the suit for declaration, possession and injunction before the trial Court on the grounds that they are the owners of the suit property and are entitled for the possession and defendants/appellants are the licensee. The respondents/plaintiffs relied upon the documents viz. allotment order issued in the name of Muhammad Arif (late). Admittedly the said allotment has not been denied by the defendants/appellants. Father of respondents No.1 to 5 was died on 30.01.2005 and the defendants/appellants on the contrary, claiming themselves to be the owner and according to them their deceased father had purchased the suit property from deceased Muhammad Arif but they have been miserably failed to produce any such sale agreement, the payment receipt or any documentary proof regarding payment in respect of sale transaction or any witness of the sale transaction has been produced by the defendants/appellants to prove that the said property was sold out to the father of the defendants/appellants. Since the claim of the appellants based upon mere oral assertion, whereas the respondents have produced documentary proof with regard to their ownership in the suit premises. In my view oral evidence/assertions has no value in presence of documentary evidence. In this regard I am supported with the case law reported in Syed Akhtar Hussain Zaidi v. Muhammad Yaqinuddin 1988 SCMR 753 and Abdul Ghani and others v. Mst. Yasmeen Khan and others 2011 SCMR 837.

11.       Learned counsel for the appellants has also argued that present appellants are in possession since long as such they have every right to retain the possession of the suit premises. Reverting to the contention as raised by the learned counsel for the appellants it is suffice to say that mere possession or occupation would not constitute a legal right to retain the possession or occupation of the property in question for an indefinite period. Possession or occupation which is without any legal basis cannot sustain the claim to title to the property in possession or occupation. Possession itself is not equated to that of legal right on the basis whereof ownership can be claimed. In this regard I am supported with case law reported in Ghiasuddin and others v. Ghulam Mohyuddin and others          (2005 SCJ 451). Therefore, under these circumstances, the appellants/defendants have no locus-standi in respect of their claims besides the two Courts below have decided concurrently that the appellants are nothing to do with the case property, the respondents No.1 to 5 are the owners of the suit premises.

12.       In view of the above discussion, the learned Senior Civil Judge, held that the respondents by way of convincing evidence on record proved their case and that present appellants are in illegal possession of the suit premises. This findings of learned Senior Civil Judge was upheld by the learned Appellate Court thus it appears that there are concurrent findings of the two Courts below against the appellants which cannot be disturbed unless it is shown that findings are against the evidence on record. Learned counsel for the appellants failed to point out any illegality or infirmity in the impugned orders.

13.       In view of above, I find no merits in this Second Appeal, which is accordingly dismissed with no order as to cost.

14.       This Second Appeal was dismissed by me vide short order dated 21.01.2014 and  these are the detailed reasons for the same.

J U D G E