2007 S C M R 181

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

MUZAFFAR KHAN---Petitioner

Versus

SANCHI KHAN and another---Respondents

Civil Petition No. 352-K of 2005, decided on 10th July, 2006.

(On appeal from the judgment, dated 14-3-2005 passed by High Court of Sindh, Karachi in Civil
Revision No. 145 of 2000).

(a) Civil Procedure Code (V of 1908)---

----S. 115 & O.XLI, R.22---Ownership of suit plot, contest between parties over---Dismissal of
suit by Trial Court for failure of parties to prove their respective claims---Non-filing of appeal or
cross-objections by defendant against such findings---Suit decreed by Appellate Court on
plaintiff's appeal---Revision petition by defendant---Maintainability---Due to non-filing of
appeal or cross-objections, findings of fact regarding defendant's title, right and interest in suit
plot had attained finality in eyes of law---Revision petition by defendant against such findings
was, not legally maintainable.

Masta v. Sarang and another PLD 1969 SC 261 rel.

(b) Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Suit for declaration of title and possession of property---Agreement to sell and
P.T.I. Form in favour of plaintiff---Validity---Plaintiff on basis of P.T.I. maintained by Excise
and Taxation Department, could not claim to be owner of property---Decree prayed for could not
be passed in plaintiff's favour on basis of such documents, except a decree for protection of
possession.

Petitioner in person.

Abdul Qadir Khan, Advocate Supreme Court and A.A. Khan, Advocate-on-Record for
Respondent No.1.

Nemo for Respondent No.2.

RANA BHAGWANDAS, J.---Petitioner seeks leave to appeal against Sindh High Court
judgment, dated 14-3-2005 dismissing petitioner's Civil Revision against the judgment passed by
Additional District Judge, Karachi West, whereby appeal preferred by respondent Sanchi Khan
was accepted and judgment and decree dismissing latter's suit by the trial Court was set aside.

2. Respondent Sanchi Khan filed a suit for declaration, possession permanent injunction and
mesne profits against the petitioner and respondent No.2 on the ground that he had purchased the
property in suit from one Yahya Khan through an agreement of sale, dated 12-6-1966 for
consideration of Rs.5,000 and received vacant possession of the suit property. It was alleged that
petitioner Muzaffar Khan and respondent No.2 Rehmat Hussain illegally and by use of force
occupied the suit-land on the averment that their brother Noor Ali Gul had purchased the same
from one Mst. Hafeez-un-Nisa sometimes in 1960 through an agreement of sale. On the
pleadings of the parties as many as eight issues were settled by the trial Court. Both the parties
adduced evidence in support of their respective contentions. On evaluation of evidence trial
Court by its judgment, dated 29-11-1999 dismissed the suit. Aggrieved by dismissal of the suit
respondent Sanchi Khan preferred an appeal before Additional District Judge which on
reappraisal of evidence was accepted and the suit decreed as prayed vide judgment, dated 14-7-
2000.

3. Petitioner being aggrieved by appellate judgment preferred Civil Revision before High Court
of Sindh which has been dismissed vide judgment impugned in this petition. High Court in the
impugned judgment has non-suited the petitioner on merits as well as non-production of relevant
documents and copies of the pleadings as required by section 115, Civil Procedure Code. It is as
against this judgment that the petitioner seeks leave to appeal.

4. We have heard the petitioner at some length while Mr. Abdul Qadir Khan, Advocate Supreme
Court entered appearance on caveat on behalf of respondent No.1. Notice of the petition issued
to respondent No.2 has been returned with the endorsement that he is no more available at the
given address.

5. It is contended by the petitioner that his brother Noor Ali Gul had purchased the property in
dispute in 1960 from Mst. Hafeez-un-Nisa for a sum of Rs.6,000. According to him the brother
of the petitioner continued to remain in lawful possession of the property and he occupied the
same in 1999-2000. Nevertheless there is no document of title in favour of Mst. Hafeez-un-Nisa
or Noor Ali Gul, the alleged purchaser of the property as contended.

6. Conversely learned counsel for respondent No.1 has pointed out that the trial Court while
dismissing the suit of respondent Sanchi Khan had decided issues Nos. 4 and 5 against the
petitioner who had claimed that his brother Noor Ali Gul had purchased the disputed property
from Mst. Hafeez-un-Nisa or that the petitioner and Rehmat Hussain were occupying the
disputed property illegally.
7. We have carefully considered through the judgment of the trial Court and find that the
submission made by the learned counsel is not without substance as the petitioner and respondent
No.2 utterly failed to adduce any cogent evidence in support of their plea. Furthermore these
findings were neither assailed by way of appeal nor through cross objections with the result that
such findings of fact attained finality in the eyes of law, casting heavy clouds on the right,
interest and title of the petitioner to claim such right or interest through his brother. Learned
counsel rightly contended that since the petitioner did not assail the findings of fact as regards his
right, interest and possession of the property in his own rights, he could not legally maintain
Civil Revision before the High Court. Mr. Abdul Qadir Khan has drawn our attention to the
judgment of this Court in the case of Masta v. Sarang and another PLD 1969 SC 261. The
precedent relied upon by learned counsel fully supports his view and there can be no cavil with
the proposition of law laid down by this Court.

8. Adverting to the decree in favour of respondent No.1 passed for declaration of title we find
that in law such a decree could not have been passed in favour of respondent No.1 as the
property in dispute was not leased in favour of Yahya Khan through whom he derives his right,
interest and title to it. Learned counsel has referred to a document at page 11 of the
Supplementary Paper Book filed by him tending to show that one Syed Saleh Shah being the
owner landlord and lessor of entire village had handed over physical possession of two units
plots of 200 sq. yards in favour of Sanchi Khan. This document is purportedly dated 12-6-1966.
Even this document does not tend to confer any right or title in favour of respondent No.1,
except the right to possession, therefore, merely on the basis of extracts containing entries in his
favour in PT-I maintained by Excise and Taxation Office M. Division Karachi could not be held
to be the owner of the property. At best the plaintiff/respondent No.1 would be entitled to a
decree for protection of possession on the basis of the evidence adduced by him and not
controverted by other side. In the absence of any concrete evidence on the question of mesne
profits we are in a manner of doubt whether such decree could be passed in his favour as against
petitioner and respondent Rehmat Hussain.

9. We would, therefore, convert this petition into appeal and modify the judgment and decree of
the appellate Court and the judgment of the High Court and decree the suit only for the relief of
possession. Petition is accordingly converted into appeal and disposed of. No order as to costs.

S.A.K./M-137/SC Order accordingly.