CIVIL APPEAL UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE, 1908



CIVIL APPEAL UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE, 1908 SAMPLE


IN THE COURT OF DISTRICT AND SESSIONS JUDGE KARACHI (EAST) 
Civil Appeal No. /2010 

Muhammad Jamal s/o Muhammad Idris, Muslim, Adult, 
running business for gain at artificial flower shop situated 
at House No. 110, Block-V, Area 2-D, Landhi 
Township, Karachi. ----------------------------------- APPELLANT 

VERSUS

1. Fareeda Begum widow of (Late) Muhammad Anwar, Muslim, Adult, r/o 1-D, 42-B/III-A, Landhi Township, Karachi. 

2. The Learned IV Senior Civil Judge Karachi (East) ---------------------- RESPONDENTS 

CIVIL APPEAL UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE, 1908 

                            Being aggrieved and dissatisfied with the judgment dated 12/12/2009 and decree dated 19/12/2009 passed by the Respondent No. 2 whereby decreeing Suit No. 12/2002 filed by the Respondent No. 1, the Appellant above named prefers the instant appeal on the following facts and grounds: 
                            (Certified copies of the Judgment and Decree are annexed herewith as Annexures “A-1” and “A-2”) 

FACTS 

1. That the Appellant is the brother-in-law of the Respondent No. 1 as his elder brother, Muhammad Anwar, was married to the Respondent No. 1. Muhammad Anwar was the owner of the Quarter No. 89-D-12/11 near main road, Landhi Colony, Karachi vide KDA lease deed registered No. 34 at pages 43 to 56 volume 34 of Book I Addl: dated 04/08/1985 hereinafter referred to as the “entire property”.

2. That there was one pacca RCC room with open space for further construction since this quarter was situated on main road from portion of the plot admeasuring 10X10 square feet hereinafter referred to as the “suit property” was converted for commercial use.

3. That, on 11/04/1990, Muhammad Anwar, out of love and affection, announced an oral gift under Muhammadan Law of the suit property in favour of the Appellant which was then converted into shop. The oral declaration of gift was later on reduced into writing. It is pertinent to mention that the possession of the suit property was handed over to the Appellant at the time of gift and has continued to be in his possession up to the present date. 

4. That Muhammad Anwar died on 29/12/1996 leaving behind the following legal heirs: 
i. Fareeda Begum widow 
ii. Muhammad Kashif son 
iii. Fatima daughter 
iv. Muhammad Faizan son 
v. Muhammad Saad son 

5. It is submitted that the Respondent through illegal means, fraud and misrepresentation, got the entire property mutated in her name secretly despite having full knowledge that the suit property was gifted by her husband to the Appellant and that he was in possession of it. 

6. That, on learning that the Respondent No. 1 intended to sell the entire property to third parties after she contracted a second marriage with one Bilal Ahmed alias Billo, the Appellant sent a notice dated 15/12/1999 to the Appellant not to sell the suit property gifted to the Appellant by his elder brother. 

7. That, on 24/02/2000, the Appellant filed a civil suit No. 1237/2001 in the court of the Learned VIth Senior Civil Judge Karachi (East) for declaration and permanent injunction in respect of suit property but the plaint was returned by order in application under order VII Rule 10 of the Code of Civil Procedure to file in the court having the competent jurisdiction to try the same. Hence, Suit No. 1554/2001 was filed in the court of Learned XIth Senior Civil Judge Karachi (East) against the Respondent, which was dismissed and against such dismissal order, a Civil Appeal No. 123/2003 was filed in the court of Learned District Judge Karachi (East) from where it was transferred to the Learned IVth Court of Additional District & Session Judge Karachi (East) and the said Appeal was also dismissed. Against such dismissal, the Appellant preferred Revision Application No. 09/2005 in the High Court which is still pending.

8. That, in the counter blast, the Respondent No. 1 despite having knowledge about gift made in respect of the suit property in favour of the Appellant in 1992, on the strength of forged and manipulated tenancy agreement, filed a Rent Case No. 2427/1998 for ejectment of the Appellant which was dismissed for non-existence of relationship as landlady and tenant between the parties. Thereafter, the Respondent No. 1 filed FRA No. 295/1999 in the High Court of Sindh at Karachi which was also dismissed on the same ground. 

9. That, thereafter the Respondent No. 1 filed a Suit No. 1512/2002 for declaration, restitution of possession and cancellation of instrument against the Appellant after about 09 years from the date of knowledge of gift in respect of the suit property, which was decreed on 22/04/2007 by the Learned Respondent No. 2. Against the decree, a Civil Appeal No. 149/2007 was preferred in this Hon’ble Court from where it was transferred to the Learned IIIrd Additional District Judge (East) Karachi and after hearing both parties, the said Appeal was allowed remanding the same back to the Learned Respondent No. 2 and after hearing both the counsel of the parties the said suit No. 12/2002 was decreed on 19/12/2009, hence, this appeal. 

GROUNDS

I. That the impugned judgment is perverse in Law as well facts. 

II. That the impugned judgment and decree passed by the Respondent No. 2 being illegal, improper and contrary to law and is liable to be set aside and the said suit is liable to be dismissed. 

III. That the suit was filed by the Respondent No. 1 on the strength of a mutation letter which is obtained on the basis of a Relinquishment deed which is not a legal document as the same was executed by the minor legal heirs of deceased in favour of the respondent for which the law does not permit to relinquish their share, being minors in age by way of fraud and misrepresentation of facts, as such the said suit is not maintainable in law. 

IV. That the Learned Respondent No. 2 has erred in law by holding that the burden of proof of issue No. 2 [whether the suit is barred under Article 91 of the Limitation Act] lies upon the Appellant who has not said anything in his deposition and the citations quoted by the counsel for the defendant are not applicable to the present suit. It is submitted that the issue No. 2 is a question of limitation and the appellant has raised preliminary objection in his written statement and the learned trial court framed the issue No.2 on the point of Limitation but failed to decide it according to law despite the fact that the learned trial court was under a duty bound and obligation to take cognizance of question of law on its own motion. The suit of the Respondent No. 1 is hopelessly time barred and is fully hit by Article 91 of Limitation Act which is reproduced as follows:
It is submitted that the Respondent No. 1 made the following admission in her cross examination, “It came into my knowledge in 1993 that there is a gift deed executed in favour of Jamal in the month of June 1993”. In the light of this admission, if the Respondent No. 1 had any right to the suit property, she ought to have filed the suit by 1996 but the Respondent No. 1 has filed the instant suit after nearly 09 years i.e., 12/11/2002. The case law referred to by the counsel for the Appellant are very much applicable and the finding of the Learned Respondent No. 2 is based on a non-reading and misreading of the evidence and material available on record and against the law. 

V. That the Learned Trial Court has erred in holding that, as per available record, the suit is rightly valued, whereas the market value of the shop in question is more than Rs. 600, 000/- (Six Hundred Thousand Rupees Only) and the suit property is under-valued but the Respondent No. 1 has not paid the requisite court fee, as such, the appellant is exempted from payment of court fee in the instant appeal. 

VI. That the mutation letter was obtained by the Respondent No. 1 from Defunct KDA on the basis of Relinquishment deed which was executed by the minor children (legal heirs of Muhammad Anwar) when the Relinquishment deed was not legal and proper. The law does not permit the minors to relinquish their shares in favour of the Respondent No. 1 by playing fraud. The said Relinquishment deed is illegal and the mutation letter which was obtained on the basis of illegal Relinquishment deed, is also an illegal document which has no legal standing, and the Learned Respondent No. 2 has wrongly decided the issue No. 4 as affirmative. 

VII. That the Learned Trial Court has failed to appreciate the documentary evidence produced by the Appellant but wrongly reached at the conclusion that the gift deed without examination of attested witnesses has no validity in the eyes of law. It is submitted that the Appellant would have produced attested witnesses if the Learned Trial Court had framed the issued in this regard on the point of execution of the said gift deed but no issue in this respect was framed, therefore, the Appellant did not try to examine any attested witness of the gift deed but all the formalities/essentials requirement in completing gift were completed in respect of suit property under the law. 

VIII. That the Learned Trial Court has misinterpreted Sections 17 & 49 of Registration Act, 1908. A gift under Muslim Personal Law comprises of three parts: 1) There must be a declaration of gift by the donor in favour of the donee; 2) There must be an acceptance of the gift, express or implied, by or on behalf of the donee; and 3) Delivery of possession. In the said gift, all of the above stated formalities were complied with and the gift was completed as required by Muslim Personal Law and it is immaterial that the gift deed has not been registered as the registration of gift deed is not necessary under the law. Reference in this regard is also made to Section 129 of the Transfer of Property Act, 1882, which reads as follows: 
                            “129. Saving of donations mortis cause and Mohammedan Law: Nothing in this Chapter relates to gifts of moveable property made in contemplation of death, or shall be deemed to affect any rule of Mohammedan law.” 

IX. That the Learned Trial Court has wrongly concluded that the Respondent No. 1, by way of inheritance, is an owner of the suit property and the Respondent No. 1 is entitled to the suit property because of her ownership since the gift deed is not a registered document. 

X. That the Appeal is within time. 

XI. That the suit property is situated within the local limits of P. S. Landhi District East Karachi within territorial jurisdiction of this Hon’ble Court. 

XII. That the Appellant, with the permission of this Hon’ble Court, craves leave to urge and argue any other points that may arise subsequently at the time of hearing of this Appeal. 

PRAYER 

It is, therefore, in the interest of justice, good conscience and equity prayed that this Hon’ble Court may be pleased to pass the following orders: 

a. Call for the record and proceedings of Suit No. 12/2002 from the court of Learned IV Senior Civil Judge Karachi (East) and after examining the legality and propriety of judgment dated 12/12/2009 and decree dated 19/12/2009, set aside the same and dismiss the suit. 

b. Grant any other, better, further and/or equitable relief that this Hon’ble Court deems fit, proper and necessary given the prevalent facts and circumstances in the instant lis. 

c. Costs of the appeal may be awarded.


K A R A C H I                                  (SAJID MIR)

Dated 00.00.0000                  Advocate for the applicant

CERTIFICATE

This is to certify that this is a first application u/s civil appeal u/s 96 of code civil procedure, 1908 and no such application of same nature has been preferred by undersigned on behalf of the present applicant.


K A R A C H I                                  (SAJID MIR)

Dated 00.00.0000                  Advocate for the applicant

Document(s) filed: Annexure ‘A-1 to A-2’

Document(s) relied upon: Annexure ‘A-1 to A-2’ and all other documents that are necessary and relevant to the subject matter.
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