IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Civil Revision No.S- 47 of 2005

Before:- Mr. Justice Zulfiqar Ahmad Khan, J

1.    For hearing of CMA.No.153/2005

2.    For regular hearing.

Applicants                   Ellahi Bux, Allah Wadhayo, Mithal and Mst. Haroon Khatoon, through Mr.Tariq G. Hanif Mangi, Advocate.

Respondent No.10.     Sikander Ali for self and Attorney of Respondents 6 to 9 & 11 namely Ghulam Hyder, Juma Khan, Hamid Ali, Qamaruddin, and Ghulam Kadir present duly assisted by M/s Muzafar Ali Dahraj and Mansoor Ali Panhwar, Advocates.

                                    None for official respondents.

Date of hearing:        25th September, 2017.

J U D G M E N T

 

ZULFIQAR AHMAD KHAN, J:- The instant Civil Revision Application is filed against the judgment dated 12.2.2005 and decree dated 14.2.2005 passed by the learned Additional District Judge, Kandiaro in Civil Appeal No.135 of 2004, and the Judgment dated 29.9.2004 and decree dated 04.10.2004 passed by learned Senior Civil Judge, Kandiaro in F.C.Suit No. 11 of 2001 for Specific Performance of Contract, Cancellation of registered Sale Deed and Permanent Injunction where the suit of the appellant/plaintiff was dismissed with costs and the appeal preferred by the applicants also met the same fate.

2.         Brief facts of the case are that admittedly the suit land bearing S.No.390 (2-38) Acres, out of which (1-19) Acres 50 paisa share, S.No.391(8-24) Acres         out of which (6-18) Acres 75 paisa share, total area (7-37) Acres situated in Deh Shaikhani, Taluka Kandiaro, District Naushahro Feroze was in the ownership of one Mst. Marbia Khatoon with whom, according to the version of the Applicants/Plaintiffs, their father entered into an agreement dated 07.5.1968 for sale and transfer of the suit land for the total consideration of Rs.120,000/-, out of which Rs.80,000/- was paid in cash. The balance sale consideration admittedly was never paid. The original agreement is produced at Ex.88/B. It is pertinent to mention that both the witnesses of the said agreement are representatives of the buyer/Applicants and it is also stated that the old lady walked                            into their Otaq alone and executed the said agreement in favour of the Applicants/Plaintiffs as none other persons came with her. Be that as it may sound absurd, even after the execution of the said agreement, while the possession was immediately taken over by the applicants, the balance sale consideration of Rs.40,000/- was admittedly never made.

3.         Whilst the Applicants were in possession of the land and happily enjoying the same since 1968, it was only by way of a Registered Sale Deed allegedly made in favour of the respondents 6 to 11 by an attorney / brother of Mst. Marbia Khatoon that their possession of the suit land met with a challenge. The said Power of Attorney is reproduced at Page 206. While the original of the said Power of Attorney is admittedly not in the possession of the respondents, however, it could be seen that two Sale Deeds were registered by the                Sub-Registrar Kandiaro on 27.11.2001 solely relying on this Power of Attorney. Having come to know about such sale transaction, the Applicants/Plaintiffs filed suit for Specific Performance alleging that their father entered into agreement with Mst. Marbia Khatoon way back in the year 1968, wherein they sought prayer as mentioned hereinabove which inter alia, included calling for the cancellation of the Sale Deed amongst other relief. The trial Court framed the following six issues:-

1.    Whether the suit is time barred?

2.    Whether Mst. Marbia Khatoon was owner of the suit land?

3.    Whether father of the plaintiffs paid Rs.80,000/- to the owner of the suit land?

 

4.    Whether the plaintiffs have remained in possession of the suit land as bona fide purchasers of the same?

 

5.    Whether the registered sale deeds No.1250 and 1252 dated 27.11.2000 executed in favour of the defendants No.6 to 11 are forged and fabricated documents?

 

6.    What should the decree be?

 

4.         The said suit remained uncontested by the respondents 1 to 5 being the legal heirs of Mst. Marbia Khatoon, however, ferociously contested by respondents 6 to 11 (“the new buyers”) who as mentioned above, through the registered Sale Deed claimed to be the owners of the land in question. With regard to the point of limitation, the trial court came to the conclusion that the Plaintiffs’ cause of action accrued from the date on which Sale Deed of 07.05.1968 was made, rather from the date the Plaintiffs acquired knowledge of the Registered Sale Deed of the year 2000 in favour of the new buyers, therefore, held that the suit was barred by limitation. It is worth noting that the trial court did not make issue nor gave findings as to effect of non-payment of balance sale consideration by the Plaintiffs, which may have restricted the Plaintiffs from filing of any suit for Specific Performance.

5.         Since there were no disputes as to the ownership of the land by Mst. Marbia Khatoon, this issue was decided in affirmative. With regard to the payment of the money by the Plaintiff/Applicants to Mst. Marbia Khatoon, after considering the evidence at length, the trial court came to the conclusion that there was nothing on record to show that Mst. Marbia or her legal heirs received even the initial money of Rs.80,000/-  or in fact, it could be noted that questions were raised if she ever visited Nawabshah for the purposes of selling the suit land, therefore by deciding the issue No.3, the trial court declared the agreement executed in between the Plaintiff/Applicants and Mst. Marbia Khatoon a fabricated document. Since the trial Court has reached to such a conclusion, therefore, while deciding the issue No.4, it was held that the Applicants predecessors’ possession of the suit land was illegal. Coming to the next issue as to whether the Registered Sale Deed of 2000 allegedly entered into between the attorney of Mst. Marbia Khatoon and the new buyers, the trial court came to the conclusion that there was nothing on record to suggest that the said document was forged or fabricated, thus, the issue No.5 was answered in favour of the new buyers. Resultantly, the trial court while admitting the ownership of the land in question in the name of Mst. Marbia Khatoon, passed judgment in favour of the new buyers and dismissed the suit filed by the Applicant/Plaintiff through Judgment dated 29.9.2004 against which an appeal was preferred but the appellate court also dismissed the appeal. Hence this revision.

6.         Heard the counsel, perused the record. While it is undoubtedly clear that land in question did belong to Mst. Marbia Khatoon, while the trial court having declared that the agreement of Mst. Marbia Khatoon with the Plaintiff/Applicants being forged and fake, coupled with the fact that the old lady walked independently to the Otaq of the Applicants and entered into an agreement, with no independent witnesses to prove that the sum of Rs.80,000/- was in fact paid to Mst. Marbia Khatoon, however gives legitimacy to the transaction through which the respondents 6 to 11 become owner of the land via the two Registered Sale Deeds.

7.         Having had the opportunity of going through the R & P and having seen the photocopy of the Power of Attorney whose page No.1 is clearly typed in a different type-font as compared to the remaining two pages, coupled with the fact that the original of the said Power of Attorney was never produced before the trial court and even the suit land’s details, let alone survey numbers, were not mentioned in the said Power of Attorney, how this instrument could be relied upon to transfer valuable assets of Mst. Marbia Khatoon to the new buyers? When posed with this question, the learned counsel for the respondents 6 to 11 (new buyers) contended that the instrument is a General Power of Attorney, granted by the legal heirs of Mst.Marbia Khatoon. Be that as it may, while there is no original Power of Attorney, nor the Power of Attorney itself specifies the suit property, I am of the humble view that the suit property could not have been effectively transferred to the respondents 6 to 11.

8.         Again, when the Registered Sale Deeds are  examined it can be seen that there are different type-fonts, independently typed pages and to one’s astonishment, nowhere  in the alleged documents it was found that the attorney signed these Deeds acting as a Seller. The last page on which signatures and thumb impressions are given particularly does not align with the preceding pages. Also copies of NICs of the parties are not attached with those Registered Sale Deeds. Therefore, in the given circumstances, it would be safely concluded that the trial court clearly failed to judge these vital discrepancies in the Power of Attorney and two Registered Sale Deeds, did not appreciate the evidence but blind folded itself while declaring issue No.5 in favour of the respondents 6 to 11.

9.         With regard to the limitation, learned counsel for the applicants placed reliance on 2004 SCMR 1342, where counsel contends that the limitation will start from the date of the sale deed rather from the date of coming knowledge. The facts of the aforesaid case are distinguishable from the facts of the case at hand, thus of no persuasive value. Learned Counsel for respondents placed reliance on PLD 2000 Quetta 42, PLD 2008 Quetta 07, PLD 1983 Lahore 687, CLC 2015 Lahore 488, PLD 1988 (Lahore) 258, YLR 2016 356, 2016 SCMR (Lahore) 24, YLR 2015 1964, 2016 CLC 1268, 2017 CLC 70, YLR 2007 2228,              YLR 2017 916 and PLD 1988 (Lahore) 632 on the point of Courts’ mandate under Section 115 CPC in case of concurrent findings. As laid down in the foregoing, while there are concurrent findings, however, it appears to me that the trial court blind folded itself and did not critically examined the Power of Attorney and the Registered Sale Deeds, which at their face appear to be devoid of any legitimacy, in particular the Power of Attorney even not mentioning the description of the suit land fails to serve any useful purpose. I am thus not inclined that the concurrent findings were outcome of the application of a judicious mind.

 10.      In the given circumstances, where this court reaches to the conclusion that the suit land neither belongs to the Applicants nor the respondent               Nos. 6 to 11, the Additional Registrar of this Court is directed to take over the possession of the suit land through Revenue Authorities particularly through Mukhtiarkar (Revenue), Kandiaro and contact with the legal heirs of Mst. Marbia Khatoon whose last known address is 427/8 Azizabad Karachi which falls within the territorial jurisdiction of learned District & Sessions Judge (Central), Karachi, who is assigned the responsibilities to bring the legal heirs of deceased Mst. Marbia Khatoon on surface and file his report within 30 days, and preserve the possession of the land for the benefit of the legal heirs of Mst. Marbia Khatoon, till the same is handed down to them in accordance with law.

11.       The Registered Sale Deeds and the Power of Attorney are declared illegal and void. The Additional Registrar to ensure that entries in the land records on the basis of these documents are cancelled.

JUDGE

A.R.BROHI