IN THE HIGH COURT OF SINDH BENCH AT
SUKKUR
BEFORE:
Mr. Justice Muhammad Shafi Siddiqui
Civil Revision Application No.15 of 1995
Versus
Province of Sindh & others
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Date of Hearing: |
03.12.2018 |
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Applicants: |
Through M/s Abdul Raheem Jamro and Bahadur Ali Shah Advocates. |
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Respondents: |
Through Mr. A.M. Mobeen Khan Advocate. |
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Province of Sindh: |
Through Mr. Noor Hassan Malik, AAG. |
Muhammad Shafi Siddiqui, J.- This Revision is against concurrent findings of two Courts below. The dispute involve assets left behind by one Kadir Bux son of Muhammad Ramzan, who was survived by five sons and three daughters. All the sons have expired leaving behind their own legal heirs, as shown in the below mentioned chart, however, for convenience names of first tier are reproduced as under:-
1. Mehar – son of Kadir Bux
2. Photo – son of Kadir Bux
3. Ranjho – son of Kadir Bux
4. Udhal – son of Kadir Bux
5. Ramzan – son of Kadir Bux
6. Maryam - Daughter of Kadir Bux
7. Bhagul - Daughter of Kadir Bux
8. Basran – Daughter of Kadir Bux
The suit bearing No.61 of 1989 was filed by the legal heirs of third son Ranjho namely Muhammad Bux, Muhammad Bachal, Ghulam Kadir and Haji, Mst. Kazbano and Mst. Sain all sons, wife and daughter of Ranjho and Mst. Bachul, wife of Muhammad Bux and daughter of Muhammad Ramzan, against other surviving legal heirs. The cause to those plaintiffs accrued, as stated in paragraph 18 and 19 of the plaint, when the cultivation dispute allegedly raised by some of the legal heirs and the remedy was sought before Assistant Commissioner who advised them to approach Civil Court, which order was maintained by Commissioner Khairpur somewhere on 29.12.1986.
The suit was then filed, which was contested and evidence was recorded. The record, as filed along with this Revision Application (which record is to be filed along with memo of Revision Application in terms of Section 115 CPC) shows the evidence of following witnesses was recorded as available.
Plaintiff
side
1. PW-1 Noor Ahmed – Clerk (Ex.28)
2. PW-2 Muhammad Bux – plaintiff No.1 (Ex.49)
3. PW-3 Allah Warrayo (Ex.51)
Defendant side
1. DW-1 Allah Bux – defendant No.4 (Ex.57)
2. DW-2 Abdul Sattar Dessie (Ex.60)
3. DW-3 S Ghulam Hussain (Ex.62)
4. DW-4 Aijaz Ahmed (Ex.65)
5. DW-5 Saifal
The Court framed several issues and amongst them was also an issue, as to whether the suit was barred by time? Thus, before I revert to substantial issues regarding merits of the case, I feel it necessary to consider the case of the applicants on touchstone of arguments that suit being barred by time.
The cause said to have been accrued to plaintiffs/respondents, is stated in paragraphs 18 and 19. It was, when the cultivation dispute was raised by the applicants/defendants, that they approached the Assistant Commissioner who passed an order in December, 1986 when they (parties) were advised to approach Civil Court. The order was maintained by Deputy Commissioner Mirpurkhas.
The suit was filed in September, 1989 within three years of a cause, which was allegedly accrued. The only defence against the alleged cause is that they knew about the entries of 1970, however, no substantial evidence in this regard was brought on record that the respondents/ plaintiffs therein were aware about such entries, especially when all later facts, as deposed by the witnesses, allegedly in favour of applicants, also went against them, hence, I see no reason to interfere in the findings of two Courts below on the issue of suit being barred by time.
The other substantial issues, which were framed by the trial Court are as under:-
· Whether Udhual, one of the sons of Kadir Bux, sold his share to Allah Bux son of Muhammad Ramzan, another son of Kadir Bux?
· Whether Ranjho gifted 2-0 acres from his holding to Muhammad Ramzan?
· Whether entries under challenge dated 13.03.1979 were made with the consent of plaintiffs/respondents.
To me these are important and relevant issues that goes to the root of the case. These issues were decided in favour of the respondents against the applicants by both the Courts below.
The substantial dispute in the above issues, as framed, are that Udhal sold his share in the suit land to Allah Bux (Allah Bux is son of Muhammad Ramzan, brother of Udhal). Precisely uncle allegedly sold his share to his nephew Allah Bux.
The other substantial issue is that Ranjho, one of sons of Kadir Bux, gifted 2-0 acres of land to Ramzan under a common settlement dated 13.03.1970 before the Mukhtiarkar Gambat at Jalsa-e-Aam held in Village Ariyoon.
It is deposed by witnesses Allah Bux, who was also defendant in the suit that the statements were recorded in Otaq of plaintiff Muhammad Bux. From the statement on oath, as recorded by Allah Bux, the admission is apparent that it was not recorded by Mukhtiarkar but in fact it was Tapedar whereas the Mukhtiarkar was not even present at the time when the alleged statement was recorded. The said witness also stated that it was in the office of Mukhtiarkar Gambat where the statements were recorded. However, the contesting witness Ghulam Hussain stated that though it was recorded in Jalsa-e-Aam held in Village Ariyoon but none from the village, being impartial witness, was present at the time when the statement was recorded; it was also admitted that there were 50 to 100 houses in the Village. One Saifal from the Village was stated to be present. It has come in the evidence that Ghulam Hussain and Habibullah were not the residents of the village.
Defendant No.6 Aijaz Ahmed, Tapedar, deposed that he had recorded statement at Village Ariyoon on 13.03.1970 on the basis of which the entries in the record of rights were made, which reflects that the Mukhtiarkar had himself put the note as “Manzal” at Sobho Dero hence the question of Jalsa-e-Aam, as allegedly held in Village Ariyoon, is out of contest.
The appellate Court order also shows Tapedar’s admission in cross-examination and word “Ranjho” was subsequently made “Ramzan” in official record through over righting and that relevant signatures/ thumb impression of the parties were not obtained. These private witnesses of defendants/applicants were not summoned; in fact the defendant No.4 himself brought them, except one Tapedar whose evidence is also not confidence inspiring.
Udhal expired issueless and although there is no evidence to support, but on the basis of evidence available on record, it does not appeal to mind as to why he would sell his share to Allah Bux. As far as the issue of alleged gift by Ranjho to his brother Ramzan is concerned, the evidence shows that consideration was on account of a disagreement to give his daughter’s hand in marriage to son of Ramzan and his son (Ranjho’s son) namely Muhammad Bux was married to the daughter of Ramzan, hence refusal to give his daughter’s hand to the son of Ramzan, entailed to a penalty of 2-0 Acres of land as held by Nek Merd.
At the very outset I do not consider this to be a lawful contract for which a penalty of 2-0 acres of land could be imposed. The matrimonial decisions allegedly setup by parents are not such contracts, denial of which by concerned party could entail to a penalty in the financial shape.
Although the marriage/Nikah itself is a contract but the parents cannot enter into contract for their sons and daughters (without their consent) which could bind them. If the sons and daughters of parents are minor, this would be an invalid contract and void ab initio, and if this is done by parents when they (son and daughter) are major and have consensual age then also they are not the ones to enter into such contract on their behalf. The concerned parties themselves are responsible for an agreement or a disagreement to enter into such contract, hence consequences of such consensus between the parents cannot end up in a penalty. On this count alone the alleged gift is invalid.
Furthermore, the gift is always made out of love and affection, however, this gift seems to be on account of hatred, therefore, the basic concept of gift is not fulfilled. The possession, which is a basic requirement of gift, is also not fulfilled.
These substantial issues were decided by two Courts below based on evidence of the parties, as recorded, and hence there is not an iota of evidence to disagree with the conclusion drawn by two Courts below. The reasons may vary but the conclusion drawn by two Courts below is same. Even if there is any other view that can be formed, this cannot become basis to allow this Revision Application. Accordingly, this Revision Application has no merit and is accordingly dismissed along with listed applications. This is, however, without prejudice to the rights of three daughters of Kadir Buksh.
Above are reasons of my short order dated 03.12.2018.
Dated: Judge