IN THE HIGH COURT OF SINDH AT KARACHI
BEFORE:
Mr. Justice Muhammad Shafi Siddiqui
Civil Revision Application No. 122 of 2010
Muhammad Naeem & others
Versus
Ghulam Muhammad & others
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Date of Hearing: |
28.03.2018, 18.04.2018, 09.05.2018 and 30.05.2018 |
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Applicants: |
Through Mr. Jagdish R. Mulani Advocate |
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Respondent No.1: |
Through Mr. Jhamat Jethanand Advocate |
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Respondents No.2 to 7: |
Through Mr. Abdul Jaleel Zubedi, AAG |
Muhammad Shafi Siddiqui, J.- This Civil Revision Application involves very valuable land which arises out of concurrent findings of two Courts below.
2. Brief history of the case is that a suit bearing No.133 of 2000 was filed in the Court of Sr. Civil Judge Sujawal, Thatta by one Ghulam Muhammad, respondent No.1, against official respondents i.e. respondents No.2 to 7. He (respondent No.1) was able to obtain exparte judgment and decree since official respondents kept quiet and did not contest the suit by bringing facts before the Court. An application under order IX rule 7 CPC however was filed by Mukhtiarkar, which was surprisingly withdrawn. The suit was decreed by the trial Court initially on 11.02.2002.
3. Subsequently the applicants herein filed application under section 12(2) CPC and under Order 47 CPC and after recording evidence on that application under section 12(2) CPC, exparte judgment and decree was set aside. The amended plaint then was filed and the applicants were arrayed as private defendants No.7 to 22.
4. Originally, the trial Court framed nine issues whereafter an application under order VI rule 17 CPC was filed by respondent No.1. The application was dismissed on 01.03.2005 against which a Revision was preferred as No.09 of 2005. The order was recalled and respondent No.1 was allowed to amend the plaint by adding Paras 9(a) to 9(d) and 10(a) and so also prayer seeking cancellation of certain instruments favoring applicants/ private defendants in the suit, resultantly addition of issue No.7-A as to the cancellation was made
5. After recording evidence, the trial Court decreed the suit of respondent No.1. Again neither any substantial evidence was led by official respondents nor any appeal was preferred against the judgment and decree. It is surprising, as Mukhtiarkar Revenue Shah Bandar on an application presented by Yar Muhammad son of Muhammad Fazil Baloch (applicant No.8) went on to depose, that after detailed inquiry, the Entry No.7, favouring respondent No.1 was found bogus and has been kept/made by making forgery in the record and thus such entry was manipulated, fabricated, as stated by the Mukhtiarkar in his report.
6. The appellate Court framed two points for consideration and consequently dismissed the appeal by maintaining the judgment of the trial Court, hence this Revision Application is filed.
7. Before the trial Court the respondent No.1 sought declaration as to his entitlement as being owner and also sought cancellation of the allotment of the documents/entries favoring applicants. In all ten issues including additional issue as 7-A were framed, as recorded in paragraph 9 of the trial Court’s judgment. Feeling the burden of the issues, the respondent No.1 attempted to lead evidence by examining himself as Ex.16 and produced documents such as 16-A, which is a letter allegedly written by Deputy Commissioner, Haq Qabza Yaddasht (Ex.16/B), Deh Form-VII (Ex.16/C), Sketches (Ex.16/D to Ex.16/M) etc. He also produced land revenue receipts and bills as Ex.16/1 to Ex.16/27. He also produced defendants/applicants documents as Ex.16/28 to Ex.16/64. Thereafter plaintiff/respondent No.1 closed his side vide statement dated 29.08.2006.
8. The private defendants/applicants examined defendant No.14 Yar Muhammad as DW-1 as Ex.116, defendantNo.16/applicant No.10 Shamsul Haq as DW-2 as Ex.117 who produced Deh Form and revenue receipts. The defendants also examined DW-3 Muhammad Rahim as attorney of defendants No.7 to 11 as Ex.119 who produced Power of Attorney as Ex. 119-A, documents of grant as Ex.119-B to 119/S. Defendants examined DW-4 Muhammad Khan as Ex. 123 who produced copy of report of Mukhtiarkar Revenue Shah Bander as Ex.123/A and Ex.123/B. He produced Deh Form as Ex.123/C and report of Tapedar as Ex.123/D. Thereafter their side was closed.
9. I have heard the learned counsel and perused the material available on record.
10. As referred above, the trial Court framed 10 issues including additional issue No.7-A. The prime issue before the trial Court was Issue No.4, which is reproduced as under:-
“4. Whether Mst. Dhanjani D/o Khammon Dars was owner of the suit land on the basis of Haq Qabza Yaddasht vide order dated 30.03.1966 passed by Deputy Commissioner, Thatta?
11. The trial Court decided Issue No.4 along with Issue Nos.6 and 7, which are:-
6. Whether defendants No.8 to 12 are owners of 120-00 acres of suit land?
7. Whether defendants No.13 to 23 are owners of 200-20 acres of suit land?
While deciding above three issues, the reasoning assigned by trial Court shows that a cumulative effect was given by the trial Court by assessing as to which party was able to produce better evidence. This concept of assessing the case of the parties and deciding the fate of the suit in such a manner, may be applied in some appropriate cases but not here.
12. The burden has to be discharged by respondent/plaintiff who sought declaration to the effect of their entitlement. If defendant’s/ applicant’s evidence to support their defence and case was weak, it will and should not be of any help to plaintiff/respondent. Plaintiff does not get a decree on the weaknesses of defence nor the defendants get the suit decreed for themselves on the strength of their evidence. There was no counter suit of the applicants/defendants. The trial Court was only required to see whether the plaintiff/respondent No.1 who has filed the suit has made out a case in terms of the pleadings, evidence and documents or otherwise. The trial Court is not required to weigh the case of the two parties i.e. plaintiff and defendants and then decide accordingly. The trial Court must see as to whether the burden was properly discharged by the plaintiff, which in terms of the issues framed was upon him (plaintiff/respondent No.1).
13. The trial Court has not discussed at all the fate of Ex.123-A and 123-B (translation) while deciding above crucial issues. The Mukhtiarkar Revenue, Shah Bander in his report Ex.123-A has categorically stated that Entry No.7 dated 24.02.1971 in the name of Ghulam Muhammad Dars (respondent No.1) was manipulated, fabricated and forged. He has disclosed in the report that fabricated Haq Qabza Yaddasht in the name of Mst. Dhanyani and various sketches and order dated 30.03.1966 purported to have been signed by Mr. Muhammad Mubashar Khan, the then Deputy Commissioner Thatta, were forged, on the basis of which false entries have been kept/made in the revenue record in the name of Mst. Dhanyani in respect of Survey Nos., 1, 2, 3, 24 and others admeasuring 791-4 acres in Deh Baloo Jamali, Taluka Shah Bander. The report also disclosed that the said order was not on the office record nor the said entry in the name of Mst. Dhanyani in VF-VII and Haq Qabza Yaddasht was available. The burden of that too, after this report, in respect of order dated 30.03.1966 and/or any other entry thereafter is primarily on the plaintiff/respondent No.1.
14. They (plaintiff/respondent No.1) should have summoned the officials for the production of these documents for verification of the said order, which is relied upon by him (plaintiff) in order to establish his case. There was no reason or justification to have decreed the suit of the plaintiff/respondent No.1 by trial Court as well as by appellate Court in presence of this categorical report. When vendor’s title was defective, no better title could have passed on and that too within family. No defence of bona fide purchaser was/is available under Section 27 of Specific Relief Act and section 41 of Transfer of Property Act. In first and second paras of findings on Issue No.4, 6 and 7, is dependant upon cumulative effect and the judgment was drawn that plaintiff has better case, however, threshold of proving a case beyond reasonable doubt was yet to cross by respondent No.1. There was no challenge to this enquiry report Ex-123-A, as far as suit for declaration is concerned. It was not the defendants/applicants who were supposed to lead evidence to disprove the report, which facts had already been adjudged as such by the revenue authorities. It was the plaintiff/respondent No.1 who was burdened, which was not discharged.
15. There is no revenue record favouring respondent, prior to 1966 and Exhibit-16-A which is a letter dated 30.3.1966 talks about “enquiries”, details of which are neither available on record nor summoned to establish at least a prima facie case. It was alleged in the letter that it was a qabooli/surveyed land, yet no record was produced including but not limited to the alleged enquires and on the basis of “Haq-e-Qabza yaddasht” an area of 791 acres were entered and recorded in the name of Mst. Dhanjani.
16. The presumption of truth as far as 30 years old document is concerned, no doubt carries weight but when a party to a case alleges that such a document was a forged then the onus was on the other party relying on the same to prove execution of such document in accordance with law as that presumption in such a situation would not apply. In the instant case not only the party denied it but also an official from the revenue department has categorically denied the existence of such document or any document on its strength.
17. In the case of Nazir Ahmed v. Karim Bakhsh reported in 2017 SCMR 1934, the Hon’ble Supreme Court laid down the parameter in paragraph 5 as under:-
“5. We have heard learned counsel for the petitioners and examined the record with his assistance. We find that the argument that a presumption of truth was attached to the document in question because it was allegedly more than 30 years old is misconceived. It is settled law that the condition precedent for grant of benefit of presumption of truth to a document which is more than 30 years old is that there is no doubt about the valid execution of the same. It is clear from the record that the Respondents had categorically stated in their written statement that the alleged agreement to sell was a forged document. In these circumstances, onus was on the petitioners to prove execution of the document in accordance with law. Having failed to do so, the petitioners were not entitled to rely on the age of the document to claim the benefit of a presumption of truth in terms of Article 100 of the Qanun-e-Shahadat Order, 1984.”
18. In the case of Rehmatullah v. Saleh Khan reported in 2007 SCMR 729, it has been observed as under:-
“It is also settled law that mutations by themselves do not create title and the persons deriving title thereunder have to prove that transferor did part with the ownership of the property, the subject of mutation in favour of the transferee and that the mutation was duly entered and attested as law laid down by this Court in Hakiin Khan's case 1992 SCMR 1832 and Muhammad Ali's case PLD 1993 Lah. 33.”
19. In the case of Khair Din v. Salman reported in PLD 2002 SC 677, the Hon’ble Supreme Court has observed that:-
“Undoubtedly no' benefit can be derived by a person claiming proprietary rights in a particular property, based on fraudulent transaction because it is well‑settled C that fraud if established on record is sufficient to vitiate most solemn proceedings.”
20. In the case of Abdul Hameed v. Shamsuddin reported in PLD 2008 SC 140 it has be held that:-
“We are afraid, Mst. Feroza Khanum having stepped into the shoes of Abdul Hameed, who was not a lawful owner of the Property, would not get a better title and we having examined the record with the assistance of learned counsel for the parties, have not been able to take any exception to the legal position and also have not been able to find out any substance in the grounds raised by the learned counsel in support of the present petition for interference. The petitioners have not claimed the benefit of section 41 of the Transfer of Property Act and rightly so because Mst. Feroza Khanum, their predecessor-in-interest having the knowledge of dispute of title of property between Mst. Halima Bai and Abdul Hamed purchased the same and notwithstanding the fact that petitioners were in continuous possession of the property as owner, they by efflux of time would not be able to improve their title.”
21. Similarly in the case of Sultan Muhammad v. Muhammad Qasim reported in 2010 SCMR 1630, the Hon’ble Supreme Court, as to the concurrent findings of the Courts below, has held that:-
“17. Indeed, the concurrent findings of three Courts below on a question of fact, if not based on misreading or non-reading of evidence and not suffering from any illegality or material irregularity effecting the merits of the case, are not open to question at the revisional stage, but where on record the position is contrary to it, then the revisional Court in exercise of its jurisdiction under section 115, C.P.C. or this Court, in exercise of jurisdiction under Article 185 (3) of the Constitution, are not denuded of their respective powers to interfere and upset such findings.”
22. In the case of Malik Muhammad Khaqan v. Trustees of the Port of Karachi reported in 2008 SCMR 428, it has been observed:
“This Court has consistently held that when finding of the facts of the trial and Appellate Courts are contrary to the evidence and material on record or are against law when the revisional Court would have jurisdiction to rectify the same so as to bring the findings in consonance with the evidence on record or to remove the illegality surfacing from the judgment. Similarly if the revisional Court finds any violation of provision of law by a Court or ignorance of law then it is vested with the authority to set aside the concurrent findings and substitute its own findings.”
23. Hence in view of the above facts and circumstances, it is a case of material irregularities and illegalities, as the evidence is totally contrary and against the claim of respondent whose suit was decreed. Hence the suit of the plaintiff/respondent No.1 stands dismissed. However, this would not give a license to the applicants as far as their claim is concerned and the revenue authorities are at liberty to act in accordance with law.
Karachi
Dated: 17.09.2018 Judge