IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Civil Revision Appln.No.S-61 of 2011
Applicants : 1). Bachayo alias Allah Bachayo Jakhao,
2). Wadhal alias Wahid Bux Jakhao,
Through Mr. Ali Raza Pathan, Advocate
Respondents : 1). Abdullah son of Haji Mitho Jakhro,
(Since dead) through his legal heirs:
a). Habibullah (son)
b). Azizullah (son)
c). Mst.Ghulam Fatima (widow)
d). Mst.Husna (daughter)
Through Mr.Vinod Kumar Jesrani, Advocate
Mr.Qazi Muhammad Bux, State Counsel
Date of hearing : 15.10.2018
Date of order : 19.10.2018
O R D E R
IRSHAD ALI SHAH, J.- The applicants/plaintiffs by way of instant Civil Revision Application have impugned judgment dated 27.06.2011 and decree dated 30.06.2011, passed by learned 1st Additional District Judge, Shikarpur, in Civil Appeal No.59/2010, regarding Abdullah and others Vs. Bachayo alias Allah Bachayo and others, whereby the judgment dated 11.11.2010, and decree dated 15.11.2010, passed by learned 1st Senior Civil Judge, Shikarpur in F.C.Suit No.26/2006, regarding Bachayo alias Allah Bachayo and others Vs. Abdullah and others were set aside.
2. The facts in brief necessary for disposal of instant civil revision application are that a suit for Declaration of ownership, Possession and Mesne Profit was filed by the applicants/plaintiffs before learned 1st Senior Civil Judge, Shikarpur, pleading therein that Survey No.61/2 area (01-30) Acres, Deh Mureed Sethar, Taluka Shikarpur, was originally belonging to Haji Mitho, which they have purchased from him for sum of Rs.2000/- on 23.07.1975, through their grandfather Muhammad Usman, as they at that time were minors, by way of statement of sale recorded before Mukhtiarkar (Revenue), Taluka Shikarpur and they accordingly were put in possession of the said land. The revenue record was mutated accordingly. Subsequently, the private respondents after death of their grandfather Muhammad Usman, forcibly encroached upon the said land and then on intervention of “Nekmards” started to give them produce whereof, which they stopped in year 2003. On the basis of such pleadings, the applicants/plaintiffs filed the above said suit.
3. The private respondents/defendants filed their written statement in denial to the averments made by the applicants/plaintiffs in their plaint by stating therein that statement of sale before Mukhtiarkar (Revenue) Taluka Shikarpur and entries in record of rights have been managed by the applicants/plaintiffs in collusion with lower staff of revenue. By pleading so, they sought for dismissal of the suit filed by the applicants/plaintiffs.
4. Out of pleadings of the parties, the learned trial Court framed the following issues;
1. Whether suit land admeasuring 1-30 acres, S.No.61/2 was purchased by plaintiffs through statement of late Haji Mitho on 23.07.1975 and paid consideration amount of Rs.2000/- and possession was handed over to him and such entries in revenue record for 1-30 acres are legal?
2. Whether defendant No.1 illegally has possessed the suit land and that due to intervention of Nekmards he had been paying mesne profits to plaintiff till 2001.
3. Whether plaintiff is entitled for any relief?
4. What should the decree be?
5. The applicant/plaintiff Wahid Bux examined himself at Exh.47, produced attested copy of “Dakhal Kharij” Register and Deh Form at Exh.47-A and 47-B respectively, he also produced copy of “Dakhal Kharij” Register bearing entry No.53 in favour of the applicants/plaintiffs dated 23.07.1975, as Exh.47-C. PW Hussain Bux at Exh.48, PW Ghulam Qadir, Supervising Tapedar Circle Shikarpur at Exh.50, he produced mutation entries No.53 and 54 of “Dakhal Kharij” Register in favour of the applicants/plaintiffs alongwith statements of sale at Exh.50-A and 50-B and then the applicants/plaintiffs closed their side vide statement at Exh.51.
6. Attorney of the defendants No.1 namely Habibullah examined himself at Exh.58, produced Power of Attorney executed by the defendants/private respondents in his favour at Exh.59, School Leaving Certificate of the applicant/plaintiff Wahid Bux issued by Head Master, Govt. Primary School, Sindhi, Saddar, Shikarpur at Exh.72, entry No.4 of Deh Form VII-B in favour of father of defendant/private respondent No.1 at Exh.73, land revenue receipts at Exh.74 to 82. D.W Nazir Ahmed at Exh.83, D.W Allah Warayo at Exh.84 and then the defendants/private respondents closed their side vide statement at Exh.85.
7. On the basis of evaluation of evidence so produced by both the parties, the learned trial Court decreed the suit filed by the applicants/plaintiffs, such decree on appeal was set-aside by learned Appellate Court, which is impugned before this Court by the applicants/plaintiffs, as stated above.
8. It is contended by learned counsel for the applicants/plaintiffs that the learned Appellate Court has set aside the decree of learned trial Court without lawful justification and on the basis of improper assessment of the evidence. The ownership of the applicants/plaintiffs according to him was based on 30 years old public documents; those were carrying with it the presumption of correctness. The private respondents/defendants are encroachers. The encroachment could not be protected through legal course. By contending so, he sought for setting-aside of judgment and decree of learned Appellate Court. In support of his contention, he relied upon case of Muhammad Azam & Ors Vs. Abdullah & Ors (1999 CLC-200).
9. It is contended by the learned counsel for the private respondents/defendants that the learned Appellate Court was right to set-aside the judgment and decree of learned trial Court, as no presumption of correctness is attached to forged documents. The private respondents/defendants according to him are in lawful possession of the above said land having inherited the same from their elders. By contending so, he sought for dismissal of the instant civil revision application. In support of his contention, he relied upon cases of Muhammad Hafeez and another Vs. District Judge Karachi Easter and another (2008 SCMR-398), and 2). Muhammad Akram and another Vs. Altaf Ahmed (PLD 2003 Supreme Court-688).
10. Learned State Counsel was fair enough to say that no public interest is involved in the instant civil revision application.
11. I have considered the above arguments and perused the record.
12. The applicants/plaintiffs have claimed to have purchased the said land from Haji Mitho by way of statement of sale, which was recorded before Mukhtiarkar (Revenue), Taluka Shikarpur and on the basis of such statement, the mutation was effected in record of rights in their favour. It all was done on 23.07.1975. It is true that as per Article 100 of Qanun-e-Shahadat Order, 1984, the presumption of correctness is attached to 30 years old public document, but there could be made no denial to the fact that when those documents are alleged to have been managed in revenue record with collusion of revenue officials then its correctness requires scrutiny/proof. In the instant matter, it is claim of the applicants/plaintiffs that the said land was purchased in their favour by their grandfather Muhammad Usman by way of sale statement before Mukhtiarkar (Revenue) Taluka Shikarpur. Significantly, no such disclosure is made in alleged sale statement. No mode of payment of sale consideration is disclosed therein. The Mukhtiarkar (Revenue) Taluka Shikarpur, who allegedly recorded such sale statement, has not been examined by the applicants/plaintiffs to prove the contents of said sale statement being its author. I that situation, such sale statement could hardly be believed to be relied upon. During course of examination, applicant/plaintiff Wahid Bux was fair enough to admit that applicant/plaintiff Abdullah has taken birth in year 1977. If it was so, then his birth was at-least two years after the alleged sale transaction, which as per the applicant/plaintiff has taken place in year 1975. Surprisingly, this aspect was overlooked by learned trial Court under the pretext that in “Interior Sindh, it is usual that illiterate parents get their children admitted in Schools late and mention age of their children less than the actual one”. It was the presumption without any substance. The presumption could not be treated to be substitute of evidence. In these circumstances, the learned Appellate Court was right to set-aside the judgment and decree of learned trial Court by way of impugned judgment and decree. By doing so, the learned Appellate Court has committed no illegality, irregularity or jurisdictional error, which may call for interference by this Court.
13. The case law which is relied upon by learned counsel for the applicants/plaintiffs is on distinguishable facts and circumstances. In the said case, it was observed by the Honourable Quetta High Court that 30 years document carries with it presumption of correctness, if it is found to be free from suspicious. In the instant case, applicant/plaintiff Abdullah is claiming to have acquired ownership of the said land by way of sale statement even before his birth, such fact itself is enough to create suspicious about the sale statement and subsequent entry in the record of rights.
14. In view of the facts and reasons discussed above, the instant Civil Revision Application is dismissed, with no order as to costs.
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