IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Civil Revision Appln.No.S-60 of 2011
Applicants : Kazi Muhammad Akram and others Through Mr. Imdad Ali Mashori, Advocate
Respondents : Through Mr.Ghulam Dastagir Shahani,
Advocate for private respondents,
Miss. Shazia Surhio, State Counsel
Date of hearing : 29.11.2018
Date of order : 06.12.2018
O R D E R
IRSHAD ALI SHAH, J.- The applicants by way of instant civil revision application have impugned order dated 22.04.2011, and decree dated 28.04.2011, passed by learned 5th Additional District Judge, Larkana, in Civil Appeal No.11/2008, Re. Kazi Muhammad Akram and others Vs. Munshi Chando Singh and others, whereby order dated 23.10.2008, and decree dated 30.10.2008, passed by learned 2nd Senior Civil Judge, Larkana, in F.C.Suit No.106/1999, Re. Kazi Muhammad Akram and others Vs. Munshi Chando Singh and others, were maintained, whereby the plaint so filed by the applicants was rejected U/O VII rule 11 CPC.
2. The facts in brief necessary for disposal of the instant civil revision application are that; as per the applicants, a shop with one room (suit property) situated in Mero Dero, Muhalla Larkana, was owned by their grandfather Kazi Muhammad Sharif, who during his life time mortgaged the same with Munshi Chando Singh, for sum of Rs.85/- through registered mortgage deed dated 03.07.1918. In year 1923, Kazi Muhammad Sharif died leaving behind his son Kazi Azizullah to inherit his property, who at that time was only five years old. In year 1935, Larkana City was surveyed and the suit property was assigned Survey No.765, 766 and 767. Subsequently, those Survey numbers were re-numbered as City Survey No.756 to 768, Ward-B, Larkana. C.S.No.756 to 764 and 768, as per applicants are in their possession, while C.S.No.765, 766 and 767 are occupied illegally by the private respondents. In year 1985, Kazi Azizullah died leaving the applicants to inherit his property. Subsequently, as per applicants they requested the private respondents to return the suit property to them, which they refused to return by saying that it stands mutated in their names in record of right. It was in these circumstances, the applicants filed a suit before learned 2nd Senior Civil Judge, Larkana, for Declaration, Cancellation of Document and Permanent Injunction with the following relief;
a) That this Honourable Court be pleased to declare that suit property is ancestral property of plaintiffs and possession of defendants 7 and 8 and entries made in favour of defendants 7 and 8 are null and void.
b) That this Honourable Court further pleased to cancel the entries in favour of defendants 7 & 8.
c) To direct the defendants 7 & 8 to hand over the vacant possession of suit property to plaintiffs.
d) Permanent injunction against defendants from restraining them from alienating or handing over the possession of suit property to anybody else directly or indirectly except due process of law.
e) Costs of the suit be awarded to the plaintiffs.
f) Any other relief be granted to plaintiffs.
3. The private respondents filed their written statement in denial to the averments made by the applicants in their plaint. The issues in the suit were framed, when the suit was about to proceed further on merit, at the motion of private respondents, the plaint whereof was rejected by learned trial Court under order VII rule 11 CPC. Such rejection of the plaint was impugned by the applicants by way of preferring an appeal; it was also dismissed by learned Appellate Court, as stated above.
4. It is contended by learned counsel for the applicants that the applicants have been denied right of fair trial to prove their ownership, the triable issues were available in their suit, which in fact were framed, in that situation, the plaint was not liable to its rejection. By contending so, he sought for reversal of the order/judgment of learned trial and Appellate Court.
5. It is contended by learned counsel for the private respondents that the property under possession of the private respondents is the different to the one, which is claimed by the applicants to be theirs’, it was Evacuee property and was purchased by the private respondents for valuable consideration in early partition days and since then they are enjoying the right of ownership over it, without any challenge, the very suit was incompetent and time barred, its plaint was rightly rejected by learned trial Court and its rejection was rightly maintained by learned Appellate Court. By contending so, he sought for dismissal of the instant civil revision application.
6. Learned State Counsel was fair enough to say that no public interest is involved in the instant litigation.
7. I have considered the above arguments and perused the record.
8. The operative part of the order of learned trial Court reads as under;
“The plaintiffs remained fail to produce any ownership documents in respect of suit property nor it is alleged by the plaintiffs that the defendants No.7 & 8 with fraud had managed the ownership documents in their favour, the present suit is filed by the plaintiffs on 24.05.1999, the W.S is filed by defendants No.7 & 8 on 22.4.2000, wherein the ownership of plaintiffs have been denied. The present application U/O VII rule 11 CPC is filed by learned counsel for defendants No.7 and 8 on 23.9.2008, the plaintiffs have tried with their own accord to collect documents of ownership of said property nor submitted any application for calling the concerned officer to produce the record of rights before 1935/before Survey of City Larkana for ascertaining the truth for disposal of this application. Moreover, in registered mortgaged deed executed by grandfather of plaintiffs namely Muhammad Sharif had obtained loan Rs.85/- on interest. The mortgaged property is one shop alongwith room with an area of 10 x 20, Mirodero Muhalla Larkana is mentioned in registered mortgaged deed, whereas area of suit property is about 1856 square feet, all C.S.Nos. are more from 200 square feet, furthermore the boundaries of suit properties are not mentioned in the registered mortgaged deed. No doubt apparently the plaintiffs have remained fail to prove themselves as owners of the suit property. Moreover the present suit of the plaintiffs appear as time barred, as according to registered mortgaged deed the grandfather of plaintiffs namely Qazi Muhammad Sharif remained fail to return the loan amount with interest within the period of 12 months. The cause of action accrued to plaintiffs or their grandfather in the year 1919 till his death in 1923. After that father not filed suit against defendants during his life time, but the present plaintiffs have filed the present suit in the year 1999”.
9. The bare perusal of above paragraph of the order of learned trial Court would reveal that the main reasons which prevailed with learned trial Court for rejection of the plaint were that the applicants have failed to prove themselves to be owner of the suit property and their suit is time barred. The applicants would have been able to prove their ownership over the suit property, if they would have been provided a chance by learned trial Court to do the same by recording their oral or documentary evidence. In that situation, without recording evidence, the conclusion of the learned trial Court that the applicants have failed to prove themselves to be owner of the suit property was unjustified. It is settled by now that the limitation being mixed question of facts and law could only be resolved after recording of evidence. In these circumstances, the rejection of the plaint of the suit of the applicants could not be sustained.
11. In view of above, the impugned order and judgment of learned trial and Appellate Court could not be sustained; those are set-aside with direction to learned trial Court to decide the very suit on merits by providing chance of fair trial to all the concerned, which is guaranteed by Article 10-A of the Constitution.
12. The instant Civil Revision Application is disposed of accordingly, with no order as to costs.
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