IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Civil Revision Appln.No.S-78 of 2011
Applicant : Muhammad Mubarak s/o Hamid Khan
through his attorney Fazal Muhammad s/o Muhammad Mubarak Bajkani,
Through Mr. Faiz Muhammad Larik, Advocate
Respondents : Through Mr.Munir Ahmed Bijarani,
Advocate for respondent No.4,
Miss. Shazia Surhio, State Counsel
Date of hearing : 03.12.2018
Date of order : 06.12.2018
O R D E R
IRSHAD ALI SHAH, J.- The applicant by way of instant civil revision application has impugned judgment dated 18.10.2011 and decree dated 20.10.2011, passed by learned District Judge, Kashmore @ Kandhkot, in Civil Appeal No.06/2010, Re. Muhammad Mubarak Vs. Noor Hassan and others, whereby judgment dated 16.03.2010, and decree dated 22.03.2010, passed by learned Senior Civil Judge, Kandhkot, in F.C.Suit No.50/2007, Re. Muhammad Mubarak Vs. Noor Hassan and others, were maintained.
2. The facts in brief necessary for disposal of the instant civil revision application are that as per the applicant, he by way of an agreement to sale executed on 21.01.1998, purchased Survey No.438, 439, 440, 441 and 442, area 25-00 Acres, situated in Deh Baragh, Taluka Tangwani, District Kashmore at Kandhkot (suit property) from respondent/defendant No.1 for consideration of Rs.300,000/-, out of which, he paid Rs.2,10,000/- to respondent/defendant No.1 at the time of execution of agreement to sale, while remaining amount worth Rs.90,000/- was to be paid by him to respondent/defendant No.1 at the time of execution of registered sale deed and he was accordingly put into possession of the suit property. The respondent/defendant No.1 avoided to execute sale deed in favour of the applicant despite approaches made repeatedly. Subsequently respondent/defendant No.1 died and then the applicant came to know that the suit property as per record of right is owned by Mst.Zainab and Ganj Bux, who on approaches refused to mutate the same in favour of the applicant in terms of agreement to sale, which was executed in favour of the applicant by the respondent/defendant No.1. In the meanwhile, as per applicant, he was threatened to be dispossessed from the above said property by legal heirs of respondent/defendant No.1, which necessitated him to file the suit for Declaration, Permanent Injunction and Specific Performance of Contract before learned Senior Civil Judge, Kandhkot, with the following relief;
A). To declare that all the actions of defendants taken or intended to be taken for dispossessing the plaintiff forcibly from suit land i.e S.No.438 to 442 situated in Deh Baragh for an area of 25-0 acres and further to declare that the action of legal heirs of defendant No.1 for not receiving the outstanding amount of Rs.90,000/- from the plaintiff and not mutating the Khata in favour of plaintiff are illegal malafide, fraudulent, null, void and against the provisions of law and natural justice.
B). To direct the legal heirs of defendant No.1 to receive the outstanding amount of Rs.90,000/- from the plaintiff and mutate the Khata in favour of plaintiff failing which the NAzir of this Honourable Court may be directed to receive the amount of Rs.90,000/- on behalf of legal heirs of defendant No.1 and mutate the Khata in favour of plaintiff before Sub Registrar Kandhkot.
C). To grant permanent injunction against the defendants restraining them from dispossessing the plaintiff forcibly from the suit land through themselves or through their sub ordinates or agents.
D). To award the costs of the suit.
E). To grant any other relief which this Honourable Court deems fit and proper under the circumstances of the case.
3. Only respondent/defendant No.4 contested the suit by filing his written statement in denial to the averments made in the plaint by stating therein that Survey No.437, 438 and 439, Area (17-12) Acres, situated at Deh Baragh, Taluka Tangwani, District Kashmore @ Kandhkot, are in his possession since 1994, which he has purchased through registered sale deed from its owner Mst.Zainab Khatoon. By pleading so, he sought for dismissal of the suit so filed by the applicant.
4. Out of pleadings of the parties, the learned trial Court framed the following issues;
1. Whether the suit is not maintainable according to law?
2. Whether the suit is barred by Section 42 of Specific Relief Act and also by Section 54 of CPC?
3. Whether the suit is time barred under the Limitation Act?
4. Whether the defendant no.1 had sold out his land to the plaintiff of Survey number bearing 438 to 442, an area of 25-00 acres in the year 1998 in the sum of Rs.300,000/- out of which Rs.210,000/- were paid and amount of Rs.90,000/- was out standing against the plaintiff, such agreement was reduced in writing on 21.01.1998?
5. Whether the defendant No.1 handed over the possession of the suit land to the plaintiff and since then plaintiff is in possession?
6. Whether the defendant No.1 was real owner of the suit property and he sold out the same?
7. Whether the plaintiff approached to defendant No.1 for mutation of Khata but he kept the plaintiff on false hopes till his death and after his death the plaintiff approached the legal heirs of deceased Noor Hassan but they refused to mutate the Khata on the pretext that the Khata is in name of Mst.Zainab and Ganj Bux?
8. Whether the plaintiff has no cause of action to file the present suit?
9. Whether the plaintiff is entitled for the relief as he claimed?
10. What should the decree be?
5. The applicant in order to prove his case on above issues examined his attorney Fazal Muhammad; produced through him power of attorney and agreement to sale, PW-02 Ghulam Sarwar, PW-03 Khair Bux, PW-04 Banhon and then closed the side.
6. The respondent/defendant No.4 in order to prove his case on above issues, examined himself and produced agreement to sale, registered sale deed and affidavit of Mst.Zainab Khatoon, DW-02 Noor Khan, DW-03 Imam Bux, DW-04 Muhammad Akram and then closed the side.
7. On evaluation of the evidence so produced by the applicant and respondent/defendant No.4, the learned trial Court dismissed the suit, so filed by the applicant, such dismissal was impugned by the applicant by way of filing of an appeal before learned Appellate Court, it was also dismissed. Now the applicant has preferred the instant civil revision application, as stated above.
8. It is contended by learned counsel for the applicant that the applicant has been able to prove the execution of agreement to sale in his favour in accordance with law by producing cogent evidence, yet his suit has been dismissed by learned trial and Appellate Court without lawful justification. By contending so, he sought for reversal of the impugned judgment(s) and decree(s) of learned trial and Appellate Court.
9. Learned counsel for the respondent No.4 sought for dismissal of the instant civil revision application by contending that no illegality or jurisdictional error is committed by learned trial and Appellate Court by dismissing the suit of the applicant, which could be made right by this Court by way of instant civil revision application.
10. Learned State Counsel was fair enough to state that no public interest is involved in the instant litigation.
11. I have considered the above arguments and perused the record.
12. The applicant has not examined himself as witness as per his attorney Fazal Muhammad, under the pretext that he is unable to walk. If the applicant was actually unable to walk, then he ought to have examined himself through commission. It was not done by him, which appears to be significant, such omission on the part of the applicant could not be lost sight of. It was stated by the applicant through his attorney Fazal Muhammad that he has purchased the suit property from respondent/defendant No.1 on dated 21.01.1998, by way of an agreement to sale, for consideration of Rs.300,000/-, he paid Rs.210,000/- to the respondent/defendant No.1, while the remaining amount wroth Rs.90,000/- was to be paid by him to the respondent/defendant No.1 at the time of execution of registered sale deed and he accordingly was put into possession of the suit property. In order to prove the execution of agreement to sale, the applicant examined PWs Ghulam Sarwar and Khair Bux. It was stated by PW Ghulam Sarwar that agreement to sale was written by Fazal Muhammad (attorney of the applicant). PW Ghulam Sarwar in that respect was belied by Fazal Muhammad (attorney of the applicant), by stating during course of his cross examination that it was not written by him. Be that as it may, the consistency between Fazal Muhammad (attorney of the applicant) and PW Ghulam Sarwar on point of execution of sale agreement could not be lost sight of. It was stated by PW Khair Bux that agreement to sale was written by somewhat 5/6 years back (back to his examination in Court). PW Khair Bux was examined by the applicant before learned trial Court in year 2009. If agreement to sale was executed somewhat 5/6 years back to examination of PW Khair Bux, then it might have been executed in year 2004 or 2005. By stating so, he belied the very case of the applicant whereby it was pleaded by him that the agreement to sale was executed on 21.01.1998. It was not end of the matter, PW Khair Bux when was confronted with his LTI on the alleged agreement to sale, was fair enough to state that he could not say whether it is his LTI or not. In these premises, it could be concluded safely that the applicant was not able to prove execution of agreement to sale in his favour by respondent/defendant No.1 beyond shadow of doubt. If for the sake of arguments, it is believed that the agreement to sale was actually executed by respondent/defendant No.1 in favour of the applicant, even then he was not competent to have executed the same, as the suit property as per applicant (through his attorney) was owned by Mst.Zainab Khatoon and Ganj Bux. The sale of the property of others by someone else without lawful authorization obviously was illegal. Mst.Zainab Khatoon as per respondent/defendant No.4 has sold her share consisting of Survey No.437, 438 and 439, area (17-12) Acres, to him for valuable consideration, through registered sale deed, the cancellation of such sale deed the applicant has not sought for, which has made his suit to be incompetent. In these circumstances, the learned trial and Appellate Court were right to dismiss the suit and appeal of the applicant by way of impugned judgment(s) and decree(s), in proper exercise of their jurisdiction, those are not calling for any interference by this Court by way of instant civil revision application, it is dismissed accordingly, with no order to as costs.
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