ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
Revision Application No.220 of 2005
Muhammed Khan ………… Applicant
Versus
Mukhtiarkar Revenue,
Kot Ghulam Muhammed,
District Mirpurkhas
& others ………… Respondents
1. For katcha peshi
2. For hearing of CMA No.1080/2005
3. For hearing of CMA No.1081/2005
Date of hearing:15-5-2009
Mr. Ejaz Ali Hakro, Advocate for the Applicant
Mr. Harish Chandar, Advocate for Respondent No.3
Mr. Allah Bachayo Soomro, Additional Advocate General, Sindh
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AMIR HANI MUSLIM, J. Through these proceedings, the Applicant impugneds the judgment and decree passed by District Judge, Mirpurkhas in Civil Appeal No.38 of 2005 (Muhammed Khan Versus Mukhtiarkar & others) by which he has affirmed the judgment and decree of 18-4-2005 passed in First Class Suit No.07/2004 by II-Senior Civil Judge, Mirpurkhas whereby the suit filed by the Applicant was dismissed. Along with the present proceedings, the Applicant has also made an application under Order XLI Rule 27 CPC praying therein that death certificates of Mitho Khan and Asandas issued by Union Council Samaro-1 be taken on record while considering the revision application.
The facts as they appear from the pleadings of the parties are that the Applicant claims to have been orally gifted the agricultural land admeasuring 215 acres 36 ghuntas by his father Haji Muhammed Ishaque during his life time in presence of the witnesses Asandas and Mitho Khan on 26-12-1984. It is further claimed that the said oral gift was reduced in writing confirming its factum. Asandas and Mitho Khan were the witnesses to the said confirmation of gift whereas Mukhtiarkar, Samaro attested the said document. The Applicant claims that the entire land is in his possession, which is located in Kot Ghulam Muhammed, District Mirpurkhas. It is pleaded that Haji Muhammed Ishaque father of the Applicant died on 14-2-1985 and the Applicant did not mutate the land as Donee in the revenue record. The Applicant has two sisters, namely, Mst. Mehar Bibi and Mst. Naz Bano. Somewhere in the year 2001, the Applicant approached the Mukhtiarkar, Kot Ghulam Muhammed, for mutation of land claimed to have been gifted to him by his father in 1984 on the basis of the unregistered Deed of Confirmation of Oral Gift dated 26-12-1984. The Mukhtiarkar refused to mutate, as a result of which Applicant filed First Class Suit No.07/2004 on 31-5-2004 in the Court of II-Senior Civil Judge, Mirpurkhas. However, the Applicant did not implead her sisters as party. One of the sisters of the Applicant (Respondent No.3) made an application under Order 1 Rule 10 CPC, objecting to the factum of gift. The Application was allowed and she was impleaded as Defendant in the suit. However, no written statement was filed by any of the Respondents/Defendants. The Applicant appeared in the witness box, but he did not prove the contents of Deed of Confirmation of Oral Gift and the suit was dismissed by the II-Senior Civil Judge, Mirpurkhas, inter alia, on the ground that attesting witnesses were not examined by the Applicant and therefore, the document was not proved. Against this the Applicant preferred appeal which was numbered as 38/2005 and the same was also dismissed by the District Judge, Mirpurkhas, affirming the judgment of the II-Senior Civil Judge, Mirpurkhas.
The Applicant through these proceedings has impugned both the judgments and has also made an application under Order XLI Rule 27 CPC for producing additional evidence. It is contended by the learned counsel for the Applicant that on the date when the suit was filed, both the attesting witnesses were not alive. According to the Applicant Mitho Khan was died on 24-10-1998 whereas Asandas died on 09-4-2001. This fact has neither been pleaded nor urged by the Applicant before the Courts below and the application under Order XLI Rule 27 CPC requires recording of the evidence, as the documents sought to be brought on record as additional evidence at the revisional stage could not be allowed except by leading evidence and subject to cross-examination. Additionally there is no explanation given by the Applicant as to why he did not examine the Mukhtiarkar, Samaro, who has attested the deed of confirmation of gift and why the said registration was made by Mukhtiarkar, Samaro, whereas the land in question was located at Kot Ghulam Muhammed, which is a separate Taluka and has a separate Mukhtiarkar. It is also unexplained as to why the Mukhtiarkar, who has attested the deed of confirmation of gift, was not examined.
The contention of the learned counsel for the Applicant that since no written statement has been filed by any of the Respondents therefore, the Courts below were in error in dismissing the suit inter alia on the ground that the deed of confirmation of gift has not been proved. He further contended that now since an application under Order XLI Rule 27 CPC has been made, this Court, to meet the ends of justice, would allow the Applicant to produce additional evidence.
As against this, the learned counsel for Respondent No.3 states that it is correct that the written statement has not been filed by Respondent No.3 before the trial Court, but she appeared in the appeal and has opposed the same. He further contended that deed of confirmation of gift was required to be proved by the Applicant, which has failed to do so and there is no explanation as to why the Applicant in case if the attesting witnesses were not alive, had not examined the Mukhtiarkar, Samaro, who has attested the said document.
I have heard the learned counsel for the parties and perused the record. In the first place, the Applicant should have impleaded both his sisters as Defendants, but he has chosen to file a suit without impleading them as parties, who, in law, were entitled to inherit the property of their deceased father and had direct interest in the proceedings. The Applicant’s counsel could not offer any plausible explanation for non-impleading of the sisters of the Applicants as parties in the suit and also could not offer any explanation in regard to filing of the suit on 31-5-2004, after a lapse of more than 20 years, seeking declaration of gift, which was made on 26-12-1984 by his father, who died on 14-2-1985 at the age of 75 years. The law requires that the contents of the document are to be proved independently.
In the present proceedings, the Applicant has not filed the suit during the lifetime of the attesting witnesses, which he claims were the signatories of the deed of confirmation of gift. This fact has not been disclosed in the pleadings by the Applicant. The Applicant has not stated a single word as to why he got the document attested from Mukhtiarkar, Samaro, within whose jurisdiction the land was not located. Additional evidence of the nature, which is being sought to be produced and or brought on record, cannot be allowed at revisional stage with the intent to fill in the lacuna. Scope of Order XLI Rule 27 CPC is limited to the extent of appeal and it could not allow to be extended to fill in the lacuna. The learned counsel for the Applicant has relied upon the judgments in the case of Syed Muhammed Hassan Shah and others versus Mst. Binat-e-Fatima and another reported in PLD 2008 SC 564 and in the case of Ghulam Ahmed Chaudhry versus Akbar Hussain through legal heirs and another reported in PLD 2002 SC 615 that the Courts have the power under Order XLI Rule 27 CPC to allow additional evidence. Both the judgments of the Honourable Supreme court do not support the case of the Applicant. Their lordships have held that if the Court is satisfied that the production of additional evidence should be allowed to reach a just finding only then such powers are allowed to be exercised and not otherwise. Their lordships in the case of Syed Muhammed Hassan Shah and others versus Mst. Binat-e-Fatima and another reported in PLD 2008 SC 564 have held that allowing of additional evidence under Order XLI Rule 27 CPC by the Court with the object to fill in the lacuna is never permissible. I am of the view that the Applicant has not made out a case to justify allowing of the application under Order XLI Rule 27 CPC. The Applicant has not approached the Court with clean hands and has avoided to implead his sisters, who have direct interest in the outcome of the proceedings. I have examined the impugned judgments of both the Courts below and for the reasons stated herein above do not find any infirmity, which could warrant interference by this Court in exercise of its revisional jurisdiction. I accordingly dismiss this Revision Application alongwith the listed applications.
These are the reasons of my short order dated 15-5-2009.
JUDGE
Dated:15-5-2009
Zahid Mahmood