ORDER SHEET
IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Civil Revision Application No.88
of 2018
DATE ORDER
WITH SIGNATURE OF JUDGE
27.09.2021
1. For hearing of main case.
2. For hearing of CMA No. 5988/2018.
Mr. Kamran Mobeen Khan, advocate for
the Applicant
ZAFAR AHMED RAJPUT, J.- Applicant herein filed a civil suit
bearing No.16/2011 against the respondent for declaration and permanent
injunction alleging therein that he had purchased a plot, admeasuring 2722
sq.fts., situated in Survey No.265, Deh Takio Muhammad Pannah, Taluka Daharki,
from one Muhammad Sharif in the sum of Rs.10,000/- through sale deed registered
at No.48 with Sub-registrar Mir Pur Mathelo on 25.01.1989 and such mutation Entry
No.158, dated 30.08.2007, was made on his name in record of rights. It was
further alleged that after purchasing the said plot, the applicant got the
earth filling, and there was no interference from anyone with the possession
but, on 26.10.2011, respondent along with some unknown persons came at the plot
and showed that he had obtained a general power of attorney from Muhammad
Sharif and claimed to be the owner of the suit plot; thereafter, the respondent
went away expressing that he would occupy the suit plot by force, hence cause
of action accrued to applicant to file the instant suit.
2. The
respondent contested the said suit by filing his written statement wherein he stated
that the plot bearing S.No.265 was not under his possession. He further stated
that he was khatedar of piece of land
admeasuring one acre in S.No.264, situated in the said Deh, which he purchased through
registered sale-deed bearing No.2614, dated 06.08.2009, and held the possession
thereof. Besides, he owns a piece of land admeasuring 05-9/10 ghuntas in S.No.265 of said Deh, under a registered sale-deed bearing
No.1321, dated 02.10.1996 and he also held possession hereof. He also stated that he was not in possession
of any other area in S.No.265 of said Deh and he did not intend to possess
illegally any piece of land in said survey number.
3. The
learned trial Court framed the Issues on the divergent pleadings of the parties
initially on 15.06.2013, thereafter it framed additional Issues, firstly on
21.12.2013 and secondly on 14.02.2015, which are re-arranged as under:-
1. Whether the plaintiff purchased the plot admeasuring 2722 ½ Sq.ft” out of
Serial No.265, deh Takyo Muhammad Pannah Taluka Daharki, and sale-deed bearing
Registration No.48 dated 25.01.1989 is legal, correct and genuine?
2. Whether the plaintiff is
in possession of property mentioned in paragraph No.03 and 4-a of amended
plaint?
3. Whether the suit is maintainable in present
form?
4. Whether the plaintiff has cause of action?
5. Whether the plaintiff has properly
valued the suit?
6. Whether property
mentioned in paragraph No.4-a of amended plaint is situated in Survey No.265
Deh Takyo Muhammad Pannah?
7. Whether the plaintiff
intends to encroach upon the property of the defendant falsely claiming the
same to be suit property?
8. Whether the plaintiff is
the lawful owner in possession of the suit property and is entitled for grant
of permanent injunction?
9. What should the decree be?
4. At the
trial, the applicant examined himself at Ex.73. He produced certified true copy
of registered sale deed at Ex.75, certified true copy of Form VII-B of revenue
record, vide entry No.158, dated 30.08.2007, at Ex.76. He also examined his
witness Mir Hassan Shaikh at Ex.77. On
the other hand, the respondent examined through his attorney at Ex.98, who produced
special power of attorney at Ex.99, certified true copy of entry No.519 dated
03.1.2009 at Ex.100, certified true copy of registered sale-deed bearing
No.1460 at Ex.102 and certified true copy of registered sale-deed bearing
No.2649 at Ex.103. The defendant also examined DW-2 Abdul Ghani at Ex.104 and
D.W-03 Hazoor Bux at Ex.105.
5. The
learned trial Court after hearing the learned counsel for the parties and on
the assessment of evidence on record decreed the suit of the applicant leaving
the parties to bear their own costs vide judgment and decree dated 17.09.2015
and 23.09.2015. Against that, the respondent preferred civil appeal No.52/2015 which
was heard and allowed by the Additional District Judge, Ubauro vide impugned judgment
and decree, setting-aside the judgment and decree of the trial Court. It is
against that conflicting findings of the appellate Court that the applicant has
preferred this civil revision.
6. Heard the learned counsel for
applicant and perused the material available on record. It may be relevant to
mention here that the respondent was served with the process of this Court as
per report of bailiff; however, he was called absent on last date of hearing viz.
20.09.2021; so also, today none is in attendance on his behalf.
7. The
learned appellant Court while allowing aforesaid appeal of the respondent
observed as under;
“Before dealing with the contention his I may mention that point of
possession is very important in this case and I think that it is necessary to
see the pleadings/ position taken by the parties in respect of the claim of
possession. In para-6 of the plaint, respondent has pleaded about peaceful
possession and earth filing in the suit plot. In written statement filed by the
appellant, he shown ignorance about existence of property in the name and
possession of the respondent and also that he has no intention to occupy any
property of respondent. Respondent filed application under Order XXXIX rules
1&2 CPC with supporting affidavit apprehending dispossession at the hands
of appellant from the suit land. Appellant filed counter-affidavit and
contested the application. He took the plea that he is owner and in possession
of more than 5 ghuntas in survey No.265 and have not tried to illegally occupy
any other area in survey No.265. It was also mentioned in the counter-affidavit
that respondent wants to mis-use the court order in the form of injunction in
order to occupy the land of appellant. Said application was dismissed as not
pressed. Record shows that subsequently the respondent filed application u/s
151 CPC in which he submitted that the appellant has raised wall over the
already constructed wall of the respondent and prayed for its demolition. Counter
affidavit was filed by the appellant. Although it was submitted that appellant
has got no concern with property mentioned in para-4 of the plaint, but it was
also submitted that property with such location does not exist in survey
No.265. Said application was also dismissed as not pressed. Above position show
that the respondent has taken two fold plea, firstly that he has no intention
to illegally occupy the plot of respondent, and secondly he has denied the very
existence of such plot.
Record also shows that another application under Order VI rule 17 CPC was
filed which was allowed and respondent was allowed to add para 4(a) in the
plaint and he described the changed location of the plot and plaint was amended
accordingly. Appellant also filed written statement in which he admitted that
there exist a plot of the location disclosed by the respondent but submitted
that said location exist in survey No.264 and has no concern with survey No.265
claimed by the respondent.
If we look the evidence, respondent has deposed that he had purchased the
suit land in the year 1988-89 in survey No.62 or 64 or 65 and possession of
plot was handed over to him. This one sentence in the evidence of respondent
shows that respondent is not certain about the very location of his plot. Copy
of sale-deed produced by him shows that the plot existed in survey No.265 but
in evidence he deposed that it existed in survey No.62, or 64 or 65. In this
situation when the document of title produced by the respondent pertains to a plot
in survey No.265 and in evidence respondent has deposed that this plot is
situated in survey No.62, 64 or 65 then the question is how can he be declared
owner of the plot of which the respondent himself is not certain. He has no
title document of plot situated in survey No.62, 64 and 65 about which he has
deposed, and he has not deposed about survey No.265 regarding which he has produced a sale deed. His evidence that he
had constructed katcha coat up to human height with open space for main gate
over the suit plot and also got earth filing which is also supported by this
witness if of no use when respondent is not sure about the location of his
plot. During the trial, respondent has not tried to get the property inspected
or demarcated in order to prove possession and ascertain its location. In such
situation, finding of the learned trial Court that respondent is in possession
of suit plot is not based on correct appreciation of evidence. Attorney of the
appellant and his two witnesses have deposed about possession of the appellant,
and specifically deposed that respondent is not in possession of any plot in
survey No.265. In view of inconsistent positions taken by the respondent, when
he is not clear about the location of his plot, position taken by him that he
is or was in possession of plot at the time of filing of suit is not
established. As mentioned above, during the pendency of the suit application
u/s 151 CC was filed by the respondent in which it was alleged that appellant
has raised wall over the already constructed wall on suit plot, which means
that even if the respondent was in possession of the plot at the time of filing
of the suit, he lost possession during the pendency of the suit, and he should
have amended the plaint by seeking relief of possession, but it was also not
done and the said application was dismissed as not pressed. When the Court
asked learned counsel for the respondent as to why the respondent did not get
the prayer amended when he filed application under Order VI rule 17 CPC he
submitted that he was nor representing the respondent before the learned trial
Court. As the respondent was required to seek the relief of possession, which
he has failed to seek, the suit was not maintainable. It has been held by the Hon’able
Supreme Court in the case report in 1998 SCMR 2045 as follows;
“We are satisfied on perusal of report that the possession of plaintiffs
was not established on any part of the suit land while the defendants/ respondents
were found in actual physical possession of fourteen marlas thereof. It has
been rightly held by the learned Judge in Chambers that the report of the
referee was misread misconstrued by the Courts below. Since, the petitioners
were not found in possession of the suit land or any part thereof, their suit
for declaration that they were owners in possession was not maintainable and
same was, therefore, rightly dismissed by the learned Judge in the High Court.”
About principle is fully applicable to the instant case. This principle
has been held or followed in several other reported cases of Hon’able superior
Courts referred by the learned counsel for the appellant. Finding of the
learned trial court in respect of possession, maintainability, location and
cause of action i.e. issues No.2, 3, 4, 6 and 8 requires interference and it is
not sustainable in law. Suit without seeking relief of possession was not
maintainable. As the suit was not maintainable, respondent is not sure about
the location of plot, he could not have been declared owner, nor decree of
injunction could have been given. In view of above discussion impugned judgment
and decree are set-aside, the appeal is allowed with no order as to cost and
suit is dismissed.”
8. When learned counsel for applicant
was confronted with aforementioned observation of the appellate Court, he has admitted
that the applicant himself was not assured as to the location of his plot as
after filing of the suit he maintained an application under order VI, Rule 17,
C.P.C., whereby he added para-4(a) in the plaint by describing the changed
location of plot. He has also admitted that in his deposition the applicant has
stated that he purchased the suit plot in the year 1988-89 in survey No.62, 64
and 65 while the copy of sale-deed produced by him (Exh.75) bears the S.No.265
and that is without any proper description of the location. The inconsistent
position taken by the applicant in his pleadings and evidence leads to
irritable inference that he himself is not sure about the exact survey number
and location of his plot.
9. For the foregoing facts, discussion and
reasons, the judgment passed by the learned appellate Court appears to be well
reasoned and in accordance with the pleadings and evidence of the parties on
record, which does not suffer from any illegality and irregularity requiring
any interference by this Court in its revisional jurisdiction. Accordingly,
instant civil revision application is dismissed along with pending application
being devoid of any merit.
J U D G E
Ihsan/*