IN THE HIGH COURT OF SINDH
CIRCUIT COURT, LARKANA
2ndCivil Appeal : Haji Nazir Hussain vs.
No. S- 02 of 2020 Munawar Ali Abbasi & others
For the Appellant : Mr. Abdul Karim Surahio,Advocate
Date of hearing : 04.02.2022.
Date of announcement : 04.02.2022.
ORDER
Agha Faisal, J. (1) Deferred. (2) Granted subject to all exceptions. (3) Briefly stated the appellant had filed a suit for declaration of title and possession, which was dismissed by the learned 2nd Senior Civil Judge, Larkana, vide judgment dated 28.03.2017. The operative findings are reproduced herein below:
“The burden to prove this issue lies upon the shoulder of the plaintiff. The plaintiff has stated that he is attorney of Haji Nazir Ahmed Mangi. He produced General Power of Attorney at Ex.96-A. Plaintiff is owner of 33 ghunta from S. NO. 116 and 21 ghunta from S. No. 111 of dehWaleed, TapuDodai, Taluka Larkana. He produced true copy of record of rights at Ex.96-B. They are in the possession of 10 ghunta from S. No. 116 situated at Eastern side and 08 ghunta is in the possession of Market Committee while 15 ghuntas are in the possession of Wapda Authority from S. No.116. He deposed that 21 ghunta from S. No. 111 are in the possession of defendant No.1 to 4. He further deposed that the defendants No.5 and 6 have illegally occupied the area 08 ghuntas from S. No.111 and defendantNo.14 and 15 also illegally occupied area 15 ghuntas from survey No.116. Munawar Ali Abbasi is very influential person and was Ex-MPA of this area. Munwar Ali tried to occupy the area 10 ghunta with the help of police On the other hand, the defendant has deposed that he is attorney of defendant No.1 and 2. He also attorney of defendant No.3. He produced power of attorney at Ex.109-A. Suit property is bearing S. No. 116 and 111 of dehWaleedTapoDodai Taluka Larkana. The said property is belonging to Munwar Ali Abbasi who purchased the same from Nisar Ali Shaikh for sale consideration of Rs.400,000/-dated 09.03.1995. Such sale deed was executed in favour of Munwar Ali Abbasi before Sub-Registrar Larkana. He produced true copy of such sale deed at Ex.109-B. Such mutation entry was made in the revenue record vide entry No.254. He produced entry No.254 and entry No.230 at Ex.109-C and 109-D. The possession of the suit land was given to Munwar Ali Abbasi. He purchased the 29 ghuntas from S. No. 116 while 26 ghuntas from S. No.111. Survey No.111 is in their possession and 09 ghuntas from S. No. 116 was sold out to Market Committee by defendant No.1. Some part of the suit survey No.116 Wapda Colony is situated. About 15 to 16 ghuntas are in the possession of Hafiz Daleel. He is in illegal possession of the said area of suit land. Mukhtiarkar Larkana conducted the demarcation of suit land. DW-2 Gul Muhammad Brohi has deposed that he know the defendant No.1. He purchased the land situated in dehWaleed bout 22 years back. Such sale deed was executed in his favour and land was purchased from Nisar Ali for Rs.400,000/-. He is one of the Marginal witness of the sale deed. The possession of the suit land was given to the defendant No.1.
I have heard the arguments and gone through the record. it appears that plaintiff has claimed in his plaint that he is owner of 0-33 ghuntas from S. No.116 so also 0-21 ghunta from S. No.111 situated in dehWaleedTapoDodai Taluka Larkana through Entry No.84 dated 18.2.1992 in revenue record. He further claimed that the defendants No.1 to 4 about five months back forcibly and illegally occupied 21 ghuntas from S. No. 111 and defendants No.5 and 6 have also occupied 23 ghuntas from S. No.116. Defendants No.14 and 15 have also occupied the suit land. Plaintiff has constructed the Katcha and Pacca House over area of 10 ghuntas of S. No. 116 and same has been rented out to various persons, hence, the defendants have no right or title to occupy the suit land. During the evidence, he repeated the same facts and produced true copy of entry No.84, dated 18.2.1992, which reveals that the sit property was gifted to plaintiff on the basis of statements. It is pertinent to point out here that the plaintiff has not produced the said statements before this Court in order to prove mutation gift. It is well settled law that where a party in possession of best piece of evidence which has been withheld without any reason, therefore, the presumption would be that if said evidence has been produced, same would have been unfavorable to the said party. Reliance is placed on 2014 YLR page 652. More importantly, the said entry further reveals that Altaf Hussain and others are previous owners of suit property and they gifted the property to plaintiff. It is surprising to note here that the plaintiff has not produced any title document in order to show that the said Donors were real owners of suit property. Since the plaintiff has claimed to be owner of suit property through gift, hence he is duty bound to prove that the donors were real owners of suit property. Once could competently transfer a title but he could not transfer what he did not have. Transferee could not claim to acquired a better title then he (one) transferor was capable of what one could get directly, he could not got the said indirectly. The plaintiff had claiming declaration of title on the basis of gift mutation entry from donors namely Altaf Hussain and other which was the basic route but the plaintiff failed to prove their title over suit property by not producing title document in favour of Altaf Hussain and others. The foundation route of the subject matter was not being sought to be protective by the plaintiff where the foundation was found defective. The whole super structure raised should collapse. Additionally, plaintiff has produced true copy of Entry No.84 to prove his claim. It is pertinent to point out here that the true copy of document is one of the secondary evidence. The contents of document only be proved through secondary evidence, if the condition mentioned under article 76 of Qanoon-e-Shahadat were available on the record. In the present case plaintiff failed to fulfill the condition enumerated in Article 76 of Qanoon-e-Shahadat or produce true copy of Mutation Gift through officials.
In view of the above discussion, the answer of this issue No.1 is decided in negative.
Issues No.2, 4 and 6.
Since the issues No.2, 5 and 6 are interconnected with each other, therefore, I would like to discuss them together. The burden to prove these issues lie upon the shoulder of plaintiff. The attorney of plaintiff has stated that they are in the possession of 10 ghuntas from S. No.116 and 08 ghuntas are in the possession of Market Committee, 15 ghunta are in the possession of Wapda Authority while the 21 ghunta from S. No.111 are in the possession of defendants No.1 to 4. Defendants NO.5 and 6 have also occupied 08 ghuntas from S. No.111. All the defendants are in illegal possession while the attorney of defendant No.1 has stated that the suit property is belonging to Munwar Ali Abbasi who purchased the said area from one Nisar Ali Shaikh for consideration of Rs.400,000/- dated 09.3.1993. He produced sale deed dated 12.10.2010. He also deposed that attorney of plaintiff is in illegal possession over the property. There is word against the word regarding the possession over the suit property. It is pertinent to point out here that the plaintiff has not disclosed the boundaries of suit land in his evidence as well as in plaint which has been occupied by the defendants as he claimed. More importantly, the controversy between the parties could be resolved through site inspection or demarcation of property which never done during trial as plaintiff didn’t move such application before this Court. The plaintiff has not discloed the boundaries of suit property in his evidence to identify the property. The controversy between the parties could be resolved by conducting site inspection and same could not be done because plaintiff has not moved such application.
In view of above discussion, these issues No.2, 4 to 6 are decided in negative.
Issues No.3, 7 & 8.
Since the issues No.3, 7 and 8 are interconnected with each other, therefore, I would like to discuss them together. Since the plaintiff has failed to prove his ownership over the suit property. Hence the answer of these issues No.3, 7 and 8 are decided in redundant.
Issue No.9.
In view of the above discussion held in issue No.1 to 8, the plaintiff is not entitled for any relief as prayed. Hence the answer of this issue No.8 is decided in negative.
Issue No.10.
The burden to prove this issue lies upon the shoulder of plaintiff. I have heard the arguments and gone through the record, it appears that the property is situated within the territorial jurisdiction of this Court and main parties are also residing within the territorial jurisdiction of this Court. This Court also got fiscal jurisdiction too. The suit of the plaintiff isnot barred by any law.Hence the answer of this issue No.10 is decided in affirmative.
Issue No.11.
Keeping in view my discussion on the issues No.1 to 9, the plaintiff is not entitled for relief as prayed, hence the suit of the plaintiff is hereby dismissed with no order as to cost Let the decree be prepared accordingly.”
2. The appeal against the impugned judgment was also dismissed by the Court of learned 2nd Additional District Judge, Larkana, vide judgment dated 11th March, 2020 and the pertinent observations are reproduced herein below:
“On careful scrutiny of the record, it appears that the appellant filed a suit for declaration, possession and permanent injunction before learned trial Court but at this forum, learned counsel for the appellant filed a separate statement wherein he did not press the prayer clause “C” to the extent of possession, which infact the appellant had to move at stage of trial but filing of such statement at this forum has itself weakened the claim of the appellant on the pretext that most of the issues were framed by learned trial Court on the issue of possession. Moreover, the appellant also failed to produce true copy of mutation of gift deed through officials, and thus failed to comply with the provision of Article 76 of the Qanun-e-Shahadat Order. In addition to this, the appellant has failed to prove his ownership over the suit property. In that situation, the learned trial Court has rightly framed and decided the issues with proper observations.
The over-all discussion involved a conclusion that the learned trial Court has rightly dismissed the suit by way of judgment an decree as discussed above, which even otherwise do not call for any interference by this Court. Resultantly, the instant appeal merits on consideration, which is hereby dismissed accordingly. Annexed application is also stands disposed of. This order as to no costs. Let such decree be prepared accordingly.”
3. The learned counsel was confronted with the findings of the trial Court as particularized supra, and asked as to whether they were commensurate with the facts and he replied in the affirmative. Learned counsel was then asked to demonstrate any infirmity in the appellate Order meriting interference under Section 100 of the Code of Civil Procedure, however, he remained unable to do so.
4. It is settled law that a second appeal may only lie if a decision is demonstrated to be contrary to the law;a decision having been failed to determine some material issues; and / or a substantial error in the procedure is pointed out. It is categorically observed that none of the aforesaid ingredients have been identified by the learned counsel.
5. In such regard it is also important to advert to section 101 of CPC, which provides that no appeal shall lie except on the grounds mentioned in the Section 100 of CPC.While this Court is cognizant of Order 41 Rule 31 CPC,yet at this stage no case has been set forthwith to entertain the present appeal in view of the reasoning stated above. As a consequence hereof this appeal is hereby dismissed in limine.
JUDGE