IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA
Civil Rev. Appln. 88 of 2021 : Muhammad Nawaz @ Lakhi
v. Ashok Kumar & others.
For the Applicant : Mr. Ashiq Illahi Sundrani
Advocate
Date of hearing : 21.02.2022
Date of announcement : 21.02.2022
ORDER
Agha Faisal, J. (1) Deferred. (2) Granted; subject to all just exceptions. (3) Briefly stated, the applicant has filed suit for declaration, permanent injunction, specific performance of contract, mandatory injunction and cancellation against the defendants/respondents, which was dismissed by the court of the learned Senior Civil Judge, Kashmore. The appeal there against was also dismissed, hence this civil revision application. It is considered appropriate to reproduce the operative findings of the learned trial court herein below:
"In this matter it is duty of the plaintiff to prove the authenticity and genuineness of such alleged sale agreement on the basis of alleged Iqrar Nama No. 525 dated: 12-03-2003 in respect of the suit property and he is also bound to produce two competent witnesses to support his version, but he failed to produce such two competent witnesses to prove such alleged sale agreements as required under the law. It also appears from the record that there is no date or time of receiving the sale consideration amount is disclosed by the plaintiff and there is no such documentary evidence of such sale agreement or other evidence of receipt of such payments made to the defendants, if any. The record also reveals that plaintiff in such alleged sale agreement has not disclosed any condition for execution of register sale deed.
Admittedly, the plaintiff has not filed any title document from which it could be deduced that private defendant No.01 is only exclusive owner of the suit property. It also appears from the record that said defendant is not exclusive owner of the suit property, irrespective some other co-sharers or legal heirs in the joint property of their late Shewal Dass viz; suit property. It is also matter of record that the plaintiff has claimed that he had entered into sale agreement with defendant No.01 only, but remaining legal heirs of late Shewal Dass have not sold out their respective shares to the plaintiff. The record also reveals that the plaintiff also failed to examine the stamp vender/notary public who attested or issued the such alleged stamp paper of sale agreement and alleged sale agreement is written by unlicensed person. It also reveals from the record that no such copies of the CNICs of the sellers or purchasers and witnesses are attached with the alleged sale agreement, so alleged sale agreement is incapable of defining with reasonable certainty the specified portion of the property as subject matter of the sale, thus it is not specifically enforceable, therefore, it would be disadvantage of the other co-sharers or legal heirs and it would cause serious prejudice to their rights, neither it is possible nor it would be in consonance with the principal of equity."
It is also considered appropriate to reproduce the operative findings of the learned appellate court herein below:
16/- Keeping in view the arguments advanced by the Advocate for both parties and perusal of record available in the R & Ps, reveals that Appellant/plaintiff averred in the plaint that suit land was earlier leased out on the Harap basis to his ancestors and subsequently the suit land was allotted to the affectees of Tarbela Dam and father of Plaintiff/Appellant approached the revenue forum for the grant of such land to him and cancelation of grant of land to the Tarbela Dam effectees and father of appellant/Plaintiff contested such matter at revenue forum up to year 1981 but such land was not granted/allotted to the father of appellant/plaintiff. The appellant/plaintiff has not submitted copy of order which was passed on the applications of Khamiso Khan at revenue forum.
It is also averred in the plaint that Shewal Dass, father of Defendants/Respondents purchased suit land from the affectees of Tarbela Dam and later on suit land was mutated in the names of Respondents No:1 to 5. It is contended by the Advocate for Appellant/Plaintiff that Shewal Dass during his life time sold out suit land to the Appellant/Plaintiff through oral agreement and received entire sale consideration amount and after death of Shewal Dass, his son Ashok Kumar executed Iqrarnama bearing No:525 dated 12.03.2003 which is in continuation of earlier oral agreement executed by deceased Shewal Dass, therefore, respondents/Defendants No1 to 5 are legally bond to execute said Iqrarnama. In this context, I have perused the pleadings as well as evidence of Plaintiff/Appellant Muhammad Nawaz, it is not mentioned elsewhere that on what date, month and year and on what rate and in whose presence, at which place Shewal Dass executed oral agreement with Appellant/Plaintiff Muhammad Nawaz. Even said legal requirement is not mentioned in the iqrar nama No:525 dated 12.03.2003. It is matter of record that Plaintiff/Appellant has not examined witness of the alleged oral agreement at trial. It is also deposed by the Appellant/Plaintiff that a private faisla was held before Sardar Balakh Sher Mazari and after private faisla, Appellant/Plaintiff paid sale consideration amount to Shewal Dass. But in the matter in hand, Appellant/Plaintiff has not examined Sardar Balakh Sher Mazari or other persons in whose presence, alleged faisla was held. Non examination of such material witness makes such oral transaction in between Appellant/Plaintiff and Shewal Dass became highly doubtful.
So far the Iqrar Nama No:525 dated 12.03.2003 is concerned at trial the Appellant/Plaintiff has not examined attesting witness Muhammad Moossa s/o Abdul Lateef as well author of the said iqrar nama and notary public who has attested Iqrar Nama. It is contended by the Advocate for Respondents /Defendants that at the time of execution of alleged Iqrar nama bearing No;525 dated 12.03.2003, said Ashok Kuamr was not lawful owner of the suit land. He has further contended that as per Revenue Record, said land was mutated in the names of Ashok Kumar, Kishor Kumar, Deewan Chand, Shirimati Aneela and Shirmati Padma in the year 2009 and Ashok Kumar is not sole owner of the suit land and nor he was attorney of the rest of the owners. This fact is admitted from the documents produced by the Mukhtiarkar Kashmore namely Meer Ahmed examined at Exh;51.
For the sake of arguments, alleged iqrar nama No:525 dated 12.03.2003 is genuine one, then only Ashok Kumar was competent to sold out land which was mutated later on his name in the year 2009 and he was not authorized or attorney of the rest of Defendants/Respondents No:2 to 5. In view of the above discussions, it is established that the Plaintiff/Appellant has failed to prove the alleged oral agreement to sale which was allegedly executed by Shewal Dass and later on alleged faisla was held before Sardar Balagh Sher Khan Mazari as well as alleged Iqrar nama No:525 dated 12.03.2003.
So far the rest prayer of Plaintiff/Appellant are concerned that he is in legal possession of the suit and private defendants are not executing Khata in his favour is concerned; Plaintiff/Appellant has failed to establish the transaction of sale in his favour therefore, Defendants No:1 to 5 are not liable to transfer khata in favour of Appellant/plaintiff and it is proved that possession of the Appellant/plaintiff is not lawful and he is in illegal possession of the suit land.
So far the prayers of cancellation of Revenue Entry executed in favour of Defendant No;12 is concerned, private defendants No:1 to 5 being lawful owners of the land, sold out suit land to the Defendant No:12 and the Appellant/Plaintiff has no any legal character to challenge such entry. According to the prayer of Plaintiff/Appellant, entry No:83 dated 22.05.2019 was mutated in favour of Defendant No:12 during pendency of Civil Suit No:122/2018 between the same parties. The question is arises here that entry No:83 dated 22.05.2019 was executed during pendency of F.C.S No:122/2018, then why the said question was not raised in that suit and the prayer for the cancellation of entry No:83 was not made before Revenue forum for its cancellation but after lapse of one year, said prayer is made in the instant suit which is at not right stage and forum.
In view of above discussion in my humble view the impugned Judgment and Decree of the trial Court does not require any interference by this Court, therefore, Point No.01 is answered accordingly."
2. Learned counsel submits that the below courts have not appreciated the evidence in its proper perceptive and it is incumbent upon this court to either submit the matter to arbitration or exercise inherent powers, even in the absence of the prayer, right or wrong being claimed by the applicant.
3. Heard and perused. A suit for specific performance in any event seeks relief discretionary in nature even if a case is prima facie made out. In the present circumstances it is apparent that no case was set forth for consideration of relief. The plea for reference to arbitration appears rather facetious in the manifest absence of any agreement to such effect and in any event the dearth of evidence could not be transcended by recourse to revisionary jurisdiction.
4. The original judgment as well as judgment in appeal appear to have considered the record and the law and no infirmity in respect thereof has been identified to this Court. It is settled law that in the presence of concurrent findings, coupled with preponderance of claim supported by evidence, a revisional court ought not to interfere even if another view was possible. Reappraisal of evidence was even otherwise undesirable in revisional proceedings[1].
5. This Court has considered the contentions of the applicants and has noted the inability to cite a single ground based upon which the jurisdiction of this Court could be exercised under section 115 of Code of Civil Procedure. There is no suggestion that the impugned judgments are either an exercise without jurisdiction or a failure to exercise jurisdiction or an act in exercise of jurisdiction illegally or with any material irregularity. It is trite law[2] that where the fora of subordinate jurisdiction had exercised its discretion in one way and that discretion had been judicially exercised on sound principles the supervisory forum would not interfere with that discretion, unless same was contrary to law or usage having the force of law. It is the considered view of this court that no manifest illegality has been identified in the judgments impugned and further that no defect has been pointed out in so far as the exercise of jurisdiction is concerned of the subordinate fora.
6. It is the considered view of this court that the applicant has remained unable to demonstrate any infirmity with the impugned judgments, meriting interference in revision under Section 115 C.P.C, therefore, this revision is hereby dismissed in limine.
JUDGE