Judgment Sheet

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Civil Revision No. S – 33 of 2001

 

Applicant:                 Kadir Bakhsh (since deceased) through his legal heir Mst. Haneefa, through

Mr. Kalandar Bakhsh Phulpoto, Advocate.

 

Respondents:         Muhammad Sajjan and others, through

Mr. Sarfraz A. Akhund, Advocate.

 

Date of hearing:      16-08-2021

 

Date of decision:    27-08-2021

 

J U D G M E N T

Muhammad Junaid Ghaffar, J. -    Through this Civil Revision Application, filed under section 115 of the Civil Procedure Code, the Applicant has impugned judgment dated 30-01-2001 passed by the IInd Additional District Judge, Khairpur in Civil Appeal No. 60 of 2000, whereby the judgment dated 22-02-2000 passed in F.C. Suit No. 02 of 1995 by the 1st Senior Civil Judge, Khairpur has been set aside and the Suit of the Respondents / Plaintiffs has been decreed.

2.         Learned Counsel for the Applicant submits that the Respondents filed a Suit for declaration, possession and permanent injunction along with mesne profits and sought judgment and decree from the Trial Court to this effect, and after evidence, the Suit of the Respondents was dismissed. However, in Appeal, without appreciating the evidence on record, the Appellate Court has set aside the same by decreeing the Suit; that the evidence of the officials including the Tapedar has been misread by the Appellate Court, whereas, the Respondents had failed to bring on record any documentary evidence; that they had only relied on a mutation entry which was a forged entry without any substance or supporting material; that the Applicant had no notice of recording such entry by the concerned Mukhtiarkar; that the entire exercise has been carried out by the Mukhtiarkar in violation of Section 42 of the Sindh Land Revenue Act, 1967; that the Respondents, on the one hand, have asserted their claim on the basis of a mere mutation entry, and on the other, also sought cancellation of the Applicant’s entry and even obtained a favourable order, which was then set aside by the Appellate Authority; hence, they have, at the same time, made an attempt to blow hot and cold; that in the Plaint, it was stated that the land was transferred and/or sold by the Applicant to the Respondents pursuant to some bradari faisla, but neither the said decision was placed on record; nor any evidence was led to support the same; that the Applicant was and is in possession of the Suit property; that the Applicant had also mortgaged Suit property with Agricultural Development Bank of Pakistan, hence, the Respondents have no case and the order passed by the Appellate Authority is liable to be set aside. In support, he has relied upon Sadaruddin (since deceased) through LRs v. Sultan Khan (since deceased) through LRs and others (2021 SCMR 642), Muhammad Rafique and another v. Syed Warand Ali Shah and others (2021 SCMR 1068), Ahmed and others v. Nazir Ahmed and others (2019 CLC 1841), Bashiran Bibi v. Zaib un Nisa and others (2018 YLR 2574), Muhammad Asif v. Tanveer Iqbal and 2 two others (2021 YLR 324) and Pakistan Refinery Ltd., Karachi v. Barrett Hodgson Pakistan (Pvt.) Ltd. and others (2019 SCMR 1726).

3.         On the other hand, Respondents’ Counsel has relied upon Section 52 of the Sindh Land Revenue Act, 1967, and submits that a presumption of correctness is always attached to an entry in the revenue record; that it was an oral sale which was duly recorded before the concerned Mukhtiarkar; that the Applicant has never challenged that said entry; hence, no further case is made out; that insofar as cancellation of Applicant’s entry and its subsequent Appeal is concerned, perhaps that was not a proper advice to the Respondents; however, according to him that is not an obstruction as to their claim of ownership. He has prayed for dismissal of this Revision Application.

4.         I have heard both the learned Counsel and perused the record.

5.         The Respondents filed Suit for declaration, possession and permanent injunction with mesne profits and sought the following prayers:

(a)                 By a decree of the court, the Defendant be directed to hand over the possession of the land (0.75 paisa share in Lands of Deh Babar & 0-3 paisa share of land of Deh Lohrani) to the plaintiffs, as specifically mentioned in paragraph No.1 of the plaint and also appropriated privately between them.

(b)                 By another decree of the court, the plaintiffs be declared to be the owners of the land in suit to the extent of share described in para I of the plaint and sale deed Annexure C is not binding on Plaintiffs.

(c)                 By a further decree, the defendant be directed to pay a sum of Rs.200/- or any other amount finally determined as mesne profits for the un-authorized use and enjoyment of the land in question.

(d)                 A permanent Injunction be issued against the Defendant and all others claiming through him from interfering directly or indirectly with the rights, title and possession of the plaintiffs over the land in suit.

(e)                Cost of suit and any other relief additionally deemed fit and consistent in the circumstances of the case.

6.         After exchange of pleadings, the Trial Court settled the following issues:

1.                   Whether the father of the plaintiff No.2 and 3 as well as plaintiff No.1 and Khan Muhammad father of defendants were co-sharers in the suit property shown in para No.1 of the plaint.

2.                   Whether the transfer of the disputed land situated in deh Baber by late Khan Muhammad in favour of defendant being his son through registered sale deed dated 16.4.1958 is managed one?

3.                   Whether as a result of brotheri faisla, 0-75 paisa share in the S.No. were sold out to Ahmed through statement of sale?

4.                   Whether the defendant transferred 0-75 paisa out of the disputed land in favour of Ahmed in consideration of Rs.30,000/- on 15.5.1986 through oral statement before the Mukhtiarkar kotdiji?

5.                   Whether the plaintiffs were put in possession of the disputed land and subsequently the defendant dispossessed the plaintiffs from the disputed land by force?

6.                   Whether, Ahmed subsequently sold away the S.Nos. in favour of plaintiffs jointly on 10.8.1986 and they continue having their control ever since acquiring ownership rights?

7.                   Whether the defendant has illegally succeeded in forcibly occupying the S.Nos., a month earlier after filing of the suit?

8.                   Whether the suit is not maintainable under law?

9.                   Whether the suit is barred under law?

10.               Whether the oral statements dated 15.5.1986 and 10.8.86 are forged and fabricated?

11.               Whether the plaintiffs have cause of action to file the present suit?

12.               Whether the suit is frivolous and vexatious and defendant is entitled to special costs?

13.               Whether the plaintiffs are entitled to relief claimed?

14.              What should the decree be?

7.         The parties led their evidence, and thereafter, the learned Trial Court came to the conclusion that the Respondents have failed to make out a case and accordingly the Suit was dismissed. The said judgment and decree of the Trial Court was then impugned in Appeal and the Appellate Court through impugned judgment has been pleased to set aside the order of the learned Trial Court and has decreed the Suit.

8.         On perusal of the record, it appears that the precise case of the Respondents as set up in the Plaint was to the effect that the land in question actually was jointly owned by the father of the Applicant and their deceased father which, according to them, had been transferred by the father of the Applicant in sons his name by managing a forged sale deed and their share was usurped. It is their further case that subsequently the elders entered into a settlement and a bradari faisla was reached, pursuant to which 0-75 paisa share in the Suit property was sold out to Ahmed (purportedly father of Respondent / Plaintiff No.2) in consideration of Rs.30,000/- on 15‑05-1986 and allegedly an oral statement was recorded before the concerned Mukhtiarkar, and thereafter, Ahmed had subsequently sold the Suit property to the Plaintiffs / Respondents jointly on 10-08-1986 against a sale consideration of Rs.50,000/-. It is their case that they remained owners to the extent of 75% share, whereas, the Applicant / Defendant had 25% share. It has been further averred in the plaint that a month before filing of the Suit, they had been unlawfully dispossessed by the Applicant. Though a number of issues were framed by the learned trial Court; however, the crux of the matter is in respect of such purported transfer and sale of the land firstly in favour of Ahmed and then to the Respondents / Plaintiffs. In support, the Respondents had relied upon the mutation entries recorded purportedly in the revenue records first in favour of Ahmed and then in favour of the Respondent / Plaintiffs. For that purpose, evidence of the concerned Tapedar (PW-2: Exh-25-Muhammad Nawaz Solangi) is relevant who had come before the Court as a Plaintiffs witness, and interestingly, the Trial Court and the Appellate Court have appreciated the same evidence in somewhat different manner. The evidence of the Tapedar is ‘Exhibit 25’ and reads as under:

Exam: chief to Mr. Zaheer Hassan Adv: for plaintiff 

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            I am posted as Tapeder as of deh Luhrani Taluka Kotdiji having received summons of this Court. I have come for evidence. Deh Luhrani and deh Baber are situated in different Tapa. Deh Luhrani is situated in Tapa Ali Muhammad Macchi while Deh Baber is situated in Tapa Nasir Fakir. The Taluka is same. According to our record the defendant Kadir Bux sold out 3 paisas share from survey number 219, 215/1 and 215/2 situated in deh Luhraní to Ahmed, who later on sold the same to the present three plaintiffs. Our record also shows that defendant Kadir Bux sold 75 paisas share from the survey numbers 605, 606, 846, 847 and 889 total admeasuring 12‑01 acres situated in deh Baber taluka Kotdiji to Ahmed, who later-on sold the same to the three plaintiffs of the suit. After mutations in favour of the plaintiffs no change was affected in our record. The plaintiffs are in possession of the land situated in deh Luhrani regarding the land situated in deh Baber I have no knowledge whether the plaintiffs are in possession of the same or not. The plaintiffs have been paying land revenue for their share in the land.

XXXX to Mr. Qalander Bux Phulpoto Adv: for defendants.

--------------------

            Two years back I was posted at the present post. It is correct to suggest that I was not posted in deh Luhrani and Baber when the entry No.89 was made, regarding mutations of the land in favour of the plaintiffs. It is correct to suggest that at the entry there is not mentioned regarding mutation fee which is deposited in favour of the Government for mutation. It is correct to suggest that there is no mention at the entry that the Mukhtiarkar or the Tapedar had visited the land in dispute for making enquiry holding common assembly. It is correct to suggest that I had no knowledge that there was litigation between the plaintiff and defendant before the Revenue Courts. I cannot say whether the Ex: 17 and 18 which are Jaran entry bearing No.89 and 91 are false and fabricated entries. It is incorrect to suggest that the defendant Kadir Bux is in possession of the land situated in deh Luhrani and that the defendant is still share holder of his respective share in the lands situated in deh Luhrani.

9.         The learned Trial Court while dealing with Issue No.3 and considering this evidence has come to the following conclusion:

                        The Tapedar of deh Luharni namely Muhammad Nawaz examined by the plaintiffs at Exh: 25 deposed in his cross examination that he was posted 2 years back at the present posting. He was not Tapedar of deh, wherein the land in dispute is situated, when the entry No.89 regarding mutations of the disputed land in favour of the plaintiffs was made on the basis of alleged statement of the defendant. He admitted that there is no entry in the record that mutation fee as per law, was deposited in favour of the government. He also admitted that there is no mentioning in the record that the Mukhtiarkar or the Tapeder of deh had visited the lands and had made enquiries, holding common assembly, prior to mutation entries in favour of the plaintiffs. The burden to prove this issue lies on the shoulders of the plaintiffs in which they have failed. Neither the Tapedar of the deh, nor the Mukhtiarkar who were posted for the deh when the mutations were made in favour of the plaintiffs are examined. It has also not brought on record that they are not alive or their attendance in the court for evidence cannot be secured due to some reasons. Moreover the perusal of orders passed by the Assistant Commissioner Kotdiji and Deputy Commissioner Khairpur shows that the plaintiffs had only asserted that the defendant Kadir Bakhsh had got the land mutated in his favour fraudulently and there was no mentioning of any private faisla and selling of 75 paisa share of the land by the defendant in favour of Ahmed for consideration of Rs.30,000/-. Accordingly this issue is answered in negative.

10.       At the same time, the Appellate Court while dealing with the same piece of evidence has come to the following conclusion:

            Tapedar Muhammad Nawaz Solongi seems to be independent and star witness has deposed as under:-

            “According to our record the defendant Qadir Bakhsh sold out 3 paisas share from S.No. 219, 215/1 and 215/2 situated in deh Luhrani to Ahmed, who later on sold the same to the present three plaintiffs. Our record also shows that defendant Qadir Bakhsh sold 75 paisas share from the S.No. 605, 606, 846, 847 and 889 total admeasuring 12-01 acres situated in deh Baber taluka Kotdiji to Ahmed, who later on sold the same to the three plaintiffs of the suit. After mutations in favour of plaintiffs no change was affected in our record. The plaintiffs are in possession of the land situated in deh Luhrani regarding the land situated in deh Baber. I have no knowledge whether the plaintiffs are in possession of the same or not. The plaintiffs have been paying land revenue for their share”

            Above deposition of the Tapedar, clearly shows that appellants are still khatedars of the suit land and has remained in possession of the same and have been paying the land revenue for their share of the suit land, whereas respondent has not produced any record or material in his evidence showing that he dispossessed the appellants by legal means, which shows that respondent forcibly dispossessed the appellants from the suit land.

11.       When the evidence of the concerned Tapedar is read in juxtaposition with the findings of the learned Trial Court and the learned Appellate Court, it appears that both the Courts have taken a different view while appreciating the same set of evidence. It needs to be looked into firstly that what the witness has deposed in his examination in chief and then how he has responded to the cross-examination by the respective Counsel of the parties. The learned Appellate Court seems to have misdirected itself inasmuch as it has only considered the examination in chief and has excluded the cross examination of the said witness. This does not seem to an appropriate way of appreciating the evidence which has to be examined as a whole and keeping the entire facts and circumstances of a particular case in consideration. In his cross-examination, he admits that “It is correct to suggest that at the entry there is no mention regarding mutation fee which is deposited in favour of the Government for mutation.” To another question, he further states that “It is correct to suggest that there is no mention at the entry that the Mukhtiarkar or the Tapedar had visited the land in question for making enquiry holding common assembly.” He has also admitted that “two years back I was posted at the present post” and “it is correct to suggest that I was not posted in DehLuhrani and Baber when the entry No:89 was made, regarding mutations of the land in favor of the Plaintiffs”. This is the entire piece of evidence which has been led by the Respondents to claim ownership of the land in question. It is a matter of record and so also admitted before this Court that neither any bradari faisla as relied upon by the Respondents has been placed on record; nor any other sort of documentary evidence was placed before the Court. It is only the mutation entries which have been relied upon. While confronted, the learned Counsel for Respondents has read out the oral statement purportedly recorded before the concerned Mukhtiarkar and he candidly conceded that the witnesses to this statement were never summoned before the Court. It is also a matter of record that the person examined was only posted two years back and had only supported the case of Respondents on the basis of available record before him. He neither had any first-hand knowledge about the purported sale transaction between the Applicant and the father of Plaintiffs; nor could have supported the purported sale transaction in question. It is also a matter of record that the Respondents never produced or summoned the concerned Mukhtiarkar before whom purportedly the oral sale was recorded and on the basis of which he had purportedly recorded the entries. Therefore, in absence of any other cogent material or documentary evidence and so also absence of the witnesses to support the purported sale of the land in question, Respondents had failed to make out a case and the learned Trial Court was fully justified in dismissing their Suit. Moreover, it is settled proposition of law that any entry in the revenue record by itself is no proof of ownership of any property. It has to be supported by the chain of documents on the basis of which it had been recorded with the Revenue Authorities. It is also settled law that Entry in Revenue Records does not confer any title. Here in this matter the entire case has been setup on the basis of that entry and the evidence of the Revenue Officials. In the case of Khalid Aziz v. Manzoor Hussain (2016 YLR Note 136) a learned Single Judge of this Court had the occasion to dilate upon the authenticity and validity of evidence of Revenue Officials brought on record by a contesting party in support of his / her case. The learned Judge has deprecated the practice of producing the Revenue officials in evidence without proper records and giving hearsay evidence in favor of one, and against the other. The relevant finding is as under;

10……………….In law, he being beneficiary of alleged sale is required to prove actual transaction of the property and its possession. Record however speaks otherwise as there is factually no evidence in this regard. The evidence of some revenue officers i.e. Mukhtiarkar and Tapedar is of no help to conclude determinatively in favour of such transactions, for they have simply produced the relevant record and have spoken out what is recorded therein. When the very record (which creates rights over the property in favour of some persons in disregard to the rights of ostensible owners of the property) is alleged to have been tampered with, its production to support a claim is of no consequences. The claim endorsed in such record has to be first proved to lend degree of reliability to it. The respondents have not examined either the revenue officers who allegedly attested such mutation in their favour. And notably there is nothing on record to explain such failure on their part. Even no plea has been taken by them that these witnesses are either not available or their whereabouts are not known. In these circumstances the presumption in terms of Article 129 of Qanun-e-Shahadat Order, 1984 would be against them………(Emphasis supplied)

12.                   Similarly in the case of Abdul Majeed v. Muhammad Subhan (1999 SCMR 1245) has been pleased to hold as follows;

10. It is very amazing to note that the Sale Mutation No. 133 attested on 21‑3‑1964 in respect of the disputed property, which was allegedly purchased by the registered sale‑deed dated 10‑1‑1962, is neither based on this deed nor there is any mention of the deed. It is also very unique feature of this case that neither the original sale‑deed was produced in Court nor permission was obtained for production of secondary evidence nor the vendee/defendant No.2 appeared in Court nor any of the marginal witnesses was examined, still it was boldly asserted that the execution of the deed has been proved. The same is the position of Sale Mutation No. 133 as its genuineness could not be proved as rightly concluded by the High Court. The finding of the High Court is that Abdul Majid respondent No.l was Patwari of the area where the Suit land is situated and he collusively manoeuvred the attestation of the impugned mutations fraudulently and fabricated the fake registered sale‑deed as he and his wife were the ultimate beneficiaries of all these transactions. This finding relates to factual appreciation of the controversy which need not be gone into as no substantial defect in reading oral or documentary evidence could be pointed out.

11. The learned counsel further argued that the registered sale‑deed, mutation and Revenue Record are admissible in evidence and as the plea of the appellant finds support from all these documents, therefore, the High Court was not correct in discarding them. He referred to several cases to support his view­point. This is a sweeping and very wide argument and it is not so that everything which finds mention in the registered deed or Revenue Record must invariably be accepted without proof of their execution, genuineness and authenticity. It is axiomatic principle of law that a registered deed by itself, without proof of the execution and the genuineness of the transaction covered by it, would not confer any right. Similarly, a mutation although acted upon in Revenue Record, would not by its own force be sufficient to prove the genuineness of the transaction to which it purports unless the genuineness of the transaction is proved. There is no cavil with the proposition that these documents being part of public record are admissible in evidence but they by their own force would not prove the genuineness and execution of that to which they relate unless the transaction covered by them is substantiated from independent and reliable source. Admissibility is to be distinguished from proof required by law for determining the execution and genuineness of document. The plea of res judicata and estoppel were also raised against the plaintiff on account of, the earlier litigation. But we find that they have been satisfactorily resolved by the High Court as it has been said that the documents relied upon by the defendants were fake and fraudulent and, thus, could not form basis for declaring the present Suit as barred by res judicata or for applying the principle of estoppel against the plaintiff, This, appeal is found without merit and is, accordingly, dismissed with costs

13.       It is now a fact that at times the records are not properly maintained or produced and even then contrary evidence is given which badly affects the proper adjudication of cases before the Court. In this case though evidence has been led through the concerned Tapedar; but as noted earlier, the said piece of evidence is the only evidence and cannot be relied upon in the given fact. This Court fails to understand as to how such piece of evidence has been appreciated in favor of the respondents without support of any cogent documents. There is a series of judgments wherein it has been held that a party that relies upon a mutation entry is bound to revert to the original transaction which resulted into the entry or attestation of such mutations. It has been further held that mutation not being a title deed, is merely an evidence of some original transaction between the parties that had been struck somewhere prior to entry of mutation[1]. A title cannot be created by entries in the mutation register nor such entries are prima facie proof of ownership of the record holder. The title of the record holder has to be proved before a Civil Court. The entry in the revenue record by itself does not prove that the record holder is the owner of the land[2].

14.       It is also a matter of record that prior to filing of the Suit, the Respondents approached the Assistant Commissioner, Kotdiji, seeking cancellation of the entry No.42 recorded in the revenue records in favour of the Applicants. The said application was allowed vide order dated 19.10.1992, without notice to the Applicants; however, in appeal the said order was set-aside vide order dated 19.10.1995. In these proceedings, it was never pleaded that any bradari faisla had arrived at between the parties and the land was; or had been transferred and was sold as pleaded in the Plaint. Neither these facts were averred in the plaint; nor the Plaint was amended. This reflects a twofold story of the Respondents. Learned Counsel for the Respondents was confronted as to how this stance could be justified; and to this, he candidly admitted that perhaps the Respondents were not properly advised by their Counsel at the relevant time. This by itself shows that the Respondents have kept on changing their stance and for some strange reasons were not consistent in their pleadings before the Court as compared to their stance before the Revenue Authorities. Moreover, this Court has not been able to comprehend as to how they got enagaged in parallel proceedings, i.e. filing of the Suit as well as approaching Revenue Authorities and that too on entirely different plea(s) for seeking cancellation of the entry of the Applicant.

15.       In view of hereinabove facts and circumstances of this case and the material placed before this Court, it appears that the learned Appellate Court was misdirected in setting aside the judgment of the Trial Court by decreeing the Suit, as apparently, the judgment of the Trial Court was based on proper appreciation of the evidence and ought to have been sustained. Accordingly, the impugned judgment dated 30-01-2001 of the Appellate Court passed in Appeal No. 60 of 2000 is hereby set aside and the judgment 22-02-2000 of the Trial Court passed in F.C. Suit No. 02 of 1995 is restored.

            16.       This Revision Application stands allowed in the above terms.

 

Dated: 27.8.2021

 

J U D G E

Abdul Basit



[1] Muhammad Akram v Altaf Ahmed (PLD 2003 SC 688)

[2] Ahmad Yar v Hasan Ali Shah (1984 CLC 3413)