IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Civil Revision No.S-42 of
2012
(Ali Bux & others vs.Nazeeran & others)
Date of hearing:
16.05.2022
Mr. Parvez Ahmed Kubar Advocate for the applicant.
Mr. Qalandar Bux Phulpoto Advocatefor private respondents
Mr. Noor Hassan Malik, Assistant Advocate General
JUDGMENT
ARSHAD HUSSAIN KHAN, J.- Through this Civil Revision, the Applicant
has impugned the judgment and decree dated 08-12-2011 and 12.12.2011
respectively, passed by IInd Additional District Judge, Khairpur,in Civil
Appeal No.19 of 2011, who reversed the findings and set-aside the judgment and
Decree dated 23-02-2011 and 25.02.2011 respectively passed by 1st Senior
Civil Judge, Khairpur, whereby F.C. Suit No.184 of 2010 (Old Suit No.09 of 2006) filed by the present applicant was
allowed.
2. Briefly, the facts of the case are that
the applicants/ plaintiffs had filed F.C.
Suit No.184 of 2010, against the present respondents for declaration,
cancellation of documents, possession, mesne profits and permanent injunction,
stating therein that the agricultural land, bearing Survey Nos.194/2(2-30) and
195/1(2-20), admeasuring 6-10 acres belongs to applicant/ plaintiff No.1-Ali
Bux, Survey Nos.205/4-17, 206/3-03, 207/4-09, 1130/4-17, admeasuring 16-06
acres belongs to plaintiff No.2-Koural and Survey Nos.195/2(2-20), 1131/2-28
and 1132/2-26, admeasuring 7-34 acres belongs to plaintiff No.3-Hamz Ali, all
situated in Deh Pir Mashaikh, Taluka Sobhodero, District Khairpur [‘suit
land’]. Initially, the suit land along with other land was leased out by
the plaintiffs to respondent/defendant No.6-Mian Mir Muhammad through lease
agreement for a period from 1988 to 1994 and possession thereof was handed over
to the said defendant. Subsequently, the said lease was extended up to December 2005. It has also been stated that the
suit land was also mortgaged with Agricultural Development Bank of Pakistan
(ZTBL) Gambat now Sobhodero, which was subsequently redeemed in 2004 by the
plaintiffs. It has been stated that during the period from 1989 to 1993
defendant No.6 in connivance with revenue officials got tampered with the
record and on the basis of such forged record, defendant No.6 and defendants Nos.1
to 5 sold the suit land alongwith other land (total area 313-9 and half acres) to
defendants Nos.3,5, and 7 to 10, through registered sale-deed No.154 dated
06.02.2002, registered in the office of Sub-Registrar Gambat, behind the back
and without the knowledge of the plaintiffs, who came to know about the said sale
transaction in the year, 2006 when the defendants refused to vacate the
possession of the suitland and disclosed about the purported sale-deed. It had
also come into the knowledge of the applicants/plaintiffs that the suit land is
alleged to have been sold by the plaintiffs to defendants No.5 and 6 by way of
registered sale deeds and statements of the sale before Revenue authorities. It
has been stated that the sale-deed dates 14.09.1985, 25.7.1991, 27.2.1989 and
mutation entries regarding sale of suit land, vide entries Nos. 88 dated 16.12.1985, 29 and 30 dated
24.05.1990 are void, illegal and nullity in the eye of law. The plaintiffs
having no other remedy filed the above suit for redressal of their grievances.
Upon
notice of the case, written statements on behalf of respondents/defendants No.
1 to 10 were filed wherein the allegations levelled in the plaint were denied
and the suit was sought to be dismissed. After a full dressed trial, learned
trial court decreed the suit of the Applicant / plaintiff, however, the said
judgment and decree wereset aside in the appeal, hence the applicant/plaintiff
approached this Court against conflicting findings of the courts below.
3. Learned counsel for the
Applicant has argued that the appellate court has erred in law and facts and
have failed to appreciate the evidence on the record; that the suit land is
owned by the plaintiffs/applicants; that the suit land was leased out to the defendant No.6 twice for
the period from 1988 to 1994 and from 1994 to 2005 and the said land was
mortgaged with ADBP Gambat on 18.04.1984, which was got redeemed by the
plaintiffs/applicants and was not sold out to the defendants nor executed
alleged registered sale-deeds in favour of the defendants and the registered
sale-deeds are false and fabricated documents and manipulated by the
defendants/respondents, which is evident from the fact that the
plaintiff/applicant No.3, who is shown to have been one of the executants of
the registered sale-deeds was 04 years old on the date of alleged execution of
registered sale-deed, by showing his false age as 20 years in the registered
sale-deed; that oral statement of plaintiff Hamz Ali in respect of sale of suit
land was allegedly recorded on 24.05.1990, when he was 17 years old and the
entry in respect of the said sale has not been produced; that the entry No.182
shows that seller and purchaser of the land is one and the same person namely;
Ghulam Mujtaba (hereinabove called as respondent No.5) hence, such entry has
not been produced and NIC of Koural is different; that the registered
sale-deeds and statements of sale on the face ofit appears tobe forged and
fabricated documents and are liable to be cancelled;that the learned trial court
has rightly decreed the suit whereas the judgment passed by appellate court is not
based on the evidence as such the same may be set-aside while maintaining the
judgment and decree passed by learned trial court; that in view of the evidence
on the record the applicants’ case merits consideration; hence, this Revision
Application may be allowed; In support of his arguments,he has relied upon the
case of Muhammad Bakhsh v Ellahi Bakhsh
(2003 SCMR 286), Muhammad Akhtar v. Mst. Manna and 3 others (2001
SCMR 1700), Ahmed Yar Qadri, Advocate and others v. Muhammad Anwar Joya (2000 SCMR 1202), Gul Rehman and others v.
Muhammad Ismail (2003 YLR 95), Allah Ditto and others v. Haji Umer and
others (2001 YLR 1075) andMst. Hameeda Begum and others v. Khadim
Hussain and others (2001 MLD 427).
4. Conversely, learned
counsel for the private respondents No. 1 to 10, while supporting the impugned
judgment has contended that the lower appellate court has rightly dismissed the
suit of the applicants/plaintiffs considering all the aspects of the case
including the evidence produced by the parties, therefore, the impugned
judgment of learned lower appellate court does not suffer from any illegality as
there are valid and cogent reasons for believing the same and it does not call
for any interference of this court. It is argued that the plaintiffs/applicants
are not owners of the suit land as they had sold out the suit land to the
defendants through registered sale-deeds; that the suit land was not leased out
by the plaintiffs to the defendants at any time and the lease agreements
produced by the applicants/plaintiffs are forged documents; that there are
major contradictions and many discrepancies in between the evidence of
plaintiffs and their witnesses. It is also argued that the respondents are in
legal possession of the suit land being real owners under registered instrument
and applicant has no cause of action to file the suit before learned trial court,
which was time barred.It is also contended that there is no illegality and
irregularity in the impugned judgment and decree passed by learned lower
appellate court. Lastly,he has prayed for dismissal of instant revision
application. In support of his arguments, he has placed reliance on the cases
of Muhammad Asghar v. Mst. Tahira parveen and others(2021 CLC 1537), Aameen
and another v. The State(2020 MLD 1218), Muhammad Qasim Tareen v. Abdul
Karim Baryalai and 3 others (PLD 2021 Bal 116), Sajjad Ahmad Khan v.
Muhammad Saleem Alvi(2021 SCMR 415), Manzoor Ahmed and 4 others v.
Mehrban and 5 others (2002 SCMR 1391), Mahmood ul Hassan v. Munir Ahmad
and 3 others(2018 MLD 771) and Mst. Zakia Hussain and another v. Syed
Farooq Hussain (PLD 2020 SC 401).
5. Learned AAG for the official respondents adopted the arguments of
learned counsel for respondents Nos. 1 to 10.
6. I have heard the arguments
of learned counsel for the parties and also perused the material available on the
record as well as the case law cited at the Bar.
7. Before
proceeding further in the matter, it
may be observed that when the execution of the document is denied as being
forged or procured through deceit about the very nature of the document, then
the person aggrieved has the option to institute a suit, either for
cancellation of that instrument under section 39 of the Act of 1877, or for
declaration of his right not to be affected by that document under section 42
of the Act of 1877; There is no cavil to the proposition that the onus to prove
the claim is ordinarily on the person moving the court to seek his relief, as he
is the one who is to fail if no evidence at all is given on either side. However,
when the contesting party takes up a defence and desires the court to pronounce
judgment as to his legal right dependent on the existence of facts which he
asserts, then the onus to prove those facts lies on him.It is after the parties
have produced their respective evidence that, the court is to consider and
evaluate the evidence, in civil cases, on the touchstone of preponderance of
evidence. It is on whose side the scale of evidence tilts would emerge as the
victor, and be awarded the positive verdict. It is also settled that the
registration of a document is essentially a notice to the public regarding its
existence and validity, and having been registered by the Sub-Registrar in the
performance of his official act there is a presumption of truth attached
thereto under the law. Nevertheless, the moment the said document is challenged
by the alleged executant or his successor-in-interest, that presumption stands
rebutted, and the beneficiary thereof has to prove not only the execution
thereof, but also the original transaction embodied therein. Reliance in this
regard can be placed on the case of Khalid Hussain and others v. Nazir Ahmed
and others [2021 SCMR 1986]
8. In the instant matter, precisely,
the case of the applicants/plaintiffs is that the suit land is the property of
the applicants and they never entered into any sale transaction with the
private defendants and further the sale deeds and other documents/statements on
the basis of which the private defendants claim ownership of the property are
forged, fabricated and manipulated, as such the same being illegal and void are
not sustainable in law, thus liable to be cancelled. Insofar as the possession of
the suitland is concerned the same was given to the defendants on the basis of
lease agreement executed between the parties for certain period, however, the
defendants taking undue advantage of the said possession got prepared forged
and fabricated documents and claim ownership of the suit land. Further the
judgment passed by the learned trial court was based on the evidence available
on the record and the suit filed by the applicants /plaintiffs was rightly decreed.
However, the learned lower appellate court while reversing the finding of the
trial court have misread and mis-appreciated the evidence available on the
record; hence committed material irregularity.
9. On the divergent pleadings of the parties, learned trial
court framed the following issues:-
1.
Whether the registered sale deeds dated 06.02.2002,
dated 14.09.1985 and 27.02.1989 are forged, illegal, void and nullity in the
eye of law and executed by the alleged executants?
2.
Whether at the time of alleged sale deeds, the suit
land was mortgaged with ADBP Gambat and Sobhodero and was redeemed in the year
2004 by the plaintiffs?
3.
Whether the sale statement vide entry No. 88, dated
16.12.1985, entry No. 29 and 30 dated 24.05.1990 are forged, illegal, void and
nullity in the eye of law?
4.
Whether the plaintiffs are lawful owners of the
suit land till today?
5.
Whether the sale deeds shown in Issue No.1 and sale
statements mentioned in Issue No.3 are liable to be cancelled?
6.
Whether plaintiffs have cause of action to file the
suit?
7.
Whether the defendants are in illegal possession of
the suit land and are liable to pay mesne profits to plaintiffs?
8.
Whether the suit of the plaintiff is barred by any
law?
9.
Whether the suit of the plaintiffs is time barred?
10.
Whether the plaintiffs are entitled for the relief
claimed?
11.
What should the decree be?”
10. On
the above issues, the applicants/plaintiffs examined plaintiff No.3 Hamz Ali
alias Dost Muhammad at Ex.47, who produced power of attorney at Exh.47/A, true
copies of Dakhal Kharij Register, Entry No.28 at Exh.47/B, Entry No.234 of Deh
Form VII-B at Exh. 47/C, Entry No.57 of Dakhal Kharij Register at Ex.47/D,
Entry No.235 at Ex.47/E, letter dated 22.3.2004 of Manager DBL at Exh.47/F,
School Leaving Certificate at Exh.47/G, Entry No.52 at Exh.47/H, notice dated
1.6.2005 of ADBP at Exh.47/I, notice dated 15.6.2005 at Exh.47/J, notice dated
30.6.2005 at Exh.47/K, release letter dated 27.1.2006 at Exh.47/L, statement
dated 24.5.1991 of Koural at Exh.47/M, statement dated 24.9.1990 of Koural at
Exh.47/N, Original Pass Book No.482367 at Exh.47/O, and pass Book No.162943 at
Exh.47/P, copy of entry No.336 of Form VII-B dated 12.11.2008 at Exh.47/Q,
Entry No.314 dated 18.4.1983 of Form VII-B at Exh.47/R. The plaintiffs namely;
Bux Ali at Exh.69, Ghazi Khan at Exh.70, Abrar Hussain Manager ZTBL Sobhodero
at Exh.72, who produced letter at Exh.72/A, Rasool Bux Tapedar at Exh.73, who
produced Entry No.28 at Exh.73/A, Entry No.234 and 235 at Exh.73/B and C, Entry
No.57 at Exh.73/D, Statements of Koural at Exh.73/E & F, Entry No.446 at
Exh.73/G and Entry No.314 at Exh.73/H.
Record also shows that during the proceeding
before the trial court an application was filed by applicants/plaintiff for
producing photostat copy of the lease agreements dated 10.12.1988 and 1.11.1994
as secondary evidence, which application was dismissed by learned trial court,
vide its order 20.05.2010. The said order was challenged before the learned
Additional District Judge Gambat in Civil Revision No.03 of 2010, which was
allowed vide order dated 26.11.2010 and pursuant to the said order applicants/plaintiffs
produced lease agreements entered into between the parties on 10.12.1988 and on
1.11.1994 as Exh.47/S and Exh.47/Trespectively and the counsel for the defendants
also cross-examined the PW on the said documents.
11. On
the other hand, the private respondents/defendants examined defendant No.3
Abdul Nabi at Exh.91, who produced power of attorney at Exh.91/A, registered
sale-deed dated 11.10.1985 at Exh.91/B, registered sale-deed dated 11.2.1989 at Exh.91/C,
registered sale-deed dated 25.7.1991 at Exh.91/D, certified true copies of entry No.88 from Dakhal Kharij
registered at Exh.91/E, entry No.49 from Dakhal Kharij register at Exh.91/F,
entry No.59 from Deh Form VII at Exh.91/G, statement of Koural at Exh.91/H. The
defendants in support of their version have examined their witnesses namely,
Muhammad Panjal at Exh.92 and Mukhtiarkar Azhar Ali at Exh.98, who produced
Photostat copies of Entry No.88 in Dakhal Kharij Register at Exh.98/A, Entry
No.49 in Dakhal Kharij Register at Exh.98/B, Entry No.59 in Deh Form VII-B at
Exh.98/C and statement of Koural at Exh.98/D. Thereafter, learned counsel for
the defendants closed the side at Exh.95.
12. From perusal of the record,
it appears that entire controversy revolved around the registered sale deeds
[Exh. 91/B, 91/C and 91/D] which are sought to be cancelled by the
applicants/plaintiffs being fabricated and manipulated.Whereas the private
respondents/defendants on the basis of said documents claims ownership of the
suit land.Learned trail court while deciding the issues No.1 and 3, which arerelate
to the said documents has held as under:
“Issue Nos.1 and 3.…… This is the entire evidence led
by the parties on the above issue. The case of the plaintiffs is that they had
given the suit land on lease to the defendant No.6 from the year, 1988 to 2005,
through lease agreements and the registered sale deeds and the statements in
respect of sale of suit land are false and have been manipulated by the
defendants. The plaintiffs have taken plea that the suit land was already
mortgaged with ADBP in the year 1982-83. The plaintiff No.3 has produced
entries from the revenue record from Exhs.47/B to 47/E and 47/H, which show
that suit survey numbers were mortgaged with ADBP in the year 1982-83. Perusal
of Exh. 47/F shows that certificate of release of charge was issued by Manager
ADBP in respect of the suit land in the year 2004. Thus, from the above
documents available on record, it appears that the suit land was mortgaged with
the Bank till the year 2004. Perusal of Exh.47/Q shows that plaintiff Koural
has mortgaged the suit survey numbers 205, 206, 207 and 1130 along with other
survey numbers 169 and 170 in the surety proceedings in the Court of Honourable
Ist Additional Sessions Judge, Khairpur on 4.9.2009 also.
Reverting to the registered sale deeds, it need to
mention here that the original registered sale deeds have been produced by
attorney of the defendants from Exh.91/B to Exh.91/D. Perusal of all these
registered sale deeds shows that it is specifically mentioned in all the three
deeds that the land under sale is not mortgaged in any Bank. I have already
mentioned hereinabove that the plaintiffs have produced the documents, which clearly
show that the suit land was mortgaged in the year 1982-83. Registered sale-deed
Exh.91/B shows that plaintiffs Ali Bux and Koural have sold out survey numbers
194/1 and 194/2, total admeasuring 7-20 acres to defendant Mir Muhammad in the
sum of Rs.40,000/- only. The registered sale deed (Exh.91/B) consists of four
leaves (8 pages) but the signatures of executants are on its fifth page only
and the remaining pages do not contains signatures of the executants. It also
does not contain the NIC numbers of the attesting witnesses nor the ownership
documents of the executants and attesting witnesses are attached with it. The
signatures of the Sub-Registrar Gambat on Exh.91/B do not tally with each other
and apparently it appears that some other person has signed this document as
Sub-Registrar by copying the signature of Sub-Registrar Gambat. Further fraud
of the defendants is very clear from the date of signature of the scriber
namely Muhammad Ismail, who on 7th page of the sale deed (Exh.91/B)
mentioned the date of scribing of the registered sale deed with his signature
on 10.10.1985 but the document is shown to have been registered on 14.09.1985,
prior to even 26 days of its scribing by its author.
Again, from perusal of registered sale deed Exh.91/C,
it appears that plaintiff Hamz Ali has sold out S.No.195/2, admeasuring 2-20
acres to defendant Mir Muhammad in the sum of Rs.50,000/- and the said
registered sale deed is shown to have been registered on 26.2.1989, containing
the age of plaintiff Hamz Ali as 20 years. In view of registered sale deed
(Exh.91/C), if the age of plaintiff Hamz Ali is calculated, it appears that
according to Exh.91/C the plaintiff Hamz Ali
was born in the year 1969. Plaintiff Hamz Ali has produced his Primary
School Leaving Certificate at Exh.47/G, which shows his date of birth as
28.2.1985. There is no reason to disbelieve Exh.47/G, as it bears signatures of
Class Teacher, Head Master of the School and Supervisor Primary Education,
Taluka Sobhodero. The defendants have also not produced any other document in
respect of the age of plaintiff Hamz Ali in rebuttal to the document produced
by the plaintiff. According to School Leaving Certificate (Exh.47/G), plaintiff
Hamz Ali was only 4 years old on 26.2.1989, when the registered sale deed
(Exh.91/C) was said to have been executed and he was not competent to execute
the registered sale deed. It further appears from the said registered sale deed
that there is clear difference in between the signatures of the Sub-Registrar
on the Exh.91/C. It needs to mention here that all the signatures of
Sub-Registrar are dated 26.2.1989 except his one signature dated 27.2.1989,
without any reason of difference of dates in one and same document. Thus, it
appears from the Exh.91/C that the defendants have manipulated this document
fraudulently.
Coming to the third registered sale deed (Exh.91/D),
it needs to mention here that signatures of plaintiff Koural on Exh.91/D do not
tally each other so also is in the
case of signatures of Sub-Registrar Gambat, which also does not tally each
other. There is only one attesting witness shown to have attested the
registered sale deed Exh.91/D but his NIC number is not mentioned in it. The
name of scriber is also not mentioned on it.
Materially, as mentioned above the suit land was
already mortgaged with the Banks and such entries were maintained in the
revenue record, therefore, execution of registered sale deeds by mentioning
therein that the suit land was not mortgaged with any Bank and the sale of suit
land through statements without referring the mortgage was null and void.
Apart from the above facts, it needs to mention here
that the version of plaintiff No.1 in his examination in chief that the suit
land was already mortgaged prior to alleged sale and that they have not sold out the suit land
has not been specifically questioned in the cross examination. It is a settled
position of law that if some fact is deposed or stated in examination-in-chief,
which is not questioned in the cross examination, the presumption is that, the
said part of the evidence is deemed to have been accepted by the party against
whom that evidence has been given. Reliance in this regard may be placed from
the cases of Ismaluddin and others versus Ghulam Muhammad and others (PLD 2004
SC 633), Ghulam Rasool versus Muhammad Saleem and others (2002 CLC 1770), Mst.
Farooq Bibi versus Abdul Khalique and 26 others (1999 CLC 1358), Dr. Aziza and
5 others versus Muhammad Sarwar and another (1997 MLD 2013) and Noor Jehan
Begum’s cases reported as 1991 SCMR 2300). Thus, in view of the above referred
case law, I am of the humble opinion that the defendants have accepted the
above evidence of plaintiff No.1.
Therefore, in view of my above observations
and the case law referred hereinabove, I am of the humble opinion that the
registered sale deeds and the sale statements are forged illegal and nullity in
the eye of law. I, therefore, answer Issues Nos.1 and 3 in the affirmatives.”
Insofar
as Issue No.2 is concerned, learned trial court decided the said issue as
follows:
“Issue No.2.
The plaintiff No.3 has
deposed that the suit land was already mortgaged in the year 1982-83 with ADBP.
In support of his oral version, he has produced certain documents from
Exhs.47/B to 47/F and 47/H and Exhs.47/L, in respect of mortgage of the land
and its redemption. The oral version of the plaintiff No.3 has not been
shattered in the cross examination nor the authenticity of the above documents
is doubtful as P.W.4 Abrar Hussain Manager ADBP has deposed that the said
documents were issued from his Bank and bears his signatures and the signatures
of previous Manager of the Bank and they also contain seals of the Bank. I have
also observed in issue Nos. 1 and 3 that the plaintiff No.3 has produced
entries from the revenue record from Exhs.47/B to 47/E and 47/H, which show
that suit survey numbers were mortgaged with ADBP in the year 1982-83. It has
been further observed in the said issues that from perusal of Exh.47/F it
appears that certificate of release of charge was issued by Manager ADBP in
respect of the suit land in the year 2004. Therefore, in view of my above observations I am of
the opinion that the suit land was mortgaged in the ADBP Gambat and Sobhodero
and was redeemed in the year 2004 by the plaintiffs. The issue No.2 is answered
in the affirmative.”
[Emphasis supplied]
13. The learned lower appellate court on the
same set of evidence reversed the findings of the learned trial court. There is no cavil
to the proposition that in cases involving conflicting judgments and findings
of the learned lower courts, the judgment of first appellate court being the court
of re-appraisal of evidence, if it is based on evidence and logical reasons,
shall prevail. In the case of Madan Gopal and 4 others v. Maran Bepari and 3
others (PLD 1969 SC 617), it was held:-
‘If the finding of facts reached by the first Appellate Court is
at variance with that of the trial court, the former will ordinarily prevail,
although it would not possess the same value or sanctity as concurrent finding
by the lower Appellate Court will be immune from interference in second appeal
only if it is found to be substantiated by evidence on record and is supported
by logical reasoning, duly taking note of the reasons advanced by the first court
which have been disfavoured in the contrary finding. The finding being at
variance with that of the trial Judge, the two will naturally come in for comparison
for their comparative merits in the light of the facts of the case and the
reasons on which the two different findings have respectively proceeded.’
The Hon'ble Supreme
Court in the case of Karim Bakhsh
through L.Rs. and others v. Jind wadda Shah and others [2005 SCMR 1518], inter alia, has held that when findings
of two courts below were at variance, the High Court was justified in
appreciating the evidence to arrive at the conclusion as to which of the
decisions was in accord with the evidence on the record.
14. In order to examine
whether the impugned judgment dated 08.12.2011, passed by the lower appellate
court, is based on the evidence and logical reasons or not, the relevant
paragraphs of the said judgment are reproduced here:-
“After
hearing the learned counsel for the parties and perusal of record and
proceedings of the trial court it appears that the main controversy between the
parties is upon the ownership of the suit land, therefore, following issues are
framed for discussion:-
1.
Whether the suit land was transferred with possession to the
appellant by the respondents through registered sale deeds dated 06.02.2002,
14.09.1985, 25.7.1991 and 27.02.1989 and such mutation entries No. 88 dated
16.12.1985, 29 and 30 dated 24.05.1990 and entries No. 49 and 59 are entered in
the revenue record?
2.
Whether the judgment and decree dated 23.02.2011 and 25.05.2011
respectively passed by the trial court require any interference?
3. What
should the decree be?”
“Issues No:1 .……… I have carefully scrutinized the record and
proceedings of the trial Court and come to the conclusion that there are
registered documents in possession of the appellants/defendants in shape of
registered sale deeds and mutation entries in revenue record and against the
said register and original documents, there is only oral version from the
respondents/plaintiffs side which cannot be believed in presence of the
registered documents as it is held by Honourable Superior Courts in various
judgments that “the registered documents
has sanctity attached to it and stronger evidence is required to cast aspersion
on its genuineness” (Reliance is placed on 2007 SCMR 85 and 2010 SCMR 5).
Moreover, it is also held by the Honourable Supreme Court of Pakistan in the
case of Re-Shamshad versus Arif Ashraf Khan and others” reported in 2010 SCMR
473 that “Oral evidence cannot be given
preference over documentary evidence”.
In view of above discussion under the facts and
circumstances as well as by taking the guideline from the case law referred by
the learned advocate for the appellants I have come to the conclusion that the
suit land with possession was transferred to the appellants by the respondents
in consequences of the registered sale deed executed in favour of the appellants
by the respondents and such revenue record is available with the concerned
Revenue authority. Hence this issued replied accordingly.
Issue
No.2&3.
In view of my discussion on issue No.1 the impugned
Judgment and decree dated 23.2.2011 respectively passed by the learned Ist
Senior Civil Judge Khairpur is hereby set-aside and the above civil appeal is
allowed as prayed, with no order as to costs.”
15. From perusal of the above judgments, it clearly
transpires that the findings of the trial
court were in accord with evidence and based on sound reasonings. Whereas findings
of the fact rendered by the learned lower Appellate court in favour of the
respondents/defendants, are not based on proper appraisal of the evidence on the
record, and further no reasons were given in the impugned judgment by the lower
appellate court for disagreeing with the findings of the trial court. The
impugned judgment and decree are contrary to the law laid down by the Superior
Courts, and thus, suffer from illegality and jurisdictional defect, as such call
for interference, attracting the provisions of Section 115 of the Code of Civil
Procedure (Act V of 1908).
The case law relied
upon by defendants’ counsel being distinguishable from the facts of the present
case are not applicable.
16. In the given
circumstances, I allow this revision, set aside judgment and decree
dated 08-12-2011 and 12.12.2011 respectively passed by IInd Additional District
Judge, Khairpur, in Civil Appeal No.19 of 2011 and maintain the judgment
and Decree dated 23-02-2011 and 05.10.2011 respectively passed by 1st
Senior Civil Judge, Khairpur, whereby F.C. Suit No.184 of 2010 (Old Suit No.09
of 2006) filed by the present applicant was allowed.
JUDGE
Sukkur
Dated: 02.06.2022
Ihsan/*