IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Civil Revision No. 06 of 1998

Applicant(s): Allah Warayo and others

Through Mr. Vinod Kumar Jessrani,

Advocate.

Respondents 1-C to 1-E, 4-A

to 4-E and 5-A to 5-D. Through Mr. Abdul Rehman Bhutto,

Advocate.

Respondents No. 6-A to 6-E,

7-A to 7-D and 8. Nemo

Respondents 9 and 10. Through Mr. Munawar Ali Abbasi, Assistant Advocate General, Sindh

Date of hearing: 09-03-2023

O R D E R

Adnan Iqbal Chaudhry J.-This revision application is against judgment/ decree dated 29.10.1997 passed by the II-Additional District Judge, Larkana in Civil Appeal No.19/1991, whereby judgment/decree dated 17.1.1991 passed by III-Senior Civil Judge, Larkana dismissing the suit of the Respondents 1 to 6, was set-aside, and the suit was decreed as prayed.

2. F.C.Suit No.118/1980 (new FC Suit No.128/1983) was filed by the Respondents 1 to 6 [Plaintiffs] for a declaration of their title to the suit land against the Applicants [Defendants 1 to 3] and the Respondents 7 and 8 [Defendants 4 and 5], also praying that order dated 03-06-1979 passed by the Deputy Commissioneron the basis of which revenue entries were made for said Defendants may be declared unlawful.

3. The suit land was described in the amended plaint as follows:

(i) The Plaintiff No.1 claimed to be owner of Survey Nos. 245/2 (1-28 acres), 331 (50 paisa share viz. 1-23 acres), 334 (50 paisa share viz. 3-15 ½ acres),and 338 (1- 24 acres), 252/3 (0-28 ½ acres) in deh Mad Bahoo, Taluka Dokri. He pleaded that he had inherited a part of said land from his father Khuro Khan, and had purchased the other part from his sister being the share she had inherited from their father.

(ii) The Plaintiffs 2 to 6 claimed to be owners in the same deh of Survey No.252/6 (0-35 acres) and Survey Nos. 252/3 (50 paisa share viz. 0-28 ½ acres), having inherited the same from Tagio.

(iii) All Plaintiffs also claimed to be joint owners in the same deh of Survey No.360/2 (0-9 acres).

4. The suit was filed alleging that the Plaintiffs haddiscovered that the record of rights had been falsified to show that the Defendants 1 to 5 were co-owners of the suit land to the extent of a 50 paisa share therein by way of inheritance emanating from Mst. Rasti, who was shown to have inherited the same from her brother QadirBux on 3-6-1926; where after, on 17.9.1979 the land was mutated to Jurial as legal heir of Rasti, and onwards to his legal heirs up-to the Defendants 1 to 5 on the basis of an order dated 03.06.1979 passed by the Deputy Commissioner which was without notice to the Plaintiffs. It was averred that Rasti was neither the sister of Qadir Bux, nor was Qadir Bux co-owner of the suit land.

5. Written statement was filed by the Defendants 1 to 3 contending thatalong with the Plaintiffs the Defendants 1 to 5 were co-owners of the suit land by way of inheritance emanating from their predecessor Rasti, and that the share of the parties in the suit land stood as follows:-

(i) that in Survey Nos. 331, 334, 338 the share inherited by the Plaintiff No.1 and his sister was only 28 ½ paisa; the share of the Plaintiffs 2 to 6 was only 1 ½ paisa; the share of the Defendants 1 to 5 was 11 paisa; whereas the remaining portion was owned by others;

(ii) that in Survey No. 252/3 and Survey No. 252/6, the share of the Plaintiff No.1 was only 15 paisa; share of the Plaintiffs 2 to 6 was only 5 paisa; share of the Defendants 1 to 5 was 45 paisa; whereas the remaining portion was owned by others including the widows of Qadir Bux;

(iii) that Survey No.245/2 was owned exclusively by the Defendants No. 1 to 5;

(iv) that in Survey No.360/2, the share of the Plaintiff No.1 was only 15 paisa; the share of the Defendants 1 to 5 was 45 paisa; whereas the remaining portion was owned by others.

Therefore, the defense was that except for Survey No.245/2, which was the exclusive property of the Defendants 1 to 5, rest of the suit land was the joint property of the Plaintiffs and the Defendants 1 to 5.

6. Following issues were settled by the trial court:

‘’1. Whether plaintiffs are owner of suit land shown in paras 1, 2 & 4 of the plaint respectively?

2. Whether the impugned entries in the record of rights mutated in the name of late Mst. Rasti and late Muhammad Jurial or Defendants No. 1 to 5 are illegal, void and inoperative?

3. Whether the impugned order dated 3.6.1979 passed by D.C. is illegal, void and inoperative?

4. Whether the plaintiffs are in exclusive possession and enjoyment of their respective land in suit and the right, title or interest of any of the defendants 1 to 5 in the suit land is extinguished by adverse possession pf the plaintiffs as alleged in the plaint ?

5. Whether the cause of action has arisen to the plaintiffs?

6. Whether the suit is in proper form?

7. What should the decree be?’’

As narrated first above, the suit was dismissed by the trial court, but decreed by the appellate court.

7. Heard learned counsel and perused the record.

8. In the plaint, it was pleaded that the Plaintiff No.1 was full owner of the Survey Nos. 245/2, 338 and 252/3; and that the Plaintiffs 2 to 6 were full owners of Survey No.252/6. The Plaintiff No.1 did not claim to be full owner of Survey Nos. 331 and 334, and the Plaintiffs 2 to 6 did not claim to be full owners of Survey Nos. 252/3. However, the plaint did not disclose who the other co-owners were of the latter Survey numbers. On examination-in-chief, the stance of the Plaintiff No.1 changed. He then stated that he was full owner only of Survey No. 245/2 only, whereas in Survey Nos. 331, 334, 252/3 and 338 he was owner of 50 paisa share. Again, there was no disclosure of who the other co-owners were apart from the Plaintiffs 2 to 6.

9. Be that as it may, the case set-up by the Plaintiffs was that the Defendants 1 to 5 could lay no claim to the suit land through Mst. Rasti as the sister of Qadir Bux because neither was Rasti the sister of Qadir Bux, nor did Qadir Bux have any concern with the suit land. In other words, the dispute was not with regards to the percentage of shares held in the various Survey numbers comprising the suit land, but as to the status of Qadir Bux and Rasti in relation to the suit land.

10. While the trial court had thoroughly discussed the entire evidence on each issue, the appellate court decided the appeal solely on issue No.3, viz. whether the order dated 03-06-1979 passed by the Deputy Commissioner to correct the record of rights in favor of Rasti’s legal heirs, was unlawful or not. The learned appellate court failed to appreciate that the central issue in the suit was whether Qadir Bux had any interest in the suit land, and if so whether Rasti succeeded him as his sister. The subsequent mutations in favor of Rasti’s legal heirs up-till the Defendants 1 to 5 was only a consequential issue.

11. The judgment of the trial court records that the Plaintiff No.1 himself had produced two registered sale deeds of the year 1915 as Exhibits 174 and 175, which showed that part of the suit land had been purchased jointly by Qadir Bux and Khuro, the latter being the father of the Plaintiff No.1. Learned counsel for the Respondents/Plaintiffs did not controvert that piece of evidence. Therefore, the contention of the Plaintiffs that Qadir Bux had no nexus with the suit land was proved to be false.

12. The witness of the Defendants 1 to 5 had produced revenue record as Exhibit 205 to show that Qadir Bux was survived by two widows, a sister namely Rasti, and five nephews, two of whom were Khuro and Tagio, the predecessors of the Plaintiffs.This piece of evidence too was not controverted by learned counsel for the Respondents/Plaintiffs. Therefore, it was also established that part of the land left behind by Qadir Bux had devolved on Rasti, the predecessor of the Defendants 1 to 5. In fact, it appeared that for the greater part of the suit land if not all, the Plaintiffs themselves derived title through Qadir Bux.

13. As noted by the trial court, the revenue record produced as Exhibit 172 reflected that in the year 1926 Rasti was co-owner of 50 paisa share in the entire suit land alongside Khuro as co-owner of a certain share. Again this piece of evidence was not controverted by learned counsel for the Respondents/Plaintiffs. Though the Plaintiffs had averred that the suit land had been derived after a private partition between the co-owners, there was no evidence to that effect. By virtue of section 52 of the Sindh Land Revenue Act, 1967 read with Article 100 of the Qanoon-e-Shahadat Order, 1984, there was a presumption of correctness in the long-standing revenue record in favor of Rasti, and it was for the Plaintiffs to rebut such presumption by positive evidence in which they failed.

14. As regards the subsequent mutation in favor of the legal heirs of Rasti in the year 1979 by orders of the Deputy Commissioner, that was also adverted to by the trial court; essentially that after the death of Rasti, her khata had been erroneously transferred to Khuro, and upon a complaint made by Rasti’s grand-daughter (Defendant No.2) the Deputy Commissioner had rectified that mistake by order dated 03-06-1979. The trial court held that such order was passed in open kutchery which had constituted sufficient notice to the Plaintiffs who never turned up to contest.

15. Thus, the findings of the trial court for dismissing the suit were based on a thorough appraisal of the evidence. On the other hand, the appellate court did not even advert to any of that evidence, rather decreed the suit solely on the ground that the Deputy Commissioner had no power to order correction in the revenue record of old entries which power lay with the civil court. The learned appellate court failed to appreciate that the judgment impugned before him was that of a civil court, and that in any case, the challenge to the order of the Deputy Commissioner had lost all force when it was stood proved that Rasti was a co-owner of the suit land.

16. For the foregoing reasons, the judgment/decree dated 29.10.1997 passed by the II-Additional District Judge, Larkana in Civil Appeal No.19/1991 is set-aside, and the judgment/decree dated 17.1.1991 passed by the III-Senior Civil Judge, Larkana dismissing the suit is restored. Revision application stands allowed accordingly.

J U D G E

Signed on:17.03.2023

Announced by and on:

S.Ashfaq/-