ORDER SHEET
THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Civil Rev. Appln No.S-05 of 2025
1. For orders on office objection “A”.
2. For orders on M.A No.4/2025 (E/A)
3. For hearing of main case.
21-02-2025
Mr. Ghulam Muhiuddin Durrani, advocate for the applicant
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Khalid Hussain Shahani, J.- The applicant, has revoked the Revisional Jurisdiction against the concurrent findings of the courts below, whereby F.C suit No.23/2021 and Civil Appeal No.253/2024 filed by the applicant have been dismissed by the learned 02nd Senior Civil Judge and 07th Additional Sessions Judge, Larkana respectively.
2. The applicant filed suit for declaration, possession, injunction, and mesne profits against the private respondents on assertion that his father contracted two marriages, having seven children including applicant from first wife and five children, including respondents 01 and 02 from second wife. His father owned and possessed an agricultural land measuring (16-11) acres, out of which 50% land was sold out to respondents 01 and 02 through registered sale deed dated 04-11-2013. The remaining (02-13) acres land out of S. No.71, (01-33) out of S. No.70 and (3-39) out of S. No.68, was given to applicant through a will dated 30-01-2017. It was averred that private respondents had illegally occupied his land being his brothers.
3. In wake of service upon the respondents, the respondents No.1 and 2 filed their written statement, denying the averments of the plaint and prayed for dismissal of the suit. On the pleadings of the parties, the trial court framed issues and after full-fledged trial dismissed the suit. Same was the fate of appeal as status supra.
4. Heard and perused the material.
5. The claim of applicant hinges upon a will/agreement dated 30.01.2017, alleged to be executed by Kamaluddin, the father of applicant in his favour. However, during trial, neither such document has been produced by the applicant, nor any of his witnesses has deposed a single word in this respect. Surprisingly, on specific query, the applicant in cross examination replied the will was false/not genuine. Per pleadings, the alleged will was executed on 30-01-2017; however, in evidence, the applicant deposed his father, Kamaluddin died on 14.02.2016. Such fact is also pleaded by the private respondents. If Kamaluddin died on such date, the question of executing will/agreement in favour of applicant on 30-01-2017 has made the claim of applicant based on false assertions.
6. Not only this, but in evidence all together different assertions have been made, contrary to the pleadings. The relevant portion is reproduced hereunder:
“My father has been died in the year 2016 and left behind 03 sons namely 01.Ghulam Murtaza 02.Anwar Kamal and 03.Zulfiqar Ali/plaintiff and four daughters namely 01.Mst. Zubeda Khatoon 02.Mst. Zehra 03.Husina and 04.Ameeran from first wife and from second wife two sons namely 01.Nazeer Ahmed and 02.Niaz Hussain/Defendant No.01 & 02 and three daughters namely 01.Mst. Nazeeran 02.Mst. Zahida and 03.Mst. Abida. Aforesaid suit property since death of my father in possession of my step brothers Nazeer Ahmed and Niaz Hussain defendants No.01 & 02 respectively, some portions were also sold out by them, contrary to the division as per Muhammad-Law though aforesaid suit property is liable to be distributed among all legal heirs of my father as per prescribed share”.
7. The rule of secundum allegatta et probates, not only excludes the element of surprise, but also precludes the party from proving what has not been alleged or pleaded. Hence, any such evidence has to be ignored, and no relief can be granted on the facts that were not pleaded. This principle upholds the fairness and transparency of the legal pleadings by ensuring that both parties are fully aware of each other’s claims and defences from the outset.
8. The Supreme Court in cases of Government of West Pakistan (Now Punjab) through Collector Bahawalpur V. Hail Muhammad (PLD 1976 S.C 469), Messers Chaudry Brothers Ltd Sialkot v. Jaranwala (1968 SCMR 804), Binyamin and 3 others v. Chaudry Hakim Ali & another (1996 SCMR 336) an Major (Rtd) Barkat Ali & others v. Qaim Din & others (2006 SCMR 562), held that no party can be allowed to lead evidence on a part which has not been specifically pleaded nor can any evidence be looked into which is outside the scope of pleadings. In the case of Muhammad Nawaz V. Member Board of Revenue (2014 SCMR 914), it is held, any evidence that does not align with the pleadings has no legal value and must be excluded from consideration.
9. In the light of dictum laid down by the Hon’ble Apex Court and observing that in the present case, the applicant has prima facie failed to prove will/agreement if any executed by his father in his favour. He introduced new facts, contrary to the pleadings in his evidence, which is not permissible under the law. The judgments and decrees passed by the courts below are based on sound reasons; hence, warrant no interference. Accordingly revision application is therefore, dismissed in limine along pending application.
JUDGE
Abdul Salam/P.A