ORDER SHEET

THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANO

Constitution Petition No. D-156 of 2024

(Islam Khalti &Ors  Vs. Manik Khan & Ors)

Date	Order with signature of Judge

Before:

Mr. Justice Muhammad Saleem Jessar,

Mr. Justice Nisar Ahmed Bhanbhro,

1. For order on office objection “A”.

2. For hearing of M.A No.536/2024 (S/A)

3. For hearing of main case.

Petitioners:                              Through Mr. Abdul Rehman Bhutto, advocate

Respondents No 1 to 4:          Through Mr. Ghulam Murtaza Tunio, advocate

Mr. Liaquat Ali Shar, Additional Advocate General,           

Date of hearing:                      16-04-2025

Date of order:                         23-04-2025

O R D E R

NISAR AHMED BHANBHRO,J.:- Through instant Petition, Petitioners seek indulgence of this Court to issue writ of certiorari against the order dated 21.09.2023 passed by the Court of  Learned Additional Sessions Judge I Kandhkot (the Revisional Court) in civil revision application No 23 of 2023 Re Islam Khalti and others Versus Manik and others, whereby the application under section 115 CPC of the Petitioners was dismissed and order dated 25.03.2023 passed by the Court of Learned Senior Civil Judge Kashmore (the Trial Court) on application under section 12(2) CPC was maintained.

2.         The facts of the petitioners’ case are that Respondents No.1 to 4 (Manik Khan and others) filed Suit No.222 of 2019 (Re. Manik Khan and others Vs. P.O Sindh and others) before the Trial Court, which was decreed as prayed vide judgment and decree dated 27.01.2021. Respondent No.14 (Muhammad Sharif) filed Civil Appeal No.31/2021 before the Court of learned District Judge, Kashmore @ Kandhkot, which was decided vide orders dated 16.08.2021, wherein impugned judgment and decree was set-aside and matter was remanded to the Trial Court for deciding afresh after impleading remaining necessary defendants/respondents. In compliance of directions contained in remand order, the Trial Court conducted de novo trial and decreed the suit vide judgment and decree dated 25.03.2022. Respondent No.14 again filed Civil Appeal No.33/2022 which was dismissed as withdrawn. Petitioners filed an application under Section 12(2) CPC before the Trial Court which was dismissed vide order dated 27.03.2023. Petitioners assailed order of the Trial Court through Civil Revision Application No.10/2023 under section 115 CPC which was allowed by the Revisional Court vide order dated 08.06.2023 and matter was remanded to the Trial Court for deciding it afresh on merits. Trial Court framed issues, recorded evidence of parties and dismissed application under section 12(2) CPC vide order dated 21.09.2023. Petitioners filed an application under Section 115 CPC before the Court of Learned District Judge, Kashmore @ Kandhkot, which was assigned to the Revisional Court for disposal in accordance with law. The Revisional Court after hearing the parties maintained the order of the Trial Court, dismissed revision application vide impugned order. Hence this Revision Application.

3.         Mr. Abdul Rehman Bhutto Learned counsel for the petitioners contended that the petitioners were owners of the landed property by way of grant from the Colonization Officer and such “A” Form was issued in their favour. Petitioners were in cultivating possession of land granted to them, they were not party in the proceedings before the Trial Court. The suit of respondents No.1 to 4 was decreed against respondents No.12 to 21, whereas executing Court dispossessed petitioners from their landed property without assigning any reason. He contended that the Trial Court and the Revisional Court failed to appraise evidence on record and dismissed applications in arbitrary manner. The impugned orders of Courts below were perverse, infirm, non-speaking and passed in a slipshod manner. He prayed for setting aside of the impugned orders.

4.         Mr. Ghulam Murtaza Tunio Learned Counsel for respondents No.1 to 4 opposed petition and asserted that petitioners were afforded opportunity of adducing evidence and presenting record to prove allegations of fraud and representation before the Trial Court but they failed to discharge burden, therefore, the Trial Court passed the well-reasoned orders, which were maintained by the Revisional Court; he contended that the suit property devolved upon Respondents No 1 to 4 as a right of inheritance and Petitioners were obstructing execution of decree without any rationale cause, he prayed for dismissal of this petition.

5.         Mr. Liaquat Ali Shar Learned Additional Advocate General Sindh opposed the petition and contended that the same is not maintainable under the law as the impugned orders did not suffer from any illegality as petitioners failed to prove their case.

6.         We have heard learned counsel for parties and perused material made available before us on record.

7.         The scanning of record and appraisal of evidence transpires that the Trial Court decided fate of application under Section 12(2) CPC after framing of issues and recording of evidence of parties. The Trial Court framed specific Issue No.2 regarding fraud and misrepresentation, the same being relevant is reproduced for the sake of reference.

“Whether the Judgment and Decree dated 25.03.2022 are obtained by fraud and misrepresentation? If so, what is their effect?”

8.         The petitioners examined Islam Khalti, Iqbal Ahmed, Mst.Azmat Khatoon and Noor Muhammad in support of their case. The Decree holder/respondent No.4 Lal Khan appeared in the witness box in support of their claim. The Trial Court dismissed the application rendering a finding of the fact that the Petitioners failed to prove their case. Trial Court in its findings on issue No.2 in judgment dated 21.09.2023 observed that Petitioners could not prove their case. Para No.19 of judgment being relevant is reproduced for the purpose of understanding;

“From the perusal of above evidence recorded by applicants and their witnesses, it is crystal clear that firstly the father of applicant No.5, maternal uncle of applicant No.2 & 3 and landlord of applicant No.1 namely Abid Ali Khan Domki has challenged the Judgment and Decree and when he remained unsuccessful then he forwarded his farmer, son, nephews and Azmat Khatoon. It is also admitted by Azmat Khatoon that she is wife of defendant No.21 Akbar Malik, who has faced the trial. The applicants No.2, 3 and 5 all by caste Domki, for which no any document has been furnished which may show their title, interest or right over the land of respondents/plaintiffs, but they being influential persons of locality do not want to allow the plaintiffs to get their own inherited property that is why they are repeatedly creating hurdles in the way of applicants/plaintiffs.”

9.         Findings of the Trial Court on issue No 2 make it crystal clear that Petitioners have got no right or interest in the suit property but by hook or crook they intend to obstruct execution of decree. Survey numbers of the lands disclosed in application under section 12 (2) were different to those of the suit property. Trial Court further observed that Petitioners in their depositions did not utter a single word of fraud and misrepresentation. Petitioners had no case to attract the ingredients of fraud and representation therefore application was dismissed.

10.       Revisional Court dismissed the revision application of Petitioners; for the reasons discussed in Para No.4 and 5 of the impugned order, which are reproduced for the sake of reference;                   

“4.       Perusal of evidence of applicant Islam shows that he has nowhere stated in his examination in chief that the subject judgment and decree were obtained by the decree holders by way of fraud and misrepresentation, neither the applicant has deposed in his evidence that the subject judgment and decree were passed by learned trial Court whereby his agricultural land has been declared to be the land of the private respondents nor he has stated in his evidence that through the subject judgment and decree, Court has ordered him to hand over his agricultural land to the private respondents.

5.         On the other hand the applicants in their application under Section 12(2) CPC, have shown different survey numbers than the survey numbers of the agricultural land which are shown in the subject judgment and decree, meaning thereby, the subject judgment and decree were passed by the learned trial Court in respect of different agricultural land than the land which has been claimed by the applicants in the application under Section 12(2) CPC to be his land.”

11.       We have gone through the contents of application under section 12 (2) CPC filed by Petitioners. Application of Petitioners does not disclose any survey number which was owned by the Petitioners and was shown by Respondents No 1 to 4 as the Suit Property. Respondents No 1 to 4 claimed ownership over the suit property by specifically mentioning survey numbers and block numbers of lands, devolved upon them by way of inheritance. Claim of Respondents No 1 to 4 found support from Revenue Record, whereas Petitioners failed to establish their right or title in the suit property, though afforded ample opportunity. Petitioners claimed that they were owners of land allotted to them by Colonization Officer in Deh Gandheer, whereas Respondents No.1 to 4 filed Suit for Declaration, Change of Fauti Khata, Possession, Permanent Injunction and Mense Profits. Land claimed by respondents No.1 to 4 was maintained in record of rights in the names of their ancestors. Petitioners were in knowledge of the proceedings of suit as husband of petitioner No 4 was defendant No 25 in the suit, who did not take any defense to show that the suit property belonged to them, despite of his being party in the suit he did not prefer any appeal againt judgment and decree.

12.       Trial Court after recording evidence of parties decreed the suit of respondents No.1 to 4 in terms set out in Para No.85 of the judgment. Executing Court satisfied the decree and put respondents No.1 to 4 into vacant possession of the suit property. It appears from record that Petitioners filed application under Section 47 CPC before Executing Court for investigation of their claim. Executing Court vide order dated 18.11.2022 decided objections of petitioners and after proper investigation of respective claims concluded that objectors/ Petitioners have no right or title in the suit property, therefore, they were not entitled for any relief and dismissed application under section 47 CPC. Petitioners preferred Civil Miscellaneous Appeal under Section 107 of CPC before the Court of Learned District Judge, Kashmore @ Kandhkot, which too was dismissed on merits vide order dated 17.04.2023. Petitioners then sprang into a separate litigation by filing application under Section 12(2) CPC, filing of successive applications by petitioners was a trickery to linger-on the execution proceedings, which act on their part cannot be appreciated at all. Case of Petitioners was examined thrice by the Trial Court once during trial, then on application under section 47 of CPC upon dismissal of such application with costs, again on application under section 12(2) CPC.

13.       Petitioners were required to specifically plead the aspect of fraud and misrepresentation in their pleadings, perusal of contents of application under section 12(2) CPC shows that there is a mere assertion of fraud without any substantial proof. Petitioners failed to prove fraud and misrepresentation through documentary and oral evidence. Mere assertion in pleadings would not suffice at all to prove ingredients of fraud and misrepresentation unless established through evidence in the light of assertions made through pleadings. As far as question of fraud is concerned, that too needs to be pleaded from the beginning with full particulars of fraud and then should be established through evidence.

14.       Rule 4 of order VI of the C.P.C. explicitly provides that in all cases in which the party relies, inter alia, on fraud, shall make a specific mention of the fraud in pleadings, particulars with dates and time if necessary. It is settled proposition of law that parties are required to plead all facts constituting a cause of action for grant of any relief. A party alleging a particular fact has to prove the same in terms of article 117 of the Qanun e Shahadat Order 1984. The ingredients of fraud have not only to be narrated and stated specifically but proven through solid documentary and oral evidence. The fraud must be specifically alleged and mere assertion through general allegations, through words however strong, would not be sufficient to prove fraud. In present case there was a assertion of general nature and no particulars for fraud and misrepresentation had been stated in the application. The concurrent findings had correctly appreciated that general allegation of fraud and misrepresentation was not sufficient. The burden of proof was not duly discharged by Petitioners so that onus could have shifted to the other side. Petitioners were provided full opportunity by way of recording of evidence and producing record to substantiate their assertion and to prove that judgment and decree passed by the Trial Court was result of fraud and misrepresentation, though petitioners examined four witnesses but none of them uttered even a single word that judgment and decree suffered from any misreading, non-reading of the evidence or the decree holder committed fraud and misrepresentation and obtained the decree.

15.       Honorable Supreme Court in the case of Mst. NAZEERAN and others Versus ALI BUX and others reported in 2024 S C M R 1271, has held as under:

“The case of the respondents rested on the ground of fraud and forgery allegedly committed by the appellants. Fraud vitiates all actions and no Court can uphold a right on fraud. It is very easy to assert fraud but it is difficult to prove the same. Reference in this regard may be made to the case of Ghulam Ghous v. Muhammad Yasin and another (2009 SCMR 70). No law provides a special quantum of evidence for the establishment of fraud. While it is true that the Courts should be careful in coming to a finding of fraud and should normally satisfy themselves that the finding is based on reliable evidence, it cannot be said that any special number of witnesses or any special nature of evidence is needed to establish fraud. It is for the Court which is to decide this question to be satisfied that the evidence adduced before it is such that it can believe it. Reference in this regard may be made to the case of Mst. Bhano and another v. Mian A.M. Saeed and others (1969 SCMR 299). Nonetheless, when a party alleges fraud it becomes its duty to prove the same and generalized allegations or for that matter, mere bald assertions without evidence cannot shift the initial burden.

That being so, we have no hesitation in our mind to hold that a mere denial by the executants of a registered sale deed is insufficient to shift the burden onto the beneficiary of the registered document. He (executant) must establish his assertion of fraud or forgery, etc. by producing some evidence other than his denial to shift the burden onto the beneficiary to prove the valid execution of the registered document. This legal principle reflects the recognition of the high evidentiary value attached to registered documents as compared to unregistered documents.

16.       This Court, while exercising its supervisory jurisdiction under article 199 of the Constitution cannot disturb concurrent findings of the two courts when the same were based on proper appreciation of evidence and conclusions were drawn on touchstone of the principle of preponderance of evidence and did not suffer from any material irregularity or misreading or non-reading of the evidence. Supervisory powers of this Court under article 199 of the Constitution are more or less corollary to

Section 115 of the C.P.C. for exercising such powers High Court has to first satisfy itself: (i) that the order of the subordinate court is within its jurisdiction, (ii) and that in exercising jurisdiction court has not acted illegally, or erroneously that may have affected the ultimate decision.  Scope of jurisdiction of the High Court under Article 199 of the Constitution was limited and used sparingly in relation to the concurrent findings of the courts. The exceptions to this rule are when findings are based on insufficient evidence, misreading of evidence, perverse, arbitrary and based on conjectures and presumptions. The interference by a High Court in such jurisdiction would not be justified on the ground that reappraisal of evidence might suggest another view of the matter unless there has been a gross misreading and non-reading of evidence.

17.       We do not find any force in the contentions of the Learned Counsel for Petitioners regarding misreading or non-reading of the evidence on record by the Courts below, it was mere assertion of Petitioners that the judgment and decree was result of fraud and misrepresentation, such assertion remained vague and generalized, Petitioners were burdened to prove fact of misrepresentation through solid evidence but they failed to discharge such burden.

18.       Sequel to the above discussion we have reached a conclusion that concurrent findings of the Courts below do not suffer from any illegality or material irregularity, infirmity, misreading or non reading of evidence and are based upon well settled principles of law. Petitioners failed to prove their case hence no case warranting interference by this Court under its jurisdiction vested through article 199 of the Constitution is made out. Consequently, this petition is dismissed along with listed application with no order as to costs.

JUDGE

JUDGE