ORDER SHEET
THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANO
Civil Revision No. S-84 of 2022
(Pir Syed Mashooq Mohiuddin & Ors v/s. Ali Raza and Ors)
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Date |
Order with signature of judge |
1. For orders on office objections at flag "A".
2. For hearing of C.M.A.No.593/2022 (S/A).
3. For hearing of Main Case.
Before
Mr. Justice Nisar Ahmed Bhanbhro
Applicants: Syed Mashooq Mohiuddin and others
Through Syed Jaffar Ali Shah, Advocate.
Respondents No.1 to 4: Ali Raza and others
Through Mr. Mazhar Ali Bhutto, Advocate.
Date of Hearing: 13.05.2025
Date of Judgment: 13.05.2025
J U D G M E N T
Nisar Ahmed Bhanbhro J.- Through this Civil Revision Application, the applicants have questioned the Judgment and Decree dated 23.06.2021, passed by the Court ofLearned 1st Senior Civil Judge, Larkana (Trial Court) in F.C.Suit No.197/2019 (Re-Pir Syed Mashooq Mohiuddin v/s. Ali Raza and others), Judgment and Decree dated 06.06.2022, passed by the Court of Learned VI-Additional District Judge, Larkana (Appellate Court) in Civil Appeal No.81/2021 (Re-Pir Syed Mashooq Mohiuddin and others v/s. Ali Raza and others), whereby the Suit filed by the Applicants was dismissed.
2. The facts giving rise to filing of instant Civil Revision Application, as per plaint are that Applicants (Plaintiffs) are co-owners of a residential house constructed on City Survey No.30/2, admeasuring 554-0 square yards Ward-C, Gaibi Khan Chandio Muhallah, Larkana (Suit Property). The property devolved upon applicants by way of inheritance from mother and record of rights also stands mutated in their names. The Applicant used to reside in the suit property but due to matrimonial problems he shifted to Ranipur City about two decades back and Suit Property was handed over to father of Respondent No.1 (Defendant No 1) namely Nadir Ali Chandio for lookafter but after his death about one year ago the Respondents occupied it, hence Applicant No.1 came back and demanded vacant possession of suit property from Respondents but they refused. On 20.09.2018 Applicant No 1 met with Respondents at the Suit Property and demanded its vacant possession but all of a sudden Respondent No 3 on gunpoint occupied the Suit Property forcibly and issued threats. Applicant No.1 filed Complaint under the provisions of Illegal Dispossession Act, 2005 before the Court of Learned Sessions Judge, Larkana, which was subsequently dismissed on 18.01.2019, but it was observed that Applicants were owner of suit property and they may avail remedy before proper forum. It was further observed that cause of action accrued to the Applicants in the year 2018 when Respondents claimed right in the Suit Property and occupied over it forcibly and secondly in the month of February, 2019 when Respondents refused to vacate the suit property. The Applicants filed suit, prayed for declaration of ownership and retrieval of possession.
3. On summons by the Trial Court, Respondents appeared and filed a joint written statement, vehemently denied the claim of applicants and averred that Applicants had no right or title in the Suit Property, they were not owners by virtue of inheritance. The suit property was owned by Nawab Ghaibi Khan, he had one son namely Mir Mohammed Khan who was survived by two sons namely Mir Shah Mohammed Khan and Ahmed Sultan Khan and suit property was transferred by Nawab Ghaibi Khan in favor of Ahmed Sultan Khan by way of Gift deed dated 18.05.1954. Nawab Ahmed Sultan Khan handed over the possession of Suit Property in favor his elder brother Mir Shah Mohammed Khan through Iqrarnama dated 11.07.1961 in lieu of share from ancestral property. The Suit Property was owned by Respondents and Applicants had no right or title to claim possession.
4. From the pleadings of parties Learned Trial Court framed Four issues regarding maintainability of Suit, right of ownership of Applicants and Respondents and entitlement for the relief claimed. In support of respective claims Applicants examined Syed Mashooq Mohiuddin (Plaintiff No 1), Abdul Salam Memon City Surveyor Larkana, Zulfiqar Ali Memon Sub Registrar Larkana, Respondents examined Muzaffar Hussain (Defendant No 5)), then parties closed side for evidence.
5. Learned Trial Court after hearing the parties through their Counsel dismissed the Suit of Applicant vide judgment and Decree dated 23.06.2021. The Applicants filed appeal No 81 of 2021 before the Court of Learned District Judge Larkana which was assigned to the Appellate Court for disposal in accordance with law. The Appellate Court after hearing the parties dismissed the appeal and maintained the judgment and decree passed by Trial Court, hence this Revision Application.
6. Mr Jaffar Ali Shah, Learned counsel for the Applicants contended that the impugned judgments and decrees passed by both the courts below are result of misreading and nonreading of evidence, the Courts below failed to appreciate the evidence and documentary material available on record; that the property in question is inherited property of Applicants, which was transferred to the mother of Applicants through Registered Sale Deed. The Trial Court resolved the issue regarding ownership of the property against the applicants by observing that they failed to prove ownership of Mst Shan Bibi over the Suit Property, therefore were not entitled for any relief. The ownership right of the Applicants stood admitted by the Respondents themselves, but they only claimed that one Wahid Bux Bhutto was in possession of the Suit Property. That the registered documents in the name of the Applicants were also not challenged before any forum, the evidence of applicants remained un-shattered; since the Applicants and Respondents were maternal cousins therefore applicants were under constructive possession till the time they refused to hand over the possession. The learned courts below failed to appreciate the material available on record, therefore, judgments and decrees were not sustainable and may be set aside and instant Civil Revision Application may be allowed and Suit of the Applicants may be decreed as prayed.
7. Mr Mazhar Ali Bhutto, Learned Counsel for the respondents vehemently opposed the Civil Revision Application and submitted that there are concurrent findings of the facts against the applicants, and both the courts below after proper appraisal of evidence and going through the material available on record had passed the impugned judgments and decrees. He contended that the Respondents were not in possession of Suit Property but Applicants were transferred Property bearing City Survey No 30/1 which is in the possession of one Wahid Bux Bhutto and he is not party to the proceedings. The Applicants were residing in the Suit Property since last more than 60 years. Utility Connections were also in their names, the applicants have no right or title in the Suit Property.Therefore, instant Civil Revision Application is liable to be dismissed.
8. Heard arguments of the Learned Counsel for the parties and perused material available on record.
9. The Parties in the instant lisare under dispute over the possession of a residential bungalow/plot located in the heart of Larkana city. Record reflects that Applicants in the present Civil Revision Application are the legal heirs of Mst. Shan Bibi, who purchased a property bearing City Survey No.30/1 situated in Ward-C, Ghaibi Khan Chandio Mohalla, Larkana from its original owner Ahmed Sultan Chandio, who was her brother. There were two properties viz 30/1 and 30/2, which were owned by Ahmed Sultah Chandio, which were sold by him through registered Sale Deed in the year 1963 and 1964 to Wahid Bux and Mst. Shan Bibi. In the year 1996 it transpired that Wahid Bux was in possession of the property bearing City Survey No.30/1 and Mst. Shan Bibi was having a title in respect of said property, therefore, the parties mutually agreed for a Correction Deed, which came into effect on 10.01.1996, wherein City Survey No.30/1 was given to Wahid Bux, who was already in possession of same and City Survey No.30/2 was given to Mst. Shan Bibi. Respondents No.1 to 5, who are the children of brother of said Mst. Shan Bibi, were in possession of the house. In year 2018 a dispute as to the possession arose between the parties and the applicants filed Complaint under sections 3 & 4 of the Illegal Dispossession Act 2005, claiming therein that they were dispossessed from the Suit property without due course of law. The said complaint was dismissed with an advice to the applicants to approach the Civil Court having jurisdiction for adjudication of their rights. The Applicants filed Suit No.197/2019 before Trial Court, claiming therein that they were the legal heirs of Mst. Shan Bibi and after her death the property was inherited by them. They put defendants in possession out of affection, as they were closely related to them, but now they have denied the right of possession to them. Respondents in their written statement, claimed ownership over the suit property by virtue of an iqrarnama executedby Ahmed Sultan in the year 1961 in favor of Mir Shah Mohammad Khan Chandio and since then they were residing in the SuitProperty. The Iqrarnama was produced before Trial Court in evidence. Trial Court while rendering deliberations on issue No 3 resolved that the Respondents were not the owners of Suit Property as revenue record and city survey record spoke otherwise. At the same time Learned Trial Court while dealing with the issue of ownership of Applicants observed that ownership of Mst Shan Bibi could not be proved, thus property cannot be declared to be inherited. The Trial Court while rendering deliberations on the right of ownership of Applicants knocked them out on an assumption that since the registered deeds were executed in year 1963 and 1964 and correction deed was executed between the parties in year 1996, instead of entering into correction deed they should have entered into registered sale deeds. This presumption on the part of Trial Court is a sheer misreading of the evidence as City Survey No.30/1 and 30/2 were undisputedly owned by Ahmed Sultan, who transferred both the properties in favour of Wahid Bux and Mst. Shan Bibi through registered sale deed. Mst. Shan Bibi was transferred City Survey No.30/1 and Wahid Bux was transferred City Survey No.30/2. In the year 1996, the parties came to know that Wahid Bux was residing in the property under the ownership of Applicants and vice versa, parties mutually agreed to execute the Correction Deed, which was affected in year 1996 this way of transfer is not barred under law of land, the ownership rights were mutually exchanged by the parties and such deeds are still intact without any challenge from any corner.
10. The Appellate Court dismissed the appeal on the ground that the Applicants were claiming relief of possession and during the proceedings before Trial Court they filed an application order XIV Rule 5 CPC seeking the amendment in the issues, for adding an issue of Possession which was declined, as Trial Court did not frame issue of possession and Applicants were claiming the relief of Possession which in absence of any issue in that regard cannot be granted hence dismissed the appeal.This finding on the part of appellate Court was not correct, as Trial Court framed issue No 4 which related to the entitlement of applicants for the relief claimed. This issue covered the relief of possession, if the Appellate Court found that framing of issue as to the right of possession was necessary it could have framed this issue while deciding the appeal and sent the matter back for decision afresh but it did not happen, appeal was dismissed and decree of Trial Court was maintained. Establishment of Courts of law in the Society is significant; they are saddled with a responsibility to do justice. It is the duty of the Courts to adjudicate rights and ensure that a “right” must go to a person to whom it belonged. Such a duty is a public trust and sacred in nature which should not be broken at any costs.
11. Trial Court non suited the applicants on the ground that ownership of Mst. Shan Bibi over suit property could not be proved, despite of the fact that Title Documents in favor of Applicants and their mother were produced before Trial Court.Applicant No 1 appeared in the witness box, he deposed that property was transferred in favor of her mother by original owner and after her death Suit Property devolved upon Applicants as sons and daughters. He took birth in the said house (Suit Property) and got education in Larkana up to class three then shifted to Ranipur City. He denied the suggestion that Suit Property was gifted to Mir Shah Mohammed through Iqrarnama. The applicants got produced the original record of the Suit Property through PW 01 Zulfiqar Ali sub registrar Larkana, he deposed as under:
“I am plaintiff in this suit. I produce RD No.60 having Jiryan No.1053 dated 10.07.1963 executed between Nawab Ahmed Sultan and Wahid Bux in respect of Survey No.30/2 area 4986 square feet situated in Ward-C Taluka and District Larkana as Ex:30/A (Original seen, returned and attested copy placed on record). I produce RD No.328 having Jiryan No.547 dated 24-03-1964 executed Nawab Ahmed Sultan and Mst. Shan Bibi in respect of Survey No.30/1 area 546 square yard situated in Ward-C Taluka and District Larkana as Ex:30/B (Original seen, returned and attested copy placed on record). I produce RD No.80 having Jiryan No.88 dated 10.01.1996, through this correction deed city survey Nos.30/1 and 30/2 were swapped in the respective deeds earlier executed, and on behalf of Wahid Bux his son Amanullah had executed this correction deed, as Ex:30/C (Original seen, returned and attested copy placed on record). I could not locate RD No.81 but found its TP Register Entry. I produce Thumb Print (TP) Register showing thumbs of Nawab Ahmed Sultan, Amanullah and Mst. Shan Bibi against the Jiryan Nos.88, 89 of 1996 as Ex:30/D (Original seen, returned and attested copy placed on record).
The witness was cross examined by the Counsel for defendants / Respondents in the following manner:
It is correct that according to RD No.60 the owner of Survey No.30/2 is Wahid Bux. It is correct that there is no thumb impression of Wahid Bux in the RD No.80 dated 10-01-1996. It is correct that Amanullah was not owner of Survey No.30/2 at the time of executing Correction Deed. I do not know if Amanullah had produced any heir-ship certificate or fotikhata of Wahid Bux at the time of executing Correction Deed. It is correct that for correction deed it is necessary that owners must be present in person. It is correct that after execution of RD No.60 Wahid Bux became owner of Survey No.30/2. It is correct that after execution of RD No.328 Mst. Shan Bibi became owner of Survey No.30/1. It is correct that after those two sale deeds Sultan Ahmed was no more owner of Survey Nos.30/1 and 30/2. It is correct that there is no correction deed executed between Mst. Shan Bibi and Wahid Bux. It is correct that I have not produced correction deed executed between Mst. Shan Bibi and Nawab Sultan Ahmed. It is correct that there is no RD number in the TP Register. Vol. says that there is only corresponding Jiryan number in the TP Register. It is incorrect to suggest that I have managed TP register. Vol. says that I have brought and produced original TP Register.”
The ownership right of mother of applicants has been admitted by the Respondents in the cross examination from this witness, but putting suggestions that Registered Sale Deed was of Suit Property was in the name of mother of applicants. It is a settled proposition of law that facts admitted need not be proved. The test of burden of proof is articulated in article 117, and 119 of the Qanun e Shahadat Order 1984, wherein a party asserting a particular fact is required to prove it. In the present case the applicants proved their ownership through registered documents, whose genuineness was not challenged by the Respondents. To utter surprise of this Court, the Courts below did not appreciate this important piece of evidence. More so defendant witness Muzaffar Hussain was examined who produced Iqrarnama(Exhibit – 32) allegedly executed between original owner Ahmed Sultan and Mir Shah Mohamed Khan in year 1961. On answer to a question he admitted that Iqrarnama was not attested by any oath commissioner. This iqrarnama by no means was an authenticdocument when compared to a registered instrument, if the Respondents claimed the benefit of said Iqrarnama they were required to prove it in terms of article 17 of the Qanun e Shahadat but they did not. The admission of respondents of ownership of Mst Shan Bibi over the suit property makes the findings of Trial Court on issue No 2 and 3 perverse and not sustainable. The admission has been defined under article 30 of the Qanun e Shahadat Order 1984 as follows:
"30. Admission defined. An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned."
12. Honorable Supreme Court of Pakistan in the case of Mst Rehmat Bibi and others Versus Mst. Zubaida Begum and others reported in 2021 S C M R 1534 has held as under:
“It is an established principle of law that facts admitted need not be proved, reference can be made to Article 30 of the Qanun-e-Shahadat Order, 1984.”
13. The findings of trial court on issue No.2 with regard to the title of the applicants is perverse, arbitrary, illogical and adverse to the evidence on record, because firstly the record of rights has been produced by the Sub-Registrar and City Survey Officer and secondly said record of rights stands admitted by the respondents in their cross examination by putting a suggestion that Ahmed Sultan was no more owner of the property and even the ownership of Mst. Shan Bibi was not disputed, but it was claimed that she was not owner of the premises, which were occupied by the respondents, even if it is taken as true that respondents were occupying the premises owned by Wahid Bux then they should have been vigilant and should have called in question the exchange or Correction Deed executed in between the parties in year 1996. The parties are related inter se and they cannot claim that they were not aware of the title deed in favour of Mst. Shan Bibi and Wahid Bux. They produced Iqrarnana before the Court, but per the findings of the trial court said Iqrarnama was not executed before any Sub-Registrar, even it is settled proposition of law that a beneficiary who claims the ownership or title over any immoveable property he is required to prove the same.It was incumbent upon the respondents to prove the Iqrarnama by recording evidence either of the witnesses or before whom the Iqrarnama was executed, or they should have moved an application for verification of the signatures and thumb impression of executants and witnesses over the Iqrarnama through the concerned authorities or through legal heirs of the witnesses, but nothing was done by them. Since 2018 when this issue arose between the parties, Respondents have not initiated any proceedings before any Court of Law against the Applicants challenging their title as was confirmed by Learned Counsel for Respondents.
14. This essentially is a suit between the lady who claims her rights of ownership transferred from her brother. In this part of the province, the women are being treated as an extra member in the family without a right to inherit any property and this practice is being treated as a customary practice, which has got no backing of the law. Whena woman comes forward to claim her right of inheritance or even right of ownership, she is always denied such rights on one or the other account, but the time has gone by, the Courts of law cannot believe or close eyes when the rights of the women as to inheritance are brought before them. It has been informed by Counsel for Applicants that Mst Shan Bibi was daughter of chieftain of Chandio Tribe and excepting this property, she was given nothing, as such this property came to her as right of inheritance, however transferred to her name by means of a registered. On a query from Counsel for Respondents whether Ahmed Sultan Chandio was survived by his legal heirs, he answered yes but they were not under litigation in the present proceedings. Since the question of longstanding possession spanning over 2 decades is involved in the matter needless to say that real owner cannot be kept out of the possession on the basis of claim of adverse possession. Per the admission of parties they were maternal cousins, inter se and possession of the Respondents over the Suit Property was constructive in nature. Even if the longstanding possession of the Respondents over the suit property is admitted the applicants cannot be nonsuited on that ground.
15. Honorable Supreme Court of Pakistan in the case of Khaleelulah and others Versus Muhiam Khan and others reported in PLD 2024 Supreme Court 600 has been pleased to hold as under:
“10. In our opinion, there is a stark distinction between cases in which an heir has been deprived of his shari share and disregarded at the time of recording of the inheritance mutation, and those cases in which the heir comes forward to seek his shari share after third-party rights in the subject land have been created. To succeed in respect of the former category of cases, as compared to the latter, is legally less cumbersome, as it is not hurdled by the rigors of limitations - the possession over the inherited property by one heir is considered as constructive possession on behalf of all the heirs, and the cause of action would only arise, when the deprived heir seeks his share and the same is denied by the other in possession of the inherited property”
16. This Court under its Revisional jurisdiction has limited powers to disturb the concurrent findings of the Courts below, unless it is borne out that the courts below exercised the jurisdiction not vested in it and went beyond its powers or there is any misreading or nonreading of the evidence on record. The perusal of the evidence available on record reflects that there is serious misreading and nonreading of the evidence on the part of the Courts below, the principle of safe administration of justice were violated and evidence was not read as full and analyzed in run of a mill manner, and in such an eventuality the concurrent findings cannot be sanctified, and the conclusion drawn by the courts below would not sustain, because in all circumstances, these concurrent findings cannot be said to be sacrosanct, if found being perverse to the material on record.
17. Honorable Supreme Court of Pakistan in the case of Mst. Farzana Zia and othersVersusMst. Saadia Andaleeb and others reported in 2024 S C M R 916 has been pleased to hold as under:
“13. We are sanguine that the High Court has the powers to reevaluate the concurrent findings of fact arrived at by the lower courts in appropriate cases but cannot upset such crystalized findings if the same are based on relevant evidence or without any misreading or non-reading of evidence. The first appellate court also expansively re-evaluated and re-examined the entire evidence on record. If the facts have been justly tried by two courts and the same conclusion has been reached by both the courts concurrently then it would not be judicious to revisit it for drawing some other conclusion or interpretation of evidence in a second appeal under Section 100 or under revisional jurisdiction under Section 115, C.P.C., because any such attempt would also be against the doctrine of finality. We do not find that the concurrent findings of fact arrived at by the appellate court as well as the trial court were either perverse or without justification or based on ignorance of evidence. The High Court cannot substitute its own findings unless it is found that the conclusions drawn by the lower courts were flawed or deviant to the erroneous proposition of law or caused serious miscarriage of justice and must also avoid independent re-assessment of the evidence to supplant its own conclusion. Consistent with the aforesaid backdrop, we feel no hesitation to hold that the judgments of the trial court and appellate courts are more in consonance with the evidence led by the parties and should not be reversed.”
18. Honorable Supreme Court of Pakistan in the case of Muhammad Khaqan v. Trustees of the Port of Karachi reported in 2008 SCMR 428 at page 431 has held as under:
"This Court has consistently held that when finding of the facts of the trial and Appellate Courts are contrary to the evidence and material on record or are against law when the revisional Court would have jurisdiction to rectify the same so as to bring the findings in consonance with the evidence on record or to remove the illegality surfacing from the judgment. Similarly if the revisional Court finds any violation of provision of law by a Court or ignorance of law then it is vested with the authority to set aside the concurrent findings and substitute its own findings."
19. Honorable Supreme Court of Pakistan in the case of Muhammad Akhtar v. Mst. Manna reported in 2001 SCMR 1700 has held as follows:
"We are of the considered opinion that if the concurrent findings are perverse, arbitrary or fanciful the same cannot be termed as 'sacrosanct' and can be interfered with.
20. Honorable Supreme Court of Pakistan in the case of Samar Gul and other versus Mohbat Khan and others reported in 2000 SCMR 974 has held as under:
"It is trite law that if the concurrent findings of the Courts below are the result of misreading of evidence on record, it becomes the duty of the High Court/revisional forum to set the wrong right in accord with its jurisdiction under section 115, C.P.C."
21. This view was reiterated in the case of Ghulam Muhammad versus Ghulam Ali reported in 2004 SCMR 1001 wherein the Honorable Supreme Court held as under:
"it is, settled principle of law that no sanctity can be attached with the concurrent finding of fact if it is found suffering from the defect of misreading and non-reading of evidence and there is no impediment for the High Court to correct such an error and illegality in the revisional jurisdiction."
22. For what has been discussed herein above, the conclusion drawn by the Courts below in concurrent findings of the Courts appear to be perverse, illegal and there is serious misreading and nonreading of the evidence on record. The Courts below failed to exercise the jurisdiction vested in them and denied the right to person to whom it belonged, calling for interference by this Court under its supervisory jurisdiction conferred under section 115 CPC. The applicants have made out a case in their favor,accordingly, this Civil Revision Application is accepted. Judgment and Decree dated 23.06.2021, passed by the Court ofLearned 1st Senior Civil Judge, Larkana (Trial Court) in F.C.Suit No.197/2019 (Re-Pir Syed Mashooq Mohiuddin v/s. Ali Raza and others), Judgment and Decree dated 06.06.2022, passed by the Court of Learned VI-Additional District Judge, Larkana (Appellate Court) in Civil Appeal No.81/2021 (Re-Pir Syed Mashooq Mohiuddin and others v/s. Ali Raza and others), are hereby set aside. The suit of the Applicants (Plaintiffs) is decreed as prayed with no order as to costs. The office to prepare Decree accordingly.
Revision Application stands disposed of along with pending applications if any.
Judge
Manzoor