IN THE
HIGH COURT OF SINDH BENCH AT SUKKUR
CIVIL
REVISION No.68 of 2021
|
DATE OF HEARING |
ORDER WITH SIGNATURE OF JUDGE. |
04.10.2021
1. For orders on O/objection
at flag-A.
2. For orders on CMA No.648 /21.
2. For
hearing of main case.
Mr. Muhammad Asim Malik Advocate for
Applicant.
ZAFAR AHMED RAJPUT; Applicant herein filed a civil suit
bearing No.96/2018 against the respondent for Specific performance of contract,
declaration, possession, mesne profit and permanent injunction alleging therein
that the respondent No.1 (deceased) was owner of the piece of an agricultural
land admeasuring 01-10 acres out of Survey Number 490, situated in Deh Jung,
Tapo and Taluka Daharki, district Ghotki which is suit land in present
case. The remaining respondents from
01(a) to 1(h) were ans are legal heirs of the deceased respondent No.1. The
respondent No.1 (deceased) was well known personality of the locality and was
kept a wide business of the properties in the local area of the district Ghotki
in sence of sale and purchase of the properties. The respondent No.1 (deceased)
and appellant have had good relations and family terms with each other and
often had to come each other. On 19.06.2011 respondent No.1 (deceased) told to
appellant that he wants to seel a pirce of an agricultural land admeasuring
01-10 acres out of Survey Number 490, situated in Deh Jung, Tapo and Taluka
Daharki, district Ghotki, as some amount is required to him for his personal
need and thereafter, the respondent No.1 (deceased offered appellant to
purchase the suit property being a close friend. It is further averred in the
plaint that after that the appellant accepted the offer of respondent No.1
(deceased) and agreed to purchase the suit property from him and the price was
settled Rs.10,000,000/- (Ten lac) per acre and the total sale consideration
amount of Rs.12,50,000/- (Twelve lac & fifty thousands) was settled between
them. The appellant paid amount of Rs.1,00,000/- (One lac) as an earnest amount
to the respondent No.1 (deceased) in presence of witnesses at the house of
appellant and it was settled that an amount of Rs.900,000/- (Nine lac) shall be
paid on very next day i.e.. 20.06.2011 while the remaining amount of
Rs.2,50,000/- (two lac & fifty
thousand) will be paid at the time of execution of registered sale-deed and therefore,
an oral agreement to sell was held between them which was later on determined
to put in writing on very next date on 20.06.2011. After receiving the major
part of sale consideration amount of Rs. 9,00,000/- (nine lac) which was agreed
between the parties on 19.06.2011. It is further averred in the plaint that on
20.06.2011 appellant along with witnesses approached to respondent No.01
(deceased ) at his office at Daharki where respondent No.01 (deceased) got
issued the stamp paper vide entry No.1135 dated 20.06.2011 from stamo vendor
himself and print out the written agreement to sell from his office computer
language and the appellant paid amount of Rs.9,00,000/- (nine lac) to
respondent No.01 (deceased) in shape of Pakistani currency notes of one
thousand in presence of witnesses. After execution of sale agreement appellant
along with witnesses approached to respondent No.03 Ghulam Yasin as he cultivated suit property. The respondent No.1
asked respondent No.03 that he sold out suit property to the appellant and from
now the physical possession of the suit property is handed over to appellant on
which the respondent No.03 agreed and asked that he has no objection in this
regard. The respondent No.03 was residing near the suit property to him on
lease at rate of Rs.40,000/- per year. It is further asserted in the plaint
that as per agreement the respondent No.1 (deceased) was bound himself to
receive sale certificate from concerned department and received the remaining
and final sale consideration amount of Rs. 2, 50,000/- from appellant and shall execute registered
sale deed in his favour. It is further asserted in the plaint that
unfortunately the respondent No.01 (deceased) was murdered on 11.08.2011 by
some unknown culprits in the way to his house. After death of respondent No.01,
appellant also narrated the facts regarding agreement to the L.Rs of respondent
No.01 (deceased) took some time and promised that after Fouti Khata Badal they
will execute registered sale-deed in favour of appellant. The Fouti Khata Badal
of suit land was transferred in favour of L.Rs of respondent No.01
(deceased) on 02.07.2013 vide entry
No.126 in the record of rights Form VII-B of Deh Jung, Taluka Daharki.
Appellant approached to LRs of respondent No.01 (deceased) and requested them to perform part of contract on behalf of
respondent No.01 (deceased) , on this the L.Rs of respondent No.01
(deceased) were agreed to perform part
of contract but the respondent No.01(c) also sought some time for obtaining
guardianship certificate of minors respondent No.01(d) to 01(h). All the L.Rs
of respondent No.01 (deceased) agreed and also endorsed on the agreement to
sell that they are ready to perform part of contract on behalf of respondent
No.01 (deceased). It is further averred in the plaint that in the meantime,
dispute arose between all the L.Rs of respondent No.01 (deceased) hence the performance of agreement could not
proceed further by the L.Rs of respondent No.01 (deceased). The respondent
No.01(a) also expired due to natural death in the year, 2014. The respondent
No.01 (c) also murdered in the year, 2015 before obtaining guardianship
certificate. Appellant time to time approached to L.Rs of respondent No.01
(deceased) but his grievance was not redressed. On 22.01.2016, the respondent
No.2 obtained guardianship certificate of minors/L.Rs of respondent No.01 so
also 01(c) the appellant along with witnesses approached to respondents but
they sought some time and promised that they will perform part of contract on
behalf of respondent No.01 (deceased) . In the month of July, 2017 the
respondent No.01 (b) also expired due to natural death. On 26.12.2017 the
appellant approached to respondent No.2 to resolve the family crises and
perform part of contract but the respondent No.02 refused to do so and further
replied that the respondent No.03 has secretly filed civil suit against
respondent No.01 (deceased) and his L.Rs regarding suit property which is
pending before the Court of Senior Civil Judge, Ubauro. On 26.12.2017 appellant
approached to respondent No.03 for receiving of yearly lease amount so also
possession of suit property but the respondent No.03 refused to do so. The
cause of action accrued to the appellant to file instant suit regarding suit
property which was extended time to time and lastly on 26.12.2017 when he
approached to respondent No.02 to perform part of contract but he refused and
the cause of action also accrued against the respondent No.03 on 26.12.2017
when he refused to pay yearly lease amount and to vacate the possession of the
suit land which this continued. Hence, applicant filed instant suit with
following prayers.
(a) To direct the defendant No.02 being a guardian of minors defendants
No.01(d) to 01(h) and defendants No.01(a/b) & 01(b) I to 01 (a/b) vii
(legal heirs of defendants No.01(a) and 01(b) to perform the part of contract
on behalf of the respondent No.01 (deceased), mutated the registered sale-deed
and Khata of the suit property viz. Survey No.490 admeasuring 01-10 Ghuntas
situated in Deh Jung, Tapo & Taluka Daharki, district Ghotki, in favour of
the plaintiff after receiving the remaining
amount of sale consideration i.e. 2,50,000 (two lacs fifty thousand
rupees). In case of failure the Nazir of this Honourable Court may be directed
to get the sale certificate of suit property from defendant No.04 and execute
the registered sale deed and mutate the Khata in favour of plaint.
(b) To direct the defendant No.03 to pay the yearly lease amount of
Rs.40,00/- (forty thousand) to the plaintiff and also bound him to pay the
lease amount at the same rate till the decision of the instant suit and also to
handover/vacate the possession of the suit property to the plaintiff.
(c)
To grant permanent
injunction restrain the defendants No.01(a/b) i to 01(a/b) vii, Defendants
No.01(d) to 01(h) and defendant No.02 (Guardian of the minors defendant
No.01(d) to 01(h) not execute the sale deed and mutate the Khata of the suit
property to anybody else except the
plaintiff and also restrained the defendant No.04 & 06 not issue the sale
certificate of suit property till the final decision of the instant suit and
restrain the defendant No.05 not registered any sale deed of suit property in
favour any person, body, company, agent etc. except the plaintiff.
(d) To award the costs of the suit.
(e)
Any other relief, which this
Honourable Court may deems fit and proper under the circumstances of the suit.
2. The defendants/respondents No.01 to 07
through ordinary course but they did not come forward to contest the matter
hence, the defendants No.1 to 07 were
debarred from filing written statement and declared ex-parte by trial
Court vide order dated 04.10.2018.
3. At the trial,
plaintiff, namely, Muhammad Hassan in support of his claim examined himself on
oath at Ex.04. He produced original sale agreement at Ex.4-A, mutation entry No.126
dated 02.07.2013 at Ex.4/B, certificate true copy of order dated 22.01.2016 at
Ex.04/C, certified true copy of FIR bearing Crime No.244/2011 registered at
Police Station, Daharki by complainant Muhammad Saleem at Ex.04/D. In support
of his stance plaintiff also produced witnesses namely PW-2 Muhammad Bux at
Ex.07 and PW-03 Ameer Maviya at Ex.08. The record further indicates that one
Habibullah who is tapedar in the office of Mukhtiar, Daharki was examined as
Court witness at Ex.09. He produced authority letter at Ex.09/A, entry No.05
dated 06.12.2011 at Ex.09/B and entry No.126 dated 02.07.2013 at Ex.09/C.
Thereafter, side of plaintiff was closed.
4. The learned trial Court after hearing
the learned counsel for the parties and on the assessment of evidence on record
dismissed the suit of plaintiff. Against that, the plaintiff/appellant preferred
civil appeal No.49/2019 which was heard by the Additional District Judge, Daharki
and dismissed the same vide impugned judgment and decree dated 03.05.2021. It
is against those concurrent findings of the Courts below, the applicant has
preferred this civil revision.
5. Heard the learned counsel for
applicant and perused the material available on record.
6. The learned appellant Court while dismissing
the aforesaid appeal of the applicant/appellant observed as under;
“Since from the perusal of pleadings its appears that appellant filed
suit for special performance of contract, declaration, possession, mesne
profits and permanent injunction alleging therein that on 20.06.2011 the respondent/defendant No.1
Muhammad Aslam has sold out the suit land to the appellant in the sum of
Rs.12,50,000/- and the appellant has paid Rs.10,00,000/- to the
respondent/defendant No.1 Muhammad Aslam at the time of sale agreement it was
settled that the appellant will pay remaining sale consideration at the time of
execution of final sale-deed but meanwhile the respondent/defendant No.1
Muhammad Aslam was murdered and after his death the appellant has approached to
legal heirs of Muhammad Aslam who assured that they transfer the suit land in
favour of appellant and legal heirs of Muhammad Aslam namely Muhammad Hashim,
Muhammad Siddique and Mst. Rukhsana has also counter singed the sale agreement
but meanwhile the defendant Mst. Rukhsana has also passed away, thereafter
appellant repeatedly approached to the defendant but they kept the appellant on
false hopes and ultimately in the year 2017 they refused to execute the sale
agreement. As per the averments of plaint as well as sale agreement Ex.04-A the
possession of suit land was handed over to the appellant at the time of sale
agreement but in para No.11 of the
plaint reveals that plaintiff/appellant stated that after execution of sale
agreement they want to the suit land and where the respondent/defendant
Muhammad Aslam informed to the defendant No.3 Ghulam Yaseen that he has sold
out the suit land and possession of the suit land is handed over to the
plaintiff which was accepted by the defendant No.3 without any objection. Plaintiff in para
No.11 of the plaint further alleged that thereafter the plaintiff leased out
the suit land to defendant No.3 Ghulam Yaseen at the rate of Rs.40,000/- per
year but he has not produce any document to prove that the suit land was leased
out to the defendant No.3 by the
appellant/plaintiff or defendant No.3 has paid leased amount to the plaintiff
during prevailing period . Perusal of evidence of Muhammad Bux and Ameer
Maviya, witnesses in their evidence have remained silent whether the suit land
was leased out to the defendant No.3 by the plaintiff/appellant in their
presence. It is case of appellant that sale agreement was coupled with
possession but it is admitted fact that possession of suit land is with
respondent No.3, Ghulam Yaseen as he has also filed a suit claiming himself as
purchaser of suit land. Moreover, Tapadar Habibullah was examined as Court
witness at Ex.09 who produced revenue record f rights of suit land and in his
evidence he deposed that defendant Muhammad Hashim and Sardar Khatoon have sold
out an area of 00-16 ¾ acres out of suit land and such sale certificate was
issued, perusal of copy of record of rights V.F. VII-B Ex.09/C reveals that the
sale-certificate was issued to the defendant Muhammad Hashim and Sardar Khatoon
on 06.03.2014 long before filing of this suit but the appellant/plaintiff has
also not sought cancellation of alleged transfer nor challenge the sale of the
suit land by the defendant Muhammad Hashim and Sardar Khatoon, even after
evidence of Tapdar plaintiff/appellant has not sought any amendment or any
relief against the alleged transaction of defendant Muhammad Hasim and Sardar
Khatoon. Furthermore, according to appellant that parties of sale-agreement
were appears before notary public and sale agreement was also got attested from
notary public but during trial appellant has not examined the notary public to
verify his signature. Witnesses Muhammad
Bux and Ameer Maviya in their evidence deposed that on 20.06.2011, respondent
Muhammad Aslam executed the sale agreement in the office of stamp vendor,
perusal of sale-agreement Ex.04-/A, reveals
stamp papers was issued by the stamp vendor Paman Das. P. Bolani, but
appellant has also not examined the stamp vendor to prove that sale agreement
was scribed and executed in his office.
7. When learned counsel for applicant
was confronted with aforementioned observation of the appellate Court, he has
admitted that the ________________.
8. For the
foregoing facts, discussion and reasons
J U D G E
Ihsan/*