ORDER SHEET
IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Civil Revision Application No.96
of 2021
DATE ORDER
WITH SIGNATURE OF JUDGE
07.10.2021
1. For orders on CMA No. 843/2021.
2. For orders on CMA No. 847/2021.
3. For hearing of main case.
2. For orders on CMA No. 848/2021.
Mr. Daman Ali Leghari, advocate for the
Applicants.
ZAFAR AHMED RAJPUT, J.-
Applicants
herein filed a civil suit bearing No.33/2015 against the respondents for
declaration, possession, Mesne profit, Cancellation, Mandatory and permanent
injunction. The suit of the applicant (who for convenience, I will hereinafter
refer to as “the plaintiff”) was dismissed by the learned trial court, and his
appeal against the dismissal also failed. The plaintiff now assails the
decisions of the courts below by means of the present revision.
2. The case put forward by the plaintiff
was that he is owner of agricultural land bearing S.Nos.749/2-11, 750/2-28 to
extent of his share 33 paisa area 1-26 situated in deh Mandan Taluka Mirwag,
vide mutation entry No.17 of form VII_A, after the death of Muhammad Ali who
leaving behind the above mentioned legal heirs and other namely, Mehmood (deceased)
Mst. Soomri, Mst. Mir Zadi, Mst. Bakhtwar (deceased), Mst. Nihal Khatoon
(deceased) and the land left but deceased Muhammad Ali came in the possession
and enjoyment and all plaintiffs cultivated the same as per their share
peacefully without any hindrance from
any corner, Khata of above land still intact in the name of deceased Muhammad
Ali in record of rights, after passing the sometime defendant No.1 to 3 came to
plaintiffs and requested them to hand over the land of harap condition,
plaintiffs allowed their such request and handover the above land on harap
condition because the plaintiffs and defendants 1 to 3 are close relatives each
other, defendant No.1 to 3 after ripe the crop paid the due battai share to the
plaintiffs each very petty crop till Kharif 2014, after that they dishonestly
has crop in the mind of deceaseds and they stop the due battai share to the
plaintiffs and with help of defendants No.4 and 5 occupied the land of
plaintiffs. During this plaintiff Muhammad Nawaz moved application before
defendant No.7 and 8 for changing of Fouti Khata of deceased Muhammad Ali on
which the defendant No.7 and 8 issued a letter No.SM/1232/2014 dated 12.12.2014
for verification of entry and record of deceased Muhammad Ali same letter was
sent through defendant No.8 on which Micro filming officer board of revenue
Sindh Hyderabad verified the record and sent the copy of entry No.17 in which
the name of deceased Muhammad Ali is shown, after receiving from the letter
from Micro filming office board of revenue Hyderabad Sindh the defendant No.8
direct the defendant No.7 to make inquiry at the spot along with concerned
Tapadar for the changing of fouti Khata the defendants No.6 and 7 went spot and
record statement from the nek mards of the locality they also disclosed that
plaintiffs are real legal heirs of deceased Muhammad Ali but the defendant No.7
and 8 due to political source and influence of the defendant No.1 to 3 did not
take any action and proceedings for changing of fouti khata of deceased
Muhammad Ali. Hence, applicant
filed instant suit with following prayers.
(i)
That this Honourable Court
may be pleased to declare that the plaintiffs are legal and lawful owners of
agricultural land bearing Survey number 749, 750 to the extents their share 33
paisa are 1-26 acres situated in deh Mandan Taluka Mirwah district Khairpur, by
Muhammad Ali deceased and further declare
that the act of the defendants private forcibly occupied the land of the
plaintiff area of 1-26 acres from the above survey numbers is illegal null and
void in the eyes of law.
(ii)
To direct the defendants private
put the plaintiff vacate the possession of suit land in failure the same may
got done through the process of law.
(iii)
To award the mesne profit
till handing over possession of suit land at the rate as determined by this
Honourable Court.
(iv)
To cancel the registered
sale deed dated 09.05.1956 and to cancel the mutation entries No.114, 115 of VF
VII-B.
(v)
To grant costs of the suit.
(vi)
To grant any other relief,
which this Honourable Court deems fit and proper in the circumstances of the
same.
3. The private
defenbdants filed their written statement alleging therein that the suit land
has been sold out by the plaintiff party through registered sale deed dated
09.05.1956 No.264. Written statement further reflects that answering defendants
denied all the allegations and prayed for the dismissal of the suit.
The defendants No.6 to 10 (Official
defendants) were declare ex-parte vide order dated 05.10.2015.
4. The
learned trial Court framed/settled the Issues as under:-
i. Whether suit is not maintainable according to law?
ii. Whether plaintiffs are
owners of suit land including other legal heirs of deceased Muhammad Ali to the
extent of their respective shares, being their inherits property?
iii. Whether plaintiffs are owners of suit
land including other legal heirs of deceased Muhammad Ali to the extent of
their respective shares, being their inherits property?
iv. Whether registered sale deeds dated
09.05.1956 abd 2.5.1956 including revenue entries No.114 and 115 of form VII-B
in favour of defendants No.1 to 3 regarding purchase of suit land from LRs of
deceased Muhammad Ali namely
Mehmood and others are illegal, unlawful
and same are liable to be cancelled?
v. Whether legal heir of deceased Muhammad
Ali namely Mehmood was expired in the year 1951, prior to registered sale deeds
dated 09.05.1956 and 02.5.1956?
vi. Whether defendant No. 1
to 3 and 6 are in illegal possession of suit land?
vii. Whether plaintiffs are
entitled for mesne profit, if so to what extent?
viii. Whether the plaintiffs are
entitled to the relief claimed?
ix. What should the decree be?
4. At the
trial, the applicants/plaintiffs in support of their version has examined their
attorney namely Rafique Ahmed at Ex.21. He produced special power of attorney
at Ex.21-A, certified copy of entry No.17 at Ex.21/B, original letter of
Mukhtiarkar Mirwah dated 10.12.2014 at Ex.21/C, letter dated 11.12.2014 of Microfilming Officer at
Ex.21/D, death certificate of Mehmod at Ex.21-E, order of Assistant
Commissioner, Mirwah dated 20.03.2015 at Ex.21-F, order dated 13.05.2015 of
revenue appeal No.22/2015 at Ex.21-G. The plaintiffs in support of their
version has examined PWs namely Hazoor Bux Dasti at Ex.22, PW-3 Amjad Ali
Sub-Registrar Gambat examined at Ex.23, he produced attested copy of letter at
Ex.23-A and copy of NC report at Ex.23-B.
PW Shah Muhammad Assistant posted in the office of DDO Revenue, Mirwah
at Ex.24, he produced authority letter at Ex.24-A, order dated 20.3.2015 passed
by AC, Mirwag at Ex.24-B, PW Munawar Hussain Tapedar Deh Mandan was examined at
Ex.25, he produced attested copy of entry No.17 at Ex.25-A, entry No.114 at
Ex.25-B and entry No.115 at Ex.25-C. Thereafter, learned Advocate for
plaintiffs closed its side statement dated 12.01.2016 at Ex.26.
They in support of their plea has examined their private
defendants Barkat Ali at Ex.35, DW-2 Ghuram Khan at Ex.36, DW-3 Zangi Khan at
Ex.44. Thereafter, learned counsel for the private defendants closed its side
vide statement dated 21.02.2017 at Ex.45.
It is pertinent to mention here that after conclusion of
trial, the suit of the plaintiffs was dismissed vide judgment dated 31.05.2017,
followed by decree dated 01.06.2017. The plaintiffs of instant suit preferred
civil appeal No.68/2017 against impugned judgment and decree, and the said
judgment and decree was set-aside and matter was remanded to this Court with
directions to decide the same afresh after providing proper opportunities to
the parties to lead further evidence, if any and discuss each and every issue
separately so also discuss each and every documents, vide judgment and decree
dated 25.10.2017, passed by the Honourable Additional District Judge, Mirwah.
After remand of the case, the plaintiff in order to prove
their assertion had examined attorney of the plaintiff namely Rafique Ahmed
Dasti at Ex.54, thereafter, learned counsel for plaintiffs closed its side.
The defendants in support of their version has examined the
defendant Barkat Ali at Ex.56, thereafter learned counsel for private
respondents closed its side.
After hearing the parties original court has dismissed the
suit vide judgment and decree dated 09.11.2020, which is impugned in the
appeal.
After filing of appeal notices were issued to the respondents
and matter heard from all the side including official respondents (learned
DDA).
The learned counsel for plaintiffs in the arguments
has contended that the suit of the plaintiffs is maintainable and they accrued
cause of action against the defendants. He contended that the plaintiffs had
produced all relevant documents in support of their claim, whereas, no relevant
document has been brought on the record by the defendants. He further contended
that deceased Muhammad Ali is owner of an agricultural land bearing
S.Nos.749/2-11, 750/2-28 to extent of his share 33 paisa area 1-26 situated in
deh Mandan Taluka Mirwah, vide mutation entry No.17 of form VII-A and after his
demise, his legal heirs i.e. plaintiffs came in possession and enjoyment of the
suit land and they cultivate the same as per their share peacefully. He
contended that the khata of suit land is still intact in the name of deceased
Muhammad Ali in record of rights, then how his legal have sold out the suit
land to the elders of defendants. He contended that defendants have obtained
the suit land on Harap basis but after some time refused to pay the batai share
to the plaintiff by keeping evil eyes, over the suit land by managing the fake
registered sale deeds. He contended that the defendant No.01 to 03 paid battai
share to the plaintiffs till kharif 2014 and after that, the dishonesty has
been crop in the mind of defendants and they stop battai share to the
plaintiffs and with help of defendants No.04 and 05, occupied the land of
plaintiffs. He contended that the plaintiff Muhammad Nawaz moved an application
before defendant No.07 and 08 for changing of fouti khata of deceased Muhammad
Ali on which the defendant No.07 and 08 issued a letter No.SM/1232/2014 dated
12-12-2014 for verification of entry and record of deceased Muhammad Ali
same letter was sent through defendant No.08 on which Micro Filming Officer
Board of Revenue Sindh, Hyderabad verified the record and sent the copy of
entry No.17 in which the name of deceased Muhammad Ali shown, while
after receiving from the letter from Micro Filming Officer Board of Revenue
Hyderabad, Sindh the defendant No.08 direct the defendant No.07 to make enquiry
at the spot along with concerned Tapedar for the changing of fouti khata the
defendant No.06 and 07 went spot and record statement from the nekmards of the
locality they also disclosed that plaintiffs are real legal heirs of deceased
Muhammad Ali but the defendant No.07 and 08 due to political source and
influence of the defendant No.01 to 03 did not take any action. He contended
that all the evidence is lying in support of the plaintiffs but the defendants
illegally refused to hand over the suit land to them. The learned counsel for
the plaintiffs in the arguments has lastly contended that the plaintiffs have
proved their case and in the best interest of justice their suit may kind be
decreed as prayed.
On the contrary,
the learned counsel for the private defendants, in the arguments has contended
that, original court has rightly dismissed the suit and he supported the
judgment and decree passed by the original court. Both counsels for the parties
have filed written arguments, which are available on record, need not be
reproduced in this judgment.
After
hearing of the parties, I frame following points to be resolved.
a.
Whether judgment and decree dated 09-11-2020 are sustainable under the law?
b.
What should the judgment be?
First point framed by this court is relating to the
issue No.1 to 6 framed by the original court.
ISSUE NO. 01 framed by
original court:
This issue is
relating to maintainability of the suit and burden lies upon the plaintiff /
appellant but the original court has wrongly imposed the burden upon defendant,
due to reasons that it was framed in negative manner, which is not encouraged
under the law.
From bare reading of the
pleadings present dispute is relating to the narration that deceased Mohammad
Ali is the owner of suit land, survey No.749/2-11 and 750/2-28 acres to the
extent of 33 paisa share(1-26 acres), Deh Mandan, Taluka Mirwah, vide mutation
entry No.17 of Form-VII-A, and deceased left behind the legal heirs namely
Mahmood (deceased), Mst. Soomri, Mst. Mir zadi, deceased Mst. Bakhtawar,
deceased Mst. Nihal Khatoon. Appellants claimed that they were in possession of
the suit land after death of original owner Muhammad Ali being their LRs.
This fact is categorically denied by the respondents. From pleadings appears
that present appellants have also filed revenue appeal before Additional Deputy
Commissioner-I, Khairpur, in respect of suit land, which it pending
adjudication as per judgment and decree of the original court, nor any decision
is produced before this court regarding finality of that appeal. On
scrutiny of order dated 13-05-2015 passed by Additional Deputy Commissioner-I,
Khairpur, in revenue appeal preferred by Muhammad Nawaz (on of the plaintiff)
against the defendant Barkat Ali and others, it seems that counsel for the
appellant (plaintiff of instant matter) submitted memo of Civil Suit pertaining
to the year 2015 before revenue authority, titled as Muhammad Ali deceased
through his legal heirs Muhammad Nawaz and others versus Mashooq Ali and others
on the same landed property, in the Court of Senior Civil Judge, Mirwah. The
said order further reflects that said revenue appeal is kept pending till
decision/directions of Competent Court of law. Meaning thereby, the said
revenue proceedings had not attended the finality, even revenue appeal between
the same parties is pending before the revenue forum, and during the pending of
revenue appeal the plaintiffs have preferred instant suit, therefore, the suit
of the plaintiffs appears to be barred by the revenue Jurisdiction, though
ADC-1 Khairpur has passed the order for deciding the matter by civil court, but
at same time said appeal was filed prior to filing of original suit, as such
only jurisdiction lying with Revenue Court, which is yet pending before the
Revenue Forum.
It is admitted position of the record, that appellant/plaintiff
(Muhammad Nawaz) has failed to prefer any appeal against the order dated
13-05-2015, passed by Additional Deputy Commissioner-I, Khairpur and plaintiffs
have failed to produce record regarding such proceedings before original court,
which clearly shows that such proceedings were against him and this court can
easily take adverse notice as provided by Article 129(g) Qanoon-e-Shahadat
Order 1984. It is very much legal and justifiable reason of original court
that, the suit of the plaintiff is barred by the Section 11 of the Sindh
Revenue Jurisdiction Act, 1876, contents of said provision were very much
reproduced in judgment impugned before this court.
I had
gone through the contents of the judgments referred by original court and it’s
dictum, which is rightly followed for support of it’s findings.
It is worth mention here that appellant counsel failed
to argue on this point and only his evidence and arguments are regarding
admissibility of evidence, especially regarding legality of sale deeds in the
light of one of the executants died prior to registration of sale deed, that is
too, his death certificate issued from NADRA much after long time of his death
and during litigation of the parties, which is again not admissible in
evidence.
Hence to my wisdom this issue rightly
observed, that suit of the appellant was not maintainable.
ISSUE Nos. 02 framed
by original court:
This is relating to the ownership of land with appellants being LRs of Muhammad
Ali to the extent of their respective share, as such burden lies upon the
appellants. In this
regard respondents claimed that they purchased the land from the elders of the
appellants but appellants refused on the ground that private illegally and
malafidely had managed fake and registered sale deeds dated 09-05-1956 and
02-05-1956 in their favor and these were produced before the defendants No. 07
(Mukhtiarkar Taluka Mirwah and 08(Assistant Commissioner Mirwah), showing the
they have purchased the land from legal heirs of deceased Muhammad Ali namely
Mahmood and others as son of Muhammad Ali namely Mahmood was expired in the
year of 1951 but astonishingly, the defendants fraudulently managed the
registered sale deed by showing the year of 1956. From perusal of record, it
seems that Mahmood and Muhammad Nawaz Dasti, 09-05-1956 through registered sale
deed to Bhai Khan Dasti and Kouro, Murad Baksh and Nawazo on 02-05-1956 vide
registered sale deed sold out the land (Suit land) to Faiz Muhammad, Lal Baksh
and Mitho Dasti and it was incorporated in the revenue record. Moreover, from
the said scenario of evidence, it is reflected that suit land was sold out in
the year of 1956 and Mahmood, Muhammad Nawaz Dasti and Kouro, Murad Baksh and
Nawazo had sold out the suit land through registered sale deeds pertaining to
the year of 1956, which were incorporated in the revenue record and even the
plaintiffs at this stage have no right and title over the suit land, therefore,
the suit of the plaintiffs is barred by the Section 42 of the Specific Relief
Act, 1877.
It is necessary to mentioned here that appellants have
failed to show any proof regarding possession of the land with them, or they
paid any revenue to Revenue Authorities in shape of Dhall etc. though
appellants were made liable to prove that they had been in possession and paid
such revenue but no such evidence is available. It is pertinent to mention here
that death certificate of the deceased Mehmood is also issued much after long
period of transfer of the property in the name of respondent and they have
never claimed such right in the property since 1956 till filing of the suit or
approaching to the revenue forum.
Hence
to my wisdom this issue not proved by the appellants and rightly discussed by
the original court.
ISSUE NO. 03 FRAMED BY
THE ORIGINAL COURT:
Burden to prove this issue rightly imposed upon appellants but they failed to
prove through oral or any documentary proof that when, how, under what
consideration land in dispute was given to the respondents on harap basis, what
was produce which they were receiving during that period and when, how, from
whom they firstly took possession and then handed over to the private
respondents, in such circumstances the appellants have been failed to prove this
issue, as such I agree with the findings of the original court.
ISSUE NO. 04 FRAMED BY
ORIGINAL COURT: .
Burden to prove this issue rightly imposed upon the plaintiff, as respondent
were in possession of registered documents almost 70 years old and during
evidence the defendant has proved through production of original documents and
it’s competent authority, it is pertinent to mention here that on basis of
these deeds (sale deeds) revenue authorities maintained such record of rights,
which is still intact and in the way of appellants, wherein they filed appeal
but left undecided, failed to produce final order, which again comes in the way
of the appellants and adversely affect them. It is pertinent to mention
here that appellants failed to prove ingredients of fraud, when, how, where and
under whose management, supervision such fraud was committed and how the
registered documents is forged and could be declared as forged only on the
statement of the appellants without any cogent evidence. Hence to my wisdom
original court rightly observed that appellants failed to prove this issue.
ISSUE NO. 05 FRAMED BY
THE ORIGINAL COURT:
This issue was also from the pleading of the
appellant, therefore, the burden to discharge it having rest upon their
shoulders. Appellants are claiming that legal heirs of deceased Muhammad Ali
namely Mahmood in the year of 1951 was expired and how he sold out the suit
land in the year of 1956 and produced the death Registration certificate of
deceased Mahmood at Exh.21/E. On scrutiny of record, it appears that neither
plaintiffs in support said death certificate examined ascribor /author of said
document and even failed to bring on the record that deceased Mahmood expired
prior to execution of registered sale deed in the year of 1951 besides the said
document (death certificate) has been obtained in the year of 2015, after the
lapse of more than sixty five years, which lacking the evidentiary value and
even it is not reliable and trustworthy and the plaintiffs also failed to bring
the plausible explanation with regard to obtaining the said death certificate
with such delay, that is too after starting litigation and nothing is produced
before original court regarding death of Mehmood issued prior to litigation or
registration of such disputed deeds. Hence the findings of original court are
very much in accordance with law and evidence.
ISSUE NO. 06 FRAMED BY
THE ORIGINAL COURT:
In this regard original court has wrongly put the burden upon the defendants/ respondents, as it is the case of appellants that respondents are in illegal occupation of the land and they had forcibly occupied but on the other hand defendants / respondents having lawful possession with the support of oral and documentary proof of registered documents of more than sixty years old. As such I have no hesitation to say that result of issue is concluded rightly that respondents are not in illegal occupation with difference of findings.
J U D G E
Ihsan/*