IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Civil Revision No.S- 83  of 2011. 

Applicant:                     Manzoor Ali Meeraci & others through Mr. Akeel Ahmed Bhutto,  advocate.

Respondents                 Muhammad Umar Mangsi & others.

                                    Mr. Fida Hussain Chandio, advocate for respondent No.1.

                                    Mr. Ali Raza Pathan, State Counsel, on behalf of official

                                    respondents.

Date of Hearing:           18.12.2012.                      Date of Judgment : _24.12.2012.

J U D G M E N T .

NAIMTULLAH PHULPOTO, J-     This Civil Revision Application under section 115, CPC is directed against the concurrent findings of the fact recorded by Senior Civil Judge, Mehar and 1^st Additional District Judge, Dadu, whereby First Class Suit No.72/2010 re: Muhammad Umar Mangsi versus Manzoor Meeraci and others, filed for Declaration, cancellation of sale deed and permanent injunction brought by Muhammad Umer respondent No.1 against the applicant and others was decreed.

                        Brief facts of the case of plaintiff/respondent No.1’s are that there is land bearing survey No.241, admeasuring 3-29 acres, situated in Deh Peroz Shah, Tapo Nari, Taluka Mehar.  Out of total area of the said land, 50 paisa share (hereinafter referred to as the suit land) originally belonged to Mst. Shah Khatoon (mother of the respondent No.1/plaintiff) being old ‘khatedar’ of the year 1954/55 and such entry No.73 was also made in her name.  It is case of the respondent NO.1/plaintiff that Mst. Shah Khatoon daughter of Chatto, wife of Punhoo Khan Magsi expired in the year 1945 leaving behind only one son, namely, Muhammad Umar (respondent No.1/plaintiff) and Mst.Shah Khatoon was in possession and enjoyment of the suit land in her lifetime and after her death the respondent/plaintiff is in possession and enjoyment of the suit land being his ancestral property and paying land revenue assessment to the government. Respondent NO.1/plaintiff was approached by the applicants/private defendants claiming that the suit land was their purchased property through registered sale deed by one Jhando Meeraci, who expired issueless and the applicants/private defendants claimed to be the legal heirs of late Jhando Khan and they demanded possession and produce of the suit land from the respondent No.1/plaintiff about two months prior to filing of suit. Thereafter, son of respondent No.1/plaintiff, namely, Abdul Hameed filed a suit being F.C. Suit No.27/2008 in Court, but the same was dismissed in default in non-prosecution. Respondent NO.1/plaintiff has stated that the sale deed dated 5.4.1948 and entry No.570/2 in the name of Jhando Meeraci are managed with the collusion of revenue staff.  As per the case of plaintiff,  mother of respondent No.1/plaintiff expired in the year 1945,  alleged registered sale deed is said to be executed by her in the year 1948, which all shows clear fraud.  Moreover, the sale deed allegedly was executed in the year 1948, while the khata in respect of said registered sale deed was mutated  in the year 2008, about 60 years.  Respondent NO.1/plaintiff had further mentioned that neither Mst. Shah Khatoon executed any registered sale deed in favour of Jhando Khan Meeraci, nor possession was handed over to him, but the applicants/defendants No.1 to 3 were trying to take forcible possession of the suit land through police viz., defendants No.7 and 8 and that the applicants/defendants No.1 to 3 were trying to sell out the suit land to the strangers with malafide intention, they have no concern whatsoever with the suit land.  Plaintiff Muhammad Umer prayed for Judgment and decree as under : 

a) To decree the suit of the plaintiff against the defendants and to declare that the suit land is the ancestral property of the plaintiff and the defendants have got no legal right, title or interest in the suit land.

b) That Honourable Court further may  be pleased to declare that the sale deed dated 05.4.1948 and entry No.570/2 dated 20.12.2008 are illegal, false fictitious and managed and may be cancelled and the Sub-Registrar concerned may be directed to make such a note of cancellation of sale deed in his register.

c) To grant costs or any other relief or relief whatever the Honourable Court deems fit and proper in the circumstances of this case.

            The appellant No.1/defendant contested the suit by filing written statement stating therein that Mst. Shah Khatoon had sold out 50 paisa share out of survey nNo.241 of deh Peroz Shah to his uncle namely Jhando s/o Nawab Meersi through registered sale deed dated 15.4.1948 and such entry was made in the revenue record and  appellant/defendant No.1 to 3 are enjoying the possession as owner. It has been stated that the respondent No.1/plaintiff occupied the suit land forcibly before filing the suit. It has been further stated that the son of respondent No.1/plaintiff had filed civil suit of same nature which was dismissed in non prosecution. It has been stated that Mst. Shah Khatoon expired in the year 1960 and not in the year 1945. It was prayed for dismissal of suit.

            Out of Pleadings of parties, issues were framed by trial Court.

                        Both parties adduced evidence in support of their case. Learned  Senior Civil Judge, Mehar  after hearing both the parties decreed the suit vide his judgment and decree dated 12.5.2011 & 16.5.2011 respectively. The said judgment and decree were upheld in Civil Appeal No.38/2011 by the learned Ist Additional District Judge, Dadu vide judgment dated 23.9.2011.

                        I have heard learned counsel for the parties and with their assistance gone through the depositions and judgments placed on record.

                        Learned trial Court has discussed evidence in detail and examined documents particularly sale deed dated 05.4.1948 minutely and came to conclusion that sale deed in question has been managed by applicants/defendants after death of Mst. Shah Khatoon. In appeal it was held that Mst. Shah Khatoon had expired before the date of execution  of registered sale deed (5.4.1948) and observed that execution of sale deed has not been proved.  Article 79 of Qanun-e-Shahadat 1984 reads as under:-

            “If a document is required by law to be attested-it shall not be used as evidence until two attesting witnesses at-least have been called for the purposes of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence.

            Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the Registration Act, 1908 (XVI of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied.”

                        In my view, by sound reasons Judgment and decree passed by Senior Civil Judge have been maintained and appeal No.38/2011 has been dismissed. Two Courts below while recording finding of fact have neither misread evidence or have ignored any material piece of evidence.

                        No other point worth consideration has been raised in support of their  revision. Since concurrent findings of the fact on the face of the record are neither arbitrary nor fanciful or perverse. There is no scope for interference by this Court in exercise of the revisional jurisdiction which is essentially meant for correcting error of law committed by sub-ordinate Courts. Needless to mention such jurisdiction is restricted and narrowed one.  In this regard reference can be made to the dictum laid down by the Honourable Supreme Court of Pakistan in the case of Haji Muhammad Din versus Malik Muhammad Abdullah PLD 1994 Supreme Court 291. Relevant portion is reproduced as under :

“4.        It is well settled law that a concurrent finding of fact by two Courts below cannot be disturbed by the High Court in second Civil Appeal much less in exercise of the revisional jurisdiction under section 115, C.P.C, unless the two Courts below while recording the finding of fact have neither misread the evidence or have ignored any material piece of evidence on record or the finding of fact recorded by the two Courts below is perverse. The jurisdiction of the High Court to interfere with the concurrent finding of fact in revisional jurisdiction under section 115, C.P.C is still narrower. The High Court in exercise of its jurisdiction under section 115, C.P.C can only interfere with the orders of the subordinate Courts on the grounds, that the Court below has assumed jurisdiction which did not vest in it, or has failed to exercise the jurisdiction vested in it by law or that the Court below has acted with material irregularity effecting its jurisdiction in the case, (See Umar Dad Khan v. Tilla Muhammad Khan, PLD 1970 SC 288, Muhammad Bakhsh v. Muhammad Ali1984 SCMR 504, Muhammad Zaman v. Zafar Ali Khan PLD 1986 SC 89 and Abdul Hameed vf. Ghulam Muhammad 1987 SCMR 1005). Under this jurisdiction the High Court only corrects the jurisdiction errors of subordinate Courts. The fact that the High Court while reappraising the evidence on record reached a conclusion different from those arrived at by the two Courts below, could never be a ground justifying interference with a finding of fact much less a concurrent finding recorded by the two Courts below on the basis of evidence produced before them, in exercise of its revisional jurisdiction under section 115, C.P.C.”

                        For the aforesaid facts and reasons I have come to the conclusion that there is no merit in this revision application which is accordingly dismissed.

Judge