ORDER SHEET
IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD.
R.A.No.56 of 1988
DATE ORDER WITH SIGNATURE OF JUDGE
For order on statement
Date of hearing: 25.08.2014.
Date of order: 08 .09.2014.
Mr. Saeeduddin Siddiqui Advocate for the Applicants.
None for the respondents.
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NAZAR AKBAR J:- This Civil Revision Application is directed against the Judgment and Decree dated 15.11.1987 and 12.12.1987 passed by learned District Judge Hyderabad in Civil Appeal No.52/1987, whereby the appeal preferred by the applicants was dismissed and Judgment and Decree of the trial court dismissing civil Suit No.27/1972 for Specific performance of contract filed by the applicants against the respondents were maintained.
2. Brief facts leading to this Revision Application are that the applicants filed civil Suit No.27/1972 for Specific Performance of contract and injunction against the respondents in respect of agricultural land bearing S.No.56 admeasuring 7-1 acres situated in Deh Bhanoki Taluka Tando Allahyar District Hyderabad (now District Tando Allahyar), (hereinafter referred to as the suit land), claiming that the respondent No.1 had agreed to sell the suit land to the applicants at the rate of Rs.1000/- per acre in presence of the respondent No.2 who was also attorney of respondent No.1. The applicants were put into possession of the suit land who were already in possession thereof in capacity of lessee. The applicants contended that they paid Rs.2000/- through Bank Draft, Rs.4500/- in cash to the respondents No.1 & 2 towards the sale consideration as well as Rs.350/- through Bank Draft and cash Rs.175/- , thus the applicants paid total Rs.7025/- being entire sale consideration of the suit land to the respondent No.1. The applicants further contended that the respondents No.1 & 2 kept the applicants on false hopes to execute the sale deed after completion of necessary requirements and also on account of health of the respondent No.1. The applicants have already performed their part of contract but the respondents failed to perform their part of contract. On 19.10.1972 the applicant No.2 came to know that the respondent No.2 being attorney of respondent No.1 has got prepared sale deed on behalf of respondent No.1 in respect of the suit land in favour of respondent No.4 with malafide intention. According to the applicants, since the respondent No.1 had already entered into contract of sale of the suit land with the applicants, therefore, subsequent sale deed in favour of respondent No.4 was abinitio illegal, void and has no legal effect.
3. The respondent No.4 contested the suit before the learned trial court and filed written statement denying the claim of the applicants while other respondents were declared exparte.
4. After hearing the parties, learned trial court dismissed the suit of the applicants and such Judgment and Decree were assailed before the appellate court in Civil Appeal No.52/1987 which met with same fate. The applicants has challenged the concurrent findings of courts below through the Revision Application.
5. I have heard learned counsel for the applicants and perused the record. The respondents have abandoned the proceedings and their counsel are also not attending this court. Mr. Saeeduddin Siddiqui advocate for the applicants has contended that two courts below have failed to appreciate the document i.e. receipt of payment of Rs.6500/- dated 22.08.1972. He further claimed that since the applicants were prior purchaser of the suit land, therefore, subsequent sale to respondent No.4 through registered sale deed dated 19.10.1972 was fraudulent. He has claimed that being lessee / tenant, the plaintiffs were in possession of the suit land and after oral agreement of sale, their possession was protected U/S 53-A of Transfer of Property Act. He has relied on PLD 1984 SC 424(Habibur Rehman and another Vs. Mst.Wahdania and others) and PLD 1975 AJK 20 (Ch. Muhammad Ibrahim Vs. Ch. Ibrahim and 2 others).
6. I have perused the record, which shows that initially the suit for specific performance of contract was filed at the wrong forum of Senior Civil Judge since the plaintiffs had impleaded the Government of Sindh and Sub Registrar Tando Allahyar in their suit for specific performance, therefore, pliant of the suit was returned to them with directions to delete the name of official defendants. Subsequently it was filed in the court of Civil Judge Tando Allahyar, which was dismissed on 16.01.1975 against Muhammad Ilyas (respondent No.1), Muhammad Zubair (respondent No.2) and Ghulam Hussain (respondent No.3) for non-payment of costs of summons. An application for restoration filed on 20.02.1975 was allowed despite the fact that such application was time barred, therefore, applicants filed an application for condonation of delay U/S 5 of Limitation Act on 30.02.1976 i.e. after lapse of more than one year insptie of the fact that the suit was already restored. The review application filed by the applicants against these orders was dismissed without any cogent reason and ultimately Civil Revision Application No.10/1979 was filed against the orer of restoration application and the application for condonation of delay U/S 5 of Limitation Act. This Revision Application was partly allowed as learned IVth Additional District judge, Hyderabad by order dated 24.09.1979 accepted the Revision against respondents No.1 and 4 and declared that the suit against the respondents namely Muhammad Zubair and Ghulam Hussain stands dismissed and remanded the suit No.27/1972 back to learned Civil Judge, Tando Allahyar for decision on merits. On remand, the learned Civil Judge Tando Allahyar recorded evidence, heard the parties and dismissed the suit on merits by Judgment dated 27.11.1980 and the applicants/ plaintiffs again preferred an appeal No.10/1982 against the said Judgment dated 27.11.1980, which was allowed by learned Ist Additional District Judge, Hyderabad by order dated 17.11.1983 and the case was remanded with directions to the parties to file amended plaint and amended written statement and trial court to frame issues and pass orders afresh.
7. The applicants on second round filed amended plaint on 15.02.1984 and sole defendant No.4 filed his amended written statement on 07.05.1984 and the L.Rs of defendant No.1 were made exparte on 10.12.1985. The suit against defendants No.2 & 3 had already been dismissed in earlier round in Civil Revision No.10/1977 and the said order had attained finality. Perusal of amended plaint shows that the applicants /plaintiffs did not amend their plaint to include the prayer of cancellation of registered sale deed dated 19.10.1972 in favour of respondent No.4 namely Manghan son of Bagho and repeated the same prayer which reads as follows:-
i. That the defendant No.1 & 2 and 4 be directed to perform the remaining part of the contract by execution and registration of sale deed and reconvening the suit land in favour of the plaintiffs and in case of their failure, Officer of this Honourable Court to execute and register the requisite sale deed and reconvening the suit land in favour of the plaintiffs;
ii. That the defendants No.1 to 4, be restrained by injunction from interfering with the possession of the plaintiffs through themselves, their agents, assignees and persons claiming interest through them and Sub Registrar be restrained from registering the said deed said to be executed by the defendant No.1 through defendant No.2 or any other person in favour of the defendant No.4 or any other person and taking further proceedings except in favour of the plaintiffs.
iii. Costs of the suit be awarded to the plaintiffs.
iv. Any other relief which this Hon’ble Court deems fit and proper.
8. The parties only filed amended pleadings and did not led fresh evidence and preferred to rely on the evidence already available on record. The learned Civil Judge by Judgment dated 21.02.1987 dismissed the suit on the basis of evidence as according to him, the plaintiffs had failed to establish by positive documentary evidence that the transaction of sale had taken place. Amongst others, some of the reasons advanced by the learned Civil Judge were that the plaintiffs claimed to have purchased the suit land through attorney but failed to produce any power of attorney executed by the defendant No.1 in favour of defendant No.2 to sell the suit land on his behalf to the plaintiffs. The plaintiffs’ witnesses namely Naraindas and Juman Ex.41 and 105 have not supported the payment of Rs.7,025/- or Rs.6500/- made by the plaintiffs to the defendant No.1 in connection with transaction of suit land as indicated in Ex.29 and none of the witnesses had deposed that the defendants No.1 & 2 had sold out the suit land to the plaintiffs in their presence. The plaintiffs had also failed to produce any document to show that they are in possession of the suit land. On the other hand, respondent No.4 claiming to be a bonafide purchaser of the suit land through registered sale deed in his favour and he is in possession of the suit land as well, therefore, suit for specific performance against respondent No.4 was not maintainable.
9. On appeal against the said Judgment and Decree of Civil Judge dated 21.07.1987, the learned IIIrd Additional District Judge, Hyderabad while dismissing the appeal No.52 of 1987 maintained the findings of the trial court. The applicant through the instant Revision has challenged the concurrent findings of courts below.
10. Learned counsel for the applicants has not been able to demonstrate from the evidence that the Judgments and Decrees of two courts below were contrary to facts and record. The contention that the learned trial court and appellate court have not examined the receipt dated 22.08.1972 is not correct as the learned trial court has specifically mentioned in the Judgment that the witnesses of the applicants/ plaintiffs have not confirmed such payment in relation to the sale of the suit land to the plaintiffs. Even otherwise, it is clear from the plain reading of the plaint that no date and time of even oral agreement has been mentioned in the plaint. Not only that, the plaintiffs are admittedly not in possession of the suit land since 1972 and they are claiming only an oral agreement as against the respondent No.4, who is claiming his title through registered sale deed. The counsel for the applicants has admitted that the applicants are not in possession of the suit land, however, he claims that they have been dispossessed by the respondent No.4 during pendency of the civil suit No.27/1972 and before the Judgment. Despite the fact that the applicants were dispossessed in 1972 during pendency of the suit, the plaintiffs did not amend their plaint to include the prayer of possession of the suit land. An oral claim of agreement of sale which is not proved before the trial court is not sufficient to defeat the title of the respondent No.4 based on registered sale deed. It is important to note here that the applicants/ plaintiffs have mentioned the date of registered sale deed in favour of the respondent /defendant No.4 in the memo of their plaint but they have not sought cancelation of such sale deed. They have asserted fraud in sale of the suit land to the respondent No.4 but no particulars of alleged fraud were mentioned in the plaint nor even disclosed in the evidence, therefore, the suit ought to have been dismissed on this score alone.
11. The case law cited by the learned counsel for the applicants i.e. PLD 1984 SC 424(Habibur Rehman and another Vs. Mst.Wahdania and others) and PLD 1975 AJK 20 (Ch. Muhammad Ibrahim Vs. Ch. Ibrahim and 2 others) have become irrelevant in the facts and circumstances of the case. Admittedly the applicants are not in possession of the suit land since 1972 therefore, their claim of protection of possession U/S 53-A of Transfer of Property Act is not available to them.
12. In view of the above discussion, this Revision application merits no consideration and same is dismissed with no order as to costs.
JUDGE
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