Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

R. A. No. S – 69 of 2011

Before :

Mr. Justice Muhammad Shafi Siddiqui

Date of hearing : 17.12.2018 & 14.01.2019.

Mr. A. R. Faruq Pirzada, Advocate for the applicants.

Mr. Sarfraz A. Akhund, Advocate for the respondents.

Mr. Noor Hassan Malik, Assistant Advocate General Sindh.

J U D G M E N T

MUHAMMAD SHAFI SIDDIQUI, J. – Suit No.26 of 2007 was filed by one Muhammad Sharif whose legal heirs, after his sad demise became party to the proceedings and have also filed this Revision Application. Connected suit i.e. Suit No.58 of 2007 was filed by Abdul Razaque and Bashir Ahmed. The suit for specific performance i.e. Suit No.26 of 2007 was filed against three brothers Abdul Razaque, Bashir Ahmed and Abdul Rehman. During the proceedings, Abdul Rehman compromised with Muhammad Sharif and, hence, the subsequent Suit No.58 of 2007 was filed by the other two brothers for possession and mesne profit. The suit for specific performance was dismissed, whereas, suit for possession was decreed. A consolidated judgment was passed by the Senior Civil Judge, Kandiaro while Suit No.26 of 2007 was considered as the leading suit.

2. Against the judgment, two appeals were filed by the applicants; one against the dismissal of the suit for specific performance and the other against the decree passed against them in the connected suit. The third appeal No.49 of 2009 was filed in respect of mesne profit issue by the respondents.

3. Abdul Razaque claimed to have executed sale agreement for self and on behalf of other brothers which contention is denied by him in the written statement.

4. The issues which were framed by the trial Court are as under:

“ Whether the defendant namely Abdul Razak had executed sale agreement dated 26-10-1996? OPP.

2. Whether the plaintiff namely Muhammad Sharif had paid Rs.50,000/- to defendant Abdul Razaque as a part payment of consideration? OPP.

3. Whether the possession of the land was handed over to the plaintiff namely Muhammad Sharif by the defendant Abdul Razaque? OPP.

4. Whether the plaintiff Abdul Rauf is entitled for possession of the suit land?

5. Whether the plaintiff is entitled for Mesne Profits? If so from which date and on what rate?

6. What should the decree be? ”

5. The appellate Court maintained the order of the trial Court and dismissed the appeal of the applicants. Since the issue of mesne profit was declined by the trial Court, the findings to that extent were reversed in the judgment of Suit No.58 of 2007, and the trial Court was directed to appoint responsible Revenue Officer for determining the quantum of mesne profit on account of illegal possession of the suit land though until 1997, the brother of Muhammad Sharif was in possession as lessee.

6. The agreement claimed to have been witnessed by Muhammad Juman, Abdullah Khoso and Loung, whereas, parties were identified by Muhammad Saleh, Stamp Vendor at Kandiaro. Loung, who was examined as witness of the applicants and deposed facts of the case that around 11 to 12 years back at 09:00 a.m. when he alighted at bus stop near office of Mukhtiarkar Kandiaro, both applicants and respondents asked him to become witness of the document. The applicants also examined one Zafar Ali at Exhibit 158, who went to the office of Mukhtiarkar for obtaining domicile.

7. Abdul Razaque was never authorized by his two brothers nor was holding any authority or power-of-attorney, hence, no agreement deemed to have been signed by him on behalf of his brothers.

8. The trial Court observed that the evidence of the witnesses was not confidence inspiring as Loung did not recognize his thumb impression available on the alleged sale agreement nor was he aware about the possession of the suit land. Both the scriber Muhammad Saleh and the notary public Willayat Hussain Noohpoto claimed to have expired at the time when the evidence was recorded.

9. The trial Court on this set of evidence reached to the conclusion that the applicants / plaintiffs failed to prove their case as far as execution of the sale agreement is concerned. Evidence of Loung was not confidence inspiring as the facts narrated by him were not believable. Abdul Rauf being son of Abdul Razaque, the alleged executant was examined but he denied the execution of the agreement by his father as it does not bear the signature of his father. The document was never sent to forensic / handwriting / signature expert. Asghar Zaman son of Bashir Ahmed, the other brother was also examined who stated that his father was co-owner and never authorized Abdul Razaque either orally or in writing to sold his share.

10. Perusal of deposition reflects that 10 to 12 years old facts were deposed and two Courts below held that it was not inspiring and same conclusion reached by two Courts below. To support the quality of evidence, the documents could have been sent to forensic expert but applicant failed to discharge this burden. The jurisdiction of this Court is within the frame of Section 115, CPC, which has its own restriction. Against concurrent findings of two Courts below, the quality of evidence available is not of a kind which could reverse the findings.

11. The applicant claimed to be in possession of the subject property, however, he was unable to demonstrate as to how he came in possession. The agreement is absolutely silent as far as delivery of possession is concerned. His brother was a lessee of the land in question, however, the lease expired in the year 1997 and the possession of his brother is neither in pursuance of the sale agreement nor could he be deemed to be in possession as a lessee after the sad demise of his brother. His only defence was that he was given possession of the suit land in part performance of the agreement which has not come out of the evidence and the agreement. His own witnesses denied his version as there was no decision being taken as far as possession is concerned at the time of alleged agreement. In fact, the record and proceedings were called and original agreement was perused. It reflects a contrary view about possession which is to be delivered at the time of the registration of sale deed, hence, the evidence of the applicants is not confidence inspiring.

12. This suit for possession is only to the extent of claim of two brothers i.e. 3 acres 12 ghuntas, whereas, it is claimed that that the share of two, had it been divided in three equal portions, would have come to 2 acres 39½ ghuntas for two brothers. These minute issues of share amongst three brothers could not be ascertained in this Revision Application as it may be an amicable settlement amongst them and there are no questions or suggestions made in evidence by applicant. Hence, on this count, the judgments and decrees two Courts below cannot be overturned.

13. The Revision Application as such was dismissed by short order dated 14.01.2019 and above are the reasons for the same.

J U D G E

Abdul Basit