Order
Sheet
IN THE HIGH COURT OF SINDH, BENCH
AT SUKKUR
R. A. No. S – 25 of 2014
Before :
Mr. Justice
Muhammad Shafi Siddiqui
Date of hearing : 11.02.2019.
Mr.
Mukesh Kumar G. Karara, Advocate for the applicants.
Syed
Jaffar Ali Shah, Advocate for respondent No.1.
Mr.
Kalander Bakhsh M. Phulpoto, Advocate for respondents No. 13 and 14.
Mr.
Mehboob Ali Wassan, Assistant Advocate General Sindh.
O
R D E R
MUHAMMAD SHAFI SIDDIQUI, J. – Being aggrieved and dissatisfied with the
judgment and decree of the appellate Court dated 24.03.2014 and also judgment
and decree dated 08.01.2014 and 10.01.2014 respectively of Ist Senior
Civil Judge, Khairpur in Suit No.39 of 2011, the applicants preferred this
Revision Application.
2. Brief
facts are that respondent No.1 / Syed Warand Ali Shah filed a suit bearing
No.93 of 2011, having new No.39 of 2011, for a declaration of land viz. 18‑23
acres out of Survey No.5, 6, 7, 8 and 9 situated in Deh Ranipur, Taluka
Sobhodero, District Khairpur. The suit was contested by the applicants Muhammad
Rafique and Abdul Qadir. The trial Court decreed the suit of respondent No.1,
which order was maintained by the appellate Court.
3. Applicants,
while defending suit, had relied upon a revenue entry of 1971. The subject
property was admittedly owned by one Mst. Allan Bai. The revenue entry
available at page 141, as relied upon by the applicants’ counsel, shows the
entry in the name of applicants’ predecessors. By virtue of an alleged gift in
the year 1977, the entries in the name of applicants were inserted. Respondent
No.1 claims to be the son of Mst. Allan Bai. He, however, claimed his
independent right over the property by virtue of sale deed / registered instrument
of 1978 besides being son of Mst. Allan Bai.
4. Learned
counsel for the applicants has relied upon different enquiries of Mukhtiarkar
Sobhodero. At the time of recording evidence, the Mukhtiarkar was summoned by
respondent No.1 / plaintiff. In the examination-in-chief, he deposed that
Ex.65/B is an entry, which is signed by Tapedar of Deh Hingorja, whereas, the
suit land is situated in Deh Ranipur. He further deposed that as per record,
the signature or thumb impression of Mst. Allan Bai was not found available on
record. He further stated that statement of sale of Mst. Allan Bai was also not
available on record. He further deposed that as per record, the names of
witnesses of sale are mentioned, however, their statements are not available on
record. According to the Mukhtiarkar, sale without statement of seller and
statements of witnesses is invalid, and the entry on the basis of it, is also
not valid and that Mukhtiarkar Sobhodero was not competent to attest the old
entry. He was cross-examined by advocate Mr. Kalander Bakhsh Phulpoto, who
was appearing for the defendants (present applicants) and also for National
Highway Authority for whom the land was acquired. He was allowed to appear for
both the parties before the trial Court. Witness denied in the
cross-examination that the thumb impression of vendor and her oral sale
statement is/was available on record and that he also denied this statement to
be false. Applicants / defendants also summoned one Salahuddin, the Mukhtiarkar
Sobhodero as Ex.80. He produced a report issued to the Additional Commissioner
from his office on 16.11.2012 as Ex.80/A. He produced only a photocopy of the
said report, which was objected. The case was adjourned for his further
examination-in-chief, however, he subsequently deposed on 23.10.2013 that he
had searched the record but did not find the original of photocopy of Ex.80/C,
which is a report dated 09.07.2012. He, thus, produced photocopies of reports
dated 16.11.2012, 07.12.2011 and 09.07.2012. He maintained that the entries in
the name of the applicants were maintained on the basis of earlier entry No.44.
5. The
following issues were framed:
“ 1. Whether the suit of
the plaintiff is maintainable?
2. Whether the suit is
time barred?
3. Whether
Mst. Allan Bai had not sold out the suit property to Mehmood Ahmed and Ahmed
Din in equal shares vide mutation entry dated 24.8.1971?
4. Whether
the plaintiff was not aware of the sale of suit land by Mst. Allan Bai to
Mehmood Ahmed and Ahmed Din and registered gift deeds in favour of defendants
No.1 and 2?
5. Whether
Mst. Allan Bai was competent to sell the suit property to the plaintiff through
registered sale deed dated 15.01.1978?
6. Whether
the defendants No.1 and 2 are in possession of the suit property since 24.8.1971
as owners?
7. Whether
the mutation entry dated 24.8.1971 is false and fabricated?
8. Whether
the defendants No.1 and 2 received the compensation of acquired land through
competent forum? If so what is its effect?
9. Whether
the defendants are in illegal possession of the suit property?
10. Whether
the plaintiff is entitled for the Mesne Profits? If so since when and at what
rate?
11. Whether
the plaintiff is entitled for the relief prayed for?
12. What
should the decree be? ”
6. The crucial
question involved is the alleged oral statement of Mst. Allan Bai on the
strength of which the predecessors of the applicants claimed ownership and an
entry was inserted in the year 1971. The trial Court discussed the issues at
length. The land turned barren in nature with passage of time. As against
the claim of respondent No.1 / plaintiff, which is based on registered sale
deed, the applicants / defendants have not been able to discharge his burden
satisfactorily. Neither the statement of Mst. Allan Bai was produced nor
the supporting witnesses came for rescue.
7. It may have been a
matter of fact that at the relevant time the entries were to be made on the
basis of “statement” but that statement itself is missing. Even the entry of
1971 in favour of applicants’ predecessors was not verified by any thumb
impression or signature of Mst. Allan Bai i.e. even oral entry was not
verified. The trial Court on the preponderance of the evidence held that the
claim of the defendants’ / applicants’ predecessors on the strength of an entry
is not confidence inspiring. The enquiries at the time of land acquisition
cannot be a substitute of judicial determination of title. Respondent No.1 /
plaintiff was able to produce a registered sale deed in his favour executed by
Mst. Allan Bai, whose title is admitted. A registered gift in favour
applicants is only based on entry of 1971, for which entry roots are not
traceable. Even the factum of payment was not established by applicants /
defendants. On account of a serious challenge to the entries in favour of the
applicants, the onus was on the beneficiary of the mutation entry to prove not
only the mutation but also the original transaction.
8. Mutation itself
does not create a title and a person driving title thereunder had to prove that
the same was lawfully entered and attested, thus, no presumption of correctness
was attached to the mutation entries till they are proved satisfactorily and
independently through cogent evidence. Any subsequent entry or title on the
basis of such entry of 1971 thus would also fall along with original sin.
9. Thus, in my view,
the trial Court and the appellate Court had rightly reached to the conclusion
that the applicants / defendants have not able to successfully defend the suit
of respondent No.1, which is based on registered instrument / sale deed. The
applicants / defendants failed to establish that the entry of 1971 was inserted
on the strength of a statement independently recorded before the Mukhtiarkar in
accordance with law. Even the witnesses failed to support the defence taken by
the applicants. Within the frame and parameter of Section 115, CPC, this Court
has limited jurisdiction to scrutinize the judgements and the concurrent
findings of two Courts below.
10. This Court is open
to upset the findings only in case the applicant was able to prove that Courts
(a) have exercised a jurisdiction not vested in it by law, or
(b) have failed to exercise a jurisdiction so vested, or
(c) have acted in
the exercise of its jurisdiction illegally or with material irregularity, the
High Court may make such order in the case as it thinks fit.
11. Thus, I do not find
any material to upset the findings of two Courts below and, hence, dismissed
the Revision Application vide short order dated 11.02.2019 (today);
these are the reasons for the same.
J U D G
E
Abdul Basit