Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

R. A. No. S – 84 of 1997

Before :

Mr. Justice Muhammad Shafi Siddiqui

Date of hearing : 15.02.2019.

Mr. Shafqat Raheem Rajput, Advocate for the applicants.

Mr. Abdul Qadir Abro, Advocate for the respondents.

J U D G M E N T

MUHAMMAD SHAFI SIDDIQUI, J. – This Revision Application is arising out of an order passed in Civil Appeal No.19 of 1995 by IV^th Additional District Judge Shikarpur whereby the judgment and decree in Civil Suit No.142 of 1993 (Old No.61 of 1981) passed by Civil Judge Shikarpur was set aside and the suit of the respondent / plaintiff was decreed.

2. Brief facts of the case are that a suit bearing No.61 of 1981, which apparently was assigned new No.42 and/or 142 of 1993 (the judgment discloses 42, whereas, certified copy of the judgment of the Civil Judge Shikarpur shows it as 142 of 1993 at page 119 of the Revision Application), was filed by the respondent Iqbal Ahmed son of Habibullah in respect of land out of Survey No.164 and 165 measuring 2-20 acres. Survey No.164 contains 4-34 acres; Survey No.165 contains 6-16 acres of Deh Shikarpur, commonly known as Jalal Garden. Respondent in his plaint pleaded that the agricultural land comprising of Survey Nos.164 and 165, referred above, commonly known as Jalal Garden was owned by Mst. Latif Khatoon, Mst. Feroze Khatoon, Mst. Razia Begum, Mst. Naushaba and Ahmed Khan. Plaint contains their respective shares in the suit property.

3. After death of Ahmed Khan, one of the co-sharers, his sons namely Haq Nawaz Khan and Haman Khan alias Abdul Hameed Khan, being legal heirs, acquired the share of their father to the extent of 2-20 acres. It is pleaded that by way of registered instrument on 15.05.1975, the above named sons Haq Nawaz Khan and Haman Khan sold the said share in the land as inherited by them through their father Ahmed Khan to one Aga Deedar Nabi Khan son of Ghulam Nabi Khan.

4. The purchaser Aga Deedar Nabi Khan sold the said share in the land to the respondent / plaintiff by registered instrument / sale deed dated 04.02.1980. Possession in pursuance of sale deed is claimed to have been handed over / delivered accordingly.

5. Earlier a decree in respect of subject property was also a bone of contention, as pleaded in paragraph 9, but neither the respondent, as being plaintiff, nor the applicant as being defendant provided any copy or gave importance to the said decree which claimed to have covered the subject property.

6. The respondent, however, on a threat of being dispossessed from the suit land filed suit for declaration. The suit was contested by the applicant only by filing written statement. No document was attached with the written statement, however, decree in Suit No.87 of 1982 and its record was relied upon. Issues were framed on 05.06.1985, which are as under:

“ 1. Whether the suit is not maintainable according to law?

2. Whether the suit is barred under section 42 of Specific Relief Act?

3. Whether the suit is incorrectly valued and insufficiently stamped if so its effect?

4. Whether this Court has no jurisdiction to entertain this suit?

5. Whether the sale deed dated 4.2.1980 is legal, valid and genuine?

6. Whether the plaintiff is owner of the suit land?

7. What should the decree be? ”

7. Respondent being plaintiff examined his attorney Habibullah as Ex.97, who was also his father. He produced General Power of Attorney as Ex.98, Khasragardwari for the year 1973-74 registered sale deed dated 15.05.1976 as Ex.100, Khasragardwari for the year 1978-79 as Ex.99, registered sale deed dated 07.02.1980 as Ex.102, photocopy of sale deed as Ex.103, judgment and decree in Civil Suit No.04 of 1982 by Civil Judge Shikarpur as Ex.104 and 105. Respondent / plaintiff also examined Ghulam Muhammad as Ex.106, whereas, despite repeated adjournments and chances defendants / applicants failed to lead evidence in the case and, hence, their side was closed.

8. The suit was dismissed by the trial Court on the ground that the respondent / plaintiff cannot succeed on the weaknesses of the defendants / applicants and that he has to present his own case to be successful in the suit and hence since the trial Court was not satisfied on the basis of documents filed by respondents / plaintiff, the suit was dismissed. Aggrieved of the judgment and decree, the respondent filed appeal bearing No.19 of 1995. The appellate Court reversed the findings of the trial Court and the suit of the plaintiff/respondent was decreed with no orders as to costs. Hence, this Revision Application.

9. I have heard the learned counsel and perused the material available on record.

10. There was another earlier suit filed by Iqbal Ahmed/respondent in respect of the subject property however it was against Chairman WAPDA and Sub-Divisional Officer that concerns the electrification of land in question. The impugned notice in that suit dated 18.06.1981 from defendant No.1 / WAPDA, was held to be ineffective and not binding on the respondent Iqbal Ahmed and the officials of WAPDA and electricity department were restrained to disconnect the electricity in the Jalal Garden comprising Survey No.164 and 165 (Jalal Bagh, Deh Shikarpur) till the ownership is not decided by Senior Civil Judge Shikarpur in the pending suit. Apparently this suit / judgment has nothing to do with the title and is not relevant in reaching the Court to a just and fair conclusion as far as present litigation is concerned.

11. In the instant case respondent in order to establish the case examined one Habibullah who is the father of plaintiff / respondent and also Ghulam Muhammad. Habibullah in his examination-in-chief on the basis of General Power of Attorney deposed that the suit land is called Jalal Garden and one Ahmed Khan had share in the said property to the extent of 3 Aanas and 5½ Pai measuring 2.20 acres and after his death his share devolved amongst the two sons namely Ahmed Nawaz Khan and Abdul Hameed Khan alias Haman Khan. He also stated that the record with the revenue department was mutated in their names and produced as Ex.99, who sold their share to one Aga Deedar Nabi through registered sale deed in the year 1975 which was also produced as Ex.100. The said purchaser Aga Deedar Khan got the property mutated in his name which record was produced as Ex.101. It is stated in the examination-in-chief that possession of the suit land to the extent of 2.20 Acre was handed over to Aga Deedar Khan by the two sons of Ahmed Khan through a private partition. The said Deedar Nabi Khan sold the share in the property to Iqbal Ahmed (respondent) through registered sale deed dated 04.02.1980 against the consideration which was produced as Ex.102. The sale deed was then presented to the revenue authorities for its mutation in the revenue record. The said record of mutation on the basis of the last sale deed, as endorsed by the Tapedar, was produced as Ex.103. He then approached WAPDA authorities for electricity to install a tube well and the electricity connection was provided. On applicant’s / defendant’s objection the WAPDA authorities issued him (plaintiff / respondent) a notice for which he filed suit, as referred above, which was decreed.

12. In the entire cross-examination there was not a single question to suggest that Ahmed Khan was not co-owner in the subject property. The applicant did question the witness regarding a civil suit filed by one Allah Bux against Afzal Khatoon and others in the year 1962 but there is no record, either confronted or available or presented by any of the witnesses. In the plaint in terms of paragraph 2 one Ahmed Khan was pleaded to be the owner to the extent of 3 Aanas and 5½ pais, which fact though denied in the written statement but no revenue record or even a judgment and decree which was referred in the cross-examination was shown / exhibited.

13. On the other hand, witness Habibullah produced certified copy of revenue record as Ex.99 disclosing the entries in the name of Ahmed Nawaz Khan and Abdul Hameed Khan in the year 1987. The witness also produced the sale deed executed by the two sons namely Haq Nawaz Khan and Abdul Hameed Khan as Ex.100. The witness then produced revenue record as Ex.101 showing entries in the revenue record in the name of Deedar Nabi Khan who then executed sale deed in favour of Iqbal Ahmed, the plaintiff, through registered instrument dated 04.02.1980 produced as Ex.102 and the record was accordingly mutated, on the basis of sale deed, as Ex.103. All these transactions / documents since the property devolved amongst the two sons of Ahmed Khan i.e. Ahmed Nawaz Khan and Abdul Hameed Khan were never challenged by the applicant / defendant.

14. This is one set of evidence as of respondent / plaintiff, whereas, applicant / defendant did not opt to appear in the witness box either through himself or through any of the witnesses. Applicant / defendant even failed to summon any of the official witnesses in support of the pleadings and contentions. No doubt, as held by the trial Court, the plaintiff / respondent cannot win and succeed on weaknesses of the defendant / applicant but where the respondent has satisfactorily established his title and has produced revenue records and registered sale deed, which were neither challenged nor rebutted in the cross-examination, cannot be lightly taken or ignored by this revisional Court. Appellate Court got satisfied and considered it as sufficient for establishing the case.

15. An attempt was made by the applicant / defendant while cross examining the plaintiff’s witness to establish a case but nothing came out of the cross-examination as not even material questions were suggested. All assertions on oath almost went unrebutted. The share of Ahmed Khan and the mutation in the record in favour of his two sons was never challenged either in the shape of evidence / witnesses or cross-examination. Further the transactions in the shape of sale deeds by his two sons and then by subsequent buyer Deedar Ahmed Khan in favour of plaintiff / respondent also remained unchallenged along with revenue entries. The judgment and decree, which was referred by the applicant / defendant in the written statement, remained a discussion only to the extent of pleadings as the same was never unearthed. The said judgment, thus, has not seen the light of the day as far as record of this case goes. On the basis of these long standing entries in the revenue record and/or documents no adverse presumption could be attached in the absence of any challenged to them.

16. The appellate Court discussed the evidence as recorded by the respondent / plaintiff in detail and also discussed the record / documents exhibited. No doubt sale deed alone, without entries in the revenue record can be challenged but when these sale deeds are also supported by revenue entries and unchallenged in evidence then no negative assertion could be presumed.

17. In view of above, I do not see any reason to interfere in the judgment and decree of the appellate Court in terms of Section 115, CPC, hence, the Revision Application was dismissed along with listed application vide short order dated 15.02.2019, of which these are the reasons.

J U D G E

Abdul Basit