IN THE HIGH COURT OF SINDH

CIRCUIT COURT LARKANA

 

 

Civil Revision S- 43 of 2010

 

Rafique Muhammad Shah

Versus

Mst.Nawab Khatoon and Another

 

 

Civil Revision S- 60 of 2016

Syed Rafique Muhammad Shah

Versus

Mst.Nawab Khatoon and Others

 

For the Applicant:                  Mr. Abdul Qadir Abro, Advocate.

 

Date of Hearing:                    10.09.2018

 

Date of Announcement:       10.09.2018

 

JUDGMENT

 

Agha Faisal, J. Through this consolidated judgment, this Court seeks to determine the afore listed civil revision applications as the subject matter is common therein.

 

2.          The Court of learned 2nd Senior Civil Judge, Shikarpur delivered a judgment dated 31.08.2004, in Suit No. 11 of 1994, in favour of the respondent herein and decreed the said suit in respect of property subject matter of the dispute. The said judgment was assailed in appeal by the present applicant, and the said appeal was dismissed vide order dated 30.03.2010. Civil Revision Application S- 43 of 2010 assails the concurrent judgments listed as aforesaid.

3.          The applicant filed suit, with respect to the disputed property, before the 1st Senior Civil  Judge, Shikarpur in FC Suit No. 44 of 2005, after the rendering of the judgment there-against, as referred to supra. This suit was decided in favour of the present applicant and subsequently assailed in appeal by the respondents. The said appeal was allowed and the impugned judgment in favour of the present applicant was set aside and the suit dismissed. Civil Revision Application S-60 of 2016 has assailed the afore cited appellate judgment.

4.          Mr. Abdul Qadir Abro, learned counsel for the applicant submitted before this Court that the contentions of the applicant were not considered in their true perspective by the Courts below. It was further added that the respondent No.2 herein did not engage an independent legal counsel and nor gave evidence himself. The learned counsel further stated that no points were made out for decision in the impugned judgments and lastly that the credentials of one witness were questionable. Hence it was prayed that the impugned judgments in the respective subject civil revision applications may be set aside.

5.          Mr. Abid Hussain Qadri, learned State counsel supported the judgments under challenge herein and submitted that the same were delivered upon due consideration of the facts and in conformity with the law. It was stated that the applicant was attempting to argue the matters as an appeal when in fact the scope of civil revision is determined by the prescriptions of Section 115, C.P.C. The learned State counsel prayed that the present civil revision applications may be dismissed.

6.          This Court has considered the arguments of respective learned counsel and deems it appropriate to initiate a deliberation thereupon by reproducing the operative part of the trial court judgment dated 31.08.2004:

 

“ISSUE No.3 & 10.

 

The burden to prove these issues lies upon plaintiffs. The plaintiff have examined Tapedar Niaz Hussain at Ex…….36 who produced entries from revenue record, the plaintiff examined attorney of plaintiff No.1, namely Karim Bux at Ex…..94 who has produced entries from revenue record at Ex…..94/A, to 94/F, registered Sale Deed at Ex….94/G, and entries from evacuee register at Ex…..94/H. The attorney of plaintiff has deposed that the plaintiffs are owners of the suit land. Tapedar Niaz Hussain has also deposed that the suit land stands entered in the revenue record in the name of plaintiffs. Perusal of entries No.50, 49,16, 99, 43 and 10 mentioned in the revenue record reveals that the suit land is entered in the revenue record in the names of plaintiffs. Perusal of Ex…..94/G, which is registered sale deed, shows that the S.No.137/1, 140/2, 141/4, 143 were purchased by plaintiff No.1 from Mohammad Mithal vide registered sale deed dated 30.7.1981. From the documents produced by the plaintiffs it appears that the plaintiff are owners of the suit land. On the hand the defendant in his cross examination has admitted that the presently suit land stands in the name of plaintiffs in the revenue record. He has deposed that he has challenged the entry before Revenue authorities which are still pending. From the evidence of defendant it appears that he has not acquired the title of suit land as yet. In view of above discussion and documentary evidence, I am of the opinion that the plaintiffs are owners of the suit land. The issues are answered accordingly.

 

ISSUES NO.6,7,8 & 9.

 

All these issues are interconnected with each other therefore, I intend to discuss the same together. The Plaintiffs attorney has deposed that the suit property is illegally occupied by defendant and he approached the defendant and requested him to vacate the suit land but he has refused. On the other hand the defendant has deposed that he is in possession of suit land in his own rights. I have already observed that the plaintiffs are owners of the suit land, therefore, in view of my above findings I am of the humble opinion that the possession of the defendant over the suit land is unlawful and illegal. The issues No.6 to 9 are answered accordingly.

 

ISSUE NO.01

 

The plaintiffs have filed this suit for possession under section 8 of Specific Relief Act, according to which the person entitled to the possession of an immoveable property may recover it. I have already observed that the plaintiffs are owners of the suit land, therefore, their suit for possession is maintainable according to law. Therefore, the issue No.1 is answered accordingly. 

          ISSUE NO.02.

The learned counsel for defendant has argued that the plaintiffs, have no cause of action to file the suit as the title of the plaintiffs is in dispute, before the revenue authorities. He has further argued that the plaintiffs have filed suit jointly as such it is not maintainable. He has relied upon PLD 2003 Pesh: P.40, PLD 2003 SC P.849. On the other hand the learned counsel for plaintiffs argued that the defendant has occupied the suit land which is owned by the plaintiffs two years back. Perusal of case file shows that the plaintiff have stated that the defendant occupied suit land two years back as such it appears that the cause of the action accrued to both the plaintiffs together. The law cited by the Advocate for defendant is quite different from the present case, as such is not applicable to this case. I, therefore, answer the issue No.2 in affirmative.

         

ISSUES NO.4 & 5.

On these issues there is no evidence from either side of the parties, therefore, these issues No. 4 and 5 remains unproved and are answered accordingly.

 

          ISSUES NO. 11 AND 12.

          In view of my findings on the above issues, the suit of the plaintiffs is hereby decreed with no order as to costs”.

 

7.          It is borne out of the record that the judgment under consideration was delivered on the basis of evidence and subsequently upheld by the appellate court judgment dated 30.03.2010. Operative part thereof is reproduced herein below:

“I have considered the submissions advanced by learned advocate for appellant and perused the material available on record. Admittedly the respondents had filed suit for possession before trial court, claiming to be owners of the suit land and in this regard they produced certain documents and the said documents are very old. The appellant in his evidence before trial court during cross examination admitted that presently suit land stands in the name of respondents. He also admitted that he has not filed any suit for declaration and cancellation before any civil court. The respondents filed that suit on the basis of ownership, whereas the appellant has stated that they have managed and interpolated the said documents. If it be so, the appellant was required to file a Suit for Declaration and cancellation of said documents, but he did not done so, as such the learned trial Court on the basis of ownership and dispossession of respondents rightly decreed their suit. Under these circumstances I am of the considered view that the Judgment and decree passed by learned trial Court needs not to be interfered, hence the same is maintained. The appeal therefore merits no consideration is hereby dismissed, however with not order as to costs. The R&Ps be returned to trial court”.

 

 

8.          Prima facie the learned counsel for the applicant seeks to reopen the evidence and argue this as yet another stage of appeal. However, the same is impermissible under the precepts of Section 115, C.P.C. It is trite law that a revisionary court does not sit in appeal and in the present circumstances no infirmity has been pointed out in the impugned judgments meriting the exercise of revisional jurisdiction by this court.

9.          Insofar as Civil Revision S-60 of 2016 is concerned, it is apparent that the applicant filed a suit only after the rendering of a judgment and decree there-against. The appellate court has delivered a detailed judgment setting aside the trial Court judgment and the operative part thereof is reproduced herein below:

“Now coming to the next crucial aspect of the case. No doubt, by virtue of Section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, several Acts and Regulars, including the Act of 1958, were repealed with effect from 01-07-1974, whereas, section 22 of the Act of 1958 attached finality to the orders passed under the Act of 1958, as it provided that all orders passed by any officer appointed under the Act of 1958 shall not be questioned in any Courts. For the purposes of academic discussion, the provisions Rule 6 of the Rules of 1961 are very relevant and important. Under Rule 6 (1), any person through an unstamped application in writing may inform the Settlement Authority concerned of the discovery of any error in any entry or about fraud or misrepresentation in obtaining Permanent Transfer of the Property.  Under Rule 6(2), on receipt of such information, the Settlement Authority would check the record and, if satisfied that the information is false, he would record his order on the application to that effect. Rule 6 (5) provided that in all cases where a record  of Permanent Transfer is required to be amended, varied or cancelled, a carbon copy of the order passed is to be issued to the transferee at the time of passing of the order to enable him to file an appeal or Revision, as the case may be, against that order. Thereafter, the record is to be amended, varied or cancelled by the Settlement Authority who shall withdraw all attested copies of the record previously issued to the transferee. Rule 6 (6) provides that if an appeal or Revision is to be filed by the transferee, the entry is not to be amended, varied or cancelled until the expiry of a period of fifteen days of the passing of the order or the disposal of the appeal or Revision, whichever is later. Finally, Rule 6 (7) provided that the record of Permanent Transfer would be amended, varied or cancelled in accordance with the order passed in appeal or Revision filed under Sub-Rule (6).

 

Suit being substantive right, evidence tendered and arguments addressed should be meticulously attended to, appraised, deciphered and thereafter decided with reasons in accordance with law, as any departure made could compromise valuable rights of parties. Learned Trial Court did not care to appraise or discuss evidence tendered or submissions made and decided the matter without convincing reasoning or application of judicial mind, therefore, on the bench mark set in O.XX,R.5, C.P.C., judgment passed by learned Trial Court is not  sustainable. The suit in the backdrop of bar of limitation with reference to the section 42, Specific Relief Act, 1877 was barred by law of limitation as filed beyond period of 6 years for the relief of declaration and 3 years for the cancellation of document, even if the date of knowledge is presumed the starting point of limitation, as well as the Court had no jurisdiction rather the respondent No.1/plaintiff did not recourse to the procedure for cancellation or otherwise allotment in favour of Mst. Zulekhan. The point No.1 is hereby answered accordingly.

POINT NO.2.

For what has been discussed above, this civil appeal is accepted, impugned judgment and decree of the learned Trial Court is set-aside, and the suit stands dismissed. There is, however, no order as to costs.”

 

10.       The issues before the respective Courts below have been eloquently addressed by the learned judges and no impropriety or misfeasance has been demonstrated to have occurred in such regard.

11.       It is trite law that the concurrent findings coupled with a preponderance claim supported by evidence may not be ordinarily interfered with by a Court in exercise of revisional jurisdiction. It is also within the contemplation of this Court that the exercise of revisional jurisdiction does not generally entail reappraisal of evidence. Reliance in this regard is placed upon the judgments of the superior Courts reported as 1997 SCMR 1139, 2000 SCMR 431, 2004 SCMR 877 and 2002 CLC 1295.

12.       It is thus the considered view of this Court that no case has been made out by the applicant for the grant of the subject civil revision applications hence the same, along with listed applications, are hereby dismissed with no order as to cost.

 

Judge

 

 

 

Abid H. Qazi/**