IN THE HIGH COURT OF SINDH
AT LARKANA
Civil R.A.S-13 of 2019 : Allah Dino Mirani vs.
Mumtaz Ali and others
Civil R.A.S-14 of 2019 : Allah Dino Mirani vs.
Abdul Ghafoor Luhur and others
Civil R.A.S-15 of 2019 : Allah Dino Mirani vs.
Gul Hassan Kumbhar and others
Civil R.A.S-16 of 2019 : Allah Dino Mirani vs.
Altaf Hussain Joyo and others
Civil R.A.S-17 of 2019 : Allah Dino Mirani vs.
Shah Muhammad Mangrio and others
For the Applicants : Mr. Abdul Rahman A. Bhutto, Advocate
For the Respondents : Mr. Naushad Ali Tagar, Advocate
Mr. Liaquat Ali Shar, Additional Advocate General, Sindh.
Date of hearing : 14.02.2022.
Date of order : 14.02.2022
ORDER
Agha Faisal, J.Briefly stated, suits were filed by the applicants before the learned trial Court, seeking declaration with respect to shops in the vicinity of Jamia Mosque, Dokri as well as a declaration with respect to the right of the plaintiffs (applicants) to institute and maintain the said proceedings. The applicants were aggrieved by the dismissal of the suitsby the learned Trial Court as well as Appellate Court, hence, the present revision applications. These applications involve common facts and issues, hence, were tagged and proceeded with together. The matters were also argued jointly and shall be determined vide this common order.
2. Per learned counsel, the facts of Civil Revision Application No.S-13 of 2019 are representative of those in the remaining civil revision applications and for the purpose of the present determination reference may only be made to these representative facts.
3. The suit before the learned Trial Court was dismissed and the operative findings are reproduced hereinbelow:
“Perusal of record show that plaintiff has failed to produce any documentary proof which shows that defendant No.1 is in possession of the suit property belonged to Eid Gah/Jamia Mosque, Dokri Town. According to section 42 of Specific Relief Act any person entitled to any legal character, or any rights as to any property, may institute a suit against any person denying, or interested to deny, his title to such character, or right, and court may in its discretion make therein a declaration that he is so entitled…
Perusal of record reveals that plaintiff stated that suit property belongs to Eid Gah/Jamia Mosque Dokri, which was allotted by the Town Committee, Dokri in the name of Jamia Mosque/Eid Gah, Dokri and such entry was also kept in the Revenue record, Taluka Dokri. The perusal of record further reveals that plaintiff neither produced said allotment order of Town Committee nor he produced the Revenue Record in support of his claim. Moreover, the defendant No.1 in his evidence stated that the suit property (shop) was purchased by his father alongwith other purchaser from one Muhammad Ibrahim through sale agreement. He further deposed that Masjid Shareef is situated back side shop of defendant No.1, as such, this version of defendant No.1 has not been denied by the plaintiff.
Record further reveals that plaintiff has failed to examine any official of the Revenue authority who can produced the record so also failed to examine any official of Town Committees, who may support the claim of plaintiff, as such without any documentary proof the sole version of the plaintiff is not be said as believable.
So far as, the plaintiff is claiming to be the Mutawali and president of Executive Committee of said Eid Gah, Dokri and seeks possession of suit property. Perusal of record shows that plaintiff examined his attorney Rab Dino as Ex.42 who in cross examination admitted that he had not produced any document which shows that he is vice president and Allah Dino (plaintiff) is president of Jamia Masjid/Eid Gah Dokri. He further admitted there is no Election is held for appointment of president, vice president and other members.
In view of above discussion and reasons, I have come to the conclusion that suit property is not property of Eid Gah/Jamia Mosque Town Dokri, so also claim of plaintiff to be Mutawali and president of Eid Gah is also doubtful. Therefore, these issues are replied accordingly…
Perusal of record shows that the plaintiff has filed Rent Application No.20/2011 against the Altaf Hussain/defendant No.1 in New F.C Suit No.172/2015 regarding suit property in which both parties leads their evidence and after hearing, same was dismissed vide order dated 10.05.2012 with observation that applicant/plaintiff has failed to prove his relationship with the opponent/defendant No.1 as land lord and tenant…
4. Upon dismissal of the respective suits, appeals were preferred there against and the same were also dismissed, insofar as the present applicantsareconcerned. The declaration of title given by the trial Court in favour of a defendant there before was reversed, however, the same has no impact insofar as the case of the present applicants is concerned. The operative findings of the Appellate Court are reproduced herein below:
“From bare reading of the above certificate, it reveals that the Town Committee Dokri had only disclosed the area of Eid Gah within its boundary wall and its supervision and maintenance at the hands of Public of Dokri Town. It further appears that the certificate was issued by Town committee Dokri on basis of another certificate, which alleged to have issued by Mukhtiarkar (Revenue) Dokri Town. However the Certificate of the Mukhtiarkar Dokri Town is not available on the record. The certificate issued by Town Committee Dokri (Ex.41/C) does not reflect that the suit shops are constructed on the plot of Eid Gah. Moreover the said certificate neither show the ownership of the said plot in the name of Town Committee Dokri and nor it authorize the town Committee Dokri to transfer the plot to Eid Gah on behalf of Revenue Department. It is worth to mention here that as per above said certificate the plot having area of 21641 Sqft has been shown within limits of boundaries of Eid Gah, meaning thereby the suit shops doeş not fall within limits of area of the Eid Gah. It is matter of record that the appellant/plaintiff failed to produce order of allotment or any other document in support of his claim. Furthermore the plaintiff/appellant had also failed to examine any official of the Revenue authority which may support his claim therefore the contention of the appellant/plaintiff is not acceptable without any title in his name, as such the claim of appellant/plaintiff in respect of suit shops appears to be false as no any property may be transferred on basis of above said certificate hence the Mutation Form available on record seems to be bogus and managed document. Even otherwise, it is apparent from record that appellant/plaintiff produced photocopies of the document during hisevidence without assigning any reason to produce the secondary evidence. According to Article 75 of the Qanun-e-Shahadat Order, 1984, the documents must be proved by primary evidence i.e by producing the documents in original before the court for inspection. This rule of evidence rests on the maximum that best evidence must alwaysbe produced. In this case, the appellant/plaintiff had not produced or called the documents in accordance with law. All the photo copies of documents were produced without assigning any reason as provided under Article of 76 of Qanun-e-Shahadat order, 1984. Moreover, the appellant/plaintiff claiming to be beneficiary of documents i.e Form-II, but not only failed to produce the same in original, but also failed to produce the witnesses of the alleged transfer of the plot on basis of one certificate, hence the evidence brought on record is not inspiring confidence as such appellant/plaintiff failed to prove his title in respect of the suit shops. It further added here that the appellant/plaintiff has also failed to produce any documentary evidence in support of his contention being Mutwali or president of the Eid Gah/Jamia Mosque, The appellant/plaintiff had not examined any person of locality including the Paish Imam in support of his above contention; therefore, the appellant/plaintiff has no locus standi to file such civil litigation.
Besides above, it is also worth to mention here that the respondent/defendant NO: 1 in para 5 of his written statement has contended that he is in possession of the suit shops since more than 30 years which constructed on abandoned Wah. According to him, he purchased the plot/suit shops from one Rasool Bu Baleshahi on 04-03-1974 through sale deed, but no such sale deed is available on record and since the defendant NO: 1 is in possession of the same. However the respondent/defendant NO: 1 in his evidence has stated thathis father purchased the plot from Muhammad Ramzan through oral agreement and the said Muhammad Ramazan had purchased the same from one Muhammad lbrahim through sale agreement, such photocopy of sale agreement produced by him at ex 47/A, which is also not admissible in view of Article 75 of Qanun-e-Shahadat order, 1984 hence no reliance can be place on such agreement without producing same in original and examining its marginal witnesses. Even otherwise, it appears from record that said Muhammad Ibrahim was not owner of the plot/suit shops, who alleged to have sold the same to Ramzan and wherefrom the same property was purchased by father of respondent / defendant No.1 through oral sale agreement. It is settled law that sale agreement either oral or written does not create any right, interest or title in respect of the property, as such no one can claim the ownership rights on the basis of ale agreement. The only way for acquiring the ownership rights of the purchased property is to get transfer the title in his name through registered sale deed, if the contract is valid one. However, the sale agreement produced in this case is not enforceable under law, as the vender has no title of the plot/suit shops. In this case, the learned trial court had misapplied he law, while concluded that the respondent/defendant No.1 is lawful owner of the suit property, even the respondent/defendant No.1 is not entitled for any protection as provided under section 53-A of the Transfer of Act, 1882 in circumstances of the present case. From perusal of impugned judgment and decree, it became strange for me as to how learned trial court granted the relief of declaration to respondent/defendant No.1 on the basis of above discussed sale agreement. The learned trial court granted extraordinary relief to respondent/defendant No.1 in the suit filed by appellant / plaintiff, therefore, no finding of trial court to extent of such declaration is against the law. For above reasons, I am of view that neither appellant/plaintiff nor respondent/defendant No.1 are owner of the suit shops, hence the point No.1 Is answered as ‘negative’”.
5. The applicants' counsel submits that the evidence has not been appreciated by the Courts below in proper perspective as the mosque is being taken care of by the applicants and maintainedthrough rent proceed of the relevant shops as there is no other source of income. Learned counsel also submits that the government is welcome to take over the mosque and manage the same through public funds as it would be unfair to require the applicants to do so while being deprived of the source of income required to manage the affairs of the mosque. Learned Additional Advocate General submits that the orders of the forums below are correct and that the property is infact government property and no private rights have accrued therein. Learned counsel for respondent No.1 also supports the findings in the impugned judgments, insofar as the applicant is concerned and submits that the suits had in any event been filed by concealing the material facts. In such regard he draws attention to the following paragraph of the Judgment of the learned Appellate Court.
"Perusal of record shows that the plaintiff has filed Rent Application No.20/2011 against the Altaf Hussain/defendant No.1 in New F.C Suit No.172/2015 regarding suit property in which both parties leads their evidence and after hearing, same was dismissed vide order dated 10.05.2012 with observation that applicant/plaintiff has failed to prove his relationship with the opponent/defendant No.1 as land lord and tenant."
6. Heard and perused. The applicants had filed the respective suits to assert their title before the learned Trial Court and the said proceedings were dismissed on account of no evidence having been brought on record to vestany right or entitlementinthe applicants to the relief claimed. The Appellate Court also maintained the findings, subject to the variation pointed supra, and remained of the view that no entitlement to the relief claimed had been demonstrated by the applicants.
7. The respective Courts have carefully catalogued the issues and appraised the evidence led in such regard and no infirmity has been identified in the analysis thereof and it has also not been demonstrated that the findings could not reasonably be rested upon such analysis. Notwithstanding the foregoing this is not asubsequent stage of appeal and the jurisdiction hereof as circumscribed per section 115 CPC.
8. The original judgment as well as judgment in appeal appear to have considered the record and the law and no infirmity in respect thereof has been identified to this Court. It is settled law that in the presence of concurrent findings, coupled with preponderance of claim supported by evidence, a revisional court ought not to interfere even if another view was possible. Reappraisal of evidence was even otherwise undesirable in revisional proceedings[1].
9. This Court has considered the contentions of the applicants and has noted the inability to cite a single ground based upon which the jurisdiction of this Court could be exercised under section 115 of Code of Civil Procedure. There is no suggestion that the impugned judgments are either an exercise without jurisdiction or a failure to exercise jurisdiction or an act in exercise of jurisdiction illegally or with any material irregularity.It is trite law[2] that where the fora of subordinate jurisdiction had exercised its discretion in one way and that discretion had been judicially exercised on sound principles the supervisory forum would not interfere with that discretion, unless same was contrary to law or usage having the force of law.
10. It is the considered view of this court that the applicants have remained unable to demonstrate any infirmity with the impugned judgments, meriting interference in revision under Section 115 C.P.C, therefore, these revisionsare hereby dismissed. Office is directed to place a copy hereof in the each connected revision.
JUDGE