IN THE HIGH COURT OF SINDH
AT LARKANA
CivilR. A. S-31of 2021 : Abdul Hameed vs.
Murlidhar&others.
For the Applicant : Mr. Ghulam Shabir Baloch, Advocate
Date of hearing : 03.03.2022.
Date of announcement : 03.03.2022
ORDER
Agha Faisal, J.(1). Deferred. (2). Granted subject to all just exceptions. (3). The applicant had filed a suit for specific performance etc. and the same was dismissed vide Judgment dated 23.04.2019. The appeal there against was also dismissed vide Judgment dated 27.01.2021, hence, this civil revision.
2. The learned Trial Court was of the view that no title could be established insofar as the alleged predecessor-in-interest of the applicant was concerned, hence the applicant was found disentitled to the relief claimed in respect of the relevant immovable property. The Appellate Court maintained the said findings and observed as follows:
“I have heard the learned counsel for the respective parties at length and have gone through the record and proceedings very carefully. I find that the land in question was allotted to the father of defendant No.1, by Central Government. The appellant/plaintiff has claimed that he had paid the Rs.2700000/- to the defendant No.1 in respect of sale deed of land in question in presence of witnesses Abdul Wahab and Suresh and he examined both the witnesses, to the contrary, witness Suresh was also examined by the defendant No,1. This aspect shows that the plaintiff and defendant No.1 are gathered to play the game of documentation in order to declare them as owner of land in question. During the pendency of suit, the defendant No.4 is entered as claimant of four survey number from the land in question, in this regard, it is crystal clear the ownership of defendant No.1 is suspicion. However, the examination-in-chief of attorney of defendant No 1, it transpires that he has not produced the copy of challan of initial deposit/payment and so also copy of challan or subsequent payment deposited in year 2009. The attorney of defendant No I admitted that his father (defendant No.1) and grandfather were land lord of area, which disentitled the deceased Gobind Ram from grant of government land as under section 3 of statement of condition for the grant of state land issued by the Government of Sindh, the land shall only granted to Haris, smallkhatedar and muhagdars and even such nature of grant of land (i.e Harap, Small Khatedar or Muhag)is not mentioned over A forms produced by the attorney of defendant No 1. The evidence brought on record, further reveals that the possession of suit property was not lying/handed over to the defendant No 1 after alleged grant, which is/was mandatory requirement of section 10 (4) of the colonization of Government Land Act, which provides that no person shall be deemed to behave any right of title in the land allotted to him until he has taken the possession of land. The mutation entry No 795 dated 26-12-2009 with regard to the grant of suit land in favour of Gobind Ram is kept in Revenue record in suspicious manner, as vide entry No 791 Form VIl-B of deh Dera had been closed before starting computerized Form VIl-B, then why entry with regard to grant of Gobind Ram has not kept inn computerized Form VIl-B. The mutation record was scanned but Mukhtiarkar Nasirabad in his examination in chief stated that entry No 795 (in favour of Gobind Ram) and 796 (in favour of defendant No 1) are not Scanned. On the other hand, the evidence of clerk of Mukhtiarkar Estate Kamber, it transpires that the application for re grant of suit land was submitted by defendant No.1 to Revenue Minister in 2009, after the delay of 06 (six) decades/60 years of cancellation of grant in favour of deceased Gobind Ram (father of defendant No 1), who has been passed away in 1978 as per death certificate produced at Ex. 31/B. Under the colonization of Government Land Act, if once land grant cancelled, the land…../come in schedule and same can only be disposed off in open Kachery after observing the prescribed formalities. The revenue Minister is not competent authority to return the land, even the Executive District Officer (Revenue) is also not delegate with powers to re-grant the same land directly without observing the prescribed formalities beyond the long period.
The learned trial court has observed that the burden of lies upon the defendant No.4 to prove the ownership of four survey numbers out of suit property. Since, the suit property include S.No(s) 950, 951, 952 and 897 claimed by the defendant No.4 is property of Government as discussed in above issue, therefore, the issue No.2 require deeper and cautious appreciation. The defendant No 4 claimed that the ownership of S.Nos.950, 951, 952 and 879 and area of 17-28 acres by virtue of its purchase from legal heirs of brother Ghulam Hyder and who (Ghulam Hyder) purchase these four survey numbers from Muhammad Safar. The entitlement of defendant No.4 is based upon the entitlement of Muhammad Safar, but defendant has not produced any document, which transpire the ownership or entitlement of Muhammad Safar. The Mukhtiarkar Revenue was get examined by the defendant No 4, who in his cross examination has admitted that no any entry is kept in revenue record with regard to the S. Nos 950, 951, 952 and 897 of deh Dera in favour of Muhammad Saffar. From, perusal of material brought by the defendant No 4, I find that the Muhammad Saffar was not owner of four surveys number claimed by the defendant No 4. The foundation of sale deed in favour of defendant No 4 is based on fraudulent transaction over the Government Land, having no legal value and same does not create any legal right in favour of defendant No 4. The reliance is placed on Case law reported in 2016 CLCN 22, wherein it is held that where foundation of any transaction is found defective, the whole super structure raised thereon shall collapse. Even the benefit of section 41 of Transfer of property Act cannot be granted to bona fide purchaser, who has acquired title from unauthorized and incompetent person or from the person who had acquired title through fraudulent mean.
In view of reasons mentioned above, I am of the humble opinion, thatappellant/plaintiff has not been able to establish his case, hence, the learned trialCourt has rightly dismissed the suit of the appellant/plaintiff, which requires nointerference and the appeal in hand is dismissed with no order as to costs.”
3. Learned counsel submits that the Courts below have failed to appreciate the evidence in its proper perspective, hence, interference is merited in the revisionary jurisdiction of this Court.
4. Heard and perused.The judgments have clearly appreciated the evidence and concluded that the applicant remained unable to demonstrate any actionable claim meriting grant of the relief prayed. 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].
5. This Court has considered the contentions of the applicant 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. It is the considered view of this court that no manifest illegality has been identified in the judgments impugned and further that no defect has been pointed out in so far as the exercise of jurisdiction is concerned of the subordinate fora.
6. It is the considered view of this court that the applicant has remained unable to demonstrate any infirmity with the impugned judgments, meriting interference in revision under Section 115 C.P.C, therefore, this revision is hereby dismissed in limine.
JUDGE