Judgment Sheet
IN THE HIGH COURT OF
SINDH BENCH AT SUKKUR
Civil Revision No. S – 33 of 2001
Applicant: Kadir
Bakhsh (since deceased) through his legal heir Mst. Haneefa, through
Mr. Kalandar Bakhsh Phulpoto, Advocate.
Respondents: Muhammad
Sajjan and others, through
Mr. Sarfraz A. Akhund, Advocate.
Date of hearing: 16-08-2021
Date of decision: 27-08-2021
J U D G M E N T
Muhammad Junaid Ghaffar, J.
- Through
this Civil Revision Application, filed under section 115 of the Civil Procedure
Code, the Applicant has impugned judgment dated 30-01-2001 passed by the IInd
Additional District Judge, Khairpur in Civil Appeal No. 60 of 2000, whereby the
judgment dated 22-02-2000 passed in F.C. Suit No. 02 of 1995 by the 1st
Senior Civil Judge, Khairpur has been set aside and the Suit of the Respondents
/ Plaintiffs has been decreed.
2. Learned
Counsel for the Applicant submits that the Respondents filed a Suit for
declaration, possession and permanent injunction along with mesne profits and
sought judgment and decree from the Trial Court to this effect, and after
evidence, the Suit of the Respondents was dismissed. However, in Appeal,
without appreciating the evidence on record, the Appellate Court has set aside
the same by decreeing the Suit; that the evidence of the officials including the
Tapedar has been misread by the Appellate Court, whereas, the Respondents had
failed to bring on record any documentary evidence; that they had only relied
on a mutation entry which was a forged entry without any substance or
supporting material; that the Applicant had no notice of recording such entry
by the concerned Mukhtiarkar; that the entire exercise has been carried out by
the Mukhtiarkar in violation of Section 42 of the Sindh Land Revenue Act, 1967;
that the Respondents, on the one hand, have asserted their claim on the basis
of a mere mutation entry, and on the other, also sought cancellation of the
Applicant’s entry and even obtained a favourable order, which was then set
aside by the Appellate Authority; hence, they have, at the same time, made an
attempt to blow hot and cold; that in the Plaint, it was stated that the land
was transferred and/or sold by the Applicant to the Respondents pursuant to
some bradari faisla, but neither the said decision was placed on record; nor any evidence
was led to support the same; that the Applicant was and is in possession of the
Suit property; that the Applicant had also mortgaged Suit property with Agricultural
Development Bank of Pakistan, hence, the Respondents have no case and the order
passed by the Appellate Authority is liable to be set aside.
In support, he has relied upon Sadaruddin (since deceased) through LRs v.
Sultan Khan (since deceased) through LRs and others (2021 SCMR
642), Muhammad Rafique and another v. Syed Warand Ali Shah and
others (2021 SCMR 1068), Ahmed and others v. Nazir
Ahmed and others (2019 CLC 1841), Bashiran Bibi v.
Zaib un Nisa and others (2018 YLR 2574), Muhammad
Asif v. Tanveer Iqbal and 2 two others (2021 YLR 324) and
Pakistan Refinery Ltd., Karachi v. Barrett Hodgson Pakistan (Pvt.) Ltd.
and others (2019 SCMR 1726).
3. On the other hand, Respondents’ Counsel
has relied upon Section 52 of the Sindh Land Revenue Act, 1967, and submits that
a presumption of correctness is always attached to an entry in the revenue record;
that it was an oral sale which was duly recorded before the concerned Mukhtiarkar;
that the Applicant has never challenged that said entry; hence, no further case
is made out; that insofar as cancellation of Applicant’s entry and its
subsequent Appeal is concerned, perhaps that was not a proper advice to the Respondents;
however, according to him that is not an obstruction as to their claim of ownership.
He has prayed for dismissal of this Revision Application.
4. I have heard both the learned Counsel and
perused the record.
5. The Respondents filed Suit for
declaration, possession and permanent injunction with mesne profits and sought
the following prayers:
(a)
By a decree of the court, the Defendant be
directed to hand over the possession of the land (0.75 paisa share in Lands of
Deh Babar & 0-3 paisa share of land of Deh Lohrani) to the plaintiffs, as
specifically mentioned in paragraph No.1 of the plaint and also appropriated
privately between them.
(b)
By another decree of the court, the plaintiffs
be declared to be the owners of the land in suit to the extent of share described
in para I of the plaint and sale deed Annexure C is not binding on
Plaintiffs.
(c)
By a further decree, the defendant be directed
to pay a sum of Rs.200/- or any other amount finally determined as mesne
profits for the un-authorized use and enjoyment of the land in question.
(d)
A permanent Injunction be issued against the
Defendant and all others claiming through him from interfering directly or
indirectly with the rights, title and possession of the plaintiffs over
the land in suit.
(e)
Cost of suit and any other relief additionally
deemed fit and consistent in the circumstances of the case.
6. After
exchange of pleadings, the Trial Court settled the following issues:
1.
Whether the father of the plaintiff No.2
and 3 as well as plaintiff No.1 and Khan Muhammad father of defendants
were co-sharers in the suit property shown in para No.1 of the plaint.
2.
Whether the transfer of the disputed land
situated in deh Baber by late Khan Muhammad in favour of defendant being his
son through registered sale deed dated 16.4.1958 is managed one?
3.
Whether as a result of brotheri faisla, 0-75
paisa share in the S.No. were sold out to Ahmed through statement of sale?
4.
Whether the defendant transferred 0-75 paisa
out of the disputed land in favour of Ahmed in consideration of
Rs.30,000/- on 15.5.1986 through oral statement before the Mukhtiarkar
kotdiji?
5.
Whether the plaintiffs were put in possession
of the disputed land and subsequently the defendant dispossessed the plaintiffs
from the disputed land by force?
6.
Whether, Ahmed subsequently sold away the
S.Nos. in favour of plaintiffs jointly on 10.8.1986 and they continue having
their control ever since acquiring ownership rights?
7.
Whether the defendant has illegally succeeded
in forcibly occupying the S.Nos., a month earlier after filing of the suit?
8.
Whether the suit is not maintainable under law?
9.
Whether the suit is barred under law?
10.
Whether the oral statements dated 15.5.1986 and
10.8.86 are forged and fabricated?
11.
Whether the plaintiffs have cause of action to
file the present suit?
12.
Whether the suit is frivolous and vexatious and
defendant is entitled to special costs?
13.
Whether the plaintiffs are entitled to
relief claimed?
14.
What should the decree be?
7. The
parties led their evidence, and thereafter, the learned Trial Court came to the
conclusion that the Respondents have failed to make out a case and accordingly
the Suit was dismissed. The said judgment and decree of the Trial Court was then
impugned in Appeal and the Appellate Court through impugned judgment has been
pleased to set aside the order of the learned Trial Court and has decreed the Suit.
8. On perusal of the record, it appears that
the precise case of the Respondents as set up in the Plaint was to the effect
that the land in question actually was jointly owned by the father of the Applicant
and their deceased father which, according to them, had been transferred by the
father of the Applicant in sons his name by managing a forged sale deed and their
share was usurped. It is their further case that subsequently the elders
entered into a settlement and a bradari faisla was reached, pursuant to
which 0-75 paisa share in the Suit property was sold out to Ahmed (purportedly
father of Respondent / Plaintiff No.2) in consideration of Rs.30,000/- on 15‑05-1986
and allegedly an oral statement was recorded before the concerned Mukhtiarkar, and
thereafter, Ahmed had subsequently sold the Suit property to the Plaintiffs /
Respondents jointly on 10-08-1986 against a sale consideration of Rs.50,000/-.
It is their case that they remained owners to the extent of 75% share, whereas,
the Applicant / Defendant had 25% share. It has been further averred in the
plaint that a month before filing of the Suit, they had been unlawfully dispossessed
by the Applicant. Though a number of issues were framed by the learned trial
Court; however, the crux of the matter is in respect of such purported transfer
and sale of the land firstly in favour of Ahmed and then to the Respondents / Plaintiffs.
In support, the Respondents had relied upon the mutation entries recorded
purportedly in the revenue records first in favour of Ahmed and then in favour
of the Respondent / Plaintiffs. For that purpose, evidence of the concerned Tapedar
(PW-2: Exh-25-Muhammad Nawaz Solangi) is relevant who had come before the Court
as a Plaintiffs witness, and interestingly, the Trial Court and the Appellate
Court have appreciated the same evidence in somewhat different manner. The
evidence of the Tapedar is ‘Exhibit 25’ and reads as under:
“Exam: chief to Mr.
Zaheer Hassan Adv: for plaintiff
--------------------
I am posted as Tapeder as of deh
Luhrani Taluka Kotdiji having received summons of this Court. I have come for
evidence. Deh Luhrani and deh Baber are situated in different Tapa. Deh Luhrani
is situated in Tapa Ali Muhammad Macchi while Deh Baber is situated in Tapa
Nasir Fakir. The Taluka is same. According to our record the defendant Kadir
Bux sold out 3 paisas share from survey number 219, 215/1 and 215/2 situated in
deh Luhraní to Ahmed, who later on sold the same to the present three
plaintiffs. Our record also shows that defendant Kadir Bux sold 75 paisas
share from the survey numbers 605, 606, 846, 847 and 889 total admeasuring 12‑01
acres situated in deh Baber taluka Kotdiji to Ahmed, who later-on sold the
same to the three plaintiffs of the suit. After mutations in favour of the
plaintiffs no change was affected in our record. The plaintiffs are in
possession of the land situated in deh Luhrani regarding the land situated in
deh Baber I have no knowledge whether the plaintiffs are in possession of the
same or not. The plaintiffs have been paying land revenue for their share
in the land.
XXXX to Mr. Qalander
Bux Phulpoto Adv: for defendants.
--------------------
Two years back I was posted at the
present post. It is correct to suggest that I was not posted in deh
Luhrani and Baber when the entry No.89 was made, regarding mutations of the
land in favour of the plaintiffs. It is correct to suggest that at the entry
there is not mentioned regarding mutation fee which is deposited in favour of
the Government for mutation. It is correct to suggest that there is no mention
at the entry that the Mukhtiarkar or the Tapedar had visited the land in
dispute for making enquiry holding common assembly. It is correct to
suggest that I had no knowledge that there was litigation between the
plaintiff and defendant before the Revenue Courts. I cannot say whether
the Ex: 17 and 18 which are Jaran entry bearing No.89 and 91 are false and
fabricated entries. It is incorrect to suggest that the defendant Kadir Bux is
in possession of the land situated in deh Luhrani and that the defendant is
still share holder of his respective share in the lands situated in deh
Luhrani.”
9. The
learned Trial Court while dealing with Issue No.3 and considering this evidence
has come to the following conclusion:
“The
Tapedar of deh Luharni namely Muhammad Nawaz examined by the plaintiffs at Exh:
25 deposed in his cross examination that he was posted 2 years back
at the present posting. He was not Tapedar of deh, wherein the land in
dispute is situated, when the entry No.89 regarding mutations of the
disputed land in favour of the plaintiffs was made on the basis of
alleged statement of the defendant. He admitted that there is no entry in
the record that mutation fee as per law, was deposited in favour of
the government. He also admitted that there is no mentioning in the record
that the Mukhtiarkar or the Tapeder of deh had visited the lands and had
made enquiries, holding common assembly, prior to mutation entries
in favour of the plaintiffs. The burden to prove this issue lies on the
shoulders of the plaintiffs in which they have failed. Neither the Tapedar
of the deh, nor the Mukhtiarkar who were posted for the deh when the
mutations were made in favour of the plaintiffs are examined. It has also
not brought on record that they are not alive or their attendance in the
court for evidence cannot be secured due to some reasons. Moreover the
perusal of orders passed by the Assistant Commissioner Kotdiji and Deputy
Commissioner Khairpur shows that the plaintiffs had only asserted that the
defendant Kadir Bakhsh had got the land mutated in his favour fraudulently
and there was no mentioning of any private faisla and selling of 75 paisa share
of the land by the defendant in favour of Ahmed for consideration of Rs.30,000/-.
Accordingly this issue is answered in negative.”
10. At
the same time, the Appellate Court while dealing with the same piece of
evidence has come to the following conclusion:
“Tapedar Muhammad
Nawaz Solongi seems to be independent and star witness has deposed as under:-
“According to our record the
defendant Qadir Bakhsh sold out 3 paisas share from S.No. 219, 215/1 and 215/2
situated in deh Luhrani to Ahmed, who later on sold the same to the present
three plaintiffs. Our record also shows that defendant Qadir Bakhsh sold 75
paisas share from the S.No. 605, 606, 846, 847 and 889 total admeasuring 12-01
acres situated in deh Baber taluka Kotdiji to Ahmed, who later on sold the same
to the three plaintiffs of the suit. After mutations in favour of plaintiffs no
change was affected in our record. The plaintiffs are in possession of the land
situated in deh Luhrani regarding the land situated in deh Baber. I have
no knowledge whether the plaintiffs are in possession of the same or not.
The plaintiffs have been paying land revenue for their share”
Above deposition of the Tapedar,
clearly shows that appellants are still khatedars of the suit land and has
remained in possession of the same and have been paying the land revenue for
their share of the suit land, whereas respondent has not produced any record or
material in his evidence showing that he dispossessed the appellants by legal
means, which shows that respondent forcibly dispossessed the appellants from
the suit land.”
11. When
the evidence of the concerned Tapedar is read in juxtaposition with the findings
of the learned Trial Court and the learned Appellate Court, it appears that
both the Courts have taken a different view while appreciating the same set of
evidence. It needs to be looked into firstly that what the witness has deposed
in his examination in chief and then how he has responded to the cross-examination
by the respective Counsel of the parties. The learned Appellate Court seems to
have misdirected itself inasmuch as it has only considered the examination in
chief and has excluded the cross examination of the said witness. This does not
seem to an appropriate way of appreciating the evidence which has to be
examined as a whole and keeping the entire facts and circumstances of a
particular case in consideration. In his cross-examination, he admits that “It
is correct to suggest that at the entry there is no mention regarding mutation
fee which is deposited in favour of the Government for mutation.” To another question, he
further states that “It is correct to suggest that
there is no mention at the entry that the Mukhtiarkar or the Tapedar had visited the land in question for making enquiry
holding common assembly.” He has also admitted that “two
years back I was posted at the present post” and “it
is correct to suggest that I was not posted in DehLuhrani and Baber when the
entry No:89 was made, regarding mutations of the land in favor of the
Plaintiffs”. This
is the entire piece of evidence which has been led by the Respondents to claim
ownership of the land in question. It is a matter of record and so also
admitted before this Court that neither any bradari faisla as relied upon
by the Respondents has been placed on record; nor any other sort of documentary
evidence was placed before the Court. It is only the mutation entries which
have been relied upon. While confronted, the learned Counsel for Respondents has
read out the oral statement purportedly recorded before the concerned Mukhtiarkar
and he candidly conceded that the witnesses to this statement were never
summoned before the Court. It is also a matter of record that the person examined
was only posted two years back and had only supported the case of Respondents
on the basis of available record before him. He neither had any first-hand
knowledge about the purported sale transaction between the Applicant and the
father of Plaintiffs; nor could have supported the purported sale transaction
in question. It is also a matter of record that the Respondents never produced or
summoned the concerned Mukhtiarkar before whom purportedly the oral sale was
recorded and on the basis of which he had purportedly recorded the entries. Therefore,
in absence of any other cogent material or documentary evidence and so also
absence of the witnesses to support the purported sale of the land in question,
Respondents had failed to make out a case and the learned Trial Court was fully
justified in dismissing their Suit. Moreover, it is settled proposition of law that
any entry in the revenue record by itself is no proof of ownership of any
property. It has to be supported by the chain of documents on the basis of
which it had been recorded with the Revenue Authorities. It is also settled law that Entry in Revenue Records
does not confer any title. Here in this matter the entire case has been setup
on the basis of that entry and the evidence of the Revenue Officials. In the
case of Khalid Aziz v. Manzoor Hussain (2016 YLR Note 136) a learned Single Judge of this Court had
the occasion to dilate upon the authenticity and validity of evidence of Revenue Officials brought on record by a
contesting party in support of his / her case. The learned Judge has deprecated
the practice of producing the Revenue
officials in evidence without proper records and giving hearsay evidence in
favor of one, and against the other. The relevant finding is as under;
10……………….In law, he being beneficiary of alleged sale is
required to prove actual transaction of the property and its possession. Record
however speaks otherwise as there is factually no evidence in this regard. The
evidence of some revenue officers i.e. Mukhtiarkar and Tapedar is of no help to
conclude determinatively in favour of such transactions, for they have simply
produced the relevant record and have spoken out what is recorded therein. When
the very record (which creates rights over the property in favour of some
persons in disregard to the rights of ostensible owners of the property) is
alleged to have been tampered with, its production to support a claim is of no
consequences. The claim endorsed in such record has to be first proved to lend
degree of reliability to it. The respondents have not examined either the
revenue officers who allegedly attested such mutation in their favour. And
notably there is nothing on record to explain such failure on their part. Even
no plea has been taken by them that these witnesses are either not available or
their whereabouts are not known. In these circumstances the presumption in
terms of Article 129 of Qanun-e-Shahadat Order, 1984 would be against
them………(Emphasis supplied)
12. Similarly in the case of Abdul
Majeed v. Muhammad Subhan (1999 SCMR 1245) has been pleased to
hold as follows;
10.
It is very amazing to note that the Sale Mutation No. 133 attested on 21‑3‑1964
in respect of the disputed property, which was allegedly purchased by the
registered sale‑deed dated 10‑1‑1962, is neither based on
this deed nor there is any mention of the deed. It is also very unique feature
of this case that neither the original sale‑deed was produced in Court
nor permission was obtained for production of secondary evidence nor the
vendee/defendant No.2 appeared in Court nor any of the marginal witnesses was
examined, still it was boldly asserted that the execution of the deed has been
proved. The same is the position of Sale Mutation No. 133 as its genuineness
could not be proved as rightly concluded by the High Court. The finding of the
High Court is that Abdul Majid respondent No.l was Patwari of the area where
the Suit land is situated and he collusively manoeuvred the attestation of the
impugned mutations fraudulently and fabricated the fake registered sale‑deed
as he and his wife were the ultimate beneficiaries of all these transactions.
This finding relates to factual appreciation of the controversy which need not
be gone into as no substantial defect in reading oral or documentary evidence
could be pointed out.
11. The learned counsel further argued that the registered sale‑deed, mutation and Revenue Record are admissible in evidence and as the plea of the appellant finds support from all these documents, therefore, the High Court was not correct in discarding them. He referred to several cases to support his viewpoint. This is a sweeping and very wide argument and it is not so that everything which finds mention in the registered deed or Revenue Record must invariably be accepted without proof of their execution, genuineness and authenticity. It is axiomatic principle of law that a registered deed by itself, without proof of the execution and the genuineness of the transaction covered by it, would not confer any right. Similarly, a mutation although acted upon in Revenue Record, would not by its own force be sufficient to prove the genuineness of the transaction to which it purports unless the genuineness of the transaction is proved. There is no cavil with the proposition that these documents being part of public record are admissible in evidence but they by their own force would not prove the genuineness and execution of that to which they relate unless the transaction covered by them is substantiated from independent and reliable source. Admissibility is to be distinguished from proof required by law for determining the execution and genuineness of document. The plea of res judicata and estoppel were also raised against the plaintiff on account of, the earlier litigation. But we find that they have been satisfactorily resolved by the High Court as it has been said that the documents relied upon by the defendants were fake and fraudulent and, thus, could not form basis for declaring the present Suit as barred by res judicata or for applying the principle of estoppel against the plaintiff, This, appeal is found without merit and is, accordingly, dismissed with costs.
13. It is now a fact that at times the
records are not properly maintained or produced and even then contrary evidence
is given which badly affects the proper adjudication of cases before the Court.
In this case though evidence has been led through the concerned Tapedar; but as
noted earlier, the said piece of evidence is the only evidence and cannot be
relied upon in the given fact. This Court fails to understand as to how such
piece of evidence has been appreciated in favor of the respondents without support
of any cogent documents. There is a series of judgments wherein it has been
held that a party that relies upon a mutation entry is bound to revert to the
original transaction which resulted into the entry or attestation of such
mutations. It has been further held that mutation not being a title deed, is
merely an evidence of some original transaction between the parties that had
been struck somewhere prior to entry of mutation[1].
A title cannot be created by entries in the mutation register nor such entries
are prima facie proof of ownership of the record holder. The title of the
record holder has to be proved before a Civil Court. The entry in the revenue
record by itself does not prove that the record holder is the owner of the land[2].
14. It is also a matter of record that prior
to filing of the Suit, the Respondents approached the Assistant Commissioner,
Kotdiji, seeking cancellation of the entry No.42 recorded in the revenue
records in favour of the Applicants. The said application was allowed vide
order dated 19.10.1992, without notice to the Applicants; however, in appeal
the said order was set-aside vide order dated 19.10.1995. In these proceedings,
it was never pleaded that any bradari faisla had arrived at between the
parties and the land was; or had been transferred and was sold as pleaded in
the Plaint. Neither these facts were averred in the plaint; nor the Plaint was
amended. This reflects a twofold story of the Respondents. Learned Counsel for
the Respondents was confronted as to how this stance could be justified; and to
this, he candidly admitted that perhaps the Respondents were not properly
advised by their Counsel at the relevant time. This by itself shows that the Respondents
have kept on changing their stance and for some strange reasons were not
consistent in their pleadings before the Court as compared to their stance
before the Revenue Authorities. Moreover, this Court has not been able to
comprehend as to how they got enagaged in parallel proceedings, i.e. filing of
the Suit as well as approaching Revenue Authorities and that too on entirely
different plea(s) for seeking cancellation of the entry of the Applicant.
15. In view of hereinabove facts and
circumstances of this case and the material placed before this Court, it
appears that the learned Appellate Court was misdirected in setting aside the judgment
of the Trial Court by decreeing the Suit, as apparently, the judgment of the
Trial Court was based on proper appreciation of the evidence and ought to have
been sustained. Accordingly, the impugned judgment dated 30-01-2001 of the
Appellate Court passed in Appeal No. 60 of 2000 is hereby set aside and the
judgment 22-02-2000 of the Trial Court passed in F.C. Suit No. 02 of 1995 is
restored.
16. This
Revision Application stands allowed in the above terms.
Dated: 27.8.2021
J U D G E
Abdul
Basit