ORDERSHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Civil Revision Application No. S-70 of 2005

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DATE ORDER WITH SIGNATURE OF JUDGE ______________________________________________________________________

Hearing of case (Priority).

1. For hearing of main case.

2. For hearing of CMA 265/2005

(notice issued to Respondents& Advocate)

Date of Hearing: 03.09.2021

Date of Order: 03.09.2021.

Mr. Mushtaque Ahmed Shahani, Advocate for Applicants.

O R D E R.

Muhammad JunaidGhaffar,J. Through this revision application, the applicants have impugned Judgment dated 09.05.2005 passed by Additional District Judge, Sukkur, in Civil Appeal No. 84 of 2004 through which Judgment dated 19.06.2004 in Civil Suit No. 01 of 2003 passed by the Civil Judge, Rohri, decreeing the Suit of Applicant has been set aside.

Learned counsel for the applicants has argued that the appellate Court was not justified in law to set aside the Judgment of the trial Court which had decreed the suit of the applicants after appraisal of the evidence which had gone un-rebutted; that the appellate Court failed appreciate that Dakhil Kharij in favour of applicants was produced in evidence and could not have been ignored in slip shod manner; hence the impugned Judgment is liable to be set aside.

Nobody has turned up on behalf of respondents despite best efforts and even after service of notice, whereas, time and again different Advocates have been engaged; therefore, since the matter pertains to 2005, the same is being decided with the assistance of applicants’ counsel and record before the Court.

It appears that the applicants had filed a suit for declaration and permanent Injunction with prayer to restrain the respondents from interfering with the peaceful possession of the suit property purportedly with them in addition to costs of the suit and any other relief deemed fit by the Court. Primarily it was a suit for a restraining order without any prayer of a declaratory nature. The trial Court after exchange of pleadings settled the following issues.

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

2. Whether father of defendant was the owner of the suit land bearing S.No. 372-A at deh Gagro and sold it to father of plaintiff in the year 1976?

3. Whether the plaintiff is in the possession of suit land.

4. Whether the plaintiff is legal owner of the suit land?

5. What should the decree be?

The relevant findings of the learned trial court on these issues is as follows;

ISSUE NO.2.

The issue has been framed from the pleadings of the plaintiff, therefore, burden lies upon the plaintiff to prove the same. The plaintiff Jahan Shah has deposed at Ex.24 that suit land bearing survey No.372-A situated in deh Ghaghro was property of one Wahid Bux Bhatti (father of defendant No.1) from whom his father namely Jindal Shah purchased the same in the sum of Rs. 5000. In order to prove the sale plaintiffs examined two witnesses namely: Muhammad Saleh Leghari and Ghanwar Bhambro as Ex. 29 and Ex.30 respectively. Both the witnesses have deposed that they are residing in village PunhalLeghari Taluka Salehpat since their forefathers and plaintiff is also and father of plaintiff namely Jindal Shah had purchased the suit land from Wahid Bux Bhatti in the year 1976 in the sum of rupees 5000 in his otaq in their presence as well as in the presence of others. Defendant has admitted the version of plaintiff to the extent that his father namely Wahid Bakhsh Bhatti was the owner of the suit land.

The plaintiff in support of his claim has produced Dakhi lKharij form as Exh. 26 and defendant has not challenged the Dhakhil Kharij from in any form not he has proved the same to be managed or fabricated from above discussion. I hold that plaintiff’s father had purchased suit land from defendant’s father namely Wahid Bakhsh Bhatti. This issue is decided accordingly.

ISSUE NO.3.

This issue has been settled from the pleadings of the plaintiffs, so plaintiffs have to prove that they are in the possession of suit land. The plaintiff Jahan Shah as Exh. 24 has deposed that suit land is in their possession form the date of its purchase viz. 1976 and they are paying land revenue tax. He produced photo stat copy of Dhall receipt dt. 21.06.1981 as Exh. 27 and original copy of land revenue receipt for the year 2001 to 2003 as Ex. 28 more over PW namely Muhammad Saleh as Ex. 29 deposed that possession of the suit land was with the father of the plaintiff and after his death it rests with plaintiff and he used to pay revenue tax. PW Ghanwar has also deposed in like manner in addition to this advocate Shah Muhammad Maitlo was appointed commissioner who inspected the site and submitted his report stating therein that he visited the site and reordered the statements of the people of different caste wherein hey have stated that plaintiffs are in the possession of the suit land. In view of above discussion my findings on issue No.3 are in the affirmative.

ISSUE NO.4.

Since issue No.2 has been decided in favour of plaintiff’s father namely Jindal Shah as plaintiff has inherited the suit land and got lawful and peaceful possession thereof which is not rebutted by the defendant evidence and this issue had gone as unchallenged and un‑rebutted therefore, this issue is answered in affirmative.

It would also be advantageous to refer to the cross examination of the Plaintiff on the basis of which the trial court had decreed the suit. It reads as under;

XX to Mr. Ali Ahmed Advocate for both defendants.

It is incorrect to suggest that in the year 1976 the suit land was not the property of Wahid Bux but it was Govt. property. I don't know whether said Wahid Bux paid full Malkano cost and T.O Form was issued in his land voluntarily says but the suit land was transferred on the Dakhal Kharij Form to my father. I don't know whether defendant No.1, applied for T.O form and he paid such fees for issuance of Ghat-Wadh Form in the name of his father, on 22. 10.1997. It is incorrect to suggest that the defendant No.1, got measured the suit land from the Survey Superintendent Khairpur, who subsequently issued said Ghad Wadh Form vide his office letter dt:8.2.2002 addressed to Mukhtiarkar Salehp atalongwith sketch of the same. I don't know whether said survey superintendent re-numbered the suit land and issued new numbers as 372(1-13), 929 (1-02), 930 (1–16), 931 (0-30) and 932 (0-38). It is incorrect to suggest that the property of said Wahid Bux was reduced to 6 acres and 36 ghuntas as per Gha Wadh form voluntarily says it was 14 acres 29 ghuntas. It is incorrect to suggest that the survey number 372 is not containing 14 acres 29 ghuntas. It is incorrect to suggest that the reduced area of 6. acres 36 ghuntas is in the possession of defendant No.1, It is fact the defendant No.1 filed application for issuance or the T.O Form which I contested. It is fact subsequently I withdraw from my contest before the D.O, Revenue Sukkur regarding issuance of the T.O. Voluntarily says I filed present suit. I don't know whether D.O revenue Sukkur issued the letter on 21.9.2002 to the Mukhtiarkar Salehpat regarding the report of the possession and payment of revenue and place from the 20, chains of sanctioned village. I don’t know whether said Mukhtiarkar Salehpat send his report vide his letter No. 361 dt. 02.10.2002 to the said District office to his quies. It is incorrect to suggest that Mukhtiakrar Salehpat issued Robb-Kari No.345 dt. 18.9.2002 wherein he declared suit land as Govt. property viz. Na-Qabooli. I don’t know how the khata was mutated in the name of my father by the Wahid Bux. It is incorrect to suggest that we managed the statements in another deh and got transferred the suit land in DehGhaghro on the basis of false statements. It is fact the survey number is not mentioned in the photostat copy of land revenue receipt dated 21.06.1981. It is fact we have not paid the revenue tax for the period from 1982 to 2000. It is incorrect to suggest that we managed the dhall receipt issued on 1.7.2003 with the tapedar. It is incorrect to suggest that the defendants are in the possession of the suit land but we are trying to dispossess them. It is incorrect to suggest that the defendants had not issued any threats to us. It is incorrect to suggest that in order to usurp the suit land we filed this false case. It is incorrect to suggest that suit land is still govt. land.

Though on perusal of the above issues it reflects that they perhaps are not germane to the main prayer sought by the Applicants; nonetheless, the learned trial Court after appreciating the above evidence led by the plaintiff answered these issues in favour of applicants and decreed the suit.The said judgment was impugned by Respondent No.1 before the Appellate Court, who after perusal of the evidence did not agree with such findings and through impugned judgment has been pleased to allow the appeal of respondent No.1 by setting aside the Judgment and Decree of the trial Court.

Insofar as the learned trial Court is concerned, it appears that the entire suit was decreed on the premise that since the respondents admitted the fact that the property was owned by his father namely Wahid Bakhsh Bhatti and the applicant claims his ownership on the basis of purported purchase of the said land from Wahid Bakhsh Bhatti and was in possession of a Dakhal Kharij which has gone unchallenged in the evidence, and therefore, he is entitled for the relief sought in the Suit. However, learned trial Court completely failed to appreciate that mere entry in the record or for that matter a Dakhal Kharij, by itself does not confer any title or ownership nor can stand alone to justify one’s ownership in absence any supporting material or evidence. Moreover, no declaration was sought in respect of any title in the suit property in plaint filed by the Applicant. The learned trial court also failed to appreciate the above evidence of the Plaintiff himself who said that he has no knowledge as to how the khata was mutated in the name of his father. When the applicant claims that the land was purchased from Wahid Bakhsh Bhatti on the basis of a Dakhal Kharij; he was required to prove the same that on the basis of what transaction it was obtained and the entry was recorded. This was never done; nor the applicant had joined any the revenue officer in the suit. Not only this; but he even failed to call them as Plaintiffs’ witness or for that matter as Court witnesses in terms of Order XVI CPC. Once it has come on record that document i.e Dakhal Kharij on which the applicant had relied upon, was not proved in accordance with law, then mere production of any such document cannot be made basis for decreeing the suit. This is besides the fact that it was only the possession in respect of which the protection was sought and no declaration was sought for ownership or title in the property.

In view of hereinabove facts and circumstances of this case, I am of the view that the learned Appellate Court was fully justified in setting aside the judgment of the trial Court; hence no case is made out, the impugned Judgment dated 09.05.2005 passed by Additional District Judge, Sukkur, is maintained and the Revision Application stands dismissed.

JUDGE

Irfan/PA.