ORDERSHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Civil Revision Application No. S-233 of 2010

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DATE ORDER WITH SIGNATURE OF JUDGE ______________________________________________________________________

Hearing of case.

1. For hearing of main case.

2. For hearing of CMA 858/2010

(notice issued to Advocate and respondent)

Date of Hearing: 06.09.2021

Date of Order: 06.09.2021

Mr.Shoukat Ali Bohio, Advocate for Applicants.

Mr. Ahmed Ali Shahani, AAG.

O R D E R.

Respondents duly stand served through publication; but nobody has turned up.

This CivilRevisionACivpplication has impugned judgment dated 20.09.2010 passed by learned District Judge,NaushehroFeroze in Civil Appeal No. 36 of 2006, whereby, Judgment of the trial Court dated 22.03.2006 in CivilSuit No.104/2003 through which the Suit of respondent No.1 was dismissed, has been over-turned and it has been decreed.

Learned counsel for the Applicants submits that the Appellate Court has failed to appreciate the evidence properly; that it is a case of misreading and not-reading of the evidence; that the Appellate Court has not discussed the entire evidence of Tapedaras a whole and has decided the Appeal only on the basis of his examination in chief; hence this Revision application merits consideration.

I have heard counsel for the Applicants and perused the record. It appears that respondent No.1 had filed Suit seeking following prayers.

a) It be declared that the claim of the defendants No.1 to 3 over the Suit land is null, void, abinitio, against law and natural justice, and plaintiff being legal heir of deceased Rato is lawful owner of Suit land i.e 50 paisa share in S.No.190 dehKeti Abu-Bakar No.1, Taluka and district NaushehroFeroze.

b) A permanent injunction be issued against the defendants, restraining them from interfering with the peaceful possession of the plaintiff over the Suit land, directly or indirectly personally or through any of their agent, relative or subordinate in any manner.

c) Costs of the Suit be borne by the defendants.

d) Any other relief which this Honourable Court deems fit and proper may be awarded to the plaintiff.

The trial Court after settlement of various issues came to the conclusion that the plaintiff/respondent No.1 has not been able to prove the averments in the plaint and the Suit was dismissed. The said judgment was then appealed and the learned Appellate Court on the basis of evidence of Tapedar, has been pleased to set aside the Judgment of the trial Court and has allowed the appeal by decreeing the Suit. Though the learned Appellate Court has based its judgment on the evidence of the Tapedar; but unfortunately it is only the examination in chief which has been relied upon in passing the impugned judgment, whereas, the cross-examination has not been considered. It is settled law that evidence of a witness has to be looked into as a whole; specially the cross examination so as to ascertain the veracity and truth of his assertion in his examination in chief. Notwithstanding this legal defect in the Judgment, even otherwise the learned Appellate Court has failed to appreciate that as to how the subsequent mutation No.157came into record without any supporting document. It is settled law that a mere entry in the mutation record does not suffice and cannot be made the only basis of ownership. It has to be supported bya transaction of sale or purchase entered into by the parties which is lacking this case. The cross examination of the Tapedar which has not been attended to reads as under:

“The form A & T.0 Form on the basis where of mutation entry No.157 had been brought in the year 1999 same have not been verify to my knowledge & as per the record available with me & this entry recorded by the order of assistance Mukhtiarkar. A. Form & T.O which resulted entry no.157 of 1999 are not available in my record. It is the practice of the Revenue authorities that the copies of T.O Form & A-Form are to be kept in the relevant register where the mutation entry is brought in the result is such T.O form & A-Form. It is correct that one MohdQassimPanhwar was tapedar in tapa Mithani in the year 1999 & entry No.157 bears hand writing to tapedar MohdQassimPanhwar. It correct that the vouchers for entry No.157 are not in the record nor the same are received by me when I took over the charge. The entry No.157 is in the record prior to my taken over the charge as tapedar of tapa Mithani. I produce attested copy of Deh form VII-AB at Ex.66, I also produce Deh form XV at Ex.67 &Deh form VIIB at Ex.68”.

Perusal of the aforesaid cross examination clearly reflects that as to entry No.157 of 1999 no record is available with the revenue authorities and in that case the learned Appellate Court was not justified in setting aside the Judgment of the trial Court and while doing so has fallen in error. Neither the entry has been verified by the Tapedar; nor he is in possession of the record of that entry and as to how the same was recorded.

In view of herein above facts and circumstances of this case, the judgment of the Appellate Court dated 20.9.2010 cannot be sustained,and is, therefore, set aside and the judgment of the trial Court dated 22.3.2006, whereby, the Suit was dismissed is restored. The instant RevisionApplication is allowed in these terms.

JUDGE

Irfan/PA.