Order Sheet

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

Civil Revision No.S-08 of 2020

 

DATE OF

HEARING

ORDER WITH SIGNATURE OF JUDGE.

                                            

1. For orders on O/objection No.iv at flag-A.

2. For hearing of main case.

3. For hearing of CMA No.34/2020.

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Date of hearing.                   

31.03.2022

 

               Mr. Farooque Ali Halepoto, Advocate for Applicant.

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JUDGMENT

 

ARSHAD HUSSAIN KHAN, J.-   Through instant Civil Revision Application, the applicants have assailed the concurrent findings of two courts below viz. (i) Judgment & Decree dated 19.12.2012 and 22.12.2012, passed by Senior Civil Judge, Kandiaro, in F.C Suit No.01 of 2009 whereby the suit of respondents/plaintiffs was decreed and (ii) Judgment & Decree dated 11.12.2019, passed by Additional District Judge, (MCAC), in Civil Appeal No.07 of 2013 whereby the appeal preferred by the present applicants/defendants against the judgment and decree, passed in F.C Suit No.02 of 2019 was dismissed.

 

 

2.      Concisely, the facts giving rise to present Revision Application are that the respondents/plaintiffs filed Civil Suit No.01/2009 for Declaration, Possession, Mesne Profits and Permanent Injunction in the court of Senior Civil Judge, Kandiaro, against the present applicants/defendants in respect of land measuring 0-18 Ghuntas from Survey No.127/2 of Deh Budak Taluka Kandiaro (suit property). It is stated that the suit property along with other land was purchased through registered Sale-Deed by grandfather of the plaintiffs/respondents on 17.06.1942, which was subsequently mutated in his name. It is further stated that upon the death of grandfather his Foti Khata was prepared by the Revenue Department in the name of plaintiffs’ father namely Muhammad Issa and Mst. Hawa D/o Muhammad Issa who subsequently gifted the suit property along with other land to the plaintiffs, and such record was also mutated in the names of plaintiffs. Consequently, the plaintiffs became lawful owner of the suit property. It has also been stated that initially the possession of the suit property was with the predecessor of the plaintiffs i.e., grandfather and father, and after becoming the owner the same it was with the plaintiffs. It has been further stated that possession of the suit property had remained with the plaintiffs till the year 2013 when the defendants/applicants forcibly dispossessed the plaintiffs and occupied the same for which they had no concerned whatsoever. It has also been stated that the plaintiffs during his possession of the suit property, were paying the land Revenue in respect thereof to the Government and were enjoying the possession. It has also been stated that the plaintiffs had mortgaged the suit land with ADB Kandiaro (ZTB), Kandiaro branch, which has not yet been discharged. It has been stated that plaintiffs have been forcibly dispossessed from the suit property whereas the defendants/applicants have no right, title and interest in the property. The plaintiffs having no other remedy have filed the present suit with the following prayers;

“a)      That this Honourable Court may be pleased to declare that the plaintiffs are lawful owner of suit land (0-18) Ghunta, 50 paisa share.

 

b)       That, this Honourable Court may be pleased to direct the defendants to put the plaintiffs in vacant possession of the suit land, the defendants may also be directed to pay the mesne profits of the suit land of last 6 months and onward of the suit land.

 

c)       A permanent injunction may be granted in favour of plaintiffs restraining the defendants from sub-letting the possession of the suit land to any other person or authority.

 

d)       Any other relief, which this Honourable Court deems proper may be awarded to the plaintiffs and the costs of the suit be borne by the defendants.

 

 

3.      The said suit, after a full-dressed trial, was decreed in favour of the plaintiff/respondent, vide judgment dated 19.12.2012. Relevant portions of the judgment are reproduced as under:-

“ISSUES No.3&4

On these issues the plaintiff Ali Nawaz deposed that his grandfather purchased the suit land through registered sale-deed in the year, 1942. The suit land till 40 years remained in possession of his grandfather when he died.

 

He deposed that after the death of his grandfather the suit land was mutated in the name of his father and paternal uncle in the year, 1994 during holding jalsa-e-Aam by the Mukhtiarkar. He deposed that his father gifted suit land to him and his elder brother Muhammad Bux.

 

The plaintiff has produced certified true copies of sale-deed at Ex.25, copy of entries No.80 and 81 at Ex.26 and land revenue receipts at Ex.27 and all these documents revealed that suit land was purchased by grandfather  through registered sale-deed in the year 1942 and after his death devolved upon father of the plaintiff who then gifted the same to the plaintiff vide entries No.80 and 81  and suit land remained in possession of the plaintiff who were paying the land revenue to the government.

 

On the other hand the defendants claimed that they had purchased the suit land from one Kirir through registered sale-deed dated 23.03.1943 at Ex.64-A it appears that the defendants have purchased an area of 36 ghuntas from 2-28 acres of survey No.127/1 whereas the grandfather  of the plaintiff had purchased an area of 18 ghuntas from survey No.127/2. On 08.06.1942 even prior to purchase of area from survey No.127/1 by the defendants. In the circumstances and documentary evidence available on record I am of the humble view that Soomar purchased the suit land and remained in possession of the same and his Foti Khata was maintained by the revenue authorities in accordance with land and the suit land was gifted by the father of the plaintiffs who are now owners of the suit land. The issues No.3 and 4 are answered accordingly.

 

ISSUE No.3-A

On this issue the plaintiff has produced the entry No.80 at Ex.26 and it appears that suit land was inherited by Muhammad Eissa and Mst. Hawa the son and daughter of Soomar. The entry No. 81(Ex.26) shows that Mst. Hawa gifted her share to the plaintiff and as such the Khata of suit land was maintained in the name of Muhammad Bux and Ali Nawaz. The issue No.3-A answered in the affirmative.”

 

ISSUES No.5&6 

The plaintiff has deposed that the suit land remained in their possession and they had been paying the land revenue and about one year back, the defendants illegally occupied the suit land. The plaintiff has produced land revenue receipts. The version of the plaintiff supported by his witness Muhammad Siddique and Muhammad Bachal. In rebuttal it is stated by the defendants that from very beginning the suit land never remained in possession of the plaintiff meaning thereby they are in possession and therefore their possession is valid and lawful. This plea of the defendant cannot be accepted as the illegal acts always remain illegal and with passage of time cannot be matured in legality.

 

In view of above discussion I am of the humble view that plaintiffs are entitled for relief claimed. The suit is decreed as prayed for possession while it is preliminary decreed for Mesne profits, let preliminary decree be prepared for Mesne profits of the suit land from the date of filing of the suit and to submit his report thereafter final decree in respect of Mesne profits be prepared. The plaintiff shall entitled for Mesne profits till the recovery of possession at the rate determined by the Commissioner in his report. The plaintiffs are directed to deposit Rs.3000/- towards Commissioner fee. There will be no order as to costs”.

 

4.      The said decree was subsequently, challenged by applicants/defendants in Civil Appeal No.07 of 2013, which was maintained by learned Additional District Judge (MCAC), Kandiaro vide judgment dated 11.12.2019. Relevant portion whereof is reproduced as under:-            

“…….During course of evidence, learned trial Court also examined Tapedar of Beat namely Abdul Sattar on 11.12.2012, who produced various record which is available in the record of case file. From the perusal of evidence available in the record of case file, it shows that grandfather of plaintiffs/respondents had purchased an area 0-18 Ghuntas (50 Paisa share) out of Survey No.127/2 along with other land through registered sale-deed in the year 1942. The record further shows that same was mutated in the name of grandfather of plaintiffs/respondents; subsequently the same was transferred to the legal heirs of plaintiffs/respondents. The record further reveals that father and sister of the respondents/plaintiff gifted out their share and such record was also mutated in their names. The record further shows that appellants/defendants occupied the said land about one year of case file. Further shows that according to the registered sale-deed there were two survey numbers in the registered sale-deed and according to the version of appellant the share of their father in the registered sale-deed in 25 paisa share, however, the said registered sale-deed was not entered in the revenue record. The evidence further shows that the plaintiff/respondents are lawful owners of the suit land by way of inheritance as well as by way of Gift. The evidence further shows that plaintiffs/respondents had examined himself as well as he has produced two witnesses before learned trial Court and both witnesses have supported the version of plaintiffs/respondents in their evidence and they also produced CTC copy of registered sale-deed as well as Revenue record which was confirmed by the Beat Tapadar namely Abdul Sattar during recording his evidence, which is available in the record of case file as Ex.78. Hence, I am of the opinion that the learned trial Court has passed the impugned judgment and decree while giving its findings on each issue after discussing the entire evidence available on the record, therefore, the learned trial Court has not committed any illegality/irregularity while passing the same, hence, the same requires no interference by this Court. This point No.1 is therefore, answered in affirmative”.

 

 

5.      Learned counsel for the applicants while reiterating the facts has contended that the orders impugned herein are not sustainable in law and facts both. It is contended that the learned courts below while passing the impugned orders have failed to consider the evidence available on the record, which fully support the stance of the applicants.

 

6.      The provisions of Section 115 C.P.C. envisage interference by the High Court only on account of jurisdiction alone, i.e. if a court subordinate to the High Court has exercised a jurisdiction not vested in it, or has irregularly exercised a jurisdiction vested in it or has not exercised such jurisdiction so vested in it. It is settled law that when a court has jurisdiction to decide a question it has jurisdiction to decide it rightly or wrongly both in fact and law. The mere fact that its decision is erroneous in law does not amount to illegal or irregular exercise of jurisdiction.  For an applicant to succeed under Section 115 C.P.C., he has to show that there is some material defect in the procedure or disregard of some rule of law in the manner of reaching that wrong decision. In other words, there must be some distinction between jurisdiction to try and determine a matter and erroneous action of a court in exercise of such jurisdiction. It is a settled principle of law that erroneous conclusion of law or fact can be corrected in appeal and not by way of a revision, which primarily deals with the question of jurisdiction of a court i.e. whether a court has exercised a jurisdiction not vested in it or has not exercised a jurisdiction vested in it or has exercised a jurisdiction vested in it illegally or with material irregularity.

7.      No such infirmity has been shown by learned counsel for the applicants to call for interference in the impugned judgments by this Court. It is well settled that if no error of law or defect in procedure had been committed in coming to a finding of fact, the High Court cannot substitute such findings merely because a different findings could be given. It is also well settled law that concurrent findings of the two courts below are not to be interfered in revisional jurisdiction, unless extra ordinary circumstances are demonstrated by the applicants. It is also trite law that a revisional court does not sit in reappraisal of the evidence and is distinguishable from the court of appellate jurisdiction. Reliance in this regard can be placed in the cases of Abdul Hakeem v. Habibullah and 11 others [1997 SCMR 1139], Anwar Zaman and 5 others v. Bahadur Sher and others [2000 SCMR 431] and Abdullah and others v. Fateh Muhammad and others [2002 CLC 1295]. 

8.      The upshot of the above discussion is that no illegality, irregularity or jurisdictional error in the concurrent findings of the lower courts could be pointed out by learned counsel for the applicants. Resultantly, the civil revision in hand, being devoid of any force and merit, is dismissed.

                                                                                                                     JUDGE

 

Ihsan.