IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Civil Revision Application No.S-53 of 2016

Applicants: Manjhi Khan and another, through Mr. Choudhry Shahid Hussain Rajput, Advocate.

Respondents: Noor Alam through his legal heirs through Mr. Abdus Salam Arain, Advocate.

Date of hearing: 21.02.2022.

Date of decision: 13.05.2022.

O R D E R

Zulfiqar Ali Sangi, J: This Civil Revision Application has been directed against the impugned judgment and decree dated 05.05.2016 passed by learned 2^nd Additional District Judge, Ghotki, whereby Civil Appeal No.11 of 2011, filed by the present applicants, was dismissed by maintaining the impugned judgment and decree dated 23.12.2010 & 24.12.2010, respectively, passed by Senior Civil Judge, Ghotki, in amalgamated Suits bearing F.C Suit No.15/2005 (re-Manjhi Khan vs. Noor Alam and others and subsequent F.C. Suit No.78/2017 (re-Jameel Ahmed and others vs. Manjhi Khan and others), hence this civil revision application.

2. The facts giving rise to this revision application are that applicants filed suit No.15/2005 for specific performance of the contract against the respondents stating therein that applicants and respondent (Noor Alam) entered into an agreement to sale of the agricultural land viz. Block No.93/1 (04-00), 93/2 (04-00), 93/3 (03-10), 93/4 (08-00), total admeasuring (09-10) acres, for the consideration of Rs.20,000/- per acres and Block No.94/3 (04-00) and 119/1 (08-00) acres, admeasuring 12-00 acres respectively, in all admeasuring (31-10) situated in deh Ibrahim Mahar, Tapo Qazi Badal, Taluka Khangarh, District Ghotki, vide agreement No. 265
dated 15.3.2000 which has been executed before Notary Public. The applicant/plaintiff was put into the possession of suit land and since then he is in peaceful possession and enjoyment being an owner. The applicant/plaintiff paid Rs.252,500/- as an advance to the full consideration of Rs.5,05, 000/- to the respondent/defendant as per

agreement in presence of the witnesses. As per agreement it was agreed that as and when the plaintiff pays the remaining sale consideration the defendant, will mutate the Khata before the sub-registrar, as well as to the revenue authorities in his favour. As per the terms and conditions of the agreement the plaintiff paid half amount of the total consideration in advance to the defendant, who received and acknowledged the same.

3. It is further averred in the plaint that after the lapse of some period, the plaintiff arranged the rest amount and approached the defendant and requested him to receive the remaining sale consideration and mutate the Khata of the suit land in his favour as per term and conditions contained in the sale agreement but the defendant kept the plaintiff on hopes, one or the other pretext, until his death. In the meantime the defendant Noor Alam died, and on coming to know the fact, the plaintiff approached severally to the defendant and requested him to transfer the Khata of the suit land on behalf of his deceased father as he had sold the suit land in his favour under agreement and plaintiff further informed that prior to this several time the plaintiff had approached him for the same purpose who also kept him on hopes, and returned back with some promise. Consequently, in February 2005, the defendant came at the house of the plaintiff and asked to arrange for the remaining amount as soon as possible and he is ready to transfer the Khata of the suit land in his favour, being legal heirs of the deceased Noor Alam original owner and 15 days time period was fixed. On the expiry of the time period fixed by the defendant, plaintiff again approached for said purpose and was required to fulfil the condition of promise and execute the Khata of suit land in his favour and perform his part of the contract, on that defendant informed him that he is not ready to transfer the Khata of suit land in his favour and further threatened that he shall get vacated the possession of the Suit land and in lieu of that he is ready to return the amount already taken by his father as per agreement and now he is not willing to sale the suit land in his favour. It is further stated that the plaintiff by virtue of sale, became the owner of the suit property and is in peaceful cultivating possession and enjoyment and also plaintiff is ready to make payment of remaining sale consideration in part performance of the contract and the defendants being L.Rs of the principal defendant is legally bound to perform his part of the performance of contract and by receiving the balance sale consideration, they should transfer the Khata of the suit land in favour of the plaintiffs.

4. The brief facts of suit No.78 of 2007 filed by respondent Jameel Ahmed are that; late Noor Alam owned and possessed agricultural land bearing blocks No.92/1 &2 (08-00), 93/2 (03-10), 93/3& 4 (08-00), 94/3 (04-00) and block No. 119/1 & 2 (08-00) acres total admeasuring 31-10 acres situated in deh Ibrahim Mahar, Tapo Qazi Badal Taluka Khangarh, District Ghotki. The late Noor Alam expired on 29.11.2001 and left behind two sons as legal heirs namely Malik Mehboob Alam and Malik Jameel Akhtar, hence the Khata of the 1ate Noor Alam was mutated as entry No.338 dated 05.5.2007, in the name of his legal heirs. Thereafter, his son Malik Mehboob Akhtar expired and his share was mutated as entry No.330 dated 05.5.2007, in the name of his legal heirs. Thereafter, his son Malik Mehboob Alam expired and his share mutated as entry No. 339 dated 05.5.2007, in the name of plaintiffs No.2 to 7, being his legal heirs hence the plaintiff No.1 is the owner of the 50 paisa share and the plaintiffs No.2 to 7 are the owners of the remaining 50 paisa share in the suit land entry No.338 to 339 annexure "A" and "B". It is alleged that the Late Noor Alam in the year 1998 from 01.6.1998 to 31.5.2002 leased out the suit land to one Muhammad Saleh son of Haji Joggi Mahar the cousin of defendant No. l and father of defendant No.2 under the lease agreement. In the month of June 1998, late Noor Alam had appointed plaintiff No. 1, as his special attorney to look after and manage the suit land problems as the late Noor Alam was an old and sick person and could not travel from Karachi to Ghotki, therefore, after 12.6.1998 the late Noor Alam never come at Ghotki, it was the plaintiff No. 1, who was managing the suit land since 1998. That up to the year 2002 lease money as per argument was paid by the defendants and when the plaintiffs No.1 to 2, approached the defendant they replied that as the Muhammad Saleh has expired they came at Karachi for fresh agreement and agreed to pay Rs.5000/- per acre for the next 4 years, from 01.6.2002, up to 31.5.2006, and paid lease money for the years 2002/2003 and 2003/2004 but thereafter the defendants No. 1 to 2, put the plaintiffs on false hopes and did not turn up for fresh agreement of lease. That on or about 23.4.2007, when the plaintiff No.2, came to Ghotki to receive the lease money and to get the Foti Khata Badal of the suit land the defendant refused to pay the lease money since 01. 6.2004, up to 31.5.2007, for the last 3 years it was a surprise to the plaintiffs that both the defendants refused to pay the agreed lease money amount of Rs.4,68, 750/- for three years and informed about the pendency of the F.C Suit No.15/2005, on the basis of managed bogus and fictitious so-called agreement of sale allegedly executed on 15.3.2000 at Sukkur by the well-known scriber of fictitious documents Ghulam Farooq Soomro and company who is already involved in so many cases of managing of fraudulent documents. That on the alleged date 15.3.2000 the late Noor Alam was admitted in the Hospital at Karachi and was unable to travel for Ghotki, the plaintiff with their malafide intention managed a bogus fictitious agreement of sale dated 15.3.2000, without notice and knowledge of the Noor Alam and the plaintiffs in backdate which is clear from the cuttings made in the alleged agreement. That neither the parties are residents of Sukkur nor the suit land is situated at Sukkur. Ghotki is District and so many petition Writers and Magistrates, Notary Publics are available at Ghotki and what was the fun in going to the parties along with witnesses at Sukkur, the argument on the face of it is a bogus documents there are so many cuttings in the date and years and the land is having value more than 5 lacs per acre the defendants are 1iable to be prosecuted for managing bogus document and using the same. That defendants are in illegal possession of the suit property, they are liable to pay the mesne profits/lease money at the rate of Rs.50, 000/-per year since last 3 years and up to the filing of suit and Rs.10, 000/- per acre per year, thereafter till the handing over of the possession of the suit land to the plaintiff, and the defendants are trying to damage the suit land and cut away the valuable trees, if the defendants are not restrained they will put the plaintiff in irreparable losses.

5. Learned counsel for the applicants, at the very outset, submits that impugned judgments and decrees passed by learned trial Court and appellate court are neither based on facts nor on law; that learned trial Court as well as Appellate Court failed to properly analyze the evidence on record and wrongly dismissed the suit of the applicants ignoring the cogent evidence produced by the applicants; that impugned judgments and decrees are improper and have been passed in hasty manner; that learned trial court as well as Appellate Court wrongly decided the issues against the applicants without assigning any reason; besides courts below have committed an error while deciding issues in negative and against the applicants by ignoring strong, cogent and consistent evidence and have erroneously relied upon false, discrepant and beyond pleadings evidence produced by the Respondents; that learned courts below also ignored the documentary as well as oral evidence produced by the applicants; that impugned judgments and decrees were result of misreading of evidence, hence liable to be reversed.

6. Learned Counsel appearing for Respondents argued that the judgments and decrees (impugned herein) passed by learned both lower Courts are based upon strong, cogent and reliable evidence; besides every aspect of the case has been discussed elaborately; that learned trial Court as well as Appellate Court have rightly decided the issues by giving detailed reasons; that learned lower Courts rightly relied upon the documentary as well as oral evidence; that there is no any defect regarding misreading or non-reading of evidence committed by both courts below; hence liable to be maintained as the same has been passed properly and accurately. In the last, he submitted that instant civil revision, being meritless, is liable to be dismissed with compensatory cost.

7. I have heard learned Counsel for the Applicants as well as Respondents and have carefully examined the material available on record with their able assistance.

8. Learned trial court had framed the following consolidated issues from the pleadings of the parties.

1. Whether the plaintiff In F.C Suit No. 15/2005 entered into agreement of sale and paid sale consideration?

2. Whether the agreement dated 15.3.2000 is not bogus and fictitious document?

3. Whether since 1.6.2004 the Manjhi Khan and Achar are failed to pay mesne profit/lease money and they are in illegal possession of the suit land?

4. Whether the suit No.15/2005 is not maintainable under the law?

5. Whether plaintiff Manjhi Khan managed bogus agreement and liable to be action U/S 467, 488, 471 PPC?

6. Whether the plaintiff Manjhi Khan dragged the defendant in the fictitious 1itigation and they are entitled for the Compensatory costs?

7. Whether the plaintiff Manjhi Khan in Suit No.15/2005, entitled for any relief?

8. Whether the plaintiff Jameel Akhtar and others in F.C suit No.87/2007, are entitled for any relief claimed?

9. What should the decree be?

9. It is an admitted position that both parties have filed their respective suits bearing F.C Suit Nos. 15 of 2005, being the leading Suit, filed by Applicant No.1 Manjhi Khan for specific performance of the contract and permanent injunction in respect of agricultural land viz; Block No.93/1 (04-00), 93/2 (04-00), V1Z.93/3 (03-10), 93/4 (08-00), total admeasuring (09-10) acres, for the consideration of Rs.20,000/- per acres and Block No.94/3 (04-00) and 119/1 (08-00) acres to admeasuring 12-00 acres respectively, in all admeasuring
(31-10) situated in deh Ibrahim Mahar, Tapo Qazi Badal, Taluka Khangarh, District Ghotki, based on a sale agreement, wherein he has stated that he and deceased Noor Alam were entered into a sale agreement of suit property and as per sale agreement, he had paid Rs.2,52,500/- as an advance to the full consideration of Rs.5,05000/- and prayed that to direct the defendant to receive payment of remaining sale consideration of Rs.2,52,000/- and mutate/execute the Khata in respect of suit land; however, on the other hand, legal heirs of deceased Noor Alam have also filed F.C Suit No.78 of 2007 for cancellation of documents, possession, mesne profits/lease money and permanent injunction in respect of property in question. Both the suits were consolidated and decided by learned Senior Civil Judge, Ghotki, vide judgment dated 23.12.2010, whereby suit filed by the Applicant No.1 was dismissed as the Applicant No.1 failed to prove his claim; however, suit filed by the legal heirs of deceased Noor Alam was decreed to the extent of prayer clause (a) to (d) in their favour. Being aggrieved and dissatisfied with the impugned judgment, the appeal was preferred by the applicants before learned District Judge, Ghotki, which was also dismissed vide judgment dated 05.05.2016.

10. I have scanned the evidence of the parties minutely, applicant Manjhi Khan during his cross-examination stated that “On the very same date the Notary Public attested the agreement to sale. From the office of the stamp Vendor we proceeded towards Notary Public on Tanga. At that time stamp Vendor was with us.” Whereas his witness Sono stated in his cross-examination that “we never proceeded any other office from the office of stamp vendor.” The witness Kareem Bux Bhutto was also examined who also not supports the case of the applicants and deposed that “I see document Exh; 10 viz: sale agreement it was issued by me on the name of Manjhi Khan son of Mashghool Mahar R/O Village Manjhi Mahar Taluka & District Ghotki bearing Sr. No.265 dated: 15.03.2000, it is same and bears my signature as well as it bears my seal. I am not scriber of the document Exh:10 it was only issued by me to Manjhi Mahar. The handwriting of document Exh:10 is not pertaining to me.” The sale agreement in question is also found doubtful after the scanning of the evidence of the defendant side who produced the documentary evidence in the respect that on the day of sale agreement the said Noor Alam was admitted to the hospital such discharged card was exhibited in the evidence and has not been challenged. From the evidence as discussed above it is very much clear that the applicant Manjhi Khan managed a sale agreement in collusion of his witness.

11. I have also carefully perused the judgment of the Appellate Court wherein the appellate court in its judgment dated 05.05.2016 has given detailed findings and reasons regarding the execution of the alleged sale agreement in respect of suit property, which reads as under:-

“According to appellant Manjhi he purchased the suit land through agreement of sell dated 15.03.2000 for total consideration of Rs.505,000/- and he paid Rs.2,52,500/- to the Respondents. Record shows that the appellant examined both attesting witnesses of the agreement of sale; however both of them have shown ignorance about the name of scriber of agreement of sale and the place of situation of shop of scriber. Record further shows that no receipt of payment of earnest money is placed on record. PW Achar deposed during cross examination that stamp paper was purchased by Noor Alam. On the contrary the stamp vendor Karim Bux deposed that he issued stamp paper in the name of Manjhi Khan, this clearly suggests that Noor Alam Khan had not purchased the stamp paper. The respondents in their evidence have deposed that the signature of Noor Alam on agreement of sale is forged. I have compared the signatures of Noor Alam with signature of Noor Alam on power of attorney (EXh.44) and it appears that both the signatures are quite different from each other. It appears that document (Exh.44) was signed in the year, 1998 by the deceased Noor Alam in the year, 2000. The plaintiff/appellants have not disputed the signatures of Noor Alam on Exh.44. The alleged agreement of sale does not bear any endorsement regarding identification of Noor Alam nor it appears that who had identified the said Noor Alam at the time of alleged execution of agreement of sale. It appears that one of the attesting witness Muhammad Achar is appellant in this case, as such this witness appears to be interested witness. Second attesting witness Sono deposed that he did not know that who had scribed the agreement. Appellant during cross examination admitted that so many stamp vendor and scriber of documents are available at Ghotki. He admitted that Sukkur is 70 K.Ms away from Ghotki. No reason is assigned for execution of agreement at Sukkur instead of Ghotki when vendee and attesting witnesses are resident of Ghotki. The vender is also not residing at Sukkur. Hence the case of appellants appears to be highly doubtful and even the execution of agreement of sale also become doubtful”.

12. Learned Counsel for the applicants failed to rebut the aforementioned observations of the learned appellate Court, even though he could not satisfy the Court on the query as to why the alleged sale agreement was executed at Sukkur instead of Ghotki as the vendee and attesting witnesses are residents of Ghotki and such facility of stamp paper and the Notary public is available at Ghotki as has been admitted by the parties. The witness Sono has also not supported the case of applicants regarding scribing of the alleged sale agreement; besides the signature of deceased Noor Alam Khan does not match with his signatures as has been observed by the appellate court. The points raised by learned counsel for the applicants in his arguments have already been discussed by the learned appellate Court with sufficient reasoning which does not need a reappraisal of this Court.

13. For the forgoing facts, discussion and reasons, impugned judgments passed by learned trial Court as well as Appellate Court appear to be well-reasoned and in accordance with the pleadings on record and applicable law, which do not suffer from any illegality, irregularity or infirmity inviting any interference by this Court in its Revisional Jurisdiction. Accordingly, the instant Revision Application is dismissed along with the pending application(s), if any, being devoid of any merit, with no order as to costs.

Judge