IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

 

Civil Revision No.S-42 of 2012

(Ali Bux & others vs.Nazeeran & others)

 

 

Date of hearing:   

16.05.2022

 

Mr. Parvez Ahmed Kubar Advocate for the applicant.

 

Mr. Qalandar Bux Phulpoto Advocatefor private respondents

 

Mr. Noor Hassan Malik, Assistant Advocate General

 

JUDGMENT

 

 

ARSHAD HUSSAIN KHAN, J.-      Through this Civil Revision, the Applicant has impugned the judgment and decree dated 08-12-2011 and 12.12.2011 respectively, passed by IInd Additional District Judge, Khairpur,in Civil Appeal No.19 of 2011, who reversed the findings and set-aside the judgment and Decree dated 23-02-2011 and 25.02.2011 respectively passed by 1st Senior Civil Judge, Khairpur, whereby F.C. Suit No.184 of 2010 (Old Suit No.09 of 2006) filed by the present applicant was allowed.

 

2.       Briefly, the facts of the case are that the  applicants/ plaintiffs had filed F.C. Suit No.184 of 2010, against the present respondents for declaration, cancellation of documents, possession, mesne profits and permanent injunction, stating therein that the agricultural land, bearing Survey Nos.194/2(2-30) and 195/1(2-20), admeasuring 6-10 acres belongs to applicant/ plaintiff No.1-Ali Bux, Survey Nos.205/4-17, 206/3-03, 207/4-09, 1130/4-17, admeasuring 16-06 acres belongs to plaintiff No.2-Koural and Survey Nos.195/2(2-20), 1131/2-28 and 1132/2-26, admeasuring 7-34 acres belongs to plaintiff No.3-Hamz Ali, all situated in Deh Pir Mashaikh, Taluka Sobhodero, District Khairpur [‘suit land’]. Initially, the suit land along with other land was leased out by the plaintiffs to respondent/defendant No.6-Mian Mir Muhammad through lease agreement for a period from 1988 to 1994 and possession thereof was handed over to the said defendant. Subsequently, the said lease was extended up to   December 2005. It has also been stated that the suit land was also mortgaged with Agricultural Development Bank of Pakistan (ZTBL) Gambat now Sobhodero, which was subsequently redeemed in 2004 by the plaintiffs. It has been stated that during the period from 1989 to 1993 defendant No.6 in connivance with revenue officials got tampered with the record and on the basis of such forged record, defendant No.6 and defendants Nos.1 to 5 sold the suit land alongwith other land (total area 313-9 and half acres) to defendants Nos.3,5, and 7 to 10, through registered sale-deed No.154 dated 06.02.2002, registered in the office of Sub-Registrar Gambat, behind the back and without the knowledge of the plaintiffs, who came to know about the said sale transaction in the year, 2006 when the defendants refused to vacate the possession of the suitland and disclosed about the purported sale-deed. It had also come into the knowledge of the applicants/plaintiffs that the suit land is alleged to have been sold by the plaintiffs to defendants No.5 and 6 by way of registered sale deeds and statements of the sale before Revenue authorities. It has been stated that the sale-deed dates 14.09.1985, 25.7.1991, 27.2.1989 and mutation entries regarding sale of suit land, vide entries  Nos. 88 dated 16.12.1985, 29 and 30 dated 24.05.1990 are void, illegal and nullity in the eye of law. The plaintiffs having no other remedy filed the above suit for redressal of their grievances.

 

Upon notice of the case, written statements on behalf of respondents/defendants No. 1 to 10 were filed wherein the allegations levelled in the plaint were denied and the suit was sought to be dismissed. After a full dressed trial, learned trial court decreed the suit of the Applicant / plaintiff, however, the said judgment and decree wereset aside in the appeal, hence the applicant/plaintiff approached this Court against conflicting findings of the courts below.

3.       Learned counsel for the Applicant has argued that the appellate court has erred in law and facts and have failed to appreciate the evidence on the record; that the suit land is owned by the plaintiffs/applicants; that the suit land was  leased out to the defendant No.6 twice for the period from 1988 to 1994 and from 1994 to 2005 and the said land was mortgaged with ADBP Gambat on 18.04.1984, which was got redeemed by the plaintiffs/applicants and was not sold out to the defendants nor executed alleged registered sale-deeds in favour of the defendants and the registered sale-deeds are false and fabricated documents and manipulated by the defendants/respondents, which is evident from the fact that the plaintiff/applicant No.3, who is shown to have been one of the executants of the registered sale-deeds was 04 years old on the date of alleged execution of registered sale-deed, by showing his false age as 20 years in the registered sale-deed; that oral statement of plaintiff Hamz Ali in respect of sale of suit land was allegedly recorded on 24.05.1990, when he was 17 years old and the entry in respect of the said sale has not been produced; that the entry No.182 shows that seller and purchaser of the land is one and the same person namely; Ghulam Mujtaba (hereinabove called as respondent No.5) hence, such entry has not been produced and NIC of Koural is different; that the registered sale-deeds and statements of sale on the face ofit appears tobe forged and fabricated documents and are liable to be cancelled;that the learned trial court has rightly decreed the suit whereas the judgment passed by appellate court is not based on the evidence as such the same may be set-aside while maintaining the judgment and decree passed by learned trial court; that in view of the evidence on the record the applicants’ case merits consideration; hence, this Revision Application may be allowed; In support of his arguments,he has relied upon the case of Muhammad Bakhsh v Ellahi Bakhsh (2003 SCMR 286), Muhammad Akhtar v. Mst. Manna and 3 others (2001 SCMR 1700), Ahmed Yar Qadri, Advocate and others v. Muhammad Anwar Joya  (2000 SCMR 1202), Gul Rehman and others v. Muhammad Ismail (2003 YLR 95), Allah Ditto and others v. Haji Umer and others (2001 YLR 1075) andMst. Hameeda Begum and others v. Khadim Hussain and others (2001 MLD 427).

4.       Conversely, learned counsel for the private respondents No. 1 to 10, while supporting the impugned judgment has contended that the lower appellate court has rightly dismissed the suit of the applicants/plaintiffs considering all the aspects of the case including the evidence produced by the parties, therefore, the impugned judgment of learned lower appellate court does not suffer from any illegality as there are valid and cogent reasons for believing the same and it does not call for any interference of this court. It is argued that the plaintiffs/applicants are not owners of the suit land as they had sold out the suit land to the defendants through registered sale-deeds; that the suit land was not leased out by the plaintiffs to the defendants at any time and the lease agreements produced by the applicants/plaintiffs are forged documents; that there are major contradictions and many discrepancies in between the evidence of plaintiffs and their witnesses. It is also argued that the respondents are in legal possession of the suit land being real owners under registered instrument and applicant has no cause of action to file the suit before learned trial court, which was time barred.It is also contended that there is no illegality and irregularity in the impugned judgment and decree passed by learned lower appellate court. Lastly,he has prayed for dismissal of instant revision application. In support of his arguments, he has placed reliance on the cases of Muhammad Asghar v. Mst. Tahira parveen and others(2021 CLC 1537), Aameen and another v. The State(2020 MLD 1218), Muhammad Qasim Tareen v. Abdul Karim Baryalai and 3 others (PLD 2021 Bal 116), Sajjad Ahmad Khan v. Muhammad Saleem Alvi(2021 SCMR 415), Manzoor Ahmed and 4 others v. Mehrban and 5 others (2002 SCMR 1391), Mahmood ul Hassan v. Munir Ahmad and 3 others(2018 MLD 771) and Mst. Zakia Hussain and another v. Syed Farooq Hussain (PLD 2020 SC 401).

 

5.       Learned AAG for the official respondents adopted the arguments of learned counsel for respondents Nos. 1 to 10.

6.       I have heard the arguments of learned counsel for the parties and also perused the material available on the record as well as the case law cited at the Bar.

7.       Before proceeding further in the matter, it may be observed that when the execution of the document is denied as being forged or procured through deceit about the very nature of the document, then the person aggrieved has the option to institute a suit, either for cancellation of that instrument under section 39 of the Act of 1877, or for declaration of his right not to be affected by that document under section 42 of the Act of 1877; There is no cavil to the proposition that the onus to prove the claim is ordinarily on the person moving the court to seek his relief, as he is the one who is to fail if no evidence at all is given on either side. However, when the contesting party takes up a defence and desires the court to pronounce judgment as to his legal right dependent on the existence of facts which he asserts, then the onus to prove those facts lies on him.It is after the parties have produced their respective evidence that, the court is to consider and evaluate the evidence, in civil cases, on the touchstone of preponderance of evidence. It is on whose side the scale of evidence tilts would emerge as the victor, and be awarded the positive verdict. It is also settled that the registration of a document is essentially a notice to the public regarding its existence and validity, and having been registered by the Sub-Registrar in the performance of his official act there is a presumption of truth attached thereto under the law. Nevertheless, the moment the said document is challenged by the alleged executant or his successor-in-interest, that presumption stands rebutted, and the beneficiary thereof has to prove not only the execution thereof, but also the original transaction embodied therein. Reliance in this regard can be placed on the case of Khalid Hussain and others v. Nazir Ahmed and others [2021 SCMR 1986]

8.       In the instant matter, precisely, the case of the applicants/plaintiffs is that the suit land is the property of the applicants and they never entered into any sale transaction with the private defendants and further the sale deeds and other documents/statements on the basis of which the private defendants claim ownership of the property are forged, fabricated and manipulated, as such the same being illegal and void are not sustainable in law, thus liable to be cancelled. Insofar as the possession of the suitland is concerned the same was given to the defendants on the basis of lease agreement executed between the parties for certain period, however, the defendants taking undue advantage of the said possession got prepared forged and fabricated documents and claim ownership of the suit land. Further the judgment passed by the learned trial court was based on the evidence available on the record and the suit filed by the applicants /plaintiffs was rightly decreed. However, the learned lower appellate court while reversing the finding of the trial court have misread and mis-appreciated the evidence available on the record; hence committed material irregularity.

 

9.        On the divergent pleadings of the parties, learned trial court framed the following issues:-

 

1.           Whether the registered sale deeds dated 06.02.2002, dated 14.09.1985 and 27.02.1989 are forged, illegal, void and nullity in the eye of law and executed by the alleged executants?

 

2.           Whether at the time of alleged sale deeds, the suit land was mortgaged with ADBP Gambat and Sobhodero and was redeemed in the year 2004 by the plaintiffs?

 

3.           Whether the sale statement vide entry No. 88, dated 16.12.1985, entry No. 29 and 30 dated 24.05.1990 are forged, illegal, void and nullity in the eye of law?

 

4.           Whether the plaintiffs are lawful owners of the suit land  till today?

 

5.           Whether the sale deeds shown in Issue No.1 and sale statements mentioned in Issue No.3 are liable to be cancelled?

 

6.           Whether plaintiffs have cause of action to file the suit?

 

7.           Whether the defendants are in illegal possession of the suit land and are liable to pay mesne profits to plaintiffs?

 

8.           Whether the suit of the plaintiff is barred by any law?

 

9.           Whether the suit of the plaintiffs is time barred?

 

10.        Whether the plaintiffs are entitled for the relief claimed?

 

11.        What should the decree be?”   

 

10.     On the above issues, the applicants/plaintiffs examined plaintiff No.3 Hamz Ali alias Dost Muhammad at Ex.47, who produced power of attorney at Exh.47/A, true copies of Dakhal Kharij Register, Entry No.28 at Exh.47/B, Entry No.234 of Deh Form VII-B at Exh. 47/C, Entry No.57 of Dakhal Kharij Register at Ex.47/D, Entry No.235 at Ex.47/E, letter dated 22.3.2004 of Manager DBL at Exh.47/F, School Leaving Certificate at Exh.47/G, Entry No.52 at Exh.47/H, notice dated 1.6.2005 of ADBP at Exh.47/I, notice dated 15.6.2005 at Exh.47/J, notice dated 30.6.2005 at Exh.47/K, release letter dated 27.1.2006 at Exh.47/L, statement dated 24.5.1991 of Koural at Exh.47/M, statement dated 24.9.1990 of Koural at Exh.47/N, Original Pass Book No.482367 at Exh.47/O, and pass Book No.162943 at Exh.47/P, copy of entry No.336 of Form VII-B dated 12.11.2008 at Exh.47/Q, Entry No.314 dated 18.4.1983 of Form VII-B at Exh.47/R. The plaintiffs namely; Bux Ali at Exh.69, Ghazi Khan at Exh.70, Abrar Hussain Manager ZTBL Sobhodero at Exh.72, who produced letter at Exh.72/A, Rasool Bux Tapedar at Exh.73, who produced Entry No.28 at Exh.73/A, Entry No.234 and 235 at Exh.73/B and C, Entry No.57 at Exh.73/D, Statements of Koural at Exh.73/E & F, Entry No.446 at Exh.73/G and Entry No.314 at Exh.73/H.

 Record also shows that during the proceeding before the trial court an application was filed by applicants/plaintiff for producing photostat copy of the lease agreements dated 10.12.1988 and 1.11.1994 as secondary evidence, which application was dismissed by learned trial court, vide its order 20.05.2010. The said order was challenged before the learned Additional District Judge Gambat in Civil Revision No.03 of 2010, which was allowed vide order dated 26.11.2010 and pursuant to the said order applicants/plaintiffs produced lease agreements entered into between the parties on 10.12.1988 and on 1.11.1994 as Exh.47/S and Exh.47/Trespectively and the counsel for the defendants also cross-examined the PW on the said documents.  

 

11.     On the other hand, the private respondents/defendants examined defendant No.3 Abdul Nabi at Exh.91, who produced power of attorney at Exh.91/A, registered sale-deed dated 11.10.1985 at Exh.91/B, registered sale-deed dated 11.2.1989 at Exh.91/C, registered sale-deed dated 25.7.1991 at Exh.91/D, certified true copies of entry No.88 from Dakhal Kharij registered at Exh.91/E, entry No.49 from Dakhal Kharij register at Exh.91/F, entry No.59 from Deh Form VII at Exh.91/G, statement of Koural at Exh.91/H. The defendants in support of their version have examined their witnesses namely, Muhammad Panjal at Exh.92 and Mukhtiarkar Azhar Ali at Exh.98, who produced Photostat copies of Entry No.88 in Dakhal Kharij Register at Exh.98/A, Entry No.49 in Dakhal Kharij Register at Exh.98/B, Entry No.59 in Deh Form VII-B at Exh.98/C and statement of Koural at Exh.98/D. Thereafter, learned counsel for the defendants closed the side at Exh.95.

12.     From perusal of the record, it appears that entire controversy revolved around the registered sale deeds [Exh. 91/B, 91/C and 91/D] which are sought to be cancelled by the applicants/plaintiffs being fabricated and manipulated.Whereas the private respondents/defendants on the basis of said documents claims ownership of the suit land.Learned trail court while deciding the issues No.1 and 3, which arerelate to the said documents has held as under:

 

“Issue Nos.1 and 3.…… This is the entire evidence led by the parties on the above issue. The case of the plaintiffs is that they had given the suit land on lease to the defendant No.6 from the year, 1988 to 2005, through lease agreements and the registered sale deeds and the statements in respect of sale of suit land are false and have been manipulated by the defendants. The plaintiffs have taken plea that the suit land was already mortgaged with ADBP in the year 1982-83. The plaintiff No.3 has produced entries from the revenue record from Exhs.47/B to 47/E and 47/H, which show that suit survey numbers were mortgaged with ADBP in the year 1982-83. Perusal of Exh. 47/F shows that certificate of release of charge was issued by Manager ADBP in respect of the suit land in the year 2004. Thus, from the above documents available on record, it appears that the suit land was mortgaged with the Bank till the year 2004. Perusal of Exh.47/Q shows that plaintiff Koural has mortgaged the suit survey numbers 205, 206, 207 and 1130 along with other survey numbers 169 and 170 in the surety proceedings in the Court of Honourable Ist Additional Sessions Judge, Khairpur on 4.9.2009 also.

 

Reverting to the registered sale deeds, it need to mention here that the original registered sale deeds have been produced by attorney of the defendants from Exh.91/B to Exh.91/D. Perusal of all these registered sale deeds shows that it is specifically mentioned in all the three deeds that the land under sale is not mortgaged in any Bank. I have already mentioned hereinabove that the plaintiffs have produced the documents, which clearly show that the suit land was mortgaged in the year 1982-83. Registered sale-deed Exh.91/B shows that plaintiffs Ali Bux and Koural have sold out survey numbers 194/1 and 194/2, total admeasuring 7-20 acres to defendant Mir Muhammad in the sum of Rs.40,000/- only. The registered sale deed (Exh.91/B) consists of four leaves (8 pages) but the signatures of executants are on its fifth page only and the remaining pages do not contains signatures of the executants. It also does not contain the NIC numbers of the attesting witnesses nor the ownership documents of the executants and attesting witnesses are attached with it. The signatures of the Sub-Registrar Gambat on Exh.91/B do not tally with each other and apparently it appears that some other person has signed this document as Sub-Registrar by copying the signature of Sub-Registrar Gambat. Further fraud of the defendants is very clear from the date of signature of the scriber namely Muhammad Ismail, who on 7th page of the sale deed (Exh.91/B) mentioned the date of scribing of the registered sale deed with his signature on 10.10.1985 but the document is shown to have been registered on 14.09.1985, prior to even 26 days of its scribing by its author.

 

Again, from perusal of registered sale deed Exh.91/C, it appears that plaintiff Hamz Ali has sold out S.No.195/2, admeasuring 2-20 acres to defendant Mir Muhammad in the sum of Rs.50,000/- and the said registered sale deed is shown to have been registered on 26.2.1989, containing the age of plaintiff Hamz Ali as 20 years. In view of registered sale deed (Exh.91/C), if the age of plaintiff Hamz Ali is calculated, it appears that according to Exh.91/C the plaintiff Hamz Ali  was born in the year 1969. Plaintiff Hamz Ali has produced his Primary School Leaving Certificate at Exh.47/G, which shows his date of birth as 28.2.1985. There is no reason to disbelieve Exh.47/G, as it bears signatures of Class Teacher, Head Master of the School and Supervisor Primary Education, Taluka Sobhodero. The defendants have also not produced any other document in respect of the age of plaintiff Hamz Ali in rebuttal to the document produced by the plaintiff. According to School Leaving Certificate (Exh.47/G), plaintiff Hamz Ali was only 4 years old on 26.2.1989, when the registered sale deed (Exh.91/C) was said to have been executed and he was not competent to execute the registered sale deed. It further appears from the said registered sale deed that there is clear difference in between the signatures of the Sub-Registrar on the Exh.91/C. It needs to mention here that all the signatures of Sub-Registrar are dated 26.2.1989 except his one signature dated 27.2.1989, without any reason of difference of dates in one and same document. Thus, it appears from the Exh.91/C that the defendants have manipulated this document fraudulently.

 

Coming to the third registered sale deed (Exh.91/D), it needs to mention here that signatures of plaintiff Koural on Exh.91/D do not tally each other so also is in the case of signatures of Sub-Registrar Gambat, which also does not tally each other. There is only one attesting witness shown to have attested the registered sale deed Exh.91/D but his NIC number is not mentioned in it. The name of scriber is also not mentioned on it.

Materially, as mentioned above the suit land was already mortgaged with the Banks and such entries were maintained in the revenue record, therefore, execution of registered sale deeds by mentioning therein that the suit land was not mortgaged with any Bank and the sale of suit land through statements without referring the mortgage was null and void.

 

Apart from the above facts, it needs to mention here that the version of plaintiff No.1 in his examination in chief that the suit land was already mortgaged prior to alleged sale  and that they have not sold out the suit land has not been specifically questioned in the cross examination. It is a settled position of law that if some fact is deposed or stated in examination-in-chief, which is not questioned in the cross examination, the presumption is that, the said part of the evidence is deemed to have been accepted by the party against whom that evidence has been given. Reliance in this regard may be placed from the cases of Ismaluddin and others versus Ghulam Muhammad and others (PLD 2004 SC 633), Ghulam Rasool versus Muhammad Saleem and others (2002 CLC 1770), Mst. Farooq Bibi versus Abdul Khalique and 26 others (1999 CLC 1358), Dr. Aziza and 5 others versus Muhammad Sarwar and another (1997 MLD 2013) and Noor Jehan Begum’s cases reported as 1991 SCMR 2300). Thus, in view of the above referred case law, I am of the humble opinion that the defendants have accepted the above evidence of plaintiff No.1.

Therefore, in view of my above observations and the case law referred hereinabove, I am of the humble opinion that the registered sale deeds and the sale statements are forged illegal and nullity in the eye of law. I, therefore, answer Issues Nos.1 and 3 in the affirmatives.”

 

Insofar as Issue No.2 is concerned, learned trial court decided the said issue as follows: 

“Issue No.2.

The plaintiff No.3 has deposed that the suit land was already mortgaged in the year 1982-83 with ADBP. In support of his oral version, he has produced certain documents from Exhs.47/B to 47/F and 47/H and Exhs.47/L, in respect of mortgage of the land and its redemption. The oral version of the plaintiff No.3 has not been shattered in the cross examination nor the authenticity of the above documents is doubtful as P.W.4 Abrar Hussain Manager ADBP has deposed that the said documents were issued from his Bank and bears his signatures and the signatures of previous Manager of the Bank and they also contain seals of the Bank. I have also observed in issue Nos. 1 and 3 that the plaintiff No.3 has produced entries from the revenue record from Exhs.47/B to 47/E and 47/H, which show that suit survey numbers were mortgaged with ADBP in the year 1982-83. It has been further observed in the said issues that from perusal of Exh.47/F it appears that certificate of release of charge was issued by Manager ADBP in respect of the suit land in the year 2004. Therefore, in view of my above observations I am of the opinion that the suit land was mortgaged in the ADBP Gambat and Sobhodero and was redeemed in the year 2004 by the plaintiffs. The issue No.2 is answered in the affirmative.”

[Emphasis supplied]

 

13.     The learned lower appellate court on the same set of evidence reversed the findings of the learned trial court. There is no cavil to the proposition that in cases involving conflicting judgments and findings of the learned lower courts, the judgment of first appellate court being the court of re-appraisal of evidence, if it is based on evidence and logical reasons, shall prevail. In the case of Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617), it was held:-

 

‘If the finding of facts reached by the first Appellate Court is at variance with that of the trial court, the former will ordinarily prevail, although it would not possess the same value or sanctity as concurrent finding by the lower Appellate Court will be immune from interference in second appeal only if it is found to be substantiated by evidence on record and is supported by logical reasoning, duly taking note of the reasons advanced by the first court which have been disfavoured in the contrary finding. The finding being at variance with that of the trial Judge, the two will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the two different findings have respectively proceeded.’

 

The Hon'ble Supreme Court in the case of Karim Bakhsh through L.Rs. and others v. Jind wadda Shah and others [2005 SCMR 1518], inter alia, has held that when findings of two courts below were at variance, the High Court was justified in appreciating the evidence to arrive at the conclusion as to which of the decisions was in accord with the evidence on the record.

 

14.     In order to examine whether the impugned judgment dated 08.12.2011, passed by the lower appellate court, is based on the evidence and logical reasons or not, the relevant paragraphs of the said judgment are reproduced here:-

 

“After hearing the learned counsel for the parties and perusal of record and proceedings of the trial court it appears that the main controversy between the parties is upon the ownership of the suit land, therefore, following issues are framed for discussion:-

 

1.    Whether the suit land was transferred with possession to the appellant by the respondents through registered sale deeds dated 06.02.2002, 14.09.1985, 25.7.1991 and 27.02.1989 and such mutation entries No. 88 dated 16.12.1985, 29 and 30 dated 24.05.1990 and entries No. 49 and 59 are entered in the revenue record?

 

2.    Whether the judgment and decree dated 23.02.2011 and 25.05.2011 respectively passed by the trial court require any interference?

 

3.   What should the decree be?”

 

“Issues No:1  .……… I have carefully scrutinized the record and proceedings of the trial Court and come to the conclusion that there are registered documents in possession of the appellants/defendants in shape of registered sale deeds and mutation entries in revenue record and against the said register and original documents, there is only oral version from the respondents/plaintiffs side which cannot be believed in presence of the registered documents as it is held by Honourable Superior Courts in various judgments that “the registered documents has sanctity attached to it and stronger evidence is required to cast aspersion on its genuineness” (Reliance is placed on 2007 SCMR 85 and 2010 SCMR 5). Moreover, it is also held by the Honourable Supreme Court of Pakistan in the case of Re-Shamshad versus Arif Ashraf Khan and others” reported in 2010 SCMR 473 that “Oral evidence cannot be given preference over documentary evidence”.

 

In view of above discussion under the facts and circumstances as well as by taking the guideline from the case law referred by the learned advocate for the appellants I have come to the conclusion that the suit land with possession was transferred to the appellants by the respondents in consequences of the registered sale deed executed in favour of the appellants by the respondents and such revenue record is available with the concerned Revenue authority. Hence this issued replied accordingly.

 

Issue No.2&3.

In view of my discussion on issue No.1 the impugned Judgment and decree dated 23.2.2011 respectively passed by the learned Ist Senior Civil Judge Khairpur is hereby set-aside and the above civil appeal is allowed as prayed, with no order as to costs.”

15.     From perusal of the above judgments, it clearly transpires that the findings of the trial court were in accord with evidence and based on sound reasonings. Whereas findings of the fact rendered by the learned lower Appellate court in favour of the respondents/defendants, are not based on proper appraisal of the evidence on the record, and further no reasons were given in the impugned judgment by the lower appellate court for disagreeing with the findings of the trial court. The impugned judgment and decree are contrary to the law laid down by the Superior Courts, and thus, suffer from illegality and jurisdictional defect, as such call for interference, attracting the provisions of Section 115 of the Code of Civil Procedure (Act V of 1908).

The case law relied upon by defendants’ counsel being distinguishable from the facts of the present case are not applicable. 

16.     In the given circumstances, I allow this revision, set aside judgment and decree dated 08-12-2011 and 12.12.2011 respectively passed by IInd Additional District Judge, Khairpur, in Civil Appeal No.19 of 2011 and maintain the judgment and Decree dated 23-02-2011 and 05.10.2011 respectively passed by 1st Senior Civil Judge, Khairpur, whereby F.C. Suit No.184 of 2010 (Old Suit No.09 of 2006) filed by the present applicant was allowed.

 

JUDGE

 

 

 

 

 

 

Sukkur

Dated: 02.06.2022

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ihsan/*