IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Civil Revision No.S-31 of 2016
Applicants : Hakim Ali Depar & another,
through Mr. Sajid Hussain Mahessar Advocate.
Respondents : Imtiaz Ali Depar & others,
Mr. Abdul Rahman A. Bhutto, advocate for Respondent No.1.
Mr. Abdul Waris Bhutto, Assistant Advocate General.
Date of hearing : 23-02-2023.
Date of decision : 17-03-2023.
O R D E R
Adnan Iqbal Chaudhry, J.- This revision application is against the judgment/decree dated 23-06-2016 passed by the II-Additional District Judge, Mehar, whereby he partially allowed Civil Appeal No. 56/2014 filed by the Respondent No.1 and decreed his suit for title, cancellation and possession for a part of the suit land which had been earlier dismissed by the trial court, hence this revision application by the Applicants who were defendants in the suit.
2. F.C. Suit No. 27/2011 (new F.C. Suit No. 35/2012) was filed by the Respondent No.1 [Plaintiff] for a declaration that the suit land was the property of his grand-father which was inherited by him through his father; and as a consequence, for cancellation of all subsequent entries to the contrary in the revenue record along with sale deeds executed by the Applicant No.1 [Defendant No.8] in favour of the Applicant No.2 [Defendant No.9] and the Respondents 9 and 10 [Defendants 9 and 10]; and for possession of the suit land.
3. Per the amended plaint, it was averred by the Plaintiff (Respondent No.1) that Survey No.s 555, 556, 557 and 559 in deh Baledai, Taluka Mehar, were originally the property of his great grand-father Faiz Muhammad, inherited by his son Sando, then inherited by his four sons Illahi Bux, Noor Muhammad, Toor and Dhani Bux in shares of 7½ acres each[suit land]; and the Plaintiff inherited the same as one of the children of Dhani Bux. It was alleged that late Khan Muhammad had manipulated the revenue record to show that the suit land had been exchanged by Sando with Khan Muhammad for Survey No. 254 vide Entry No. 343 dated 30-09-1932; that while the Plaintiff was contesting such entry before the revenue hierarchy, the Defendant No.8 who claimed part of the suit land through Khan Muhammad, sold Survey No. 556 to Defendant No.9, and Survey No. 559 to the Defendant No.10 by the impugned sale deeds. However, as discussed ahead, as the case progressed, it came to light that some of the averments in the plaint were incorrect statements of fact.
4. It was averred by the Defendant No.8 (Applicant No.1), who claimed through Khan Muhammad, that Entry No. 343 dated 30-09-1932 whereby land was exchanged by Sando with Khan Muhammad, was only for Survey No.s 557, 558 and 559; that Survey No. 556 was not part of that transaction which was always the exclusive land of Khan Muhammad, and subsequently of the Defendant No.8, sold by him to the Defendant No.9 by a registered sale deed dated 03-09-2009; that Survey No. 555 was also not part of that transaction nor the land of Khan Muhammad, rather the Defendants had no concern with it; that Survey No. 254 which was taken by Sando in exchange from Khan Muhammad, had subsequently been sold by his eldest son Illahi Bux; that after Survey No.s 557, 558 and 559 had been transferred by Sando in exchange to Khan Muhammad in 1932, there was no question of its inheritance by the Plaintiff.
5. It had come in evidence that after the demise of Khan Muhammad, Survey No.s 557, 558 and 559 had devolved on his sister, Allah Bachai, who was the grandmother of the Defendant No.8; that Allah Bachai had then gifted said Survey numbers to Hidayatullah and Azizullah, the sons of Illahi Bux; and that the Defendant No.8 was the son of Hidaytullah. Per the Defendant No.10, he and his brother the Defendant No.11, had purchased Survey No. 559 from Azizullah vide a registered sale deed dated 19-01-2005.
6. Heard the learned counsel and perused the record.
7. Before filing suit, the Plaintiff had filed an application for cancellation of Khan Muhammad’s Entry No. 343 dated 30-09-1932 before the DDO Revenue, Mehar, which was dismissed. His appeal under section 161 of the Sindh Land Revenue Act, 1967, and then a revision under section 164, were also dismissed respectively by the DO Revenue and the EDO Revenue. It was observed in those revenue proceedings that vide Entry No. 343 dated 30-09-1932, Survey No.s 557, 558 and 559 were transferred to Khan Muhammad in exchange with Sando; and that Survey No. 556 was separately entered in the name of Khan Muhammad since 1954-55, and thereafter in the name of his legal heirs and their transferees. The revenue authorities thus concluded that the Plaintiff had not made out a case for interfering with long-standing revenue entries.
8. After recording evidence, the learned Senior Civil Judge, K.N. Shah dismissed the suit vide judgment/decree dated 24-06-2014. He also concluded that Survey No.s 557, 558 and 559 had been transferred by Sando in exchange to Khan Muhammad as evident from Entry No. 343 dated 30-09-1932, and therefore there was no question of its inheritance by the Plaintiff; and that Survey No. 556 was always the property of Khan Muhammad, not Sando. After reappraising the evidence, the learned appellate court agreed with the findings of the trial court with regards to Survey No.s 557, 558 and 559. However, with regards Survey No.s 555 and 556, he was of the view that the Plaintiff had established those to be the property of his great grand-father Faiz Muhammad which had devolved on his son Sando, and thus directed that such an entry be made in the record of rights in favour of Sando and his legal heirs, and consequently cancelling subsequent sale deeds and entries of the Defendants 8 to 11.
9. The Plaintiff has not challenged the judgment/decree passed by the appellate court dismissing his suit to the extent of Survey No.s 557, 558 and 559. Therefore, the scope of this revision is restricted to the question whether the learned appellate court committed any mis-reading or non-reading of the evidence in decreeing the suit to the extent of Survey No.s 555 and 556.
10. In decreeing the suit for Survey No. 555, the learned appellate court observed that: “no record was produced as to how late Khan Muhammad acquired ownership of Survey No. 555 .…”. But, it was nobody’s case that Survey No. 555 was ever the property of Khan Muhammad. None of the Defendants were claiming Survey No. 555 as their property. In his written statement, the Defendant No.8 had categorically stated that he has no concern with Survey No. 555 and he does not know who owns that property. In fact, Survey No. 555 was not even part of the entries or the sale deeds that had been impugned by the Plaintiff in the prayer clause. For this reason, it seems, that no issue had been framed in the suit with regards to Survey No. 555, and consequently no evidence was led before the trial court as to its ownership. Thus, in decreeing the suit for Survey No. 555, the learned appellate court appeared to be under a misconception that Survey No. 555 was entered in the record of rights in the name of Khan Muhammad, and therefore no attempt was made to see who was the standing beneficiary of that Survey number in the record of rights and whether any decree could be passed without making him/her a party to the suit.
11. As regards Survey No. 556, that was entered in the revenue record in the name of Khan Muhammad in 1954-55, and separate from his transaction of exchange with Sando. Such entry, and then the succeeding entries in favour of his successors, had never been challenged by Sando during his lifetime, nor by any of his four sons during their lifetime including the Plaintiff’s father Dhani Bux. The Plaintiff himself was only one of the seven children of Dani Bux who had woken up in 2011 to contest said entry for the first time. The fact that none of the Plaintiff’s predecessors had challenged longstanding entries of Khan Muhammad, had prevailed upon the learned appellate court to dismiss the suit for Survey No.s 557, 558 and 559. But then, the same fact was ignored by it in decreeing the suit for Survey No. 556.
12. Having failed before the revenue hierarchy to demonstrate that the record of rights in favour of Khan Muhammad and then his successors were manipulated, the Plaintiff had to prove by positive evidence that Survey No. 556 was in fact the property of Sando, which had then devolved upon the Plaintiff so as to rebut the presumption of correctness in longstanding revenue entries accorded by section 52 of the Sindh Land Revenue Act, 1967 read with Article 100 of the Qanoon-e-Shahadat Order, 1984. No such evidence was brought by the Plaintiff. The evidence relied upon by the appellate court were photocopies of 3 pages said to be of Number Shumari Register of the early 1900s which suggested to the appellate court that the Plaintiff’s great grand-father Faiz Muhammad was in possession of Survey No.s 555, 556, 557, 558 and 559 at that time. Firstly, those had never been exhibited by the trial court in evidence for being photocopies. Secondly, once the appellate court had discarded those documents for Survey No.s 557, 558 and 559, then reliance on those for Survey No.s 555 and 556 was misplaced.
13. The upshot is that the judgment/decree dated 23-06-2016 passed by the II-Additional District Judge, Mehar in Civil Appeal No. 56/2014, to the extent of Survey No.s 555 and 556, is a result of mis-reading of evidence. Same is set-aside. The judgment/decree dated 24-06-2014 passed by the Senior Civil Judge, K.N. Shah dismissing F.C. Suit No. 27/2011 (new F.C. Suit No. 35/2012) is restored. Revision application stands allowed accordingly.
Qazi Tahir PA/*