ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Civil Revision No.S-42 of 2007

 

Date

                        ORDER WITH SIGNATURE OF JUDGE

 

                                                For hearing of main case.

Before

Mr. Justice Nisar Ahmed Bhanbhro

 

Applicants:                 Muhammad Buxand others,

                                    Through Mr. Muhammad Ashique Dhamraho, Advocate.

Respondents:              Abdul Ghafoor and others

Through Mr. Ghulam Dastagir Shahani Advocate

Mr. Abdul Waris Bhutto, Assistant Advocate General, Sindh.

­­­­­­­­Date of hearing                       :           02.05.2025.

Date of Decision                     :           16. 05.2025.

 

J U D G M E N T

 

Nisar Ahmed Bhanbhro, J.- Being aggrieved and dissatisfied with the concurrent findings of the Courts below, the applicants have filed this Civil Revision Application under section 115 of CPC, challenging therein the judgment dated 30-08-2007 and decree dated 03-09-2007 passed by the Court of Learned 1st Additional District Judge, Jacobabad (Appellate Court) in Civil Appeal No   04 of year 2006 “Re Mohammed Bux Versus Abdul Ghafoor and others,”  and the Judgment and Decree dated 29-09-2006, passed by the Court of Learned II-Senior Civil Judge, Jacobabad,(Trial Court) in Civil Suit No “Re Mohammed Bux Versus Abdul Ghafoor and others,” whereby the Suit filedby the applicants was partly decreed to the extent of 2-5 Square Yards in City Survey No 169 of Ward No 2 Sarafa Bazar Jacobabad. The applicants inter alia pray that the concurrent findings of the Courts below may be reversed and suit of the be decreed as prayed.

 

2.         The facts of the case paving way for filing of instant Civil Revision Application are that the  Applicants filed a suit for Declaration, Permanent Injunction and Mandatory Injunction against the Respondents No 1 to 7, averring therein that late Din Muhammad Vanjara purchased the property bearing C.S No.169 Ward No.2 measuring about 17-6 Square yards (Suit Property) from its previous owner through registered sale deed No.47, dated 19-01-1990 and such mutation was also effected in his name in the relevant record of rights of the city survey Jacobabad, which property subsequently devolved upon applicants being legal heirs. The description of suit property as per registered sale deed is that the shop is situated on the ground floor in shape of one hall, one staircase from outside, one room constructed on first floor with gallery and one room at ground floor. Late Din Muhammad was put into possession of the Suit property. The room of first floor was in possession and occupation of tenant Master Chander Lal son of Pesomal Saugtiani at the time of purchase, subsequently its vacant possession was handed over to late Din Muhammad. The staircase was used for passage to upper story. Respondent No.8 RasoolBux is closely related to the Applicants. He is husband of sister of late Din Muhammad and therefore, in order to accommodate him, late Din Muhammad in the year 1992 carved out some space at the level of lowest 4-5 steps of the staircase for the shop like accommodation leaving sufficient space for going to upper story from same staircase, which is well known to respondents’ father Haji Allah Wassayo as his shop is just opposite to shop of Applicants. Late Din Muhammad died on 10-09-1994 and till that time the staircase was used for going to upper story and after death of late Din Muhammad the Applicants became the owners of the suit property. The respondent No.8 is using lowest 4-5 steps of staircase just like a shop as a licensee. The Applicants were perplexed to find when in the month of April 1997 the respondent No.8 was served with legal notice dated 21-04-1997 sent by Respondents No.1 to 7 through their counsel claiming themselves to be the owners of the Suit Property asserting therein that it was part of City Survey No.170/1 ward No.2 Sarafa Bazar, Jacobabad and demanded the rent at the rate of Rs.2000/- per month which notice was replied on 21-05-1997 by the respondent No.8 while denying the relationship of landlord and tenant and even title of respondents No.1 to 7 in the Suit Property. The respondents No.1 to 7 filed a false rent application in fury and frustration against respondent No.8 before the Court of Learned 1st Senior Civil Judge and Rent Controller, Jacobabad being rent application No.16/1997. The claim of the respondents No.1 to 7 that the property viz; staircase of C.S No.169 Ward No.2 Jacobabad is part of the property bearing C.S No.170/1 Ward No.2 Jacobabad and they are its owners is false, baseless, illegal, fraudulent, bogus, managed, manipulated and an attempt to usurp the Suit Property. The applicants filed Civil Suit praying as under:

(a)   This Honorable Court may be pleased to declare that the property/premises in question in possession and occupation of the defendant No.8 is property of the plaintiffs being the part/staircase of their property unit bearing C.S No.169 Ward No.2 Sarafa Bazar, Jacobabad and it is not the part of C.S No.170 Ward No.2 Jacobabad.

(b)  To further declare that the alleged city survey No.170/1 Ward No.2, Jacobabad does not pertain and relate to the property/premises in the possession of the defendant No.8 which is part and parcel of the property of the plaintiffs bearing C.S No.169, Ward No.2 Jacobabad.

(c)   To further declare that the claim of the defendants No.1 to 7 in pursuance of the property Card of C.S No.170/1 Ward No.2 Jacobabad in respect of the property/premises in the possession of the defendant No.8 is false, baseless, forged, fabricated, handmade and managed and manufactured by the defendts No.1 to 7 with malicious intents to usurp the property of the plaintiffs bearing city survey No.169 Ward No.2 Jacobabad.

(d)  This Honorable Court may be pleased to issue permanent injunction against the defendants No.1 to 7 thereby restrain the defendants No.1 to 7, their subordinates, servants, agents and men from interfering with the property/premises in the possession and occupation of the defendant No.8 as a licensee of the plaintiffs, in dispossessing the defendant No.8 enjoying possession and occupation of the property/premises/staircase on behalf of the plaintiffs.

(e)   To further restrain the defendants No.1 to 7 from claiming, declaring and ordaining themselves to be the owners of the property/premises in the possession of the defendant No.8 in the guise of the Extract of the city survey No.170/1 Ward No.2 Jacobabad.

(f)   This Honorable Court may be pleased to issue mandatory injunction against the defendants No.1 to 7 thereby order the defendants No.1 to 7 not to put up false claim against the property of the plaintiffs and avoid undue harassment and involvement in false and futile litigation.

(g)  This Honorable Court may be pleased to grant any other relief which may be deemed fit and proper in the circumstances of the case to meet with ends of justice.

 

3.         The respondents No.1 to 7 filed joint written statement, emphaticallydenied the claim of Applicants. They averred that suit is not maintainable in law and is bad for mis-joinder and non-joinder of the parties. No cause of action accrued to the plaintiffs to file the present suit. They denied that there was a staircase from outside the shop of Applicants, as such the description if any, is wrong and mis-conceived. Respondents No.1 to 7 asserted that there was only one staircase for three shops in between three shops. The staircase went up to all shops and all three shops belonged to them. They also denied that late Din Muhammad in the year 1992 had carved out some space at the level of lowest 4-5 steps of staircase for the shop. Respondents No.1 to 7 claimed that their father purchased the property bearing C.S No.170 Ward No.2, Jacobabad, they got new city survey No.170/1 Ward No.2 Jacobabad carved out by Sub-division and after obtaining the possession thereof constructed shop over it and said shop is within C.S No.170/1 Ward No.2 Jacobabad, which was rented out to respondent No.8 at the rate of Rs.2000/- per month. It is stated by the respondents No.1 to 7 that they sent a notice to respondent No.8 dated 21-04-1997 demanding rent at the rate of Rs.2000/- per month. The Respondents No 1 to 7 are the real and genuine owners of the property bearing C.S No.170/1 Ward No.2 Jacobabad.That the suit was undervalued and not property stamped and suit was false and frivolous and vexatious and they prayed for dismissal of the suit with compensatory costs.

 

4.                     On the divergent pleadings of the parties Learned Trial Court framed five issues. The Applicants/ Plaintiffs examined Mohammed Bux, Abdul Haq and Respondents No 1 to 7 examined Haji Allah Wassayo, city surveyor Manzoor Hussain, Qadir Bux Senior Clerk of Sub Registrar Office and Allah Bux and closed side for evidence. Trial Court vide judgment dated 29-11-2000 and decree dated 02-12-2000 partly decreed the suit. The applicants filed appeal before the Court of Learned District Judge, Jacobabad, who remanded the case back to Trial Court vide order dated 09-09-2003 for inspecting the Suit Property and recording of statement of city surveyor Jacobabad. The Trial Court after inspection of suit property examined witness Abdul Salam. Trial Courtafter hearing the parties through their counsel partly decreed the suit vide judgment and decree dated 29-09-2006.The Applicants filed Civil Appeal No.4/2006, which was dismissed by the Appellate Court vide judgment and decree dated 30.08.2007 and 03.09.2007. Hence this Revision Application. 

 

5.                     Mr. Muhammad Ashique Dhamraho learned counsel for the applicants contended that the courts below failed to appreciate oral and documentary evidence adduced by the applicants. He contended that the applicants were the owners of the suit property which was purchased by them through a registered sale deed and the suit property was a staircase, which was constructed to connect the upper portion of the shop with the ground floor. The property was undisputedly owned by the applicants and the claim of respondentsNo 1 to 7 over the suit property was untenable, he contended that the learned trial court accepted the claim of applicants partly by declaring them owner to the extent of area of staircase i.e 2-5 Square yards. He contended that there is serious misreading and nonreading of the evidence on record, the Courts below committed illegality and irregularity while determining the rights of parties. He prayed for allowing the Revision Application and Decree the Suit as prayed.

 

6.         Mr. Ghulam Dastagir Shahani Learned Counsel for the Respondents No.1 to 7 supported the impugned judgment and contended that the courts below rightly observed that the applicants were entitled to retain possession over 2-5 Square Yards of the suit property and remaining property was owned by the Respondents No 1 to 7. He contended that the respondent No.8 was under illegal possession of the suit property having no right or title in it and the staircase did not belong to city survey No.169 but it was part and parcel of city survey No.170/1. He prayed for dismissal of Revision Application as the Courts below passed the impugned judgment and Decree after proper appraisal of evidence.

 

7.         Heard arguments and perused the material available on record.

 

8.         The bone of contention between the parties is area under use as Staircase, both the parties claim ownership over said area. Scanning of the evidence reveals that there are two plots bearing city survey number 169 and 170 admeasuring 17.06 and 182.01 square yards respectively. Undeniably both the parties do not dispute title. Both the parties claim ownership over the staircase being part of their property. In order to resolve the controversy between the parties Trial Court framed issue No.3 and 4, which are reproduced below for the sake of convenience.

Issue No.3       Whether late Din Muhammad had carved out some space at the level of lowest 4-5 steps of staircase?

Issue No.4       Whether space/shop in possession of defendants No.8 bears CS No.170/1, ward No.2, carved out of sub-division of CS No.170, Ward No.2.

 

9.         To further ascertain the rights of the parties, the properties were got measured through city survey department and witness Abdul Salam City Surveyor was examined who deposed that the measurement of disputed property was taken by the orders of Court. City Survey No.170 measured 182-1 Square Yards, as mentioned in the registered sale deed and it was further divided in survey No.170/1 admeasuring 4 Square Yards, remaining area of city survey No.170 became 178-1 Square Yards. City Survey No.169 measured 17-06 Sq. Yards as per Registered Sale Deed. Both the survey numbers were measured on the directions of the court. The City Survey No 169 measured15-01 Square Yards and City Survey Numbers 170 and 170/1 measured 177-8 Square Yards, the property of applicants was found 2-5 Square Yards less and the property of Respondents No 1to 7 was found short of 4-3 Square Yards and this total area  6-8 Square Yards which was the part of staircase and Respondent No 8 was occupying an area of 4-3 Square Yards. The inspection report was not objected by any of the parties, thus attained finality and even not questioned seriously by the parties when witness Abdul Salam was examined by Trial Court. The claim of the Applicants that they were owners of the stair case could not be proved. The learned trial court on perusal of evidence, decreed the suit partly holding that the applicants were the owners of the Suit Property to the extent of 2-5 Square Yards and remaining area of the Suit Property viz. 4-3 Square Yards was owned by respondents No.1 to 7. The property in possession of Respondent No 8 was owned by the Respondents No 1 to 7. The evidence of the parties has been perused minutely, wherein it transpires that the applicants were the owners of the property measured 17-6 Square Yards and the respondents No.1 to 7 were the owners of the property measuring 182-1 Square Yards, in between these properties there was a common staircase. The dispute between the parties arose when the respondent No.8 occupied the portion of staircase and the respondents No.1 to 7 filed rent application claiming that the respondent No.8 was their tenant and was not paying them monthly rent which prompted the applicants to file civil suit disputing the claim of respondents No.1 to 7. The applicants did not dispute the report of the survey department by way of filing objection, even they did not challenge the ownership of Respondents No 1 to 7 over city survey No.170. The courts below on proper appraisal of evidence decreed the suit of plaintiff to the extent, he was entitled. Since the controversy between the parties related to the extent of issue No 3 and 4, for which the evidence of City Survey Officer Abdul Salam was relevant, hence no discussion is required on the evidence adduced through other witnesses by both the parties.

 

10.       The Applicants asserted the claim that they were the owners of Suit Property, they were required to prove their claim. The scheme of law that governsthe principles of the 'burden of proof' is enunciated undern Articles 117 to 122 of the Qanun e Shahadat Order 1984. Article 117 ibid, emphasizes that a person is bound to prove the existence of any fact he assets, meaning thereby that the burden of proof lies on said person. The burden of proving a fact always lies upon the person who asserts and until such burden is discharged, the other party is not required to be called upon to prove his case. The court will see if the person asserting a fact discharged his burden, which initially rested on his shoulders. In civil cases if plaintiff claims the existence of a fact, and If succeeds to prove that fact, he gets entitled to relief claimed and burden shifts on the defendant side to establish that the plaintiff was not entitled for such relief. The principle of burden of proof articulated in Article 117 gets further amplified by article 119 of QSO, which casts a duty upon the person who wishes the court to believe the existence of a fact, he must prove the existence of that fact. In the present case the applicants claimed that they were the owners of Staircase which was converted into shop thus the initial burden to prove such claim was upon them, and the evidential burden would have shifted to the Respondents in case it was discharged successfully. In the present case by the consent of parties and on the orders of appellate Court the Suit property was measured by officials of City Survey wherein the report was prepared which spelt out the entire controversy by determining the shares of parties in the Suit Property, none of the parties challenged that report by filing objections or otherwise, which supported the claim of Respondents No 1 to 7. The applicants examined other witnesses so also the Respondents No 1 to 7 but their evidence was not sufficient to resolve the controversy between the parties, therefore rightly discarded by the Courts below. Since the Applicants failed to establish that they were owners of Suit Property in whole therefore the Courts below rightly decreed the Suit of Applicants to the extent of their entitlement.

 

11.       Honorable Supreme Court of Pakistan in the case of MstNazeeran and others Versus Ali Bux and others reported in 2024 SCMR 1271 has been pleased to hold as under:

10.  The legal scheme governing various principles of the 'burden of proof' is contained in Articles 117 to 122 of the Q.S.O. As per Article 117 ibid, when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. This Article is based on the rule, eiincumbitprobatio qui dicit, non qui negat, which means that the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it because a negative is usually incapable of proof. The burden of proving a fact always lies upon the person who asserts and until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. However, the above rule is subject to the general principle that things admitted need not be proved.

 

12.       In terms of Article 118 of Q.S.O., the initial burden to prove its claim is always on the plaintiff and if he discharges that burden and makes out a case that entitles him to relief, the burden shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff of the same. Where, however, evidence has been led by the contesting parties, abstract considerations of burden are out of place and truth or otherwise must always be adjudged on the evidence led by the parties. As per Article 119 of Q.S.O, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. This Article amplifies the general rule in Article 117 of Q.S.O that the burden of proof lies on the person who asserts the affirmative of the issue. It lays down that if a person wishes the court to believe in the existence of a particular fact, the burden of proving that fact is on him unless the burden of proving it is cast by any law on any particular person. Article 121 of Q.S.O is an application of the rule in Article 119 of Q.S.O. Article 122 of Q.S.O is an exception to the general rule laid down in Article 117 of Q.S.O that the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue. Article 122 of Q.S.O is not intended to relieve any person of that duty or burden but states that when a fact to be proved is peculiarly within the knowledge of a party, it is for him to prove it.

 

13.       This Court in its revisional jurisdiction under section 115 CPC is conferred with supervisory powers which are corrective in nature and are sparingly used in the cases where it transpired from the record that Courts below committed a serious illegality or irregularityand there was serious misreading and nonreading of the evidence of record or the Courts below exercised the jurisdiction not vested in them or the Courts below failed to exercise the jurisdiction vested in them. In the present case, there appears no misreading or nonreading of the evidence and Courts below rightly reached to a conclusion that Applicants were owners to the extent of 2-5 Square Yards and Respondents No 1 to 7 to the extent of 4-3 square yards (40 feet) and Respondent No 8 was illegally occupying the property. Respondents No 1 to 7 may initiate appropriate proceedings against Respondent No 8 for retrieval of possession if so advised.The Respondents No 1 to 7 though filed a rent application seeking eviction of Respondent No 8 but they could not establish their relationship of Landlord with him. The proper and legal course under such situation was to file a suit for possession, which even was not adopted by the Respondents No 1 to 7. In the present proceedings this Court cannot grant any relief to the Respondents No 1 to 7, for which they may adopt the appropriate proceedings which the Court having jurisdiction shall decide with being influenced by the observations made by the Courts below including this Court.

 

14.       Honorable Supreme Court of Pakistan in the case of Mst. Farzana and others Versus Mst. Saadia Andleeb and others reported in2024 S C M R 916 has enunciated the following principle for interfering with the concurrent findings of Courts below by a High Court under its revisional jurisdiction:

13.  We are sanguine that the High Court has the powers to reevaluate the concurrent findings of fact arrived at by the lower courts in appropriate cases but cannot upset such crystalized findings if the same are based on relevant evidence or without any misreading or non-reading of evidence. The first appellate court also expansively re-evaluated and re-examined the entire evidence on record. If the facts have been justly tried by two courts and the same conclusion has been reached by both the courts concurrently then it would not be judicious to revisit it for drawing some other conclusion or interpretation of evidence in a second appeal under Section 100 or under revisional jurisdiction under Section 115, C.P.C., because any such attempt would also be against the doctrine of finality. We do not find that the concurrent findings of fact arrived at by the appellate court as well as the trial court were either perverse or without justification or based on ignorance of evidence. The High Court cannot substitute its own findings unless it is found that the conclusions drawn by the lower courts were flawed or deviant to the erroneous proposition of law or caused serious miscarriage of justice and must also avoid independent re-assessment of the evidence to supplant its own conclusion. Consistent with the aforesaid backdrop, we feel no hesitation to hold that the judgments of the trial court and appellate courts are more in consonance with the evidence led by the parties and should not be reversed.

 

15.       Honorable Supreme Court of Pakistan in the case of Cantonment Board through Executive Officer, Cantt. Board, Rawalpindi Versus Ikhlaq Ahmed and others reported in 2004 SCMR 161 has been pleased to hold as under:

6.  It is not the requirement of law that the High Court in exercise of its revisional jurisdiction to discuss the findings recorded by the Courts below on each issue, particularly when it concurs with them. The scope of revision is narrow and requires the High Court to examine whether the courts below have failed to exercise jurisdiction so vested in them or have acted in exercise of its jurisdiction illegally or with material irregularity and have misread the evidence brought on record by the parties. In other words, the provisions of section 115, C.P.C. under which a High Court exercises its revisional jurisdiction, confer an exceptional and necessary power intended to secure effective exercise of its superintendence and visitorial powers of correction unhindered by technicalities. The revisional jurisdiction of the High Court cannot be invoked against conclusions of law or fact, which do not, in any way, affect the jurisdiction of the court. In the instant case, the learned High Court, in law, could not have investigated into the facts or exercised its jurisdiction on the basis of facts or grounds, which were already proved by the parties by leading evidence. We are of the considered view that the judgment impugned in these proceedings is unexceptionable. The learned High Court was justified in not interfering in the concurrent findings of fact which were based on the material brought on record and proper appreciation of evidence.

 

16.       For what has been discussed herein above, Concurrent findings of the courts below were not against the evidence on record, did not suffer from any infirmity or illegality, misreading or non-reading, calling for interference by this court under its Revisional Jurisdiction. This revision application, therefore, fails and accordingly dismissed and the judgments and decree passed by the courts below are maintained. Parties to bear the costs.

 

 

Larkana                                                                                                           Judge

Dated:16.05.2025