1997 PLP 1034 (CLC)

(7)??????? Haji Noor Muhatnmad Jamote and another v. Osman and 3 others (PLD 1993 Kar. 26).

6. Mr. Muhammad Sharif Qazi, learned counsel for respondents Nos. l to 6 has contended that revision application is not maintainable; that patently there is no illegality in the order passed by the IInd Additional District Judge, Dadu; that order was passed with the consent of learned counsel for both the parties and the case was remanded to the trial Court for re‑hearing. Mr. Qazi has relied upon the following case‑law:‑‑ (1)??????? Khadim Hussain through Legal Heirs and 5 others v. Mst. Fazlan Bibi and 4 others (1996 SCMR 437). (2)??????? Abdul Hamid etc. v. Haji Shabir Khan and another (PLD 1995 SC 649). (3)??????? Taj Muhammad v. Mst. Zaitooney and another (PLD 1995 Peshawar 135). (4)??????? Ryas etc. v. Jan Muhammad (1992 CLC 351). (5)??????? Mst. Umari and another v. Faqir Muhammad and another (PLD 1983 Lah. 349).

7. Mr. Gulab Jesrani learned counsel for respondent No.7 has supported the contentions of Mr. Moohan Lal.

8. For the convenience, it will be pertinent to refer the findings of the learned trial Court particularly on Issues Nos. 1, 2 and 4 which is as under:‑ "Issue No.l. Burden lies on the plaintiff to prove Issue No.l in her favour. She has stated (Exh. 30) that suit land consists of Serial Nos.337, 310 and 322 of Deh Fatehpur Taluka K.N. Shah was purchased by Mirzo and Walio from one Qutub Shah in equal share, suit Serial Nos.337 and 310 as whole and 0‑8‑0 annas out of Serial No.322. In support of her contention, she has produced Registered sale?deeds at Exh.31 and

32. Perusal of Exh.31 reveals that Syed Qutub Shah son of Nabi Shah had sold out Serial No.310 admeasuring 4‑25 acres to Mirzo son of Ladho and Walio son of Mevo through Registered sale‑deed on 3rd October, 1888. The vendees were put into the possession of the said suit Serial number. Perusal of Exh.32 reveals that Syed Qutub Shah sold out Serial No.305 admeasuring 5‑5 acres of Deh Fatehpur to Walio and Mirzo in equal shares through Registered sale?deed on 10th October, 1887. Exh.36 is Deh Form I, perusal of it reveals Serial No.337 of Deh Fatehpur in place of old Serial No.305 as stated above. Now by virtue of Exhs.31 and 32, it stands proved that Walio and Mirzo had purchased suit Serial Nos.310 and 337 in equal shares through Registered sale deeds on 3‑10‑1888 and 10‑10‑1887. Exhs.31 and 32 are the deeds of title and there is nothing against them which can derogate their validity and genuineness. Even otherwise, claim of the plaintiff stands proved by the statement of defendant Ghulam Akbar (Exh.40) who has stated in his cross‑examination that the suit S. Numbers originally belonged to one Qutub Shah. He has stated further that Mirzo and Walio nephew and uncle inter se purchased the suit survey numbers jointly from Syed Qutub Shah. Now by this piece of evidence, the position has become admitted. I feel it unnecessary to go into further details but hold that the suit survey numbers were purchased by Walio and Mirzo from Syed Qutub Shah in equal shares. On the other hand the defendants have no titlement deed in support of their claim, which has been admitted by defendant Ghulam Akbar in his cross‑examination. In light of the above discussion and evidence on record, Issue No. l is replied affirmatively. Issue No.2: It has not been disputed as to whether the plaintiff is not only the legal heir of Mirzo and it has been found by me in discussion of Issue No. l that Walio and Mirzo purchased suit survey numbers in equal share i.e. Serial No.310 and 337 as whole and 0‑8‑0 annas of suit Serial No.322. Now it has become crystal clear that Mirzo owned 0‑8‑0 annas in suit Serial Nos.310 and 337 and 0‑4‑0 annas in suit Serial No,

322. Now I am going to discuss the evidence a bit ahead. Plaintiff has deposed (Exh.30) that after the death of Walio, Shah Muhammad and Manghio, inherited his share, while she inherited the share of Mirzo as his being only survival daughter. Now this fact stands supported and corroborated by the depositions of defendant Ghulam Akbar (Exh.40) and Lal Bux D.W.2 Defendant Ghulam Akbar has stated in his cross‑examination (Exh.40) that the plaintiff is only the survival of deceased Mirzo as his daughter. Lal Bux D.W.2 has stated in his cross‑examination that the _ plaintiff Mst. Alam Khatoon is daughter of Mirzo.. Hence the question of inheritance does not stand complicated. The ptaintiff is not only inherited the share of her father in suit survey numbers but also 1/8th share in the property of Mevo as being his widow. Because not only per case of the plaintiff but also according to the statement of defendant Ghulam Akbar, that Walio left behind his two sons namely Manghio and Shah Muhammad. Manghio had a son Abdullah and Shah Muhammad had a son Mevo, the husband of plaintiff Mst. Alam Khatoon and father of Mst. Hakim Zadi, defendant No.7. Hence it cannot be unreasonable to say that Abdullah and Mevo inherited the shares of Manghio and Shah Muhammad respectively. Therefore, it would be easy to say that the plaintiff can get 1/8th and Mst. Hakim Zadi 1/2 share from the share of deceased Mevo as being his widow and daughter respectively. The plaintiff has deposed that Shah Muhammad and Manghio during their lifetime sold out 7 jarebs out of the suit survey number, therefore, the left over the property of Mevo stands inherited by the plaintiff and defendant No.7 only. Now from the above discussed evidence, it stands proved that the plaintiff is only legal heir of deceased Mirzo and has inherited her share. Accordingly the Issue No.2 is answered affirmatively. Issue No.3.‑‑‑‑‑‑‑‑ Issues Nos.4 and 5: Burden lies on the defendants to prove these issues in their favour. Defendant Ghulam Akbar has been examined vide Exh.40. He has stated that he has seen the suit land. Suit Serial 322 belongs to them and Haji Mehoon in equal shares, which is not consistent with para. No.2 of the writtkn statement, according to which Serial No.322 stands in the names of one Dolat and Manghio. Admittedly the defendants are descendants of deceased Manghio s/o Walio but the said Dolat is not one of his descendants. The defendant (Exh.40) has admitted that they have no titlement deed in their favour. The defendant has further stated that suit Serial No.337 belongs to them and Shah Muhammad. In cross‑examination he has stated that Shah Muhammad had one son Mevo father of defendant No.7 and husband of plaintiff, but despite this the defendants are not admitting any share of the plaintiff and defendant No.7, which is much more surprising. Perusal of examination‑in‑chief of defendant Ghulam Akbar, reveals that it is just in contradictions. of what he has stated in his cross?-examinations. Lal Bux D.W.2 has stated that Haji Mehoon Khan, Haji Mehar, Haji Mevo, Mst. Nemoi and legal heirs of deceased Abdullah are in possession of suit Serial No.322. Serial Nos.337 and 310 are uncultivated. In cross‑examination, he has stated that he cannot give exact area of the suit survey numbers and lastly he has also admitted that Haji Mevo used to cultivate the suit survey numbers. Statements of both the D.Ws. are not confidence inspiring and not worth reliance. I am at loss to believe their version for want of other cogent and reliable evidence. The defendants have miserably failed to make out their case of titlement regarding the suit survey numbers. The defendants claim their titlement on basis of the entries of their names in the relevant Revenue Record. It is held in AIR 1926 PC 100 (PLD 1976 Kar 114) that it is an error to assume that proceedings for mutation of names are judicial proceedings in which titlement to and the proprietary rights in immovable property are determined. They are more in the name of fiscal enquiries instituted in the name of the State in the interest of the collecting revenues from the claiming occupants. It is held in PLD 1970 Pesh. 141 (PLD 1976 Kar. 114) that the mutation and subsequent entries in the record of rights do not create title in favour of the persons as these documents are not documents of title. Hence I am of the humble opinion that the defendants have no title, right or interest in the suit survey numbers. Issues Nos.4 and 5 are answered negatively. "

9. The trial Court after examining the evidence, and analysing the documents produced by the parties, decreed the suit of the plaintiff and perusal of the judgment shows that 0‑8‑0 annas share of Muhammad Aqil in any case is not under dispute and‑ findings of the trial Court are not adverse against Muhammad Aqil, therefore, the order of the learned appellate Court remanding the case with the consent of the learned counsel for the parties, without discussing, analysing and examining the evidence in any case prima facie appears to be without jurisdiction. I would like to discuss the case‑law relied upon by Mr. Moohan Lal, learned counsel for the petitioner, hereunder:‑ (1) 1979 CLC 247: In this authority, dictum laid down is that even a question of fact could be determined by this Court under section 103, C.P.C. The Civil Court got the entire evidence and exhibited all the documents being relied upon by the parties. The question involved is only a question of law. In the circumstances, it is not necessary to send this case back. Here in this case also Civil Judge, K.N. Shah recorded the evidence and got exhibited all the necessary documents produced by the parties, referred and discussed hereinabove, therefore, in my humble view, it is not necessary that case be sent back to the trial Court. (2) 1983 CLC 1160: In this case the learned Division Bench of High Court has held that exercise of discretionary power under Order XLI, Rule 20, C.P.C. in favour of an applicant is not automatic and cannot be had just for the asking. It i? dependent upon existence of some valid and reasonable cause. (3) 1983 SCMR 1012: The Honourable Supreme Court in this case held as follows:‑‑ "It cannot be seriously disputed that where a manifest misreading of evidence on a material point affecting the application of law is involved or material evidence has been altogether ignored, the revisional powers can be appropriately exercised as it would not be proper exercise of jurisdiction possessed by the fact finding Courts." (4) 1987 SCMR 1310: The dictum of Supreme Court is that any concession made against the appellant by his counsel in proceedings before the Court could not be binding on the appellant as it was made under an obvious mistake of fact and without instructions from the party. (5) PLD 1989 SC 568: The rule laid down by the Honourable Supreme Court is that if the lower Court, misreads the evidence on record and fails to take notice of a vital fact appearing therein, comes to an erroneous conclusion, it would be deemed to have acted with material irregularity and its decision is open to revision by the High Court. (6) PLD 1989 SC 749: The Supreme Court considering the Article 31 of the Qanun‑e‑Shahadat held that admission which is wrong on the point of fact or is made in ignorance of a legal right, has no binding effect on the person making the same. (7) PLD 1993 Karachi

26. In this case Abdul Rahim Kazi, J. (as he then was) has laid down that this Court can interfere with or reverse the concurrent findings of fact if the same were based on misreading of evidence or were perverse. In the case in hand, the learned IInd Additional District Judge, Dadu has not analysed, assessed and examined the evidence so recorded by the trial Court and on application and with the consent of the counsel for defendants, by consent allowed the appeal and remanded the case to the Civil Court which order itself appears to be perverse and is based on non‑reading of the evidence recorded by the Trial Court.

10. Mr. Muhammad Sharif Kazi, learned counsel for respondents Nos. l to 6 has cited the following case‑law:‑‑ (1) 1996 SCMR

437. In this authority Honourable Supreme Court has held that 90 days' period is prescribed for filing the Civil Revision and further that nothing has been pointed out to support the contention that any material aspect of the case has not been considered by the learned Courts below. Again I am compelled to say that in this authority in any case is not applicable to the facts of the present case. The revision has been filed within time and it has rightly been pointed out that learned lower Court has not considered the material aspect of the case and has also not analysed the evidence so recorded by the Trial Court which 8 contained even certified copies of the record of rights issued by the Revenue Authorities and original registered sale‑deed pertaining to the period of 1887 and 1888 which have gone unchallenged and unrebutted by the learned Trial Court. (2) PLD 1995 SC 649: This case pertains to N.‑W.F.P. Pre‑emption Act, 1950 which in any case has no concern with the facts of the present revision application because suit of the petitioner/plaintiff before the Trial Court was for declaration and permanent injunction. Pre‑emption in any case is not involved at all. (3) PLD 1995 Peshawar 135: The revision application was dismissed with the observation that no reason exists and none indeed has been made out as to why this Court should interfere, with the findings of the learned Courts below who have not acted illegally or with material irregularity in the exercise of the jurisdiction vested in them. As pointed out hereinabove, the suit of the petitioner/plaintiff was decreed by the Trial Court with cogent reasons and considering the unimpeachable documentary evidence, the order was set aside in appeal by the Appellate Court without analysing or considering the evidence so recorded, without consent of the petitioner/plaintiff and with the consent of learned counsel for the plaintiff who in any case was not authorised by the plaintiff to enter into any compromise with the other party at the time of hearing of the appeal. The order of the Appellate Court patently appears to be without merit or substance and without jurisdiction. Rather this authority appears to be helpful to the case of the petitioner/plaintiff. (4) PLD 1983 Lah. 349: The facts of this case were that Muhammad Din owned land measuring 12 Kanals, comprised in Khasra No.73/23 of Khatauni No.312 (8 Kanals), Khasra No.73/24‑min Sharq of Khatauni No.315 (4 Kanals) situated in Chak No.31/22 in Tzhsil Okara, sold the above land to Ilyas, Hassan, Rehmat, Razzaq and Ghulam Muhammad alias Gama sons of Suleman through registered sale?deed on 27‑2‑1980 for a price of Rs.10,000. ‑ Registered sale‑deed, was implemented in Revenue Records in favour of vendees. Jan Muhammad claimed pre‑emption in respect of the above sale and filed a suit for enforcement of pre?emptive rights against the vendees in the Court of Civil Judge, Okara. Pleadings by the parties were submitted, trial Court framed issues and finally held that plaintiff had superior right of pre‑emption and consequently decreed the suit subject to payment of Rs.10,000 as a sale price. Vendees/defendants preferred an appeal against the judgment and the District Judge finding no merit, dismissed the same. Against the judgment of both the Courts, this revision was filed. After admitting the revision, execution proceedings were stayed without any terms. Jan Muhammad respondent after service, applied under Order VI, rule 17, C.P.C. for amendment seeking correction for substituting correct Khasra number in the plaint. Petition for amendment was registered as C.M. and notice was ordered to issue to other side and Court ordered that in view of the nature of the matter, C.M. shall be heard alongwith the main case as suggested by the learned counsel for the petitioners. The only point involved for decision in the civil revision turned around the stated misdescription of the property which was subject‑matter of pre‑emption and its consequential effect. The revision was dismissed by the learned Single Judge with the following remarks:‑ "Apart from express provisions in the Code of Civil Procedure giving extensive powers to the Court to permit amendment for meeting the ends of justice in variety of circumstances, the Court is also amply equipped with inherent powers for remedying the clerical error and accidental omissions creeping in the pleadings and also in its judgments, orders and .decrees. It was clearly a pardonable fault and excusable in the existing circumstances of the case. The error was human, and consequently condonable. Neither culpable negligence nor any mala fide was involved in the case. Error came to be committed by an Advocate, who could not read the correct Khasra number given in the registered sale‑deed and mentioned it in the plaint as 22, instead of

23. The pre‑emptor was not at fault. He had. handed over the relevant papers to his Advocate and reposed confidence in him. If, the latter did not describe the property correctly in the plaint by an inadvertence, the fault could not be laid at the doors of the plaintiff." The facts of this case in any case are not relevant to the facts of the revision in hand. The application for recording additional evidence was allowed by the IInd Additional District Judge, Dadu without applying its judicial mind and without analysing or assessing the evidence so recorded by the Trial Court, wherein I have already held that share.held by Muhammad Aqil in any case was not under dispute and nothing adverse was held by the trial Court against Muhammad Aqil. Under these circumstances, application was granted by the Appellate Court for recording the additional evidence and remanding the case for re‑hearing to the trial Court is without substance/merit. With due respect to the authority, this is not favourable to the case of respondent. (5) PLD 1983 Lah. 349 The facts of this case are that Faqir Muhammad and Imam Bibi filed a suit in the Civil Court at Mianwali, against defendants/petitioners Mst. Umari and Mst. Rehmate for declaration that the orders of Commissioner, Sargodha dismissing respondent/plaintiffs revision and maintaining said mutation order were wrong, against law, void and inoperative against their rights. There was also a prayer for injunction against petitioners/defendants. The suit was decreed in favour of respondents/plaintiffs Faqir Muhammad and Imam Bibi. The petitioners/defendants Mst. Umari and Mst. Rehmate filed an appeal before the District Judge and subsequently petitioners/defendants filed an application under Order XLI, rule 27, C.P.C. for permission to adduce additional evidence on the ground that they. had now brought certified copies of extracts from Birth Register of Municipal Committee, Jullundur, duly attested by the Second Secretary of Pakistan Embassy in New Delhi conclusively showing them be daughers of Ghulam Muhammad and that same should be allowed to be produced in evidence. Notice of application was given to the other side and District Judge decided the main appeal and dismissed the same although he had heard arguments on the application for production of additional evidence also. Learned District Judge made no mention of the said application in his judgment, nor made any adjudication on the same in his judgment, therefore, the revision against the order was filed. I am afraid, facts of this case in any case are not applicable to the facts of the revision in hand. Inasmuch as, in this revision, the Civil Court recorded the evidence, parties produced the certified copies of the extracts from the village Form VII and also registered sale‑deeds pertaining to the period as back as 1888 and parties were provided full opportunity for rebuttal of the documents and evidence, if any, but nothing substantial was produced/adduced before the Trial Court. Under these circumstances, this authority, in any case, is not favourable to the case of respondents.

11. I have gone through the material placed with the case and have minutely analysed the evidence recorded by the Trial Court. The documents which have been produced by , the petitioner/plaintiff have gone unchallenged and unrebutted. So far the share of Muhammad Aqil is concerned that in any case is not under dispute and findings of the trial Court in any case are not adverse to the share of Muhammad Aqil. The appellate Court on the application of appellant and by getting consent from the Advocate for petitioner Mst. Alam Khatoon, was pleased to remand the case for joining legal heirs of Muhammad Aqil as party to the suit, is not sustainable. Moreover, the order of the Appellate Court has been passed without considering the evidence and the documents produced by the parties before the trial Court. The case‑law cited by Mr. Moohan Lal, learned counsel for the petitioner, referred and discussed hereinabove, is very much relevant, applicable and helpful to the case of plaintiff/petitioner which I most respectfully follow. The order of the Appellate Court remanding the same for joining the legal heirs of Muhammad Aqil as legal representatives and for re‑hearing, in my humble opinion, is not sustainable. Suit was filed in the year 1982 and was decided by the trial Court on 23‑6‑1983 against which appeal was filed in the year 1983 and the Appellate Court was pleased to remand the same on 12‑5‑1987 again for hearing for which no useful purpose will be served at all. The petitioner/plaintiff has already suffered a lot and again they will be put into further unnecessary protracted unfruitful litigation which should be curbed and plaintiff/petitioner should be allowed to enjoy the fruits of the judgment/decree after lapse of about 14 years.

12. Upshot of the above discussion is that I allow the revision, set aside the judgment of IInd Additional District Judge, Dadu and restore the judgment of Civil Judge, Khairpur Nathan Shah. By short order revision was allowed on 27‑2‑1997, above are the reasons for the same. A.A./A‑103/K ??????????????????????????????????????????????????????????? Revision allowed.