2016 PLP 124 (CLCN)

NAZAR AKBAR, J.

Being aggrieved of and dissatisfied with the judgment and decree dated 24.01.1996, passed by the learned IInd Additional District Judge, Badin, whereby Civil Appeal No.30/1989 filed by respondent No.1 was allowed and the judgment and decree dated 24.10.1989 and 06.11.1989 passed by Senior Civil Judge, Badin in F.C. Suit No. 157 of 1983 filed by applicant was set-aside, the applicant has preferred this revision application.

2. Briefly, the applicant/plaintiff filed F.C.Suit No.157/1983 in respect of agricultural land bearing survey No.1, measuring 07.35 acres, situated in Deh Veedho Chounro, Taluka Badin (hereinafter referred as the "suit land"), against the respondents for declaration, cancellation of documents, possession, permanent injunction and mesne profit. 2.(sic.) The applicant/plaintiff claimed that as a displaced person in the year 1957, the suit land was allotted to her under the Rehabilitation Scheme and Percha Khatooni dated 19.06.1957, was issued in her favour. Subsequently, survey No.283 measuring 03.05 acres was declared non-evacuee and in lieu of the same survey No.259 measuring 01.37 acre was allotted to her and necessary correction was made in the Khatooni. The applicant's claim was duly verified by the Central Board Office, Lahore and the applicant has become a verified allottee of survey No.1 measuring 07.35 acres including other land in Deh Veedho Chouro, Taluka and District Badin. She remained in possession of the suit land and it was cultivated through her hari/lessee and land revenue was also paid. The applicant on 27.6.1973 through challan deposited the Rehabilitation Fee required for clearance certificate, but despite her repeated approach to the concerned authorities the same was not issued and she came to know that clearance certificate No.ARM/756 dated 12.06.1970 in respect of the suit land was illegally issued in the name of one Ziaur Rehman son of Intizar-ur -Rehman.

3. In the meanwhile District Badin was created on bifurcation of District Hyderabad and she was required to approach Deputy Commissioner Badin. On inquiry from the Office of D.C. Badin, the Additional Deputy Commissioner, Hyderabad informed that outward register for year 1970 at Sr. No.756 dated 12.06.1970 shows entry in the name of Muhammad Zia-ul-Haq son of Intezar- ur-Haq for issuance of clearance certificate, which is a fictitious and fraudulent document. The D.C. Badin started enquiry about the fraudulent entry of clearance certificate in the name of defendant No.5 and when his lawyer appeared before the D.C. Badin, he was asked to produce the said Zia-ur -Rehman along with his identity card. Thereafter, the defendant No.4 filed a petition bearing C.P. No. D-128 of 981 before this Court to stop the enquiry conducted by the D.C. Badin in respect of the issuance of the said clearance certificate on the ground that he had purchased the suit land from Zia-ur- Rehman through registered sale deed dated 02.12.1980. The D.C. Badin filed parawise comments stating therein that no such allotment was made in favour of Zia-ur-Rehman nor any such clearance certificate was issued in the said name. The clearance certificate issued in the name of one Muhammad Zia-ul- Haq son of Intizar-ul-Haq pertained to the allotment of an area of 04.12 acres out of 05.13 acres in survey No.367 in Deh Mirzapur Taluka and District Badin against his entitlement bearing entry No.R.L.11 Register No.2 dated 17.03.1962 in satisfaction of his claim. It was averred in the comments that the clearance certificate issued in the name of said Zia-ur-Rehman is a bogus, fabricated and fictitious document, therefore, the mutation made on the basis of the said certificate is also illegal. It was also stated that Zia-ur-Rehman is not a claimant and the suit land was not at any time allotted to him and he was never put in possession and the mutation is also fraudulent.

4. It was further averred in the parawise comments that the suit land was allotted and transferred to the plaintiff/applicant in Settlement of her claim as far back as in the year 1957 and confirmed in the year 1960 and since 1957 the plaintiff/applicant is in possession of the said land and cultivating the same through her hari/lessee Khamiso (respondent No.6) and she has been paying land revenue. The plaintiff/applicant through registered deed dated 27.01.1981 has leased the suit land to the said Khamiso for a period of 05 years commencing from 1981-82 to 1985-86. It was also averred that respondent/defendant filed a suit bearing No.31/1981 in the Court of Civil Judge, Badin against Muhammad Hussain and Khamiso for cancellation of lease deed, alleging to have purchased the said land from Zia-ur-Rehman. The plaintiff/applicant made an application for joining as defendant in the said suit, which was allowed and against that order respondent No.1/defendant No.4 filed revision, which was dismissed and thereafter the said suit was withdrawn. The plaintiff/applicant further averred that she is lawful owner of the suit land and the defendant No.4/respondent No.1 has no right, title and interest of whatsoever nature in the suit land and the forcible eviction of plaintiff/applicant's lessee from the suit land was illegal and wrongful.

5. The official defendants Nos.1 to 3/respondents Nos.2 to 4 and respondent No.5/defendant No.5 were ex parte, whereas defendant No.4/respondent No.1 has filed written statement and denied the case of the plaintiff stating that he is owner of the land having purchased the same through registered sale deed dated 02.12.1980 executed by Zia-ur-Rehman through his attorney Muhammad Yaseen before the Sub-Registrar Badin and such mutation has been effected and the possession of the land was also delivered on the said date. The suit land was purchased in the sum of Rs.30,000/-, therefore, the rights of the defendant are protected under the transfer of property act and the transaction was bona fide and for consideration. The plaintiff/applicant has no cause of action and the Court has got no jurisdiction and the suit is liable to be dismissed.

6. The defendant/respondent No.6 has also filed his written statement stating that he was cultivating the suit land as hari/lessee of the plaintiff/applicant. The plaintiff has leased out the suit land to him from 1981- 82 to 1985-86. He also stated that defendant No.4/respondent No.1 claiming to be owner of the suit land asked him to leave the suit land but he refused whereupon he involved him in false criminal cases and the crops of the suit land were attached by the Assistant Mukhtiarkar Badin at his instance. Thereafter, finally he was forcibly ejected from the suit land during the lease period.

7. The learned trial Court from the pleadings of the parties framed the following issues:- "

1. Whether plaintiff is the lawful owner of the suit land and the defendant No.4 has no right, title or interest of whatsoever nature in the suit land?

2. Whether the entry of the name of defendant No.5 in the record of rights is illegal, fraudulent invalid and void?

3. Whether the sale deed dated 2.12.1980 in favour of the defendant No.4 is illegal, void and inoperative and the same be cancelled?

4. Whether Zia Rehman was not allotted the suit land from the settlement department after verification of the claim from Rehabilitation in the year 1973?

5. Whether the suit is not maintainable?

6. Whether the plaintiff is liable for mesne profits if yes, to what extent?

7. What should the decree be?

8. To prove her case, plaintiff/applicant has examined P.W-1 Hamid Hussain, who produced certain documents and P.W-2 Mushtaque Ahmed, P.W 3 Vikio Khan, Senior Clerk D.C. Office Badin, whereas defendant No.4 examined himself, produced the original sale deed and other documents; the defendant No.6 as D.W-2. After hearing the parties, the learned trial Court decreed the suit of the plaintiff/applicant by judgment dated 24.10.1989. Being aggrieved respondent No. 1/defendant No.4 filed Civil Appeal No.30 of 1989, which was allowed and the suit of the applicant/plaintiff was dismissed by judgment dated 24.01.1996, which is impugned herein.

9. I have heard parties counsel and perused the record.

10. The counsel for the applicant has contended that the learned lower appellate court has misread the evidence and the record as it is evident from the fact that learned IInd Additional District Judge, Badin without referring to the evidence and examination in chief of the applicant/plaintiff declared that the plaintiff has produced attested Photostat copies of Khatoonis Ex.66 and 67 and had not produced the originals. He has referred to the examination in chief of the P.W-1. Perusal of examination in chief clearly shows that the plaintiff witness has produced originals of not only two documents referred by learned lower Appellate court rather several other documents were also placed on record which have not been even referred to and examined by the lower Appellate Court. The evidence of the applicant/plaintiff shows that the original and other relevant following documents were produced:- (i) Original copies of two parcha khatoonis as Ex.66 and 67. (ii) Copy of deposited challan dated 27.6.1973 as Ex.68. (iii) 07 Land Revenue Receipts as Ex. 59/1 to Ex.69/7. (iv) Photostat copies of correspondence between D.C. Badin and D.C. Hyderabad in this connection as a secondary evidence dated 31.12.1980, 9.2.1981 and 10.2.1981. (v) Certified true copies of Petition filed by defendant No.4 in High Court of Sindh at Karachi as Ex.70. (vi) Certified true copy of comments by the concerned D.C. Badin as Ex.71. (vii) Counter affidavit (certified copy of Deputy Land Utilization-II Board of Revenue Hyderabad as Ex.72. (viii) Photostat copy of withdrawal of petition as secondary evidence. (ix) Certified true copy of statement of defendant No.4 dated 6.11.1982 and order passed on it as Ex.74.

11. The counsel for the applicant has further contended that the observation of the Appellate Court that the Lower Appellate Court has considered the photo copy in the judgment but the same were not admissible is factually in correct. He has also drawn my attention to Ex.76. This Exhibit is an application filed by the applicant for return of original khatooni dated 7.6.1957, 9.8.1960 and deposited challans dated 27.6.1973. This application was allowed and it was ordered that originals be returned after attested photostat copies are taken on record. This Ex. 76 is available at page 519 of the appeal confirms that the learned Appellate Court has misread not only the examination in chief of the applicants / plaintiffs witness but has also failed to examine the record while deciding the crucial issue No.1 regarding the title of plaintiff on the suit land.

12. Learned counsel for respondent No.1 has referred to judgment of trial court and emphasized on the observation of the trial court in the discussion of issue Nos. 1 and 4 that the trial court has also observed in judgment that when the learned Judge perused Ex. 66 and 67 the same are attested Photostat copies of the said documents, but he has not been able to dispute the fact that in the examination in chief it is clearly stated that the originals were produced and Ex.76 has confirmed the originals were returned and attested copies were taken on record therefore his reference to the said observation is misconceived. The evidence was recorded in 1986 and Ex.76 is also dated 3.12.1986 whereas the judgment was delivered on 6.11.1989 and therefore there is every likelihood that the learned Judge who has recorded the evidence was not the one and the same who had delivered the judgment and therefore the observation was factually correct but it does not mean that the original were not produced by the applicant. The learned Appellate Court again while ignoring the evidence on record failed to appreciate that respondent No.1 claimed to have purchased the property from the attorney of Zia-ur-Rehman son of Intezar-ur-Rehman and whenever courts directed him to produce Zia-ur-Rehman, once by the Deputy Commissioner Badin during the inquiry of forged and fabricated issuance of clearance certificate in respect of suit property and again when the High Court directed the respondent No.1 during the proceedings initiated by him to stop inquiry in the fictitious clearance certificate by the Deputy Commissioner, Badin. Instead of producing Zia-ur-Rehman, he withdrew his Constitutional petition. The evidence on this point was also produced by means of two certified copies of the court proceedings and in the cross-examination the counsel for respondent No.1/defendant No.4 has not disputed these documents and their contents. The documents regarding filing of Civil Suit No. 31 of 1981 by respondent No.1/defendant No.4 and the withdrawal of the same and then filing of constitutional petition and the comments filed by the official respondents all have gone unchallenged and un-rebutted.

13. The learned Appellate Court has totally ignored the same while reversing the findings on issue No.3 and did not even appreciate that the name of Zia-ur- Rehman and Zia-ul-Haq cannot be treated names of the one and the same person. Admittedly respondent No.1 was trying to derive title of the suit land through attorney of one Zia-ur-Rehman and not a single document from the revenue record showed that the name of Zia-ur-Rehman was in existence in the record of rights. As far as the name of Muhammad Zia-ul-Haq is concerned the official record produced in evidence has clarified that even the said Zia-ul-Haq was not allottee of the suit land. The witness of applicant/plaintiff who produced the official record from the office of Deputy Commissioner, Badin confirmed the correspondence between the office of Deputy Commissioner Badin and Deputy Commissioner Hyderabad with reference to clearance certificate No. ARM-756 dated 12.6.1976 that it was issued in the name of Muhammad Zia-ul-Haq son of Intezar-ul-Haq and pertained to the allotment of an area of 4-12 acres out of 5-13 acres in Survey No. 367 in Deh Mirzapur Taluka and District Badin against entitlement bearing Entry No. RL-11 Register, No.2 dated 17.3.1962 in satisfaction of his claim and Zia-ur-Rehman was not in existence and a fictitious name. The evidence of Vikio Khan Sr. Clerk D.C. Office Badin has gone un-rebutted as the cross was nil. On the question of possession of the applicant/plaintiff right from 1973 to 1980 were also proved from the evidence which included receipts of payments of revenue and particularly evidence of lessee Khameso (Pakistan) who was in possession of the suit land as hari. It has not been challenged in the cross-examination by the counsel for the defendant No.4 / respondent No.1 that he was not hari of the applicant, therefore, even the possession through hari was proved in favour of applicant.

14. The upshot of the above discussion is that the learned appellate court has committed material irregularity in reading the evidence while reversing the factually correct findings on the questions raised before the trial court to settle the dispute raised by the applicant/plaintiff for recovery of possession of suit land and cancellation of lease deed in respect thereof. Consequently this Revision Application is allowed. The impugned judgment and decree of appellate court in C.A. No. 30 of 1989 is set-aside and the judgment and decree of Senior Civil Judge, Badin in F.C. Suit No. 157 of 1983 is restored the parties are directed to bear their own cost. SL/A-88/Sindh Petition allowed.