2004 PLP 2546 (YLR)

This revision application is directed against the judgment dated 13-2-2002 and decree dated 20-2-2002 passed by the learned 1st Additional Sessions Judge, Larkana in Civil Appeal No. 12 of 2001 the appeal of the applicant n re: Aitbar Ali v. Medical Superintendent, Taluka Hospital, Ratodero and another, whereby the judgment dated 31-1-2001 and decree dated 7-2-2001 passed by the learned IV Senior Civil Judge, Larkana was maintained. The applicant has preferred this civil revision application with a prayer that the judgments and decrees passed by the two Courts below be set aside and this civil revision be allowed..

2. The case of the applicant/plaintiff Ais that he is owner of agricultural land bearing S. Nos.204, 465 and 466 of Deh Ratodero admeasuring 3 acres, 35 ghuntas (hereinafter referred to as "the land in question"), which he had purchased from one Imamuddin in the year 1986 for a consideration of Rs.21,

000. After purchase the possession of the suit-land was handed over and he continued to be in its possession till 1994 when the respondent No.1 tried to occupy the same claiming that the same had been acquired by them under the law. The applicant/plaintiff further averred that he filed a suit No.31 of 1994 for declaration and injunction, however, the injunction application was dismissed whereafter the respondent No.1 gradually. occupied the land in question and started the construction thereon. The said suit was ultimately withdrawn by the appellant with permission file afresh to one and accordingly the suit was filed. It was contended by the applicant/plaintiff that the land in question had illegally and forcibly been occupied by the respondent No.1 and the same was not acquired in accordance with law or any compensation was paid to him by the Land Acquisition Officer. He thus, made the following prayer in the suit:-- (a) This Honourable Court may be pleased to declare that the plaintiff is owner of the suit-land. (b) This Honourable Court may be pleased to direct the defendant No.1 to hand over the possession of the suit-land to the plaintiff failing which this Honourable Court may be pleased to put the plaintiff into possession of the suit land. In the alternate direct the defendants to acquire the suit-land according to law. (c) This Honourable Court may be pleased to grant costs of the suit. (d) This Honourable Court may be pleased to grant any other relief for which the plaintiff is deemed entitled. The notice of this suit was issued to the respondents and suit was contested. It was urged that the suit property was acquired in the year 1973, as the suit property belonged to Government as it was evacuee property and its possession was handed over to them by the Mukhtiarkar concerned. It is also the case of the respondents/defendants that the compensation for the remaining land was paid by the Health Department.

3. The trial Court on the pleadings of the parties, framed the following issues:-- (1) Whether the plaintiff is owner of agricultural land bearing S. Nos.204 (1-23) acres, 465 (1-0) acres and 466 (1-07) acres Deh and Taluka Ratodero? (2) Whether in the year 1994 defendant No.1 tried to illegally occupy the suit-land, hence Civil Suit No.31 of 1994 was filed against the defendant No.1? (3) Whether the defendant No.1 during the pendency of Suit No.31 of 1994 illegally occupied a part of the suit land, made construction on it and such act of construction is in progress? (4) Whether due to illegally occupying the part of the suit during pendencyof the Suit No.31 of 1994 by the defendant No.1, the plaintiff withdrew from the said suit-land filed the present suit? (5) Whether the suit property has been acquired according to law and if so whether the plaintiff has been paid the compensation? (6) Whether the occupation of the part of suit-land by the defendant No.1 is illegal? (7) Whether the maintainable? (8) What should the decree be? The trial Court proceeded with the suit. The applicant/plaintiff examined himself and produced extract from the record of rights showing him to have purchased the land from one Imamuddin and he also produced an extract showing Imamuddin to have purchased it from one Blagat Hussain to have purchased the same from the Government, as evacuee property in satisfaction of his claim. He also produced Ghat Wadh form, map with Rubkhari and order passed by the learned III Senior Civil Judge, Larkana in earlier suit whereby he was allowed to withdraw and file afresh suit.

4. The defendant/respondent No.1 Dr. Ubedullah Kakepto, Medical Superintendent, Taluka Hospital, Ratodero examined himself and produced possession certificate, a letter issued by Executive Engineer, Provincial Buildings Department, Larkana showing the payment of Rs.35,000 made to the Assistant Commissioner/Land Acquisition Officer, Larkana in relation to the compensation of the land and the acknowledgment of the said cheque by the Assistant Commissioner. He also producedan office note kept in the office of District Health Office Department. Larkana confirming the handing over of land in question to the Buildings Department for constructing of the hospital. He also produced a letter addressed by the Assistant Commissioner and Land Acquisition Officer to the Executive Engineer Buildings concerning the matter and thereafter closed the side. The trial Court after evaluating the evidence brought on record dismissed the suit. The order of the trial Court was challenged by way of filing an appeal, which too was dismissed, hence the said judgment and decree has been impugned in this revision application.

5. Mr. Gul Hassan Solangi, learned counsel for the applicant has contended that two Courts below have not considered the provisions of section 41 of the Transfer of Property Act, 1882, according to which the applicant/plaintiff has after taking all reasonable care ascertain that the to transferor had power to make the transfer, had purchased the property and thus acted in good faith. The applicant/plaintiff has proved his title on the basis of documentary evidence, which has not been rebutted by the defendant/respondents. It is further argued by the learned counsel that the two Courts below have not considered the fact that the defendant/respondent has probated and reprobated by saying in the same sentence in his evidence, which is as under:-- "I do not know from whom the Assistant Commissioner had acquired the area of disputed survey number in the year 1973. Voluntarily states that probably the suit property was acquired from Central Government."Mr. Solangi further submits that there is general allegation by the defendant/respondent that the applicant/ plaintiff and his predecessor in this case have produced fabricated documents regarding the suit property, but they have failed to prove that the documents are fake nor they produced any other document in evidence in rebuttal. Mr. Solangi further submits that the observation of the Appellate Court that the price of the suit property viz. Rs.21,000 is meagre amount for (3-35) acres, but the said Court has not considered the fact that this transaction was made in the year 1986 when at that time it was quite adequate amount. The applicant/plaintiff has produced three documents showing that initially the land in suit was allotted to claimant Lieutenant Commander Syed Blagat Hussain by the Central Government, as it was evacuce property. He also produced an extract from record of rights in the name of Blagat Hussain, as his name was recorded as owner of the suit-land. It was sold by the said claimant to Imamuddin. The record of rights was mutated in his name and thereafter the said Imamuddin had sold the suit property to the applicant/plaintiff. It is, inter alia, contended by the learned counsel for the applicant that suit was filed by the applicant on the basis of his ownership, it is unrebutted and stands established from the certified true copy of the record of rights in his favour and in favour of his predecessor in-interest. The land in question was allotted to Syed Blagat Hussain a claimant allottee of the said evacuee land and the suit-land was mutated, after issuance of clearance certificate. The said land was sold out to Imamuddin from whom the applicant/plaintiff had purchased the same for valuable consideration and the presumption of correctness of the entries inthe Revenue Record according to the ownership is always attached to the entries and the burden lies on the person who challenged the correctness. It is further argued that nothing was placed on record by the defendant/respondent to dislodge such legal presumption, as initial entry in the name of Central Government itself shows that it was evacuee property and even on that score it could not be occupied or utilized by the respondent. Learned counsel has, therefore, urged that it is a case of misreading and non-reading of the evidence and the two Courts below have erred-in-law while deciding the case against the applicant by ignoring the law laid down by the Honourable apex Court. Mr. Gul Hassan Solangi. learned counsel for the applicant in support of his arguments, has relied upon the following case-law:-- (1) Evacuee Trust Property Board v. Ghulam Rasool Khokhar 1990 SCMR 725. (2) Civil Procedure Order 6. rule 4. (3) Dadabhoy Cement Indus. Ltd. v. National Development Finance Corpn. PLD 2002 SC

500. C (4) Qanun-e-Shahadat. 1984 (Article 90). (5) Allah Bakhsh V. Muhammad Abdullah 1995 CLC 331 (a) and (b). (6) Muhammad Bakhsh V. Bukhsh 2003 SCMR

286. Ellahi Mr. Muhammad Bachal Tonyo, learned Additional A.-G. representing the respondents has supported the impugned judgments and decrees passed by the two Courts below and submits that the suit-land was acquired as the land in question was Government property as evacuee and its possession was handed over to the respondents by the Mukhtiarkar and compensation of the suit-land was paid amounting to Rs.35,000 to the Assistant Commissioner/Land Acquisition Officer. Larkana and the acknowledgement of the cheque was received and thereafter Buildings Department has constructed a hospital for the welfare of the public-at large in village Ratodero.

6. During the course of arguments, it was urged that the documents produced by the applicant/plaintiff had been manipulated and the hospital is in operation since 1978 and if the finding of the two Courts below. is not accepted then the people at large of Ratodero will be deprived from the medical facility. He had admitted that no documentary evidence was produced by the respondent to dislodge the documents of the applicant/plaintiff. It is conceded by the learned Additional A.-G. that the suit property is the evacuee land and in the name of Central Government and the said land was acquired by the Assistant Commissioner/Land Acquisition Officer showing the payment of Rs.35,000 made to the Assistant Commissioner. Mr. Muhammad Bachal Tonyo, learned Additional A.-G. has relied upon the following authorities in support of his arguments:-- (1) PLD 1983 SC 53; (2) 1975 SCMR 472; (3) 1993 MLD 962: (4) PLD 1987 SC 574; (5) PLD 1965 SC 295; (6) 1997 SCMR 1139: (7) 1968 SCMR 213: (8) 1964 SCMR 302: (9) Evidence Act. section

65. I have heard the learned counsel for the respective parties. examined therecord produced by them in the trial Court and the case-law authorities cited by the learned counsel for the respective parties.

7. The trial Court while deciding the suit has answered the Issues Nos.1 to 4 in negative, therefore, my findings on the above issue for the following reasons are as under:--

8. The applicant/plaintiff claimed himself as owner of S. Nos.204 measuring 1-23 acres, 465 measuring 1-08 acres and 466 measuring 1-07 acres total area (3-35) acres Deh and Taluka Ratodero. He had purchased the suit-land in the year 1986 from Imamuddin in the sum of Rs.21,

000. He produced true copy of record of rights showing transfer of suit-land from Imamuddin to him as Exh.18/A. He has also produced true copy of record of rights showing said Imamuddin having purchased the suit-land from Syed Blagat Hussain as Exh.18/B. true copy of record of rights showing Syed Blagat Hussain having purchased the suit-land from Central Government Exh.18/C. Ghat Wadh as Form in respect of the suit-land as Exh.18/D. Soural-Hal map with Rubkari issued by the Tapedar as Exh. 18/E and true copy of the order dated 19-3-1999 passed by IIIrd Senior Civil Judge, Larkana in F.C. Suit No.31 of 1994 as Exh. 18/F and deposed that at the time of purchase of the suit-land he paid entire amount of price of the suit-land to Imamuddin and he was put in physical possession of the suit-land.

9. On the other hand Dr. Ubedullah has deposed that the S. Nos.204, 465 and 466 are, the disputed S. Nos. and the suit land was handed over by the Mukhtiarkar, as an amount of Rs.35.000 was deposited in the office of Assistant Commissioner and the possession of the suit-land was handedover to the Health Department. The Issues Nos.2. 3 and 4 are connected issues and similar in nature. The applicant/plaintiff has deposed that in the year 1994 the defendant No. I tried to illegally occupy the suit-land on pretext that it was acquired and he resisted and filed civil suit in the Court of IIIrd Senior Civil Judge, Larkana with the injunction application. but the injunction application was dismissed and thereafter defendant No.1 occupied the land and started construction, therefore, the applicant/plaintiff withdrew the said civil suit with permission to file afresh one. It was deposed by the defendant/respondent that the applicant/plaintiff and Imamuddin. his predecessor-in-interest were neither in possession of the disputed plot nor they had demanded from them the possession of the suit-land. but it was handed over by the Revenue Department and the documents produced by the applicant/plaintiff regarding the suit property are fabricated and managed. It was further deposed by the defendant/respondent that on the suit-land Government has constructed a hospital in Ratodero town as Health Centre is working under the control of defendant/respondent No.1 and the suit property belonged to the Health Department and land in question was not taken over under forcible, as the applicant/plaintiff has no right over the suit land and managed. the documents have been

10. The trial Court also decided the Issues Nos.5 and 6 in negative. On these issues the trial Court has relied upon the documents produced by the defendant/ respondent No.1 showing that the suit land was acquired through Assistant Commissioner/Land Acquisition Officer on the presumption of correctness, which are attached to the documents as the proceedings initiated by the Government officials are presumed to have been done properly unless proved otherwise. It is also discussed in these Issues that the compensation was paid to the Government as the land was shown as property of Central Government and the applicant/ plaintiff was not the owner, therefore, the compensation was not paid to him. The trial Court had answered Issue No.6 to the extent that the burden of proving the said issue rested upon the applicant/plaintiff, but the applicant/plaintiff failed to prove that he is owner of the suit-land or any part of the suit-land owned by him, which was occupied by the defendant/respondent No. 1.

11. The trial Court while discussing the Issues Nos.7 and 8 has considered that the burden of proving these issues rested upon the defendants. It was deposed that the applicant/plaintiff had filed said suit, which is false one and no cause of action was accrued to file the suit as the suit property was a public property at the time of its acquisition and applicant/plaintiff was not owner. The trial Court while considering the above issues has observed that the suit- land was occupied in the year 1973 and the applicant/plaintiff filed the suit for declaration of his ownership and possession in the year 1994/1999. It was also held by the trial Court that the applicant/plaintiff is not entitled to the possession of the suit land and dismissed the same ΠΟΙ as maintainable and Issue No.7 was decided in affirmative while deciding the Issue No.8 by dismissing the suit leaving the parties to bear their own costs.

12. In view of the issues considered by the trip! Court, the ownership of the applicant/plaintiff in respect of the suit-land B is unrebutted and established from the certified true copy of the record of rights in his favour and in favour of his predecessorin-interest. The respondents/defendants has failed to prove that the said documents are that the fabricated and managed whereas it is conceded in the written statement as well as in the evidence that the suit-land was the property of Central Government and it was allotted to the claimant Syed Blagat Hussain for satisfaction of his claim and the land was mutated after issuance of clearance certificate, whereafter he sold the same to Imamuddin from whom applicant/plaintiff had purchased the same for valuable consideration. The presumption of the correctness of entries in Revenue Record regarding the ownership is always attached to the entries and the burden lies on the person who challenges the correctness. In the evidence the respondents have failed to prove that the allotment of suit-land to Syed Blagat Hussain was fabricated or the sale of the suit-land by the claimant Syed Blagat Hussain to Imamuddin was managed or further sale by Imamuddin to applicant/ plaintiff is false one.

13. In the similar circumstances, it has held by the Honourable apex Court in the case of Evacuee Trust Property Board v. Haji Ghulam Rasool Khokhar 1990 SCMR

725. The relevant observations at page 734, which reads as under:-- "We have already held that entries mentioned in the Revenue Record regarding ownership are presumptive evidence of title. which shift the burden on the person who challenges their correctness to establish otherwise." The respondents have not placed on record to dislodge such legal presumption. It is established that initial entry in the name of E Central Government itself shows that it was evacuee property and even on that score itwas not occupied or utilized by the respondents/defendants. The suit-land was occupied by the respondents merely on the assumption that suit-land was handed over by the Mukhtiarkar. as payment of Rs.35,000 was made to the Assistant Commissioner/Land Acquisition Officer, Larkana in relation to the compensation of the land and thereafter Health Department had constructed the hospital in Ratodero town. The two Courts below have not assessed the title document of the applicant/plaintiff, as the suit-land was in the name of Central Government as evacuee property and thereafter it was given to claimant Syed Blagat Hussain whose name was mutated in the Revenue Record after issuance of clearance certificate.

14. As per record of rights and register of challenges it pertains Central Government. The Rehabilitation Mukhtiarkar, Larkana and Mukhtiarkar, Ratodero transferred the said land to the claimant and such vendor was kept on record. The said entries were made on 3-4-1978 and the old entries in the name of claimant are not managed documents and it was allotted to Lieutenant Commander Syed Blagat Hussain and the Revenue Record was mutated in his name, which is existing in the Revenue Record and if any compensation has been paid by the respondent to the Assistant Commissioner/ Land Acquisition Officer, Larkana misconceived, as the Revenue Record was not fortified by the said A.C./L.A.O. that the suit-land was allotted to the Lieutenant Commander Syed Blagat Hussain and thereafter the said land was sold to Imamuddin, which was purchased by the applicant/plaintiff in the year 1986 for valuable consideration. He was put into possession and he existed at the time of acquiring the said land by the Revenueauthorities and ultimately filed the suit for seeking the relief. The two Courts below. have erred in misreading the evidence and ignored the documentary evidence produced by the applicant/plaintiff, as the said documents were not to be found bogus. although the respondents have alleged that the these documents have been managed. The judgments and decrees passed by the two Courts below are erroneous and based on wrong proposition of facts and law and the same are set aside. The defendant/respondent. while examining himself had stated in positive term that "IF do not know from whom the Assistant Commissioner had acquired the area of disputed survey number in the year 1973. Voluntarily states that probably the suit property was acquired from Central Government." The land of the Central Government cannot be acquired by the land Acquisition and by awarding the compensation in the sum of Rs.35,000 which was deposited by the respondent in the office of Assistant Commissioner is absolutely on wrong presumption. The Health Department may apply for return of the said amount from the Land Acquisition Officer, Larkana, as the land was in the name of Central Government, which was ultimately allotted Lieutenant Commander Syed Blagat Hussain in lieu of his claim and the said land was sold to Imamuddin, whereafter, the suit-land was purchased by the applicant/plaintiff, which is existing in his name as its owner.

15. I have scanned the entire material and evidence brought on record minutely to justify the title of the applicant. The trial Court as per judgment has observed that the document produced by the defendant No.1 as Exh.30/A shows that the possession of the suits S. Nos. 465, 466 and 204 was handed over by the Mukhtiarkar, Ratoderoand it was received by the office Assistant of District Health Office, Larkana and then it was handed over to the Executive Engineer Buildings Department on 16-6-1976. It is further stated that the suit land as well as some other S. No. of same person other than the plaintiff's/applicant were proposed to be acquired at the rate of Rs.500 per acre and incharge Assistant Commissioner/Land Acquisition Collector, Larkana had demanded further amount of Rs.48,625 to be placed at his disposal apart from the cheque of Rs.35,000 for making payment to the owners of the land. In the said judgment, the trial Court has observed as under:-- "It is admitted position that the suit S. No. belonged Central to Government as evacuee property, but in the evidence of applicant/plaintiff as Exh.18, the plaintiff have produced all the documents to establish his ownership, as he purchased the suit-land from Imamuddin. The said Imamuddin had purchased the land from claimant Lieutenant Commander Syed Blagat Hussain as the suit-land was allotted to him by the Central Government in lieu of his claim." It is pertinent to mention that Dr. Ubedullah, Medical Superintendent. Taluka Hospital, Ratodero was examined by the trial Court as Exh.30, who had specifically stated as under:-- "The Health Department had acquired the suit area in the year 1973 and thereafter construction work was started in the year 1973-74 and the possession of the hospital building was delivered tothe Health Administration in the year 1978. The said area was purchased through the A.C. and Mukhtiarkar to whom our Department had delivered the cheque of Rs.35,000 and another cheque also, the amount of which I do not remember at present." The said witness in the cross-examination has frankly admitted as under:-- "I do not know from whom A.C. had acquired the area of disputed S. No. in the year 1973. Voluntarily states that probably the suit property was acquired from Central Government. I do not know whether one Government cannot acquire the property of another Government.. Totai amount of compensation price of the suit property was acquired for more than 35,000 but total amount I do ΠΟΙ remember. I cannot say whether the acquisition area of the suit property or award of the competent authority has been produced in the suit by our side." The respondent No.2 though adopted the written statement of respondent No.1, but did not brought any document in respect of acquisition of the land to show whether any notification under section 4 or 6 were published or any award was passed and who was the owner of the said land and whether any compensation was paid to the owner of the land. The respondent No. 1 has also not brought on record the said documentary evidence showing the acquisition of the land, but the respondent No.1 has agitated that the land was acquired by the A.C./L.A.O. and possession was handed over by the Mukhtiarkar. The respondentNo.2 has not examined any witness regarding the acquisition of the land nor brought any documentary evidence to show that the suit-land was property of some other persons to whom the compensation was paid, all these facts indicate that the respondents have not shattered the dockmentary evidence of the ownership produced in the evidence by the applicant/plaintiff.

16. In view of the foregoing reasons, it is held that the applicant/plaintiff has proved his title as owner of the suit-land. This revision application is allowed and suit is declared in respect of prayer clause (a). As far as prayer clause (b) is concerned. the possession of the suit-land cannot be handed over to the applicant/plaintiff in the present situation, as Health Department has already constructed a hospital for the welfare of the public-at-large and if the possession of the suit-land is handed over to the applicant, the whole community will suffer and shall stand deprived of the medical facilities.

17. In view of this position, I find that in alternate, the applicant/plaintiff has made out a case for grant of compensation, being the owner of the suit-land at the time of its acquiring and since no compensation was paid him. therefore, the applicant/plaintiff is entitled to claim market value of the suit-land from the date of its possession at the rate prevailing in the year 1973, which can be ascertained from the office of concerned sub-Registrar in respect of transactions of sale of the land made in Ratodero town in the year 1973. Applicant/plaintiff is also entitled for interest at the prevailing Bank rate from that date till the payment of compensation is made to him.The parties will bear their own costs. H.B.T./A-67/K Revision allowed.