1985 PLP 177 (MLD)

This second appeal has challenged the Judgment and decree of First Class Civil Judge, Larkana, dated 31-1-1969 in Suit No.8/66 and the appeal and decree of Additional District Judge, Larkana, in Civil Appeal No. 12 of .1969 dated 31-3-1970.

2. The appellants have filed a suit for declaration and injunction claiming that S. Nos. 87, 96/1, 97 arid 110/1 in Deh Khairwah, Taluka Dokri, has been purchased by them on 17-6-1940 from Ghanshumal, Govindram, Lai Bux, Khan Muhammad and Tagio by air agreement executed by the sellers and the appellants were put in possession oaf the same. survey No.96/1 and 97 were allotted in the year 1961 to some claimants but were restored to the plaintiffs on the ground that they were Muslim properties. However, in November 1963 the Deputy Collector, Larkana, ordered that the revenue record be changed in the names of Ghanshumal and Govindram. The appeal filed by the appellants before Deputy Commissioner was rejected on 3-1-1966. There after the appellants filed their suit. Respondents Nos.4, 5 and 6 contested the suit and alleged that the appellants had been in unauthorised occupation of the said property and the property had vested with Custodian, suit was alleged to be bad for non-joinder and barred. Different issues were framed, whether tile suit property belonged to the defendants Nos.2, 3 and predecessor of defendant No.l and whether tire agreement dated 17-6-1944 had been executed in favour of the plaintiff and possession delivered to Trim and whether the land wits evacuee property and further whether S.No.96/1 and 97 were inadvertantly allotted to claimant but then restored to the plaintiff another important issue was whether order of Deputy Collector ordering revenue record to be changed in the name of defendants No.2 and .3 was illegal, apart from other legal issues.

3. The appellant examined himself in support of his case arid produced the agreement dated 17th June, 1940 Exh.44 and the copy of the record of rights. Exh.44 was found- to be burnt at some place. Since the describe and the attesting witnesses of the agreement had not been produced, therefore; the Civil Judge did not believe the oral evidence of the appellant. In tile alternative the civil Court relying upon section 64 of the Transfer of Property Act held that sit the agreement in question appeared to convey the property in question and it was for a value of RS.100 and had not been registered, therefore, it did not confer any title upon the appellant. It was also observed that a mere agreement of sale does not convey any title upon any person.

4. The Civil Judge further held that tile appellant had failed to establish that the disputed land belonged to Ghanshumal, Govindram, Lai Bux, Khan Muhammad and Tagio and in this respect he relied upon tile entries in V.F.VI, Exhs. 57, 58, 59 and 60 which showed that the disputed survey numbers did not belong to the person who were alleged to have executed the sale agreement for the sale of the land under, dispute. The entities showed that S.No.87 belonged to Mewalmal and Ghanshumal, S.No.97 to Sagnomal S.No.110/1 to Parialdas and Chandumal while only S.No.96 belonged to Govindram and Ghanshumal. The persons who had executed the agreement of sale in favour of the appellant had migrated to India and no one had formally proved that they had executed the said document. The word of appellant alone was not considered sufficient, It was further, held that since the previous owners have migrated to India and the appellant had remained in unauthorised occupation of the said land therefore it was a concealed evacuee property and could have been treated as such. Civil Judge further found discrepancy between agreement Exh.44 which showed tile appellant as purchaser from the persons mentioned earlier and Form No. VII where it was shown that the appellant had become the owner of the land by grant from the Government in the year 1952 arid therefore: it was held that fraudulent entry had beers made in Khata of Sultan and therefore the said entry did not prove Sultan to be tile owner of the said land. It was further found that the entry in tile Khata favour of Sultan was in different ink and therefore doubtful.

5. The Additional District Judge has come to the conclusion that the agreement Exh.44 is burnt at the place of issue on non-judicial stamp paper and at the place where the name of the purchaser are to ire written. Further he found that the describe as well as the attesting witnesses have either migrated to India or were dead and tie disbelieved the oral word of the appellant in respect of the execution of the agreement or in proof of its contents and hence the agreement was not found to be proved. He further held that the agreement was hit by section 54 of Transfer of Property Act and therefore it did not confer any title of ownership oil the appellants and further that it was not admissible in evidence. The learned Additional District Judge concurred with the finding of Civil Judge that tile land in suit was riot found t: belong to Ghanshumal, Govindram, Lai Bux, Khan Muhammad anti Tagio. On the basis of evidence of Muhammad Bux, Head Munshi' of Qambar Taluka, who had produced revenue record, it was found proved that the land did not belong to the persons who had allegedly exec ruled Exh.44: The appellant was found to have failed to prove the existence original rights in favour of the transferor and therefore Exh.45 which was an entry of record of' right in favour of tile appellant wits not regarded as sufficient to prove tile ownership of the land in the appellant. The Additional District Judge concurred with tile Civil Judge the finding that the mutation made by revenue authorities in favour of the appellant in respect of the disputed land had been made collusion with revenue authorities and therefore it did not confer all, right of ownership upon the appellant.

6. Mr. G.H. Abbasi, learned counsel for the appellate, had submitted that the appellate order was trot in accordance with rule 31 of Order XLI, C.P.C. and therefore it was vitiated. The argument of the learned counsel is merely technical. The Additional District Judge has of hours, not dealt with every issue separately but otherwise he has dealt with the entire case as a whole and had taken into consideration the various issues in a consolidated manner. There is no contention advanced that any prejudice has been caused to titre appellant by consideration of the matter as a whole.

7. Mr. Abbasi then further submitted that tire appellate Court has merely reproduced the judgment of the Civil Judge without in any manner giving his own appreciation of the case. The submission of the learned counsel is correct to the extent that the language the appellate Court is similar to the language-used by the appellate Courts but otherwise there appears to be scrutiny of the case having been made by the appellate Court. The finding that the agreement is burnt at two crucial places is factually correct. The finding that Exh.44 has not been executed by the persons who were alleged to have executed the same is again a question of fact. Mr. Abbasi had never, submitted that since Govindmal and Ghanshumal had migrated to India and Lal Bux, Khan Muhammad and Tagio had died and the scribe of the agreement had also migrated to India then in these circumstances the statement of the appellant Sultan should have been accepted to be correct. This is a fair agreement and if the two Courts below had accepted the statement of Sultan in this respect there could hardly be my basis to challenge the same but the two Courts below have refused the word of Sultan in this respect and they have given the additional reason apart It from disbelieving the oral statement of the appellant to the personal, who had signed upon Exh.44 were not proved to be the real owners of the land according to the record of rights and in these circumstances the two Courts below were justified in disbelieving the agreement of sale.

8. The view of the two Courts below that mere agreement of sale could not transfer' any right in favour of the appellant is in accord with law and the Civil Judge has particularly cited relevant law in support of his view I L R 1929 Mad.

326. File same is a correct view.

9. The evidence of Muhammad Bux, Head Munshi, was not attacked by the appellant on the basis of any mala fides and this evidence of Muhammad Bux has shown that upto 1954 tire property was treated in the record of rights as belonging to different persons the names of three Muslim transferors did not appear and in respect of the Hindus, Mewalmal, Sugnomal and Chandomal had their shares in the disputed survey numbers and these persons are not the persons from whom the appellant acquired any interest under the agreement of sale and therefore the very basis of title is found to be missing.

10. Another factor on the basis of which the claim of the appellant was disallowed wits that the V.F.VlI in his favour mutated in 1955 showed that lie had acquired lire property as a grant from the Government while the appellant's claim is based upon an--merit of sale, and therefore there is an apparent contradiction made by the appellant in the suit and the claim recognized in the record of rights. I further find that the claim of the appellant was first negatived by the Deputy Collector on 26-2-1965 where the finding is based upon the failure of Sultan to produce any document in respect of the disputed survey numbers. The view of the Deputy Collector was affirmed by the Deputy Commissioner on 3-1-66 where a finding was reached on appeal of Sultan that the entries in favour of Sultan in V.F.VII were nothing but it fabrication of record rind forgery. These findings (rave been reaffirmed by the Civil Judge as well its the Additional District Judge on the basis of the documents and revenue records.

11. The findings are findings of facts and the same being concurrent findings of the two lower Courts below are riot open to any serious objection and hence this second appeal is dismissed with costs. A. A. Appeal dismissed.