1974 PLP 411 (SCMR)

(9) Are the facts alleged in para No. 15 of written statement of defends: is true? (10) Are the plaintiffs entitled to the relief sought for? (11) What should the decree be? The parties led evidence. Plaintiff Allah Dino was examined, vide Exh.

40. He deposed that the other two plaintiffs are his brothers. His father Azizullah died in 1951. His father was a fast friend of respondent Saindad. Both of them purchased land in dispute jointly in equal share from the Barrage authorities. According to him, since the time of purchase, at first his father and after his death, he and other two plaintiffs have been in possession of the land in dispute. They have paid the instalments of the land and the land assessment due on it. All the important documents relating to the land in dispute are in their custody. In the year 1955, respondent Saindad executed an agreement, Exh.40‑A, in their favour. Saindad respondent received Rs. 8,000 from them in order to get the Khata mutated in their favour. In the same year, the whole land was partitioned and the plaintiffs got survey Nos. 514/1, 515/2 & 3, 516/1, 2 and 3 and 518/2 measuring 22 acres and 30 Ghuntas. The share which fell to the lot of Saindad was sold by him to Muhammad Hassan Shar and Shamo Khaskheli. After that, there remained no share of Saindad in the land which was taken from the Barrage authorities. He alleged that the plaintiffs were the exclusive owners of the land in dispute. Saindad had sold the share of the plaintiffs as his own property to respondents Muhammad Umar and Adam Khan. He further stated that survey No. 514/1 and 515/2 were mortgaged by Saindad with Shah Mohammad Khaskheli. He produced the mortgage deed Exh. 40‑C and Anjam Exb. 40/D. He further produced 22 bills of assessment Exh. 40/E‑1 to Exs. 40/17‑

22. He produced land revenue receipts, Exh. 40/F‑1 to 40 F‑

40. He produced the application given to the Barrage authorities on behalf of Saindad, Exh 40/G. He further produced notice received from the Barrage authorities, Exhs. 40/E to 40/11‑

3. He produced the original Ijazatnama in the name of Saindad. Exh. 40‑J. He further produced the receipt executed by Shah Mohammad Exh. 40/E, in their favour for the payment of mortgage money. He also produced a receipt of Money Order, Exh. 40‑L for payment of Rs. 42. to Mukhtiarkar. He produced six other notices of instalments vide Exh. 40/M‑1, to 40/M‑

6. The plaintiffs produced Ghulam Kasim, Exh. 41, as their witness. He claims to have cultivated the disputed land as hart of the plaintiffs. He stated that respondent No. 3 had purchased land from the Barrage authorities and Azizullar was partner with him. In cross‑examination, he admitted that he was not present in the Barrage when the land was purchased. In defence, the respondents Nos. 2 and 3 examined Mohammad Adam, Exh. 67, Rahim Dino, Exh. 70 and Mohammad Hassan, Exh. 71: They admitted that the plaintiffs and their father had been in possession of the land in dispute since it was purchased by Sainded as his Kamdars. According to them, the land was purchased by Saindad. Adam stated that he purchased the land by registered sale‑deed from Saindad for Rs. 19,

000. Exh.

68. Before he purchased the land, he consulted the Revenue record in the name of Saindad. He produced its true copy, Exh.

69. He had also enquired from the office of the Sub‑Registrar where it was learnt that the land was not sold. He denied that Azizullah, father of the plaintiffs had 8 annas share in the suit land. He also denied that the land in dispute was given to Azizullah by private partition. He stated that Saindad resided in village Latifabad. The land of Saindad was looked after by Azizullah and aft‑r his death by his sons. He admitted that Azizullah was on friendly terms with Saindad. He further stated that before be purchased the land, Rahim Dino and Mohammad Hassan Shar used to take the produce themselves. He admitted in cross‑examination that since the date of the purchase of the land, the plaintiffs remained in its possession. He also admitted that he did not make any enquiry from the plaintiffs in what capacity they were in possession of the land. P. W. Rahim Dino, Exh. 70, stated that the disputed land belonged to Saindad. He had purchased it from the Barrage authorities in 1939. He had also purchased the land from Barrage authorities. Saindad had borrowed Rs. 500, from him which he repaid subsequently. He knew Azizullah, who was his friend. Azizullah bad purchased the land which is separate from the disputed land. According to him, Azizullah was friend of Saindad and, therefore, he used to look after the disputed land. He further stated that he got the possession of the suit land for five years and got it cultivated and enjoyed the produce. Muhammad Hassan P. W. 3, Exh. 71, stated that the disputed land belonged to Saindad. Azizullah used to look after the disputed land. After him his son Allah Dino looked after the land. According to him, Rahim Dino and he had taken the suit land for 5 years. This happened about seven years back. Saindad had sold two survey numbers to him. There two survey numbers were also purchased by him from Government along with suit land. He is in possession of these two numbers. In cross‑examination, he admitted that the plaintiffs had been in possession of the suit land. Saindad respondent No. 3 was also examined as witness of the plaintiff's. He stated in his examination‑in‑chief that he had friendly terms with Azizullah. He purchased land from Barrage authorities in Deh Bago Daro. Azizullah had 8 annas share in the spit land. He stated that the land was taken in his name because two persons cannot take the land jointly. He paid the first installment. Azizullah had not paid half of that instalment. Thereafter, the half of the installment was paid by him and the remaining half paid by Azizullah. He denied that Exh. 40/D bears his signature. He stated that he had given the Ijazatnama and the agreement to Azizullah for keeping them in safe custody. He also stated that he had got the land partitioned between himself and the plaintiffs. In the partition, the plaintiffs got survey Nos. 516/1, 3, and 4, 518/2, 512/2, 3 and 4 and 514/1. After partition, the plaintiffs were possession of the sail lard. He further stated that he had mortgaged with Shah Mohammad survey Nos. 514/1 and 515‑2 under mortgage deed, Exh. 40/C. According to him, the plaintiffs got the mortgage redeemed. He further admitted in Examination‑in‑Chief that he had sold his share to Shamo and Mohammad Hassan. All the instalments had been paid. According to him, Azizullah was in possession of his land as his friend and Zamindar. He further admitted that he had sold 8 annas share of Azizullah to Umar Tapedar and told him that the land stood in his name and therefore, he was the owner of the land. In cross‑examination, he admitted that he filed written statement, Exh.

34. He further admitted that he mentioned in the written statement that the plaintiffs had nothing to do with the suit land which is his pro perty. He also admitted that he mentioned in written statement that he had made no partition of land with the plaintiffs. He also admitted that he mentioned in the written statement that Azizullah was looking after the land as he was his friend. He also admitted that he sold the land in dispute to Adam for Rs. 19,000 vide, Exh.

68. He admitted that the partition of the land was not reduced in writing. He also admitted that he had leased out whole of the land purchased from Barrage authorities to Rahimdino for five years. He recovered the lease money from him and delivered possession to him. He further admitted that Allah Dino and other plaintiffs had nothing to do with the land which he had mortgaged with Shah Mohammad. He admitted that his village was far away from the suit land and that is why Azizullah used to look after his land. He also admitted that whatever was stated in the written statement is correct. On the evidence of the parties, the learned trial Judge, on issues Nos. 1, 2 and 3, has held that Azizullah and respondent Saindad had purchased the land in equal share as alleged by the plaintiffs and that Azizullah and after his death, the plaintiffs remained in possession of the land. On issue No. 3, he held that it cannot be said that respondent Saindad had executed the Kabuliat. Exh. 40/D, admitting 8 annas share of Azizullah in the land in dispute. Issue No. 4 was decided in favour of the plaintiffs. Issues Nos. 6 and 8 were not pressed. On issues Nos. 5 and 7, it was held that the suit was in proper form and maintainable in law. Issue No. 9 was also decided in favour of the plaintiffs. On issue No. 10, it was held that the plaintiffs are entitled to relief sought for in view of the findings mentioned above. On these findings, the suit was decreed with costs by judgment dated the 11th February 1963. Respondents Nos. 2 and 3 challenged this judgment in Civil Appeal No. 35 of 1963. The learned District Judge, Nawabshah, accepted the appeal and set aside the judgment of the trial Court. He came to the conclusion that Azizullah was not a shareholder in the property in dispute and the property in dispute was rightly transferred to respondents Nos. 1 and

2. The appellants challenged this judgment in Second Civil Appeal No. 207 of 1964. A Division Bench of the High Court, by judgment, dated the 11th August 1964 dismissed it on the ground that the second appeal is concluded by finding of facts and there was no case for interference. Thereafter, the matter was taken to this Court. The judgment of the High Court was challenged in Civil Petition for Special Leave to Appeal No. K‑65 of 1964, and leave was granted by order dated the 10th February 1965, to consider the contention that the High Court was not justified in holding in second appeal that the cast was concluded by finding of fact of First Appellate Court. It was observed that the First Appellate Court had reversed the decision of the trial Court but in doing so did not discuss the evidence fully. This case was argued by Mr. A. H. Pirzada on the Ist September 1970. After bearing him, the appellants were permitted to lead additional evidence to prove Exhs. 40/A and 40/D. The parties were further given opportunity to lead such evidence as they want to lead in support of their case. It was further directed that on receipt of the evidence from the trial Court, Exhs. 40/A and 40/D will be sent to the Government Handwriting Expert for comparison with the admitted signatures of respondent No. 3 Saindad. In pursuance of this order, the parties have produced further evidence. Muhammad Hassan, Exh.71 was recalled and re‑affirmed by the respondent. He stated that he had purchased two survey numbers out of the suit land from defendant No. 3 Saindad which bears survey No. 518‑i. In support of it, he has produced registered sale‑deed, Exh. 70/A dated 16th March 1959. He further stated that he had purchased survey No. 518‑2 from Sainded under a registered sale‑deed, Exh. 71/13 of the same date. He deposed that when he purchased this land and got the possession of it, it was in the possession of Saindad. He admitted in cross‑examination that the remaining land is being cultivated by the plaintiffs. The respondent further examined Haji Nawab, Exh. 98, e stated that the land in dispute was purchased about 25‑30 years ago by Saindad. After the purchase of suit land, Saindad lived on that land for 5‑‑8 years. It remained in his possession and after his departure, it was looked after by Azizullah. In cross‑examination, be admitted that Azizullah and the plaintiffs used to claim and told him that they had share in the suit land. The appellants have produced Wahid Bakhsh, Exh.

93. He stated that originally, the suit land belonged to the deceased Azizullah and respondent No. 3 Sair‑dad. They had equal share in the suit land. Azizullah was in possession of the whole of the suit land. An agreement was executed between him and Saindad in writing in his presence. At present the suit land is in possession of Allahdino, Khadim Hussain and Miral. In cross‑examination he admitted that he had been cultivating the land of Khair Shah. He further stated that he did not know as to whether deceased Azizullah was ever his Kamdar. The appellants further examined Allah Yar, Exh.

94. He also stated that the land in dispute was owned by Azizullah and Saindad. Each had 8 annas share in this land. It remained in possession of Azizullah throughout his life time. About 3‑4 years prior to inception of Pakistan, it was partitioned between them. A document was reduced in writing. It was written by the brother of Wahid Bux. At present the land in dispute is in possession of the plaintiff's. In cross‑examination, he stated that document, Exh. 40/D, was reduced into writing in cattle shed owned by the haris. He admitted that Azizullah was Kamdar of Khair Shah. The appellants examined Bhai Khan, Exh.

95. He stated that the suit land was purchased by Saindad and Azizullah. One document was reduced in writing at their otak about 14‑15 years back. It was written by Saindad in favour of the plaintiffs. In cross‑examination, he stated that the document was written at their otak between Mir Mohammad, Khadim Hussain and Saindad. Rs. 8,000, was paid to Saindad by the plaintiffs and he had given them the land. Plaintiffs had purchased 8 annas share in the suit land from Saindad for Rs. 8,

000. The appellants further examined Ghulam Hyder, Exh.

96. He deposed that the plaintiffs had purchased the suit land from Saindad about 14 years before. He further stated that it was originally purchased by Saindad from the Government. He had 8 annas share. Saindad remained in possession of the suit land. In cross‑examination, he stated that 8 annas share of the suit land was purchased by the plaintiffs from Saindad for Rs. 8,

000. The documents, Exhs. 40/A and 40/D were sent for examination by the Handwriting Expert. He has submitted the report. In his opinion, these documents do not bear the signatures of Saindad, after comparison from the admitted signatures 9f documents, Exh. 34, Exh. 40/C and Exh. 40/E, marked X` Y' `Z' . . Mr. A. S. Pirzada, learned counsel for the appellant has submitted that this evidence is of no use because the Expert has not been. examined in Court. This objection of the learned counsel appears to be well founded. I would, therefore, not take into consideration the report of the Handwriting Expert. Now coming to the merits of the case, it would appear that the case of the appellants is that Saindad and Azizullah deceased were friends and the property in dispute was taken from the Barrage Department in the name of Saindad respondent No.

3. According to them, Azizullah was a partner of Saindad in this land He used to look after the land and paid the Malkana. In support of this, they have produced oral evidence. They have further produced the Ijazatnama of the land in dispute and the document showing that the instalment and the land assessment was paid by Azizullah and Allah Dino. They also relied on the possession of the land and on the admission of Saindad that Azizullah was co‑sharer in the land in dispute of 8 annas share. I have gone through the evidence of the parties and in my opinion, the oral evidence produced by the appellants only shows that Az zullah was in possession of the land in dispute after it was taken from the Barrago authorities and after his death, the plaintiffs were in possession of this land. The documentary evidence further shows that Ajazatnama and some other documents relating to the payment of instalments and land assessment were in the custody of the appellants. In my opinion, this evidence does not lead to the inference, that the land in dispute was held in equal share by respondent Saindad and Azizullah. The statement of Saindad recorded as plaintiffs' witness does not inspire any confidence. He has stated in the written statement that Azizullah was not his partner, that the land belonged to him and that Azizullah was looking after his land as his Kamdar. In the face of this document, his oral testimony in Court that Azizullah was also a co‑sharer in the land in dispute and it was partitioned between the parties appears to be obliging statement in favour of the appellants. There are certain circumstances and pieces of evidence in the case which lead to the inference that the case of the appellants that Azizullah was shareholder in the land in dispute of the property is false. It will be noticed that the appellants have relied on a document, Exh. 40‑A, which shows 8 annas share in the property in dispute was sold to Khadim Hussain and Mir Mohammad for Rs. 8,

000. In the presence of this document, it is difficult to believe the case of the appellants that after the death of their father, they were co‑sharer in the property in dispute, The oral evidence led by the appellants, namely of Bhai Khan, Exh.95, Ghulam Hassan, Exh. 96 also shows that the land in dispute was sold for Rs. 8,

000. P. W. Allah Dino also admitted that Saindad received Rs. 8100, from the appellants in order to get the Khata mutated in their favour. In the beginning, the appellants' case was not that they purchased this land for Rs. 8000. Their case as set up by Exh. 40‑A in paragraph 3 of the concise statement is that in 1954, respondent Saindad had executed a document of acknowledgement in favour of appellants Nos. 2 and 3 acknowledging their share in the land. The oral evidence contradicts this case and in such circumstance no reliance can be placed on such assertion. It will be further noticed that appellant Allah Dino filed a complaint, Exh. 40/S, in which he admitted that he was hari of accused Saindad from the time of 'Khanat' of the land in dispute. He also made similar statement before the Magistrate in Exh. 40/T. It is difficult to understand that if Allah Dino became co‑sharer in the property in dispute why he described himself as hart of Saindad. It is also the case of the appellants that the property in dispute was partitioned in 1955. Under this partition, they got survey Nos. 516‑1, 2 and 3, 515‑2, 3, 514‑1, 518‑1 to their share measuring 22 acres 30 ghuntas. If this was a correct allegation, the appellants would have got their names mutated in the Revenue record. No such mutation was made. On the contrary, it appears that after the alleged partition, out of this land, Saindad under a registered mortgage deed, Exh.40/C, dated the 11th April 1955 mortgaged Nos. 515‑2 and 515‑1 for Rs.8000. in favour of Shah Mohammad. This document clearly shows that the case of the appellants about partition is a faked one. In this document, it is clearly stated that this land had not been given to any one in any way or had been disposed of in any other manner. There are two other documents, Exh. 70/A and Exh. 70/B which further support the conclusion. Exh. 70/A is a sale- deed in favour of Muhammad Hassan of block No. 518‑2 in consideration of Rs. 4000, by registered sale deed‑dated the 16th March 1,

59. Exh. 70/B is also the sale‑deed in favour of Muhammad Hassan in respect of survey No. 518‑2 measuring 3‑1 acres dated 16th March 1959. In 199, before the suit was filed, Saindad made the following assertion in the said document:‑

"I, the executant own land in Deh Bago Daro taluka Kandiaro, Sub‑District Naushahro Feroze, Registration District Nawabshah. The Khatta thereof is entered in my name in the record of rights. It is not under any encumbrance. There are no Government dues against it. None else has share or right therein. It was not previously sold or mortgaged, nor was it purchased from any non -Muslim on or after 1st March 1947. By this transaction, the M. L. R. No. 64 is not violated. If it is so the transaction may be deemed null and void. The land is in my possession without any restriction. I own about 36 acres of land out of which Block No. 518‑2 area 3‑1 acres entirely belongs to me and I have every right to dispose it off." The statement made in the said registration sale‑deed clearly shows that Saindad has admitted in this statement that he was the owner of the entire 36 acres of land. This is an important piece of evidence and in my opinion, it clearly shows that Azizullah or the appellants had nothing to do with the land in dispute. After carefully considering the evidence of the parties, I am of the view that the case set up by the appellants is self‑contradictory and they have failed to establish that Azizullah was equal shareholder in the land in dispute. The mere fact that Azizullah was in possession or paid the instalment does not lead to the conclusion that he was a co‑sharer in the property in dispute. The evidence shows that the instalment which he paid was out of the produce of the land. He did not invest any amount. In these circumstances, the finding of the District Judge that Azizullah was a friend of Saindad and that he was looking after the land as his Kamdar appears to be fully supported by the documentary evidence in the case. In my opinion, no reliance can be placed on the evidence of Saindad. He is a false witness. He made obliging statement in favour of the appellants His statement is contrary to the assertion made by him in authentic' documents. I would, therefore, hold that the District Judge was perfectly justified in coming to the conclusion that the appellants had no interest in the property in dispute. In the result, I would dismiss the appeal with costs. HAMOODUR RAHMAN C. J. ‑I agree. MUHAMMAD GUL J.‑I agree. Appeal dismissed.