2007 PLP 980 (SCMR)

RANA BHAGWANDAS, J.

This petition for leave to appeal is directed against concurrent findings of fact arising out of a suit for declaration and permanent injunction and alternatively for recovery of Rs.24,000 from the private respondents.

2. Petitioner filed a suit on the averments that he had purchased the suit-land through registered sale-deed dated 27-6-1974 from respondents Nos.8 and 9 for valuable consideration, who had purchased the land from respondent No.10 to whom it was allotted by way of transfer against her verified claim. On scrutiny of record, it was noticed by Deputy Commissioner Sanghar that Mst. Bashiran respondent No.10 had no right, interest or title to the land, therefore, she could not validly transfer any title in favour of respondents Nos.8 and

9. He, therefore, cancelled entries in the record of rights in their favour. The suit, after contest, was decreed by learned Civil Judge for the relief of declaration and permanent injunction vide judgment, dated 19-10-1991. Respondents Nos.6, 7 and 11 challenged the judgment and decree in appeal before an Additional District Judge, who, on reappraisal of evidence and re-evaluation of record, allowed the appeal and dismissed the suit of the petitioner on the premise that Mst. Bashiran had no valid title, therefore, she could not transfer any title to respondents Nos.8 and 9 better than what she possessed. As to the plea that the petitioner was not heard by Deputy Commissioner, Sanghar before cancelling the entries in the record of rights in favour of the claimant and subsequent transferees, Appellate Court explained that indeed the original transferee had been called upon to show cause and provided an opportunity before the cancellation of the entries. It was concluded as finding of fact that there was no entry in the RL-II Register and Khatooni in favour of Mst. Bashiran, therefore, the transfer in favour of respondents Nos.8 and 9 and subsequent sale in favour of the petitioner was void and illegal. Appellate Court judgment was assailed in Civil Revision Application No.40 of 1996 by the petitioner, which has been dismissed vide judgment, dated 4-4-2006 impugned in this petition.

3. We have heard Mr. Akhlaq Ahmad Siddiqui, learned Advocate-?on-Record for the petitioner at sufficient length and examined the record as well as the impugned judgment. In our opinion, findings of fact recorded by Additional District Judge do not suffer from misreading of record, misconstruction of evidence, misconception of law or error of jurisdiction. In the exercise of its appellate jurisdiction, learned Additional District Judge was fully competent to discuss and dilate upon the merits of the evidence and arrive at a conclusion different from the one arrived at by the trial Court. The reasons recorded by learned Additional District Judge for arriving at a finding against respondents Nos.8 and 9 as well as Mst. Bashiran are neither perverse nor defective with the consequence that High Court in its revisional jurisdiction did not find it a fit case for interference and endorsed such findings. In fact learned Additional District Judge in the paragraph dealing with issue No.3 has summed up the controversy and arrived at a conclusion, which cannot be disturbed or destroyed. This paragraph may be reproduced for the sake of convenience, which answers all the questions raised before the High Court in the exercise of its revisional jurisdiction:-- "It is not in dispute that respondent No.9/plaintiff had purchased the land in dispute through registered sale-deed from the original transferee and his name appeared in the Revenue Record and he would have been joined as the party in the cancellation proceedings, which was not done and it is also clear that the respondent No.9/plaintiff was not heard before the impugned order was passed, hence it can be said that the respondent/ plaintiff was condemned unheard. However, a question arises whether respondents/defendants Nos.8, 9 and 10 were genuine allottees of the land and whether they were heard while passing cancellation order. In the present case the original transferee had participated in the cancellation proceedings as admitted by respondent/defendant No.8. Shamshad Ali in his evidence. So far the question of non-joining the respondent/plaintiff as party is concerned, it is evident from the evidence of P.W.2 Shamshad Ali that he did not inform the Deputy Commissioner at the time of hearing of proceedings about the sale of the land to respondent No.9/plaintiff. The claim of Mst. Bashiran is considered by the Deputy Commissioner as bogus and on the basis of the said order, his claim was cancelled but no such evidence is produced to prove that the claim of Mst. Bashiran was genuine. No such document i.e. RL-II and Khatooni is produced. If the order of cancellation and the date on which the same was passed was not in knowledge of the respondents/plaintiffs at the time of filing of suit even then it would have been summoned at any stage of the suit after coming into knowledge of Exh.66 produced by appellant/defendant No.7 showing the number and orders passed by Deputy Commissioner. On the .other hand, Exh.67 is produced which is certified copy of RL-II showing S. No. in the name of appellant/defendant No.6 signed on 20-1-1962 which proves that the same was allotted much prior to the date when the repeal Act came into force with effect from 1-7-1974. Whereas the sale-deed in favour of respondent/plaintiff is executed on 27-6-1974. The respondent/plaintiff has not discharged the burden of proof. No evidence is produced that defendants Nos.8, 9 and 10 were the genuine allottees of the land in dispute, as such the respondent/plaintiff had failed to clear the title of the original transferees."

4. After close scrutiny of the record, we are inclined to endorse the view taken by High Court as in our considered opinion, no ground for grant of leave is made out,. Consequently, this petition must fail and is hereby dismissed. ?M.H./M-215/SC???????????????????????????????????????????????????????????????????????????????? Petition dismissed.