2005 PLP 2602 (YLR)

The respondents Nos.2, 4 and 5, namely, Nazir, Muhammad Khalil and Muhammad Saeed have not appeared despite service. They are, therefore, proceeded against ex parte. Sanaullah (respondent. No.6) is present in person. He states that he does not wish to engage counsel because he has no interest in this litigation. He further confirms that he has no objection against the impugned order dated 10-3-2001 passed by the learned District Judge, Bhakkar.

2. The petitioner/defendant, namely, Muhammad Shafique impugns the concurrent decrees of the learned trial Court dated 17-12-1995 and of the learned appellate Court dated 10-3-2001, whereby a suit for specific performance and injunction filed by Muhammad Bukhsh respondent/ plaintiff (now represented by his L.Rs.), has been decreed.

3. The facts of this case are straightforward. The dispute between the parties relates of Ihata No.71 in Chak No.61/ML, Tehsil and District Bhakkar. The case set up by the respondent/plaintiff is that one Abdul Ghani predecessor of Nazir (respondent No.2) was joint owner of the aforesaid Ihata and that he vide agreement (Exh.P.1), dated 2-4-1986 had agreed to sell one half of the aforesaid Ihata to the respondent/plaintiff. To support his case, the respondent/plaintiff produced the agreement (Exh.P.1), a receipt (Exh.P.2) of the same date as the agreement and a Fard Taqseem (Exh. P.3) also dated 2-4-1986.

4. The defence set up by the petitioner was that Ihata No.71 originally belonged to the Province but the same had been allotted to the petitioner vide Sanad (Exh.D.2), under the Jinnah Abadi Scheme, 1986. The petitioner/defendant produced Jamabandi for the year 1986-87 from which it is obvious that the Provincial Government was the owner of Ihata No.71. From Exh.D.2, referred to above, it is established that the said Ihata was allotted to the petitioner. Seven Marlas, in accordance with the Jinnah Abadi Scheme, were allotted to the petitioner free of cost while he paid a sum of Rs.2,963 for 1 Kanal and 13 Marlas. Payment of this amount has been proved through the certificate (Exh.D.3). The petitioner did not dispute execution of the agreement (Exh.P.1) or the receipt (Exh.P.2). His defence was posited on the short ground that Abdul Ghani, the alleged vendor and executant of the said documents, was not vested with title in the suit Ihata. It was specifically pleaded that Fard Taqseem (Exh.P.3) was a forged and fabricated document.

5. The learned trial Court framed as many as nine issues including that of relief. The crucial issues, dispositive of this case, are issues Nos. 1 and I-A, which were in the following terms:-- (I) Whether Abdul Ghani deceased predecessor-in-interest of defendant No.5 was owner of the disputed Ahata? OPP (I-A) Whether the order of allotment on the basis of Sanad No.0254413 issued by the A.C. Bhakkar in favour of the defendant is unlawful, fraudulent, void and inoperative against the rights of the plaintiff? OPP

6. The parties led evidence on the issues. The learned trial Court held that a presumption of truth was attached to the Fard Taqseem wherein Abdul Ghani was shown as one of the allottees of the disputed Ihata. This finding is contrary to law because no presumption of correctness attaches to the Fard Taqseem. This is particularly so when for valid reasons discussed below the authenticity of the Fard Taqseem (Exh.P.3) was impugned by the petitioner. Upon a specific question addressed to him, learned counsel for the respondent/plaintiff conceded that there was no order passed by any Revenue Officer to justify the entry of Abdul Ghani's name in Fard Taqseem (Exh.P.3).

7. The petitioner drew the attention of the learned trial Court to the Jamabandi for the year 1986-87 (Exh.D.1) which, as noted above, shows the Province as the owner of the disputed Ihata. This document, however, was brushed aside by the learned trial Court on the ground that the entry in the Fard Taqseem dated 2-4-1986 could not have been reflected in the Jamabandi (Exh.D.1) because the said Jamabandi was based on entries which had taken place prior to its preparation. This observation is also misconceived because it was for the respondent being plaintiff, to produce affirmative documentary evidence such as an order of a Revenue Officer to show that title in the disputed Ihata stood validly transferred from the Province to Abdul Ghani. In the absence of such documentary evidence I am not in any doubt that Issues Nos. I and I-A, the onus probandi of which was on the respondent/plaintiff, was not discharged by him. The suit, therefore, should have been dismissed. In the circumstances, the decree of the learned trial Court is not sustainable.

8. I next take up for consideration the judgment and decree of the learned Appellate Court. During the pendency of the appeal, in order to cover the observation of the learned trial Court in relation to the Jamabandi (Exh.D.1), the petitioner sought permission to produce Exh.D.4 which was the Jamabandi for the year 1994-95 by way of additional evidence. This permission was granted by the learned Court vide order dated 9-2-2001, subject to payment of Rs.500 as costs. It was noted in this order that the respondent did not desire to produce any evidence in rebuttal. I have seen the Jamabandi for the year 1994-95 (Exh.D.4). In the said Jamabandi also the Province is shown as owner of Ihata No.71. The learned Appellate Court has not even cared to read Exh.D.4. It has merely observed, without giving any reason, that the said document is not relevant to the dispute between the parties. This observation of the learned Appellate Court is quite extraordinary. A presumption of correctness attaches to the document (Exh.D.4), as noted above, the respondent/plaintiff did not produce any evidence to rebut this presumption Exh.D.4 is relevant because it directly proves the defence set up by the petitioner that Abdul Ghani had no title in the disputed Ihata which he could have conveyed through the agreement (Exh.P.1). The appellate judgment is, therefore, a result of non-reading of the record and the failure of the learned Appellate Court to take note of material evidence. The appellate judgment is also, therefore, a result of illegal exercise of jurisdiction. It is, therefore, set aside. In view of the foregoing discussion, the suit of the plaintiff is dismissed with costs throughout. M.H./M-1112/1 Revision allowed.