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Petitioner: Mir GHULAM HYDER KHAN TALPUR and others VS Respondent: Mst. HIDAYAT KHATOON and JUDGMENT
Court Name: Sindh High Court Judge(s): Anwar Zaheer Jamali Title:Mir GHULAM HYDER KHAN TALPUR and others vs Mst. HIDAYAT KHATOON and
JUDGMENT
Reported As: 2004 YLR 3296 Result: Revision dismissed Judgment JUDGMENT The applicant, Mir Ghulam Hyder Khan Talpur (now represented through his legal heirs) has preferred this civil revision application under section 115, C.P.C. Against the judgment and decree dated 15-1-2001 and 8-2-2001 respectively passed by learned IIIrd Additional District Judge, Hyderabad in Civil Appeal No.151 of 1999, whereby he allowed such appeal, set aside the judgment and decree dated 16-10-1999 and 3-11-1999 respectively, passed by learned Ist Senior Civil Judge, Hyderabad in F.C. Suit No.324 of 1993, and decreed the suit of respondent No. 1. 2. Briefly stated, the facts leading to this litigation are that on 13-9-1993 respondent No.1 instituted a suit for partition, separate possession, permanent injunction and compensation against the applicant in respect of property bearing C.S. Nos.34/128, 34/129, 34/130 and 34/131 total admeasuring 311-01 sq. Yds. Situated in Amil Colony, Ward-A, Hyderabad hereinafter referred to as "suit property") claiming herein 33 paisa ownership share. She pleaded such title in the suit property by way of oral gift in her favour from her husband and joint undivided possession with applicant as other co-owner, and prayed for following reliefs:-- (a) That this Honourable Court may be pleased to pass decree for partition and separate possession of property in suit and order the defendants to put the plaintiff in separate possession of her share of 33 paisa in property in suit by separate metes and bounds. (b) That this Honourable Court may be pleased to issue permanent injunction against the defendants restraining them from transferring or encumbering the property in suit in any manner whatsoever and from making any changes in construction of property in suit.
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(c) That this Honourable Court may be pleased to order defendants to pay the compensation for use and occupation to the plaintiff from August, 1993 at the rate of Rs.2,000 per month to the plaintiff till the plaintiff is put in separate possession of the property in suit. (d) Cost of suit be borne by tke defendant. (e) Any other relief. 3. On filing of written statement dated 26-9-1993 by the applicant it came to the knowledge of respondent No.1 that applicant had entered into an agreement of sale dated 20th January, 1992 with respondent No.2, therefore, an application for joining respondent No.2 as party to the suit was flied by respondent No.1 on 19-1-1994, which was allowed vide order dated 16-10-1994 and consequently amended plaint joining the respondent No.2 as defendant No.2 in the suit was filed in the suit on 26-10-1994. 4. In his written statement applicant Mir Ghulam Hyder Talpur raised several legal pleas challenging the maintainability of the suit. He also denied the claim of respondent No.1 in respect of suit property to the extent of her 33 paisa share, on the premises that initially he had purchased the suit property in his exclusive name in the year 1963 by a registered deed. Thereafter in the year 1964 under a family arrangement it was gifted to his father and two brothers Mir Ghulam Sarwar Talpur and Mir Ghulam Akbar Talpur. The husband of respondent No.1, but later on such proposal did not materialize, therefore, there was no acceptance of gift or delivery of possession. However, mutation of gift was effected in the Revenue Record on 26-3-1964. The applicant thus pleaded exclusive ownership of suit property in his name and in his regard also made reference to the subsequent gifts made by his father Mir Rasool Bux and brother Mir Ghulam Sarwar in his favour in the year 1983, whereby 67 paisa share in the suit property was reverted in his favour. He also stated about the agreement of sale of suit property with respondent No.2 in terms of the agreement of sale-deed 20th January, 1992. 5. The respondent No.2/defendant No.2 in his written statement supported the claim of the applicant/defendant No.1 and justified the agreement of sale dated 20th January, 1992 in his favour for valuable consideration of Rs.8,75,000, of which Rs.6,50,000, have already been paid by him to the applicant. He also pleaded that vacant physical possession of the suit property was handed over to him and he is in exclusive possession of suit property in pursuance of such agreement of sale. The respondent No.2 also made reference to another additional agreement of sale dated 25th May, 1992 and filed photostat copies of such agreements alongwith his written statement. 6. On the above pleadings of the parties learned 1st Senior Civil Judge, Hyderabad framed following issues in the suit on 4-7-1995:-- (1) Whether the suit is not maintainable in law? (2) Whether the suit is time-barred? (3) Whether the ,suit is not in proper form? (4) Whether the suit is undervalued? (5) Whether the plaintiff is owner of 33 paisa share in the suit property? (6) Whether the plaintiff is in joint possession of the suit property with the defendant? (7) Whether the gift of 1/3rd share of the suit property to Mir Ghulam Akbar husband of the plaintiff, by plaintiff was illegal and the same was valid gift, and binding of the plaintiff? (8) Whether Mir Ghulam Akbar made gift in favour of his wife, the plaintiff is legal, valid and having force in the eye of law? (9) Whether the defendant is complete legal owner of the property and continues to be in possession of the same? (10) Whether the defendant is entitled for the compensation if yes, what rate and period? (11) What should the decree be?
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7. At the stage of evidence, from the side of respondent No.1/plaintiff, she examined her husband and attorney Mr. Ghulam Akbar Talpur as Exh.67, who produced documents Exhs.68 to 73/A, and her side was closed by statement Exh.74, dated 8-7-1997. The applicant/defendant No.1 in his evidence examined himself as Exh.80 and produced documents Exhs.81 to 96 and his side was closed vide statement Exh.97, dated 10-4-1998. 8. From the side of respondent No.2/defendant No.2, he examined himself as Exh.100 (as stated by learned counsel, in the deposition form his name was wrongly typed as Riaz Muhammad) and his side was closed vide statement Exh. 101, dated 15-5-1999. 9. The learned 1st Senior Civil Judge, Hyderabad after hearing the arguments of learned counsel for the parties passed the impugned judgment dated 16-10-1999 wherein he recorded his findings on various issues against respondent No.1 and consequently dismissed her suit with no order as to costs. 10. The respondent No.1, challenged the judgment referred above by preferring Civil Appeal No.151 of 1999 before the District Judge, Hyderabad, which was heard by learned 3rd Additional District Judge, Hyderabad, who by his impugned judgment reversed the findings of the lower Court on various material issues in favour of respondent No.1 and consequently allowed the appeal and decreed her suit. 11. I have heard the arguments of learned counsel for the parties at length. 12. Mr. Naimatullah Soomro learned counsel for the applicant after giving detailed facts about the case of the parties vehemently contended that the applicant had never accepted the validity of the original gift purportedly made by him in favour of his father Mir Rasool Bux and two brothers Mir Ghulam Sarwar and Mir Ghulam Akbar on the grounds that it was made under a family arrangement which did not materialize and that there was no acceptance of such gift by the donees or delivery of possession to them which were the two pre-conditions for the validity of such gift, therefore, the claim of respondent No.1 under the subsequent gift dated 13-10-1991, which flows from the original gift of 1964 is void and not tenable in law. He urged that the burden of proof as to the validity of gift pertaining to the year 1964 was heavily on the shoulders of respondent No.1/plaintiff but she even did not bother to appear herself in the witness-box, He further urged that non-appearance of the plaintiff in the witness-box, without any valid reason to support her own claim is fatal to her case and such position is not changed due to the examination of her husband and attorney. As to the question of non-delivery of possession learned counsel submitted that the burden of proof that whether at any point of time possession of any portion of gifted property was delivered to the husband of respondent No.1 was also on the plaintiff side but except the oral word of Mir Ghulam Akbar, attorney of respondent No.1, no witness of the locality was examined or any other material was brought on record to substantiate such claim. Learned counsel also strongly disputed the plea of joint possession raised by the plaintiff in this regard. Reverting to the question of maintainability of the suit he contended that the power-of-attorney on the basis of which suit was instituted by respondent No.1 through her husband was not in accordance with the requirement of Order 3, rules 1 and 2, C.P.C. And rule 85 of Sindh Civil Court Rules, therefore, the suit was not maintainable in law. He also submitted that the suit was hopelessly time-barred as respondent No.1 had never remained in possession of the suit property and no valid gift was executed in her favour by her husband without delivery of possession. Learned counsel also made reference to documents Exh.86, an affidavit purportedly executed by Mir Ras000l Bux father of the applicant, to substantiate his claim about the ostensible nature of the gift entry of 1964 in the city survey record, which, according to him, otherwise also does not confer any title or interest in favour of the party, as the factum of ownership is to be proved independently. In support of his arguments as to the proposition of burden of proof and legal value of entries in the record of rights learned counsel placed reliance on the following cases:--
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(1) National Bank of Pakistan v. Wadhu Mal through his Legal Heirs and 2 others 1985 CLC 1053. (2) Amirullah through Legal Heirs v.. Surat Ali and 17 others PLD 1991 Pesh. 29. (3) Abdul Nabi and 29 others v. Jan Muhammad and 26 others 1998 CLC 1842. (4) Muhammad Ishaq and another v. Mst. Gazala Riaz and 8 others 1997 SCM R 974. (5) Mst. Bibi Sayera v. Misri Khan and others 2002 CLC 300. 13. In the first case, which was a rent case, it was held that issues are to be decided by preponderance of evidence and where there is a word against word in evidence, party on whom burden lies, must fail. In the second case, with reference to Article 118 of Qanun-e-Shahadat Order, 1984, relating to the burden of proof, it was observed that a party could only succeed on the strength of his own case, both oral and documentary, and could not avail of the weakness of opponents case, even if there was any. In the third case, it was observed that it is well-settled principle of law that entries in the Record of Rights do not confer any right/title but only carry a presumption and the party in whose favour such entries are recorded has to establish its title by adducing evidence. It was also observed that in case there are conflicting judgments of the trial Court and Appellate Court then judgment of Appellate Court is to be given weight unless same was not supported by legal evidence or was based on surmises and conjectures. In the fourth case, it was held that it is a well-settled legal principle that mutation is not a document of title. In the last case, view that mutation is not a deed* of title was reaffirmed. 14. Mr. Soomro also argued that the overall assessment of oral evidence adduced by the parties goes to show. That there is only word against word and in such circumstances following the dictum laid down in the case of M. Saeed Sehgal v. Kazi Khurshid Hassan, Proprietor India Film Bureau PLD 1964 SC 598, the party on whom the burden of proof lies must fail. In the context of non- maintainability of the suit with reference to the power-of-attorney executed by respondent No.1 in favour of her husband Mir (lliulam Akbar and legal value of evidence of attorney in the absence of evidence of the party, learned counsel placed reliance on the two following cases:-- (a) Abdul Hameed Khan Mrs. Saeed Khalid Kamal Khan and others PLD 2004 Kar. 17. (b) Mehboob Alam v. Miss Tehseen Shafqat Khan and others PLD 2001 Kar. 238. 15. In the former case it was held by learned Single Judge of this Court that mere mentioning of name of the attorney in the title of the plaint was not enough to prove that the suit was competently instituted as title of the suit can never be treated as part of the plaint. It was further observed that when the -fact of authorization through power-of-attorney was not pleaded in the plaint then the signatory of the plaint was not authorized to sign and verify the plaint and consequently suit was not instituted competently. In the latter case which was a rent case relating to the ejectment proceedings on the ground of personal need of the landladies it was held that examination of attorney in the absence of direct ascertain of landladies for their requirement was not sufficient to prove the plea of personal need of the landladies. 16. In the end learned counsel criticized the judgment of the Appellate Court against the applicant on the grounds of misreading and non-reading of evidence and that the procedure as prescribed by Order, 41, rule 31 was not followed by the Appellate Court inasmuch as instead of framing the points for determination in appeal and deciding it, the Appellate Court had opted to discuss the case issue-wise as contemplated and provided under Order 20, rule 5, C.P.C,, which regulates the procedure before the original Court. Learned counsel was, however, unable to demonstrate from the record any particular instance of misreading or non-reading of evidence by the Appellate Court or that any prejudice was caused to the applicant due to the failure of the Appellate Court in
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following the produce prescribed under Order 41. Rule 31, C.P.C. And deciding the appeal on the basis of its issue-wise findings. 17. Mr. Abdul Hai Khan Pathan, Advocate for reTondent No.2 adopted the arguments of Mr. Naimatullah Soomro, as noted above, with the addition that despite joining respondent No.2 as defendant No.2 in the suit in terms of the order dated 16-10-1994, the respondent No. 1 /plaintiff has not sought any further amendment in the plaint to seek any relief against him. He also urged that in view of the valid subsisting agreement of sale executed between the applicant and respondent No.2, coupled with paynient of substantial amount towards sale consideration and delivery of possession, valuable. Rights have been created in favour of respondent No.2 and due to the failure of respondent No.1 in seeking any relief in this regard her suit against respondent No.2 must fail. While concluding his arguments, without prejudice to his earlier submissions, he also extended an offer on behalf of respondent No.2 that heirs willing to pay 1/3rd share of agreed sale consideration amount directly to respondent No.4 if she agrees to abide by the terms of the two sale agreements executed in his favour by applicant, to the extent of her share in the suit property. 18. Conversely, Mr. Jhamat Jethanand, Advocate for respondent No.1 referred to the undisputed documents placed on record by the parties to demonstrate the falsity of the case set up by applicant to defeat the lawful claim of respondent No.1 to the extent of her 33 paisa share in the suit property. Referring to the certified true copies of city survey extracts brought on record by the parties as Exh.59 to Exh.69/C and Exh.82 to Exh.85 he contended that perusal of these documents shows that it is undisputed position that gift in respect of the suit property had taken place in the year 1964 in favour of Mir Rasool Bux Talpur, Mir Ghulam Sarwar and Mir Ghulam Akbar. This fact is further confirmed from other documents produced by the parties which show that two of the earlier donees Mir Rasool Bux and Mir Ghulam Sarwar had subsequently made another gift to the extent of their joint 67 paisa share in the suit property in favour of applicant on 29-1-1983 and on that basis applicant has again acquired title in the suit property to that extent. He also made reference to the sale agreement dated 20th January, 1992 executed by applicant Mir Ghulatn Hyder Talpur wherein he had categorically stated about the ownership of suit property in favour of Mir Ghulatn Akbar vide gift entry dated 25-3-1964 and his ownership in the suit property to the extent of 67 paisa share on the basis of subsequent gift dated 29-1-1983. Learned counsel also made reference to the photostat copy of another sale agreement of Same date viz. 20th January, 1992 which was got produced through applicant in his cross-examination as Exh.96 to show that in this agreement Photostat copy whereof was filed by the applicant alongwith his written statement, it was clearly stated and conceded by applicant that respondent No.l's predecessor-in- interest/husband Mir Ghulam Akbar was owner of 33 paisa share in the suit property., He urged that it was for this reason that dishonestly such original agreement was not placed on record at latter stage and another agreement of same date was got prepared and produced in Court as Exh.93. With reference to the affidavit Exh.86 filed by the applicant in Court, he contended that the genuineness of this document was seriously questioned by the respondent No.1 but the applicant did not bother to prove the execution of this document as per the requirement of relevant provisions of Qanun-e-Shahadat Order, 1984, by examining the attesting witnesses of the agreement, the person who had attested this document or the scribe of the document. 19. Mr. Jhamat Jethanand contended that as a matter of fact the Court of learned 1st Senior Civil Judge had wholly misunderstood the case of the parties and based its finding on conjectures and misreading of evidence but all these illegalities have been cured by the Appellate Court in its impugned judgment, wherein correct legal position on various law points has been visualized and the evidence adduced by the parties has also been properly assessed. Replying to the arguments of Mr. Soomor with reference to the validity of the power-of-attorney executed by respondent No.1 favour of her husband Mir Ghulam Akhar. Learned counsel contended that no specific plea in this
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regard was raised by the applicant or respondent No.2 in their written statement and in any case there was no material legal defect in the power-of-attorney which could disentitle the husband of respondent No.1 from instituting or pursuing the proceedings in the suit on her behalf. He also made reference to the record of the Appellate Court to show that before the Appellate Court, the respondent' No.1 has placed the copy of press release dated 20th July,. 1994 on record to show that even the stamp duty paid on the power-of-attorney executed on 4-9-1993 was proper, as required on general power-of-attorney and that such position was approved by the Appellate Court by its order passed on such application. 20. Dilating upon the legal position as to the co-ownership vis-a-vis joint possession of co-owners, learned counsel contended that legally possessionof one co-owner is deemed to be possession of all co-owners unless hostile exclusion of possession of other co-owner was proved to his knowledge by some strong and undeniable evidence, which is lacking in this case. In this regard he placed reliance on the cases reported as:-- (a) Moolchand and 9 others v. Muhammad Yousuf (Udharnas) and 3 others PLD 1994 SC 462, (b) Qadir Bakhsh and another v. Mst. Shahal and 7 others 2001 M LD 686 and (c) Mst. Slabo Bibi and 3 others v. Gul Rehman and 11 thers PLD 1996 Pesh. 1. 21. In the first case, it was held that possession of one co-heir is sufficient to be considered as possession of all co-heirs and plea of adverse possession cannot be raised again co-heirs unless there is express repudiation of title of such co-heirs In the second case, it was held that mere possession however, long may be cannot be construed as adverse against co-sharers, as possession of one co-sharer is possession of other co-sharers. The third case, which related to inheritance dispute, it was held that when the mutation was not legal and proper then the entire structure built on it will crumble and limitation will not be hurdle in the way of the party seeking relief. 22. Mr. Jhamat Jethanand lastly contended that there is overwhelming documentary evidence on record to prove the validity of the gift pertaining to the year 1964 made by the applicant in favour of Mir Ghulam Akbar and two others and in such circumstances oral evidence led by the applicant to dispute this position is liable to be igriored by virtue of articles 102 and 103 of the Qanun-e- Shahadat Order, 1984. On the point of possession he also made reference to certain other documents placed on record by the attorney of respondent No.1 in his evidence as Exhs.70 to 73/A to show his name, name of respondent No.1 and applicant, in the Form PT-1 and payment of property tax by the husband of respondent No.1 for the years 1988-89 to 1994-95 in the years 1993 and 1994. 23. I have carefully considered the arguments advanced by learned counsel and with their assistance perused all oral as well as documentary evidence adduced in the case. From the perusal of parties pleadings it is evident that the factum of gift made by applicant Mir Ghulam Hyder Talpur in the year 1964 in favour of his father Mir Rasool Bux and two brothers Mir Ghulam Sarwar and Mir Ghulam Akbar has not been denied by him but such gift was linked to a vague family settlement whereby, to compensate the applicant certain agricultural lands and cash amount was to be given to him, not disclosing that by whom and in what manner. Further not disclosing that for what reason and when such alleged family settlements failed and did not materialize. The plea of non- acceptance of gift and non-delivery of possession has also been raised in the same context. In other words the applicant has not disputed the fact that on record gift was made by him in favour of his father and two brothers including Mir Ghulam Akbar in the year 1964 and such entry was duly made in the city survey record to his knowledge. In such circumstances, plainly, heavy burden of proof as to the different alternate pleas raised by the applicant to elude, avoid and encounter such old gift of 1964 was upon him and not on the
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respondent No.1 as contended by Mr. Naimatullah Soomro. Had it been a position where the applicant had denied the existence of such gift in toto and showed his ignorance and lack of knowledge about such old entries of gift in the City Survey Record then the arguments of Mr. Soomro that the burden of proof as to the validity of such gift was on the respondent No.1 or her husband Mir Ghulam Akbar would have held the field. Keeping in mind this legal position when the crucial point as to the validity or otherwise of the gift dated 25-3-1964 is examined it is evident that gift in favour of all the three donees, including Mir Ghulam Akbar was validly made at that time and it was for this reason that when the two other donees Mir Rasool Bux and Mir Ghulam Sarwar wanted to return their share in the suit property to the applicant they had to re-gift it in favour of applicant Mir Ghulam Hyder in the year 1983, but it was not done by third donee Mir Ghulam Akbar. If there was any family arrangement as urged by the applicant then noncooperation and non- making of gift by the third donee Mir Ghulam Akbar in the year 1983, as against gift made by two other donees of 1964 gift, would have been an eye-opener for the applicant to realize the correct legal position and title of Mir Ghulam Akbar in the suit property to the extent of his share. This aspect gains more importance considering the fact that applicant himself was an Advocate. There is overwhelming documentary evidence available on record, not only produced by the respondent No.1 but by the applicant himself to show that applicant had been all along conceding to this position prior to the filing of his written statement. Reference in this regard may be made to certain relevant portions of documents Exhs.93 and 96, duly executed by the applicant, which are reproduced as under:-- ' Exh.93:-- (1) Mir Ghulam Akbar son of Mir Rasool Bux, Muslim, adult. (2) Mir Ghulam Hyder son of Mir Rasool Bux, Muslim, adult. (3) ' Seth residents of 34/128, 129, 130 and 131 Ward "A" Amil Colony, Hirabad Hyderabad Sindh. ' No.2, for self and as General Attorney of No.1 Vide General Power-of-Attorney. The Principal Executant is still alive and the…
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