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Petitioner: KHALID HUSSAIN through Legal representatives VS Respondent: PROVINCE OF SINDH through Chief Secretary Government of Sindh and 7 others
Court Name: Sindh High Court Judge(s): Nazar Akbar Title:KHALID HUSSAIN through Legal representatives vs PROVINCE OF SINDH
through Chief Secretary Government of Sindh and 7 others Case No.: R.A. No,47 of 2003 Date of Judgment:2015-11-11 Reported As: 2016 YLR 1370 Result: Revision dismissed Judgment ORDER NAZAR AKBAR, J.---This Revision Application is arising out of dismissal of applicant's F.C. Suit No,305/1989 by the Court of VIth Sr. Civil Judge Hyderabad followed by dismissal of his Civil Appeal No,169/1995, by the Court of Vth Addl. District Judge Hyderabad, thereby maintaining order of Sr. Civil Judge, Hyderabad. 2. Precisely the applicant has sought the following relief through F.C. Suit No,305/1989:-- a) That it may be declared that Plaintiff is exclusive owner of suit land bearing Survey No,73 admeasuring 9-09 acres Deh Gujo Taluka City Hyderabad and the Defendants Nos.4 to 8 have no right, title or interest in the same. It may further be declared that sale deed dated 9.7.1971 the gift deed dated 11.12.1983 and gift statement dated 31.8.1989, are illegal, void and not binding on the Plaintiffs and the order dated 21.8.1989 passed by Defendant No,2, mutations dated 31-8-1989 made by Defendant No,3 in record of rights, are illegal, void, mala fide and without jurisdiction and not binding upon the Plaintiff, b) That permanent injunction be issued restraining the Defendants from acting upon sale deed dated 9.7.1971, the gift-deed dated 11.12.1983, gift-statements dated 31.8.1989, the order dated 21.8.1989 passed by the Defendant No,2 and mutation entries made by Defendant No,3 and in any way from interfering with the possession of the Plaintiff of the suit land and in any way from Alienating or raising any construction over the suit land; That cost of the suit be borne by the Defendants; c) Any other relief this Hon'ble Court deems fit; 3. The applicant in his plaint has averred that on 18.9.1967 Mst. Saeedun Nisa Wd/o Shamsuddin had acquired agricultural land bearing Survey No,73 admeasuring 9-9 acres situated in Deh Gujo
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Hyderabad (the suit land) an Evacuee Property by way of transfer. The said Mst. Saeedun Nisa on 14.6.1968 transferred the suit land to the applicant by way of gift and after accepting the gift he mortgaged the suit land to the Agricultural Development Bank of Pakistan on 22.6.1968 against loan of Rs,3247/- and the record of rights was mutated accordingly. It was also averred in the plaint that Respondent No,5 filed Suit No,269/1972 against the applicant, Mst. Saeedun Nisa and others for declaration, possession and mesne profits on the basis of sale deed dated 09.07.1971, executed by Mst. Saeedun Nisa in favour of respondent No,5 in respect of the suit land. The suit was decreed by the learned Joint Civil Judge, Hyderabad by judgment dated 28.12.1978. The applicant preferred an appeal bearing Civil Appeal No,195/1978 against the aforesaid judgment, which was allowed by the learned IIIrd Additional District Judge, Hyderabad by judgment dated 02.03.1980. The Second Appeal No,161/1980 was filed by respondent No,5, which was allowed by this Court on 10.10.1982 and the case was remanded to the learned trial Court for decision on merits. After remand, the plaint was returned to respondent No,5 by learned 1st Extra Joint Civil Judge, Hyderabad by order dated 30.08.1983, against which, respondent No,5 filed Miscellaneous Appeal No,67/1984, which was dismissed as 'withdrawn. On 30.05.1985, respondent No,4 filed Suit No,207/1985 for injunction against the applicant on the basis of gift deed dated 11.12.1983, allegedly executed by respondent No,5 in his favour for the suit land and during pendency of above suit, respondents Nos.4 and 5 filed another suit bearing No,67/1988 for perpetual injunction against the applicant and obtained ex parte decree on 31.05.1988. The applicant filed an application for setting aside of ex parte decree, which was pending. In the said suit status quo order in respect of alienation and mutation was passed by the Court, which was served upon respondent No,5 and such entry was also made in the record. 4. In the year 1984-85, respondent No,4 got entry in Khasra Girdwari as Hari, on which applicant filed an appeal before Assistant Commissioner, Hyderabad, which was allowed on 02.08.1986. The respondent No,4 filed appeal against the said order, which was dismissed by Additional Deputy Commissioner-I, Hyderabad on 06.02.1988. On 13.12.1988, the Additional Deputy Commissioner-I, Hyderabad passed an order requiring respondent No,3 to attest the Entry dated 22.06.1968. The entry was attested. Thmafter, respondent No,5 filed an appeal against the said order before respondent No,2, in the said appeal respondent No,4 filed an application to be joined as party, but the said appeal was dismissed as withdrawn on 08.07.1986. The respondent No,4 again filed appeal before Additional Deputy Commissioner Hyderabad against the aforesaid order passed by the Additional Deputy Commissioner-I, Hyderabad himself. The said appeal was dismissed on 20.07.1987. Against the said order the respondents Nos.4 and 5 filed Revision before respondent No,2, which was allowed ex parte on 02.07.1988. Applicant's application for setting aside the said order was dismissed by respondent No,2 on 17.07.1988. The applicant filed a Constitution Petition No,D-105/1988 which was allowed by this Court on 12.12.1988 and the case was remanded to respondent No,2 for fresh decision. The respondent No,2 on remand passed order dated 21.08.1989, allowing the Revision filed by respondents Nos.4 and 5. Thereafter, the applicant filed Suit, No,305/1989 with the prayer reproduced in para-2 above. 5. The respondents Nos.4, 5, 6 and 7 filed their written statements, in which they admitted the averments regarding various litigation mentioned in the plaint and contended that no valid and legal gift was made by Mst. Saeedun Nisa in favour of applicant and that the applicant had never been in physical possession of the suit land. The entries in favour of applicant were fraudulent. It was contended that Suit No,67/1988 was filed by respondent No,4 only, the Appeal No,67/1984 was Withdrawn by fraud and that the order passed by respondent No,2 dated 21.08.1989 was legal and valid. It was claimed that the suit land came is in possession of the respondents at the time of gifts made in their favour. 6. The learned trial Court framed the following issues from the pleadings of the parties:--
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1. Whether Mst. Saeedun Nisa gifted suit land on 14.06.1968 in favour of the plaintiff? 2. Whether so-called gift between Mst. Saeedun Nisa and plaintiff is false, fabricated and illegal? 3. Whether the plaintiffs were competent to mortgage the suit property? The said mortgage is fraud played by the plaintiff? 4. Whether the plaintiffs have remained in possession of the suit property? 5. Whether the plaintiffs are owners of the suit? 6. Whether the sale deed dated 09.07.1971 executed by Mst. Saeedun Nisa in favour of Mst. Khatija is illegal and void? 7. Whether gift deed dated 11.12.1983 executed by Mst. Khatija in favour of Jawaid Salem is illegal and void? 8. Whether the gift statement dated 31.08.1989 is illegal and void? 9. Whether orders dated 21.08.1989 passed by the defendant No,2 and mutation dated 28/31.08.1980 made by the defendant No,3 is on record of rights are illegal, void, mala fide and without jurisdiction? 10. Whether the defendants Nos.4 to 7 are not owners of the suit property? 11. Whether the suit is not maintainable in law? 12. Whether the Court has no jurisdiction? 13. Whether the suit is false, frivolous and vexatious? 14. Whether the suit is time barred? 15. What should the decree be? 7. The parties led their evidence and after hearing them, the learned trial Court dismissed the suit of the applicant by judgment dated 14.11.1995, which was challenged by filing Civil Appeal No,169/1995, it met with same fate on 30.9.1998. The applicant filed Revision Application No,170/1998 against the appellate order which was set aside by this Court by judgment dated 28.1.2002 and appeal was remanded for re-hearing and fresh decision by appellate Court. The Appellate Court again by judgment dated 31.3.2003, dismissed the appeal. This second Revision No,47 of 2003 was filed on 4.6.2003. After 12 years and more than 03 months on 19.9.2003. I heard the counsel for the parties for almost whole day and dismissed this Revision by short order for reasons to be recorded. 8. Learned counsel for the applicant Mr. Jhamat Jethanand has opened his arguments by referring to admission order of this revision application dated 23.6.2003 which shows that the original judgment of Vth ADJ in Civil Appeal No,169/1995 was set aside by order dated 05.9.1998 in an earlier Civil Revision Application No,170/1998 and the case was remanded to the Appellate Court for afresh decision. He has again asserted the same proposition that the order of Appellate Court does not fulfill the requirement of Order XLI Rule 30, C.P.C. And the directions contained in the remand order were not followed as through the fresh judgment the learned Appellate Court was required not merely to refer the case law in the order but the ratio of the cited judgment should have also been mentioned therein and therefore, he wants that this case be remanded again to the Appellate Court after twelve years to examine the case law which he had relied upon and mention the ratio of each case law in the fresh judgment. 9. Learned counsel for applicant has also vehemently stressed on the admission of respondent regarding the previous litigation between the parties and attempted to invoke Order II Rule 2, C.P.C. Read with Section 11 of C.P.C. And argued that the Defendants were estopped from raising the plea in defense which were taken by them in their plaints in the earlier litigation and therefore, the suit should have been decreed straightaway. He has contended that dismissal of earlier Civil Appeal No,93/1978 and dismissal of Suit No,207/1985, and Suit No,67/1988 filed by Respondents operates as res judicata against the Respondents. 10. He has referred to the Standing Order No,17(6) of the Land Revenue Department and asserted that an oral transaction of land and rights in the land can be accepted for the purpose of entries in
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the Record of Rights and therefore, by virtue of Gift Statement (Exh.94) property stood transferred lawfully in favour of the applicant and the Courts below have failed to follow the Standing Order No,17(6) of the Revenue Department. He has further contended that the Record of Rights has shown mortgage of the suit land with Agricultural Development Bank by the applicant/Plaintiff and the Court has not taken into accounts the documents showing entry of mortgage dated 5.9.1968 (Exh.98). He has also contended that Defendants Nos.4 and 5 during pendency of different litigation between the period from 1972 to 1985 had illegally transferred the suit land first to respondent No,4 by respondent No,5 and then to respondents Nos. 6 and 7. All these transactions are hit by the rule of lis pendens under section 52 of the Transfer of Property Act, 1882. In support of. His various contentions he has relied upon the following case law:-- a) On the point that lower Appellate Court has violated earlier order of remand to the Appellate Court:- i. PLD 1989 SC 568 Nasir Abbas v. Mansoor Haider Shah ii. 1996 SCMR 669 Syed Iftikhar-udDin Haider Gardezi and 9 others v. Central Bank of India, Ltd., and 2 others iii. 2004 CLC 950 Abdur Razzaq v. Sabar Khan b) On the point of setting aside concurrent finding of Courts on misreading of evidence i. 2010 SCMR 1630 Sultan Muhammad and another v. Muhammad Qasim and others ii. PLD 1989 SC 568 Nasir Abbas v. Mansoor Haider Shah iii 1986 SCMR 1950 Sarfraz Khan V. Federation of Pakistan c) On the question of res judicata. i. PLD 2003 Lahore 48 Niaz Ahmed Khan v. Kishwar Begum and 19 others ii. PLD 1971 SC 376 Haji Ghulam Rasool and others v. The Chief Administrator of Auqaf, West Pakistan iii. 1999 MLD 1148 Amanat Ali v. Abdul Haque and 27 others iv. 1993 MLD 2138 Muhammad Yousaf and 3 others v. Mst.Zubeda Begum and another v. PLD 1983 Pesh. 100 Mir Zaman v. Mst. Begum Jan and 11 others d) On Section 52 of Transfer of Property Act, 1882 as according to him transaction amongst the respondents were during the pendency of Suits No,269/1972, 207/1985 and Suit No, 67 of 1988, and the gift between Defendants Nos.5 to 4 was without possession. i. 1998 SCMR 858 Mian Tahir Shah and another v. Additional District Judge, Swabi and others ii. PLD 1993 Lah. 245 Muhammad Yousaf v. Abdul Majid e) On the point that the suit was not time barred as the mutation entry of applicant was cancelled on 21.8.1989. i. PLD 1994 SC 242 Haji Jan Muhammad v. Provincial Water Board, Balochistan, Quetta ii. PLD 1993 Lah. 254 Allah Bakhsh and another v. Ghulam Janat and 6 others 11. Mr. Naimatullah Soomro, learned counsel for the Respondents Nos.4 to 8 has contended that this Revision Application is directed against second time dismissal of Civil Appeal No,169/1995 filed by the applicant. The earlier judgment of dismissal of same Civil Appeal dated 3.9.1998 was equally comprehensively judgment. However, it was remanded to the Appellate Court in Civil Revision Application No,170/1998 and the contention of the applicant that on remand the Lower Appellate Court has failed to mention the case law cited by the applicant is factually incorrect as no case law was cited and even otherwise this Court can examine the case law, which if at all, has been left examined by the lower Appellate Court while deciding this Revision Application instead of technical set aside of the comprehensive impugned judgment maintaining the dismissal of the suit of the applicant and decide the controversy once for all. 12. On merit he has also referred to Deh Form-VII (Exh.116) and argued that by 14.6.1968 the suit land was not transferred to the original owner, Mst. Saeedun Nisa because the said Entry No,288 dated
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14.6.1968 was by the Supervising Tapedar and it matured into her ownership on 7.6.1970 when the Settlement Commissioner endorsed the said Revenue Entry under his signature and therefore, on 14.6.1968 Mst. Saeedun Nisa was not even owner of the suit land to alienate the same by way of gift to Khalid Hussain. He has also contended that a mere statement of gift on the same day of formal entry before Revenue Authority is not enough to claim transfer of ownership by way of gift as a valid and proper transfer. He has also referred to Standing Order 17(6) of the Revenue Department and pointed out that learned counsel for the applicant has not read the whole Standing Order 17(6) which is reproduced below:-- Standing Order 17 Record of Rights (6) Oral transactions of land and rights in land are admitted for the purposes of entries in the Record of rights if the parties given written statements of agreement. ' It has been rightly contended by Mr. Soomro learned counsel for Respondents that even in oral transaction of land for the purpose of Record of Rights, it needs to be followed by "written statement of agreement". He has read evidence of applicant available at page 409 and a detailed cross-examination and pointed out that gift statement (Exh.94) shows donee as nephew of donor namely Saeedun Nisa though it is not a fact and the said Saeedun Nisa in her lifetime has made a complaint against the applicant on which an enquiry was conducted by Revenue Authorities. The proceeding of enquiry were produced as Exh.191 and Ex.192. In inquiry, witness of the applicant S.M Hassan was examined on 14.6.1971 by Settlement Mukhtiarkar, Hyderabad and it was established that Saeedun Nisa has not gifted or made any statement before Mukhtiarkar in respect of alleged gift in favour of the applicant. Even statement of Saeedun Nisa was also recorded on 18.5.1971 before Mukhtiarkar Hyderabad during the inquiry which was produced as Exh.192. She was cross- examined by Khalid Hussain during the said enquiry and her evidence was not shakened. Therefore, she had rightly sold out the suit land on 9.7.1971 to Mst. Khatija and on the basis of said sale deed the name of Mst. Khatija was entered in the Revenue Record on 30.7.1971. 13. Learned counsel for the respondents has contended that burden of proof was on the applicant to prove execution of gift statement (Exh.94) but he failed to discharge the same. Solitary statement of PW-1 (the applicant) was not sufficient compliance of Articles 117 and 118 of Qanun-e- Shahadat, 1984 since no one corroborated his statement and in cross examination his stand was badly shaken. He has extensively referred to evidence of the applicant and pointed out his admissions which are reproduced below:-- "It is correct to say that originally Mst. Saeedunnisa was owner of the suit property. She was not relative of my father. I was present when the suit property was gifted to my father Khalid Hussain. It was in writing. It is correct to say that said gift deed was not written on stamp paper" "I was not present in the Office of the Mukhtiarkar when the gift was reduced into writing in favour of Khalid Hussain. At that time witnesses were present, but I do not remember the name of witnesses except S.M. Hassan ". ' All the statements are whatever mention in Exh:94 it is therein. These statements were recorded in the house of my grandfather namely Ahmed Hassan. Mukhtiarkar has come in our house. I do not know the reason why Mukhtiarkar has recorded the statements in our home instead of in his office declared as forged, and the Khatta of Mst. Saeedun Nisa remained intact. I know that on 9.7.71, Mst. Saeedun Nisa has sold the suit property to Mst. Khatija and on the basis of said sale deed the name of Mst. Khatija was mutated in the revenue record on 30.7.71. I do not know if my father has challenged the mutation dated 30.7.71, or myself. ' I see Exh:114, and say this document was attested later on. On 22.6.1968, the mutation was effected in favour of my father and it was attested on 13.12.1983. I do not know the reason for delay of
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attestation of mutation record. It is correct to say that suit property was transferred to Mst. SaeedunNisa on 14.6.1968. I do not know if this transfer was confirmed on 07.6.70. ' I do not know if subsequently Mst. Saeedun Nisa had made complaint to the Mukhtiarkar for not gifted the suit property to Khalid Hussain. I do not know if Mukhtiarkar has inspected the site where statement of Mst. Saeedun Nisa was recorded by him says that the Defendant No,3 has mutated the record in favour of Defendants Nos.4 and 5, during the stay order. I was at Pakistan when the Khatta was cancelled. I cannot say if as per statement of Mst. Saeedun Nisa and enquiry made by the Mukhtiarkar the gift was It is correct to say that Mst. Khatija has gifted the suit property to Jawed Salim on 11.12.1983, and mutation of Khatta was effected in his name It is correct to say that my father had filed application before A.D.CI on 31.01.1983, to confirnm the pending entry in the name of Khalid Hussain. The entry was pending in favour of my father since 22.6.1968, and we have challenged the said entry before the ADC-I, vide application dated 31.10.1983,... ' Presently there is no cultivation on the suit property previously it was cultivated from 1960, upto 1991. My employees were cultivating the said land. I cannot give the names of the employees as they were on daily wages. 14. He has lastly contended that order of Additional Commissioner Hyderabad dated 21.8.1989 was appealable under Section 161 Sindh Land Revenue Act, 1967, then under Section 164 by way of Revision Application within 90 days of passing of the order and the jurisdiction of civil court was barred under Section 172 of the Sindh Land Revenue Act, 1967 at least until the entire remedy available under revenue laws was exhausted by the applicant. On different propositions advanced by learned counsel for respondents Nos.4 to 8 and adopted by counsel for the other respondents, the counsel has relied on the following case law. ' On burden of proof. i. PLD 1985 Karachi 431 National Bank of Pakistan v. Mst. Hajra Bai and 2 otheRs, ii. PLD 1994 Karachi 106 Muhammad Subhan and another v. Mst. Bilquis Begum through Legal Heirs iii. 1995 CLC 631 Messrs National Bottlers (Pvt.) Ltd. v. Additional Secretary, Federation of Pakistan and 2 others iv. 1995 CLC 1173 Auqaf Department v. Javed Shuja and others b. On proof of execution of gift. i. 1994 MLD 467 Rashid Ahmed and others v. Sardar Bibi and others ii. 2001 SCMR 1156 Nasrullah Khan v. Rasul Bibi c. On concurrent findings i. PLD 1983 SC 53 Kanwal Nain and 3 others v. Fateh Khan and others ii. 1992 SCMR 786 Jam Pari v. Muhammad Abdullah iii. PLD 1994 SC 291 Haji Muhammad Din v. Malik Muhammad Abdullah iv. 1997 SCMR 1139 Abdul Hakeem v. Habibullah and 11 others v. 2000 SCMR 431 Anwar Zaman and 5 others v. Bahadur Sher and others d. On the point of compliance of Order XLI Rule 31, C.P.C. i. 1982 SCMR 542 Mst. Roshi and others v. Mst. Fateh and others ii. 2004 SCMR 877 Mst. Zaitoon Bibi v. Dilawar Muhammad through Legal Heirs 15. I have heard learned counsel and examined the case law cited at the bar and perused the record. 16. The first contention raised by the learned counsel for the applicant that the lower appellate court has not discussed the case law in the impugned judgment and therefore failed to follow the direction of the remand order, dated 21.1.2002 in Civil Revision No, 107/1998 is misconceived. I have gone through the judgment, I believe this is no ground for hitting the judgment of lower Appellate Court since the High Court in Revision Application itself can examine the case law on which the learned counsel wants to rely with reference to the evidence, the facts available on record and discussed by the Courts below. In any case it is not the requirement of Order XLI Rules 23, 24 and 25 of Civil Procedure Code, 1908. The Revision is not against the order of dismissal of appeal on preliminary point nor it is a case of insufficient evidence on record. By now it is settled law that the
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Appellate Court must refrain from A lightly remanding the case and particularly when the Appellate Court itself has enough material available to examine whatever issues were raised or grounds were taken by the parties before the Lower Courts to settle the dispute between them once for all. Mr. Jhamat Jethanand and Mr. Naimatullah Soomro, counsel for the appellant and the respondents respectively, have extensively referred to R&P of trial Court and none of them have complained about anything which could not be examined by this Court in revisional jurisdiction and remand the case to the lower Appellate Court to first comment on it, that too, after 12 years to examine the same and re-write the judgment on merit. 17. The case law relied upon by the learned counsel on the question of violation of judgment in Civil Revision Application No,107/1998 and the provisions of Order XLI, Rule 31, C.P.C. Are not relevant in the case in hand. PLD 1989 SC 568, 1996 SCMR 669 and 2004 CLC 950 all are on the point that if evidence on record has not been fully considered by the Appellate Courts below it would mean that Order XLI, Rule 31, C.P.C. Is not complied with and Courts are required to give issue-wise findings on the point for determination. There is no cavil to these propositions from the three judgments but in the case in hand learned counsel for the Applicant has not pointed out single piece of material evidence which ought to have been examined by the two Courts below and has not been examined. The counsel for the Respondent has extensively referred to the evidence though it should have been done by the counsel for the applicant to point out misreading of evidence. Both the Courts below have examined the relevant documents particularly the statement of gift Exh.94 which was the basic document to claim ownership of the suit land by the applicant by way of gift. The other documents produced by the parties in support of their claim have also been examined by the Court below and to name a few of the Exhibits which were relevant for the controversy between the parties including evidence of S.M Hussain before the Settlement Mukhtiarkar City Hyderabad on 14.6.1971 as Exh.191, the statement of Mst. Saeedun Nisa before the Settlement Mukhtiarkar City Hyderabad during the inquiry as Exh.192 and the revenue receipts as Exh.118, 118/1 to 118/9 for deciding the issue before the trial Court. Learned Counsel for the applicant has not been able to point out that reading and examination of these exhibits for the purposes of determination of issue between the parties was not relevant or there was any particular documents on record which could have been examined by lower Court,…
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