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Petitioner: HARSAN---Applicant VS Respondent: IQBAL PERVAIZ and 9 others
Court Name: Sindh High Court Judge(s): Khadim Hussain M. Shaikh Title: HARSAN---Applicant vs IQBAL PERVAIZ and 9 others Case No.: Civil Revision Application No,79 of 2010 Date of Judgment:2016-04-22 Reported As: 2016 YLR 2516 Result: Revision allowed
JUDGMENT
JUDGMENT ' KHADIM HUSSAIN M. SHAIKH, J.---This Civil Revision Application has been directed against judgment dated 23.12.2009 and decree dated 04.01.2010, passed by the learned IInd Additional District Judge, Hyderabad, whereby he has allowed Civil Appeal No,238 of 2005 re-Iqbal Pervaiz and others v. Harson, decreeing Suit No,17/2003 re-Iqbal Pervaiz and others v. Harson as prayed and setting-aside judgment dated 28.10.2005 and decree dated 11.11.2005, passed by the Court of IInd Senior Civil Judge, Hyderabad, whereby the aforementioned Suit was dismissed. 2. Briefly, the facts of the case are that on 29.04.2003, plaintiffs filed a suit being IInd Class Suit No,17/2003 re-lqbal Pervaiz and others v. Harson for possession, mesne profits and permanent injunction against the defendant in the court of IInd Senior Civil Judge, Hyderabad; the case of the plaintiffs as set-out in their plaint is that Survey No,134/4 admeasuring 01-01 acre, situated in Deh Behram, Taluka Hyderabad, was granted to one Arab in the year 1932 and T.O. Form was issued on 25.8.1947; record of rights was mutated on 27.08.1947 in favour of grantee Arab, who expired, leaving behind three sons, namely, Sher Ali, the predecessor-in-interest of plaintiffs Nos.1 to 8, Qasim Ali and Shamsuddin, the plaintiffs Nos.9 and 10 respectively and such mutation in the record of rights in favour of the said legal heirs of Arab was made; the defendants through Veersingh and others with mala fide intention moved application before the revenue authorities and finally the matter was adjudicated by Member (Judicial) Board of Revenue, Sindh, Hyderabad vide order dated 22.01.2012 and declared that the plaintiffs are owners of the suit land; the defendant is residing with his family in a house constructed on an area of about 300 sq. Feet from the aforementioned survey number, which is an urban property; the defendant is liable to be ejected and to pay the lease/rent to the plaintiffs at the rate of Rs,1000/- per month; after the order of
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Member Board of Revenue, Sindh; the plaintiffs sent notices dated 22.07.2007 and 26.08.2007, calling the defendant to pay the lease/rent of the portion of the plot in question to the plaintiffs, but they were returned un-served, therefore, the plaintiffs filed the aforesaid suit. 3. On service of summons, the defendant contested the case by filing his written statement wherein he denied all the allegations and claims leveled by the plaintiffs in their plaint, it was denied if survey No,134/4 was granted to Arab by the Barrage Authorities in the year 1932; it was also denied if T.O. Form was issued or record of rights in respect of the above survey number was mutated in favour of Arab or the plaintiffs are legal heirs of Arab or Arab had any right or title or interest in the suit land; it was also denied that the plaintiffs are declared as owners of the suit land. It is further averred that in view of his earlier order dated 31.01.2001, Member (Judicial), Board of Revenue, Sindh, Hyderabad had no jurisdiction to pass order dated 22.01.2002, which being without lawful authority does not create any right in favour of the plaintiffs; the mutation entries etc. Produced by the plaintiffs are un-authenticated, bogus and they do not create any right in favour of Arab; since last more than one century there is established village of Kolhis, comprising of 40 houses and 3 temples. The defendant also denied if he was in unauthorized occupation of the portion of the plot or is liable to pay rent/lease to the plaintiffs. The defendant also took the legal pleas that the suit is not maintainable; the suit is time barred; the suit being undervalued its plaint is insufficiently stamped and the court has no jurisdiction to try the suit. 4. Learned trial Court framed following issues:-- "1. Whether the suit is not maintainable in law? 2. Whether the suit is time barred? 3. Whether the plaintiffs are owners of suit plot and the same is occupied by defendant unauthorizedly? 4. Whether the defendant is bound to pay the rent/lease for three years to the plaintiffs amounting to Rs .36,000/- at the rate of Rs,1000/- per month?, 5. Whether the plaintiffs are entitled to possession of the suit plot? 6. Whether the plaintiffs have cause of action to bring the present suit? 7. What should the decree be? 5. Earlier the plaintiffs failed to produce their evidence, therefore, their suit was dismissed under Order XVII, Rule 3 Code of Civil Procedure, vide judgment dated 27.05.2004 and decree dated 03.06.2004; feeling aggrieved, the plaintiffs filed Civil Appeal No,186/2004 re-Iqbal Pervaiz and others v. Harson, calling in question the aforesaid judgment and decree before the Court of District Judge, Hyderabad, which was ultimately allowed by the learned Vth Additional District Judge, Hyderabad vide judgment dated 30.10.2004, remanding the matter to the trial court for decision after providing opportunity to the parties. 6. In post-remand proceedings, the respondent No,1 Iqbal Pervaiz examined himself for self and on behalf of the rest plaintiffs being their attorney as Ex.34 and produced photocopies of General Power of Attorneys executed by plaintiffs Nos.2 to 10 in his favour as Exs.35 and 36, original copy of receipt as Ex.37, Sindh Government Gazette Notification dated 14.02.1987 as Ex.38, Form-A as Ex.39, T.O. Form as Ex.40, three entries of revenue record as Ex.41, 42 and 43, certified copy of order dated 22.01.2002, passed by Member (Judicial) Board of Revenue, Hyderabad as Ex.44 and original copies of legal notices as Ex.45 and 46. The defendant Harson examined himself as Ex-50 and produced photocopy of order dated 31.01.2001, passed by the Member (Judicial) Board of Revenue, Sindh Hyderabad as Ex-51. 7. The learned trial Court after hearing the learned counsel for the parties dismissed the suit vide judgment dated 28.10.2005 and decree dated 11.11.2005; the Plaintiffs preferred Civil Appeal No,238/2005 re: Iqbal Pervaiz and others v. Harsan, before the Court of District Judge, Hyderabad, which was ultimately decided by the Court of IInd Additional District Judge, Hyderabad, vide
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impugned judgment dated 23.12.2009 and decree dated 04.01.2010, whereby the appeal has been allowed and the aforementioned suit has been decreed as prayed, setting-aside judgment dated 28.10.2005 and decree dated 11.11.2005, passed by the trial court, hence this revision application. 8. Learned counsel for the applicant has mainly contended that the suit of the plaintiffs was time barred; the learned appellate Court has failed to frame points for determination as required under Order XLI, Rule 31, C.P.C.; that the plaintiffs are not owners of survey No,134/4; that Kolhi village having 40 houses including the house of the applicant and 3 temples is in existence since last more than 100 years; that the suit for possession without seeking relief of declaration was not maintainable; that the suit property was not granted to Arab; the documents namely A-Form and mutation entries produced by the plaintiffs in evidence are bogus and manipulated documents; that the judgment of the appellate Court suffers from misreading and non-reading of the evidence and by decreeing the suit of the respondents Nos.1 to 10, the appellate Court has exercised jurisdiction not vested in it. He, therefore, prays that the impugned judgment and decree may be set aside. 9. Conversely, the learned counsel for the respondents has mainly contended that the Member (Judicial) Board of Revenue, Sindh, Hyderabad, vide an order dated 22.01.2002, passed in Case No, S. Review-40/2001 re: Arab v. Veersing, on the review application filed by the plaintiffs, has declared them as owners of survey No,134/3 to 5; that one Arab, the predecessor-in-interest of the plaintiffs was granted the subject land by the Barrage. Authorities in the year 1932; that the said land comes in Hyderabad city and as such the same was declared as urban property, by the Government of Sindh vide a Sindh Government Gazette Notification dated 14.02.1987; that the applicant had not challenged the findings of the learned trial Court regarding ownership of the plaintiffs over the suit property by filing civil appeal or cross-objections; that the learned trial Court although declared the plaintiffs as owners of the suit land, but dismissed the suit and that the learned appellate Court by considering all these aspects of the case and the evidence brought on record, has allowed the appeal, decreeing the suit as prayed and set-aside the judgment and decree, passed by the learned trial Court. He, therefore, prays that the revision application may be dismissed with costs. He, however, placed his reliance on the following case law:-- 1. Muhammad Aslam v. Muhammad Azeem Shah (1996 SCM R 1862), 2. Muhammad Zafar v. Yousaf Ali (2003 CLC 1922 (Lahore), 3. Maqbool Ahmed v. Hakoomat-ePakistan (1991 SCM R 2063), 4. Ghulam Rasool v. Muhammad Hussain (PLD 2011 Supreme Court 119), 5. Muhammad Hanif v. Province of Punjab (2007 CLC 1309 (Lahore), Noor Muhammad v. Abdul Qadeem (1995 SCM R 522), 7. Dewan Ali Khan v. Jehandad Khan (1995 CLC 136) [Supreme Court (AJ&K)], 8. Magsood Hussain Shah v. Noor Hussain Shah (PLD 1989 Supreme Court (AJ&K) 45, 9. Walayat Khan v. Muhammad Yusaf (PLD 1995 Supreme Court (AJ&K) 41 10. Muhammad Anwar v. Darul Ulooin Ghausia Hanfia (2007 SCM R 1510), 11. Wazir Khan v. Qutab Din (PLD 2009 Supreme Court 95). 10. I have considered the arguments advanced by the learned parties counsel and have gone through the material placed before the Court. 11. From perusal of the record it reveals that the plaintiffs themselves are not definite about the exact area under occupation of the defendant as it is mentioned in para No,6 of the plaint that an area of about 300 sq ft. Is in occupation of the defendant/applicant. Even otherwise for identity of such area of about 300 sq. Ft., which is the suit property, the plaintiffs were required to describe the boundaries of the suit property as required under Rule-3 I of Order VII, C.P.C. For the sake of convenience Rule-3 of Order VII is reproduced below:--
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"3. Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement of survey, the plaint shall specify such boundaries or numbers." 12. From the reading of the plaint, it reveals that the prerequisite of Rule-3 of Order VII, C.P.C. Has not been adhered to as the plaint does not contain the B boundaries of the alleged aforementioned area of about 300 sq. Feet. 13. It is the case of the plaintiff that' their predecessor-in-interest namely Arab son of Nindho Khawaja was allegedly granted land bearing survey No, 134/4 admeasuring 1-06 acres of Deh Behram, Taluka Hyderabad in the year 1932 by the Barrage Authorities, being the State land; that T.O. Form was allegedly issued in the year 1947 in favour of Arab and mutation was allegedly carried in his favour in the record of rights and then mutations regarding inheritance were also allegedly carried in favour of the plaintiffs, who claim themselves to be his legal heirs; undisputedly prior to filing this suit by the plaintiffs/respondents Nos.1 to 10, the matter was taken to the revenue forums on the application moved by Veersingh and others and the matter went to the Member (Judicial) Board of Revenue, Sindh, Hyderabad in 'case No, SROA-50 of 1999, re-Veersingh v. Arab and Ashoo against the order dated 04.02.1999, passed by the Additional Commissioner-II, Hyderabad, Division and by order dated 31.01.2001 Ex-51, Member (Judicial) Board of Revenue, Sindh, Hyderabad, after hearing the parties and perusing the Revenue as well as Barrage record, allowed the appeal of Veersingh and others with the following observations:-- "Against the fresh decision of Additional Commissioner-II Hyderabad Division the Revenue as well as Barrage record was sent for and perused. Heard the parties at length through their counsels. I have come to the conclusion that the land comprising of S. No, 134/3 to 5 of deli Behram, taluka Hyderabad is established Village since long ago and poor villagers of Kolhi community are settled there since their forefathers and respondents remained silent for more than fifty years to claim village as their ancestral property. Besides original A-Form bearing No, 704 of deh Behrarn showing S. Nos. Granted to the respondents does not indicate S. No, 134/3 to 5 of the village and A-Forms subsequently prepared seem to be un-authenticated and suspicious. The old Revenue record is in torn condition which cannot be relied upon and respondents failed to establish their case by producing original T.O Form issued by the Barrage authorities. Thus village land was proved to be Government land beyond any shadow of doubt. I therefore allow the appeal and further order that poor villagers residing in the village should not be ejected till village is regularized by the competent authority either under Sindh Gothabad Housing Scheme Act, 1967 or by any legal forum." 14. From the above, it reveals that the original A-Form No,704, which was placed before the Member (Judicial) Board of Revenue, Sindh, Hyderabad did not indicate Survey Nos. 134/3 to 5 which include survey No, 134/4, the portion of about 300 sq. Feet, whereof is the subject property in this case; A- Form subsequently prepared was found un-authenticated and suspicious by the Member Board of Revenue, Sindh; the plaintiffs failed to produce original T.O Form allegedly issued by. The Barrage Authorities and to establish their case; and the land in question was proved to be a Government land. It is also the stance of the defendant right from inception of the dispute that the land in question was never granted to Arab and that the plaintiffs are not owners of the land under his occupation, which is Government land and he in his written statement has specifically denied the case of the plaintiffs in its entirety denying the grant of the land in question to Arab, mutation in his favour, issuance of T.O Form in his favour and also challenging the copies of A-Form and entries produced by the plaintiffs to be bogus and manipulated and also denying the title or ownership of the plaintiffs over the subject land. Accordingly, the onus of proof rested upon the plaintiffs to establish their right and title over the suit property.
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15. From the perusal of the oral as well as documentary evidence brought on record, it reveals that although plaintiff Iqbal Pervaiz in his deposition is shown to have produced documents A-Form at T.O Form Ex-40, three entries at 42 and 43, but perusal thereof would show that Ex-39 is a photocopy purportedly of O C of A-Form, but it does not bear full signature or date of issuance thereof. It further reveals that words T.O. Form No,315 shown on the back page of photocopy Ex-39, has been marked as but T.O. Form, which needless to say is a separate document and is shown to have been produced as Exh.40, has not been produced by the plaintiffs in their evidence; Ex-41, 42 and 43 are Photostats of alleged mutation entries copied from photocopies and two of them bear attestation of the Notary Public, Hyderabad. Admittedly in earlier round of litigation between the parties, before the Revenue Authorities, the grant of the subject land claimed by the plaintiffs in name of Arab was not established and challenge about the authenticity and genuineness of these documents has been thrown by the defendant from inception of dispute between the parties, yet the plaintiffs have produced in evidence the aforesaid photo stats of the documents, which from face of them, are inadmissible in evidence as even the secondary evidence cannot be allowed unless conditions laid down in Article 76 of Qanun-e-Shahadat Order, 1984, are satisfied by a party tendering such evidence. In this case the photostat of the aforementioned documents tendered by the plaintiffs in evidence in my view being inadmissible in evidence could not be taken into consideration. Furthermore, the plaintiffs have even not summoned any official witness of the custodian of such record to produce original thereof in the court, obviously for the reason that no such record is available in the offices concerned as is evident from the observations of the Member (Judicial) Board of Revenue, Sindh, Hyderabad in Ex-51. Accordingly, adverse presumption can legitimately be drawn against the plaintiffs in view of Article 129(g) of Qanun-e-Shahadat Order, 1984:-- ' In case of re-Wazirdullah and 9 others v. Land Acquisition Collector, A.C. Swabi (PLD 2003 Peshawar 235), Peshawar High Court has held that Photostat copies of the mutations have been placed on file, which being secondary evidence could not be taken into consideration unless permission in accordance with 'Qanun-e-Shahadat' was obtained from the Court. ' In case of MUKHTAR AHMAD through Legal Heirs v. MUHAMMAD YUNUS and 4 others (2001 CLC 1796), following the dictum laid down by the Honourable Supreme Court, Lahore High Court has held that:-- "5. Article 75 of the Qanun-eShahadat Order, 1984, lays down in mandatory terms that a document must be proved by the primary evidence. Article 76 provides some exception to the said rule and as per clause (c) of the said Article secondary evidence may be given of the contents of a document when original has been lost. To my mind the learned trial Court has proceeded to allow the appellant to lead secondary evidence without there being any evidence on record to establish, what the learned lower Court has its discribed "alleged" lost of the original document. Learned counsel for the respondents relies on the case of Mst. Khurshid Begum and 6 others v. Chiragh Muhammad 1995 SCMR. 1237. I find that the said judgment of the Supreme Court fully supports the contention of the learned counsel. The ratio of the said decision is that proof of lost of document is condition precedent to permission to lead secondary evidence. It was emphasized by the apex Court "if the loss is not proved secondary evidence would become valueless". I, therefore, find that the entire proceedings in this case stand vitiated because of the failure of the learned trial Court to act in accordance with provisions of the Statute as interpreted by the Supreme Court of Pakistan." ' In the case of HYDERABAD DEVELOPMENT AUTHORITY through M.D., Civic Centre, Hyderabad v. ABDUL MAJEED and others (PLD 2002 Supreme Court 84), Honourable Supreme Court has held that:-
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"9. Besides adopting the reasons ' for not accepting this document in evidence, we further add that as per the statement of Mushtaq Ahmed, this conveyance was taken on record subject to its admissibility because the witness tendered its photocopy. Inasmuch as later on no steps were taken by the respondents to prove the contents of this document by leading primary or secondary evidence in terms of Articles 75 and 76 of Qanun-e-Shahadat Order, 1984.. Therefore, this document also cannot be taken into consideration. It is also to be noted that merely by tendering a document in evidence it gets no evidentiary value unless its contents are proved according to law." ' n case of MUHAMMAD AZAM and 5 others v. ABDULLAH and 15 others (1999 CLC 200), Quetta High Court has held that:- ' "There is nothing on record to suggest that the "Sanad" i.e, original of Mark P.1 on Mark P. 1/A was lost, or was not available with the plaintiff or that the same could not have been produced without inordinate delay or expense or even that the same was available on any record of the case with the District Magistrate, Nushki or any other Court. Mere production of copy of original document would not be enough to entitle any party to the suit to produce secondary evidence unless the conditions laid down for production of secondary evidence within the meaning of Article 76 of Qanun-e-Shahadat Order, 1984 stand satisfied; which are wanting in the instant case. The documents Mark P.1 and MarkP.1/B also being not the certified copies, as such; no reliance can be placed on these documents." ' In the case of PROVINCE OF PUNJAB and 5 others v. H. NiZAM UD DIN AND. SQNS LIMITED (2005 YLR 2007), Lahore High court has held that:- "6. Unfortunately, the Courts below have not kept this aspect in view and basically considered Exh.P.4, for granting the relief, which document is not on the record of the appellants and the receipt thereof, has been denied. Moreover, this is only a copy of the original and has not been proved in accordance with law; no attempt was made for the production of the original of the said document and the copy without proving the case for secondary evidence, was inadmissible in evidence. Thus on this reason too, no much reliance could have been placed on Exh.P.4." ' In the case of ORIENTAL SHIPPING CO LTD., KARACHI v. PANAGHIA ODIGITRIA and 2 others (1991 MLD 148), this Court has held that:-- "6. The original bills and vouchers, have not been produced instead, the photo copies of bills and vouchers were produced. The plaintiff has neither alleged that these documents were lost by his Advocate, nor has he examined him or his clerk. He has also not claimed that these originals were produced in the court and lost by any clerk. Thus it would appear that there is no satisfactory evidence of the loss of the originals. The Defendants had denied/challenged the Photostat copies produced by the plaintiff. As such these Photostat copies cannot be relied upon." ' In case of Abdul Majeed and 6 others v. Muhammad Subhan and 2 others (1999 SCMR 1245), Honourable Supreme Court of Pakistan has held that:-- "11. It is axiomatic principle of law that a registered deed by itself, without proof of the execution and the genuineness of the transaction covered by it, would not confer any right. Similarly, a mutation although acted upon in Revenue Record, would not by its own force be sufficient to prove the genuineness of the transaction to which it purports unless the genuineness of the transaction is proved. There is no cavil with the proposition that these documents being part of public record are admissible in evidence but they by their own force would not prove the genuineness and execution of that to which they relate unless the transaction covered by them is substantiated from independent and reliable source." 16. Furthermore, the genuineness and authenticity of the documents, which were produced by the plaintiffs before the Revenue Authorities, was doubted even by the Revenue Authorities as no such
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documents namely A-Form relating to the suit land, mutation entries, photo stats whereof produced by the plaintiffs, were available in the revenue as well as Barrage record. Despite that the plaintiff No,1 has examined himself and has produced only the Photostats of A-Form Ex-39, entries Exs-41, 42 and 43, and no valid or authentic piece of evidence relating to the alleged grant of State land to Arab in the year 1932 has been produced by the plaintiffs nor have they produced any evidence to establish that Arab or his legal D heirs have ever remained in possession of the subject land or have even deposited any amount towards the malikano price of the land allegedly granted to Arab by the Barrage Authorities being State land. ' In case of Muhammad Iqbal and another v. Mukhtiar Ahmed through L.Rs, (2008 SCM R 855), the Honourable Supreme Court has held that where a mutation is challenged, the beneficiary has to fall back upon and prove the original transaction. 17. Moreover, the suit simplictor for possession in the wake of specific denial regarding ownership or title of the plaintiffs over the subject land without seeking relief of declaration about their ownership or title, from face of it, was not maintainable and the suit was liable to be dismissed on this score alone. 18. Admittedly, the subject land is Government land and it is the own case of the plaintiffs that the suit land being Government land was allegedly granted to Arab by the Barrage Authorities, but the plaintiffs have not joined the concerned Sindh Government functionaries and the Province of ,Sindh as party to the suit, , although they were necessary party to be impleaded as defendants in the suit. In my humble view, the obvious reason for non-joining the Government functionaries and Province of Sindh as party to this suit by the plaintiffs, was to have a decree from the Court in their absence easily, which adversely reflects upon the plaintiffs and on their case as well…
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