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Petitioner: Khanzada INAMULLAH KHAN VS Respondent: Mst. ZAKIA QUTAB and 3 others
Court Name: Peshawar High Court Judge(s): Malik Hamid Saeed Title: Khanzada INAMULLAH KHAN vs Mst. ZAKIA QUTAB and 3 others Case No.: Civil Revision No,38 of 1993 Date of Judgment:1997-07-25 Reported As: PLD 1998 Peshawar 52 Result: Revision accepted
JUDGMENT
JUDGMENT ' In this civil revision petition under section 115, C.P.C. Khanzada Inamullah Khan plaintiff (now dead and represented by his L.Rs,) has challenged the judgment and decree dated 15-2-1993 of the Additional District Judge, D.I.Khan vide which while accepting the appeal of the defendants/respondents, he dismissed the suit of plaintiff/petitioner which had earlier been decreed by the Civil Judge, D.I. Khan by his judgment and decree dated 21-5-1992. 2. Facts in brief leading to the filing of instant revision petition are that Khanzada Inamullah Khan plaintiff instituted a suit for declaration to the effect that he is owner in possession through sale of land, Khata No,202, Khatooni Nos. 288 to 295, Khasra Nos. 265/1, 266, 291, 367, 391, 392, 274, 385, 384, 389, 387, 386 and 390 (13 plots) measuring 1350 Kanals and 12 Marlas situate in Village Wandi Bochra, Tehsil and District D.I.Khan and that the defendants have no concern whatsoever with the ownership or possession of the suit land and that the order of Revenue Officer dated 6-10-1976 rejecting the Mutation No,25 is wrong, unlawful, void and thus ineffective on the rights of the plaintiff and is liable to be set aside and the revenue papers are to be corrected accordingly. He also prayed for permanent injunctions against the defendants not to claim themselves as owners in possession of the suit land and should refrain from interfering with the ownership and the possession of plaintiff; in the alternative it was prayed that the suit may be decreed for specific performance of the agreement entered between the parties. 3. It was averred in the plaint that the plaintiff and the predecessor-in- interest of the defendants originally hailed from India and on partition of the Sub-continent they migrated to Pakistan; that the predecessor-in-interest of the defendants was allotted land measuring 2717 Kanals, 15 Marlas equivalent to 11724 P.I.Us. In Wandi Bochra in satisfaction of his claim; that to comply with the
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requirements of Martial Law Regulations Nos. 89 and 91, he surrendered 1863 Kanals, 1 Marla out of the said land; that in the scheme prevailing, the defendants were given the first option to re- purchase all the surrendered land at the rate of Rs,10 per P.I.U.; that the parties were on friendly terms and on the basis of said friendship since the defendants were incapable of paying the money involved in exercise of the option, the plaintiff offered to pay it to the Government and it was agreed upon that the plaintiff would be given 1350 Kanals and 12 Marlas of land in lieu of such payment; that this agreement had been entered into in the presence of witnesses; that the plaintiff accepted the offer and consequently defendants Nos.2 to 4 and the predecessor-in-interest of the defendant No,1 appointed the plaintiff as special attorney giving plaintiff powers to do all ancillary actions to get back the surrendered land; that in accordance with the agreement the plaintiff made payment of Rs,36,545.61 from his own pocket to the Government and in accordance with the agreement between the parties, he stood owner in possession of the suit land; that the plaintiff is in possession of the suit land as exclusive owner since 1964 and has been realising the produce and paying the land revenue himself; that during the Consolidation of Holdings proceedings in this village the plaintiff was given a consolidated plot of 1350 Kanals, 12 Marlas while the defendants were given independent plot of the remaining area and consequently the parties are in possession as owners of their respective plots since then; that in this connection mutations were also entered in the revenue record but the defendants in collusion with the revenue staff managed to get the Mutation No,25 rejected on 6-10-1976; that this order of rejection of Mutation is totally wrong, unlawful, fictitious and void; that the land in suit was Benjer Qadeem whereupon the plaintiff spent huge amount to bring it capable of cultivation; that the plaintiff also installed two tube wells from his own pocket in the said land which still exist there and are the source of irrigation of the said land; that the plaintiff also constructed a residential house on the said land; that the plaintiff in the aforesaid circumstances is entitled to get a decree for declaration and in alternative he is entitled to a decree of the suit land in his favour through specific performance of the agreement entered between the parties; that if the Courts hold that the sale of land in favour of the plaintiff is not proved, the plaintiff has been in adverse possession for more than 12 years without any active or inactive interference on the part of defendants and on that score also the plaintiff is entitled to get decree prayed for; that the defendants were asked times and again to mutate the land in suit in favour of the plaintiff and should avoid claiming the land as their ownership but to no avail; that the cause of action accrued to the plaintiff on the rejection of Mutation No,25 on 6-10-1976 and the denial of the defendants. 4. The defendants in their written statement besides preliminary objection regarding payment of court-fee, they totally denied the claim of plaintiff obliging the learned trial Judge to frame the following issues:-- (1) Whether plaintiff has got a cause of action? (2) Whether suit is correctly valued for the purposes of court-fee and jurisdiction? (3) Whether there was an oral agreement between the parties whereby plaintiff was to pay the sale consideration for purchase of surrendered land measuring 1863 Kanals 1 Marla out of which plaintiff was to get land measuring 1350 Kanals 12 Marlas? (4) Whether plaintiff paid the sale consideration for purchase of above said land under the said agreement? (5) Whether possession of land measuring 1350 Kanals, 12 Marlas was given to the plaintiff under the terms of agreement which is in possession of the plaintiff? (6) Whether plaintiff made improvements in the suit land, if so, its effect? (7) Whether plaintiff is owner in possession of the suit land under the agreement and order dated 6-10-1976 regarding the cancellation of Mutation No,25 entered in the name of plaintiff is wrong, unlawful and ineffective on the rights of plaintiff?
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(8) Whether plaintiff is in adverse possession of the suit land for the last 12 years and have matured title as such? (9) Whether defendants are unlawfully alleging to be owner of the suit land and are interfering in the possession of the plaintiff? (10) Whether plaintiff is entitled to the decree for declaration and permanent injunction as prayed? (11) Whether plaintiff is entitled to the decree for specific performance of agreement in the alternative? (12) Relief? 5. Both the parties adduced evidence in support of their claim. The learned trial Judge by his judgment and decree dated 21-5-1992 granted a decree against the defendants for specific performance of the agreement in respect of the suit land as prayed for. The learned trial Judge also granted decree for permanent injunctions against the defendants restraining them to refrain from interference in the possession of the plaintiff with no order as to costs. 6. Aggrieved of the said judgment and decree, the defendants through their attorney Juma Khan filed an appeal in the Court of learned Additional District Judge, D.I.Khan. The learned Appellate Court by his judgment and decree dated 15-2-1993 while accepting the appeal, dismissed the suit of the plaintiff by setting aside the judgment and decree of the Trial Court. Feeling dissatisfied with the findings of the learned Additional District Judge the plaintiff has invoked the revisional jurisdiction of this Court in terms of section 115, C.P.C. 7. Syed Zafar Abbas Zaidi, Advocate appeared for the petitioner, Sardar Allah Nawaz Khan, Advocate represented respondents Nos. 1, 3 and 4 while Mr. Gauhar Zaman Kundi, Advocate appeared on behalf of respondent No,2. The learned counsel for the parties advanced detailed arguments spreading over almost all the day long. 8. The crux of the arguments of the learned counsel for the petitioner is that there is overwhelming evidence in support of the claim of the petitioner that Majeed-uz-Zaman himself and as general attorney of rest of the respondents had entered into an oral agreement to sell the land in suit to the petitioner on payment of charges due to the Government on repurchase of the surrendered land minus 500 Kanals share to be given to the defendants. It has been contended that all the three Mutations i,e, 23, 24 and 25 were entered at the instance of the petitioner in March, 1969 and that while Mutations Nos.23 and 24 were attested, Mutation No,25 was rejected taking undue advantage of the non-availability of the plaintiff/petitioner who during those days had gone to India. It was on his return that when he failed in persuading the defendants to keep on the agreement reached at he was obliged to file a suit for declaration and as a consequential relief for specific performance of the agreement to sell. According to the learned counsel respondent No,2 owing to the absence of the petitioner abroad not only managed with the collusion of the revenue staff to get mutation regarding the transfer of suit land in favour of the plaintiff/petitioner cancelled but he also succeeded in getting entries in the revenue record regarding the petitioner converted into from "owner" to "tenant-at-will". The learned counsel emphasised that all the acts to the detriment of the petitioner were done at the behest of respondent No,2 who has neither denied his general power of attorney in favour of Majeed-uz-Zaman and his obligation to the acts performed by the said general attorney nor has he placed any power of attorney to act on behalf of rest of the respondents. He argued that once this Court comes to a positive conclusion regarding the existence of agreement, the defendants are bound in law for the consequential action towards the fulfillment of the terms agreed upon and thus the plaintiff is entitled to the decree prayed for and the learned trial Judge has, therefore, correctly decreed the suit of the plaintiff. It was argued that though the learned trial Judge has not placed reliance on the evidence pertaining to the conversation of respondent No,2 with P.W. Fayaz Hussain, a common friend of the parties, regarding the existence of the agreement between the petitioner and Majeed-uz-Zaman duly recorded on an
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Audio-Cassette, the findings of the trial Court are not correct because this kind of evidence is lawfully admissible and the learned trial Court ought to have also considered this evidence in support of the contention of the petitioner. The learned counsel submitted that the learned Appellate Court did not give any cogent and convincing reasons to disagree with the findings arrived at by the trial Court and that the judgment and decree of Appellate Court is self- contradictory when on one hand payment of amount for the repurchase of the surrendered land is duly admitted and it has been suggested that the plaintiff should better bring a recovery suit for the said amount but he has despite this payment rejected the plea of the petitioner that the said amount had been paid as a result of the agreement entered into between the parties. According to the learned counsel the agreement entered into was a lawful agreement and its existence was fully established through the evidence on record. The suit was for declaration and permanent injunction and in the alternative for specific performance which was a lawful course adopted by the plaintiff. According to the learned counsel the order of the learned Additional District Judge was not in accordance with the requirements of Order XX, Rule 4(2) of the C.P.C. He is of the view that findings of the trial Court were perfectly in accordance with the facts on record and was a lawful judgment while the judgment and decree of the learned Appellate Court deserves reversal. 9. Mr. Gauhar Zaman Kundi, Advocate/counsel for respondent No,2 contended that the agreement was lacking pre-conditions for its fulfilment i,e, offer, acceptance and payment of consideration. He argued that if any of the three conditions was found not legally fulfilled, the agreement lost its implication as a whole and the decree for specific performance thereof could not be passed. His contention was that there is no evidence in proof of offer and acceptance nor is there any circumstantial evidence to prove the case of the plaintiff/petitioner. 10. Sardar Allah Nawaz Khan, Advocate/counsel for respondents Nos.1, 3 and 4 contended that even if it is conceded for a moment that there was an agreement between the plaintiff and Majeed-uz- Zaman, it was to the extent and share of the latter alone and was not binding on the other defendants. He argued that the petitioner is bound by his assertion in the revision petition and since he has stated in para. 3 of grounds of revision that the option for repurchase of the surrendered land was exercised after the agreement reached at between them, the fact that the option has been exercised much earlier i,e, 28-2-1962 while the power of attorney was executed in favour of the petitioner on 29-4-1964 the whole scheme of the agreement appears to be a concocted and fabricated one. According to the learned counsel neither the time and place nor the names of the witnesses in whose presence the agreement was entered into have been given. He next contended that the entries in the Mutation No,25 were recorded at the behest of the petitioner wherein the possession is claimed with the plaintiff for the last three years and the sale consideration has been recorded as Rs,80,976. On the other hand according to the learned counsel in the plaint the possession of land is claimed since 1964 and the amount paid has been shown to be Rs,36,454. He termed these contradictions as fatal to the entire structure of the suit of the plaintiff/petitioner. 11. Mr. Dost Muhammad Khan, Advocate, assisting Sardar Allah Nawaz Khan, Advocate for respondents 1, 3 and 4, submitted that Inamullah plaintiff admitted in his statement that he had the habit of getting receipt of even very nominal things but curiously enough regarding the land in suit despite alleged payment on account of repurchase of surrendered land, the plaintiff did not bother to get any writing from the defendants to secure and protect his interests regarding obligations of the defendants to transfer the land agreed upon to the plaintiff. 12. I have given my anxious consideration to the various aspects of the matter. The crucial points that emerged from the arguments of the learned counsel for the parties requiring determination at this end may be outlined:
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' Firstly, whether there was an agreement between the parties and the evidence put forth by the parties is sufficient to prove or discredit its existence; ' secondly, whether the parties could enter into an agreement to sell the property which was still in the name of the Provincial Government and had not been transferred in the name of defendants; and ' thirdly, whether the defendants 2, 3 and 4 are bound by terms and conditions entered into between the plaintiff and Majeed-uz-Zaman in case the agreement is found to be lawfully in existence. 13. The plaintiff in support of his claim appeared as his own witness as P.W.10. According to him he came to D.I.Khan to purchase agricultural land. He purchased 1000 Kanals of land in Villages Garra Hayat and Lunda Sharif and also purchased 5 Kanals of land at D.I. Khan-Daraban Road for construction of his residence. He was introduced with Majeed-uz-Zaman at the residence of his uncle Riyasatullah Khan then posted as D.S.P. At D.I.Khan The said Majeed-uzZaman and his family had been allotted about 2700 Kanals of land in Wandi Bochra, out of which 854 Kanals was adjusted against their verified claim while the remaining land was surrendered to the Government. Since under the law prevalent he was entitled to repurchase the said land on payment of Rs,10 per P.I.U. And since he was not personally interested to repurchase the same, he offered him to make the payment of the land and after its allotment to them, they i,e, Majeed-uz-Zaman and his family will retain 500 Kanals while the rest will be given to him in lieu of the said payment. This offer was accepted where after Majeed-uz-Zaman executed a power of attorney in his favour. The copy of the said power of attorney is Exh.P.W.10/1. The plaintiff deposited the entire amount involved in the repurchase of the land from his own pocket. He and Majeed-uz-Zaman went to Paharpur and met Sardar Gul Khan, the then Additional Commissioner (Consolidation) and requested him to make two blocks of the land in question consisting of 500 Kanals and 1350 Kanals respectively and that the block of 500 Kanals should be entered in the name of Majeed-uzZaman and others and should be contiguous to their other lands in the said Village while block of 1350 Kanals should be given to the plaintiff. According to the plaintiff since then onwards while Mateen-uz-Zaman defendant is in possession of said 500 Kanals of land, he himself is in possession of 1350 Kanals of land. He paid the bills regarding fee of consolidation of holdings in respect of land given to him. He managed to connect the area with electricity. He installed two tube wells in the said land. He also constructed 12 houses in the land and planted trees and garden in the said area. In support of his contention he produced Qazi Amanullah (P.W.5). This witness in his statement in Court deposed that: "It was agreed between the plaintiff and the two defendants that Majeed-uz-Zaman and Mateen- uz-Zaman who would exercise their option for the repurchase of the surrendered land as referred above. It was settled between them that the plaintiff would make full payment for all the surrendered land measuring about 1800 Kanals and when complete payment is made to the Government the defendants would retain an area of about 513/514 Kanals as an additional sale consideration to the payment made by the plaintiff." ' This witness further stated that: "In those days i,e, 1962-63, the consolidation proceedings were going on in the said Mauza and it was agreed between the parties that the area of 513/514 Kanals which the defendants had to retain as sale consideration in addition to the cash payment made would be annexed with the then existing holdings of the two defendants and accordingly a Dagg "Compact Block" was carved for them while the rest of the surrendered area measuring about 1350 Kanals of which the plaintiff was the owner, was at a distance of 2 Kilometres from the defendants' holdings. The area of those 1350 Kanals which is the share of plaintiff was "Benjar Qadeem" and undeveloped. The defendants handed over the physical possession of the suit property to the plaintiff who started developing
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land including using of bulldozers and weeding out of shrubs etc. The plaintiff further sunk two tube wells one in 1966 and second probably in 1968-69." ' This witness has further deposed that: "In 1978 Inamullah Khan plaintiff returned from India and told me that the mutation in his name was got cancelled by the defendants. I immediately approached a common friend Syed Ateeq Ahmad, proprietor of Dawn Medical Store, D.I.Khan and requested him to send for Mateen-uz-Zaman. Perhaps day or two later Mateen-uz-Zaman met us i,e, myself and the plaintiff at Dawn Medical Store, D.I.Khan. I rather complained to him about the cancellation of the mutation. To which he explained that he had not motivated the cancellation and as the plaintiff was not present in the "Jalsa-e-Aam" of Tehsildar, so Tehsildar Sahib himself cancelled the mutation and that he was readily prepared to get the same entered again. Throughout this long period of my association with the parties, the defendants always acknowledged the plaintiff to be rightful owner of suit land and the proprietary rights of the plaintiff were never interfered or challenged in any express or implied manner. The .Plaintiff has always been enjoying the suit property uninterruptedly and without exclusion of any one including defendants since his first entry in this field as owner back in 1962-63." 14. This witness was cross-examined but no question disputing the assertion of this witness with regard to his statement extracts whereof have been quoted above was put to this witness which under the theme of Evidence Act for all intents and purpose goes unchallenged and which fully corroborates the assertion of the plaintiff regarding the payment of money involved in the repurchase of the surrendered land and agreement between the parties that on retransfer of the surrendered land, the land in suit will be mutated in the name of the plaintiff while 500 Kanals of land would be retained by the defendants and that the plaintiff was put in full possession of the land in suit which was given an independent block during the Consolidation of Holdings proceedings. This witness at the time of his appearing as a witness was posted as Additional Secretary, Government of N.-W.F.P., Local Governments and Rural Development Department, Peshawar. He remained Additional Commissioner, Collector-cum-Resident Magistrate and also as Deputy Election Commissioner and in the absence of any motive ascribed to his deposition in favour of the plaintiff, I see no reason to discredit his evidence. The entering into agreement by the parties is further supported by Syed Fayaz Hussain Shah Bukhari (P.W.6). According to this witness he was on visiting terms with the litigating parties and when dispute over the suit land erupted between the parties he was requested by the parties to mediate to save them from litigation and accordingly he approached Mateen-uz-Zaman and discussed the matter with him and with a view to apprise himself of the real dispute he recorded the conversation between him and Mateen-uz- Zaman on an audio-Cassette which was produced in Court as P. W.6/1. The transcript whereof is reduced into writing vide Exh.P.W.6/2. The perusal of the transcript of the conversation recorded on an Audio-Cassette also has a reference to some sort of agreement having been entered into by the parties. Although there was no specific ground taken by the plaintiff regarding recording of the conversation between Mateen-uz-Zaman defendant/respondent and yayaz Hussain Shah Bukhari (P.W.6) and the introduction of the said conversation in the form of producing Fayaz Hussain Shah P.W.6, suffice it to say that section 164- of the Qanun-e-Shahadat makes such evidence admissible and if the plaintiff succeeds in proving his case through reliable evidence it shall be a circumstance to lend support to his contention. The admissibility of the conversation on an Audio- Cassette in evidence was approved by the august Supreme Court of Pakistan in Zafar Iqbal v. Bashir Ahmad PLD 1988 SC 109. The plaintiff is further supported by the statement of Sardar Gul Khan (P.W.7), a retired Deputy Commissioner. The relevant portion of his statement may be reproduced as under:--
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"Once I was on tour to Paharpur when Majeed-uz-Zaman came to me and requested that the lands owned by him and the plaintiff should be given to them into two independent pieces. I told him that generally public is interested to have the land in one block and why he desired to have the same into two blocks. He told him that he intended to transfer some land to the plaintiff. I directed A.C.O. To adjust/accommodate the parties. I do not have anything else to add in my statement." 15. This witness at the crucial time when according to him Majeed-uzZaman had approached him, was posted as Additional Deputy Commissioner (Consolidation) on which post he remained from 1961 to 1966 when the Consolidation of Holdings proceedings in this district were in progress. This admission on the part of responsible person in the absence of any material of hostility on his part towards the defendants, in my opinion, establishes the existence of the agreement between the parties. 16. The next witness produced by the plaintiff in support of agreement is Haji Khuda Bakhsh (P.W.8) who has stated that the parties had entered into an agreement that after repurchase of the surrendered land the plaintiff will pay the instalments and give land measuring 500 Kanals to Majeed-uz-Zaman while rest of the land will be retained by him. According to him during the Consolidation proceedings the land measuring 500 Kanals was given to…
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