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Petitioner: Haji ABDUL GHAFOOR through Legal Heirs VS Respondent: MUHAMMAD HAYAT through JUDGMENT
Court Name: Sindh High Court Judge(s): Muhammad Mujeebullah Siddiqui Title:Haji ABDUL GHAFOOR through Legal Heirs vs MUHAMMAD HAYAT through
JUDGMENT
Reported As: 2007 YLR 875 Result: Revision accepted Judgment JUDGMENT ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---This revision application is directed against the judgment and decree dated 29-8-1984 passed by the learned District Judge, Thatta dismissing Ist Appeal No,37/82 and upholding the judgment and decree dated ,27-9-1982 passed by the Senior Civil Judge Thatta, whereby the F.C. Suit No,79/80 filed by respondent Muhammad Hayat was decreed. 2. The relevant facts are that respondent Hayat filed suit for Specific Performance of Contract and Injunction alleging that the agricultural land bearing S. Nos.l to 69; 71 to 81; 102 to 105; 111 to 114; 475 to 499; 638 to 642 admeasuring about 512' Acres belonged xto Abdul Ghafoor son of Sher Ali Nizamani, Mst, Amina wife of Sanaullah Khan Nizamani, Ahmed Khan, Muhammad Khan and Mst. Hawa sons and daughters of Sanaullah Khan Nizamani. It was alleged that the land is situated in the riverian area within the protective bund of Indus River. The -land remains partially submerged in the river water and reappears from time to time. It was further alleged that under and agreement of sale dated 4-11-1965 applicant Abdul Ghafoor agreed to sell S. Nos.64 to 69 and 71 to 81 admeasuring 34-36 Acres from the above land for Rs,3,500. Applicant Ghafoor received Rs,1,200 and the balance was payable at the time of execution of the sale-deed. Again on 9-12-1969 applicant Haji Abdul Ghafoor for himself and other owners agreed to sell the entire land ad measuring 512 Acres for Rs,64,000 to the plaintiff. The applicant received Rs,3,000 and put the plaintiff/respondent in possession of the suit-land. Again on 21-8-1975 the other co-owners Mst. Amina, Ahmed, Khan, Muhammad Khan and Mst. Hawa agreed to sell the suit-land to the plaintiff/respondent and thereby confirmed the previous agreement executed by the defendant No, 1 /applicant on their behalf. It was averred that from time to time the defendants- have been
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receiving the part payments of the suit-land and executing agreements and receipts. In all they received Rs,13,500 till the filing of the suit. It was Contended that the Forest Department raised dispute over some portion of the suit-land. The defendants, therefore, filed Suit No,30/72 for Declaration and Permanent Injunction against the Government and the plaintiff/ respondent Hayat. The suit was decreed on 26-11-1972. At this stage it would be appropriate to refer the contents of Suit No,30/72 filed by Abdul Ghafoor and others. It was stated in the plaint that they own 512 Acres of land which is their ancestral property. By virtue of section 184 of the West Pakistan Land Revenue Act, 1967 and being in possession of the entire land which reappeared from the river they had proprietary rights as on 31-12-1970 and must be deemed to be the owners of the land for all intents and purposes. They further contended that there was no authorised forest on the suit- land at any time. It was alleged that in or about the year 1968 they came to know that the D.F.O. Thatta leased out an area of about 130 Acres from the suit-land to defendant Muhammad Hayat claiming the same to be the government land vesting in the Forest Department. Defendant Muhammad Hayat took forcible possession of the land under the purported authority of the Forest Department and brought it under Banana cultivation. On the protest of the plaintiffs, defendant Muhammad Hayat referred them to the Forest Department authorities, but to no avail. It was alleged that defendant Hayat was convinced that the land taken up by him on lease were not the Government lands but he insisted that he would surrender the possession to the Forest Department unless plaintiff obtained a Court order. They, therefore, filed the suit seeking declaration that the plaintiffs were the owners of the suit-land and that the Forest Department had no right, title or interest therein. The permanent injunction was also sought against defendant No,2 Muhammad Hayat from restoring the possession of land to defendant No, 1 Forest Department. The survey numbers were shown in the said suit. Statement of applicant Abdul Ghafoor was recorded in Suit No,30/70 wherein he stated that he came to know in the year 1968 that defendant'No,2 Flayat encroached upon 130 Acres of his land. The written statement filed by Hayat in Suit No,30/72 has not been brought on record in this case but the deposition of Haji Abdul Ghafoor contains note that Muhammad Hayat had not disputed the claim in his written statement. In cross-examination to the counsel for defendant No,2 Abdul Ghafoor stated that when he pressed defendant No,2 Hayat to surrender the possession of land to him he offered to purchase the same. There was an agreement between them for purchase of the land. Abdul Ghafoor further stated that defendant Muhammad Hayat spent a lot of money and got the land levelled and made it cultivable. He further stated that the land continues to be in possession of defendant Hayat and if he succeeded in getting decree he would' sell the land to defendant No,2 which is in his possession. In cross- examination to Mr. Jhamatmal the then Assistant Government Pleader, Abdul Ghafoor stated that the agreement for sale of land to Hayat was at the rate of Rs,125 per Acre. He further stated that he does not remember whether the agreement was made before or after the filing of the suit but it was entered in or about that time. It was further stated that the remaining land was also given to' defendant No,2 by an agreement. Agreement regarding the suit-land other than the land given, to Hayat by the Forest Department was made 2/3 months before the filing of the suit. It was an oral agreement. He further stated that defendant Hayat Was in possession of 100 Acres of land other than 130 Acres given to him by the Forest Department. As I have already observed the suit was decreed in the year 1974. In Suit No, 12/80' Muhammad Hayat alleged that he was all along ready and willing to perform his part of the contract and to pay the balance amount but the defendants avoided the performance of contracts and hence this suit. 3. The defendant No,l Abdul Ghafoor filed written statement alleging that the appeal was filed by the Government against the judgment and decree in Suit No,30/72 being Appeal No, 12/75 which was still pending adjudication in the High Court. Abdul Ghafoor admitted that he had taken a loan of Rs, 1,200 from Muhammad Hayat as he needed money for the purpose of filing the suit against
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the Government for declaration of his title. He denied the agreement to sell in favour of plaintiff and contended that Hayat taking advantage of the weak position of defendant.No,l got the document executed from him as sale agreement for an area of 34-36 Acres. He further denied the execution of sale agreement for sale of entire land admeasuring about 512 Acres for a consideration of Rs,64,000 and accepted Rs,3,000. The part payment from time to time was also denied during the pendency of the suit. The defendants Mst. Amina, Ahmed Khan, Muhammad Khan and Mst. Hawa entered into compromise with plaintiff Muhammad Hayat on 30-10-1980 and they were deleted from the array of parties as defendants. The suit thus proceeded between Muhammad Hayat and Abdul Ghafoor and the following issues were framed. "(1) Whether the defendant No,l is an agriculturist within the meaning of D.A.R. Act? (2) Whether the defendant No,l had agreed to sell on 4-11-1965 S.Nos.64 to 69 and 71 to 81 measuring 34-36 Acres from the said S. Nos. For Rs,3,500 and received Rs, 1,200 as its part payment? (3) Whether the defendant No,l himself and for other defendants had agreed to Sell on 9-12-1969 land measuring 512 Acres from the above S. Nos. For Rs,64,000 and received Rs,3,000 as part payment of the same? (4) Whether the defendant No,l has received Rs, 13,500 as part payment of the consideration against the said alleged agreement, for suit-land from the plaintiff till the institution of the suit? (5) Whether the plaintiff has been in possession of the suit-land since the alleged sale to him and that he has spent lacs of rupees on the development of the suit-land? (6) Whether the defendant No,l has received no money from the plaintiff except Rs, 1,200 and Rs,200, Rs,500 and Rs,300 only as loan from the plaintiff and not as part payment of the consideration of the suit-land? (7) Whether no cause of action has accrued to plaintiff to bring the suit against the defendant No,l? (8) Whether the suit is not maintainable in law? (9) Whether the suit is time-barred? (10) Whether the suit is undervalued and insufficiently stamped? (11) What should the decree be? 4. The plaintiff examined himself only on the above issues while the defendant Haji Abdul Ghafoor examined himself and one D.W. Muhammad Ismail. Plaintiff Muhammad Hayat stated that the defendants were the original owners of the suit-land 0.50 paisas were owned by defendant No,l Haji Abdul Ghafoor and the remaining 50 paisas share were owned by defendants Nos.2 to 5. Defendant No,l agreed to sell about 34 Acres from the suit-land in the year 1968 for consideration of Rs,3,000. He received Rs, 1,200 from him and put him in possession of 34 Acres. After about one year the defendant further agreed for self and on behalf of the other defendants to sell the remaining land to him for a sale consideration of Rs,64,000. The defendant No,l received Rs,3,000 from him and put him in possession of the entire suit-land. In the year 1975 defendants Nos.2 to 5 agreed to sell their share, which was already agreed to be sold by defendant No, 1. After this agreement the defendants received different amounts from time to time aggregating Rs, 13,500 and executed receipts and agreements in his favour. On- some portion of the suit-land, Forest Department raised dispute and defendants filed a suit for declaration and injunction against him and Forest Department. This suit was decreed by the learned District Judge in the year 1974. He further stated that he developed the land and raised Banana crop. He also raised one protective bund for the protection of river action. The development of the land cost him about Rs,2,50,000 and the raising of protective bund about Rs,8,00,000 to 9,00,000. At the expenditure of Rs, 1,25,000 he got the watercourse, excavated. The water was flown in the watercourse through pumping machine. He further stated that defendants were approached for execution of sale- deed, but he was kept on false hopes and, therefore, he filed the suit. He stated that during pendency of the suit the
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defendants Nos.2 to 5 compromised and on submission of compromise application the Suit against the said defendants was decreed. He further stated that he was prepared to pay the balance amount to defendant Haji Abdul Ghafoor and perform his part of contract. He produced the certified true copy of decree in Suit No,30 of 1972, which was filed by defendant Haji Abdul Ghafoor against him and the Forest Department as Exh.39. He further produced certified true copy of the statement of defendant Haji Abdul Ghafoor in the above suit as Exh.40. He stated that in the statement defendant Abdul Ghafoor admitted the sale transaction in his favour. He further produced receipt dated 10-3-1970 executed by defendants Nos. 1 to 3 as Exh.41. According to him, this receipt was in the handwriting of defendant No, 1 and was signed by defendants. Nos. 1 to 3 in his presence. He further produced receipt dated' 2-10-1970 allegedly written and signed by defendant No,l as Exh.42. He also produced three other receipts Exhs.43, 44 and 45. He produced agreement dated 5-11-1965 Exh.46 executed by defendant No, 1 in respect of 34-36 Acres of land. According to him, it was signed by defendant for self and on behalf of other defendants and was attested by Joint Sub-Judge, Hyderabad. He also produced another agreement dated 9-12-1969 Exh.47 executed by defendant No,l for self and on behalf of other defendants .He produced another agreement dated 24-2-1975 Exh.48 executed by defendant Abdul Ghafoor. According to him, it was written in the hand of defendant No,l. He stated that the land was in his possession and he was paying land revenue. In cross-examination he admitted that about 100/130 Acres of land were leased out to him by Forest Department in the year 1967 and the defendants had filed suit in District Court seeking declaration that the land leased out by Forest Department belonged to them. He further admitted that he got possession of the land, which was leased out to him by the Forest Department. He stated that this land was leased out for a period of three years. He further stated that while he was holding the land on lease from Forest Department an area of about 35 Acres which belonged to the defendants was agreed to be sold to him. He further held 80 Acres of land on Yak Sala grant from Mukhtiarkar Ghora Bari. He further stated that he was defendant in the civil suit filed by defendants against Forest Department in the District Court. He had filed the written statement. He stated that he does not remember whether he had produced the documents, which he has produced in this suit, in Suit No,30 of 1972, which pertained to the purchase of suit-land by him from the defendants. He further stated that he does not remember if he mentioned in the written statement in the Suit No,'30 of 1972 that he had purchased the lands from defendants. He stated that the sale agreement Exh.46 was written by a Stamp vendor in the presence of Ali Bukhsh and Gurgage. He stated that it was attested by Joint Sub-Judge in presence of the parties and witnesses at Hyderabad, but he does not remember whether the office of Joint Civil Judge was situated in District Court building or Civil Court building. He further explained that Mr. Bakht Ali Jakhrani was the Joint Civil Judge, who was known to him prior to the attestation of sale agreement Exh.46. He denied the suggestion that Exh.46 is a false document and does not bear the signature of Abdul Ghafoor and that it was prepared after filing of the suit. He further stated that lease by Forest Department was cancelled after two years and the possession of the land was demanded by Forest Department, but he did not hand over the possession, because there was stay order by the Court and he was restrained from handing over possession to Forest Department. He stated that the sale agreement Exh.47 was executed at Hyderabad. These documents were also written by stamp vendor and his witnesses were Abdul Rashid and Muhammad Umar. He conceded that the sale agreement Exh.47 does not bear his signature. He further stated that the survey numbers are not given in the sale agreement Exh.47 and he was already in possession of the land, therefore, no mention was made about possession. He further conceded that it is not .Mentioned in sale agreement Exh.47 that l/3rd of the land of the defendants was under river action. l/3rd consisted of sand dunes and l/3rd was under cultivation as stated by him at trial. He denied the suggestion that the sale agreement Exh.47 was not signed by defendant Abdul Ghafoor and he
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has prepared a false document to save his crop from the Forest Department as they had cancelled his lease. He further denied the suggestion that the defendant No,l Abdul Ghafoor had not executed any sale agreement with him regarding suit-land. He further stated that he paid the amount shown in the receipt Exh.41 at his residence at Latifabad, Hyderabad. ' According to him, Murad Ali and'Iqbal Baloch were sitting at that time but those witnesses did not sign the receipt Exh.41. He denied the suggestion that receipt Exh.41 was false. He admitted that the receipt Exh.42 does not bear his signature and the signatures of witnesses. He further stated that he paid amount shown in the Exh.42 at his residence at Latifabad. He conceded that receipt Exh.43 does not bear the signatures of witnesses and so also the receipt Exh.44. He stated that all the payments were made by him at his residence at Latifabad. He further stated that he paid Rs,500 shown in Exh.46 at his land in presence of witness Muhammad Hassan Khushk and Mistary Lashkari. He denied the suggestion that receipt Exh.48 is false document. He further denied the suggestion that defendant Abdul Ghafoor had taken the amount shown in the receipt Exhs.42 and 44 and other receipts as loan to pursue the civil suit, which he had filed against the Forest Department. He further admitted that he did not serve any notice on defendant Abdul Ghafoor asking the execution of sale deed before filing the suit. 5. The applicant/defendant Haji Abdul Ghafoor deposed in his statement Exh.52 that in 1970. Forest Department encroached upon his land and leased out the same to plaintiff. The lease was for an area of 130 Acres. He, therefore, filed suit against the Forest Department and plaintiff Muhammad Hayat. The suit was decided in this favour. He stated that he never sold the suit-land to plaintiff, but received some amount from the plaintiff as loan. He further stated that he received Rs, 1,200 from one Haji Murad Ali and received the amount of Rs,200, Rs,300 and Rs,500 at different times as he was in need of money for the expenses of litigation. He stated that he has not executed any agreement of sale in respect of his land in favour of plaintiff.- He also denied to have received Rs, 13,500 from plaintiff towards the sale of suit-land. He specifically stated that Exh.47 does not bear his signature. He further stated that he executed one agreement with Haji Murad Ali in the year 1965, which was for the sale of 35 Acres of land. He further stated that he never handed over possession of the suit- land to the plaintiff. In cross-examination he denied his signature on the receipt Exh.42 and further denied that it was in his handwriting. He further denied his signature on receipt Exh.43 and sale agreement Exh.46. He further stated that he does not remember if he stated in his statement - in Suit No,30 of 1972 that he agreed to sell the suit-land to Muhammad Hayat after the suit was decreed. He conceded that there was an agreement between him and plaintiff that he will sell the land to plaintiff, which was in his possession. He stated that receipt Exh.45 is alleged to have been signed by his son, but he cannot say whether it bears the signature of his son or not. He denied the suggestion that Exhs.41, 42, 43, 44 and 48 were in his handwriting and were bearing his signatures. In cross-examination he denied the signature on sale agreement Exh.47, but admitted his signature on Exh.46 and stated that he executed this agreement after getting consideration and fully Understanding the document (The handwriting of the defendant was obtained by the Court at the request of learned counsel for plaintiff and it was placed on record as Exh.55). He denied the suggestion that he received Rs, 1,200 from plaintiff and agreed to sell the land admeasuring 34-36 Acres. He stated that the sale agreement was executed by him in favour of Haji Murad Ali. He denied that in the year 1969 the entire suit- land was agreed to be sold to plaintiff for consideration of Rs,64,000 and he received Rs,3,000 from plaintiff. He denied the receipt of Rs, 13,500 from plaintiff towards the part payment of sale consideration. He reiterated that he received Rs,200, Rs,300 and Rs,500 as loan from plaintiff. He admitted that suit-land is in possession of the plaintiff but denied that he has handed over the possession of the land to the plaintiff. At the time of execution of agreement to sell. D.W. Muhammad Ismail deposed that in his presence
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defendant had taken Rs,500 from the plaintiff as loan. The learned trial Court after hearing the arguments decided the issues as follows:- "Issue No,l As discussed. Issue No,2 Affirmative. Issue No,3 Affirmative. Issue No,4 Affirmative. Issue No,5 Affirmative. Issue No,6 Not pressed. Issues Nos.7,8,9 & 10 As discussed. IssueNo,il Suit decreed." 6. While deciding Issue No,2 the learned trial Court held that the defendant admitted his signature on Exh.46 but stated that he had executed sale agreement with Haji Murad Ali. It was observed by the learned trial Court that the admission of defendant No,l about execution of sale agreement Exh.46, but denial in cross- examination created suspicious character in the mind of learned Judge. It was observed that, defendant No,l has not disproved the genuineness of the document. On the contrary his admission supports the version of the plaintiff that this agreement was executed between the parties hence, issue decided in affirmative. 7. While deciding Issue No,3 the learned trial Court observed that the defendant No,l denied the execution of sale agreement Exh.47 on 9-12-1969, but the plaintiff has produced statement of defendant in Suit No,30 of 1972 as Exh.40, in which the defendant No,l stated that plaintiff who was defendant No,2 in that suit, offered to purchase land from him and such agreement was executed between them. The learned trial Court further observed that there is admission of the transaction between the parties by the defendant No, 1 in his own statement in Suit No,30 of 1972. It was further observed that although defendant No,l has denied the execution of sale agreement Exh.47, but he has admitted to have received Rs,200, Rs,300 and Rs,500 at different times. The receipts were produced by the plaintiff and no question was put do plaintiff in cross- examination that Exh.47 or other receipts are forged documents. It was further observed that the defendant No,l had failed to prove that he has not executed and signed the receipts and sale agreement Exh.47 with these observations he decided the Issue No,3 in affirmative. 8. While deciding Issue No,4 which pertained to the receiving of Rs, 13,500 as part payment of sale transaction against the alleged agreements for sale of the suit-land, the learned trial Court observed that he has discussed this issue thoroughly while deciding Issues Nos.2 and 3 and it does not require further discussion. The learned trial Judge however, observed that he will put some light on it. He then observed that plaintiff produced receipts of payment Exhs.41, 42, 43 and 44 and two agreements Exhs.46 and 47. It was further observed that the plaintiff has alleged the payment of Rs,47,000 to defendant No,l and defendant No,l has not rebutted this fact nor he has proved that any amount was given to him as loan. With these observations the issue was decided in affirmative. 9. The Issue No,5 was decided in affirmative simply for the reason that the plaintiff was in possession of the suit-land. 10. The finding on Issues Nos.6 to 10 are not material and, therefore, I will to advert to them. 11. While deciding Issue No, 11 the learned trial Court observed that the plaintiff has prayed for the execution of sale deed after receiving the balance amount and lias also prayed that defendant be restrained from interfering in his peaceful possession. The plaintiff has proved his case and, therefore, the suit was decreed. 12. The appellants being aggrieved preferred appeal before the learned District Judge, Thatta. It would be appropriate to reproduce the findings of learned 1st Appellate Court on Issues Nos.2, 3,4 5 and 9, which read as follows:- "Issue No,2. ' On this issue there is positive statement of the respondent/ plaintiff which briefly reads as under:-
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' "The defendants were the original owners of the suit-land. 0.50 paisa owned by defendant No,l' and the remaining 0.50 were owned by defendant Nos.2 to 5. Defendant No, 1 agreed to sell about 34 Acres from the suit-land to me in the year 1968 for about 3,000, he received Rs, 1,200 from me and put me in possession of those 34 Acres." ' The respondent also produced the relevant agreement (Exh.46) which fully supports his version. In cross- examination the above oral and documentary evidence has remained unshaken. He deposed that Exh.46 was executed before the Joint Sub-Judge and FCM Barkat Ali Jakhrani on 5- 11-1965. This piece of evidence has almost gone unchallenged and unrebutted. On the contrary in cross- examination, he reiterated that Mr. Bakhat Ali Jakhrani was known to him (the respondent) prior to the attestation of Exh.46 as the respondent was also original resident of Jaccobabad and came to Deh Marho Vighore as Zamindar in 1965. He also denied the suggestion that Exh.46 is false document and it was prepared after filing of the suit. ' It is also a matter of record that admittedly the appellant/defendant No, 1 had filed Suit No,30 of 1972 for declaration and injunction against the Province of Sindh and Muhammad Hayat (who was defendant No, 2 and is now…
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