Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: KHUDAYAR KHAN AND 9 OTHERS VS Respondent: QUTUB KHAN AND ANOTHER
Court Name: Sindh High Court Judge(s): Z.C. Valiani Title: KHUDAYAR KHAN AND 9 OTHERS vs QUTUB KHAN AND ANOTHER Case No.: Civil Appeal No, 74 of 1968 Date of Judgment:1982-01-18 Reported As: 1983 CLC 144 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' The appellants abovenamed, being aggrieved by judgment and decree dated 24-10-1968 of the learned Additional District Judge, Sanghar, by which Suit No, 33 of 1965, filed by respondent No, 1 against appellants and respondent No, 2, for declaration and possession in respect of 63-174 acres of agricultural land, situated in Deh Hamzo Ji Khad, Taluka Sanghar was decreed, have preferred his appeal on the following facts and grounds : 2. Ghulam Sarwar Mari (respondent No, 2) owned fourteen annas share in a rupee in 497.13 acres of agricultural lands in Taluka and District Sanghar. This -/14/- share of Ghulam Sarwar works out to be about 435.7 acres. He sold by registered sale-deeds 70 acres out of these agricultural lands to one Sohrab Kban on 30-1-1961 and 64.9 acres to Ali Akbar Shah on 13-3-1961, leaving a balance of about 301 acres as his share in the said agricultural lands. Since these two sales were made by Ghulam Sarwar at a time when he owned more than 300 acres of land, they were not hit by the provisions of sections 3 and 4 of the Sind Rural Credit and Land Transfer Act, 1947 (Sind Act No, XLIX of 1947) (hereafter for brevity called Sind Act, 1947). The relevant entries in respect of these sales were accordingly made in the Record-of-Rights in favour of the purchasers, without any reference to or permission from the Deputy Commissioner, Sanghar. 3. On 23-5-1961, Ghulam Sarwar (respondent No, 2) sold by a registered sale-deed 63.174 acres to Qutab Khan, respondent No, 1. Since this sale was made at a time when Ghulam Sarwar (respondent No, 2) owned about 301 acres of agricultural land, the provisions of the Sind Act of 1947 were clearly attracted and no mutation in the survey record in respect of this sale could be made without the necessary sanction from the Deputy Commissioner.
---
## Page 2
4. On 7-7-1961, Ghulam Sarwar (respondent No, 2) sold almost his entire holding of these agricultural lands by a registered sale-deed in favour of the appellants. The appellants moved an application on 31-?-1961 before the Deputy Commissioner, Sanghar, for according post facto permission for the purposes of almost the entire holding of Ghulam Sarwar (respondent No, 2). During the pendency of this application of the appellants, Ghulam Sarwar (respondent No, 2) is alleged to have also moved an application on 18-9-1961 before the Deputy Commissioner Sanghar requesting for post facto permission for sale of 63.174 acres of his lands to respondent No, 1. He did not disclose in this application the name or names of the purchaser or purchasers. On this application the following order was passed by the Deputy Commissioner, Sanghar on 2-3-1962 :- "The request for post facto permission is hereby granted to the applicant as the case is covered by rules framed under S. R. C. And I. T. Act and the transaction is in conformity with the provisions of M. L. R. 64, Permission, however, does not determine any right or title over the land." ' After this order was passed the application of the Appellants dated 31.8-1961, referred above, came up for decision before the Deputy Commissioner, Sanghar, on 12-4-1962 and he passed the following order thereon :- "The Deputy Commissioner observes that out of above land, Ghulam Sarwar owner of the land, has sold S. Nos. 434/1 to 4, 436/1 to 4, 435/1 to 4, 437/1 to 4, 428/1 to Ali Akbar Shah and S. Nos. 439/1, 2, 438/1 to 4, 457/1 to 4, 440, 1, 2, 458/1, 2, 461/1, 2, to Qutab Khan also and has apparently defrauded the applicant for which a separate enquiry has been ordered to be made through the S. D. M., Sanghar. Remaining S. Nos. 424/1, 2, 425/1, 2, 426/1 to 4, 427, 428/2, 429/1, 2, 3, 430 to 430, 462, 463/1, 2, 456, 455, 454/1, 4, 282, 283, 474/1, 2, admeasuring about 163.39 acres of Deh Hamza-ji-Khad sold to Allahyar Khan are not involved in the above two transactions. Post facto permission is therefore accorded to Allahyar Khan in respect of these S. Nos. Only. 'Question of permission, in respect of the disputed S. Nos. Will be considered after enquiry is completed by the S. D. M. In the matter and his report is received Permission however does not determine any right or title over the land." 5. It will be seen from the above order, that the Deputy Commissioner accorded the necessary permission under the Sind Act 1947, for the undisputed survey numbers and ordered the Deputy Collector and S. D. M. To enquire and report about the disputed survey numbers. The Deputy Collector and S. D. M. Held the necesssary enquiry and recorded the statement of Ghtilam Sarwar (respondent No, 2) on 25-5-1962. In this statement Ghulam Sarwar stated, that "on account of non- payment of money, I had privately cancelled the sales of the land which I had sold to Qutub Khan and Ali Akbar and then sold out the same to Rai Sahib Allahyar and others. The amount which I had received out of it was refunded to them by me; before the Sub-Registrar, I had also made such application to the Mukhtiarkar, who inspected his record and got me such certificate from the Tapedar, on the strength of which the sale was registered in favour of Rai Sahib Allahyar and others." 6. In this statement Ghulam Sarwar (respondent No, 2) also denied to have filed the application referred to in para. 3 above dated 18-9-1951, before the Deputy Commissioner, Sanghar, for according post facto sanction on which the order 2-3-1963 was earlier passed and which has been quoted above. He said that "the application dated 18-9-1961 addressed to the Deputy Commissioner, Sanghar regarding permission for the sale of the land in favour of Qutub Din has not been made by him. It has been made by Ali Akbar Shah. It bears his signature. It does not bear my signature. I have no knowledge at all". On the basis of his statement of Ghulam Sarwar and the report of the Deputy Collector and S. D. M. The Deputy Commissioner, Sanghar accorded post facto permission to the appellants by his order dated 29-6-1962 in the following words :- "Post facto permission for purchase of S. Nos. 424/1, 2, 425/1, 2, 426/1 to 4, 4127/2, 429/1, 2, 3, 430 to 433, 441, 462, 463/1, 2, 456, 455, 456/1, 4, 282,283, 474/1, 2 admeasuring about 163-39 acres of Deh
---
## Page 3
Hamzaji-Khad have already been accorded under this office No, 1/MC-3580 dated 12-4-1962. As regards S. Nos. Viz. 434/1 to 4, 436/1 to 4, 435/1 to 4, 437/1 to 4, 428/1 sold by Ghulam Sarwar owner of the land to Ali Akbar Shah S. Nos. Viz. 438/1, 2, 438/1 to 4, 457/1 to 4, 440, 459/1, 2, 458/1, 2, 461/1, 2 sold to Qutub Din under registered deed, Ghulam Sarwar owner of the land has given statement before the S. D. M., Sanghar to the effect, that he had not applied for permission in respect of land sold to Qutub Din. He further says that he had not received consideration from Ali Akbar Shah and Qutub Din and that the sale may be cancelled. He says that the sale transaction entered into by him with Allahyar Khan is valid one. Accordingly the required post facto permission for purchase of S. Nos. Is hereby granted to Allahyar Khan. ' Permission however does not determine any right of title over the land." 7. Qutub Din (respondent No, 1) filed an appeal before the Commissioner against the above- quoted order of the Deputy Commissioner dated 29-6-1962. Another appeal was filed by Ali Akbar. An application was also filed by the appellants before the Commissioner ordering for the mutation of records in their names. Both these appeals and the application of the appellants were disposed of by the Commissioner by his order dated November 1965, which was produced in the lower court as Exh. 101. By this order the Commissioner dismissed both the appeals and maintained the impugned order dated 29-6-1962. It is significant to note, that the respondent No, 1 admitted in his statement in Court (Exh. 77), that he had filed an appeal against this order of the Commissioner before the Board of Revenue, which was pending at that time. 7. It will not be out of place to mention here that Tahalram, who was examined as witness No, 6 for the plaintiff filed a suit in August, 1962 against both the respondents and all the appellants praying for specific performance of an alleged agreement for sale of 151.29 acres out of these agricultural lands in his favour by Ghulam Sarwar (respondent No, 2). This suit was dismissed on contest, by order dated 23-12-1963 by a learned Additional District Judge. Shortly after dismissal of this suit on 23-12-1963 Tahalram appears to have lest possession of these lands. 8. The appellants filed a suit (Suit No, 20 of 1964) against the respondent No, 2 and two others for possession and for declaration of an alleged lease executed by Ghulam Sarwar (respondent No, 2) in favour of the other two defendants as void. In this suit a Receiver was appointed by the Court, who took possession on 12-9-1964 of all the cultivated and uncultivated lands, formerly belonging to Ghulam Sarwar (respondent No, 2). This suit was decreed in favour of the appellants on 22-9- 1965 and the Court ordered the Receiver to hand over the possession of the suit lands to the appellants, alongwith the produce. The appellants accordingly came in possession on 25-9-1965 of all the lands purchased by them from Ghulam Sarwar (respondent No, 2). It is significant to note, that the Receiver took possession of the lands in question on 12-9-1964 from one Haji Dur Mohammad and not from the respondent No, 1, and that during all this period, when the appellants were put in possession of the lands in question on 25-9-1965, the respondent No, 1 never appeared on the scene at all. 9. The respondent No, 1 filed a suit on 14-10-1965 against the 10 appellants and Ghulam Sarwar (respondent No, 2) alleging inter alia, that the parties to the suit were agriculturists of the Sind Agriculturists' Relief Act, 1879, were not applicable to the suit, that Ghulam Sarwar (respondent No, 2) owned 591 acres of land and as such the provisions of the Sind Act, 1947 did not apply to the sale of 63.17k acres of agricultural land made by him in his favour by a registered sale-deed on 23-5- 1961, that although no permission was necessary under the Sind Act of 1947, he obtained the necessary permission for this sale, that Ghulam Sarwar handed over possession to him of the lands in question and his name was mutated in the Record-of-Rights that on 7-7-1961 Ghulam Sarwar (respondent No, 2) sold the same lands alongwith some others to the appellants by a registered sale-deed and the appellants purchased the same having full knowledge of the earlier sale in his
---
## Page 4
favour, that the appellants obtained by fraud a certificate (Exh. 7) from the Tapedar showing the lands in question standing in the name of Ghulam Sarwar (respondent No, 2), that the order of Ghulam Sarwar (respondent No, 2), that the order of the Deputy Commissioner dated 2-3-1962 under the Sind Act of 1947, had become final Deputy Commissioner's subsequent order dated 29- 6-1962, according permission in favour of the appellants was illegal and void ab initlo, that the suit filed by the appellant against Ghulam Sarwar and two others for possession was collusive and the possession taken by the appellants from the Receiver was illegal. The plaintiff/respondent No, 1 valued the suit at Rs, 200 for the relief of declaration, that he was the owner of 63.17/ acres of land mentioned in the Schedule to the plaint and that the sale-deed dated 7-7-1961 in favour of the appellants was null and void as against the plaintiff, and at Rs, 100 for the relief in respect of the delivery of possession to him of the lands in dispute. He also claimed mesne profits during the pendency of the suit till the delivery of possession, but neither put any value on this relief nor paid any Court-fees thereon. He valued the suit for the purposes of court-fees at Rs, 300, and paid the court-fees of Rs, 22-8, thereon and valued the suit for the purpose of jurisdiction at Rs, 1,88,500. An application under Order XL, rule 1, C. P. C. Was also filed alongwith this suit, which was rejected. 10. The appellants as defendants Nos. 1 to 10 filed their written statement on 5-5-1966. They averred inter alia, that the provisions of Sind Agriculturists Relief Act, 1879, were applicable to this suit, that they had no knowledge about the previous sale to the plaintiff by Ghulam Sarwar, that the holding of Ghulam Sarwar not above the minimum prescribed under the Sind Act of 1947, that Ghulam Sarwar had denied at various stages to have received any consideration from the plaintiff, that the permission granted on 2-3-1962 by the Deputy Commissioner, Sanghar, was subsequently cancelled on further enquiry by Revenue Authorities, that the possession of the lands in question had never been delivered to or was with the plaintiff, that the plaintiff was refused permission under the Sind Act of 1947, against which he filed an appeal before the Commissioner, which had also been dismissed, that these defendants were bona fide purchasers with consideration without notice of any previous sale, that the plaintiff had acquired no right in the suit lands, that the names of the defendants had been mutated in the record-of-rights in respect of the said lands after the decision in appeal by the Commissioner in November, 1965, that the possession of the lands in suit was given to these defendants by the receiver appointed in Suit No, 20 of 1964 on 25-9-1965, that no cause of action had accrued to the plaintiff for filing this suit as no right of ownership had been vested in him for want of necessary sanction under the law and because the transfer was illegal, that the suit was not properly stamped, that the suit was not maintainable, that the suit was barred under the provisions of Sind Revenue Jurisdiction Act, that the suit was time-barred and that the suit was bad for non-joinder of necessary parties. 11. On these pleadings of the parties, the following 12 issues were settled by the Courts- (1) Whether the parties to the suit are agriculturists and D. A. R. Act is applicable to the present suit? (2) Whether the registered sale-deed dated 23-5-1961 is without consideration ? (3) Whether permission to sale was necessary under the Rural Credit and Land Transfer Act of 1947? If yes, whether any valid permission was taken? (4) How far the registered sale-deed dated 7-7-1961 is valid and binding upon the plaintiff? (5) Whether the plaintiff was in possession of the suit land after the sale to him? (6) Whether the decree in Suit No, 20/64 is binding upon the plaintiff and to what extent ? (7) Whether the plaintiff has no cause of action? (8) Whether the suit is properly stamped? (9) Whether the suit is time-barred? (10) Whether there is non-joinder of necessary parties and if so, what is the effect? (11) Whether the plaintiff is entitled to any profits? (12) What should the decree be?
---
## Page 5
12. The plaintiff examined himself as P. W. 5 and 5 other witnesses. He did not produce any evidence to prove his contention, that the provisions of the Sind Act, 1947 or the Sind Agriculturists Relief Act of 1876 were not applicable to this suit. He admitted in his statement in Court, as already submitted earlier, that he had filed an appeal against the order of the Commissioner dated November, 1965 before the Board of Revenue, which was stated to be pending at the time of his statement on 11-7- 1968. He did not produce any evidence to show as to how mutation in the Record-of-Rights could be effected in his name in contravention of the provisions of Sind Act of 1947. It was brought out in cross-examination, that Juman Tapedar was his brother-in-law and as such it was not improbable that the survey records could have been interpolated by him. 13. These defendants (present appellants) examined defendant No, 1 as D. Ws. 4 and 3 other witnesses in support of their contentions. All the orders of the Deputy Commissioner and the Commissioner which have been referred above as well as the statement of Ghulam Sarwar recorded by the Deputy Collector, Sanghar on 23-5-1962 and other documents referred in the narration of facts above were produced before the learned trial Court. 14. Ghulam Sarwar (respondent No, 2) did not appear at all and the suit proceeded ex parte against him. 15. The learned Additional District Judge, Sanghar by his order dated 24-10.1968 has decreed the suit for the relief of declaration and possession in favour of the plaintiff/respondent No, .1 with costs to be paid by Ghulam Sarwar (respondent No, 2). On the question of payment of deficient court- fees the learned Court has held that "However, the suit cannot be defeated merely for non- payment of court-fee stamp. The court-fee stamp will be recovered from him (plaintiff) at the time of the passing of the decree". It may be added here, that the respondent No, 1 has, according to the information of the Appellant, deposited Rs, 195, towards court-fee, after the passing of the impugned order, making the total court-fee paid by him to be Rs, 127.50. 16. The appellants abovenamed being aggrieved by impugned judgment and decree dated 24-10- 1968 of the learned Additional District Judge, Sanghar passed in Suit No, 33 of 1965, have preferred this appeal, on the grounds mentioned in the memo. Of appeal. 17. I have gone through the evidence adduced and documents produced before the learned trial Court. I have also heard at length the learned counsel for the parties, except respondent No, 2, who was called absent. Notice for today's hearing was sent to respondent No, 2 by registered post A/D, but the same was returned unserved, as respondent No, 2 refused to accept the same, according to the endorsement of postal authorities and as such I held the service on respondent No, 2 for hearing dated 12-1-1982, as good and proceeded to dispose of the above appeal on merits, as the same has been pending since 1968. It may be noted, that respondent No, 2 also was ex parte before the trial Court and it seems that he is not at all interested in the above matter any more, as he has disposed of the survey numbers in question. 18. I have also gone through the various authorities that were cited before me by the learned counsel for the parties and have gone through the impugned judgment of the learned trial Court. 19. It may be mentioned that Issues Nos. 1, 10 and 11 were not pressed before the learned trial Court. As far as Issue No, 8 is concerned, the respondent No, 1 according to the appellants have paid deficit court-fee. However, in case the respondent No, 1 has not paid the requisite deficit court-fee, he shall pay the same as may be calculated by the learned trial Court and demanded from him, within one month from such order. Issue No, 5 was decided against the respondent and since no appeal has been preferred by respondent No, 1 in respect of finding on Issue No, 5, the parties have advanced no arguments in respect of this issue before me. Consequently the learned counsel for the parties confined their arguments before me in respect of Issues Nos. 2, 3, 4, 6, 7, 9 and 12 only. 20. Issue No, 2.-Learned counsel for the appellants in connection with this issue drew my attention to the statement of respondent No, 2 dated 23rd May, 1962 recorded by Deputy Collector, Sanghar
---
## Page 6
in the proceedings, by which the earlier permission granted by the Deputy Commissioner, Sanghar for sale of the land in question in favour of respondent No, 1 was cancelled which is Exh. 114 at page 106 of the paper book and stated that respondent No, 2 in this statement has categorically stated, that he cancelled the sale in favour of respondent No, 1 by private talks and had returned the consideration received by him from respondent No, 1 to him, before the Su. Registrar and furthermore learned counsel for the appellants drew m attention to the written statement filed by respondent No, 2 in Suit No, 23/6 filed by Seth Tahilram against respondents abovenamed and one other perso in which respondent No, 2 in para. 6 has denied the receipt of consideration a well as sale made by him in favour of respondent No, 1. In view of this learned counsel submitted, that the learned trial Court has erred in holdin, that appellants had failed to prove, that the sale in favour of respondent No, 1 was without consideration, simply on the basis of registered sale-dee Exh. 78, which was not at all proved in accordance with the law, before the trial Court, by respondent No, 1. On the other hand, learned counsel for respondent No, 1 submitted, that the endorsement of the Sub-Registrar on registered sale-deed Exh. 78 was made under section 58 of the Registration Act and as such this admission contained in Exh. 78 was admissible as certified under section 79 of the Evidence Act and did not require any formal proof. Learned counsel for the respondent further submitted, that respondent No, 1 in his statement on oath before the learned trial Court had stated, after producing original sale-deed Exh. 78, that he had paid the entire consideration to respondent No, 2 as mentioned in the sale-deed. Learned counsel further submitted, that appellants have no legal right to challenge the sale-deed in favour of respondent No, 1 for want of consideration in this connection, learned counsel has relied upon case reported in AIR 1957 Tray.-Co 189. Learned counsel further submitted, that even if the consideration was not paid to respondent No, 2, as alleged by the appellants, the sale would not be void and the only remedy available to respondent No, 2 would be to file for recovery of the sale price and in this connection learned counsel has relied upon case reported in AIR 1950 All. 632. 21. I have carefully considered the above submissions made by the learned counsel for the parties and in my opinion, the learned trial Court has rightly disregarded the statement of respondent No, 2, which is Exh. 114, which was recorded before the Deputy Collector, Sanghar as the said statement was recorded at the back of respondent No, 1 and respondent No, 1 had no opportunity to cross- examine the respondent No, 2 in respect of the said statement as well as written statement of defendant No, 2 Exh. 113 filed in Suit No, 23/62, as respondent 2 after filing of the said written statement, did not go into witness-box and examined himself in order to prove his said written statement; for the cogent reasons given by the learned trial Court in its judgment, with which 1 entirely agree. In view of this, the only question which requires consideration is whether respondent No, 1 has proved payment of consideration for the sale in question to respondent No, 2, before the trial Court or not. In this connection, there is a statement of respondent No, 1 on oath, which is Exh. 77, in which the respondent No, 1 has clearly stated, that he had paid the consideration in respect of the sale in question to the respondent No, 2, as mentioned in registered sale-deed Exh. 78 and since the respondent No, 2 did not appear and go into the witness-box to refute this assertion made by the respondent No, 1 on oath, his statement has remained unrebutted in respect of the said payment. Besides this, there is an endorsement of the learned Sub-Registrar made under section 58 of the Registration Act on Exh. 78, which also shows, that the respondent No, 2 had admitted before him receipt of earlier consideration as well as payment of balance of consideration which was made in his presence. This endorsement is duly signed by the Sub- Registrar in question and in view of provision of section 79 of the Evidence Act, in my opinion, it did not require any other formal proof. Beside this the contention of the learned counsel for respondent No, 1, that appellants have no legal rights to challenge want of consideration in respect of the
---
## Page 7
registered sale-deed in question has great force, in view of the case reported in AIR 1957 Tray.-Co 189, with which I agree, for the reasons given in the said judgment. Beside this I also agree with the contention of the learned counsel for respondent No, 1, that the sale in question in favour of respondent No, 1 does not become void, even if the allegations made by the appellants for want of consideration are proved to be correct. In this connection, the case reported in AIR 1937 All. 632 fully supports the contention of the learned counsel for respondent, 22. Therefore, I see no reason to disagree with the finding of the learned trial Court on this issue. ' Issue No, 3.-The learned Advocate for the appellants in connection with this issue submitted, that no doubt permission as required under the provisions of Sind Rural Credit and Land Transfer Act, 1947 in respect of…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.