2010 C L C 1507
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
MUHAMMAD RASOOL and 4 others ---Petitioners
Versus
ABDUL GHAFOOR and another ---Respondent s
Civil Revision No. 433 of 2007, decided on 1 5th February, 2010.
Specific Relief Act (I of 1877) ---
- - - - S s . 9, 42 & S4 ---Suit for declaration, possession and permanent injunction -Suit by the
plaintiff had concurrently been decreed ---Defendants alleged that material facts present on
record and ev idence produced by the parties were not considered, but the defendants could
not point out the facts and material which allegedly were not considered ---Even during
course of arguments counsel for the defendants had failed to specify such instances -Trial
Court before recording evidence had framed issues separately and gave findings on the same -
-Legal objections raised by the defendants, pertaining to valuation of suit, non -existence of
cause of action and misjoinder of parties, were decided in the negative ---Defendants raised
objection in respect of valuation of the suit as assessed by the plaintiff, but no specific
evidence in that regard had been brought on record by the defendants ---Valuation of suit for
court fee and jurisdiction as assessed in the plaint by the plaintiff was to be relied upon, until
proved contrary --Plaintiff, in circumstances, was the owner of property in question and he
having been deprived of his possession by the defendants, Trial Court had rightly decided that
issues in favour of the plaintiff ---Defendants could not prove their assertion that plaintiff had
sold suit property to one of the defendants ---Suit had rightly been decreed in favour of the
plaintiff and defendants having failed to make out any case for revision of impugned
judgments, concurrent judgments were upheld.
Sultan Muhammad for Petitioners.
Mian Bader Munir for Respondents.
Date of hearing: 19th October, 2009.
JUDGMEN T
MRS. SYEDA TAHIRA SAFDAR, J. ---The petitioners through instant petition seek setting
aside of judgment and decree made on 23 -8-2006 by Civil Judge -II, Quetta, whereby the suit
filed by respondent No.1 has been decreed in his favour and also order made by Additional
District Judge -III, Quetta on 7 -8-2007, whereby the appeal filed by them wa s rejected. It is
their contention that both the trial and appellate courts failed to appreciate to the evidence
produced before them, even the evidence of the witness attesting the sale agreement. The
material facts were not considered, rather ignored by the courts below. Further, the principle
that mere entries in revenue record are not symbol of ownership; the trial Court relied on the
same. It is further contended that the impugned judgments are ambiguous, as they are silent
about the official party i.e ., Tehsildar, Quetta.
As per record respondent No.1/ plaintiff filed a suit seeking declaration of his title of
ownership in respect of property bearing khasra No.1042, Inteqal No.697, measuring 0 -Rods
29 Poles situated at Mohal Viala Kuchlak, Tappa Kuch lak, Tehsil and District Quetta, also
prayed for possession of the same. It is his plea that he being sole owner of property in
question, but deprived of its possession by the defendants/petitioners forcibly in year 1998,
when he was at Quetta. Despite rep eated requests the petitioners/ defendants failed to hand
over the possession to him, rather they are trying to deliver possession of the same to some
other person for illegal gains. They further prayed for issuance of permanent injunction to
restrain the defendants/ petitioners from transferring, alienating or delivering the possession
of property in question to anyone or changing the nature of the same. While in their joint
reply defendants Nos.2 to 6 present petitioners on merits raised contention that t he property
in question was sold to defendant No.2/petitioner No.2 by the plaintiff/ respondent No.1,
while at the time of sale the plaintiff/respondent No.1 received an amount of Rs.4,50,000 in
advance, while remaining amount of Rs.30,000 was agreed to be paid at the time of effecting
of mutation, which was promised to be carried out after redeeming of mortgage, as the
plaintiff/ respondent No.1 had taken loan against property in question. Further, a sale
agreement was also executed between the parties. It is further contended that the possession
of property in question was handed over to them by the plaintiff/ respondent No.1 at the time
of sale transaction, whereafter, he/ petitioner No.1 constructed residential building on the
same. The replying defendan ts/ petitioners also raised three legal objections on
maintainability of the suit to the effect that the suit is under valued, bad for misjoinder of
parties and absence of cause of action. It is further apparent from record that issues were
framed, while e vidence was called, after completion of evidence from both the sides the trial
Court decided the suit through judgment dated 23 -8-2006 thereby decreed the suit declaring
the plaintiff/respondent No.1 being lawful owner of property in questions, thus entitl ed for
possession of the same. Being aggrieved of the decree the petitioners/defendants filed appeal
seeking setting aside of judgment of trial Court, which was rejected through order made on 7 -
8-2007. Both these orders are impugned in present petition.
As per petitioners the material facts present on record and evidence produced by the parties,
especially produced by them are not considered, rather mis -appreciated by the trial as well as
by the appellate Courts. The petitioners in instant petition though have not pointed out the
facts and material which are not considered, rather mis -appreciated by both the courts below.
Even during course of arguments the learned counsel for the petitioners failed to specify such
instances. The trial Court before recordi ng evidence framed issues, while deciding the matter
discussed the issues separately and give findings on them. As far as legal objections are
concerned, which pertains to valuation of suit, non existence of cause of action and
misjoinder of parties are co ncerned, the trial Court decided the issue pertaining to these
objections in negative. As far as valuation of suit is concerned, it is an established principle of
law that the valuation of the suit for court -fee and jurisdiction as assessed in the plaint b y the
plaintiff is to be relied upon until proved contrary. In present case the plaintiff/respondent
No.1 assessed the valuation of subject matter of the suit as Rs.20000. Though the petitioners/
defendants raised objection in respect of valuation of the s uit, but the perusal of evidence
reveals that no specific evidence in same respect has come on record. Thus until contrary
proved the valuation asserted by the plaintiff is to be relied upon, the learned trial Court has
come to the right conclusion. It is further to be added that no suit failed on basis of wrong
valuation or on payment of deficit court fee, rather proper opportunity is required to be given
to overcome the deficiency and in case of failure the provisions of section, 10 paragraph (ii)
of Cour t Fees Act 1870 shall apply, whereby on non payment of additional fee the suit shall
stand dismissed. As far as second legal objection, which is in respect of non existence of
cause of action, is concerned, as there is assertion of a right, while there is denial from the
other side. The plaintiff/respondent No.1 is/was the owner of property in question from which
possession he has been allegedly deprived of by the defendants/petitioners. The trial court
rightly decided this issue.
As per petitioners the j udgment of both the courts are not speaking one, as they are silent
about official party. This contention is baseless, in case any party has no interest in the matter
and does not contest the case, this will not affect the order made in the matter by the c ourt of
competent jurisdiction. In present case as the matter in dispute is between the private parties,
while no interest of State is seems to be involved in the disputed property, therefore, non -
considering of tehsildar is no ground for declaring the imp ugned orders as nullity in eyes of
law.
As far as merits of the case are concerned, the respondent No.1/plaintiff claimed himself to
be owner of property in question, further claimed his illegal dispossession from the same.
While on the other hand the pe titioners/defendants though admitted ownership of respondent
No.1/ plaintiff, but raised contention that the property in question was sold to petitioner
No.2/defendant No.2 (Rahim -ud-Din) by respondent No.1/ plaintiff, a sale agreement was
also executed be tween the parties, wherein it was promised that mutation would be effected
after redeeming of mortgage, further at the time of sale an amount of Rs.4,50,000 was paid to
the plaintiff/ respondent No.1, while it was agreed that the remaining amount of Rs.30, 000
would be paid it the time of effecting of mutation entry. Further, the possession was handed
over to defendant No.2/ petitioner No.2 at time of sale agreement, whereupon he constructed
a residential building. In view of pleadings of the parties the own ership of the plaintiff/
respondent No.1 is an admitted fact, while it is also an admitted position that the
petitioners/defendants were in possession of property in question at time of filing of the suit.
As the petitioners/ defendants asserted to be in p ossession being purchasers of land in
question, therefore, the burden lies upon them to establish their title in respect of the same.
The perusal of evidence adduced before the trial Court reveals that in order to establish his
ownership the plaintiff/ res pondent No.1 produced oral evidence, while he also produced
mutation entry in his favour through representative of Tehsil. While on the other hand the
defendants/ petitioners produced oral evidence and recorded statement through attorney.
While only one wi tness in respect of alleged sale agreement is produced. D.W.4 Saeed
Ahmed Advocate/ Notary Public produced sale agreement dated 6 -5-2000 as Ex:D/1 -A,
which was attested by him. During cross - examination he deposed that due to passage of time
he is unable t o identify the parties to the agreement. Further, the agreement was not executed
in his presence; rather he only attested the document which has already been prepared. From
cross -examination of this witness these facts are apparent that the NIC numbers of the
witnesses and parties are not mentioned on the agreement, the register in which entry of the
document was required to be made has not been produced by the witness. Defendant No.2/
petitioner No.2 Rahim -ud-Din recorded his statement on his own behalf an d on behalf of
remaining defendants as their attorney. According to him they purchased property in question
from the plaintiff in consideration of Rs.4,35,000, while an amount of Rs.4,05,000 was paid
to the plaintiff at time of transaction, a sale agreemen t was also executed at said occasion,
while remaining Rs.30,000 was to be paid at the time of inteqal. The petitioners/defendants
were required to establish the sale transaction effected between the parties and also the
document executed between them, as t heir title based on it. The witnesses appeared on behalf
of defendants/petitioners though asserted to be present at the occasion when sale transaction
was held and payment was made, but none of them confirmed presence of the other. Even
D.W.3 recognized pe titioner No.1 Muhammad Rasool as Ghulam Muhammad. The
contradictions in the statement of the witnesses are clearly pointed out by the learned trial
Court. Apart from oral evidence the sale agreement is not properly brought on record. The
person who wrote i t and the witnesses who signed it as witnesses are not produced before the
court. Nor even the defendants/petitioners tried to procure their attendance before the court.
The said document was also not confronted to the plaintiff/ respondent No.1, while he was
appearing in witness box. It is to be noted that the petitioners have failed to file all the
relevant record along with the revision petition. The exhibited documents are not filed before
this court, while the statement of the plaintiff/respondent No.1 and cross -examination to the
statement of defendant No.2 attorney of defendants are also not filed.
It is to be noted that during course of pendency of present petition an application for stay of
execution proceedings was filed, whereby through order ma de on 3 -6-2008, the parties were
directed to maintain status quo. Thereafter, it was intimated to the court that on 15 -5-2008 the
possession of property in question was already handed over to respondent No.1 being the
decree holder. The relevant report of Civil Nazir Quetta dated 21 -5-2008 is also placed on
record, whereby it has been reported that the possession of property in question is handed,
over to the decree holder/ respondent No.1. The petitioners rather their counsel made
misstatement before the c ourt and also obtained order in same respect. The conduct of
counsel for the petitioners is objectionable, for which he is warned to be remain careful in
future.
Respondent No.1 filed an application bearing No.1709 on 22 -10-2009, requesting for placing
on record certain documents. He filed certified copy of report of Civil Nair Quetta dated 21 -
5-2008. An order made on 19 -8-2008 by Judicial Magistrate -IV, Quetta, whereby bail is
granted in favour of respondent No.1 (Abdul Ghafoor). Another order dated 14 -7-2009 made
by Judicial Magistrate -11, Quetta, whereby the accused/ respondent No.2 was acquitted of
the charge under section 379, P.P.C. in respect of F.I.R. No.136 of 2008 Police Station Civil
Lines,. Quetta. The perusal of this order reveals that an inci dent was reported by one Haji
Muhammad Rasool on 6 -8-2008 which was occurred on 27 -5-2006, wherein the accused/
respondent No.2 snatched the stamp paper written in respect of a house, which was intended
to be produced in a civil case filed by him (complain ant) on his way to the court. It is to be
noted that complainant of said case is petitioner No.1, while accused is respondent No.1 of
present case, while it seems that the stamp alleged therein is the sale agreement of present
case. Another judgment dated 17-8-2009 made by Civil Judge -III, Quetta in civil suit titled as
(Rahim -ud-Din v. Abdul Ghafoor and another is also filed. The perusal of this judgment
reveals that present petitioner No.2 filed said suit in respect of same sale transaction of
property in question, which was dismissed by the trial court being hit by section 11, C.P.C.
From these documents it can safely be presumed that the petitioners are only making efforts
to avoid the decree passed against them and in favour of respondent No.1 in year 2 006.
In view of above discussion the petitioners have completely failed to make out any case for
revision of the impugned judgments, which are hereby upheld. The present petition is
dismissed being without merits.
No order as to costs.
H.B.T./46/Q Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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