2010 Y L R 2455
[Quetta]
Before Mr s. Syeda Tahira Safdar, J
Syed AHMED ALI SHAH ---Petitioner
Versus
Raja MUHAMMAD AKHTAR KHAN and another ---Respondents
Civil Revisions Nos. 293 and 294 of 2005, decided on 25th May, 2010.
Specific Relief Act (I of 1877) ---
----Ss. 42 & 54 ---Suit for declaration and injunction ---Claim of the plaintiff was that suit
property belonged to his late father who died in 1991 leaving behind the plaintiff, his two
brothers and a widow as his legal heirs ---Plaintiff had alleged that defendants w ithout his and
other legal heirs' knowledge had got entered the suit property in their names in record of
rights; and that defendants had claimed their ownership in respect thereof ---Claim of
defendants was that they had purchased suit property in life tim e of father of the plaintiff
through his attorney --Admittedly the suit property was previously owned by father of the
plaintiff who appointed brother of the plaintiff as his attorney and said attorney had sold the
property to the defendants through sale de eds which were registered --Initial burden lay on the
plaintiff to establish subsistence of his right of ownership despite assertion of being sale
transaction from the other side ---Defendants on the other hand had to establish their title
devolved on them t hrough sale transaction effected between them and father of the plaintiff
through attorney in his life time ---Defendants brought on record the conveyance deeds
effected in their favour and also got recorded statement of attorney of deceased owner who
was b rother of the plaintiff with regard to sale transaction ---Plaintiff not only had failed to
prove his claim in respect of suit property but also had failed to point out any illegality in the
impugned judgments of the courts below ---Trial Court as well as Ap pellate Court discussed
the material present on record and gave findings on merits ---No grounds were available on
account of which interference was required to be made in concurrent order of the Trial Court
and 'Appellate Court ---Plaintiff having failed to make out any case in his favour, his revision
petition was dismissed, in circumstances.
Fazal Lodhi and Aslam Dar for the Petitioners (in both petitions).
Ali Ahmed Kurd for Respondents (in both petitions).
Date of hearing: 18th December, 200 9.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---Both the above titled petitions are filed by petitioner
Syed Ahmed Ali Shah seeking thereby setting aside of judgments in both the cases made on
29-6-2005 by District Judge, Hub and dated 31 -1-2005 by C ivil Judge, Hub. As in both the
cases property in question is the same, based on similar facts, circumstances and evidence
and judgments made therein are also identical, therefore, it seems proper to dispose of both
the petitions with this common order so as to avoid any sort of contradiction.
It is case of the petitioner in both the cases that property bearing, Khasra Nos.108, 203, 208,
measuring 12 -2-5 acres situated in Mouza Baroot, Hub, Tehsil Hub, District Lasbella belongs
to his father namely Muha mmad Ali Shah, who died on 10 -4-1991 leaving behind him and
his brothers namely Syed Riaz Ali and Syed Amjad Ali and their mother namely Shakeela
Begum as legal heirs. The property in question was mutated in their names in record. Further,
power of attorne y was executed in his favour by his mother and brothers in respect of
property in question. Whereupon market and quarters were constructed. It is further his l case
that without his and other legal heirs' knowledge respondent No.1 of both the cases got
entered the property in question in their names in record of rights, while recently respondent
No.1 of both the cases started claiming their ownership in respect of land in question on basis
of mutation entries and also demanded for possession. He prayed for declaration to the extent
of his title as owner of land in question and also to the extent of mutation entries in question
being made fraudulently in favour of respondent No.1 in both the cases. Further prayed for
cancellation of mutation entries in questi on, and also prayed for injunction to the extent of
restraining respondent No.1 /defendant No. l in both the cases, to dispossess him (petitioner)
from property in question or make interference in the same, further restrain him to sell, gift or
mortgage th e land in question.
In reply both the respondents/defendant No.1 strongly denied the contention raised by the
petitioner. It is their contention that they have purchased property in question in lifetime of
Syed Muhammad Ali Shah through his attorney Ri az Ali Shah. Power of attorney was
executed in his favour on 1 -9-1985, which also bears signatures of petitioner as witness. The
property in question was mutated in their favour by respondent No.2 after observing, all legal
formalities. It is further their contention that the asserted construction is raised on different
piece of land though from same khata, but having different khasra and Khatooni numbers.
Sale deeds were executed in their favour on 5 -9-1989 by said attorney, while registered on
12-9-1989. They prayed for dismissal of suits.
During course of trial issues were framed, while evidence from both the sides were recorded.
On competition of trial both the suits were dismissed by separate orders both made on 31 -1-
2005 by Civil Judge, Hub, while appeals filed by the petitioners were also dismissed by
upholding the judgment of trial Court thorough judgments made on 29 -6-2005 by District
Judge, Lasbella at Hub.
Being aggrieved of both the judgments the petitioner filed instant petitions with ave rments
that both the courts below made error while misreading, non -reading and illegal reading of
evidence, while the courts below failed to exercise the jurisdiction vested in them. The facts
admitted by the respondents are also not taken into considerati on. The appellate Court failed
to observe the legal formalities under Order XLI, Rule 23, 24, 25 & 28, C.P.C. Further, the
element of fraud is apparent from evidence, which is not considered. Furthermore, right of
succession of legal heirs is established t hrough evidence, which cannot be disturbed by Tehsil
entry. He has prayed for setting aside of impugned judgments or in alternate after setting
aside the case be remanded to the trial Court for consideration.
In present case it is an admitted position that property in question was previously owned by
father of the petitioner namely Syed Muhammad Ali Shah, who appointed brother of the
petitioner namely Syed Riaz Ali as attorney in year 1985. The petitioner now claimed his
right in respect of property in question being legal heir of Syed Muhammad Ali Shah, who
died on 10 -4-1990, while property was divided and entered in name of legal heirs in record.
The mutation entry effected in same respect is present on record, which reveals that the
property is simply mutated on basis of inheritance in favour of petitioner, his mother and two
brothers. But there is no specification about share of each and every legal heir on basis of
partition allegedly effected between them. This mutation entry bears date 1 -2-1995, wh ile the
disputed mutation entries were effected in favour of both respondents No.1 on 23 -1-2004.
Through present suits the petitioner/ plaintiff tried to establish his and other legal heirs title of
being owners of property in question, further claimed tha t the disputed mutation entries were
effected through fraud, which are liable to be set aside. In reply both the respondent No.1
contended that property in question was purchased by them from previous owner i.e. father of
the petitioner through his attorne y i.e. brother of petitioner namely Riaz Ali, while
conveyance deeds were also written and registered. The initial burden lies on the petitioner to
establish subsistence of his right of ownership despite assertion of being sale transaction from
the other s ide. The respondents on the other hand have to establish their title devolved on
them through sale transaction effected between them and father of the petitioner through
attorney in his life time. The respondents brought on record the conveyance deeds effe cted in
their favour. In addition they produced the attorney of Syed Muhammad Ali namely Riaz Ali
Shah and got recorded his statement as D.W -2 in Suit No.17 of 2004. He stated that in 1989
he sold land in question to defendant No.1 Raja Muhammad Akhtar und er authority given by
his father by executing general power of attorney in his favour on 1 -9-1985, he further
admitted receiving an amount of Rs.70,000 from respondent No.1. Further, asserted that the
disputed property consists of three plots for which he also effected registry in favour of
respondent No.1. While he appeared as D.W. 3 in other suit bearing No.18 of 2004. He gave
nearly same statement except sale consideration which is described as Rs.21,777 and land in
question consists of one plot. During course of cross -examination it has only been asked that
his father died in year 1990, while possession was not handed over to respondent No.1 in
both the cases. The petitioner/plaintiff neither disputed the alleged sale transaction, nor the
power given to the witness for effecting of sale. The Conveyance Deeds were also brought on
record by D. W.1, which is also not disputed by the petitioner in both the cases during course
of cross -examination of the witness. The petitioner during course of evidence only t ried to
establish that the possession of land in question was not handed over to both of respondent
No.1. He failed to deny the title of both the respondent No.1. As the Conveyance Deeds,
exhibited before trial Court, are not filed along with these petitio ns, therefore, nothing can be
observed in respect of contents of the same. But the trial and appellate courts observed, as
recorded in the judgments, that possession had been handed over to the respondent No.1, as
mentioned therein.
In instant petition s though the petitioner has raised several grounds for setting aside of
impugned judgments mostly contending that the decision made by both the courts are illegal.
But during course of arguments the learned counsel mostly stressed on the point that the
property was sold without their consent and no demarcation was made from which it can be
ascertained that what property was sold. The arguments are contrary to the plea taken in the
suits. No illegality is pointed out. The trial as well as appellate court dis cussed the material
present on record and give findings on merits leaving behind the objections raised by
respondent No.1 in respect of maintainability of the suit. As there was specific issue framed
in respect of legal objections, therefore, the trial Cou rt was bound to give findings on the
same whereafter findings on merits were required to be given. At this stage while exercising
revisional jurisdiction, these objections though material for deciding of the case, but as both
the suits have already been di smissed, therefore, there seems to be no need to give findings
on the same.
In view of above discussion the petitioner has completely failed to point out any illegality in
the impugned judgments and also failed to point out the instances whereby the co urts below
misappreciated the evidence or not considered the material produced during trial. No grounds
are established due to which interference is required to be made in orders of trial or appellate
courts. He has failed to make out any case in his favou r. Therefore, both the Petitions bearing
No.293 of 2005 and 294 of 2005 are hereby dismissed being without merits.
No orders as to costs.
H.B.T./41/Q Petition d ismissed.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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