1. MAQBOOL BAQAR, J. --- The above IInd appeal under Section 100, CPC was filed by the appellants against the judgment and decree dated 28.2.2001 passed by the learned Additional District Judge, Tando Adam in Civil Appeal No. 4/2000 whereby the learned Additional District Judge set aside the judgment passed by Senior Civil Judge, Khipro in F.C. Suit No. 100/97.
2. The brief facts of the case are that the respondents/plaintiffs filed F.C. Suit No. 100/97 against the appellants, the Mukhtiarkar, Khipro, Deputy Commissioner, Sanghar and the Government of Sindh, in the Court of Senior Civil Judge, Khipro for declaration and permanent injunction. The case of the respondents/plaintiff as set out in the plaint of the above suit was that the lands comprising of S. Nos. 91/1 to 4, 93/1 to 4, 94/1 to 4, 95/4, 6, 125/1 to 4, 126/2, 3, 127/1, 2, 128/1, 2, 129/1, 2 and 126/4 admeasuring 101-04 acres, situated at Deh Khan Tluka Khipro District Sanghar are. Owned by the plaintiffs/respondents who have been cultivating the same through their Haris. On 3.3.1998 co- plaintiff/co-sharer Ali Khan, through a statement made by him before Mukhtiarkar, Khipro, sold his share of the suit land to the appellants/defendants for a sale consideration of Rs. 4,00,000/-. In terms of the sale the appellants/defendants paid Rs. 2,00,000/- to the co-sharer Ali Khan and withheld the balance sale consideration amount of Rs. 2,00,000/- out of which Rs. 1,00,000/- were to be paid towards the repayment of loan amount obtained by Ali Khan from a Bank and a Cooperative Society. Whereas the remaining amount of Rs. 1,00,000/- was to be paid to Ali Khan after the loan amount has been repaid and the lands have been partitioned and mutated and it was only thereafter that the possession of the land was to be delivered to the appellant/defendants. It was further averred that the purported agreement of sale as recorded by the Tapedars was signed only by Ali Khan and no other co-sharer of the suit land had sold their share to appellants. It was claimed that neither any of the other co-sharer was present nor the purported statement was signed by them. It was alleged that the appellants/defendants did not pay the balance sale consideration despite promises and kept Ali Khan on hopes.
3. It was further alleged that in the year 1995 the appellants/defendants forcibly occupied 12/13 acres of land out of suit land and upon enquiry made by Ali Khan it was revealed that the appellants/defendants have by fraud and mis-representation and with the connivance of Tapedar and village staff have got the suit lands mutated in their names. Consequently the respondent/plaintiff All Khan filed appeal before the Assistant Commissioner, Khipro against the impugned entries and forged statement to the extent of other co-sharer/co-plaintiffs and also challenged such entries in respect of his share on the ground of violation of the terms of sale and as the balance sale consideration, was never paid to Ali Khan. The appeal was allowed by the Assistant Commissioner, who set aside the impugned entries in the revenue record that were made in favour of the appellants/defendant and ordered that the possession of the suit land be restored to the respondents/plaintiffs. The appellants/defendants assailed the above order dated 22.3.1995, in a writ petition filed before this Court vide C.P. No. D-656/95 which petition was allowed vide judgment dated 24.9.1997, holding that the order of the Assistant Commissioner was passed without lawful authority. It was however left open for the 'parties to agitate their rights before a proper forum and thus the plaintiff filed the above suit.
4. Appellants/defendants Nos. 1 and 2 in their written statement, filed in the above suit, stated that the respondents/plaintiffs have sold out the suit land to them through a statement of sale dated 3.3.1988 before Mukhtiarkar, Khipro and that vacant possession of the suit land was handed over to them by the respondents/plaintiffs at the time of sale. They claimed that the amount of Rs.
5. 2,00,000/- was paid to the respondents/plaintiffs and the remaining amount of Rs. 2,00,000/- were paid on 31.5.1988 vide receipt issued by the respondents/plaintiffs and duly attested by Mukhtiarkar, Tando Adam, such balance amount was paid after confirmation of the fact that the suit land was free from all encumbrances. It was contended that the Assistant Commissioner, Khipro in collusion with Deputy Commissioner, Sanghar and the plaintiff cancelled the entries made in favour of the defendant, illegally and male fidley and dis-possessed the defendants from the suit land on 13.8.1995.
6. After recording evidence lead by the parties the learned Civil Judge dismissed respondents/plaintiffs suit by judgment dated 22.4.2000. Against dismissal of the suit the respondents/plaintiffs filed an appeal before the Additional District Judge, Tando Adam who after hearing the parties set aside the judgment and decree passed by the Civil Judge and decreed the suit through the impugned judgment., Ex.50, to the effect that the land was mortgaged with the Bank and he therefore kept the entry in that regard of abeyance. As such no valid sale could have been effected. Moreover the sale consideration of Rs. 4,00,000/- is grossly inadequate for a land measuring. 101-4 acres. There is no documentary proof that the amount of sale consideration was paid by the appellants/defendants to Ali Khan before or at the time of recording the purported statement, Ex:50. Although the attorney of the appellants/defendants, D.W. Hameer Khan, in his deposition has claimed that the amount was paid before the Mukhtiarkar however neither the Mukhtiarkar was examined by the defendants to prove the same nor any receipt has been produced by the defendants. Regarding the payment of the balance sale consideration amount, although it was specifically claimed that such receipt was executed before the Mukhtiarkar, Tando Adam on 31.5.1995, but the Mukhtiarkar was not examined to prove such payment. On the plaintiffs on showing, although the alleged statement of sale was recorded on 3.3.1998 however, the balance sale consideration was paid on 31.5.1995 i.e. After a lapse of seven years which creates further doubt regarding such alleged payment. It is also pertinent to note that the attesting witness to the statement (Ex.50) namely, Abdul Razak has in his deposition, denied the contents of the documents. He stated that Ali Khan alongwith Tapedar came to him and obtained his signature on a plain paper. In reply to a question he stated that "it is incorrect to suggest that Ex.50 was written prior to my signature". As per the statement of sale one Mushtaque had sold the land on behalf of the minors however as discussed above no order from any competent Court in favour of said Mushtaque to conduct such sale has been brought on record. Although it has been observed by the learned Civil Judge that Ali Khan in his statement before Mukhtiarkar has stated that the suit land was sold by him on his behalf and on behalf of remaining plaintiffs however the perusal of the alleged statement reveals that the same does not contain any such claim. On the contrary the purported statement shows that the lands have been sold by the co-sharers themselves except the minors whose share were purportedly sold by Mushtaque. Admittedly only a part of the sale consideration had been paid by the appellants/defendants to the plaintiff All Khan and the balance had remained unpaid at the time of alleged statement. However no undertaking was obtained by the Mukhtiarkar in that regard at the time of recording of the alleged statement. It was in the circumstances that the impugned transaction/sale and the purported entries in the record in pursuance of such transaction were found to be illegal, unlawful and invalid.
7. 1 & 2 C.M.A. 161/2003 and C.M.A. 162/2003 The above appeal was filed before this Court on 3.3.2001 and has thereafter been fixed for Katcha Peshi on a number of dates. However, the above applications were filed by the appellants on 18.4.2003. Through C.M.A. 161/2003 the appellants has prayed as follows:-- "That this Hon'ble Court may be pleased to allow the appellants to get verified the signature/thumbimpression from the expert in order to tress out the truth or this Hon'ble Court may send and get verify its on motion."
8. Neither in the above application nor in the memo. Of appeal the appellants have, even alleged that any request for examination/verification of any signatures of thumb-impression was made by the appellants either before the learned Civil Judge or the 1st Appellate Court nor has it been specified as to which signatures or thumb-impression the appellants seek to be verified. Even otherwise in view of the above discussion and the reason recorded for dismissal of the appeal no purpose would be served by such verification. The application was wholly mis-conceived, untenable and male fide, the same was filed merely to delay the proceedings and was dismissed as such.
9. The other application, C.M.A. 162/2003, was made by the appellants under Order 41, Rule 27, CPC for recording evidence of one Syed Abdullh Shah, the alleged witness of the sale transaction, again it has not been claimed by the appellants that they had, any time before filing of the said application, sought to examine the said witness. A party can be allowed to adduce further/additional evidence only in the interest of justice, such evidence cannot be allowed to enable a party to patch up the weak points of its case or fill up the omissions, or merely by way of a further chance to adduce evidence. The appellants had all the opportunity to produce whatever relevant evidence they would have wanted to produce. Absolutely no justification was shown by the appellants to be allowed to examine the witness, at this belated stage, whom they could have examined before the Court below. The application in the circumstances and in view of my reasons for the dismissal of this appeal as recorded above was found to be frivolous, mis-conceived and mala fide and was accordingly dismissed.
10. Foregoing are my reasons for dismissing the above appeal and the aforesaid application by short order dated 21.4.2003.