1. ' This revision application is filed by the applicant against the judgment and decree passed by the District Judge, Badin, in First Civil Appeal No, 2 of 1980 partly decreeing suit No, 68 of 1978 filed by respondents 1 to 5 for declaration and permanent injunction.
2. ' Respondents 1 to 5 filed suit No, 68 of 1978 before the Senior Civil Judge, Badin, impleading Government of Sind, Revenue Officer, Kotri Barrage, Mukhtiarkar, Badin, the petitioner, respondents 6 to 8, Muhammad Aslam and Jamaldin as defendants. It is alleged in the plaint that land bearing Survey Nos. 145, 144, 143, 142, 141, 150, 149, 148, 147, 146, 151 and 152, in all measuring 130.9 acres situated in Deh Acch, Taluka and District Badin was allotted to the petitioner on instalment basis by Revenue Officer, Kotri Barrage, Hyderabad. It is alleged in paragraph 4 of the plaint that after allotment of land and receiving its possession, the petitioner entered into an agreement of sale dated 1-3-x968 with Muhammad Aslam, Muhammad Akram (respondent No, 6). Wali Muhammad (respondent No, 7) and Shah. Muhammad (respondent No, 1) in respect of the above land in the following manner :-
(i) Muhammad Aslam and Muhammad Akram agreed to purchase S. Nos. 141 (2.28 acres), 142 (2.1 acres), 143 (2.5 acres), 144 (3.33 acres), 145 (1.2 acres) and 151 (0.30 guntas),
(ii) Wali Muhammad agreed to purchase S. Nos. 151 (0.9 acres), 146 (4.0 acres), 145 (2.20 acres) 141 (5.31 acres), and
(iii) Shah Muhammad and Muhammad Tufail agreed to purchase S. Nos. 151 (1.31 acres) 145 (1.13 acres), 144 (3.21 acres), 143 (2.0 acres), 146 (0.20 acres) and 141 (3.15 acres).
3. ' It is further alleged that Muhammad Aslam and Muhammad Akram sold their share of land to Boota (respondent No 2) under an agreement of sale dated 4-8-1969. It is also alleged that Hamid Ali (respondent No, 8) claiming himself to be the attorney of petitioner nominated Jamaldin son of Muhammad Bux as his sub-attorney and the said Jamaldin on the strength of the said alleged sub-attorney executed agreement of sale dated 5-7-1977 in favour of Muhammad Sharif, Muhammad Tufail and Muhammad Rashid (respondents Nos.3 to 5) in respect of Survey Nos. 151 (0.9 acres), 146 (4.0 acres), 155 (2.20 acres) and 141 (5.31 acres). It is alleged that ever since the execution of the above agreements the respondents Nos 1 to 5 enjoyed their lands and developed them at substantial cost. However, when these lands were developed, it is further alleged, the petitioner started making claim over the land dishonestly and collusively filed application before Mukhtiarpar, Badin, who held respondents Nos. 1 to 5 as unauthorised occupants of land. In these circumstances, respondents Nos. I to 5 brought suit No, 68 of 1978 and claimed the following reliefs :- "17. That the plaintiffs, therefore, pray for the judgment and decree in the matter as under--
(a) To declare the agreements executed in favour of the plaintiffs are subsisting and operative.
(b) To restrain the defendant No, 4 not to interfere in the cultivating possession of the plaintiffs than in due course of law.
(c) The cost of the suit be saddled upon the defendant No, 4.
(d) Any other relief this Hon'ble Court deems fit and just be awarded to the plaintiffs".
4. ' The above suit was defended before the Civil Judge only by the petitioner who was defendant No, 4 in the suit. In his written statement in the suit the petitioner denied that he had executed any of the agreements in favour of any of the respondents or that he ever appointed any of the defendants as his attorney to execute any sale agreement. His case was that Muhammad Aslam, Muhammad Akram (respondent No, 6) and Wali Muhammad (respondent No, 7) were his Haries who had surreptitiously put respondents Nos. 1 to 5 in possession of land without consent and knowledge of petitioner and, therefore, respondents Nos. I to 5 were trespassers and were ordered to be evicted from the land by Mukhtiarkar, Badin. The Civil Judge, after hearing the parties dismissed the suit on the ground that the respondents failed to prove that the land in suit was sold to them by the petitioner and that they were in occupation of the land authorisedly. The first appellate Court, however, disagreed with the findings of trial Judge on Issue No, 4 and held that although the agreements alleged by the A respondents could not be declared as subsisting and operative so far their title was concerned but their possession was protected under section 53-A, of the Transfer of Property Act and accordingly decreed the suit of respondent for injunction against interference of their possession over the land. The above conclusions reached by the 1st appellate Court are based on a perverse appreciation of the evidence on record.
5. ' The respondents Nos: 1 to 5 in paragraph 4 of their plaint in Suit No, 68 of 1978 had alleged sale of land measuring 12.19 acres to Muhammad Aslam and Muhammad Akram (respondent No, 6), 12.20 acres to Wali Muhammad (respondent No, 7) and 11.20:acres to Shah Muhammad (respondent No, 1) and Muhammad Tufail (respondent No, 4) under agreement of sale dated 1-3-19o8. The respondents Nos. 1 to 5 further alleged in paras. 9 and 14 of the plaint that respondents Nos. 3 to 5 further entered into an agreement through Jamaldin acting as attorney of Hamid Ali (respondent No, 8) to purchase land measuring 12.20 acres belonging to petitioner. However, in the evidence before the trial Court only respondent No, 1 appeared in the witness-box and produced only one agreement Exh. 29 which is dated .1-3-1968, allegedly executed by the petitioner in favour of Shah Muhammad (respondent 1) and Muhammad Tufail (respondent No, 4) for 12.20 acres consisting of survey Nos. 151 (1.31 acres), 145 (1.13 acres), 144 (3.21 acres), 143 (2 acres), 146 (0.20 acres) and 141 (3.15 acres). This agreement does not speak of any sale of land in favour of Wali Muhammad (respondent No, 7), Muhammad Aslam and Muhammad Akram (respondent No, 6), although the agreement dated 1-3-1968 mentioned in paragraph 4 of the plaint allegedly related to 36.19 acres of land in favour of respondents Nos. 1, 4, 6 and Muhammad Aslam. The execution of agreement (Exh. 29) produced by respondent No, 1 in evidence was denied by the petitioner and the evidence produced by respondents Nos. 1 to 5 in this regard was not found sufficient by the trial Court. The view taken by the trial Court in .Disbelieving the execution of Exh. 29 by the petitioner is based on cogent analysis of the evidence of Shah Muhammad (Exh. 28), Khushi Muhammad (Exh. 4) and Noor Muhammad son of Muhammad Rahim (Ex. 45) produced in this behalf. The reversal of the findings of trial Court on Issue No, 4 by the 1st appellate Court is based on perverse appreciation of evidence. The 1st appellate Court in order to justify its conclusion that respondents were legally in possession of 48 acres of land placed reliance on documents which were not produced in evidence and drew interferences which are contrary to the evidence on record. The following extract from the operative part of the judgment of 1st appellate Court will show the perverse approach of the Court to the evidence on record :- "The learned Senior Civil Judge has given conflicting findings. On one hand he holds that agreement Exh. 29 is not proved and on the other hand he holds that it is false and fabricated. He has held that possession of suit land is admitted, but he holds that it is unauthorised. He allowed agreement Exh. 29 to be produced and at the time of production, the other party did not raise objection nor the judge disallowed its production and hence his finding that this is carbon copy and original should have been produced, is not tenable. Noor Muhammad, who is the scribe of Exh.
6. 29, has deposed in Chief Examination that Exh. 29 agreement of sale, is typed by him and is signed by defendant No, 4 and parties and it bears thumb-impressions of plaintiff Shah Muhammad and Muhammad Tufail and he signed the document also. However, in cross he says that he does not know if parties are not conversant with English language and that he had written Exh. 29 at his shop in Badin and had obtained instructions of parties before writing of the document and that he does not remember if there was any duplicate copy. He further says that Exh. 29 is carbon copy and that name of father of Noor Muhammad and names of plaintiffs Shah Muhammad and Tufail are mentioned in Exh. 29 in original typing and the additions are in his hand. Further that parties did not execute the agreement on the date, he typed it and he does not remember after how many days of typing of Exh. 29 parties executed the document and added this hand writing to it and that addition on page 2, is not authenticated by the signature of any party and that description of property is in original type. He has not mentioned date of execution, He further says that signature of Noor Muhammad party No, 1 is not on the space meant for his signature on the agreement. No question was put to him whether there were any attesting witnesses. The agreement Exh. 29 shows that the signature of Noor Muhammad and L. T. Is. Of Shah Muhammad and Muhammad Tufail are not at their proper places, but those are parrellel to the word witnesses. I am surprised how the learned Senior Civil Judge, has taken Noor Muhammad to be attesting witness and has mentioned that Noor Muhammad attesting witness is not examined. Exh. 29 shows that though carbon copy yet it is used as the original as signature of Noor Muhammad and L. T. Is. Of Shah Muhammad and Muhammad Tufail are on it and so is the signature of scribe. The date at the top of agreement, is mentioned as 1-3-1968 and I fail to understand what is the separate mode of execution required.
7. The question put to scribe was that signature of Noor Muhammad Party No, 1, is not at the space meant for his signature on the agreement. It is rightly so as signature of Noor Muhammad is against the word witnesses. The scribe accordingly proves that Noor Muhammad, signed the agreement. So is the case of appellant Shah Muhammad. They are not English knowing therefore, they put their signature and L. T. Is. Not in proper place. The agreement Exh. 20 may not be in accordance with law but the possession is protected by section 53-A of the Transfer of Property Act which lays down that "where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty.
8. ' And the transferee has performed or is willing to perform his part of the contract.
9. ' Then notwithstanding that contract, though required to be registered, has not been registered, or where there is an instrument of transfer that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee any persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract.... ....... .."
10. ' The document Exh. 29 may be hit by Registration Act and sections 15 and 19 of Colonization of Government Land (Punjab Act), 1912, but the possession has gone over to appellants. The title no doubt remains with Noor Muhammad, but he himself admits in written statement that Punjabi Haris employed by him on suit land were cultivating and managing suit land on his behalf and that he purchased Tractor in 1976 and Haris were annoyed and in collusion with plaintiffs they handed over possession of suit land to plaintiffs without his consent and knowledge. Since 1976, he remained silent till the suit was filed by the appellants. In his deposition, he has stated in Chief Examination that his outgoing Haris namely, Aslam, Akram and Wali Muhammad did not return possession of land instead they put Shah Muhammad, KhushiMuhammad, Sharif, Muhammad Boota and Muhammad Tufail in possession. In that contest, the photostat copy of agreement, alleged to have been executed by Muhammad Aslam and Muhammad Akram, in favour of Plaintiff No, 2 Muhammad Boota, attested by Mukhtiarkar and F. C. M., Badin and the photostat copy of agreement alleged to have been executed by attorney Jamaluddin in favour of Muhammad Sharif, Muhammad Tufail. Muhammad Ibrahim and Muhammad Rashid, attested by Notary Public, Badin become relevant, though executed on separate dates. They have corroborative effect to the version of respondent Noor Muhammad in his written statement and deposition. Moreover, defendants Muhammad Aslam, Muhammad Akram, Wali Muhammad, Hamid Ali and Jamaluddin are made ex parte by the learned Senior Civil Judge. In that case whatever is averred or deposed against them by appellants goes unrebutted. Respondent Noor Muhammad has deposed in Chief Examination that his Haris delivered about 48 acres of his land to Shah Muhammad and others and that out of 48 acres of his land in possession of plaintiffs, about 20-25 acres have been cultivated with sugarcane and total value of produce per year will be about Rs, 25,000 to 48,000 from portion of his land, in possession of plaintiffs. No one will be a fool to invest so much and raise crop worth so much, knowing that he is trespasser, Khushi Muhammad P. W. Is admittedly brother of appellants and though he has supported the case of appellants yet his word is interested and can be discarded. The respondent cannot be allowed to go out from his own admissions, It is admitted by him that his 48 acres are in possession of appellants given over to them by his previous Haris, who used to pay Land Revenue also. Matters little if Exh. 29 pertains to 12.20 acres only. The above admission of Noor Muhammad coupled with the agreements, produced alongwith the plaint, bring the area nearly to 48 acres. Accordingly the agreement Exh. 29 and other agreements produced alongwith plaint may be hit by Registration Act and sections 15 and 19 of Colonization of Government Land (Punjab Act), 1912, yet the possession taken over by appellants, is not affected and they are not unauthorised occupants, as held by the learned Senior Civil Judge.
11. The agreements executed in favour of plaintiffs, cannot be declared as subsisting and operative so far title is concerned being hit by the above Acts, but their possession stands protected under section 53-A of the Transfer of Property Act. Accordingly. I set aside the judgment and decree of lower Court dated 20-12-1979, and allow the appeal partly so far restrain to defendant No, 4, not to interfere into cultivating possession of plaintiffs except in due course of law as demanded per clause (b) of the relief is mentioned. The suit is partly decreed against respondents with no order as to costs. Decree accordingly. R & Ps be returned back to lower Court."
12. ' The above conclusions of 1st appellate Court do not find any support from the evidence on record.
13. The photostat copies of document referred by the 1st appellate Court as corroborative pieces of evidence were neither produced by the respondents in evidence nor they were referred in their oral evidence. The so called admission of petitioner relied by the 1st appellate Court in support of the conclusion that respondents Nos. 1 to 5 were authorisedly in possession of 48 acres of land is an inference based on perverse appreciation of evidence as the petitioner in his "so called admission" had categorically stated that his Haris did not return possession of land to him but handed over the same to respondents Nos 1 to 5 who were neither appointed as Haris nor to whom the petitioner had sold the land. I fail to see how this statement of petitioner could amount to an admission that respondents Nos. 1 to 5 were in authorised possession of land in suit. Since respondents Nos. 1 to 5 were found to be in possession of land unauthorisedly the trial Court rightly dismissed their suit for grant of injunction.
14. ' For the aforesaid reasons the judgment and decree of 1st appellate Court is set aside and that of trial Court is restored. The respondents Nos: 1 to 5 will also bear the costs of this revision. .