1. WAHEEDUDDIN AHMAD, J-This appeal by special leave is directed against the judgment of the former High Court of West Pakistan Karachi Bench, Karachi, in Second Appeal No. 207 of 1.964 dated the 11th August 1964. By this judgment, the appeal of the appellants was dismissed.
2. The dispute between the parties is in respect of agricultural land situated in Deh Bago Daro, measuring 35 acres and 35 Ghuntas. The allegation of the appellants is that this land was taken jointly by deceased Azizullah and Saindad in the name of respondent No. 3 Saindad, as according to the rules governing, the grant could be sanctioned only in the name of one person. It is alleged that since the date of purchase, Azizullah, father of the appellants, remained in physical possession of the land and after his death, the appellants remained in its possession. The case of the appellants is that in accordance with the arrangement between deceased Azizullah and Saindad, the land remained in the exclusive possession of the former who used to get the same cultivated, pay land revenue assessm ent and the instalments of the purchase price to the Barrage authorities.
3. After the death of Azizullah, the three appellants stepped into his shoes as his heirs and continued to pay the land revenue and the instalments. By the year 1955, the entire Malkano was paid by the appellants. In that way the land in dispute became the exclusive property of the three appellants on the one hand and the respondent Saindad on the other hand in equal shares. It is further alleged that in the year 1954, respondent Saindad had executed a document in favour of appellants Nos. 2 and 3 acknowledging their share in the land The name of appellant No. 1 was omitted due to oversight. According to the appellants, after the full payment of the Malkano to Barrage authorities, respondent No. 3 and the appellants partitioned the land privately in the year 1955. By this partition, survey Nos. 514/1, 515/2, and 3, 516/1,3 and 4 and 518/3 came to the exclusive share of the appellants. Out of these survey numbers, survey Nos. 514/1 and 515/2 were subject to mortgage which were redeemed by the appellants. It is further alleged that after partition, Saindad sold away his share to Sarno Khaskheh and Muhammad Hassan Shar. In this way Saindad was left with no right or interest in the land in dispute and the appellants continued to enjoy the full ownership of the land which came to their share as a result of partition.
4. It appears that on the 24th January 1964 respondent Saindad sold the alleged exclusive share of the appellants to respondent Adam Khan, a younger brother of respondent Mohammad Umer.
5. After the purchase, they threatened to dispossess the appellants. Thereupon, the appellant filed Suit No. 9 of 1962 in the Court of Civil Judge Nawabshah claiming declaration of their title to the land and permanent injunction by way of consequential relief.
6. Respondents Nos. 1, 2 and 3 resisted the suit of the appellants, Respondents Nos. 1 and 2 denied all the allegations, made in the plaint. Respondent No. 3 denied that he had purchased the land jointly with Azizullah or that the latter had any share in the suit land. He also denied the allegation of the partition of the land or that he has executed any deed in favour of the appellants. His case is that Azizullah used to look after the property in dispute which was his exclusive property, as his Kamdar.
7. According to him, after the death of his father, appellant Allah Dino continued to look after the land in the same capacity as that of his father. He alleged that the appellants have taken wrong advantage of their Kamdarship and because of the influence they wield with some big local zamindars they have been out to usurp his property in dispute. He pleaded that the suit is not maintainable that it is bad for misjoinder and non joinder of parties, that the suit is undervalued and is insufficiently stamped. Respondent Saindad further alleged that he being the sole owner of the land in dispute and being in its exclusive possession has sold it to respondent Adam Khan under a valid registered sale deed.
8. On the pleadings of the parties, the following issues were framed:---
(1) Did Azizullah and defendant No. 3 purchased the land in equal shares as alleged by the plaintiff?
(2) Did Azizullah and the plaintiffs remain in possession of land by consent till 1955?
(3) Did defendant No. 3 execute a deed of compromise admitting a share half of Azizullah in the land under dispute?
(4) Did defendant No. 3 and plaintiffs partition the land in the manner as stated in the para No. 6 of the plaint?
(5) Is the suit not maintainable in law?
(6) Is the suit bad for mis joinder and non joinder of necessary parties ?
(7) Is the suit not in proper form?
(8) Is the suit undervalued and understampe3?
(9) Are the facts alleged in para No. 15 of written statement of defends: is true?
(10) Are the plaintiffs entitled to the relief sought for?
(11) What should the decree be?
9. The parties led evidence. Plaintiff Allah Dino was examined, vide Exh.
40. He deposed that the other two plaintiffs are his brothers. His father Azizullah died in 1951. His father was a fast friend of respondent Saindad. Both of them purchased land in dispute jointly in equal share from the Barrage authorities. According to him, since the time of purchase, at first his father and after his death, he and other two plaintiffs have been in possession of the land in dispute. They have paid the instalments of the land and the land assessment due on it. All the important documents relating to the land in dispute are in their custody. In the year 1955, respondent Saindad executed an agreement, Exh.40-A, in their favour. Saindad respondent received Rs. 8,000 from them in order to get the Khata mutated in their favour. In the same year, the whole land was partitioned and the plaintiffs got survey Nos. 514/1, 515/2 & 3, 516/1, 2 and 3 and 518/2 measuring 22 acres and 30 Ghuntas. The share which fell to the lot of Saindad was sold by him to Muhammad Hassan Shar and Shamo Khaskheli. After that, there remained no share of Saindad in the land which was taken from the Barrage authorities. He alleged that the plaintiffs were the exclusive owners of the land in dispute. Saindad had sold the share of the plaintiffs as his own property to respondents Muhammad Umar and Adam Khan. He further stated that survey No. 514/1 and 515/2 were mortgaged by Saindad with Shah Mohammad Khaskheli. He produced the mortgage deed Exh. 40- C and Anjam Exb. 40/D. He further produced 22 bills of assessment Exh. 40/E-1 to Exs. 40/17-22. He produced land revenue receipts, Exh. 40/F-1 to 40 F-40. He produced the application given to the Barrage authorities on behalf of Saindad, Exh 40/G. He further produced notice received from the Barrage authorities, Exhs. 40/E to 40/11-3. He produced the original Ijazatnama in the name of Saindad. Exh. 40-J. He further produced the receipt executed by Shah Mohammad Exh. 40/E, in their favour for the payment of mortgage money. He also produced a receipt of Money Order, Exh. 40-L for payment of Rs.
42. To Mukhtiar kar. He produced six other notices of instalments vide Exh. 40/M- 1, to 40/M-6.
10. The plaintiffs produced Ghulam Kasim, Exh. 41, as their witness. He claims to have cultivated the disputed land as hart of the plaintiffs. He stated that respondent No. 3 had purchased land from the Barrage authorities and Azizullar was partner with him. In cross-examination, he admitted that he was not present in the Barrage when the land was purchased.
11. Saindad respondent No. 3 was also examined as witness of the plaintiff's. He stated in his examination-in-chief that he had friendly terms with Azizullah. He purchased land from Barrage authorities in Deh Bago Daro. Azizullah had 8 annas share in the spit land. He stated that the land was taken in his name because two persons cannot take the land jointly. He paid the first installment. Azizullah had not paid half of that instalment. Thereafter, the half of the installment was paid by him and the remaining half paid by Azizullah. He denied that Exh. 40/D bears his signature.
12. He stated that he had given the Ijazatnama and the agreement to Azizullah for keeping them in safe custody. He also stated that he had got the land partitioned between himself and the plaintiffs. In the partition, the plaintiffs got survey Nos. 516/1, 3, and 4, 518/2, 512/2, 3 and 4 and 514/1.
13. After partition, the plaintiffs were possession of the sail lard. He further stated that he had mortgaged with Shah Mohammad survey Nos. 514/1 and 515-2 under mortgage deed, Exh. 40/C.
14. According to him, the plaintiffs got the mortgage redeemed. He further admitted in Examination- in-Chief that he had sold his share to Shamo and Mohammad Hassan. All the instalments had been paid. According to him, Azizullah was in possession of his land as his friend and Zamindar. He further admitted that he had sold 8 annas share of Azizullah to Umar Tapedar and told him that the land stood in his name and therefore, he was the owner of the land.
15. On the evidence of the parties, the learned trial Judge, on issues Nos. 1, 2 and 3, has held that Azizullah and respondent Saindad had purchased the land in equal share as alleged by the plaintiffs and that Azizullah and after his death, the plaintiffs remained in possession of the land. On issue No. 3, he held that it cannot be said that respondent Saindad had executed the Kabuliat. Exh.
16. 40/D, admitting 8 annas share of Azizullah in the land in dispute. Issue No. 4 was decided in favour of the plaintiffs. Issues Nos. 6 and 8 were not pressed. On issues Nos. 5 and 7, it was held that the suit was in proper form and maintainable in law. Issue No. 9 was also decided in favour of the plaintiffs. On issue No. 10, it was held that the plaintiffs are entitled to relief sought for in view of the findings mentioned above. On these findings, the suit was decreed with costs by judgment dated the 11th February 1963.
17. Respondents Nos. 2 and 3 challenged this judgment in Civil Appeal No. 35 of 1963. The learned District Judge, Nawabshah, accepted the appeal and set aside the judgment of the trial Court. He came to the conclusion that Azizullah was not a shareholder in the property in dispute and the property in dispute was rightly transferred to respondents Nos. 1 and 2. The appellants challenged this judgment in Second Civil Appeal No. 207 of 1964. A Division Bench of the High Court, by judgment, dated the 11th August 1964 dismissed it on the ground that the second appeal is concluded by finding of facts and there was no case for interference.
18. Thereafter, the matter was taken to this Court. The judgment of the High Court was challenged in Civil Petition for Special Leave to Appeal No. K-65 of 1964, and leave was granted by order dated the 10th February 1965, to consider the contention that the High Court was not justified in holding in second appeal that the cast was concluded by finding of fact of First Appellate Court. It was observed that the First Appellate Court had reversed the decision of the trial Court but in doing so did not discuss the evidence fully.
19. This case was argued by Mr. A. H. Pirzada on the Ist September 1970. After bearing him, the appellants were permitted to lead additional evidence to prove Exhs. 40/A and 40/D. The parties were further given opportunity to lead such evidence as they want to lead in support of their case.
20. It was further directed that on receipt of the evidence from the trial Court, Exhs. 40/A and 40/D will be sent to the Government Handwriting Expert for comparison with the admitted signatures of respondent No. 3 Saindad.
21. The appellants have produced Wahid Bakhsh, Exh.
93. He stated that originally, the suit land belonged to the deceased Azizullah and respondent No. 3 Sair-dad. They had equal share in the suit land. Azizullah was in possession of the whole of the suit land. An agreement was executed between him and Saindad in writing in his presence. At present the suit land is in possession of Allahdino, Khadim Hussain and Miral. In cross-examination he admitted that he had been cultivating the land of Khair Shah. He further stated that he did not know as to whether deceased Azizullah was ever his Kamdar. The appellants further examined Allah Yar, Exh.
94. He also stated that the land in dispute was owned by Azizullah and Saindad. Each had 8 annas share in this land.
22. It remained in possession of Azizullah throughout his life time. About 3-4 years prior to inception of Pakistan, it was partitioned between them. A document was reduced in writing. It was written by the brother of Wahid Bux. At present the land in dispute is in possession of the plaintiff's. In cross- examination, he stated that document, Exh. 40/D, was reduced into writing in cattle shed owned by the haris. He admitted that Azizullah was Kamdar of Khair Shah.
23. The appellants examined Bhai Khan, Exh.
95. He stated that the suit land was purchased by Saindad and Azizullah. One document was reduced in writing at their otak about 14-15 years back.
24. It was written by Saindad in favour of the plaintiffs. In cross-examination, he stated that the document was written at their otak between Mir Mohammad, Khadim Hussain and Saindad. Rs.
25. 8,000, was paid to Saindad by the plaintiffs and he had given them the land. Plaintiffs had purchased 8 annas share in the suit land from Saindad for Rs. 8,000. The appellants further examined Ghulam Hyder, Exh.
96. He deposed that the plaintiffs had purchased the suit land from Saindad about 14 years before. He further stated that it was originally purchased by Saindad from the Government. He had 8 annas share. Saindad remained in possession of the suit land. In cross- examination, he stated that 8 annas share of the suit land was purchased by the plaintiffs from Saindad for Rs. 8,000.
26. The documents, Exhs. 40/A and 40/D were sent for examination by the Handwriting Expert. He has submitted the report. In his opinion, these documents do not bear the signatures of Saindad, after comparison from the admitted signatures 9f documents, Exh. 34, Exh. 40/C and Exh. 40/E, marked - --X` Y' `Z' .
27. Mr. A. S. Pirzada, learned counsel for the appellant has submitted that this evidence is of no use because the Expert has not been. Examined in Court. This objection of the learned counsel appears to be well founded. I would, therefore, not take into consideration the report of the Handwriting Expert.
28. Now coming to the merits of the case, it would appear that the case of the appellants is that Saindad and Azizullah deceased were friends and the property in dispute was taken from the Barrage Department in the name of Saindad respondent No. 3. According to them, Azizullah was a partner of Saindad in this land He used to look after the land and paid the Malkana. In support of this, they have produced oral evidence. They have further produced the Ijazatnama of the land in dispute and the document showing that the instalment and the land assessment was paid by Azizullah and Allah Dino. They also relied on the possession of the land and on the admission of Saindad that Azizullah was co-sharer in the land in dispute of 8 annas share. I have gone through the evidence of the parties and in my opinion, the oral evidence produced by the appellants only shows that Az zullah was in possession of the land in dispute after it was taken from the Barrago authorities and after his death, the plaintiffs were in possession of this land. The documentary evidence further shows that Ajazatnama and some other documents relating to the payment of instalments and land assessm ent were in the custody of the appellants. In my opinion, this evidence does not lead to the inference, that the land in dispute was held in equal share by respondent Saindad and Azizullah. The statement of Saindad recorded as plaintiffs' witness does not inspire any confidence. He has stated in the written statement that Azizullah was not his partner, that the land belonged to him and that Azizullah was looking after his land as his Kamdar.
29. In the face of this document, his oral testimony in Court that Azizullah was also a co-sharer in the land in dispute and it was partitioned between the parties appears to be obliging statement in favour of the appellants.
30. There are certain circumstances and pieces of evidence in the case which lead to the inference that the case of the appellants that Azizullah was shareholder in the land in dispute of the property is false. It will be noticed that the appellants have relied on a document, Exh. 40-A, which shows 8 annas share in the property in dispute was sold to Khadim Hussain and Mir Mohammad for Rs.
31. 8,000. In the presence of this document, it is difficult to believe the case of the appellants that after the death of their father, they were co-sharer in the property in dispute, The oral evidence led by the appellants, namely of Bhai Khan, Exh.95, Ghulam Hassan, Exh. 96 also shows that the land in dispute was sold for Rs. 8,000. P. W. Allah Dino also admitted that Saindad received Rs. 8100, from the appellants in order to get the Khata mutated in their favour. In the beginning, the appellants' case was not that they purchased this land for Rs. 8000. Their case as set up by Exh. 40-A in paragraph 3 of the concise statement is that in 1954, respondent Saindad had executed a document of acknowledgement in favour of appellants Nos. 2 and 3 acknowledging their share in the land. The oral evidence contradicts this case and in such circumstance no reliance can be placed on such assertion.
32. It will be further noticed that appellant Allah Dino filed a complaint, Exh. 40/S, in which he admitted that he was hari of accused Saindad from the time of 'Khanat' of the land in dispute. He also made similar statement before the Magistrate in Exh. 40/T. It is difficult to understand that if Allah Dino became co-sharer in the property in dispute why he described himself as hart of Saindad.
33. It is also the case of the appellants that the property in dispute was partitioned in 1955. Under this partition, they got survey Nos. 516-1, 2 and 3, 515-2, 3, 514-1, 518-1 to their share measuring 22 acres 30 ghuntas. If this was a correct allegation, the appellants would have got their names mutated in the Revenue record. No such mutation was made. On the contrary, it appears that after the alleged partition, out of this land, Saindad under a registered mortgage deed, Exh.40/C, dated the 11th April 1955 mortgaged Nos. 515-2 and 515-1 for Rs.8000. In favour of Shah Mohammad. This document clearly shows that the case of the appellants about partition is a faked one. In this document, it is clearly stated that this land had not been given to any one in any way or had been disposed of in any other manner. There are two other documents, Exh. 70/A and Exh. 70/B which further support the conclusion. Exh. 70/A is a sale---deed in favour of Muhammad Hassan of block No. 518-2 in consideration of Rs. 4000, by registered sale deed-dated the 16th March 1,59. Exh. 70/B is also the sale-deed in favour of Muhammad Hassan in respect of survey No. 518-2 measuring 3-1 acres dated 16th March 1959. In 199, before the suit was filed, Saindad made the following assertion in the said document:---- "I, the executant own land in Deh Bago Daro taluka Kandiaro, Sub-District Naushahro Feroze, Registration District Nawabshah. The Khatta thereof is entered in my name in the record of rights. It is not under any encumbrance. There are no Government dues against it. None else has share or right therein. It was not previously sold or mortgaged, nor was it purchased from any non---Muslim on or after 1st March 1947. By this transaction, the M. L. R. No. 64 is not violated. If it is so the transaction may be deemed null and void. The land is in my possession without any restriction. I own about 36 acres of land out of which Block No. 518-2 area 3-1 acres entirely belongs to me and I have every right to dispose it off."
34. The statement made in the said registration sale-deed clearly shows that Saindad has admitted in this statement that he was the owner of the entire 36 acres of land. This is an important piece of evidence and in my opinion, it clearly shows that Azizullah or the appellants had nothing to do with the land in dispute.
35. After carefully considering the evidence of the parties, I am of the view that the case set up by the appellants is self-contradictory and they have failed to establish that Azizullah was equal shareholder in the land in dispute. The mere fact that Azizullah was in possession or paid the instalment does not lead to the conclusion that he was a co-sharer in the property in dispute. The evidence shows that the instalment which he paid was out of the produce of the land. He did not invest any amount. In these circumstances, the finding of the District Judge that Azizullah was a friend of Saindad and that he was looking after the land as his Kamdar appears to be fully supported by the documentary evidence in the case. In my opinion, no reliance can be placed on the evidence of Saindad. He is a false witness. He made obliging statement in favour of the appellants His statement is contrary to the assertion made by him in authentic' documents. I would, therefore, hold that the District Judge was perfectly justified in coming to the conclusion that the appellants had no interest in the property in dispute. In the result, I would dismiss the appeal with costs.
36. HAMOODUR RAHMAN C. J. -I agree.
37. MUHAMMAD GUL J.-I agree.