' This Revision Application under section 115, C.P.C. Is directed against the appellate Court's judgment and decree dated 7-1-1990 reversing the judgment and decree passed by learned Ind Senior Civil Judge, Larkana dismissing the suit filed by respondent No,1 for declaration, permanent injunction and in the alternative for specific performance of agreement in respect of agricultural lands situated in Taluka Warah and Taluka Dokri.
2. Dispute between the parties relates to S. No, 998 Deh Garelo Taluka Dokri, S.Nos.312-A & B, 315-A, 316, 317, 321, 322, 325 and 331 of Deh Gaji Khuhawar, Taluka Warah in all measuring 35-8 acres. It is the case of the respondent No,1 that Rasool Bakhsh Jatoi predecessor-in-interest of the applicants as well as respondent No,2 made a statement before Mukhtiarkar, Dokri on 20-9-1971 agreeing to sell the suit lands to respondent No,1 for consideration of Rs,25,000 with the condition of re- purchase in case the amount was not repaid to him up to 1976. It was further stipulated that in the event of failure to repay the amount, the sale would become absolute. This statement was followed by mutation in the record of rights in favour of respondent No,1. It is further the case of respondent No,1 that consequent upon this statement, he was put into possession of suit lands and he developed the lands by making huge investment. In or about 1985 respondent No,1 was allegedly threatened with dispossession at the hands of the applicants as well as respondent No,2 through Mukhtiarkar Dokri and Mukhtiarkar Warah giving rise to the institution of the suit on 20-2-1985.
3. Suit was resisted by the applicants being the sons of late Rasool Bakhsh Jatoi who expired sometimes in 1975. It was denied that their predecessor-ininterest Rasool Bakhsh Jatni made any statement before the Revenue Authorities or received any consideration or handed over possession of the suit lands to respondent No,1. They claimed continuous possession and enjoyment of the suit lands and pointed out that in January, 1972 their father had transferred the lands in their names and the record of rights was mutated in their favour accordingly.
4. Applicant No,2 claimed to have mortgaged his 0-20 paisa share in the suit lands with Agricultural Development Bank of Pakistan, Warah Branch. Various legal pleas were also raised which were reflected in the issues before the trial Court as under:--
(1) Whether the plaintiff is agriculturist and whether provisions of S.A.R. Act are applicable to this suit?
(2) Whether late Rasool Bakhsh father of defendants Nos.1 to 5 sold the suit land to the plaintiff for a consideration of Rs,25,000 with condition to re-purchase up to 1976 and whether he gave/executed such statement of transfer on 20-4-1971 before the Mukhtiarkar, Dokri?
(3) Whether the plaintiff paid Rs,25,000 to late Rasool Bakhsh and whether late Rasool Baksh transferred the possession of the suit land to the plaintiff in part performance of the contract?
(4) Whether the transaction in favour of plaintiff has become absolute sale due to non-payment of Rs,25,000 by late Rasool Baksh and defendants Nos. 1 to 5 within stipulated period?
(5) Whether the suit is not maintainable?
(6) Whether the plaintiff has any cause of action?
(7) Whether suit is under valued and insufficiently stamped?
(8) Whether the suit is time-barred?
(9) Whether plaintiff is entitled to the relief of specific performance of contract?
(10) What should the order be?
5. Respondent No,2 Shah Nawaz however conceded the claim of respondent No,1 and filed a separate written statement. .
6. In support of his case, respondent No,1 examined himself as P.W.1, Tapedar Ghulam Qadir Dasti P.W.2, Tapedar Nizamuddin who recorded the statement of Rasool Bakhsh Jatoi P.W.3 and Muhammad Qabil Supervising Tapedar P.W.4. On the other hand applicants examined applicant Abdul Qadir D.W.1, Hurmat D.W.2, Muhammad Siddique D.W.3, Ali Nawaz D.W.4 and Haji Parial D.W.5 all being Haris of the suit land.
7. On assessm ent of the evidence on record trial Court found issues Nos.1 to 6 in negative, issues Nos. 7 and 8 affirmative, issue No,9 in negative and consequently dismissed the suit.
8. Civil Appeal No, 63 of 1988 filed by respondent No,1 was heard and decided by, an Additional District Judge, Larkana who set aside the judgment and decree passed by the trial Court and decreed the suit for specific performance of contract. The appellate Court upset the findings of the lower Court on issues Nos.2 to 4 and 9. Issues Nos.5 to 8 were not pressed before the appellate Court. Appellate Court formulated two additional issues as fallows:--
(1) Whether the alleged statement amounts to a contract?
(2) When the specific performance was demanded and refused and since when period of limitation would be computed?
9. On the additional issues, Appellate Court found that the statement amounted to a contract and the. Applicants refused to perform the contract when they tried to' dispossess respondent No,1 giving rise to a cause of action for filing the suit- which was brought within time. It is as against this judgment that the present Revision Application was filed.
10. Learned counsel for the applicants has raised the following contentions before this Court:
(i) That the transfer of immovable property on the basis of statement before a Revenue Officer is not warranted by law and there is no provision in the Sindh Land Revenue Act, 1967 to authorise the transfer and mutation in the record of rights on the basis of statement of owner of the land.
(ii) That the statement of Rasool Baldish Jatoi before Mukhtiarkar, Dokri was never made and that the recording of the statement followed by mutation in the record of rights was an act of fraud and forgery because Ghulam Umar Tapedar brother of respondent Ghularn Qadir was posted in Taluka Dokri who weiled his influence over the Revenue Officials and manipulated the record of rights.
(iii) That in any event transaction between the parties was in the nature of a mortgage with conditional sale which could be redeemed within 60 years.
(iv) That additional issue No,2 framed by the Appellate Court was determined without recording further evidence and affording an opportunity to the applicants to rebut the case of the purchaser i,e, respondent No,1.
11. It is settled position in law that in the event of a conflict of judgment between the two Courts, findings recorded by the Appellate Court should ordinarily be preferred to the findings of the trial Court unless the same is not supported by legal evidence or is based on surmises and conjectures.
In the present case I am satisfied that the learned Appellate Court misdirected itself by taking a different view from the view taken by the trial Court and committed a gross error by misappreciating the evidence adduced by the parties. By adopting a view not supported by the material on record Appellate Court committed a jurisdictional error of law thereby causing gross injustice which earnestly deserves interference by this Court in the exercise of its revisional jurisdiction in order to do substantial justice and to obviate the miscarriage of justice.
12. Dealing with the first two contentions of the learned counsel for the applicants I am inclined to the view that notwithstanding presumption of regularity attached to the official acts within the meaning of Article 129 of Qanun-e-Shahadat, recording of statement of deceased Rasool Bakhsh Jatoi before Mukhtiarkar, Dokri is not at all free from doubt and it is my, considered view that the transaction on the face of it was forged and fabricated. It is for this reason that the same was not acted upon inasmuch as neither the plaintiff paid consideration for the sale of the suit lands to Rasool Bakhsh Jatoi nor was he put in physical possession and occupation of the suit lands as claimed by him in the suit brought after about 14 years of the alleged transaction. It is pertinent to note as per the statement Exh. 63 allegedly recorded before Mukhtiarkar, Dokri by Tapedar Nizamuddin P.W.2, Rasool Bakhsh Jatoi bound his legal representatives for repayment of consideration amounting to Rs, 25,000 till 1976 failing which the sale shall become absolute. In the normal course a person transferring a valuable immovable property whether absolutely or subject to a condition would bind himself and in the event of death his legal representatives but in the present case recital in the statement before Mukhtiarkar is to the effect that Rasool Bakhsh Jatoi sold the suit lands to respondent No,1 Haji Ghulam Qadir with a condition that in case his legal representatives repaid the amount to the purchaser up to 1976, the latter shall be bound to return occupation of the suit lands but failing repayment as aforesaid the sale shall be deemed to be absolute. This approach on the part of the vendor is highly unusual and unrealistic which cannot be accepted by any canon of reasoning and legal norms.
13. There is another aspect of the case. The statement is purported to have been recorded by Tapedar to Additional Gerelo, Taluka Dokri in which survey numbers situated in Taluka Warah were recorded earlier whereas the sole survey number situated in his tapo was recorded later in the alleged statement. Moreover initially Survey No,961 measuring 9-33 acres Deh Gerelo was recorded which was subsequently scored off and substituted by Survey No,968 measuring 1-13 acres. In his examination-in-chief P.W. Nizamuddin tried to reconcile the situation by stating that originally Survey No,961 was written in the statement, but when the statement was read over to the parties they got it corrected to be Survey No,998. It is further astonishing to note that in the same breath this witness stated that the correction was made by him at the dictation of the parties. He emphasised this position by adding that Survey No,998 was written in figures as well as words.
During his cross-examination he was constrained to admit that signature of Rasool Bakhsh Jatoi was not obtained on the correction of survey number from 961 to 998. The absence of initial or 1 signature of the vendor in token of acceptance of substitution of survey number is significant and speaks volumes about genuineness of the transaction particularly when we find from the record that this S.No, was mortgaged with Agricultural Development Bank of Pakistan since 1964 and not redeemed.
14. The matter does not end here. Muhammad Qabil and Tillomal are shown as attesting witnesses to the statement and there is an endorsement by Tapedar Nizamuddin that he had identified author of the statement as well as witnesses to the Mukhtiarkar. It may be pertinent to note that there is no address of both the witnesses which is an elementary requirement for attesting a statement or a document in the ordinary course of business. According to respondent's own case Muhammad Qabil was serving as supervising Tapedar in Taluka Dokri at the relevant period but deliberately his designation or address was not recorded below his name appearing at the foot of the statement, whereas his brother Ghulam Umar was serving as Tapedar.
15. No sanctity is attached to the statement recorded before a Revenue Officer if the attending circumstances tend to show that the things did not take place in the manner it ought to take place.
P.W. Nizamuddin as well as alleged attesting witness Muhammad Qabil stated at the trial that Rasool Bakhsh Jatoi gave statement before Mukhtiarkar Dokri on 20-9-1971. While the statement was scribed by P.W. Nizamuddin it was attested by P.W. Muhammad Qabil. It is interesting to note that according to P.W. Nizamuddin statement of sale, was written by him at the direction of the parties which would include the vendor as well as vendee i,e, respondent No,1 Haji Ghulam Qadir.
Surprisingly if the suit lands were sold away by vendor as claimed, I see no reason as to why the vendee should have any say or locus standi in the matter of recording statement of the vendor.
P.W. Nizamuddin stated that Mr. Abdul Rahim was Mukhtiarkar at the relevant period in whose presence said statement was recorded and Rasool Bakhsh Jatoi as well as both the witnesses signed the statement in presence of this Tapedar. This statement is substantially and materially contradicted by supervising Tapedar P.W. Muhammad Qabil who during his cross-examination stated that statement was recorded in Tapedar's Hall (which is a place of accommodating Tapedars of entire Taluka) but Rasool Bakhsh Jatoi signed the statement in presence of Mukhtiarkar in his office. He clarified the position further by admitting that Mukhtiarkar was not available in the Tapedar's Hall at the time of recording statement of Rasool Bakhsh Jatoi.
16. With regard to the payment of consideration by Haji Ghulam Qadir to deceased Rasool Bakhsh Jatoi at the time of alleged statement there is no endorsement by any of the witnesses at the foot of the statement that the consideration was actually passed on but out of sheer anxiety P.W.
Nizamuddin stated that Haji Ghulam Qadir paid Rs,25,000 to Rasool Bakhsh Jatoi in his presence.
He added that the statement was recorded in presence of witnesses Tiloomal and Muhammad Qabil Soomro in whose presence payment of consideration was also made. P.W, Muhammad Qabil on his part stated that Rasool Bakhsh Jatoi received Rs,25,000 from the plaintiff before Mukhtiarkar Dokri in his presence. Both the witnesses were however obliged to admit during the cross- examination that each one of them had not written at the foot of the statement that payment of Rs,25,000 was made in their presence to Rasool Bakhsh Jatoi by the plaintiff. Last-mentioned witness was further constrained to concede that he did not write at the foot of the statement that.
Rasool Bakhsh Jatoi signed the statement before Mukhtiarkar in his presence.
17. On a careful scrutiny of the evidence on record and in the face of material contradictions therein coupled with the strong circumstances that possession of the suit land was not handed over to the vendee, I am of the considered view that the transaction of sale whether conditional or otherwise did not take place at all and the entire statement followed by mutation in the record of rights in Taluka Dokri in favour of respondent No,1 is manipulated, illegal and of no value.
18. Examining the sale transaction from another angle transfer of the immovable property on the basis of statement before Revenue Officer was supported by learned counsel for respondent No,1 for the reason that such transaction in this part of the country are admissible and legally tenable by virtue of para.6 of Standing Order 17 issued by the Government of Bombay. In this connection reference was made to the cases reported as Noor Muhammad v. Abdul Hamid (1984 CLC 23) and Muhammad Issa v. Board of Revenue, W.P., Lahore (PLD 1979 Karachi 783) but I am of the view that such orders lost their legal value and efficacy after coming into force of the Sindh Land Revenue Act, 1967 at least to the extent of inconsistency with section 42 (before its amendthent in 1980) of the Sindh Land Revenue Act which provides the mechanism for making periodical record relating to the land owners and lays down that any person acquiring by inheritance, purchase, mortgage, gift or otherwise any right in an estate as a land owner or a tenant for a fixed term exceeding one year shall within three months from 'the date of such acquisition, report his acquisition of right to the Patwari of the estate who shall record such report in the Roznamcha to be maintained in the prescribed manner. Subsection (3) envisages that the Patwari shall enter in his register of mutations every report made to him under subsection (1) or subsection (2), and shall also make an entry in the Roznamcha and in the register of mutations respecting the acquisition of any such right as aforesaid which he has reason to believe to have taken place and of which report should have been made to him under either of those subsections and has not been so made. Subsection
(6) postulates that a Revenue Officer shall from time to time enquire into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid coming to his knowledge of which under the foregoing subsections report should have been made to the Patwari and entries made in that register and shall in each case make such order as he thinks fit with respect to any entry in the periodical record of the right acquired. Subsections (7) and (8) lay down that except in cases of inheritance or where acquisition of the right is by a registered deed or by or under an order or decree of a Court, the Revenue Officer shall make the order under subsection (6) in the presence of the person whose right has been acquired after such person has been identified by two respectable persons preferably from Lambardars or members of the union committee, town committee or union council concerned whose signatures or thumb-impression shall be obtained by the Revenue Officer on the register of mutations and an inquiry or an order under subsection (6) shall be made in the common assembly in the estate to which the mutation which is the subject-matter of the inquiry relates.
19. Evidently mutation in the record of rights in favour of respondent No,1 in consequence of the alleged statement of Rasool Bakhsh Jatoi was made in violation of the statutory provisions referred to above and in utter disregard of the provisions contained in section 54 of the Transfer of Property Act and sections 17 and 49 of the Registration Act relating to transfer of immovable properties worth Rs,100 or upwards. It is settled proposition of law that entries in the record of rights by themselves do not confer any right, title and interest in favour of the party and these are essentially meant for fiscal purposes. The presumption of correctness attached to such entries is rebuttable and in the face of evidence on record it can be safely and legitimately concluded that the possession of suit lands was never transferred to respondent No,1 who. Has miserably failed to show that he was put in possession of the suit lands as asserted.
20. On behalf of the respondent No,1 land revenue receipts Exh.74 to Exh.79 were tendered in evidence to substantiate his claim that he was put in possession of the suit lands. While Exhs.74 and 79 pertain to the payment of land revenue assessment by him in respect of .Survey No,998 and others in Deh Gerello remaining receipts reflect the payment of land revenue assessment in relation to lands situated in Taluka Warrah. Exh.74 reflects the payment of Rs,200 by way of land revenue assessm ent in February, 1985 while Exh.79 denotes the payment of Rs,50 on account of land revenue assessm ent in September, 1986. Mere production of two land revenue receipts for the years 1985 and 1986 subsequent to filing of the suit in respect of Survey No,998 and others do not by themselves establish the possession of Survey No, 998 in favour of respondent No,1 claiming to be in possession of the entire suit lands since September, 1971.
21. Remaining receipts pertain to the year 1982 onwards and tend to show the payment of assessm ent by Haji Ghulam Qadir on account of Shahnawaz son of Rasool Bakhsh Jatoi. These receipts when examined in the context of mutation in the record or rights show that the record of rights stood in the name of Shahnawaz and his brothers and was not mutated in favour of respondent No, 1 . It is in the evidence that Shahnawaz who is married to the sister of Haji Ghulam Qadir and who supported the case of respondent No,1 in his written statement did not step into witness-box. There is no gain saying that the record of rights in respect of the suit lands situated in Taluka Warrah was not mutated in favour of Haji Ghulam Qadir who remained contended by simply stating that he had produced true copy of the Khata in respect of portion of the suit land situated in Taluka Dokri before Mukhtiarkar Warrah alongwith an application to the said Mukhtiarkar who allegedly assured him that he will mutate the Khata in respect of the suit lands situated in Taluka Warrah in his favour. Be that as it may, the factual position remains that the record of rights in respect of the suit lands was mutated in favour of the applicants as well as respondent Shahnawaz being real sons of Rasool Bakhsh on the basis of order passed by the Assistant Mukhtiarkar Warrah on 6-1-1972. It is further evident from the record that some times in 1971 Rasool Bakhsh Jatoi had made a statement before Mukhtiarkar Warrach transferring his lands in favour of his five sons in equal shares by way of gift.
22. Having held above let us examine the evidence adduced on behalf of the applicants who not only examined one of them i,e, Abdul Qadir but also adduced strong corroborative evidence of four Haries namely Hurmat, Muhammad Siddiq, Ali Nawaz and Haji Paryal. All these witnesses have confirmed the possession of the suit lands in favour of the applicants and sharing produce with them after the death of deceased Rasool Bakhsh Jatoi. Even respondent No,1 in his evidence admitted at least Hurmat and Muhammad Siddiq as Haries of the suit lands. Although during cross-examination he challenged their status as Haries, he did not care to examine any Hari in rebuttal.
23. Indeed respondent No,1 was fully conscious of this position long back and at least in 1982 when he claimed to have paid land revenue assessment on behalf of Shahnawaz in respect of the lands situated in Deh Gaji Khuhawar Taluka Warrah that the record of rights stood in the name of the applicants as well as their brother Shahnawaz. Having produced land revenue receipts pertaining to Deh Gaji Khuhawar for the year 1982 onwards respondent No,1 cannot be allowed to say that for the first time applicants threatened to dispossess him about a month before filing of the suit on 20-2-1985.
23-A. There is one silent feature of the case which escaped notice by all concerned, i,e, both the Courts below as well as the counsel for the applicants. It is that Shahnawaz readily accepted the assertion of respondent No,1. It was purposely done because Shahnawaz was adversely disposed , towards the applicants for the obvious reason that he is admitted to be step-brother of the applicants and there was litigation between him as well as the applicant No,1. Moreover he is married to the sister of respondent No,1. Consequently the admissions of Shahnawaz are of no avail to respondent No,1.
24. All these circumstances clearly reflect that respondent No,1 approached the Court of law with a view to obtain discretionary relief of declaration as well as permanent injunction and in the alternate specific performance of contract did not come to Court with clean hands which factor alone is sufficient to disentitle him to the reliefs sought.
25. In my view Appellate Court seriously fell into error by accepting the alleged statement of Rasool Bakhsh Jatoi before Mukhtiarkar, Dokri is a contract of sale in relation to the lands situated not only in Taluka Dokri but also the lands situate in Taluka Warrah. There is absolutely no evidence worth consideration to show that the applicants were at any time approached or they refused to perform the part of their contract entitling respondent No,1 to the relief of specified performance as wrongly granted by the Appellate Court. Since I am not inclined to accept the statement of Rasool Bakhsh Jatoi before Mukhtiarkar Dokri as valid and legal entire edifice built thereon must fall to the ground and give way to the rights accruing in favour of the applicants to whom Rasool Bakhsh Jatoi bequethed the suit lands in Taluka Warrah.
26. In view of the aforesaid discussion it is not necessary to deal with other contentions raised on behalf of the applicants. In the result I set aside the judgment and decree passed by the appellate Court and dismiss the suit with costs throughout.