1. ' The facts of matter as disclosed in the plaint are that there was litigation between the parties for one acre of land from Survey No,480 of Deh Khahi Maman, Taluka Nausharo Feroze. Suit for mesne profit filed by the respondent against the applicant/plaintiff was decreed and according to the applicant/plaintiff at the intervention of some Nek Mards parties decided to end the litigation and Suhrab respondent/defendant agreed to sell the suit land and executed such agreement in favour of applicant/plaintiff on 6-10-1979 in which he is alleged to have acknowledged to have received Rs,20,000. The same amount includes the price of suit land and mesne profit enjoyed by the plaintiff earlier and the possession of the said land was alleged to be with him which he continued to retain up to the time of agreement of sale and that respondent/defendant has resiled from the agreement. The case of the respondent/defendant is that suit land was purchased by the plaintiff against whom the defendant (Suhrab) filed suit for pre-emption which was decreed and further that plaintiff filed Suit No,91 of 1971 for the same land in the Court of Civil Judge, Nausharo Feroze which was for specific performance of contract and the same was dismissed. Thereafter, applicant/plaintiff filed a petition claiming the same land on the basis of his right of pre-emption under the tenancy laws 1950, read with Pre-emption Rules, 1974 and M.L.R. 115 regarding purchase of 25 paisas share from Survey No,480, the suit land in Deh Khahi Maman Taluka Nausharo Feroze which was also dismissed by the Collector/Deputy Commissioner and Tribunal Nawabshah on 19- 4-1979. The defendant further alleges that plaintiff is forcibly taking away the produce of the suit land, therefore, he filed two suits for mesne profits in the Court of Civil Judge, Nausharo Feroze being Suit No,54 of 1972 which was decreed by the learned Civil Judge Nausharo Feroze against the plaintiff/applicant. Subsequently the appeal filed against the judgment/decree of the Civil Judge was also dismissed but another suit for mesne profit is still pending. The learned trial Court on the pleadings of the parties settled to following issues:--
(1) Whether the defendant has executed the alleged agreement of sale in favour of plaintiff ? If so, what is its effect?
(2) Whether the plaintiff paid Rs,20,000 as consideration for suit land to the defendant before the execution of the agreement of sale?
(3) Whether the plaintiff is in possession of the suit land under the alleged agreement of sale?
(4) Whether the suit is not maintainable?
(5) Whether the plaintiff is entitled to relief sought for?
(6) What should the decree be?
2. ' Before the trial Court plaintiff examined himself as witness and also examined Jumo and also alleged sale agreement was produced. Respondent/defendant examined himself and he also produced judgment and decree of the Court of IInd Additional District Judge Nawabshah and order of the Deputy Commissioner. After considering the matter, analysing the evidence and hearing the parties learned trial Court was pleased to dismiss the suit vide judgment dated 23-11-1983.
3. ' Being aggrieved and dissatisfied with the above judgment and decree applicant/plaintiff preferred Civil Appeal No,130 of 1983 before the learned District Judge Nawabshah which was subsequently transferred to the Court of the learned First Additional District Judge Nawabshah and learned First Additional District Judge was pleased to dismiss the appeal with costs vide judgment dated 30-5-1984. Hence this Civil Revision Application.
4. ' Mr. Abdul Hai Memon, learned counsel for the appellant has contended that the judgment and decrees of the learned lower Courts are contrary to law, facts and equity. That both the learned Courts have failed to appreciate that the present applicant/plaintiff has proved the sale agreement Exh.59 through P.W. Jumo the attesting witness who has been disbelieved by the Courts below for the reasons which are not tenable in law. Furthermore, that learned lower Courts have erred in disbelieving Jumo merely on the ground that he is related to the applicant. The learned lower Courts have also erred in disbelieving the sale agreement Exh.59 for the reasons that scribe and the Notary Public were not examined by the applicant in the trial Court. That the findings of the learned lower Courts on the issues are based on mere surmises and inferences. That the learned First Additional District Judge Nawabshah has erred in holding that the suit was also barred under the provisions of the M.L.R. No,115. That Martial Law Regulation 115 was amended and according to the Sindh Land Reforms Regulation (Sindh Amendment) Ordinance, 1982, notified on 4th May, 1982, according to paragraph 24, sub-para. (4) which provides that: ' No person owning an area equal to or less than a subsistence holding shall be allowed to alienate by sale, mortgage, gift or otherwise any part of his holding; ' Provided that he may alienate his entire holding or, in the case of a holding which is less than a subsistence holding, sell any part of his holding to other owners of he same village, Deh or Mauza.
5. ' As such the finding pertaining to the observation of the learned Tribunal regarding alleged sale that it is in violation of M.L.R. 115 and cannot be enforced, is not tenable. Learned counsel has referred;
(1) Dil Murad and others v. Akbar Shah (1986 SCM R 306);
(2) Abdul Ghaffar v. Muhammad Sharif (1993 CLC 1779);
(3) Saheb Khan through Legal Heirs v. Muhammad Pannah (PLD 1994 SC 162);
(4) Syed Qamar Ahmad and another v. Anjum Zafar and others (1994) SCMR 65);
(5) Atta Muhammad v. Matloob Alam Khan (1996 SCM R 601).
6. ' Mr. Jhamat Jethanand, learned counsel for the respondent/defendant has contended that the revision application is not maintainable. That the learned trial Court as well as learned appellate Court after considering analysing the evidence produced by the parties, with sound and cogent reasons have dismissed the suit as well as appeal. That applicant himself has not signed the alleged sale agreement Exh.59, as such he himself is not a party to the contract and he cannot press for enforcement of the contract/agreement. That neither scribe has been examined by the applicant nor Notary Public has been produced by him in the trial Court in support of the case.
7. Moreover, the stamp vendor from whom the alleged stamp was purchased was also not put in the witness-box by the plaintiff to substantiate his contentions. That the contentions of the plaintiff were controverted by the respondent/defendent. It was incumbent on the applicant/plaintiff to have requested the Court for sending the specimen of the thumb mark of the respondent/defendant allegedly so affixed by the defendant/respondent to the expert for his opinion in order to prove the case. It was necessary for the applicant/plaintiff to have examined scribe, the stamp vendor, the Notary Public and the opinion of the expert to show that alleged thumb mark was actually affixed by the defendent/respondent. That it is also not acceptable to the common sense that immediately after five days of the alleged sale-deed the suit was filed. That the cross-examination carried on by the learned counsel for the respondent/defendent has gone unchallenged, under the circumstances the evidence so recorded is considered to be not in favour of the applicant/plaintiff. That the contention of the applicant/plaintiff that due to intervention of the Nek Murds respondent/defendent entered into compromise with the applicant/plaintiff outside the Court though suit filed by the respondent/defendent was decreed against the applicant/plaintiff by the learned Civil Judge and the same was upheld by the appellate Court, under the circumstances as required under Order XXI, Rules 1 and 2, C.P.C. The agreement so alleged is in violation of the same which is not liable to be enforced or considered'. That this is third round of litigation between the parties and that compensatory costs in respect of false and vexatious claims or defence as provided under section 35-A, C.P.C. May be awarded to the respondent/defendent. Mr. Jhamat Jethanand Advocate has suggested that in the interest of justice at least cost of Rs,30,000 be awarded to the respondent. Learned counsel has relied upon;
(1) Haji Muhammad Zaman v. Zafar Ali Khan and others (PLD 1986 SC 88).
(2) Muhammad and 2 others v. Mst. Banuk Naz Khatoon (1989 CLC 1819).
8. ' It would be pertinent to refer the relevant paras. Of evidence of Jamoo who has stated in cross- examination that "I was not witness in the other suit of the parties". That he has appeared as witness in the suit, the copy of the judgment was filed by the defendant/respondent Suhrab which is Exh.62 being the Civil Appeal No,15 of 1972 decided by the IInd Additional District Judge Nawabshah wherein at page 4 it is mentioned while deciding issue No,2 in order to establish his case on this point, the applicant/plaintiff had examined himself as P.W.1 in the lower Court and deposed that "He paid Rs,1,500 to the defendant/respondent before Pathan, Jumo and Ali Hassan".
9. Jumo is admittedly according to the evidence of the applicant/plaintiff "P.W. Jumo is my uncle. I do not know-how he came when Exh.59 was written. Muhammad Salih was not present at that time.
10. Suhrab has purchased stamp paper from Abdul Hafiz. Two or three persons were also there but I do not know them". Applicant/plaintiff in his evidence recorded by the trial Court has deposed "Defendant agreed to sell suit land for Rs,20,000 Abdul Hafiz Vistro has written Exh.59 and then it was read over and defendant No,1 executed the document by putting his thumb impression.
11. Witness Jumo and Abdul Hafiz also signed the document. The petition writer went away with the document and came back after half an hour and got the document attested." Neither Abdul Hafiz Vistro has been examined nor Notary Public has been examined. Moreover Stamp Vendor Muhammad Salih who has issued the stamp paper of the alleged agreement of sale which is Exh.59 was not examined on behalf of applicant/plaintiff. He has further stated in cross- examination "It is incorrect that as Hari I have filed suit for pre-emption against defendant No,1".
12. Whereas respondent/defendant has produced in his evidence the order the learned Deputy Commissioner and Tribunal on the application filed by Abdul Hameed for pre-emption of the suit land under the Sindh Tenancy Act and Pre-emption Rules, 1974 and M.L.R. 115 which is Exh.63 dated 19-4-1977. Moreover, Suhrab defendant/respondent during his evidence recorded by the trial Court produced Exh.62, the order of the learned IInd Additional District Judge, Nawabshah in Civil Appeal No,15 of 1972 referred here in the earlier part of this order and in his examination-in-chief Suhrab had stated "The same Jumo is witness in this case." In cross-examination to the learned counsel for the plaintiff he has stated that "Jumo is my caste-fellow." He further stated "I had dining terms with June but he appeared in evidence on behalf of plaintiff in previous suit, therefore, I am no terms with him ' Mr. Thamat Jethanand, the learned counsel has also contended that evidence carried on by Sohrab pertaining to Jumo the witness has gone unchallenged, therefore, evidence of Sohrab that Jumo is the same person who has appeared on behalf of the applicant/plaintiff in other suit is the one and the same and the learned trial Court as well as learned Appellate Court rightly considered and discarded the evidence of Jumo and by furnishing incorrect statements by the applicant/plaintiff his evidence was rightly discarded. The applicant/plaintiff in view of the evidence so recorded referred hereinabove shows that plaintiff has no sanctity for oath and he has denied the facts which were otherwise proved to be correct by the respondent by producing certified true copies of the judgment of the learned Additional District Judge Nawabshah Exh.62 and order of the Collector/Deputy Commissioner Tribunal dismissing the application of Plaintiff Abdul Hameed claiming the land under Pre-emption Rules. The fact of the submission of the application and the rejection of the same was totally denied by him during the evidence which shows that he is not the trustworthy and trustful witness and no implicit reliance can be placed on his evidence. The contention of Mr. Abdul Hai Memon that the plaintiff/applicant has produced the best available evidence viz. P.W. Jumo who is admitted by the applicant to be his uncle whereas the plaintiff has himself chosen not to examine Abdul Hafiz Vistro, the scribe of the agreement and Muhammad Salih the stamp vendor and the Notary Public. Moreover on the denial of the respondent his thumb-mark was not also sent to the Finger Print Expert after taking sample to show that actually the alleged agreement of sale Exh.59 bears the thumb-mark of the respondent.
13. The contention of Mr. Abdul Hai Memon, Advocate that the Jumo was not confronted with his previous statement recorded by the learned trial Court, therefore, the certified true copy of the judgment which is Exh.62 may not be considered. I am afraid neither Jumo was confronted with his previous statement nor it is the case of the respondent/defendant that he has made any statement whereas the only fact which was established by the defendant respondent that Jumo the present witness was a witness of the applicant/plaintiff in another suit and in support of that contention he has produced the judgment of learned Court which has been referred hereinabove.
14. Therefore in my humble opinion the contention of learned counsel that Jumo was not confronted with his statement in the trial Court and there has been miscarriage of justice by the trial Court as well as by the learned appellate Court is not tenable under the circumstances.
15. ' I would like to discuss the case-law cited by the learned counsel for the applicant.
(1) Dil Murad and others v. Akbar Shah (1986 SCM R 306). In this authority their Lordships of the Supreme Court has held that:-- "Execution consists in signing a document written out and read over and understood by the person signing it. Execution can be proved by calling the person who signed or wrote the document or a person in whose presence the document was signed or written one by calling a handwriting expert who has examined the disputed signature with the admitted signature. Additionally execution can be proved by calling a person acquainted with the handwriting of the person who has signed or written it."
16. ' With due respect to the observations of their Lordships, here in this case neither scribe has been examined nor applicant/plaintiff, admittedly has not signed the alleged agreement which means he is not party to the contract. Moreover, no other person conversant with the thumb-impression of the respondent has been examined even handwriting expert evidence is not available in this case.
17. Under the circumstances this authority is not relevant to the facts of the present case.
(2) Abdul Ghaffar v. Muhammad Sharif (1993 CLC 1779). In this authority my Lord Mamoon Kazi, J., has held "one of the modes for proving such handwriting or signature is by reference to a handwriting expert for comparison. Court is also empowered to compare disputed handwriting or signature with admitted signatures and then arrive at its own findings". On the face of it in my humble opinion this authority is different and distinguishable from the facts of the present case.
18. Neither there is any signature of the respondent nor other signatures were available with the Court to compare the same without referring to the expert, whereas only thumb-mark is available which is denied by the respondent and without getting expert opinion from the Finger Print Expert it is not possible for the Court to come to a correct conclusion.
(3) Saheb Khan through Legal Heirs v. Muhammad Pannah (PLD 1994 SC 162). In this matter their Lordships have observed that according to M.Monir the modes of proof of signature or handwriting are as follows:--
(i) By calling the person who signed or wrote the document.
(ii) By calling a person in whose presence the document was signed or written.
(iii) By calling a handwriting expert.
(iv) By calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written.
(v) By comparing in Court the disputed signature or writing with some admitted signature or writing.
(vi) By proof of an admission by the person who is alleged to have signed or written the document that he signed or wrote it."
19. ' Whereas in this case the Exh.59 allegedly written down by Adbul Hatiz Vistro, the scribe who has not been examined by the applicant/plaintiff. Witness Jumo has been examined who is related to applicant/plaintiff and his evidence has rightly been discarded by the both Courts below.
20. Handwriting Expert's Report is not available, the person acquainted with the thumb-mark of the respondent has not been examined. Moreover even applicant/plaintiff has not pressed the trial Court for comparing the thumb-marks during the trial. Therefore, in my humble opinion this authority is rather supporting the case of the respondent/defendant.
(4) Syed Qamar Ahmad and others v. Anjum Zafar and others (1994 SCM R 65). In this case at the trial it transpired that the original rent-deed had been lost. Syed Muhammad Hussain entered the witness-box and deposed that the property was rented out to Muhammad Zafar deceased. The rent-deed was scribed by Muhammad Tufail, petition writer. It having been lost could not be produced and that a copy thereof was in his possession. He also examined Muhammad Tufail, petition writer as P.W.2. The latter produced his register and proved the copy of the rent-deed which was tendered in evidence. Whereas in 17. this case very strangle enough as stated earlier neither scribe was examined nor stamp vender was examined in the trial Court. Under the circumstances this authority has no relevance to the facts of the present case.
(5) Atta. Muhammad and others v. Matloob Alam Khan (1996 SCM R 601). In this authority their Lordships have dilated upon the effect of the previous statement made by the witness, none confrontation of such witness with his previous statement in his cross-examination, it is very much pertinent to refer the relevant portion which reads as under:-- "Where a party has gone into the witness-box on the point in issue and in the witness-box has made a statement inconsistent with the admission or the statement made in the witness-box involves the denial of the previous admission, or runs counter to that admission, then the previous admission cannot be used as legal evidence in the case against that party unless the attention of the witness during the cross-examination was drawn to that statement and he was confronted with the specific portions of that statement were sought to be used as admissions. Without complying with the procedure laid down in section 145, the admission contained in the previous statement cannot be used as legal evidence against that party."
21. ' I have already pointed out that Jumo was not confronted with his previous statement but respondent has produced the copy of the judgment showing therein that witness Jumo has appeared as a witness on behalf of applicant/plaintiff in another suit against the respondent and the portion of the evidence has been discussed and reproduced hereinabove. The contention of the learned counsel for the applicant that he was not confronted with his previous statement is not acceptable. Neither his previous statement was brought on record nor it has been discussed by the Courts below nor any benefit of that previous statement has been allowed by the Courts below in favour of the respondent/defendant. Under the circumstances this authority is not helpful to the case of the applicant. Moreover, the reference of the Land Reforms Regulation (Sindh Amendment)
22. Ordinance IV of 1982 paragraph 22, sub-para.(4) in my humble opinion in view of the above discussion on facts and law in any case is not relevant for the decision of this revision application.
23. ' Now I would revert back to discuss the case-law relied upon by Mr. Jhamat Jethanand, Advocate:
(1) Haji Muhammad Zaman v. Zafar Ali Khan (PLD 1986 SC 88). Their Lordships of the Supreme Court has observed that revisional powers under section 115, Civil Prceudure Code are primarily intended for correcting errors made by subordiante Courts in the exercise of their jurisdiction. All ordinarily erroneous decisions of fact are not revisable, except in cases where the decision is based on no evidence or inadmissible evidence or is so perverse that grave injustice would result therefrom.
(2) Muhammad and 2 others v. Mst. Banuk Naz Khatoon (1989 CLC (Quetta) 1819). This decision is given by my Lord Munawar Ahmed Mirza,. J. (as his Lordship then was) and held that no error of law or procedure has been pointed out in the impugned judgment and decree of the appellate Court, which could justify interference by this Court in exercise of revisional jurisdiction. The section 115, C.P.C. Provides: "S.
115. Revision.--(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears--
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity."
24. ' I have gone through the material placed with the case and have very carefully gone through the case-law relied upon by the learned counsel for the parties. So for the evidence adduced by the parties in the matter same has been considered and discussed hereinabove.
25. The best evidence available with the plaintiff was scribe who was written the agreement viz. Abdul Hafiz Vistro who has not been examined. The stamp vendor Muhammad Hussain who has issued the stamp paper viz. Exh.59 has also not been examined by the applicant/plaintiff. On the denial of respondent it was very much necessary for the applicant/plaintiff to have requested the Court to get the report of the Finger Print Expert as to whether thumb-impression so affixed on the agreement belongs to the respondent/defendant or not.
26. ' The applicant/plaintiff himself is not a party to agreement, he has not signed the agreement. The parties were in litigation since long, previous suit of pre-emption was decided in favour of the respondent/defendant which was even upheld in the. Appeal. The suit for mesne profit filed by the respondent/defendant against the applicant/plaintiff was also decree and the same was upheld by the learned Appellate Court. The contention of the applicant/plaintiff that at the intervention of the Nek Murds respondent/defendant entered into a compromise and sold away the suit land in the sum of Rs,20,000 which includes mesne profit. It does not appeal to the common sense that after going through protracted litigation when the respondent/defendant was to get the fruits of his decrees, settled the matter with the applicant/plaintiff outside the Court. Whereas under Order 21, Rules 1 and 2, C.P.C. If there was any settlement the same could have been filed before the concerned Court and compromise could have been affected to the satisfaction of the decree of the Court but that procedure was not adopted. The evidence so furnished by the applicant/plaintiff and his witness which has been referred and reproduced hereinabove due to the suppression of the admitted facts and denial of some established facts at their hands, their evidence is not to be accepted and no implicit reliance can be placed on their evidence. Moreover, the respondent/defeneant submitted the certified true copies of the judgment of the appellate Court Exh.62 and the order of the Deputy Commissioner and Tribunal Exh.63 which clearly show, that applicant and his witness Jumo have deposed falsely in the Court and have knowingly suppressed the facts and had deliberately given wrong statement under the oath. Under the circumstances the learned Court below have rightly rejected their evidence. With due respect to the case-law cited by Mr. Abdul Hai Memon, the learned counsel for the applicant/plaintiff I am of the firm opinion that in view of the discussion so held earlier the same is not applicable, relevant to the facts of the present case.
27. ' The case-law relied upon my Mr. Thamat Jethanand is very relevant and helpful to the case of the respondent/defendant.
28. The provisions of section 115 referred hereinabove under the circumstances, clearly established that the Courts below have rightly exercised the jurisdiction vested in them by law and have acted in the exercise of their jurisdiction legally within no material irregularity. Under the circumstances the interference by this Court in set asiding the judgments and decrees passed by both the Courts below is uncalled for. That for whatever, stated above I am of the considered opinion that revision application is devoid of merits/substance which must fail and the same is hereby dismissed.
29. ' Mr. Jhamat Jethanand, learned counsel has requested that compensatory costs as required under section 35-A, C.P.C. May be allowed.
30. ' In view of the litigation between the parties I am not inclined to accept the request of the learned counsel for the awarding the compensatory costs which request is hereby disallowed.
31. ' Up shot of the above discussion is that Revision Application is dismissed with no order as to costs and judgments and decrees passed by the trial Court as well as by the First Appellate Court are maintained.
32. ' After hearing the parties on 5-5-1997, when at about 1-40 p.m. By short order the revision application was dismissed and these are the reasons for the same.