1. SAJJAD ALI SHAH, J. [Majority Judgment].---This appeal with leave is directed against the judgment dated 4-6-1981 of High Court of Sindh, whereby appeal is dismissed, maintaining judgment dated 28-10-1966 of learned Ist Additional District Judge, Hyderabad, decreeing the suit for declaration, partition and accounts as prayed with costs. Briefly stated the relevant facts giving rise to this appeal are as under:-- Illahi Bakhsh Chaudhry died in 1942 leaving behind agricultural lands in Taluka Matli, District Badin, now District Hyderabad, and four sons and one daughter namely, Bashir Ahmed, Muhammad Akram, Muhammad Aslam, Muhammad Iqbal and Mst. Mukhtiar Bibi. On 3-7-1963 Muhammad Aslam filed First Class Suit No,79 of 1963, which was re-numbered as 17 of 1964, in the Court of Senior Civil Judge, Hyderabad, for declaration and partition against two brothers and one sister namely. Bashir Ahmed as defendant No,1, Muhammad Akram as defendant No,2 and Mst. Mukhtiar Bibi as defendant No,3 and two others namely, Naseer Ahmad son of defendant No,1 Bashir Ahmed and Tariq Mehmood son of defendant No,2 Muhammad Akram. In the plaint, four Schedules are mentioned as "a", "b", "C" and "D". In Schedule "A" is shown joint undivided property consisting of agricultural land inherited from their late father by plaintiff Muhammad Aslam and defendant No,1 Bashir Ahmed, defendant No,2 Muhammad Akram and defendant No, 3 Mst. Mukhtiar Bibi, in shares of As. 0-3-7 for each male member and As. 0-1-9 for female as stated above. Remaining share of As. 0-3-7 was inherited by fourth brother Muhammad from whom the same was purchased by defendants Nos.1 and 2 from joint assets of plaintiff and defendants Nos.1 and 2 increasing the shares of plaintiff and defendants Nos.1 and 2 to As. 0-4-9 each leaving share of sister at As. 0-1-9.
2. Property shown in Schedule "A" is as under:-- Schedule A Deh Chan Sonrani Taluka Matli
(1) S.Nos. 3/3 12 46 47 131 1-3-4 3 3-4 1 134 148 18 114 1-2-3-4 1 2 2A-34 64 acres
(2) S.Nos. 42 43 61 63 1,4,4A 3,4,4A 1,2A 1 95 96 2,2A,4 3,4,4A 128 129 130 149 2-3 3-41 3 1-2 62 = 80 Acres."
3. 1-2-2A In Schedule "B" property shown is undivided joint agricultural land purchased by plaintiff and defendants Nos.1 and 2 from their joint income in their own names or in the names of defendant No,4 Naseer Ahmed son of Bashir Ahmed and defendant No,5 Tariq Mehmood son of Muhammad Akram, who are Benami Khatadars having no share in the said property. It is claimed by the plaintiff that defendants Nos.1 and 2 Bashir Ahmed and Muhammad Akram have no separate source of income except the joint property and likewise their sons defendant No,4 Naseer Ahmed and defendant No,5 Tariq Mehmood have no source of income. Property in Schedule "B" is as under:-- Schedule "B"
4. Deh Chan Sonrani, Taluka Matli S.Nos.3/3 48 49 25 24 1,2,3,4 2 1,2,3,4 1,2,3,4.
5. 114 115 15 29 1,2,4A 1,2,4 3 1,4,4A 27 26 27 26 1,2,3,4 1,2,3,4 1,2,3,4 1,2,3,4 95 96 95 96 3 3 1,2,2A 3 1,2,2A 1,2 58 2 59 60 109 2,3 1 to 4 1,2 1 1,3,4 110 115 45 2,3,4 2 1,2,3,4 46 60 78 4 2,2A 2,2A 3,4,4A 1,2,3,4 129 129 130 1A-B 2 4A-D 57 58 58 128 2,3A to D L A to D 4A to D 1,4 130 130 61 77 L A to D 2A to D 3 1,2 78 97 100 47 46 1,2,2A 1 to 4 1 to 4 1,2 1,4 360 acres."
6. Property in Schedule "C" is Pacca built Otak in village Kot Abdullah in Survey No,96/1, Deh Chan Sonrani, Taluka Matli, which is claimed by the plaintiff to be joint property. Property shown in Schedule "D" is 2 mares and 1 horse, 14 oxen, 20 buffaloes, 150 goats, 2 sugarcane crushers, 1 sugar machine, 1 diesel engine, ploughs and other agricultural implements, which are claimed by the plaintiff to be actually shared by him and defendants Nos.1 and 2.
7. It is claimed in the plaint that plaintiff and defendants Nos.1 and 2 carried on in joint and equal partnership their all agricultural enterprises and after the death of their father made further purchases jointly and gave share to their sister regularly. Plaintiff claimed as 0-4-9 share in property of Schedule "A" and as 0-5-4 share in all other properties.
8. It is further stated that on 25-11-1958, plaintiff executed a sale-deed in respect of his as 0-3-7 share in the lands. Of Schedule "A" and his share in the joint land purchased in his name included in Schedule "B" in favour of defendants Nos.1 and 2 but it was mutually agreed upon and understood by the parties that the above sale-deed would be only a security for a promised loan of Rs,20,000 to be advanced to the plaintiff in near future and would create or extinguish no right in the property. On 6-4-1960, defendants Nos. 1 and 2 without notice to the plaintiff got entries made in their favour in the record-of-rights in respect of property mentioned in the said deed. It was alleged that defendants Nos.1 and 2 without consent of the plaintiff demolished joint Otak and reconstructed it. Plaintiff made several demands orally and also served on defendantsnotice dated 17-11-1962 for partition of the properties and accounts but to no avail, hence he filed the suit praying that sale-deed dated 25-1-1958 be declared as null and void and that plaintiff is entitled to as 0-4- 9 share in the property in Schedule "A" and as 0-5-4 share in other properties in Schedules "B", "C" and -D". He has prayed for partition of the properties in Schedules -A" and -B" by metes and bounds with separate possession and distribution of property in Schedule "D". He has prayed that defendants Nos. 1 and 2 be called upon to render accounts of the land in suit for the last 3 years till the decision of the suit.
9. With the exception of lady, all other defendants filed a joint written statement disputing the claims of the plaintiff. Apart from legal objections which were raised, claim was denied that property in question was joint and undivided. It was averred that plaintiff by registered sale-deed dated 25-11- 1958 sold his As 0-3-7 share in ancestral land and As. 0-16-0 share in his self-acquired land to defendants Nos. 1 and 2. Survey No,129/1, in Schedule "A" was property of Muhammad Iqbal who sold it to defendants Nos.1 and 2. Survey No,61/1 was purchased by defendants Nos. 1 and 2. Claim was made that share of Muhammad Iqbal was purchased by defendants Nos. 1 and 2 from their own sources and it was emphatically denied that property was owned jointly by plaintiff and defendants Nos.1 and 2. About Otak it was stated that it was property of defendant No,l. All other allegations in the plaint including sale-deed being without consideration to show Benami transaction were denied. Keeping in view pleadings of the parties as many as 15 issues were framed. Plaintiff examined his brother Muhammad Iqbal and himself. Defendants examined Muhammad Akram. Documents were produced by both sides. After assessment of evidence, trial Court decreed the suit as stated above.
10. Defendants in the suit, being aggrieved, filed First Appeal No,62 of 1976, in the High Court of Sindh at Karachi, which was heard and dismissed by learned Single Judge, vide his judgment dated 4-6- 1981. Hereafter, parties will be referred as plaintiff and defendants in the suit. Defendants in the suit filed petition for leave to appeal which was allowed vide order dated 30-1-1982, granting leave and relevant portion of that order is reproduced as under:-- "There are certain features of this case, which make it necessary that the entire evidence be re- examined and findings on questions of law retested. Firstly, the conclusions with regard to the jointness of the family property, the implied trust, and the benefit to all co-shares in individual purchases by co-shares had not been consistently extended to the purchases made by Iqbal. How a distinction was drawn is not clear. Secondly, on what grounds the benefit of any such conclusion could be extended to a property purchased individually by Aslam and then resold to the petitioners. Thirdly, it appears that the alleged reply (Exh.77) to the notice, and the contents thereof have played a decisive role in determining the controverted questions of fact. The question is whether the material on record was sufficient to hold that it was a genuine document and capable of binding the petitioners . "
11. Now I proceed with re-examination of evidence in the light of points mentioned in the leave granting order. First point mentioned therein would cover Issues Nos.6, 7 and 12. Issue No,6 is whether lands shown in Schedules "A" and "B" are joint and undivided properties of the parties"
12. Issue No,7 is whether share of Muhammad Iqbal was purchased from joint assets of the parties?
13. Issue No,12 is whethtr plaintiff and defendants have carried on jointly since 1943 and all the purchases of land made by them thereafter are joint and in equal shares? Trial Court has dealt with these issues mentioned above together alongwith Issues Nos. 8 and 9 collectively. Issue No,8 is whether plaintiff has any share in the suit property? If so, to what extent? Issue No,9 is whether defendants 4 and 5 are Benami Khatedars?
14. In the trial Court burden of proof of issues mentioned in the paragraph above was placed on the plaintiff. In order to discharge this burden, plaintiff examined himself and his eldest brother Muhammad Iqbal. Muhammad Iqbal was examined before plaintiff as witness No,1 for the plaintiff.
15. Muhammad Iqbal testified before the trial Court and stated that he is brother of plaintiff and defendants Nos.1, 2 and 3. Defendants Nos. 4 and 5 are sons of his brothers Bashir Ahmed and Muhammad Akram respectively. His father Illahi Bakhsh died leaving behind 80 acres of agricultural land and 64 acres of restricted tenure land in Taluka Matli. About one year before death, his father gave this witness his share of the land separately. His brothers consented to the proposition that he would retain his share of land separately and would have no interest in the ancestral property, which remained joint for other brothers and sister. Muhammad Aslam was doing the work of selling cotton pods for the family members while defendants Bashir Ahmed and Muhammad Akram looked after the agricultural land. Muhammad Iqbal further deposed that after the death of his father he purchased about 70 acres of land. He sold 96 acres of his land to the plaintiff and defendant and 16 acres to his uncle. He had purchased 36 acres in his own name during the lifetime of his father in Deh Chan Sonrani. After the death of his father, he retained 16 acres of that land for himself and gave rest of it to other co-sharers excluding his sister. From 1947 up to the date when evidence of this witness was being recorded on 1942-1964, Muhammad Aslam got his maintenance from ancestral land. Muhammad Aslam started his practice as Advocate in 1955-56. Their father left some cattle and residential house at Matli. On the lands there was Otak also. In the year 1958, Muhammad Aslam, needed Rs,30,000 to start his practice. On being approached for help this witness advised Muhammad Aslam to get me money from Ms brothers who were joint with him in the property. His brothers told him that they would advance him the money, if he sold his share of property which could be re-purchased by him on return of money.
16. Sale-deed was executed between them. Aslam later informed this witness that money was not advanced. Land purchased by his brothers after the death of his father was from income of joint property. 96 acres were sold by him to his brothers jointly. He took permission from the Collector before the sale.
17. In cross-examination Muhammad Iqbal stated that after selling his ancestral lands, he purchased other lands in Taluka Hyderabad and shifted to Hyderabad for the education of his children.. His sister was married at the time of death of their father. She had relinquished her share in favour of her brothers. Joint property is about 300 acres. Muhammad Aslam had taken some land from Barrage Department in his own name on instalment basis. This witness further stated that he was appointed Receiver of disputed property and produced affidavit in rejoinder Exh.54 filed by him on 7-8-1963 in the suit proceedings supporting stand of the plaintiff. He admitted that in sale-deeds Exhs.51, 52 and 53 executed by him, name of Muhammad Aslam is not shown as purchaser alongwith other brothers.
18. Plaintiff Muhammad Aslam examined himself as witness No,2. He has reiterated the case as indicated in the plaint which need not be repeated here. According to him after the death of his father and separation of Muhammad Iqbal, remaining brothers and sister had joint property. From the joint income more lands were purchased from Barrage Department in the year 1943-44.
19. Instalments were paid from the joint family income. In 1950 lands were purchased from local Zamindars Pir Ali Ghulam Shah and Saleem Shah. In 1957 lands were purchased from Muhammad Iqbal. Purchases were made in the names of defendants Nos.1 and 2 who used to reside in Taluka Matli while plaintiff was residing at Hyderabad doing business of sale of Phuttis for the family. He used to be called to Matli at times for consultation. Brothers in joint business used to send for money from him and some times he used to send money from them. Account was maintained by defendants Nos.1 and 2 and cash used to remain partly with him and partly with them. Defendants Nos.4 and 5 are nephews and have no separate source of income and are not entitled to any share in the joint property. Both were students when the suit was field. Defendants Nos. 1 and 2 purchased property in the names of defendants Nos.4 and 5 without knowledge and consent of plaintiff in order to deceive hini. Plaintiff produced letters exchanged with his brothers Exh.73/1 to Exh.73/23.
20. These letters were written by defendants Nos.1 and 2 to him and are signed by them. In 1958 plaintiff wanted to start his office as a pleader at Hyderabad. His brothers declined to give him money from the joint pool and at their behest he executed sale-deed in their favour selling land standing in his name. His brothers (defendants Nos.1 and 2) promised to return deed to him after he repaid the loan. It was intended to be mortgage though it was ostensibly a sale. Subsequently they did not make payment and also did not return the document but continued to pay his share of income from the land. Plaintiff stated that the land which was subject-matter of mortgage was Bandeshi land and as such could not be transferred without the permission from the Deputy Commissioner as provided under Rural Credit Land Transfer Act, 1947. He then served defendants with notice dated 17-11-1962 Exh.75. He produced Registration Receipt Exh.76. Defendants sent a reply dated 12-12-1962 Exh.7`, . Attempt was made by Muhammad Iqbal to settle the dispute.
21. Defendants Nos.1 and 2 refused to render accounts. Plaintiff produced letters Exhs.80/1 to 11 written by defendants Nos.1 and 2 to him. He produced receipts of instalments Exh.82/1-7 showing that instalments were paid by him un behalf of defendant No,1 before sale-deed Exh.81 was executed.
22. He produced notice from Bashir Ahmed Exh.83, Rubkari Exh.84 and letter of defendant addressed to him Exh.85.
23. In cross-examination plaintiff stated that he used to go to Tando Allahyar, Digri and Matli for sale of cotton pods and he used to keep sale proceeds for himself. He used to pay instalments of lands in the names of defendants Nos.1 and 2. He stated that even after filing of suit his brothers are making payments to him from the land. Defendants Nos.1 and 2 were doing actual management of the land. The leases taken by his brothers were joint. He had purchased 100 acres or more in his name from Barrage. As it was joint land so he got some of it transferred in the name of his brothers. The rest of the land was sold according to the document executed in 1958 and defendants Nos.1 and 2 purchased lands after he made over his grant to them. He admitted that sale-deed Exh.81 was executed by him and bears his signature. He denied having received consideration money shown in the sale-deed. Defendants purchased some land from Barrage Department as joint property.
24. Plaintiff claimed that Schedule "D" is correct and he was joint with his brothers in leases only as there was no other business. Otak on the land had not fallen down but his brothers had demolished it and reconstructed it with the same material. They had spent about Rs,25,000 over demolition and reconstruction.
25. In the trial Court on behalf of the defendants was examined Muhammad Akram, defendant No,2.
26. He deposed that suit-land measured in all 500 acres and they (defendants) paid about Rs,8,000 yearly as land revenue. Defendants also took leases of other lands as well. Plaintiff had no concern with lands taken by them on lease for which they had been paying land revenue. He produced sale-deeds Exhs.94/1 to 3 and also sale-deeds Exhs. 95/1 to 6. His brother Muhammad Iqbal sold his share of land from the ancestral property and other land purchased by him to the defendants.
27. Plaintiff sold his share from ancestral property and other land purchased by him from Barrage Department to defendants by a registered sale-deed Exh.81 for consideration of Rs,25,000. Plaintiff never lived with defendants jointly but lived since 1947 in Hyderabad. This witness denied having signed Exh.77 which is letter dated 12-12-1962 written by him to plaintiff Muhammad Aslam in which claims made by plaintiff are admitted with regard to jointness of the property and the fact that sale-deed executed by Muhammad Aslam in favour of defendants Nos. 1 and 2 was intended to be mortgage and that document was to be returned to him. This witness proclaimed that he was illiterate and had studied up to one standard of English and did not sign in English. He gave three specimen signatures Exh.99 as desired by the Court but while doing so he used capital letters and not small letters. In cross-examination, defendant Muhammad Aslam admitted that in Exh.80/10 "Kot Abdullah" was in his handwriting in which small letters were also used., He denied suggestion in the cross-examination that deliberately he did not use small letters in his specimen signatures as he did not want his signature in Exh.77 to be identified. He further stated that after the death of his father he and other brothers got married and started living separately. Ancestral property was partitioned privately and there was nothing put in black and white on the paper and he was unable to say as to which survey numbers were allotted to whom separately. After death of his father he purchased land from Barrage. He was confronted with letters written by him and was cross- examined at great length.
28. Mr. A.A. Fazeel, counsel for appellants Nos.1 and 3/defendants Nos.1 and 4 (namely Bashir Ahmed and his son Naseer Ahmed) submitted that evidence produced by plaintiff in the suit is neither \sufficient nor of quality to warrant a finding that plaintiff has discharged his burden successfully in support of his claims. He stoutly criticized evidence of Muhammad Iqbal examined by the plaintiff on the ground that he was not an independent witness as held by the trial Court and the High Court. According to the learned counsel, Muhammad Iqbal made a wrong statement in the trial Court during his deposition that he sold away 96 acres of his land to the plaintiff and the defendants, when in the cross-examination, while referring to sale-deeds Exhs.51, 52 and 53 executed by him, he admitted that those were in the names of defendants Bashir and Akram and name of Muhammad Aslam was not shown as purchaser alongwith his brothers. To this reply from the other side was that Muhammad Iqbal did not make a wrong statement but on the contrary explained the facts as they were and deposed that property left by his father, apart from his share, remained joint for the remaining heirs. Plaintiff Aslam resided at Hyderabad since 1947-1948 and had been doing the work of selling cotton pods for the family members, while defendants Nos. 1 and 2 Bashir Ahmed and Muhammad Akram looked after the land. In cross-examination while referring to sale-deeds he did admit very frankly that in them name of Muhammad Aslam was not shown as purchaser alongwith his brothers. Even Muhammad Aslam, plaintiff also testified that after the death of his father and separation of Muhammad Iqbal from them, property remained joint and more lands were purchased from the joint income including the land from his brother Muhammad Iqbal. Plaintiff has further stated in very clear words that lands of Pir Ali Ghulam Shah, Saleem Shah and Muhammad Iqbal were purchased in the names of defendants Nos. 1 and 2 as they used to reside in Taluka Matli while plaintiff was at Hyderabad dealing with family business of sale of Phuttis. It shows that family members who were co-sharers in the joint property had trust in each other and for the sake of convenience did not mind if property was purchased in the names of the persons who dealt with agricultural lands and were available at the site.
29. Mr. Fazeel pointed out that in the notice dated 17-11-1962, Exh.75, sent by Muhammad Aslam to his brothers Bashir Ahmed and Muhammad Akram (page 39, Part II of paper book), no mention was made that Muhammad Iqbal had sold land to plaintiff and defendants Nos.1 and 2 jointly. This is so and perusal of relevant documents in this context shows that Muhammad Iqbal sold land to his brothers vide Exh.51, dated 5-7-1956. Exh.52 dated 22-2-1958 and Exh.53 dated 21-9-1956, when letter in question Exh.75 was sent by Muhammad Aslam to his brothers on 17-11-1962 and in it the main grievance of Muhammad Asalm was that he had heard that his brothers were attempting to have mutations in the record-of-rights in consequence of sale-deed Exh.81 executed by Muhammad Aslam which was intended to be a mortgage and not sale and that document was to be returned and not used as sale-deed. In this letter Exh.75 claims are made by the plaintiff that property was joint and defendants Nos. 1 and 2 were avoiding to give accounts, hence request was made for partition of the property and rendition of accounts.
30. Independent status of Muhammad Iqbal was questioned on the ground that he was partisan and in favour of plaintiff as he had stated in paragraphs Nos. 4 and 5 of affidavit in rejoinder Exh.54 (page 3, Part II of paper book) which he filed in the trial Court, stating that sale-deed dated 25-11- 1958 executed by plaintiff was intended by the parties to be only a security for repayment of the loan which was to be advanced by defendants Nos. 1 and 2 to the plaintiff and such admissions were made before him by defendants Nos.1 and 2 and further the said loan was never advanced to the plaintiff and real dispute between the parties was that of accounts. It also appears from paragraph 7 of that affidavit that Muhammad Iqbal was appointed as Manager of the disputed property by the Official Receiver appointed by the Court and at the time of taking over the management, he found affairs of the land in complete disorder and chaos and there was damage to the property.
31. Mr. Fazeel, therefore, questioned the impartiality of Muhammad Iqbal by stating that he was deeply involved in the disputes between the parties and was all out on the side of plaintiff. In support of contention, learned counsel referred to copy of complaint under section 406, P.P.C. In Case No,258 of 1968 in the Court of Additional District Magistrate, Hyderabad filed by Muhammad Iqbal against Muhammad Akram and Tariq Mehmood (page 96, Part I of paper book). Likewise he has referred to other cases as well, copies of which are on the record and included in the paper book to show that Muhammad Iqbal was prejudiced against defendants and had openly sided with plaintiff. In this context it appears that the surprising aspect of the matter is that when Muhammad Iqbal appeared in the box for recording his evidence in this case on 9-12-1964 not a single question was put to him in the cross-examination even by way of suggestion that he was partisan and took side of the plaintiff and was prejudiced against the defendants. It, therefore, clearly appears that when Muhammad Iqbal gave evidence in the trial Court, at that time he was independent and was not involved in the controversy or disputes between the brothers in connection with property as he had already acquired his share separately, which he had sold away. He was also respected by other brothers as he was eldest brother in the family. In affidavit of rejoinder of Muhammad Iqbal Exh.54 (page 3 of paper book-II) averments were made that parties approached him for settlement and defendants Nos.1 and 2 made admissions before him that sale-deed dated 15-11-1958 exhibited by plaintiff was intended by the patties to-be only a security for repayment of loan which was to be advanced by defendants Nos.1 and 2 to the plaintiff. He was appointed as Manager of the disputed property by the Official Receiver appointed by the Civil Court and at the time of taking over management he found affairs of the land in complete disorder and chaos. This affidavit was sworn by Muhammad Iqbal on 7-8-1963 and when he gave evidence on 19-12-1964 in the Civil Court, he was not cross-examined and no questions were asked from him in connection with contents of this affidavit.
32. Documents pointed out by Mr. Fazeel to show partisan attitude of Muhammad Iqbal pertained to the period after his evidence was recorded and he was cross-examined in the trial Court, when he appeared as witness for the plaintiff. At page 96 (paper book Part I) is complaint under section 406, P.P.C. Filed by Muhammad Iqbal against Muhammad Akram and Tariq Mehmood in Case No,258 of 1968 in the Court of Additional District Magistrate, Hyderabad. This complaint was filed on 15-6-1968 and order was passed by the Court for holding of preliminary enquiry in the first instance and complainant was directed to produce witnesses on the next date. Vide order dated 13-7-1968, bailable warrants were issued against accused named in the complaint in the sum of Rs,1,000. At page 100 (paper book Part I) is application under section 494, Cr.P.C. Filed by Muhammad Iqbal on 23-5-1972 for withdrawal of complaint. In paragraph 4 of this application, this fact is mentioned that unfortunately on account of misunderstandings litigation was started between the members of the family, hence to bring about amicable settlement, complaint was being withdrawn. At page 103, (paper book Part I) is copy of complaint under sections 450, 395, 397, 307 read with section 149, P.P.C. Filed by Muhammad Iqbal against Bashir Ahmed, Muhammad Akram, Naseer and Tariq in the Court of ACM-II, Hyderabad. This complaint was filed on 22-9-1969. At page 107 (paper book, Part I) is application filed by Muhammad Iqbal in the same case for withdrawal of complaint on the ground that family members had resolved disputes and had reached an amicable settlement. At page 109 of the same paper book is copy of summary order No,56 passed by Assistant Commissioner/SDM, Saddar, Hyderabad, directing return of .32 bore revolver Webley to Bashir Ahmed in Crime No,201 of 1969 under sections 307/380, P.P.C. Documents mentioned above clearly show that Muhammad Iqbal was independent and non-partisan up to the time when his evidence was recorded in the suit proceedings and that is why there, is nothing adverse in his cross- examination disputing his impartiality. After recording of his evidence, his relations with defendants in the suit became strained, which resulted into filing of criminal cases and withdrawal of same as is apparent from the documents mentioned above. It will not be out of place to mention that judgment in the suit was announced on 28-10-1966 and the suit was &creed in favour of plaintiff and against the defendants after which relations between Muhammad Iqbal and defendants became strained and criminal complaints were filed as stated above.
33. After suit was decreed, defendants in the suit being aggrieved, filed first appeal in the High Court which was admitted on 5-12-1966. Record of the first appeal in the High Court shows that in the year 1974, CMA No,1312 of 1974 was filed under Order 41, rule 27, read with section 151, C.P.C. Praying that appellants/defendants in the suit be allowed to further cross-examine P.W. Muhammad Iqbal and further appellants/defendants namely, Bashir Ahmed, Naseer Ahmed and Tariq Mehmood be allowed to be examined. This application was rejected vide order dated 8-2-1981 on the grounds that Muhammad Iqbal was cross-examined at length and his further examination to show that he was not an independent witness could hardly be a ground for reopening the case at that late stage. Second prayer in the application to examine defendants Bashir, Naseer and Tariq was rejected on the ground that such application filed in the trial Court was rightly rejected as their side was closed on 20-4-1966 as on that date defendants in the suit named above were not present in the Court and for that reason they could not be examined. Second prayer was also rejected by the High Court on the ground that the litigation was pending in the Court for more than 14 years, as such it was not in the interest of justice to allow the application and in the result the same was dismissed. Perusal of the order on the said application in the record of the High Court also shows that application for additional evidence was filed very belatedly after arguments of the counsel of appellants were over and those of counsel for respondents were about to conclude. In these circumstances for the facts and reasons stated above, I am of the view that evidence of Muhammad Iqbal is rightly believed by trial Court and the First Appellate Court. After the conclusion of the suit which was decreed in favour of plaintiff, the relations between Muhammad Iqbal and defendants became strained which resulted into filing of criminal cases, which were subsequently withdrawn and that subsequent development in which the relations became strained does not falsify evidence of Muhammad Iqbal which was given by him when relations between him and the parties were normal and non-controversial.
34. It was next submitted by Mr. Fazeel that no evidence has been produced to show that there were joint funds, which were utilized for purchasing of lands jointly. On this subject, relevant issues framed in the trial Court are Issues Nos. 6 and 12. Issue No,6 is whether lands shown in Schedules "A" and "B" are joint and undivided properties of the parties. Issue No,12 is whether plaintiff and defendants have carried on jointly since 1943 and all the purchases of the land made by them thereafter are joint and in equal shares. Burden of proof of both these issues was placed by the trial Court on the plaintiff. Plaintiff examined himself and his eldest brother Muhammad Iqbal, who have deposed on oath in support of the assertion. Their evidence is further supported by correspondence in the shape of letters exchanged between the parties. Before I come to letters, it would be pertinent to point out that father Ellahi Bukhsh died in the year 1942 leaving behind agricultural land specified in Schedule "A" appended to the plaint, which was jointly inherited by plaintiff and defendants Nos.1, 2 and 3 minus share of Muhammad Iqbal, who separated and took his share during the lifetime of his father. Suit was filed in 1963 and in the plaint claim is made by the plaintiff that property shown in Schedule "A" was joint undivided property inherited by plaintiff and defendants Nos.1, 2 and 3. Property shown in Schedule "B" was undivided joint agricultural land purchased by plaintiff and defendants Nos. 1 and 2 from their joint income. In written statement claim of plaintiff was denied and averment was made that he has sold his share of inherited land and purchased land to defendants Nos.1 and 2 vide sale-deed dated 25-11-1958. It was denied that lands shown in Schedule "B" were purchased from joint income and assertion was made that defendants Nos.1 and 2 have other sources of income apart from the suit-land. No specific assertion was made in the written statement that after death of father, property was partitioned.
35. Coming back to the correspondence there is letter dated 19-9-1944 written by Bashir Ahmed addressed to Muhammad Aslam in which request was made to Muhammad Aslam to give Rs,5 to Umer to purchase a shirt. I do not propose to use this letter against Bashir Ahmed, for the reason that it was not put to him in the cross-examination and he had not admitted having written it or signed it. Letters which are specifically admitted by defendant Muhammad Akram to be in his handwriting and signed by him are Exts. Nos. 73/3, 73/11, 73/12, 73/13, 73/15, 73/17, 73/18, 73/21. 73/22, 74/1, 74/3, 80/6, 80/8 and 80/10. Some of these letters are in Sindhi and others are in Urdu. Perusal of contents of these letters, which are admitted shows that they were written in connection with joint business which was going on between the parties. It also appears from these letters that agricultural lands were being looked after by Muhammad Akram while Muhammad Aslam was doing the business of selling of produce. This practice continued till letter was written by Muhammad Aslam to Bashir Ahmed and Muhammad Akram on 17-11-1962 Exh.75, wherein grievance was made by Muhammad Aslam that Khatas were being mutated against him on the basis of sale-deed which was executed by him as security against loan. Request was made for partition of the property and rendition of accounts. Exh.78 is copy of objections filed by Muhammad Aslam before Mukhtiarkar, Matli on 4-3-1963 in which he objected to the mutation on the basis of sale-deed executed by him without consideration. Claim of the plaintiff in the suit reiterated on oath in his evidence is supported by Muhammad Iqbal and also letters mentioned above, which are admitted by Muhammad Akram. This evidence proves the claim that after death of Ellahi Bakhsh, landed property inherited by plaintiff and defendants Nos.1 and 2 in the suit was joint and was jointly managed by all the three of them and income was also joint.
36. As against the claim of jointness of the property and joint income, there is bare denial in the written statement on the ground that plaintiff had sold his share to defendants Nos.1 and 2 by sale-deed which is disputed and allegation was denied that lands were purchased by defendants Nos.1 and 2 from the joint income. Claim was made that defendants Nos.1 and 2 had other sources of income besides income from the suit-lands but no further clarification was made. Defendants examined Muhammad Akram only who deposed that plaintiff never lived with them jointly and was never a co-sharer with them in any purchase, lease or business. He stated in his evidence that after the death of his father he and other brothers got married and lived separately. Land was partitioned but he did not remember survey numbers allotted to each of them separately. Partition was private and nothing was put in writing. He got his share in Deh Gopalo and a small portion in Deh Chan Sonrani. Plaintiff got all the lands in Village Chan Sonrani. Brothers managed their lands separately after partition. Muhammad Akram when confronted with the letters, attempted to explain that as brothers they knew difficulties of each other and he had written letters in view of such circumstances. Sometimes he used to sell Phuttis to his brother-plaintiff as he lived at Hyderabad.
37. Muhammad Akram denied suggestion that he used to manage the land and plaintiff used to take care of selling at Hyderabad. At one place he admitted that he used to look after lands of the plaintiff and managed his affairs in his absence and used to inform him. He used to inform plaintiff about general condition of their crops also due to affection as plaintiff was their brother.
38. Explanation put forward by Muhammad Akram does not click and is not convincing.
39. Correspondence does show that business was joint between plaintiff and defendants Nos.1 and 2, that is why letters full of anxiety and concern were being written to plaintiff at Hyderabad. If assertion is made by defendants that after the death of Ellahi Bakhsh, property was partitioned and every body got his share then such positive evidence should have been produced by the defendants in support of the assertion.
40. No mutation or change of Khata is produced showing property in 'dispute in the names of co- sharers separately after partition. No evidence is produced to show separate possession of the co- sharers. Assertion was made in 'paragrph 21 of the plaint that plaintiff made several demands orally as well as by notice dated 17-11-1962 for partition and accounts but defendants Nos. 1 and 2 went on avoiding on one or the other pretence. In written statement in paragraph 21, reply is that rest of the paras. Of the plaint are denied which would also include para. 21 of the plaint. No specific and separate denial was made of the claim of plaintiff for partition and accounts. Defendants have not produced any evidence in support of their assertion that other lands were purchased by them from their private sources. No effort was made to show that defendants did have other private source of income apart from joint agricultural land. In these circumstances I feel inclined to believe evidence produced by plaintiff on the points stated above.
41. Mr. Fazeel has submitted that in the judgment of the trial Court (page 126, paper book, Part I), it is stated that Muhammad Aslam/plaintiff produced land revenue bills and receipts for land assessm ent paid by him on behalf of his brothers/defendants. When on the other hand, record shows that revenue bills and receipts Exhs.92/1 to 92/47, Exhs.93/1 to 93/21 were produced by defendant Muhammad Akram. Perusal of deposition of Muhammad Akram (at page 85 of paper book, Part I) shows that what is stated by Mr. Fazeel is correct. Land revenue receipts and bills mentioned ,above, have been produced by Muhammad Akram. In any case, these documents which are revenue receipts and bills only show as to who had made the payment of revenue dues and on whose behalf. These documents are not conclusive evidence of title and do not show that the property was partitioned and separately mutated in the names of co-sharers or property purchased after death of Ellahi Bakhsh was not from joint income. If this mistake had not been made and these documents had been shown by the trial Court as produced by Muhammad Akram, even then conclusion would have been same as expressed by the trial Court in its judgment.
42. Last contention of Mr. Fazeel is that sale-deed, Exh.81 dated 25-11-1958 (page 79, paper book, Part I) is a valid document, whereby Muhammad Aslam sold his inherited and purchased land to Muhammad Bashir and Muhammad Akram for a sum of Rs,25,000. Execution of this document is not in dispute for the reason that Muhammad Aslam has admitted that he has signed the sale- deed Exh.81, but it was not intended to be sale-deed but a mortgage but subsequently he was not paid consideration of Rs,25,000 mentioned in the document. This document was to be returned to him after he was able to pay back Rs,25,000. Muhammad Aslam also deposed in the trial Court that his land which was subject-matter of mortgage was Bandishi land and it could not be transferred without permission from the Deputy Commissioner as was required under the provisions of the Sindh Rural Credit and Land Transfer Act, 1947 (to be referred as Land Transfer Act). To this context, Mr. Fazeel submitted that sale-deed was executed on 25-11-1958 and mutation took place on 6-4-1960. On the application filed by defendant Muhammad Akram, order of Collector was obtained on 28-6-1963 and suit was filed on 3-7-1963. Betore amendment the position was that under section 3 of the said Act there was ban on alienation of holding which did not exceed minimum area of 30 acres. Under section 5, permanent alienation of land which was prohibited was not allowed to take place unless and until sanction was given by the Collector. After the amendment, restriction with regard to the minimum area is removed and ban is restricted to alienation in favour of creditors in satisfaction of debts and "Benami" transactions. In the instant case, sale-deed Exh.81 being of 1958, the other two important dates are that the amendments mentioned above were made on 17-4-1963 and suit was filed on 3-7-1963. Question arises whether transaction is governed by the said Act before the amendments or after the amendments. Case of the plaintiff is that transaction is covered by the said Act before the amendment and since there was ban and sanction of the Collector was not obtained. Sale-deed was void. On the other hand, it is contended by Mr. Fazeel on behalf of the defendants that since suit was filed on 3-7-1963, which was after the amendments were made in the said Act on 17-4-1963, amended law will apply and the sale-deed is valid. It was further submitted by him that the Amending Act has replaced words "landlord" and "land-holder" with the word "debtor", hence the effect of change is to give protection to debtor.
43. In support, reliance is placed by him on cases. (1) State of Punjab v. Mohar Singh Pratap Singh AIR 1955 SC 34; (2) Sadasheo Jagannath Barapatre v. Hemaji Hiraman Bakde AIR 1958 Bombay 507;
(3) Khushiram Khialdas v. Pakistan and others PLD 1960 Karachi 875;
(4) Mst. Zebun Nisa Kureshy v. Chief Settlement and Rehabilitation Commissioner and another PLD 1963 Peshawar 61; (5) Khair Muhammad v. Wahid Bux PLD 1970 Karachi 60 and (6) Haji Noor Muhammad v. Muhammad Ishaque PLD 1978 Karachi 686.
44. In the cases mentioned above, first two cases are from Indian jurisdiction and pertain to effect of repeal as contemplated under section 6 of General Clauses Act, 1897. In the first case of State of Punjab v. Mohar Singh Pratap Singh, it is held by the Supreme Court of India that whenever there is repeal, consequences laid down in section 6 of the General Clauses Act would follow unless, as section says, a different intention appears. In the case of simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject, the Court would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. In the second case of Sadasheo Jagannath Barapatre, it is held by High Court of Bombay that the normal effect of repealing a statute is to obliterate it from the statute book as completely as if it had never been passed. It must be considered as a law that never existed. But to this rule an exception is engrafted by the provisions of section 6 of the General Clauses Act. It is not necessary to go into the facts of these two cases from Indian jurisdiction because there is no cavil with the principle laid down therein, which is reiterated in the third case mentioned above, which is Full Bench decision in the case of Khushiram Khialdas v. Pakistan and others PLD 1960 Karachi 875. It is held in the case of Khushiram that section 6 of the General Clauses Act is applicable where a repealed enactment is re-enacted with modification as it is where there is a. Simple repeal. In the fourth case of Mst.
45. Zebun Nisa Kureshi v. Chief Settlement and Rehabilitation Commissioner PLD 1963 Peshawar 61, it is held that High Court in its appellate jurisdiction is to decide matter before it in accordance with law in force at the time of the matter and in extraordinary jurisdiction while dealing with writ petition, decision should be based on law in force at the time when the impugned order was passed. Facts of that case are different. Zebun Nisa Kureshy filed writ petition which was dismissed holding that she could not be deemed to be in possession of the property in dispute within the meaning of Displaced Persons (Compensation and Rehabilitation) Act of 1958, on the basis of allotment order in her favour which was passed by a functionary who had no authority. She was found not in possession because no ejectment proceedings had been ordered by Court or Rehabilitation Authority for her benefit. She filed review petition on the ground, inter alia, that before decision in writ petition was announced, notification was issued on 12th April, 1962, which provided that no such allottee of a house or a shop situated within limits of Cantonment shall be deemed to be in possession even if ejectment proceedings have not been so ordered for his/her benefit. It was held that the High Court was not to apply notification which was made applicable during the pendency of writ petition but it had only to see if orders passed by the relevant department were strictly in accordance with rules and law in force at the time when they were passed. In that context, further comparison was drawn between appellate and writ jurisdictions of the High Court and concluding observation was made which is stated above. In the fifth case of Khair Muhammad Khan and others v. Wahid Bux, which is a decision of Division Bench reported in PLD 1970 Karachi 60, effect of amendment in section 3 of Sindh Rural Credit and Land Transfer Act of 1947 by West Pakistan Amendment Act (IV of 1963), is considered and is held that after amendment there is no general ban but only restricted prohibition is imposed against permanent alienation in favour of creditors who advanced money and had not fully received it and further that sanction of the Collector is not necessary at the time of transaction. In this case such finding was given by the High Court in second appeal and the facts of the case were that Ghulam Hussain executed sale-deed in favour of Wahid Bux for consideration of Rs,1,500 in respect of sale of land and there was condition that seller would repay the price within a year and get the plot of land back. Transaction was made by registered document on 16-3-1954. It was alleged that transferor repaid the price within stipulated time but this was denied by the other side. In 1957 transferor died and transferee Wahid Bux applied to Revenue Officer for mutation on the ground of failure to repay mortgage-money within time converting transaction into a complete sale. This plea was rejected by the Revenue Officer and also in appeal and revision before Revenue Authorities on the ground that transaction was conditional sale and since money was repaid within stipulated time, land reverted to Ghulam Hussain. In the suit, appeal and second appeal, section 3 and other provisions of Sindh Rural Credit and Land Transfer Act of 1947 were considered. Of the last forum mentioned above, from the concluding part of the judgment relevant portion is reproduced as under:-- "Let us recall that the stand of the present of the appellants was that the transaction was a mortgage which was extinguished owing to the repayment of the mortgage money. There was a dispute between the parties on this point and is the subject of this appeal. In these circumstances, the dispute cannot be said to have been finally settled by the decision of the first appeal. It is therefore, not feasible to say that the right of ownership could be treated by the respondent as vested in him at the time of the institution of the suit. Sanction could not be granted to him on the presumption that the transaction was a sale. In fact, the Revenue Authorities have held to the contrary. Moreover, subsection (2) of section 3 of the said Act does not appear to us to lay down 'substantivelaw. It relates to the time within which a permanent alienation can be sanctioned; therefore, we do not think that it is right to say that the present respondent could apply to the Revenue Authorities after the amendment though the amendment was made during the pendency of the appeal."
46. In the list of six cases mentioned in above paragraph, the last case is of Haji Noor Muhammad v.
47. Muhammad Ishaque and another PLD 1978 Karachi 686, in which sections 3 and 4 of the Sindh Rural Credit and Land Transfer Act of 1947 came up for consideration in second appeal before the High Court of Sindh. In that case 6 acres and 28 Ghuntas of agricultural land was sold to respondents Nos. 1 and 2 on 2-4-1959 through a registered sale-deed containing stipulation that if appellant repaid to respondents consideration of Rs,7,500 within 7 years, the land would stand restored to the appellant. In the suit, stand was taken that transaction was mortgage and not sale.
48. Suit was dismissed but appeal was allowed against which second appeal was filed. In the second appeal, new plea was raised that sale was hit by provisions of Sindh Rural Credit and Land Transfer Act, 1947. Consequently second appeal was allowed and suit was remanded and two additional issues were framed. In the second round when the case reached the High Court, question which came up for consideration was, whether sanction given by Deputy Commissioner, Larkana was valid or not. Sanction was assailed on two grounds, firstly, that it was given without giving opportunity of hearing to the vendor and secondly, that after amendments in the said Act, no provision was left for grant of such sanction except in the case of alienation made to creditors. The learned Judge in the High Court concluded that after amendment made in the said Act by Sindh Act IV of 1963, there is no provision for grant of sanction in cases of alienation to persons who are not creditors of the alienors, as such provisions of General Clauses Act with regard to the preservation and saving of rights under the Sindh Act would not survive amendment of the said Act. Consequently it was held that right to grant sanction by the Collector in cases of alienation of land owners in favour of persons who are not their creditors had lapsed and could no longer grant sanction in such cases. The sanction given by the Collector in 1972 was invalid and had no legal force.
49. Cases cited by Mr. Fazeel, counsel for appellants Nos.1 and 3/defendants in the suit, have been discussed above in the light of their facts. Character of transaction mentioned in Exh.81 which is sale-deed dated 25-11-1958 is very seriously disputed by vendor/plaintiff in the suit. According to him it was not sale but only security. It is averred by him that on 25-11-1958, when the transaction took place or sale-deed was executed sanction of Collector was not obtained; as such sale-deed was void and unenforceable as contemplated under section 3 of the Sindh Rural Credit and Land Transfer Act, 1947. Under the provisions of the said Act, sale could not take place, as holding was less than 300 acres. Although post facto sanction could be obtained from the Collector but the same was not obtained for five years till April, 1963. The said Act was amended on 17-4-1963 and in consequence restriction on sale of minimum area was removed and ban was restricted in favour of creditors. After that order was obtained from Collector on 28-6-1963 that after amendment no sanction was necessary. Now question arises whether the sale is hit by section 3 of the said Act for the reason that when transaction took place in the year 1958, the law contained the restriction and also sanction as required was not obtained or just because suit was filed on 3-7-1963, which was after the amendment in the said Act as such the plaintiff will not be entitled to claim benefit of defect in the sale. In this context, Mr. Abdul Hafeez Memon, counsel for plaintiff in the suit/respondent has submitted that transaction when made in the year 1958, was void because area sought to be sold was less than 300 acres and there was no sanction from the Collector as required under the provisions of Sindh Rural Credit and Land Transfer Act, 1947, therefore, Court could not enforce a contract, which was void, ab initio and against the imperative provisions of law as contemplated under section 23 of the Contract Act and further subsequent repeal of statute would not save such void transaction. In support, he has relied upon the case of Mst. Hawa v.
50. Muhammad Yousaf and others reported in PLD 1969 Karachi 324. It was held by Division Bench of the High Court that transaction of sale will be governed by the law as it existed at the time when transaction took place. Any subsequent change in law will not retrospectively affect the rights that may have been acquired and the liabilities that may have been incurred. Subsequent omission of the provisions regarding requirement of sanction of Collector for sale of agricultural land measuring less than 300 acres, will not in any way affect the nature of the transaction of sale in this case. Of course, one additional ground in the reported case was that transaction was with Pardanashin lady and that aspect of the matter is not relevant for the present case.
51. It would be pertinent to point out that in the case-law cited above, in the case of Khair Muhammad Khan v. Wahid Bux PLD .1970 Karachi 60, it is held that vested rights of the parties are to be governed by law which prevails at the time of institution of suit. While on the other hand, in the case of Mst.
52. Hawa v. Muhammad Yousaf PLD 1969 Karachi 324, it is held that transaction for want of sanction of Collector, as required under the provisions of Sindh Rural Credit and Transfer of Land Act, 1947, is void and would be governed by the law as it existed at the time when transaction was made.
53. Subsequent change in law would not retrospectively affect the rights and liabilities of the parties. In the judgment of case of Khair Muhammad, case of Mst. Hawa is noticed and manifest difference in the two is also highlighted by saying that in the case of Khair Muhammad, there was mortgage which became extinguished on repayment of mortgage-money, although outwardly document in question appeared to be a sale-deed with condition that seller would repay the price within one year and get the land back. Rule laid down in the case of Mst. Hawa was not challenged or disputed in the case of Khair Muhammad, but it was found that the rule was not applicable in the case of Khair Muhammad for the reason that in that case transaction was mortgage. Second reason is that in the case of Khair Muhammad, transaction was made by a registered document on 16-3-1954 and after it was consistently held by the Revenue Authorities that transaction was a mortgage, civil suit was filed in the year 1961 and during the pendency of appeal Sindh Rural Credit and Land Transfer Act was amended in the year 1963 and it was held that respondent/vendee was not entitled to take the benefit of amendment and parties were governed by the law which was applicable at the time when the suit was filed. Suit was filed in the year 1961 when the said Act was not amended. This position is in perfect consonance with the rule laid down in the case of Mst.
54. Hawa in which it is held that transaction will be governed by the law which was applicable at the time when transaction was made. If benefit flows from that law to a party relating to that transaction, claim to that benefit cannot be denied to that party or wiped out by a subsequent amendment in the law.
55. In would be pertinent to mention here that perusal of contents of the Sindh Rural Credit and Land Transfer Act, 1947 before amendment shows that it was promulgated to regulate rural credit taken by landholders and also to control the transfer of agricultural land in order to protect the interests of land-holders. Restrictions were imposed on alienation of agricultural land in order to ensure that no land holder shall be deprived of a minimum holding of 300 acres of his land through indebtedness. Section 3 imposed restrictions on permanent alienation, where holding was less than minimum area of 300 acres. Section 5 gave powers to Collector to grant such sanction even after the act of alienation. In year 1963 by West Pakistan Act IV of 1963, the said law was amended and section 3 was substituted after removing the restrictions on alienation in respect of minimum holding and sections 4, 5, 6 and 7 were omitted. Some other changes were also made by replacing land-holder with debtor. After amendment, purpose and purport of said law remained the same except with variation of language as stated above and some omissions in the provisions as stated above. If transaction took place before amendment in law, then vendor, who is land-holder/debtor, could claim the benefit of embargo as provided in section 3 of the said Act, which saved his minimum holding of 300 acres or less without sanction of the Collector. This benefit accruing to him can be equated with vested right, which remains operative even after repeal/amendment in the said Act. In support, reference can be made to the case of Hassan and others v. Fancy Foundation PLD 1975 SC 1; Abdul Hafiz v. Secretary, Communication and Works Department PLD 1980 SC 211; Haji Ibrahim v. S. Rehmatullah 1985 SCMR 241 and AlSamrez Enterprise v. The Federation of Pakistan 1986 SCMR 1917.
56. Mr. Fakhruddin G. Ebrahim appeared before us on behalf of appellant No,2 Muhammad Akram and his son appellant No,4 Tariq Mehmood. In fact the main contest is between Muhammad Aslam and Muhammad Akram, who are plaintiff and defendant in the suit respectively. Mr. Fakhruddin also took up Issues Nos. 6 to 9, 11 and 12 and omitted Issue No,10 for the reason that it was not pressed in the trial Court. Both Messrs Fazeel and Fakhruddin appeared for appellants but for different sets. Mr. Fazeel appeared for appellant No,1 Bashir Ahmed and his son appellant No,3 Naseer Ahmed while Mr. Fakhruddin appeared for appellant No,2 Muhammad Akram and his son appellant No,4 Tariq Mehmood. Though there was no conflict of interest in the two sets of appellants mentioned above, but they chose to be represented separately and learned Advocates appearing for them saw to it that there was no overlapping of arguments advanced on behalf of their clients, hence material points were separately divided between them and argued.
57. At the very outset Mr. Fakhruddin submitted that on the record of appeal in the High Court, there is application under section 476, Cr.P.C. Filed by Muhammad Aslam (plaintiff) against (1) Tariq Mehmood, (2) Bashir Ahmed and (3) Muhammad Akram (defendants) and Mehmoodul Hassan with allegation that in Exh.77 signature of Muhammad Akram was torn and re-written by Tariq Mehmood. This was done in the office of the High Court after conspiracy between Mehmoodul Hassan and defendants minus lady. It is further stated in the application that this was done on purpose to tamper with and mutilate Exh.77 which was signed by Muhammad Akram admitting therein the case of plaintiff Aslam. Prayer was made in the said application that after necessary enquiries/investigation in the matter, persons named therein be proceeded against for offences under sections 379, 193, 195, and 466 read with section 109, P.P.C. Application is supported by affidavit of Muhammad Aslam. Against the application joint objections have been filed by three defendants in the suit named therein and Mehmoodul Hassain, in which allegations have been denied and stand is taken that forgery alleged was made by Muhammad Aslam himself as there was background of animosity between the parties resulting into filing of several civil and criminal cases by plaintiff Aslam and his brother Iqbal against defendants in the suit excepting lady defendant. In the order-sheet of record of appeal in the High Court, there is order passed on 28-9- 1970, stating that application under section 476, Cr.P.C. Would be taken up for consideration after the disposal of the main appeal. In the impugned judgment of the High Court, there is no mention about his application apparently for the reason that it was to be taken'up after disposal of the appeal. No further steps were taken by the parties. Mr. Muhammad Ali Shaikh, Bar-at-Law had filed objections in the High Court on behalf of opponents named in the said application on 3-8-1970.
58. When this application came up for hearing on 28-9-1970 and order was passed that it would be taken up for consideration after disposal of appeal, at that time Mr. Muhammad Ali Sheikh, Advocate was present on behalf of the opponents. Even Muhammad Aslam, who had filed this application under section 476, Cr.P.C. Did not make any efforts for early hearing of application or further action thereupon. Perhaps he was content with the order of the Court that this application was to be taken up after disposal of the appeal. It is, therefore, clear that no hearing of this application took place and no final order was passed by the Court, as such no further comment in this regard is warranted.
59. Mr. Fakhruddin submitted that the dispute is whether properties shown in Schedule "B" to the pliant were acquired or purchased from the joint income of inherited property. If it is so claimed by plaintiff Muhammad Aslam, then from which money he obtained 63 acres of land in Deh Gopalo in 1943. In the plaint in paragraph 5, it is stated by Aslam as plaintiff in very unequivocal terms that property shown in Schedule "B" consists of undivided joint agricultural land purchased by plaintiff and defendants Nos. 1 and 2 from their joint income in three equal shares and purchased either in their respective names or in the names of defendants Nos.4 and 5 (Naseer Ahmed and Tariq Mehmood), who are Benami Khatedars, having no share in the said property. In the deposition also Aslam stated in his examination-in-chief that from the joint income more lands were purchased from Barrage Department in his name in the year 1943-44 onwards and instalments were being paid from the joint family income. In the cross-examination, he stated that he had purchased about 100 acres more land in his name from the Barrage and as it was joint land so he got some of it transferred in the names of his brothers. Documents on the record Exh.86/1 to Exh.86/6 show that some lands were sold to Bashir Ahmed and Muhammad Akram. Question arises that if Aslam purchased land from the joint income in his name and admits that even if purchased in his name they are joint properties, then why were those lands sold to Bashir and Akram. Second question is that if after death of fattier, all lands were purchased by brothers from joint income then why Aslam was excluded from purchase of lands by Bashir and Aslam from Iqbal vide Exhs.51, 52 and
53. These questions should have been put to Aslam in his cross-examination so that he could have explained. In the absence of such specific questions, one explanation, which appears from his evidence, is that he used to reside at Hyderabad doing business of selling of cotton pods for the family while his brothers Bashir and Akram resided in Matli looking after agricultural lands. The relevant paragraph from cross-examination of Aslam is reproduced hereunder:-- "I had purchased about 100 acres or more in my name from the Barrage. As it was joint land, so I got some of it transferred in the names of my brothers. Rest of the land was sold according to the documents executed in 1958. Defendants Nos. 1 and 2 purchased lands after I made over my grants to them. I transferred the grants Exhs.86/1 to 6."
60. Issue No,12 is whether plaintiff and defendants have carried on jointly since 1943 and all the purchases of land made by them thereafter are joint and in equal shares. Burden of proof of this issue was placed on plaintiff. Plaintiff said so categorically in paragraph 5 of the plaint. In paragraph 9 of written statement, paragraph 5 of the plaint is denied by stating that lands mentioned in Schedule "B" are not undivided joint agricultural lands. These lands were not purchased by the plaintiff. They were not purchased from joint income. Some of them were purchased by defendants Nos.1 and 2 and some by defendants Nos.4 and 5 from their own personal funds. Defendants Nos.4 and 5 are not Benami Khatedars. They are real owners of agricultural lands purchased by them plaintiff has discharged his burden by examining himself and his brother Muhammad Iqbal and he also produced number of documents to show that after the death of their father in 1943 property remained joint between brothers and sister and it was not partitioned. Muhammad Iqbal sold his share to other brothers. The other documents were produced including letters, perusal whereof shows that they were co-sharers in jointly owned agricultural land. As against this evidence, defendants examined Muhammad Akram only, who denied the claim of the plaintiff. He stated in his evidence that their father died in 1943 and thereafter the land was partitioned but he did not remember which survey numbers allotted to each of them separately. Partition was private and nothing was put in black and white on the paper. This bare assertion is not corroborated by any documents. No other witness was examined.
61. There is only this word of Akram against evidence produced by the plaintiff which is supported by documents. If there is assertion that property was partitioned then it must be proved which was not done. No effort was made to show as to how and from what funds properties were purchased by brothers after death of father if not from the income of joint property. There is documentary evidence to show that Bashir Ahmed purchased agricultural land from Pir Ali Ghulam Shah vide Exhs.94/2, 94/3 and likewise lands were purchased and leases were taken from Barrage Department. Mr. Fakhruddin also pointed out some other leases which were not included in Schedule "B" of the plaint and submitted that this shows that these lands were purchased or leased out by defendants from their private funds. No evidence is produced by the defendants to show that land was partitioned except verbal assertion or apart from joint agricultural lands, defendants had any separate and independent source of income or other private funds from which these purchases were made. This shows that plaintiff has discharged his initial burden but defendants failed to produce any evidence in support of their plea that joint property was partitioned and defendants had separate source of income from which purchases were made independent of income from joint property.
62. Exh.75 is letter dated 17-11-1962 addressed by Muhammad Aslam to his brothers Bashir and Muhammad Akram. In this letter it is stated that Bashir Ahmed and Muhammad Akram have been managing lands and joint holding inherited from father but had failed to render accounts.
63. Assertion is made in this letter that sale-deed, Exh.81 was mutually intended to be only security for loan which was not advanced and attempt was being made to mutate the land mentioned in that document to which objection was raised. In the end of the letter, request was made for rendition of accounts and partition of the whole property and other assets. Mr. Fakhruddin submitted that no evidence was produced by the plaintiff to prove that Muhammad Akram resided in Sarfraz Colony, Hyderabad. No postal receipt or A/D was produced alongwith plaint to prove that this letter was received by post by addresses. Postal receipt and A/D were not filed when 21 documents were filed on 19-8-1963. Perusal of the original record of the trial Court shows that plaint was filed in the Court on 3-7-1963 and in paragraph 21 of the plaint it is stated that notice/letter, dated 17-11-1962 for partition of the property and accounts was sent but said defendants Nos.1 and 2 were avoiding on one or the other pretence. At the end of the plaint, after verification, in the column of documents filed at Item No,2 is shown copy of notice dated 17-11-1962 from plaintiff to defendants Nos.1 and 2 and served on them (original with the said defendants). In the documents relied upon no mention is made about postal receipt and A/D.
64. Letter dated 17-11-1962, which is Exh.75, addressed by Muhammad Aslam to his brothers Bashir and Muhammad Akram is specifically and categorically mentioned in paragraph 21 of the plaint, asserting that it was served but defendants Nos. 1 and 2 went on avoiding on one or the other pretence but in the written statement about that letter there is vague and general denial saying that rest of the paras. Of the plaint are denied and further what is not expressly admitted is hereby denied. Requirements of Order VIII, rules 3 and 4 are that in the written statement denial shall be specified and not evasive. Further rule 5 of the said provisions contemplates that every allegation of fact in the plaint if not denied specifically or by necessary implication,, shall be taken to be admitted except as against the person under disability. There is proviso that Court may, in its discretion, require any fact so admitted to be proved otherwise than by such admission. While deposing before the trial Court, Aslam produced copy of the letter/notice dated 17-11-1962 and objection was raised on the ground that notice was not sent. Still Aslam was allowed to produce copy of the notice which was brought on the record as Exh.75. It is not mentioned in the deposition that production of Exh.75 was subject to the objection. Immediately after that Aslam produced postal receipt showing that Exh.75 was received by defendants and this receipt was brought on the record as Exh.76/1 and 2 without any objection. When Akram was in the box in the trial Court, he stated in the cross-examination that he did not remember whether he had received notice Exh.75.
65. This shows that he did not deny categorically having not received the notice but had failed to remember whether he had received it or not. Objection was raised on behalf of the defendants that plaintiff had not produced evidence to prove that Muhammad Akram resided in Sarfraz Colony, Hyderabad when the notice was allegedly sent to him on 'that address. This objection is untenable for three reasons. Firstly that postal receipt shows that notice was sent at two addresses, one at Matli and the other at Sarfraz Colony, Hyderabad and no objection was taken to the production of this receipt. Secondly, Muhammad Akram in cross-examination did not deny specifically receipt of this notice but stated that he did not remember whether he had received it or not. Thirdly, Muhammad Akram in his deposition did not assert positively that at the relevant time he did not reside in Sarfraz Colony, Hyderabad. Scrutiny of pleadings of the parties and evidence produced in the suit shows that receipt of notice Exh.75 was not seriously denied or disputed and had it been so there would have been specific denial of receipt of this notice in the written statement and issue could have been framed by the Court on this question at the instance of the parties. Another important document on the record is letter dated 12-12-1962 which is Exh.77 (paper book 1, page 48). This letter is written by Bashir Ahmed and Muhammad Akram to Muhammad Aslam. In this letter all claims made by the plaintiff are admitted including joint ownership of property inherited as well as acquired, maintenance of joint accounts and sale-deed dated 25-11-1958, Exh.81, intended to be mortgage and consideration not paid. No mention of this letter is made in the plaint but it is mentioned in Item No,3 of column of documents filed. Perusal of the original record of the trial Court shows that alongwith plaint documents were filed including certified copy of the letter dated 12-12-1962, addressed to the plaintiff by defendant No,2 (original with plaintiff). Suit was filed on 3-7-1963. Further order-sheet in the original record shows that on 22-7-1963, Advocates of both parties were present and Vakalatnama was filed on behalf of defendants and -counter-affidavit of Bashir Ahmed was filed, which shows that defendants resisted application under Order XL, rule 1, C.P.C. Filed by the plaintiff for appointment of Receiver. Thereafter three dates were taken for filing of written statement which was ultimately field on behalf of defendants Bashir Ahmed and Muhammad Akram on 13-8-1963 alongwith affidavit of Muhammad Akram in which he denied having written letter dated 12-12-1962 addressed to the plaintiff, copy of which was produced alongwith plaint. In this context, Mr. Fakhruddin submitted that if plaintiff proposed to rely- upon and take advantage of admissions made by defendants Bashir and Akram in their letter dated 12- 12-1962, then admissions should have been pleaded specifically in the plaint. This was not done but plaintiff has not only mentioned the said document but had produced certified copy thereof alongwith the plaint and after service defendants have filed written statement and Muhammad Akram filed affidavit denying having written that letter. Plaintiff had field suit for declaration that sale-deed dated 25-11-1958 was :null and void and he was co-sharer in the property shown in Schedules "A" and "B" and further he prayed for partition of the property of separate possession and rendition of accounts. By producing copy of the letter in his deposition, he had complied with the requirements of Order VII, rule 14, C.P.C. Thereafter when Muhammad Akram denied having signed or sent letter dated 12-12-1962, he could have moved the trial Court for framing issue on the question whether letter dated 12-12-1962 was written by him or not. Such request for framing issue could have been made jointly by both parties as well. It is surprising that later on amended plaint was filed followed by written statement without including letter dated 12-12-1962. Consequently no issue was framed. Perusal of order passed by the trial Court dated 18-7-1962 in the original record shows that after framing 15 issues, Court had observed that no other issue nor amendment was sought. For this lapse both parties are to be blamed.
66. Exh.77 is very important document for plaintiff for the reason that in it nearly his whole case is admitted by defendants Nos.1 and 2. It is more important to defendants Nos.1 and 2 Bashir and Akram for the reason that they deny having sent it to Aslam and thereby deny admissions made in favour of claims of plaintiff. Unfortunately, this document was not given its due importance by the parties in the pleadings resulting into omission of issue on this point and subsequently at the stage of evidence. During examination-in-chief, plaintiff Aslam produced it and it was admitted as Exh.77 and brought on the record. In the deposition of plaintiff objection of defendantscounsel is recorded to the effect that letter had been forged by the plaintiff. Since original letter or the letter which purports to be original is on the record, it can be presumed that it was produced by plaintiff during his deposition. Otherwise defendants would have taken objection that original was not produced because alongwith plaint was produced certified copy and not the original which was claimed to be in possession of the plaintiff. Now if Muhammad Akram claimed that Exh.77 was not signed and sent by him and that it was forged by plaintiff, then this point could have been dealt with in detail in the written statement and with due amount of seriousness. Even additional pleas can be taken in written statement. In the whole cross-examination of plaintiff Aslam, no reference was made to this document except the last sentence in the cross-examination, a suggestive question was put to Aslam which is replied by him in the words "It is not a fact that I had forged document Exh.77". When defendant Muhammad Akram was in the box, he stated in his examination-in-chief as under:-- "I am literate up to one standard of English and know a very little of it. I do not sign in English. I see Exh.77. It is not typed letter to the plaintiff. I used to give (torn) to the letters of the plaintiff to him either in Sindhi or in Urdu."
67. Defendant Muhammad Akram was confronted with letter Exh.77 again in the cross-examination and he deposed as under:-- "I see Exh.77. It is not signed by me. I can write my name in English. I produce my 3 specimen signature Exh.99. (Note. He has put the signatures in my presence in Court).
68. While putting my signatures I have written capital letters. I cannot write small letters. I was admitted in First Standard English in Mirpurkhas High School. I do not remember whether it was in the year 1935. I had passed First Standard in Mirpurkhas. I do not remember that thereafter I joined school in Deh 161 Taluka Jameshabad. Thereafter I was sent and got myself admitted in School at .Tando Jan Muhammad. My elder brother Muhammad Iqbal was teacher in Tando Jan Muhammad School at that time. I do not remember whether I passed III Standard English in Tando Jan Muhammad School. It is not a fact that I had secured No,1 in examination of Class III in Tando Jan Muhammad School and that I was very good at English. It is not a fact that I used to live together with my brother Muhammad Iqbal in the same house at Tando Jan Muhammad. I do not remember that Master Shaikh Abdullah was my Drawing Teacher in Tando. Jan Muhammad School. It is not a fact that Teacher Shaikh Abdullah used to live with my brother at Tando Jan Muhammad. I do not remember whether Teacher Ghulam Muhammad Bhurgari was my class teacher in III Standard at Tando Jan Muhammad. It is not a fact that after passing III Standard I had been promoted to IV Class in Tando Jan Muhammad School, whereafter I had left it. I cannot say whether Kot Abdullah written on Exh.73/12 is in my handwriting. Kot Abdullah written on Exh.80/10 is perhaps in my handwriting. The word `Kot Abdullahwritten therein comprises of capital as well as small letters. It is not a fact that I have written my specimen signature in capital letters only to avoid to see that my signature is not detected. Dates on the above mentioned letters have also been put in English. In Exh.80/10 date has been put immediately down below the word `Kot Abdullah'. In the letters above mentioned the dates have either been put immediately down below my signature or the word `Kot Abdullahwritten therein. In letter Exh.73/12 date has been put under the word `Kot Abdullahand not under my name. I have got account in Habib Bank, Tando Muhammad Khan and Mercantile Bank in Matli. The cheques issued to those Banks by either are in Sindhi or in Urdu. My signatures on those cheques are either in Sindhi or in Urdu. The figures of the amount shown therein are in English. I do not remember whether the signatures shown by me in the Post Office papers are in English."
69. Still at one other place in the cross-examination defendant Muhammad Akram stated that contents of notice Exh.77 had been read over to him in the Court and they were not correct. He had not written the same and the entire reply is forged. On this subject, trial Court in its judgment (paper book 1, page 126) has held that version of plaintiff is supported by reply dated 12-12-1962 Exh.77 of defendant Muhammad Akram but signature of Muhammad Akram is denied therein on the ground that it is forgery. Finding of the trial Court on this point alongwith reasons contained in the portion of judgment is reproduced as under:-- "Reply Exh.77 is signed in English in small letters. Defendant Muhammad Akram was made to sign in Court for the purpose of comparison under section 73 of the Evidence Act but he wrote his name in capital letters. He avoided to write in small letters though some of the letters exchanged by him and admittedly written by him, bear some writing in small letters. He admits to have gone English School up to Standard I though he has given evasive replies when asked about his further studies.
70. In any case, it is admitted that some of the letters exchanged between the parties written by him bear some writing in small letters though he avoided to write in small letters in Court as the reply Exh.77 bears his signature in small letters. Accordingly, the presumption would arise against him and prima facie the plaintiff's version is supported by the reply of defendant Muhammad Akram as disclosed in Exh.77 to the effect that he was joint with defendants 1 and 2 in all respects with regard to the joint family property, agricultural enterprises, purchases and acquisitions and that he was in joint possession with them after the death of their father in or about the year 1943."
71. With finding of the trial Court in respect of letter Exh.77, High Court in appeal has agreed and held that Muhammad Akram though knew English and could sign in English, still claimed that he did not know English and was not able to sign in small letters. Although in majority of the documents he had signed in Urdu and Sindhi, but in two documents Exhs.80/12 and 80/10 he had written "Kot Abdullah" in English in small letter. The fact that he refrained from writing in small letters leads to the presumption that he was trying to avoid comparison with signature in English appearing in Exh.77. This clearly establishes that plea of Muhammad Akram (appellant No,1) was completely incorrect. High Court has further held that Courts declined to rely upon comparison as conclusive proof but unfortunately in the present case Muhammad Akram did avoid writing in small letters and that is why trial Court had taken into consideration circumstantial evidence to hold that the letter dated 17-11-1962 was a genuine document. High Court also held that since Exh.77 purported to be written by two defendants then Muhammad Bashir could have appeared in the Court to deny having sent that letter.
72. I do not see any reason to disagree with concurrent findings of the trial Court and the High Court on this point, which appears to be in consonance with evidence produced by the parties and also according to law. There is nothing on the record to show that any request was made by any party to the proceedings for sending the document Exh.77 to Handwriting Expert. It would be pertinent to point out here that Akram denied having signed Exh.77 and after suit was decreed by the trial Court in favour of plaintiff, appeal was filed in the High Court and during the pendency of appeal Muhammad Aslam filed application under section 476, Cr.P.C. Alleging that defendants Tariq Mehmood, Bashir and Akram in concert with Mehmoodul Hassan, have tampered with Exh.77 and destroyed signature of Akram and replaced it with fake signature. There were allegations and counter-allegations by both parties against each other. Order was passed by the High Court that this application would be taken up for consideration after disposal of appeal. Both parties were content with this order and after disposal of appeal petition was filed in the Supreme Court for leave to appeal which was granted resulting into appeal under consideration. In the circumstances since no further step was taken by the parties in this respect as held above, nothing need be said on this point.
73. About Bashir's not coming in the witness-box, Mr. Fakhruddin submitted that application was made in the High Court to allow Bashir, Tariq and Naseer to be examined, but this application was disallowed. Record of the High Court shows that this application was rightly rejected for very valid reasons that in the trial Court defendants closed their side on 20th April, 1966 and thereafter application was moved in the trial Court to permit examination of defendants Bashir, Tariq and Naseer, on the ground that side was dosed due to mistake of the Advocate. It was found that on the day when side was closed, defendants Bashir, Tariq and Naseer were not present in the Court, as such question of mistake did not arise. Application under Order XL, rule 27, C.P.C. Was rejected in the High Court on the ground that the matter was pending for more than 14 years. High Court rejected this application on 8-2-1.981. Suit was filed on 15-10-1963. Trial Court gave judgment on 28- 10-1966. In the same year appeal was filed in the High Court. Application for additional evidence under Order 41, rule 27 was filed in the year 1974 which was 8 years after filing of appeal in the High Court ,and 11 years after filing of suit. On this applicationin the High Court, order was passed in 1981 which was after 14 years of filing of appeal and 17 years after filing of suit.
74. This very clearly shows that defendants were not serious about their own examination and production of evidence and were quite content with the way the suit proceedings had progressed and concluded. After application was rejected by the trial Court for examination of three defendants, no steps were taken to agitate the matter further and thereafter the arguments were heard and decision was given in the suit and in-between about 6 months had expired. This shows that defence was conducted by defendants in carefree manner and with lack of interest.
75. Legal aspect of Exh.81, which is sale-deed dated 25-11-1958 purporting to show sale of inherited share and purchased land of Aslam in favour of Akram and Bashir, is discussed above. On merits, considering evidence produced by both parties in respect of it, findings of trial Court and High Court are concurrent and to the effect that this document was not intended to be sale-deed but security against loan. Two issues were framed in respect of sale-deed. Issue No,13 covers want of permission from Collector under Rural Credit and Land Transfer Act which has been discussed in great detail above. Issue No,14 is whether sale is had for want of consideration. Sale-deed Exh.81 shows that consideration of Rs,25,000 had already been paid to the plaintiff. In the trial Court Muhammad Akram deposed that they had paid Rs,10,000 to Aslam before sale-deed was executed and Rs,15,000 was to be paid at the time of registration of sale-deed. Endorsement on the sale- deed by Sub-Registrar does not show that Rs,15,000 was paid at the time of registration. No receipt was obtained from Aslam for payments as mentioned above before execution of sale-deed and at the time of registration. In evidence no reason was assigned for this omission. Trial Court, therefore, held that it has been satisfactorily proved that sale-deed was bad for want of consideration. In this respect, High Court has held that in the assertion made by the plaintiff that Exh.81 was not sale- deed but security against mortgage, he is supported by his brother Muhammad Iqbal. As against that. In the evidence defendants examined only Muhammad Akram whose evidence is unsatisfactory and discrepant on this point. He deposed first that entire sale consideration was paid before sale-deed was registered before Registrar. In the cross-examination he stated that Rs,5,000 were paid before execution of sale-deed and Rs,10,000 were paid before Registrar. No mention is made about receipts. High Court has observed on this point in the impugned judgment, that from the record it seems that at the relevant time the parties were on good terms and had full confidence in each other and it is a case of failure of consideration.
76. It was submitted by Mr. Abdul Hafeez Memon, counsel for respondent/plaintiff that the most important question in this case is whether disputed land was undivided or joint which essentially is a question of fact. On this subject evidence is led by both the parties which is considered by the trial Court and also re-appraised by the High Court in appeal. Concurrent findings of the two Courts below based on assessm ent of evidence should not be disturbed by the Supreme Court unless there are very compelling reasons. He has cited before us cases in support of his contention.
77. In the case of Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143, the question for consideration was that the Court has to see whether gift in question was made under the pressure of sense of imminence of death and it was held that the gift was made during Marzul- Maut. In that respect evidence was produced by the parties and Supreme Court declined to interfere with concurrent findings of the Courts below which were supported by careful and elaborate consideration of evidence. In the case of Mst. Shohrat Bano v. Ismail Dada Adam Soomar 1968 SCMR 574 respondent had brought a suit for declaration that he was real and absolute owner of various properties mentioned in the plaint and his wife appellant Shohrat Bano was merely a Benamidar. On the original side of the High Court suit was decreed in favour of respondent against which Letters Patent Appeal was filed which was dismissed by a Division Bench. Contention was raised that Mst. Shohrat Bano had made contribution and the same was rejected by the Supreme Court on the ground. That there was concurrent finding on the point to the effect that no contribution was made by Mst. Shohrat Bano to the partnership business, therefore, such plea cannot be canvassed before the Supreme Court in the absence of special circumstances justifying that and consequently interference was declined by the Supreme Court on that ground. In the case of Abdullah and others v. Abdul Karim and others PLD 1968 SC 140, in suit for pre emption no objection was taken by pre-emptors to the proof of a Ruqa (written by vendor according to which shares of vendees entered in mutation) when it was produced in the Court and that document was exhibited. High Court also relied upon that document in favour of mutation of sale. Objection taken in the Supreme Court was repelled on the ground that Supreme Court will not interfere in concurrent findings of fact in civil matter unless finding was based on "no evidence or upon misreading of evidence". In the case of Haji Saidur Rehman v. Nasrullah Jan and another 1973 SCMR 231, question for consideration was that in a contract of sale, whether one or the other party failed to carry out his part of agreement and on that question of fact, Supreme Court declined to interfere with concurrent findings of the Courts below unless such finding was vitiated by misreading of evidence or ignoring of material evidence.
78. Perusal of case-law cited above, clearly shows the trend that with concurrent findings of the facts, no interference will be made by the Supreme Court unless there are compelling reasons such as misreading of evidence or ignoring of material evidence which vitiates findings. In the case under appeal findings of the trial Court and Appellate Court are concurrent against appellants/defendants in the suit, as the suit stands decreed in favour of respondent/plaintiff and appeal in the High Court is dismissed. Out of 15 issues framed, most of them are factual in nature with the exception of few which can be called legal issues. Both parties have produced evidence oral as well as documentary in support of their respective stands taken by them. Both the Courts below have accepted and believed evidence produced by the plaintiff. Evidence has been reappraised in great detail in appeal before us and I am of positive view ...That no interference is warranted with concurrent findings of the trial Court and the High Court for the reason that there has been no misreading tend no material evidence has been ignored.
79. For the facts and reasons stated above, I dismiss this appeal with costs.
80. NAIMUDDIN, J. (dissenting ).---I have had the advantage of reading the opinion of my learned brother, Sajjad Ali Shah, J, whereby he proposes to dismiss the appeal in its entirety. I regret that I have not been able to persuade myself to agree with the proposed judgment. In my opinion the appeal in respect of the lands mentioned in Schedule 'A', which are inherited lands partly covered by the sale-deed dated 25-11-1958 (Exh.81), should be dismissed and the appeal in respect of the lands mentioned in Schedule 'B(except the land standing in the name of the plaintiff/respondent Muhammad Aslam) which stand in the names of the appellants and the properties mentioned in Schedule 'Dshould be allowed and in respect of the property mentioned in Schedule 'C', the appeal should be remanded to the trial Court to find out what cost was incurred in the rebuilding of the Otak and to the extent of the 1/3 of the cost should be paid by the plaintiff/respondent.
2. It is not in dispute that the appellants 1 and 2 alongwith the respondent Muhammad Aslam, since deceased (now represented by the respondents) and Muhammad Iqbal (not a party), all brothers inter se, alongwith their sisters inherited the lands mentioned in Schedule A from their father on his death in the shares mentioned in para.2 of the plaint.
3. It may be mentioned that meanwhile Muhammad Iqbal bad sold his share in the inherited lands to defendants (appellants 1-2). Muhammad Aslam claimed that the appellants Nos.1 and 2 had purchased the share of Muhammad Iqbal from the joint assets of appellants 1 and 2 and his, with equal share Para. 3 of the plaint in this regard reads as follows:-- "3. The remaining 0-3-7 share of the above said property Schedule Awas inherited by Muhammad Iqbal the fourth son whose share was purchased by defendants 1 and 2 from the joint assets of the defendants 1 and 2 and the plaintiff with equal share."
4. It is admitted fact that respondent Muhammad Aslam was highly educated person, being a practising Advocate while the other brothers were only literate, appellant Muhammad Akram having studied only up to 1 English Standard.
5. In the plaint Muhammad Aslam claims that the sale-deed was intended to be security for the loan that was to be advanced by appellants 1 and 2 and, therefore, it was a mortgage deed and not a sale-deed. He further claimed that he did not receive the loan or sale consideration. The sale-deed belies this claim fully. I would reproduce hereinbelow a portion of it. It reads as under:-- "I the aforesaid executant do hereby execute of my own free will without any fraud, without taking any intoxication with sound health and mind that I the executant has got following share in my name, Khatta and appropriation. This land is 'Kabooliwithout any restriction. Prior to this, this land has not been given to any one by way of mortgage gift or exchange; There arc no Government dues and land revenue due outstanding against this land. It is free in all respects from all encumbrances. Now I do hereby sale-out my following undivided joint share whole sixteen Annas in a rupee alongwith all rights and interests, alongwith future rights, rights of the frontage, rights of the sources of water-supply, rights of trees, gardens etc. For a sum of Rs,25,000 in word's twenty- five thousand only to the aforesaid vendees in equal shares i.e, 0-8-0 in a rupee to each vendee. I have sold this land to them in the aforesaid manner and have transferred this land to them. I have taken the consideration amount of this land from the aforesaid vendees and have appropriated the same without issuing any receipt. I shall not claim this consideration amount again. In case I demanded it, that demand shall be null and void. The vendees are my real brothers, therefore, they have given this amount to me the executant without any receipt. I admit to have received the full consideration amount mentioned in this deed."
6. Therefore, from the above-quoted passage, it is clear that it was a sale-deed and Muhammad Aslam had received full consideration of Rs,25,000. In this sale-deed the details of the land are mentioned as follows:-- "Details of the Land Deh Chan Sonrani 0-16-0 in a rupee under sale in which all the vendees have got equal shares in this land i.e, 0-8-0 in a rupee each.
81. Block No,2___ 2_____ 1 2 3 4 3-35 4-0 4-0 3-38 3________ 58_______ 59_____ 1 2 2 3 1 2 3-32 4-0 3-30 4-0 3-25 3-25 60_________ 109_______ 109____ 1 1 3 4 329 3-32 3-28 3-32 10__________ 96________ 115_____ 2 3____ 4 2-A____ 2_____ 1-34 3-35 the area of 0-16-0 share in a rupee comes to 71-12 Ghantas in words seventy-one acres twelve Ghantas. This land is situated in Deh Chan Sonrani. The joint share of 0-3-7 undivided is under sale.
82. In this land both the vendees have got equal share and each vendee will get 0-1-9/1/2 share in a rupee.
83. Block No, 42 42 43 1 4 4-A 3 4 4-A 2-38 1-18 1-38 3-39 1-30 1-30 61 63 95 95 2 2-A 1 2- 2-A 4 1-28 1-34 3-35 1-35 1-31 1-31 96 12 128 129 3 4 4-A 2 3 3 4 4-0 1-34 2-0 3-33 3-38 4-0 3-34 130 149 150 3 1 2 1 2 4-0 4-0 4-0 3-32 4-0 1 2 2-A 4-0 2-0 1-31 a rupee the area comes to 77-29 acres. The area for 0-3-7 comes to 17-16 Ghuntas i.e, 17-16 Ghuntas. Block No, 3 Details of land Deh Chan Sonrani 0-5-4- share under sale in which the vendees will receive 0-2-8 by this sale.
84. Block No,3 12 3 1 12 46 47 4 2 4 4-0 4-0 4-0 131 134 1 1 2 3 4 1 3-33 40 4-0 4-0 3-32 18 114 Total area of 0-16-0 2 2-A 3 4 4-0 1-34 3- 361-34 in a rupee come to 63 acres and 24 Ghuntas. The area of 0-5-4 is 22-8 Ghuntas. Dated 25th November, 1958.
85. Received Rs,25,000 in words rupees twenty-five thousand only.
86. (Sd.)
87. Muhammad Aslam 25th Nov., 1958 Witnessed by Ghulam Muhammad son of Haji Taj Muhammad Khan Nizamani, resident of Matli now present at Tando Muhammad Khan. The executant read heard admitted correct the above execution and sold the above land absolutely. He admitted to have already received the full consideration amount. Dated 25th November, 1958.
88. Witnessed by Mukhtiar Ali son of Abdul Karim Khan Nizamani, resident of village Leghari Taluka, Hyderabad now present at Tando Muhammad Khan. Dated 25th November, 1958.
89. Written by Choohar Mal Kodu Mal Stamp Vendor, resident of Tando Muhammad Khan before the parties on 25th November, 1958.
90. Muhammad Aslam son of Illahi, Bux Executing Party Zamindar Muslim Rajput, 36 years, resident of Kot Abdullah, Taluka Matli admits the execution.
91. (Sd.) Muhammad Aslam 25-11-1958 L.T.I.
92. Chuhar Mal Kodu Mal Stamp Vendor, Tando Muhammad Khan who is personally known to the undersigned Sub-Registrar states that the aforesaid executant is personally known to him and identified him.
93. (Sd.) Illegible 0/C Sub-Registrar, Tando Muhammad Khan.
94. Dated 25th November, 1958."
7. Significantly, in this sale-deed there is no mention of any other lands standing in the name of appellants 1 and 2 or 2 and 4.
8. Muhammad Aslam's case in this evidence was that in the year 1958 he wanted to start his office as a pleader at Hyderabad. The house in Hyderabad was transferred to him by Settlement Department as nonclaiment. He required money for both the purposes. He further deposed that his brothers declined to give him money from the joint pool as they said that they had no interest in his individual undertaking. They called him at Tando Muhammad Khan and asked him to execute a sale-deed in respect of the lands jointly inherited and the one in his name so that they could give him the money. They promised to return the deed after he repaid the loan. Now, this story is not believable in part. If Muhammad Aslam had some money in joint pool, being a lawyer he would have forced by appellants to give him his share in the joint pool. In fact this part of the story is concoction. Otherwise, sale-deed establishes two things beyond doubt. Firstly, that till the date of the execution of the sale-deed no money was due from appellants 1 and 2 out of the income of the jointly inherited lands. Otherwise, he would have claimed rendition of accounts by serving on appellants a notice to that effect and/or would have gone to Court and filed a suit for the same purpose. No such course was followed. Indeed, in his deposition he has stated that "they used to send for money and sometime I used to send for money from them. The cash used to remain partly with them partly with me". Strangely and, in my opinion, falsely he says that the accounts were maintained by appellants 1 and 2. The afore-quoted deposition shows that accounts must have been maintained by both the, parties. If money was outstanding in his account against defendants/appellants 1 and 2, he should have claimed the same from them instead of executing the so-called mortgage or sale-deed of his share in the jointly inherited lands and the land standing in his name in favour of appellants 1 and 2. Secondly, this also belies the claims that the other lands standing in the names of appellants 1 and 2 or 3 and 4 were purchased out of joint income. If his story chat he wanted loan was true he would have, for the aforesaid purpose, obtained the loan against the security of his so-called share in the other lands standing in the names of appellants 1 and 2 or 3 and 4 as well.
9. The story of non-receipt of the consideration is not supported by any evidence except his own bare words. Muhammad Aslam should have examined at least the attesting witnesses in support of his claim that no consideration was paid. Their story is further unbelievable because the sale- deed was executed on 25th November, 1958 and mutation of the lands comprised in sale-deed was effected in favour of appellants 1 and 2 in the year 1960. Being a practising Advocate Muhammad Aslam would not have kept quiet for such a long time if the so-called loan or the consideration was not paid to him and the sale-deed also not returned to him. He has not written any letter in this connection except letter dated 17-11-1962 (Exh.75) after almost four years of execution of the sale-deed. Then the very first paragraph of this letter also belies his claim that other lands purchased by the appellants from Muhammad Iqbal or taken on lease from Barrage Department or from other private parties was also on his behalf. In the plaint he has definitely improved and exaggerated his claim. Para. 1 of the letter dated 17-11-1962 (Exh.75) reads as follows:-- "1. That you have been managing my lands alongwith the joint holdings inherited from father situated in Taluka Matli and Jamesabad." (Emphasis supplied).
10. Obviously, this para. Refers to the lands which Muhammad Aslam directly purchased from Barrage Department and lands inherited from his father, both of which were subject-matter of the sale-deed (Exh. 81).
11. I am, therefore, inclined to hold that the transaction was an outright sale and consideration thereof was paid but in agreement with my learned brother, Sajjad Ali Shah, J., I held that the sale- deed is invalid for want of necessary permission.
12. So far as the lands standing in separate names of the appellants 1 and 2 or 3 and 4 are concerned, I am not prepared to accept the bare words of Muhammad Aslam, specially when he has not produced any document in support thereof. On the contrary, revenue receipts (Exhs.92/1 to 41), and bills (Exhs.93/1 to 21) and the sale-deed (Exhs.94/1 to 3) and the lease deed (Exhs.95/1 to 6) and the receipt (Exh.96) have been produced in evidence by appellant No,2, which are all in the names of the appellants and none in joint names of the appellants 1 and 2 and the respondent Muhammad Aslam. The respondent, Muhammad Aslam, being a practising Advocate would not have allowed the appellants to obtain the sale-deed, leases etc. In their names. His explanation that he was residing at Hyderabad while lands were at distant places could be relevant for the purposes of management of lands but not for the purpose of obtaining the document alone in the name of the appellants.
13. The evidence of Muhammad Iqbal, the brother of Muhammad Aslam, is not of much value at the relevant time he was residing at Hyderabad, far away from the lands. Therefore, he would not have any direct knowledge of the affairs of appellants 1 and 2 or 3 and 4, who purchased lands from Barrage Department or took on lease from it or: from other parties and also purchased the lands from him. He himself conveyed his lands to appellants 1 and 2 in their names. In my opinion, there is no satisfactory explanation as to why the name of Muhammad Aslam, the respondent, was not included in sale and transfer deeds if he was also vendee.
14. In view of what is stated hereinabove, the findings of fact by the High Court and the trial Court are not binding. I have a feeling that the case is not properly conducted and many questions which ought to have been asked from or put to the witnesses of the parties were not asked or put to them. But it is the duty of the Court to examine the case in its entirety and reach the truth.
15. There is no finding and opinion as to the cost incurred on the rebuilding of the Otak and whether the respondent, Muhammad Aslam, will be entitled to have his 1/3 share without sharing the cost and paying his share thereof. For this purpose and to this extent the appeal will be remanded to the trial Court.
16. As regards for movable properties the plaintiff/respondent led no evidence that what properties were inherited and what were purchased by the appellants from the joint income and what was purchased by the appellants from their own income. It is admitted fact that the appellants had their own money and resources that is why the plaintiff/respondent sold his land or share in the lands, or, according to respondent's own case, mortgaged to the appellants. He must be having accounts to show that what movable properties were purchased from the income of jointly owned lands, which he has not produced. The burden was on him. His claim to the property in Schedule 'D', therefore, stands rejected for want of proof. The plaintiff/respondent has not claimed in the suit that he was not rendered accounts by the appellants of the jointly inherited properties or any properties. He has not stated that he was rendered accounts thereof. He was also receiving monies from the appellants and also the produce of the lands jointly owned as admitted by him in his evidence. He was also an accounting party. The plaint is silent on this matter. He has claimed in the suit filed on 3-7-1963 accounts for the last 3 years i.e, much after the execution of the sale-deed dated 25-11-1958. Therefore, it could be safely presumed that both the parties regularly rendered accounts to the extent and in respect of the lands jointly owned by them and the dealings between them up to the date of the execution of the sale-deed. Therefore, any claim in respect of any property ought to have been supported by those accounts. Burden being on Muhammad Aslam, respondent/plaintiff and he having failed to produce the same, must fail in his claim.
17. Much has been said about Exh.77. The appellants claim that this letter is forged. Assuming that it is not a forged document but what plaintiff/respondent has claimed in para. 1 of Exh.75 of which Exh.77 is the alleged reply, cannot be ignored.
18. Since I have held that the consideration of Rs,25,000 passed but the sale-deed is ineffective being invalid, as stated before, I would further hold that the amount of Rs,25,000 would be adjusted against the share of the income of the plaintiff/respondent from the lands, which are subject- matter of the sale-deed (Exh.81) from the date of the filing of the suit to the date the accounts thereof are rendered.
19. I, therefore, allow this appeal subject and to the extent what I have stated hereinbefore.
95. However, in the circumstances the parties will bear their own costs throughout.