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IN THE HIGH COURT OF SINDH HYDERABAD CIRUCIT

R. A No. 348 of 2011

Applicant:

Muhammad Essa S/o Arab Soomro,

Respondent:

Ali Muhammad & Others

Date of hearing:

10.03.2014

JUDGMENT
SHAHNAWAZ TARIQ, J. ----- Through instant Civil Revision application, applicant
Muhammad Essa S/o Arab Soomro has agitated the Judgment dated: 10.11.2011 and
Decree dated 16.11.2011, passed by learned Ist Additional District Judge, Badin in Civil
Appeal No. 143 of 2010(Ali Muhammad Vs. Government of Sindh and others), whereby
allowed the appeal preferred by the respondent No. 5 against the Judgment and Decree
dated 27.10.2010 passed by Senior Civil Judge Badin in F.C Suit No. 72 of 2002 (Ali
Muhammad Vs. Government of Sindh) and the suit filed by the respondent No. 5/
plaintiff for declaration, cancellation and permanent injunction against the applicant and
respondents No. 1 to 4, 6 & 7 was dismissed.
2.

Relevant facts involved in the instant revision application are that the respondent

No. 5 filed F.C. Suit No. 72 of 2002 for Declaration, Cancellation, Possession and
Permanent Injunction against the government of Sindh, applicant and others in the Court
of learned Senior Civil Judge Badin on 11.09.2002, while the present applicant filed third
class suit New No. 01 of 2003 (No. 47 of 2002) for declaration, cancellation of saleagreement and permanent injunction against respondent No. 5 and others in the Court of
Civil Judge Badin on 28.03.2002. The third class Civil Suit No. 47 of 2002 was
transferred to the court of learned Senior Civil Judge, Badin on 18.07.2003 for disposal
according to law by the order of learned District Judge Badin. Since in both Suits, the
controversy with regard to title and ownership of either party was common, as such, the
advocate for the respondent No. 5 and advocate for applicant made joint application on
18.08.2003 and by consent such application was allowed and it was ordered that F.C. Suit
No. 72 of 2002 filed by respondent No. 5 would be leading suit while third class Suit No.
01 of 2003 would be the consolidated suit. The present respondent No. 5/plaintiff

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instituted the leading suit No. 72 of 2002 for Declaration, cancellation and permanent
injunction against the applicant and respondents No. 1 to 4 and 6 and 7 Defendants on
11.09.2002 stating therein that the agricultural land bearing survey No. 90(3-08) is
situated in Deh Ojhri Taluka and District Badin, the suit land, out of which he purchased
1-24 acres from Aftab Ahmed and others, the claimant, out of his 50 paisa share. The
remaining land of survey No. 90 was allotted to one Ahsan Ali son of Abdul Qadir in
satisfaction of a valid claim and subsequently the Khata was mutated in favour of said
claimant Ahsan Ali in the record of rights vide Jaryan No. 163 entry No. 275-276. The
claimant Ahsan Ali Executed an agreement of sale of said land admeasuring 2-14 acres in
favour of the respondent No. 5 through his legal attorney, Ghulam Yaseen son of
Shamsuddin, the respondent No. 7. The said Ahsan Ali failed to perform to contract on
his part, hence respondent No. 5 filed a suit bearing No. 20 of 1997 against Muhammad
Ahsan in the court of Civil Judge, Basdin which was ultimately decreed in favor of
respondent No. 5 on 28.11.1998 and thereafter respondent No. 5 filed an execution
application in the said suit, which was pending for adjudication. It is further stated by the
respondent No. 5 in his plaint that there are also survey number, the respondent No. 5 and
applicant are co-sharers to the extent of 50 paisa each. The suit land admeasuring 2-14
acres, out of 3-38 acres of survey No. 90 in the exclusive possession and cultivation of
respondent No. 5. It is further stated in the plaint that on 12.08.2001 all of sudden the
applicant alongwith some strangers came on the suit land in night time duly armed with
deadly weapons and occupied the suit land illegally and forcibly and unlawfully with the
result respondent No. 5 lodged FIR No. 155/2002 with police station Badin against the
applicant. Thereafter applicant filed a civil suit No. 47/2002 against the respondent No. 5
and his family members in the court of civil Judge Badin and on service of summons in
said suit, the respondent No. 5 came to know that the respondent No. 7 fraudulently
managed a bogus allotment of the suit land in the name of respondent No. 6 and got
entered an entry in the record of rights on 13.09.2013 and then he got the suit land
transferred in his own name and on the basis of fictitious and false sale-agreement in
collusion with the lower staff of revenue and he has also got his land mutated in his
favour under Jaryan No. 276 and entry No. 275 dated 05.10.1993 and the respondent No.
7 sold out the suit land in favor of applicant through a registered sale-deed bearing Jaryan
No. 1626 dated 02.10.1999 on n the basis of which the name of applicant was mutated in
the record of rights on 23.2.2001. Since no land was available after 1986 on execution of

3
sale-agreement, the transaction of allotment to respondent No. 6 and then in the name of
applicant are bogus, collusive, illegal, void and liable to be cancelled.
======================================
I have heard learned counsel for the parties and examined the material available
on record and R&Ps of subject suits including statement filed by the learned counsel for
the respondent No.5 attached therewith certified copies of Judgment, Decree and other
proceedings of Suit No.20 of 1997, Execution application No. 03 0f 2000 with their
assistance.
Learned counsel for the applicant has contended that the suit agricultural land
was owned by one Ghulam Yasin, who sold out the same the applicant through registered
sale deed and such khata was mutated in the Revenue Record vide entry No. 136, dated
23.02.2001. The respondent No. 5 looking the fertility of suit land managed a false sale
deed in previous date and on the basis of said fictitious agreement with the help of other
respondents, is trying to occupy said land. He further submitted that on 18.08.2002, the
respondents duly armed with deadly weapons came at suit land but due to resistance of
the applicant and his relatives, they could not succeed in their evil deed. The respondent
No.5 also lodged a false FIR against the applicant bearing No. 155/2002, U/S 147, 148,
149, 506/2 and 337-H (ii) PPC at police station Badin. The applicant filed IIIrd class Suit
(old) No. 47/ 2002, New No. 01/2003 against the respondents. The respondent No. 5 also
filed Suit No. 47/2002 against the applicant, but both suits were dismissed the trial court
of learned Senior Civil Judge, Badin. The applicant and respondent filed separate civil
appeals against said impugned judgment, but the learned appellate court without
appreciated the relevant facts and documents illegally dismissed the civil appeal filed by
the applicant and allowed the civil appeal filed by the respondents. He further contended
that the respondent No. 5 had filed suit No. 20/1997 against the applicant and without
serving the summons, got exparte judgment from the court, therefore, the registered sale
deed in favour of the applicant could not be defeated mere on the basis of an exparte
judgment. He lastly urged to set aside impugned judgments passed by the learned
appellate court and learned trial court.
Learned counsel for the respondents has contended that the applicant has
concealed the relevant facts from the Court. In fact the respondent No. 5 had purchased
the suit land in two phases, as 1-24 Acres from Aftab and others being claimant of 0.50

4
paisa share, while land viz 2-14 Acres was purchased from one Ahsan Ali through his
legal attorney Ghulam Yaseen, the respondent No.7. Said Ahsan Ali did not perform the
contract, therefore, the respondent No. 5 filed Suit No. 20/ 1997 in the court of Civil
Judge, Badin which was decreed on 28.11.1998 and execution application is pending
before said court. He further contended that despite knowledge of pendency of the suit,
said Ahsan Ali with malafide intention has again sold out his land to the applicant and
also executed registered sale deed, while he never appeared before the civil court for
setting aside of exparte judgment, which is still alive and without setting aside said
judgment, any other order or judgment would not be legal. He further submitted that
applicant along with his companion duly armed with weapons forcibly occupied said
land, and the respondent No.5 lodged FIR No. 155/2002, on 18.08.2002 at P.S Badin
against them. He also contended that the appellate court has rightly decided the civil
appeal No. 143/ 2010 and decreed suit No. 72/ 2002 filed by the respondent No.5,
therefore, instant revision application is liable to dismissed.

==SHAHNAWAZ TARIQ, J. ----- Through instant Civil Revision application,


applicant Muhammad Essa S/o Arab Soomro has agitated the Judgment dated:
10.11.2011 and Decree dated 16.11.2011, passed by learned Ist Additional District Judge,
Badin in Civil Appeal No. 143 of 2010(Ali Muhammad Vs. Government of Sindh and
others), whereby allowed the appeal preferred by the respondent No. 5 against the
Judgment and Decree dated 27.10.2010 passed by Senior Civil Judge Badin in F.C Suit
No. 72 of 2002 (Ali Muhammad Vs. Government of Sindh) and the suit filed by the
respondent No. 5/ plaintiff for declaration, cancellation and permanent injunction against
the applicant and respondents No. 1 to 4, 6 & 7 was dismissed.
2.

Relevant facts involved in the instant revision application are that the respondent

No. 5 filed F.C. Suit No. 72 of 2002 for Declaration, Cancellation, Possession and
Permanent Injunction against the government of Sindh, applicant and others in the Court
of learned Senior Civil Judge Badin on 11.09.2002, while the present applicant filed third
class suit New No. 01 of 2003 (No. 47 of 2002) for declaration, cancellation of saleagreement and permanent injunction against respondent No. 5 and others in the Court of
Civil Judge Badin on 28.03.2002. The third class Civil Suit No. 47 of 2002 was

5
transferred to the court of learned Senior Civil Judge, Badin on 18.07.2003 for disposal
according to law by the order of learned District Judge Badin. Since in both Suits, the
controversy with regard to title and ownership of either party was common, as such, the
advocate for the respondent No. 5 and advocate for applicant made joint application on
18.08.2003 and by consent such application was allowed and it was ordered that F.C. Suit
No. 72 of 2002 filed by respondent No. 5 would be leading suit while third class Suit No.
01 of 2003 would be the consolidated suit. The present respondent No. 5/plaintiff
instituted the leading suit No. 72 of 2002 for Declaration, cancellation and permanent
injunction against the applicant and respondents No. 1 to 4 and 6 and 7 Defendants on
11.09.2002 stating therein that the agricultural land bearing survey No. 90(3-08) is
situated in Deh Ojhri Taluka and District Badin, the suit land, out of which he purchased
1-24 acres from Aftab Ahmed and others, the claimant, out of his 50 paisa share. The
remaining land of survey No. 90 was allotted to one Ahsan Ali son of Abdul Qadir in
satisfaction of a valid claim and subsequently the Khata was mutated in favour of said
claimant Ahsan Ali in the record of rights vide Jaryan No. 163 entry No. 275-276. The
claimant Ahsan Ali Executed an agreement of sale of said land admeasuring 2-14 acres in
favour of the respondent No. 5 through his legal attorney, Ghulam Yaseen son of
Shamsuddin, the respondent No. 7. The said Ahsan Ali failed to perform to contract on
his part, hence respondent No. 5 filed a suit bearing No. 20 of 1997 against Muhammad
Ahsan in the court of Civil Judge, Basdin which was ultimately decreed in favor of
respondent No. 5 on 28.11.1998 and thereafter respondent No. 5 filed an execution
application in the said suit, which was pending for adjudication. It is further stated by the
respondent No. 5 in his plaint that there are also survey number, the respondent No. 5 and
applicant are co-sharers to the extent of 50 paisa each. The suit land admeasuring 2-14
acres, out of 3-38 acres of survey No. 90 in the exclusive possession and cultivation of
respondent No. 5. It is further stated in the plaint that on 12.08.2001 all of sudden the
applicant alongwith some strangers came on the suit land in night time duly armed with
deadly weapons and occupied the suit land illegally and forcibly and unlawfully with the
result respondent No. 5 lodged FIR No. 155/2002 with police station Badin against the
applicant. Thereafter applicant filed a civil suit No. 47/2002 against the respondent No. 5
and his family members in the court of civil Judge Badin and on service of summons in
said suit, the respondent No. 5 came to know that the respondent No. 7 fraudulently
managed a bogus allotment of the suit land in the name of respondent No. 6 and got
entered an entry in the record of rights on 13.09.2013 and then he got the suit land

6
transferred in his own name and on the basis of fictitious and false sale-agreement in
collusion with the lower staff of revenue and he has also got his land mutated in his
favour under Jaryan No. 276 and entry No. 275 dated 05.10.1993 and the respondent No.
7 sold out the suit land in favor of applicant through a registered sale-deed bearing Jaryan
No. 1626 dated 02.10.1999 on n the basis of which the name of applicant was mutated in
the record of rights on 23.2.2001. Since no land was available after 1986 on execution of
sale-agreement, the transaction of allotment to respondent No. 6 and then in the name of
applicant are bogus, collusive, illegal, void and liable to be cancelled.
======================================
I have heard learned counsel for the parties and examined the material available
on record and R&Ps of subject suits including statement filed by the learned counsel for
the respondent No.5 attached therewith certified copies of Judgment, Decree and other
proceedings of Suit No.20 of 1997, Execution application No. 03 0f 2000 with their
assistance.
Learned counsel for the applicant has contended that the suit agricultural land
was owned by one Ghulam Yasin, who sold out the same the applicant through registered
sale deed and such khata was mutated in the Revenue Record vide entry No. 136, dated
23.02.2001. The respondent No. 5 looking the fertility of suit land managed a false sale
deed in previous date and on the basis of said fictitious agreement with the help of other
respondents, is trying to occupy said land. He further submitted that on 18.08.2002, the
respondents duly armed with deadly weapons came at suit land but due to resistance of
the applicant and his relatives, they could not succeed in their evil deed. The respondent
No.5 also lodged a false FIR against the applicant bearing No. 155/2002, U/S 147, 148,
149, 506/2 and 337-H (ii) PPC at police station Badin. The applicant filed IIIrd class Suit
(old) No. 47/ 2002, New No. 01/2003 against the respondents. The respondent No. 5 also
filed Suit No. 47/2002 against the applicant, but both suits were dismissed the trial court
of learned Senior Civil Judge, Badin. The applicant and respondent filed separate civil
appeals against said impugned judgment, but the learned appellate court without
appreciated the relevant facts and documents illegally dismissed the civil appeal filed by
the applicant and allowed the civil appeal filed by the respondents. He further contended
that the respondent No. 5 had filed suit No. 20/1997 against the applicant and without
serving the summons, got exparte judgment from the court, therefore, the registered sale
deed in favour of the applicant could not be defeated mere on the basis of an exparte

7
judgment. He lastly urged to set aside impugned judgments passed by the learned
appellate court and learned trial court.
Learned counsel for the respondents has contended that the applicant has
concealed the relevant facts from the Court. In fact the respondent No. 5 had purchased
the suit land in two phases, as 1-24 Acres from Aftab and others being claimant of 0.50
paisa share, while land viz 2-14 Acres was purchased from one Ahsan Ali through his
legal attorney Ghulam Yaseen, the respondent No.7. Said Ahsan Ali did not perform the
contract, therefore, the respondent No. 5 filed Suit No. 20/ 1997 in the court of Civil
Judge, Badin which was decreed on 28.11.1998 and execution application is pending
before said court. He further contended that despite knowledge of pendency of the suit,
said Ahsan Ali with malafide intention has again sold out his land to the applicant and
also executed registered sale deed, while he never appeared before the civil court for
setting aside of exparte judgment, which is still alive and without setting aside said
judgment, any other order or judgment would not be legal. He further submitted that
applicant along with his companion duly armed with weapons forcibly occupied said
land, and the respondent No.5 lodged FIR No. 155/2002, on 18.08.2002 at P.S Badin
against them. He also contended that the appellate court has rightly decided the civil
appeal No. 143/ 2010 and decreed suit No. 72/ 2002 filed by the respondent No.5,
therefore, instant revision application is liable to dismissed.

Judge

S.Soomro/P.A

IN THE HIGH COURT OF SINDH HYDERABAD CIRCUIT


R.A. No. 348 / 2011

MUHAMMAD ESSA __________________________________ APPLICANT


VERSUS
GOVT. OF SINDH AND OTHERS _____________________ RESPONDENTS

Last date of hearing: 10.03.2014.


Applicant:

Through Muhammad Ishaque Khoso Advocate

Respondents:

Through Mr. Zain-u-Abdin Mirza Advocate.

JUDGMENT

Shahnawaz Tariq J: Being aggrieved with and dissatisfied by the judgment and
decree dated 10.11.2011 passed in Civil Appeal No. 143/2010 whereby the
learned Ist Additional District Judge Badin decreed the F.C. Suit No. 72/2002 of
the respondent No. 5, which was dismissed by the learned trial Court hence the
applicant has preferred this Revision Application under Section 115 CPC.
The brief facts of the case are that the respondent No. 5 filed F.C. Suit
No. 72/2002 for Declaration, Cancellation, Possession and Permanent Injunction
against the Government of Sindh and others while the applicant filed III-Class
Suit No. 47/2002 (New No. 1/2003) for Declaration, Cancellation of Sale

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Agreement and Permanent Injunction against respondent No. 5 & others in the
Court of Civil Judge Badin. The Third Class Suit NO. 47/2002 was received to
the court of learned Senior Civil Judge Badin by way of transfer for disposal
according to law by the order of Honble District Judge Badin. Since in both the
suits the controversy with regard to title and ownership of either party was
common, as such, the counsel for the respondent No. 5 and counsel for the
applicant made joint application and by consent such application was allowed and
it was ordered that F.C. Suit No. 72/2002 filed by respondent No. 5 would be
leading suit while Third Class Suit No. 1/2003 would be the consolidated suit.
The applicant / respondent No. 5 instituted the leading Suit No. 72/2002
stating therein that the agricultural land bearing No. 90(3008) situated in Deh
Ojhri Taluka and District Badin out of which he purchased 1-24 Acres from Aftab
Ahmed and others, out of his 50 paisa share. The remaining land of Survey No. 90
was allotted to one Ahsan Ali and subsequently the Khata was mutated in favour
of Ahsan Ali in the record of rights.

The claimant Ahsan Ali executed an

agreement of sale in favour of respondent No. 5 through his legal attorney


(respondent No. 7). Ahsan Ali failed to perform the contract on his part, hence
respondent No. 5 filed a suit bearing No. 20/1997 which was ultimately decreed
in favour of respondent No. 5 thereafter respondent No. 5 filed execution
application which was pending for adjudication. The respondent No. 5 in his
plaint stated that there are also survey No. 89, 91 adjacent to the suit land and the
respondent No. 5 and applicant are co-sharers to the extent of 50 paisa each. The
suit land is in exclusive possession and cultivation of respondent No. 5. All of
sudden the applicant along with some strangers came on the suit land in night
time on 12.8.2001 and occupied the suit land illegally with the result respondent
No. 5 lodged FIR bearing No. 155/2002 at P.S. Badin. Thereafter the applicant
filed Suit No. 47/2002 against respondent No. 5 and his family members and after
service it came to know that respondent No. 7 managed a bogus allotment of the
suit land in the name of respondent No. 6 and hot transferred in his own name on
the basis of fictitious and false sale agreement in collusion with the lower staff of
revenue and also got land mutated in his favour and the respondent No. 7 sold out

10
the suit land in favour of the applicant and on the basis of which the name of
applicant was mutated in the record of rights. Since no land was available after
1986 on execution of sale agreement , the transaction of allotment to respondent
No. 6 and then in the name of applicant are bogus and liable to be cancelled.
On service respondent No. 5 filed his written statement admitted para 1 &
2 and denied rest of the averment of plaint. He stated that entry No. 62 though
was in name of Muhammad Ahsan but the same was kept in abeyance, as per
order of the then Assistant Mukhtiarkar Badin and the suit land stands entered in
the record of rights in the name of Muhammad Essa, the applicant on the basis of
registered sale deed.
The applicant / defendant in leading suit field his written statement
wherein he denied the averment of the plaint and stated that originally the
property of Hindu and after their migration to India the suit land was allotted to
respondent No. 6. The respondent No. 6 sold out the suit land to respondent No. 7
and was transferred in the name of respondent No. 7, the respondent No. 7 sold
out the suit land and handed over the possession to respondent No. 5 who is in
possession and cultivating the suit land. According to the applicant the respondent
No. 5 tried to occupy the suit land forcibly resulting an FIR against him and the
suit of respondent No. 5 is not maintainable in law and liable to be dismissed.
The respondent No. 7 in appeal filed written statement and denied the
averments of plaint and stated that he has sold out the suit land to the applicant.
The applicant / plaintiff in consolidated Suit No. 1/2003 in his plaint stated the
same facts as he has sated in his written statement in the leading suit.
The respondent No. 5 filed his statement in consolidated suit and stated
the same facts as stated by him in his plaint of leading F.C. Suit No. 72/2002, but
in his written statement stated that the suit is not maintainable under the law and
liable to be dismissed. The trial court settled as many as 14 issues. Parties led
their evidence. Thereafter the learned Senior Civil Judge Badin decided both the
suit vide judgment and decree dated 28.10.2004 thereby dismissing the leading
suit and decreeing the consolidated suit. The appellant preferred Civil Appeal No.
77/2004 against the said judgment and decree which was heard and decided vide

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judgment dated 26.3.2010 thereby remanding the suits to lower court for
production of documents mentioned din application under section 41 rule 27 read
with section 151 CPC which was allowed as the document s which ended to be
produced were very necessary and essential to adjudicate the mater on merits with
directions to lower court to take the documents in evidence and gave opportunities
to respondents to cross examine on the documents and then give findings afresh
on all the issues and then decide the matter. After receiving the judgment from the
appellate court the trial court examine plaintiff s witness Jhamandas Mukhtiar
Badin thereafter advocate for the appellant closed his side and on the basis of
evidence adduced before him the learned Senior Civil Judge dismissed the suits.
The appellants have challenged the findings of leaned lower court on
issues Nos. 1, 6, 10 and 12 to 14 in Appeal No. 143/2010 Ultimately the appellate
Court allowed the appeal of respondent No. 5 and set aside the judgment and
decree of trial Court and decreed the suit hence this revision.
I have heard learned counsel for the parties and have perused the record.

JUDGE

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