ABDUL REHMAN through L.Rs. Versus Haji MUHAMMAD YOUSAF through L.Rs.

RANA BHAGWANDAS, J.--- This judgment shall dispose of both the petitions directed against consolidated judgment of the Sindh High Court, dated 15-4-2005 allowing two civil revision applications filed by the respondents in consequence whereof judgment of the trial Court was restored and conflicting judgment recorded by Additional District Judge, Hyderabad was set aside.

2. Precisely stated facts of the case appear to be that respondent Haji Muhammad Yousuf filed a suit for possession and mesne profits against petitioner Abdul Rehman in relation to the suit-land claiming ownership by inheritance. As per plaint, he had leased out the suit-land for five years to petitioner Abdul Rehman from Rabi 1966-67 to Kharif 1971-72. Abdul Rehman had paid a sum of Rs.2,000 as lease money for two years. As per terms of lease deed, balance lease consideration was payable on 15-3-1967 and in the event of failure lease document was to be treated as cancelled automatically. While Abdul Rehman was put into possession of the land, balance lease money of Rs.3,000 was not paid by him. Nevertheless, he continued to remain in possession of land and enjoy its usufruct. It was the stance of the respondent that upto the expiry of lease in 1972, Abdul Rehman misappropriated three crops, hence the suit for possession and mesne profits and determination of accounts.

3. Petitioner Abdul Rehman contested the suit. He admitted ownership of Haji Muhammad Yousuf and lease of land in his favour. It was his stance that after the expiry of lease, lessor had offered to sell the suit-land to him for consideration of Rs.20,000, out of which Rs.5,000 was paid. An agreement of sale was duly executed between the parties. As Abdul Rehman was leaving for Saudi Arabia for a long stay, agreement of sale was obtained in the name of Muhammad Ismail son of Muhammad Ramzan as Benamidar. It was claimed that petitioner was put in possession of the land as prospective purchaser in part performance of the contract and he continued to remain in possession and enjoyment as owner. As per the sale agreement, dated 28-3-1970, vendor was required to obtain all clearance certificates from Revenue Department for effective finalization of the transaction but the former failed to do so.

4. During the pendency of the suit, Abdul Rehman filed first class Suit No.165 of 1976 for specific performance of contract against Haji Muhammad Yousuf on the averments as pleaded in the written statement. It was further averred that in November; 1973, Abdul Rehman asked Haji Muhammad Yousuf for execution of a registered conveyance deed but he kept him in false hopes. It was pleaded that in order to avoid specific performance of the contract Haji Muhammad Yousuf had filed Suit No.16 of 1974 for possession and mesne profits. It was further asserted that during the pendency of suit for possession, Haji Muhammad Yousuf had gifted away a portion of the suit-land to his two minor sons. This suit was contested by Haji Muhammad Yousuf for self and on behalf of his two minor sons. Execution of agreement of sale in favour of Abdul Rehman was stoutly denied. According to him he had entered into agreement of sale with defendant No.4 Muhammad Ismail but possession of the suit and was never handed over to him. By mutual understanding between the parties the agreement did not materialize and was rescinded long ago. It may be observed that Muhammad Ismail did not contest the suit and remained unconcerned.

5. Upon consolidation of both the suits as many as 10 issues were struck by the trial Court.

6. Both the parties adduced evidence in support of their respective contentions but neither Muhammad Ismail was examined by Abdul Rehman nor the power of attorney on the basis whereof petitioner claimed to have acquired title to the suit-land through this attorney was tendered in evidence. On assessment of evidence and the material on record, trial Court through its judgment, dated 30-4-1995 decreed the suit for possession and mesne profits in favour of Haji Muhammad Yousuf and dismissed the suit filed by Abdul Rehman. Petitioner filed two appeals before an Additional District Judge, who reversed the findings of the trial Court and dismissed the suit for possession and mesne profits while the suit for specific performance was decreed vide judgment, dated 28-7-1997.

7. After the death of Haji Muhammad Yousuf, his legal heirs filed two civil revision petitions before the High Court of Sindh, which have been allowed through the impugned judgment, hence this petition.

8. We have heard Mr. Muhammad Yousuf Leghari, learned Advocate Supreme Court for the petitioner at great length and with his assistance examined the relevant evidence on record.

9. Mr. Leghari contended that learned Additional District Judge had rightly and lawfully decreed the suit of the petitioner and dismissed the suit for possession and mesne profits filed by the respondent, thus, interference by the High Court, in the exercise of revisional jurisdiction, was uncalled for and not supported by record. Learned counsel submitted that the agreement of sale purportedly executed by Muhammad Ismail as attorney of respondent in favour of Abdul Rehman was executed way back in 1970, therefore, the provisions of Articles 76 and 77 of the Qanun-e-Shahadat, 1984 would not be attracted. He submitted that the provision with regard to examination of two attesting witnesses of the agreement would not be applicable to his case as the law of evidence cannot be applied retrospectively. Learned counsel when called upon as to why Muhammad Ismail was not produced and as to why any of the attesting witnesses as required by sections 67 and 68 of the Evidence Act, 1872 could not be examined in proof of the agreement because mere production of a copy of agreement would not be sufficient to prove its contents, he replied that Muhammad Ismail as well as attesting witnesses were dead. He is unable to point out any material and tangible evidence to prove the death of these star-witnesses, which was necessary in order to permit the recording of secondary evidence with regard to the proof of execution of agreement of sale. Unfortunately, the power of attorney relied upon by the petitioner in favour of Muhammad Ismail was also not brought on record and only a photocopy was placed on record, which, per se, would not be conclusive proof of the execution of power of attorney by Haji Muhammad Yousuf including the power to alienate the property on his behalf. In fact, it was imperative and incumbent upon the petitioner to prove the original power of attorney as well as its contents. In the absence of any evidence with regard to loss of such document, photocopy, even if taken on record and exhibited without any objection, would not qualify the document as admissible piece of evidence.

Assuming, without conceding, that there was an agreement of sale regarding the suit-land in favour of Abdul Rehman and that he had paid a part of consideration agreement of sale per se without delivery of possession by vendor would not create any right, title or interest in his favour.

10. On the other hand, ownership of Haji Muhammad Yousuf has been candidly admitted; lease in favour of Abdul Rehman for five years not disputed whereas the purported sale of the land in his favour by vendor was not proved to the satisfaction of the trial Court and the High Court. The submission that Appellate Court had decreed the suit in favour of the petitioner, which is entitled to some weight may be attractive but on close scrutiny of reasons recorded by Appellate Court in juxtaposition to the reasons recorded by the trial Court and the High Court, we are firmly of the view that judgment of learned Additional District Judge suffered from misreading of record and misconception of law while deciding material issues in favour of the petitioner.

11. On a close scrutiny of the record, we are of the considered opinion that concurrent findings of fact recorded by two Courts, including the High Court do not suffer from any inherent legal defect, impropriety, misreading of record, misconception of law or error of jurisdiction. No interference in the exercise of Constitutional jurisdiction is, thus, called for.

12. Resultantly, we find no ground for the grant of leave. Both the petitions are, therefore, dismissed and leave refused.

S.M.B./A-78/SC Petition dismissed.