PROVINCE OF SINDH through Secretary to Government of Sindh Revenue Department, Karachi Versus MIAN GUL
ZULFIQAR AHMAD KHAN, J.--- This revision is filed against the concurrent findings of the Courts below.
2. The litigation between the parties commenced by filing of F.C. Suit No.35 of 2002 before Senior Civil Judge, Tando Allahyar where suit for rectification of sale deed under section 31 of the Specific Relief Act was filed by the plaintiff, claiming to have purchased the subject land bearing survey numbers 204/1 to 4 formed out of U.A. No.140 admeasuring 16-00 acres and survey No.203/1 to 4 admeasuring 18 acres situated in deh Bhatti Tapo Nasarpur Taluka Tando Allahyar from defendants Nos.1 to 4, who sold the said land to the plaintiffs at the rate of Rs.1,50,000-00 per acre through registered sale deed dated 30.4.1999 duly registered on 30.4.99 with the Sub-Registrars Tando Allahyar. It was also submitted that due to bona fide and mutual mistake, survey No.204/1 to 4 was not mentioned in the sale deed dated 30.4.1999 though the area of said survey number 204/1 to 6 admeasuring 16 acres has been mentioned in the said sale deed. A prayer was accordingly made through the said that the sale deed dated 30.04.1999 in respect of Survey No.204/1 to 4 be rectified instead of U.A. No.140.
3. Notices were issued when defendants Nos.1 to 4 extended no objection, however, defendant No.6 Sub-Registrar and defendant No.7 Province of Sindh were declared ex parte but objections were filed by defendant No.5, copy of which is available at Page No.61. These objections in material terms, provided as under:-
"The photocopy of certificate issued by Assistant Mukhtiarkar dated 24.04.1999, firstly being photocopy, not reliable for evidence and is not authentic one and Tapedar is not competent under the Land Revenue Act to issue such certificate, so also the suit land shown in the plaint is not shown in the sale certificate (being illegible, unclear and scored off) and weighs no value in the eye of law.
That, according to law if any change or of any mistake is required to be corrected in any already Registered Sale Deed the only course is to afresh corrigendum of Registered Sale Deed shall again be registered.
That, plaintiffs in some paras of his plaint are speaking that the Survey No.204/1 to 4 measuring 16-00 Acres, whereas same Survey No. admeasuring 16-00 Acres the question arises that what is the area of Survey No.204/5 and 6, this requires clarification/enquiry at the time of evidence/when the entire record will be produced by the revenue department.
That the suit is bad for non-joinder, mis-joinder of necessary parties as the plaintiff has not sued the head of departments viz Inspector General Stamp and Registration, (2) E.D.O. (Revenue), who has already disposed of the suit land.
The photocopy of registered sale deed (Not even Micro photocopy) attached with the plaint is neither certified copy nor attested copy thus the same cannot be treated as an authentic instrument in the eye of law.
That for the no objection of defendants Nos. 1 and 4 given to the application under Order XII, Rule 6, C.P.C. gives smell that the defendants Nos.1 to 4 are in collusion with the plaintiff and are attempting to succeed in getting the suit decreed in favour of the plaintiff without proper adjudication or matter by this honourable court.
That it is in the interest of justice to dismiss the application with compensatory cost".
4. Notwithstanding above statement from the defendant No.5, a judgment was rendered by the trial Court under Order XII, Rule 6, C.P.C. on an application made by the plaintiff. A review of the judgment of the trial Court shows that the Senior Civil Judge, Tando Allahyar while having declared defendants Nos.5 to 7 as ex parte has in fact acknowledged the above statement filed by defendant No.5, which is even available at Page No.61, however, it is astonishing to note that in this 03 paged judgment, there is no mention of these objections raised by defendant No.5 alleging the instant transaction was sham, in fact the said defendant No.5 requested for the dismissal of the suit.
Be that as it may, being aggrieved by the said judgment, the official defendants preferred an appeal, which was decided by the appellate Court of the 7th Additional District Judge, Hyderabad, vide judgment dated 24.11.2010. While making the point of determination being "Whether judgment dated 19-11-2003 and decree dated 02-12-2003 passed by trial Court requires any interference of this Court and trial Court while passing the same has committed any error, illegality or irregularity" a critical review of the said judgment, depicts that even the appellate Court failed to appreciate that objections were filed by the defendant No.5, which were not considered by the learned trial Court, however, trial Court proceeded with deciding the suit under Order XII, Rule 6, C.P.C. which order has been sadly maintained by the appellate Court.
5. Learned A.A.G. submits that in fact it was a sham transaction as the defendants had no right to sell the land in question, which was not even granted to them and the documents produced before the trial Court did not show that the defendants had any title to enter into the subject sale deed. Learned A.A.G also submitted that both the Courts below ignored the documentary evidence, brought on record by the defendant No.5, as well as the objections filed on the application moved under Order XII(6), C.P.C. Learned A.A.G further submitted that as per the settled rules, corrigendum is required to be registered for any correction/ mistake in the registered sale deed but the trial Court relied upon the certificate issued by Assistant Mukhtiarkar dated 28.04.1999, which being a Photostat copy could not have been accepted in the evidence being an unauthentic document. Even Tapedar was not competent to issue such a certificate. Learned counsel A.A.G. further contended that the Courts below have committed grave and patent illegality while passing the impugned judgments by ignoring oral as well as documentary evidence present on the record from the concerned Mukhtiarkar.
6. Learned counsel for respondents however, maintained that no objections were filed, which clearly appear contrary to the facts as objections are available at Page No.61, filed by defendant No.5 where serious allegations and reservations were made by the concerned Mukhtiarkar and it was prayed that the suit be dismissed.
7. Mukhtiarkar is present in person and files brief facts, which support the assertion made earlier before the trial Court.
8. In the given circumstances, it is a clear case where the trial Court has failed to appreciate the evidence and has committed gross illegality in passing the impugned judgment and decree in F.C. Suit No.35 of 2002 filed before Senior Civil Judge, Tando Allahyar. Which illegally was also maintained at the appellate forum through judgment in Civil Appeal No.365 of 2003. By allowing this revision, both the judgments and decrees of trial Court and appellate Court referred above are set aside.
The instant revision stands allowed of in the above terms.
SA/P-13/Sindh Revision allowed.