MUHAMMAD And 2 Others vs Mst. BANUK NAZ KHATOON

1. Brief facts leading to present petition are that on 26-8-1980 respondent filed a suit against petitioners Nos.l and 2 before Deputy Commissioner Turbat, claiming possession of an area of land and trees situated in Nook Khushk, more particularly described as `Kaladar wala' (hereinafter referred as `Suit Property'). Aforesaid petitioner filed written statement on 27-12-1980 denying claim in suit. They maintained that property was purchased by them on 5-3-1987 from petitioner No-3 (Nawabzada Mir Abdul Ghafoor Gichki) against sale consideration of RsS0,000 (Rupees fifty thousand). Besides objection regarding deficiency of court- fee was also raised. During the pendency of proceedings, Deputy Commissioner Turbat by means of order dated 13-4-1981 directed impleadment of petitioner No.3 as party in the suit. Thus after service of notice petitioner No.3 also filed written statement on 14-3-1983 explaining that actually different area of land had been given to respondent therefore, claim concerning `suit property' was not justified. However case papers were forwarded to the Court of Qazi Turbat for adjudication as contemplated by law.

2. Record reflects that directions were made to respondent for making up the deficiency of court-fee.

3. Ultimately on account of respondent's failure to pay the requisite court-fee, learned Qazi Turbat dismissed the suit by means of judgment dated 27-1-1986. Respondent feeling aggrieved filed an Appeal No.65 of 1986 before Majlis-e--Shoora, Mekran Division which was accepted on 3-11-1986, whereby appellate Court on setting aside order 27-1-1986 remanded the case to trial Court for allowing respondent to make up deficiency and then to proceed on merits. It may be seen that on 19-1-1987 respondent deposited the court-fee stamp, and also filed amended plaint. Petitioners Nos.l and 2 submitted their joint written statement on 11-3-1987 challenging the maintainability of suit and entitlement of respondent to claim the `suit property'. Similarly on the same day petitioner No.3 filed written statement repudiating the claim in suit. Learned Qazi framed following issues and gave opportunity to the parties for leading evidence:- (1)Whether the suit is within time? O.P.

4. (2)Whether it is correct that 2 Hangam of land and water known as Bannuk Lucky situate in Korjo Nook Khushk had been given to the mother of the plaintiff in lieu of her dower? O.P.

5. (3)Whether the defendant No3 in lieu of the land Banuk Lucky given to mother of plaintiff in lieu of her dower had given the land known as Qalandar Wala along with the date trees to the plaintiff?

6. O.P.

7. (4)Whether the plaintiff was given land of Mauladad Wala in place of land Banuk Lucky whereon she cultivated for two years and land of Qalandar Wala was not given to her? O.D.

8. Plaintiff/respondent (Mst. Banuk) examined 4 witnesses (i) Adam, (ii) Murad , (iii) Roshan and (iv)

9. Mir Abdul Karim her attorney to substantiate the claim. Besides letter Ex.P/1-A written by petitioner Mir Abdul Ghafoor acknowledging the right of respondent was also duly proved. Whereas in rebuttal petitioners produced (i) Muhammad Usman and (ii) Ali apart from Ghulam Hyder attorney for petitioners 1 and 2, and petitioner No3 Mir Abdul Ghafoor. Learned Qazi on considering oral and documentary evidence dismissed the suit, on the point of limitation as well as merits vide judgment and decree dated 20-4-1988. Being dissatisfied, respondent on 11-6-1988 preferred an appeal No. 73/88 before Majlis-e-Shoora Mekran which was ultimately accepted by means of judgment dated 28-1-1989' whereby judgment of the trial Court was reversed and suit filed by respondent was decreed.

10. 2.Present petition now challenges last mentioned decree of the appellate Court It was mainly emphasised that appellate Court has mis-appreciated evidence and placed undue importance on the alleged acknowledgement which is apparently not admissible for want of registration. It may be noted that 'Nuk Khush' is vast area comprising of various pieces of land.

11. Whereas Korjo (water channel) 'Nuk Khushk' consists of 28 'Hangam' of water whereby aforementioned area of land is irrigated. In the instant case undoubtedly respondent owns two `Hangam' of water and is obviously entitled to proportionate share fn the land. The petitioners are merely disputing that respondent has no concern with portion of land which is known and styled as `Kalandar Wala'. Perusal of evidence shows that all the witnesses examined by respondent have categorically deposed that area of land styled as `Kalandar Wala' was given to respondent by petitioner No. 3 in lieu of her admitted share. Petitioner No. 3, in his testimony has unambiguously mentioned that he gave possession of land and water to respondent through Mir Abdul Karim therefore statement of Mir Abdul Karim attorney of respondent would be extremely relevant. Said witness has expressly stated that `two hangam' of water along with portion of land from Nuk Khushk which is styled as `Kalandar Wala' was handed over to him by petitioner No. 3 towards satisfaction of her share in property. It is pertinent to note that version of this witness regarding all material factual aspects remained unchallenged. Thus area of land belonging to petitioner was clearly identified.

12. Additionally petitioner I Mir Abdul Ghafoor has admitted execution of letter Ex.P/1-A which further , supplements the stand of respondent concerning legal right over land known as `Kalandar Wala'.

13. Learned counsel for petitioner attempted to argue that document Ex. P/1-A tends to create right in respect of immovable property of huge value, therefore, it is inadmissible by virtue of section 17 of Registration Act. I am afraid, contention in this behalf does not have sanction of law. Evidently letter Ex. P/1-A merely re-affirms and acknowledges existing valid right to property of the respondent.

14. Obviously this document neither creates nor operates to confer new right in respect of `suit land'. It merely confirms and ratifies the factual position. In the circumstances objection regarding non- registration of Ex.P/1-A is misconceived. Besides petitioner by his conduct is estopped from taking any somersault from the stand already taken by him. Furthermore this fact is not even contradicted by him in the statement recorded in the trial Court. Additionally, validity and correctness of Ex.P/1-A has not been challenged by any of the petitioners either during cross- examination or through evidence m rebuttal. Whereas Ex.D/1 alleged deed for purchase of land by petitioner does not specifically mention the area of land. This document admittedly is not registered. However cummulative effect of all relevant circumstances including oral as well as documentary evidence has been appropriately assessed and evaluated by learned Majlis-e- Shoora. Learned counsel for petitioner laboured hard to canvass II that, in any case petitioners Nos.l and 2 being bona fide purchasers were entitled to protection under section 41 of Transfer of Property Act. Suffice it to mention that at the time of alleged purchase, the piece of land known as 'Kalandar Wala' did not vest in, or belong to petitioner No.3, therefore any transaction in that behalf by him would be void. Accordingly plea of bona fide purchaser would not be available in this matter. Moreover, evidence led by petitioners does not prove that factually land of `Kalandar Wala' was purchased by petitioners 1 and 2, 1 Therefore on the available record conclusions arrived by Majlis-e-Shoora are--quite proper and convincing. No error of law or procedure has been pointed out m the impugned judgment and decree of the appellate Court, which could justify interference by this Court in exercise of revisional jurisdiction. Factually, on independent appraisement of evidence adduced by parties I am inclined to endorse conclusions arrived at by learned Majlis-e- Shoora. When reasonings arrived at by appellate Court are sound and plausible even otherwise normally interference in the appellate judgment is not warranted. For authority reference may be made to the case of (i) Madam Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 Supreme Court 617), and (ii) Abdul Jabbar v. Muhammad Latif and others (1986 CLC 603). Inherent justice has been done in the instant case. Mere procedural errors, or hyper-technical defects or casuistic and delicate arguments, would not entail interference by way of discretionary relief within the pur view of section 115 C.P. C. In this behalf observations of reported judgments of (i) Fazal v.

15. Abdul Hussain and 6 others (PLD 1977 Karachi 772) and Mansur Molla v. Shaik Abdul Motleb and others (PLD 1966 Dacca 105) are followed.

16. For the foregoing reasons I do not find any merit in the petition which is ~ accordingly directed to be dismissed. Parties are left to bear their own costs.