MUHAMMAD ASLAM vs Mst. FEROZI and others

ORDER

JAVED IQBAL, J.---This petition for leave to appeal is directed against judgment dated 25-10-2000 of the Lahore High Court, Multan Bench, Multan, whereby the R.S.A. Preferred on behalf of Mst. Ferozi (respondent herein) has been accepted and the judgment/decree passed by the learned trial and Appellate Courts were set aside.

2. Briefly the facts of the case as enumerated in the impugned judgment are to the effect that "land measuring 280 Kanals, 1 Marla situated in revenue estate of Chak No,133/16-L, Tehsil and District Khanewal belonged to Provincial Government and was allotted to one Malla as "Dakheel Kar" on 19- 3-1945. Mst. Ferozi was transferee of 1/2 share of that land, but so far the proprietary rights have not been conferred on her. Petitioner filed a suit for possession of 40 Kanals, 4-1/2 Marlas against Mst.

Ferozi claiming that she out of her total land measuring 140 Kanals, 1 Marla agreed to sell to him on 14-12-1959 for a consideration of Rs,5,000 and out of the total consideration Rs,4,800 were received by her at the time of execution of sale agreement, the remaining amount of Rs,200 was agreed to be paid at the time of registration of sale-deed or attestation of mutation. It was also claimed in the suit that the possession of the land was handed over to him. The alleged agreement was registered on 23-2-1960. It was also claimed that Rs,200 were also received by the respondent.

Claim of petitioner was that he fulfilled all the terms of the contract, therefore, was entitled for the possession of the land. The suit was contested by respondent on the ground that the land was occupied by Rehmat Ali and Fazal Elahi as tenants; they failed to pay the share of produce on which ejectment petition was filed against them. They were ordered to be ejected and during the execution proceedings petitioner Muhammad Aslam son of Fazal Elahi filed a declaratory suit for declaration on 3-5-1961, but the same was dismissed on 30-5-1964. Meanwhile, petitioner in collusion with his father Fazal Elahi assumed the possession and resisted the execution of warrants and litigation up to the level of Board of Revenue, but failed. The final order of M.B.R. Dated 10-7- 1969 was against him. Finally he was ejected from the land. Thereafter, he filed the present suit for possession on 29-9-1969, which was decreed by the learned Civil Judge, 1st Class, Khanewal, on 25-9-1974. Being aggrieved an appeal was preferred by the respondent which was also dismissed by the learned Additional District Judge vide judgment/decree dated 30-4-1977. As a last resort R.S.A. Was filed by Mst. Ferozi respondent which has been accepted vide impugned judgment.

3. We have heard at length the arguments of Syed Murtaza Ali Zaidi, learned Advocate Supreme Court on behalf of the petitioner. We have gone through the entire record and perused the judgments/decrees passed by learned trial and Appellate Courts as well as the impugned judgment.

4. We are not persuaded to agree with the prime contention as raised by learned counsel for the petitioner that the concurrent findings could not have been reversed in R.S.A. By the learned High Court for the simple reason that the concurrent findings cannot be considered as sacrosanct and High Court was competent to interfere if such findings were based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous presumption of facts and consideration of inadmissible evidence. It appears from the scrutiny of record that petitioner has made various futile attempts to frustrate the order of Assistant Collector whereby Rehman Ali and Fazal Elahi were ejected from the land of Mst. Ferozi respondent No,1 on account of their failure to pay rent. The conduct of the petitioner demonstrates propensity to prolong litigation and agony of the respondent who emerged at the scene when the tenants of Mst. Ferozi were evicted and succeeded in getting the execution of warrant postponed on the basis of stay order but ultimately his suit was dismissed. This was not the end of episode and once again the petitioner got stay order by filing objection petition. This can be quoted as a classic example of frivolous litigation. He was declared as trespasser by the forums available under the hierarchy of Revenue Laws and he could not succeed up to the forum of Member, Board of Revenue, who dismissed his revision petition by means of order dated 10-7-1969. The ordeal and misery of Mst. Ferozi remained continued and petitioner filed the present suit on the pretext that the land in question was purchased in lieu of Rs,5,000 and an amount of Rs,4,800 was paid as sale consideration. According to him sale agreement was also registered on 23-2-1960 and possession was handed over to him and in consequence whereof the exclusive ownership of the land in question devolved upon him.

The suit was decreed by the learned Civil Judge vide judgment/decree dated 25-9-1974 which was maintained by the learned District Judge vide judgment/decree dated 30-4-1977. A careful and conscious perusal of the said judgments/decrees would reveal that various pertinent questions having substantial bearing on the case were never considered properly and with diligent application of mind such as the question of limitation, locus standi of the petitioner for filing such suit, maintainability of the suit, nonjoinder/misjoinder of necessary parties and the implication of section 19(a) of the Colonization of Government Lands Act and absence of mutation. Besides that how the agreement of sale can be considered as a document of title and moreso, if the petitioner was agreed he should have filed suit for specific performance to get the agreement in force allegedly executed between the parties. It is also not understandable as to how a suit for possession had been filed without seeking declaration in respect of title. The petitioner also failed to substantiate the factum of registration of sale agreement which was the only document around which his entire case revolves and the report of handwriting expert also negates his version. It is worth mentioning that the suit was hopelessly time-barred in view of the provisions as contained in Article 113 of the Limitation Act, 1908, which aspect of the matter escaped notice and resulted not only in miscarriage of justice but in testified the sufferings of Mst. Ferozi by exploiting the law and distorting the factual position. The petitioner has absolutely no case on merit and accordingly the petition being devoid of merit is dismissed and impugned judgment is upheld.