LIAQAT ALI alias KHABAR vs HABIBULLAH arts — 2022 CLC 1583 KARACHI-HIGH-COURT-SINDH

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LIAQAT ALI alias KHABAR VS HABIBULLAH arts.79 &100---Sindh Land Revenue act (XVII of 1967), Ss. 42 & 52---Civil Procedure Code (V of 1908), S. 9---Sale deed, genuineness of---alleged mortgaged deed, proof of---Petitioners filed Suit for declaration, cancellation of mutation entry and injunction, claiming the cause of action as the respondents made an attempt to takeover the possession alleging themselves owners and that some mutation had been recorded in their favour---Respondents after filing written statement in petitioners' suit, filed separate suit for cancellation, possession and mesne profits claiming that the cause of action was firstly accrued when suit land was forcibly occupied by the grand-father of the applicants 10 years back on account of mortgage of the same by the father of the respondents; secondly on refusal to accept payment of the mortgage amount; and finally, when petitioners filed civil suit on basis of allegedly forged sale deed---Both the suits were consolidated by Trial Court at early stage---Respondent's case was concurrently decreed and that of petitioners was concurrently dismissed---Petitioners contended that insofar as the respondents' suit was concerned, issue of limitation ought to have been decided as a specific objection was raised to the effect that the suit was filed after 48 years of execution of the sale deed, which remained unchallenged throughout; that the respondents in order to overcome such objection of limitation had raised a plea that purportedly some mortgage was created in favour of the petitioner, but again no such issue was decided; that the applicants were in possession of a registered sale deed duly executed by the grand-father of the respondents in favour of the grandfather of the Petitioners; that they took advantage of Revenue authorities' failure to record the sale of the property in question in the revenue records and got foti khata badal in their names; that petitioners had always been in possession; and that respondents filed their suit only after the summons were issued in the petitioner' suit---Respondents contended that the sale deed in question was never produced in original; that no attesting witnesses were examined; that the revenue record/foti khata badal was in favour of the respondents; that admittedly, the property was owned by the grand-father of the respondents and was mortgaged by the father of respondents; that the respondents' suit was within time as it was only for declaration, mesne profits and possession---Both the Courts below were required to first determine the question of mortgage and issue of limitation---Respondents failed to prove existence of any mortgage; rather contradictory evidence was led on their behalf, which created serious doubts as to their contention---Respondents stated in their plaint that there was an oral mortgage agreement of Rs.5,000/- and on that basis the property was given in the possession of the petitioners by the father of the respondents, hence, it was incumbent upon the petitioners to prove such oral claim of mortgage with confidence inspiring evidence---No mortgage agreement was brought on record and therefore, the presumption would be that it was an oral agreement, but then the same was required to be proved through cogent evidence---One of the respondents' witnesses had stated that there was a written agreement of mortgage---Respondents had to establish their claim of petitioners' possession on the basis of some mortgage---Official witness/Sub-Registrar was not summoned as a Court Witness but as a witness of respondents---Sub-Registrar admitted that the sale deed was executed as per his record and that predecessors of both parties appeared and their left thumb impressions were also obtained on the original sale deed---Sub-Registrar brought the original register, wherein the sale deed was registered---Sale deed in favour of petitioners was a registered document and they were in possession of the suit land on the basis thereof, therefore, non-examination of its attesting witnesses was not fatal---Respondents pleaded the said oral mortgage agreement by their father which the father himself had never agitated in his lifetime---Respondents' suit appeared to be hopelessly time barred as to seeking cancellation of the sale deed---Petitioner's/predecessor thereof could not be held at fault as it was the responsibility of the officials to correct entry in their record---Revision petitions were allowed accordingly.

LIAQAT ALI alias KHABAR vs HABIBULLAH arts — 2022 CLC 1583 KARACHI-HIGH-COURT-SINDH

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