2025 CLS 6

Other citations: 2025 CLC 47

[High Court (AJ&K)]

Before Chaudhary Khalid Rasheed, J

Rasheeda Begum and others—Appellants

versus

Rauf Subhani and others—Resondents

Civil Appeals Nos. 370 and 371 of 2019, decided on 18^th October, 2024.

HEADNOTES

Hafiz Fazal-ur-Rehman Dar for appellants.

Chaudhry Khurram Manzoor for respondents.

Date of hearing: 15^th October, 2024.

JUDGMENT

Chaudhary Khalid Rasheed, J:—The captioned appeals filed against the judgments and decrees recorded by the learned District Judge Bhimber dated 26.6.2019, whereby, appeals filed by appellant herein have been dismissed, raise common questions of facts and law and arise out of common judgment and decrees, hence were heard together and are decided through this single judgment.

Brief facts forming background of the instant appeals are, Kifayat Ali Khan predecessor of appellants herein filed a suit for declaration, cancellation of mutation No.416, gift deed dated 17.07.2002 and sale deed dated 27.02.2012 along with perpetual injunction against Mst. Hazoor Begum and others, wherein it was pleaded that suit land was purchased by plaintiff on 25.05.1963 for the consideration of Rs.100/- from the father of defendants Nos.1 and 2 and the possession was handed over to him. It was further stated that receipt regarding the sale was written by Nambardar and the entry was also made in column No.9 of the revenue record, thus the suit land is in the ownership and possession of plaintiff and defendants have no concern with the land whatsoever, thus mutation No.416, gift deed dated 17.07.2002 and sale deed dated 27.02.2012 are liable to be cancelled.

Defendants Nos.1 to 3 and 5 contested the suit by filing written statement wherein claim of plaintiff was refuted and it was pleaded that father of defendants Nos.1 and 2 never sold land to the plaintiff and the receipt relied upon by the plaintiff is fake and fraudulent.

Rauf Subhani, respondent herein also filed a suit for possession against Kifayat Khan predecessor of appellants herein in the same Court wherein it was pleaded that he is the owner of the land and defendant has forcibly occupied the same, thus the suit may be decreed. This suit was contested by defendants.

The learned trial Court consolidated both the suits, framed issues in the light of pleadings of the parties, provided them opportunity to lead evidence and after hearing arguments the learned trial Court dismissed the suit filed by Kifayat Ali Khan for want of proof and being barred by limitation whereas decreed the counter suit filed by Rauf Subhani vide judgment and decree dated 27.04.2018. Feeling aggrieved, appellant herein preferred two separate appeals before District Judge Bhimber. The learned District Judge Bhimber concurred with the findings of the trial Court and dismissed both the appeals vide its impugned judgment and decrees dated 25.06.2019, hence the captioned appeals.

The learned counsel for the appellants has filed written arguments which are made part of the file, hence need not to be reiterated for the sake of brevity.

The learned counsel for the respondents supported the impugned judgment and decrees on all counts and prayed for the dismissal of the instant appeals.

I have heard the learned counsel for respondents, considered written arguments filed by learned counsel for appellants, gone through the record of the case with utmost care and caution.

In view of the pleadings of the parties and arguments the question required to be resolved is as to whether the land was purchased by Kifayat Ali Khan, predecessor of appellants from father of defendants Nos.1 and 2 or the suit land is in the ownership of counter plaintiff? The plaintiff Kifayat Ali Khan based his claim on a receipt Exh.PA. A perusal of Exh.PA reveals that description of property is not mentioned in the same that which of the land has been sold through the said receipt. It was enjoined upon the plaintiff to produce the marginal witnesses of the receipt in order to prove the same under Article 79 of the Qanun-e-Shahadat Order, 1984 or to mention the reasons that why the marginal witnesses of the receipt are unable for recording their statements and if the marginal witnesses had died, it was necessary to brought on record the proof of their death or non-availability for recording their statements but plaintiff neither produced marginal witnesses of receipt nor mentioned any reason for their non-availability. The plaintiff also failed to produce the writer of the receipt, thus the Courts below were justified to observe that plaintiff has miserably failed to prove the execution of the document Exh.PA. The witnesses produced by the plaintiff failed to depose that receipt Exh.PA was written in their presence, thus, they are hearsay witnesses who cannot be relied upon.

It is also relevant to mention that Exh.PA relied upon by the plaintiff reveals that the whole consideration amount was paid and the possession was handed over to the vendee and nothing was to be done in future, thus the same can be considered at the most as a defective sale which does not create any right, moreover even if it was an agreement to sell a declaration cannot be granted. It was also enjoined upon the plaintiff to get the sale deed from the vendor because under section 17(2) (v) of the Registration Act, any document having the value of 100 rupees and upwards to or in immovable property is compulsory to be registered. For ready reference section 17(2) (v) is reproduced as under:

“(v) any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or”

Thus Exh. PA being violative of Registration Act can also not be relied upon.

The Courts below were also justified to observe that the suit filed by plaintiff/appellant was time barred because the receipt has been written on 25.05.1963, whereas the plaintiff filed the suit in the year 2012 and failed to explain plausible cause for filing the suit with such delay of about fifty years.

As far as the suit filed by Rauf Subhani for possession of the land is concerned, since the plaintiff Kifayat Khan failed to prove the receipt Exh.PA and mutation No.416, gift deed dated 17.07.2002 and sale deed dated 27.02.2012 are maintained, thus the ownership of plaintiff Rauf Subhani is established and in the revenue record, Kifayat Ali Khan is entered as possessor as Ghair Moroosi who has not challenged the entries in the revenue record, so the Courts below were justified to decree the suit filed by respondent herein.

It is also pertinent to mention that Rauf Subhani has claimed possession of the suit land on the basis of ownership and a suit for possession on the basis of ownership can be filed at any time, thus no limitation runs against plaintiff/respondent, hence the judgments and decrees recorded by the Courts below are liable to be maintained.

Furthermore, the question whether the plaintiff Kifayat Khan now survived by appellants herein is the owner of land or whether the suit land is in the ownership of Rauf Subhani, is a pure question of facts and both the Courts below have concurrently decided the same, thus the concurrent findings of facts cannot be disturbed in second appeal unless some flagrant misreading, non-reading of evidence or violation of any settled law is pointed out. The learned counsel for the appellants has failed to point out any misreading, non-reading of evidence or any apparent violation of any settled law by the Courts below while passing the impugned concurrent judgments, thus the impugned judgment and decrees deserve to be maintained. Reliance in this regard may be placed on 2022 SCR 416, wherein the Supreme Court of Azad Jammu and Kashmir at page 428 observed as under:-

“The principle is that ordinarily the second appellate Court, such as this Court, would not interfere with the findings of fact recorded by the trial Court and confirmed by the first appellate Court. Second appellate Court under section 100, C.P.C., would overturn such findings and conclusions only in exceptional cases. The circumstances under which such intervention may legally be permissible or justifiable if it was established with absolute clearness that some oversight or error resulting in a miscarriage of justice was apparent in the way in which the Courts below had dealt with the facts, it must be established that Courts below clearly erred in the presence of a crucial documentary evidence or the principle of evidence had not properly been applied or the findings was so based on erroneous proposition of law that if that proposition be corrected, the finding will become meaningless and finally, it must be demonstrated that the judgments of both the Courts below were clearly wrong.”

As no misreading, non-reading of evidence or violation of any settled precept of law has been established by the appellants hence, in view of bedrock maxim of law second appeal is not maintainable except on any of the grounds mentioned in Section 100, C.P.C.

The sum and substance of the above discussion is, finding no essence the instant appeals are hereby sacked.

Appeals dismissed