' SYED MANZOOR HUSSAIN GILANI, J.---This appeal, with leave of the Court, is filed against the judgment and decree passed by a learned Single Judge of the High Court at Mirpur on 25-6-2004 in Civil Appeal No.105 of 2003.
2. The facts giving rise to the filing of present appeal, are that a gift-deed was executed on 29-8- 2000 by Muhammad Hussain through his attorney in favour of appellants, on the basis of which Mutation No.417 was also attested in the Revenue Record. The land measuring 3 Kanals, 18 Marlas comprising number Khasra 1745 and 2 Kanals, 14 Marlas comprising number Khasra 1553, was transferred through the gift-deed. It was challenged on the ground that the land transferred through gift-deed was in excess of the share of donor and fell in the specific number Khasras of superior quality which was not partitioned between the parties. The suit was decreed by the Civil Judge on 29-4-2003. The appeal filed against the judgment and decree before the Additional District Judge, Dudyal was dismissed on 14-10-2003. A learned Judge of the High Court reversed the findings of the Courts below by decreeing the suit in favour of the plaintiff-respondents, however, holding that the gift-deed shall remain intact to the extent of share of donor Muhammad Hussain.
3. Ch. Muhammad Sabir, the learned Advocate appearing on behalf of the appellants, contended that donor was in possession of the suit-land by way of family partition. According to him the land in dispute falls in Khewat No.138 and Khata No. 650/606. He contended that Khewat No.138 comprises of 330 Kanals, 9 Marlas of land and share of each of the brothers in the Khewat is 55 Kanals, 1 Marla, out of which only 6 Kanals, 12 Marlas land has been transferred through gift-deed.
He further contended that the share of donor even in Khata of the land, is 7 Kanals, 17 Marlas.
Referring to the statements of witnesses produced on behalf of both the parties before the trial Court, he contended that land in dispute was in possession of the donor at the time of gift-deed and before that. According to him, the High Court has disturbed the concurrent finding of facts recorded by two Courts below on misperception of facts and law. He further contended that the copy of `Khasra Girdawari'. Which is attacked most by the learned Judge of the High Court, as far as the entry of possession of donor in it in the column of possession on "Khat-e-Chaleepa" is concerned, it is made by Girdawar, who is the immediate supervisor of the Patwari and he had the authority to make such entries. According to him the learned Judge in the High Court has misperceived rule 40 of the West Pakistan Land Revenue Rules, 1968, by holding `Dhal Bach' is equal to `Girdawari' in Azad Jammu and Kashmir. He contended that these are two different connotations. The learned Advocate placed reliance upon the following authorities in support of his contentions:--
(1) Muhammad Aslarn v. Khuda Dad 1982 SCMR 511; (2) Mustafa Khan and 3 others v. Muhammad Khan and another PLD 1978 SC (AJ&K) 75; (3) Muhammad Afzal Khan and another v. Muhammad Latif and another 1995 CLC 1951 and (4) Muhammad Shafi and 2 others v. Mst. Walayat Begum PLD 1987 Azad J&K 85.
4. On the other hand, Sardar Muhammad Azam Khan, the learned Advocate appearing on behalf of the respondents, defended the impugned judgment by contending that the Revenue Record placed on the file of the trial Court unambiguously depicts that land in dispute was in joint possession of all the brothers, not in the exclusive possession of the donor. According to him, the entry of exclusive possession of donor is made by Patwari after the `Girdawari' was prepared and it was made without authority, as any alteration in `Girdawari' can be made through mutation under the orders of competent Revenue Authority not below the rank of Assistant Collector. He contended that land was admittedly in possession of all the co-sharers and it could not be transferred through gift-deed. He also contended that as far the Khas Girdawari' in which the possession of donor is exclusively entered, it appears fabricated and no reliance can be placed on it. Similarly, according to the learned Advocate, the contention of family partition by the appellants is also not tenable, as it does not confer any legal right. He in support of his contentions placed reliance upon the following authorities:--
(1) Mustafa Khan and 3 others v. Muhammad Khan and another PLD 1978 SC (AJ&K) 75; (2)
Muhammad Ibrahim v. Muhammad Sharif and 7 others 1980 CLC 296 and (3) Rehmat and 8 others v. Muhammad Suleman and 29 others 2001 MLD 364.
5. We have perused the record referred by the learned Advocates for the parties and relied upon by the learned Judge of the High Court in reversing the concurrent finding of facts recorded by the Courts below. We have also gone through the case-law cited by the learned Advocates for the parties and the Land Revenue Rules, relied upon by the learned Advocate for the appellants.
6. A perusal of the record reveals that the land falling in the disputed number Khasras is entered in possession of Ghulam Hussain, Muhammad Hussain and Fazal Hussain, who are real brothers.
Muhammad Hussain is the donor, while Fazal Hussain has challenged the validity of the gift-deed.
In view of the consistent entries of joint possession over the disputed land in the Revenue Record, we have gone through the statements of witnesses recorded by the trial Court. Keeping in mind the contention of the appellants that land in dispute is in their possession on account of Family (sic)
Land Revenue Act, we have seen the case from that perspective as well. The plaintiff-respondent, Fazal Hussain, has produced Muhammad Shaukat Patwari, Zubair Hussain son of Kala Khan and Muhammad Arif son of Noor Hassan, his attorney as witnesses on his behalf. Muhammad Shoukat Patwari has testified the copies of Revenue Record i.e. `Jamabandi' Exhibits 'PA', `PB' and 'PC', `Misl- e-Haqiat' Exhibit `PD', `Khasra Girdwari Exhibit 'PE', and another Khasra Girdawari Exhibit 'PE', during the course of his statement. However in his cross-examination he has admitted difference of entries in the original record and the record exhibited before the Court. Be that as it may, the record produced before the Court reveals that all the three brothers are in joint possession of disputed number Khasras. Zubair Hussain witness has stated that defendant-appellants, have sown wheat in the disputed land and it comprises of four fields which are adjacent to each other and in one of the field, a boundary wall and a room is constructed by Mushtaq Hussain. He has also admitted that the land in dispute is in possession of defendant-appellants. He has further stated that Muhammad Hussain (donor) and Fazal Hussain, plaintiff-respondent, are living in separate houses since long. He has also stated that the land is of good kind and is situated on the road side.
Muhammad Arif, the attorney of the plaintiff-respondents has admitted that he is brother-in-law of Muhammad Hussain plaintiff, and two of his sons are married to his daughters. He has also admitted that all the three brothers are living in their separate houses. He has further stated that boundary wall is constructed around the disputed land and a room is also constructed therein by defendant-appellants. He has further admitted that Muhammad Hussain was in possession of the land which is transferred by him to his son and grandsons and now it is in their possession.
However, he has denied any private partition.
7. Above statements of the witnesses of plaintiff-respondents lend support to the case of appellants that the land in dispute was in possession of the donor at the time of execution of gift- deed. It also lends support to the contention of the appellants that some arrangement has taken place between share-holders called as private partition of the land, in consequence of which all the witnesses appearing on behalf of plaintiff-respondents had admitted that all the brothers are living separately in their own houses and the land in dispute was in the possession of Muhammad Hussain donor.
8. The defendant-appellants have produced Nazakat Hussain son of Muhammad Hussain, Muhammad Bashir son of Imam Din, attorney of appellants, and Iftikhar Hussain Patwari as witnesses on their behalf. Nazakat Hussain has unequivocally supported the defendant-appellants in stating that land in dispute was in the possession of Muhammad Hussain when transferred and now it is in the possession of appellants, the donees. He has also stated that a private partition has taken place between them. Noting substantial could be extracted from this witness in spite of lengthy cross-examination. The cross-examination in fact revolves around the execution of gift- deed and location of land in dispute. He has stated details of the land and gift-deed executed in favour of donees and the suit-land. He has denied the suggestions that the land is of good quality and is situated around the road. Similar is the statement of Muhammad Bashir, the attorney of appellants. He has also stated that the land was partitioned amongst brothers by their father and it is in the possession of Muhammad Hussain since long.- He is the marginal witness of the gift-deed as well, which is Exh. D.C. He has reinforced his statement during the cross-examination and has given details of the location and the surrounding of disputed land. The Patwari witness, Iftikhar Hussain has exhibited copies of lthasra Girdwari' and `Jamabandi' during his statement before the C Court.
9. When the oral evidence produced on behalf of the parties is seen in the light of Revenue Record, the preponderance of probability goes in favour of the appellants and it stands proved that land was in possession of Muhammad Hussain before the time of the execution of gift-deed, and now in possession of the donees. It is also proved from the statements of witnesses from both sides that a private partition has in fact taken place between the brothers, which was affected by their father and each of them is in possession of his share. It may also be placed on record that the gift-deed is called in question by one of the brothers only, Fazal Hussain, not by the other, Ghulam Hussain.
This also lends support to the case of the appellants.
10. As far the contention of learned Advocate for the respondents regarding the validity of entry of donor's possession after `Khat-e-Chaleepa' in `Khasra Girdawari' is concerned, it becomes immaterial when the oral statements of all the witnesses support the case of defendant- appellants and same get support from the entries in the Revenue Record, where possession of donor, Muhammad Hussain is otherwise entered along with his brothers. However, we do agree that once the `Girdawari' is closed, the entries therein can be made in accordance with due process of law under the orders of a competent Revenue Officer not otherwise, but the case in hand does not depend upon the Ithat-e-Chaleepa' or otherwise. Even seen from that perspective, the entries of exclusive possession of Muhammad Hussain, with respect to the disputed land after `IChat-e-Chaleepa' is made by the Girdawar of the area who is entrusted with the supervisory work of the Patwari. In the case reported as Muhammad Aslam v. Khudadad 1982 SCMR 511, the Supreme Court approved the action of Girdawar supplying omission by noting change in possession while inspecting the crops and supervisory work of Patwari. The Girdawar in the cited case had entered the possession of the vendee, under the sale after it was closed by Patwari.
11. It is the common practice in the villages that all the co-sharers are often entered in joint possession of the land, unless a regular partition is ordered by the competent Revenue Officer and a mutation on the basis of that partition is entered in the Revenue Record although family settlement is otherwise. The case in hand is otherwise of a unique character where all the brothers are living in England, but are entered in joint possession of the land in dispute. Same is discussed by the learned Judge of the High Court in favour of respondents, that if Muhammad Hussain was living in England, how could he be in possession of the land in dispute? Believing it so, the plaintiff- respondent is equally living in England, how could his possession be entered, if it is so strictly scrutinized? In the present case all the brothers are living in England and did not have any dispute before the transfer of this land, but were entered in joint possession of the land.
12. Viewing the case from another angle, each of the brothers, as admitted by the learned Advocates for the parties, is the owner of 55 Kanals, 1 Marla of land in Khewat No.134 and 7 Kanals, 7 Marlas in the Khata, in which the disputed number Khasras fall. The disputed land is only 6 Kanals, 12 Marlas which is well within the share of the donor. A co-sharer in possession of the specific field number can validly transfer such land even though his share in such specific field number exceeds his share, provided it does not exceed his over all entitlement of share in the whole land. However, the transferor's right is subject to the adjustment on partition but the transfer cannot be held illegal simply for the reason that the transferor has transferred more than his share in the specific number Khasra. This view finds support from the cases reported as Mustafa Khan and 3 others v.
Muhammad Khan and another PLD 1978 SC (AJ&K) 75 and Muhammad Afzal Khan v. Muhammad Latif and another 1995 CLC 1951. We may also refer the cases reported as Syed Jamal Shah v. Abdul Qadir Shah and others PLD 1955 Pesh. 26; Muhammad Muzaffar Khan v. Muhammad Yousaf Khan PLD 1959 SC 9.
13. As far the factum of private partition is concerned, as observed somewhere above, it is not the partition effected by the Revenue Authorities under the Land Revenue Act, but that does not mean that the arrangement, as relied upon by the parties is illegal or has not taken place when the evidence on record oral or documentary, lends support to it. The property even then remains joint even if ownership thereof changes hands through transfers but it is subject to final partition and adjustment by metes and bounds when so ordered by the competent Revenue Authority. Although the case of the plaintiff-respondents is negated by the evidence on record that the land in dispute is situated around the road and is of best quality, but assuming it so, this is subject to final partition by the competent Revenue Authority and it can be adjusted, if it is so found.
14. However an owner in possession of the land cannot be said to have acted illegally while transferring the same from his over all share in Khewat. It is held in a case reported as Muhammad Ibrahim v. Muhammad Sharif and 7 others 1980 CLC 296, that possession on a piece of land jointly owned does not ipso facto prove private partition, but when one of the co-sharers, claiming possession of the land on the basis of private partition, to complete exclusion of other co-sharers and such claim finds support from record, a person keeping such land shall be considered to be ostensible owner of the land in his possession.
15. Another important legal aspect of the case is that two Courts below, i.e. The trial Court as well as the first Appellate Court, had come to the concurrent conclusion on validity of the gift-deed and possessions of the donor, which was supported by the record and the statements of the witnesses.
No misreading or non-reading of the record is pointed out, hence it was not open to the High Court to upset such findings in second appeal. It is held in Muhammad Ibrahim's case, hereinbefore referred, as follows:--- "Before parting with the case, there is another more important aspect which needs attention. The trial Court as well as the first Appellate Court gave' concurrent finding that the land stood partitioned and for that account fell in possession of the appellant. Could this concurrent finding of fact legally be disturbed in second appeal. The legal position in our view does not admit of any doubt that a concurrent finding of fact reached by the lower Courts cannot be disturbed by the High Court in second appeal even if it disagrees with the finding on its own view and even if Courts may appear to be grossly erroneous unless as laid down in subsection (c) of section 100, C.P.C., the error or defect discovered is of a substantial character occasioning an error or defect in the decision of the case upon its merits. A finding on a question of fact is only open to attack as erroneous if this is not supported in evidence, but where there is evidence to consider the decision of the Courts it is final even though the Court might not on the materials have come to the same conclusion if it had the power to substitute its own judgment. In the instant case, the finding of the Court of first instance as well as the first Appellate Court is based on convincing evidence and in our view, the High Court fell in error to disturb the concurrent finding of fact. To the same effect is PLD 1969 SC 617 and PLD 1957 SC (Ind.) 188."
16. In view of above, the appeal is accepted with costs. The judgment impugned before the Court is set aside and the judgment passed by the Additional District Judge, Dudyal on 14-10-2003 is restored.
17. There is also an application for bringing on record the additional evidence. As the main appeal has been decided in the above stated manner, therefore, the application filed by the appellants for additional evidence does not require any decision, which is consigned to the record.