1. SARDAR MUHAMMAD NAWAZ KHAN, J.---This appeal arises out of the following facts:-- Muhammad Azam and others appellants herein filed a declaratory suit with prayer for joint possession against Mst. Janat Bi and others in the Court of Civil Judge Sansa on 5-1-2000. The defendants except Mst. Janat Bi were proceeded ex parte. Mst. Janat Bi resisted the suit through her written statement consequently, relevant issues were framed. The parties lead their evidence in favour of their respective claims. The trial Court, after hearing the parties, allowed the suit in favour of appellants Muhammad Azam and others. Mst. Janat Bi feeling aggrieved by the judgment and decree of the learned trial Court preferred an appeal before learned Additional District Judge Sansa who by allowing the appeal disallowed the suit by the appellants on the ground of limitation, hence this appeal.
2. The learned counsel for the appellants submitted that findings of the First Appellate Court regarding limitation were erroneous in view of settled law. He during his arguments by relying upon a legal report of this Court in Farman Bi's case 2005 YLR 1814 argued that the parties were contesting over their ancestral property therefore, any entry in the Revenue Record if found incorrect could be challenged at any time when it came into the knowledge of the plaintiffs. Here in this case, according to the learned counsel for the appellants, the appellants were declared to be the owners of the suit-land being legal heirs of their grandfather Fateh Muhammad deceased.
3. Therefore, the Mutations Nos.191 and 353 showing Fazal Hussain deceased and his daughter Mst.
4. Janat Bi as sharers in the joint estate could be challenged as and when the appellants acquired knowledge about the wrong entry in the revenue papers. The appellants acquired knowledge in the year 2000 and they without wastage of time filed present suit. The defendants have not categorically denied the fact of knowledge neither they could prove it through their evidence, therefore, observation of the First Appellate Court regarding bar of limitation under Article 120 of Limitation Act was erroneous, the learned counsel maintained.
5. Conversely, the learned counsel for the respondents submitted that the present suit has been filed after 48 years approximately whereas the mutation in question could be challenged within 6 years as provided under Residuary Article 120 of Limitation Act.
6. Before dilating upon the other arguments for and against addressed at bar I would like to resolve the controversy about limitation in this case. This controversy came under consideration before this Court in Farman Bi's case in which the following observation has been made: -- "In all the precedent cases it is held that a Muslim cannot be deprived of his/her right simply because he/she relinquished the same or a private settlement disinherited him/her for legacy of a deceased Muslim devolves upon legal heirs on his/her death irrespective of the fact that a mutation is sanctioned in his/her favour or not and he/she is recorded as owner in the Revenue Record or not. A Muslim owner is competent to alienate or transfer his/her property only through the modes recognized under law and not otherwise. Any adverse entry in the Revenue Record would not oblige him/her to challenge the same within a period of 6 years of the entry, for cause of action in such cases would accrue only when real threat was posed to his/her title i.e. When defendant denied his/her title in unequivocal terms. Every fresh entry made in the Revenue Record to the detriment of plaintiff would give a new cause of action. This is the view expressed by our own Supreme Court in a case titled "Bostan and others v. Mst. Sattar Bibi and others" (PLD 1993 SC (AJ&K) 24) referred hereinbefore. Under the Constitution, it is law of the State. This view stands supported by different judgments from Pakistan jurisdiction also."
7. Therefore, in view of the above cited abstract of the judgment of the precedent case, the suit by the appellants is declared to be within time because the parties are contesting over their ancestral property under law of inherent. If the appellants succeed to establish the fact that Fazal Hussain (father of Mst. Janat Bi) died in the life time of Fateh Muhammad (father of Fazal Hussain) then, of course, the appellants are A the owners of the suit-land under law of inheritance and any entry in the Revenue papers disentitling them from their share in the joint estate cannot stay in their way simply on the ground of delay. If, under law of inherent, a property has devolved upon a Muslim owner, mere entry in Revenue Record negating his legal share can be challenged" as and when it comes in the knowledge of a plaintiff. In such-like cases every denial whether it is through an entry in the Revenue Record or otherwise gives a plaintiff a new cause of action. Thus, in view of what has been stated above, the findings of the First Appellate Court to the extent of bar of limitation is set aside and the suit by the appellants is declared to be within time.
8. The learned counsel for the respondents during his arguments also attacked the findings of the Courts below on issue No.1 dealing with controversy about death of Fazal Hussain (father of respondent Janat Bi). He during his arguments vehemently stressed to vacate the findings of the Courts below regarding death of Fazal Hussain and contended that both the Courts below by misreading and non-reading of evidence arrive at a wrong conclusion which resulted into a grave injustice to the respondent Mst. Janat Bi. He while assailing this finding referred to the Court statement of P.W. Abdur Rehman's and a documentary evidence like Exh.P.G. (Mutation No.380) and submitted that this evidence was not taken into consideration in its true perspective rather the same was overlooked by the Courts below and they by doing so fell in a grave legal error deserving rectification by this Court.
9. On the contrary, the learned counsel for the appellants argued that the respondents neither filed a cross-appeal against the findings of the Courts below on issue No.1 nor they have filed any cross- objection c to this finding therefore, they cannot be allowed to challenge this finding during arguments. He further submitted that assuming it to be correct that the respondents could challenge this finding without filing cross-appeal or objection, the fact remained that it was a concurrent finding of a question of fact which could not be challenged in 2nd appeal unless some misreading or non-reading of evidence is shown to have been committed by the Courts below.
10. Both the Courts below, while taking the entire evidence on this point into consideration, arrived at a unanimous conclusion that Fazal Hussain father of Mst. Janat died during life time of his father namely Fateh Muhammad. This concurrent finding was not open to challenge in 2nd appeal, the learned counsel maintained.
11. After hearing the learned counsel for the respective parties on the aforesaid point the first question which requires resolution is whether the learned counsel for the respondents could be allowed to question the findings of the First Appellate Court on issue No.1 which has been decided against him through the impugned decree. To resolve this controversy 2 provisions like Order XLI, rule 22 and Order XLI, rule 33 are available in C.P.C. In order to have correct appreciation of these 2 provisions of C.P.C., it is felt proper to reproduce them for convenience:- "22. Upon hearing, respondent may object to decree as if he had preferred separate appeal. (1) Any respondent, though he may not have appealed from any part of decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross- objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow."
12. "33. Power of Court of appeal.--- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, along with such respondents or parties may not have filed any appeal or objection."
13. After examination of Order XLI, rule 22 it becomes clear that a respondent may support a decree appealed from, not only on any of the grounds decided in his favour but also on grounds decided against him and for this purpose it is not necessary for him to file any cross-objection. He would be competent to support appealed judgment of Court below even on grounds which were not decided in his favour. Reference may be had to PLJ 1998 AJ&K 59 and 1998 M LD 450. Thus, in view of settled law it cannot be said that the learned counsel for the respondents cannot assail the findings on issue No.1 decided against them. He was fully competent to attack finding on issue No. l decided against him in presence of a favourable decree appealed from by the appellants. Apart from what has been provided under Order XLI, rule 22, C.P.C., another provision like Order XLI, rule 33 as reproduced above comes to the aid of the Court. The above provision of law empowers the Appellate Court to pass any decree and make any order which is ought to have been passed or made. It also authorizes the Appellate Court to pass or make such further order or decree as the case may require. This power of the Appellate Court is not qualified with the fact that the appeal is as to part only of the decree and it may be exercised in favour of all or any of the respondents or parties even if they may not have filed any appeal or objection. We have to administrate legal justice and Order XLI, rule 33 perhaps is the singular power which sets free the Courts from the clutches of the procedural law and empowers them to do complete justice. Therefore, this provision gives were discretionary powers to Appellate Court to adjust the rights of the parties as and when it is demanded to have been done. The irresistible conclusion, therefore, is that Order XLI, rule 22 when read with Order XLI, rule 33, C.P.C.ID allows the learned counsel for the respondents to attack the findings on issues decided against him.
14. The material issue in this case is whether Fazal Hussain died during life time of his father Fateh Muhammad. The onus to prove this issue was placed on the plaintiffs/appellants. The verbal evidence for and against on this issue except the Court statement of P.W. Abdur Rehman's is of hearsay nature, therefore, it is not admissible under law. The documentary evidence which is available on record is Exh.P.A., Exh.P.B., Exh.P.C. And Exh.P.G. The documents Exh.P.A., Exh.P.B. And Exh.P.C. Are the documents under challenge by the plaintiffs therefore, they stood excluded from the evidence which could help resolve the controversy in hand. The rest of documentary evidence is Exh.P.G. Only. The evidence therefore, which could be considered under law is the Court statement of P.W. Abdur Rehman's and Exh.P.G. This is the evidence relied upon by the plaintiffs/appellants. According to the statement of P.W. Abdur Rehman's, Fazal Hussain died during life time of his father Fateh Muhammad whereas according to Exh.P.G., Fazal Hussain was alive in the year 1952 as it appears from the report by real brother of Fateh Muhammad namely Beeroo available on the face of Exh.P.G. On the back of this document Fazal Hussain is disclosed to be dead when the mutation was sanctioned. The mutation was sanctioned in favour of Fazal Karim brother of Fazal Hussain in the month of August whereas entry in relevant register was made by the Patwari concerned in the month of July, 1952. The argument that the mutation on death of Fateh Muhammad dated 2-8-1952 indicated the death of Fazal Hussain during life time of his father cannot be allowed to prevail. The reason being that he might have died in the period intervening between entry in the relevant register and sanction of mutation. This possibility cannot be ruled out. It does not necessarily mean that Fazal Hussain had died prior to 1947 which is the case of appellants. The position thus, emerges out that the statement of P.W. Abdur Rehman's stands contradicted by the documentary evidence like Exh.P.G. This is the evidence relied upon by the appellants which contradicts each other. Though the Courts below are unanimous on the point that Fazal Hussain died during life time of Fateh Muhammad but this concurrent finding on a question of fact is based on no evidence which, under law, is not sustainable. In order to deprive a Muslim who is prima facie a legal heir in the legacy of her predecessor --in-interest, a very strong, cogent and credible evidence is required. Here the evidence being contradictory in nature suggests to decide the issue against the plaintiffs/appellants. They have failed to prove their claim about death of Fazal Hussain father of Jannat Bi respondent.
15. The result therefore, is that though the suit by the appellants is within time yet they failed to discharge the burden placed upon them in Shape of issue No.1 which deals with the controversy of death of Fazal Hussain. The judgments and decrees of the Courts below to the extent of resolution about controversy regarding the death of Fazal Hussain are hereby set aside and it is declared that Fazal Hussain died after the death of his father namely Fateh Muhammad. The respondent Mst.
16. Janat Bi, thus, is entitled to her share out of legacy of her father Fazal Hussain and the Mutations Nos.151 and 353 are correct to the extent of Fazal Hussain and his daughter Mst. Jannat Bi respondent. The suit by the plaintiffs/appellants is hereby disallowed for want of proof.