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 in Civil Appeal No.151 of 2004 on 10-6-2005 at Mirpur. The learned Judge has reversed the finding recorded by the Additional District Judge, Dadyal on 30-8-2004 and restored the judgment and decree passed by the trial Court.
2. The facts giving rise to the filing of the present appeal are that respondents filed a suit for possession of one Kanal of land situated in Potha Bangash, Tehsil Dadyal, comprising number Khasra 68. It was alleged by the respondents that suit-land was given to the father of Muhammad Yasin and Muhammad Murtaza for construction of a house on the condition that on their leaving the said village, they will remove the structure of the house and handover the possession of the suit-land to them. This suit was filed on 22-6-2000. The appellants also filed a suit on 2-10-2000 seeking declaration that the land in dispute is purchased by A their father from the respondents on 9th Bisakh 1992 B.K. The entries in the record of rights were also challenged alleging to be against the interest of the appellants/plaintiffs. The Senior Civil Judge, Dadyal decreed the suit for possession filed by the respondents and dismissed the cross-suit of the appellants on 13-3-2004.
Both the parties filed appeals against the judgment. The Additional District Judge, Dadyal passed a consolidated judgment in both the appeals on 30-8-2004 and reversed the judgment and decree passed by the Senior Civil Judge, Dadyal. The judgment and decree passed by the Additional District Judge, Dadyal were reversed in appeal through the impugned judgment restoring the decree for possession passed by the Senior Civil Judge.
3. The learned Advocate appearing for the appellants contended that the land in dispute was purchased by father of the appellants through sale-deed Exh.D.R. On 9th Bisakh 1992 B.K. According to him, the B appellants are owners of the land hence, the respondents have no locus standi to file the suit. He further contended that the evidence produced by the respondent before the trial Court was contrary to the pleadings hence that could not be made basis for decree in favour of respondents. He placed reliance upon the report cases titled Allah Dad v. Muhammad Ali and others PLD 1956 Lah. 245 and Mada son of Fateh Ali v. Muhammad Sharif and 39 others 1997 SCMR
338. Referring to the Revenue Record, he contended that appellants' possession is entered therein as purchaser of the land, but these entries are later on changed without any authority of law or order of any competent authority. According to him, the entries in the Revenue Record have to be read as a whole and cultivation column of the record has to be read along with ownership column to derive the conclusion. He placed reliance upon section 53 of the West Pakistan Land Revenue Act and the reported case titled Mst. Bhag Bhari and others v. Mst. Bhagan and another PLD 1954 Lah. 356 and Mst. Raj Begum v. Mst. Sardar Begum and 5 others 1980 CLC 30. According to him, presumption of truth is attached to all the columns of the Revenue Record, hence the columns in which the respondents are entered as in possession on account of being owners has to be read as it is. He further contended that the documents on which the appellants rely is 30 years old to which presumption of truth is attached under Article 100 of the Qanun-e-Shahadat Order. He relied upon Ch. Muhammad Bashir v. Ch. Lal Din Arif and 5 others 2001 YLR 1299 on this point. Opposing the suit filed by the respondents, he contended that it was hopelessly time-barred, as according to him, the maximum period of limitation for suit for possession is 12 years. He contended that Rehmat Bibi is one of the co-sharers in the suit-land and a decree for possession could not be passed against her, and if at all respondents were entitled to any decree, it could be a decree of joint possession.
He made a reference - to para.5 of the written statement in which this fact is specifically stated.
4. The learned Advocate for the respondents referring to reply to para.4 of the plaint by appellants through written statement, contended that Rehmat Bibi and the respondents have stated that they are pursuing the case on behalf of the attorney, co-sharership is alleged as a passing remark. The learned Advocate contended that the document Exh.D.R. Allegedly executed on 9th Bisakh 1992 B.K.
Cannot be read in evidence nor can it be relied upon, as it is not a registered document and cannot be read for collateral purposes as well. He relied upon the case titled Wadhawar Singh v.
Kunj Lal AIR 1938 Lah. 492 in this behalf. According to him, on the date of execution of this document Registration Act, 1997 B.K. Was in force. Under section 17 of this Act, every document transferring or purporting to transfer the immovable property was compulsorily registrable, and under section 49 of the said Act, a document which is not registered is not admissible in evidence. He further contended that Azad Kashmir adopted the Registration Act, 1908 in 1949 and then again in 1959, under which immovable property worth Rs.100 or more than that, is compulsorily registrable.
However, it retains that clause of section 49, that an unregistered document, is not admissible in evidence. According to him, this clause was amended in Pakistan, but that amendment has not been adopted in Azad Kashmir, hence the law on this point from Pakistan jurisdiction is not relevant. Replying to the objection of limitation raised by the learned counsel for the appellants, he contended that Article 142 of the Limitation Act is applicable in cases of possessory title not against the owner. According to him, as the respondents had filed the suit on the basis of their title, not as owners; hence their suit was not hit by limitation. He relied upon the cases titled Sawar Khan and 2 others v. Noor Alam and another 1985 CLC 1082 and Mrs. Maqsooda Begum v. Ghulam Qadir and others 1996 SCMR 1539.
5. As far the argument that land in dispute was purchased by Hashim from father of respondents through unregistered sale-deed dated 9th Bisakh, 1992 B.K. Exh.D.R., a photocopy of the document is no doubt placed on record, but it is unregistered hence under law, it does C not confer any right neither can it be received in evidence. On 9th Bisakh 1992 B.K. The Registration Act, 1997 B.K. Was in force in the State of Jammu and Kashmir which corresponded to 1918 A.D. Under section 17 of this Act, "all non-testimentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest were. Compulsorily registrable".
As the appellants claim right of ownership through this document, hence under the provision of law it was compulsorily registrable. This law was thereafter replaced by a Registration Act, 1908, first in 1948 and then in 1956. Under the corresponding provisions of Act of 1908, non-testimentary documents which purport or create, declare etc. a right in immovable property worth Rs.100 or more, is compulsorily registrable. Distinction between the two laws is that, under the former law every non-testimentary document relating to transfer of immovable property was compulsorily registrable, but under the later, only that document relating immovable property is compulsorily registrable which is wroth more than Rs.100. However, the effect of non-registration of documents required to be registered under section 17, is same under both the laws i.e. a document which is required to be compulsorily registrable shall not be received in evidence, if it is not registered. This clause has been amended in the rest of the country through an amendment in the Registration Act in 1962, but this amendment is neither adopted nor any fresh amendment is made in the Registration Act in Azad Kashmir. Hence unregistered sale-deed relied upon does not confer any right, neither can it be received in evidence at any stage of the proceedings. The learned Advocate for the respondents has rightly relied upon the cases titled Ghulam Muhammad v. Sarkhru AIR 1934 Lah. 970; Wadhawa Singh v.. Kunj Lal AIR 1938 Lah. 497 and Bisheshar Lal v. Mt. Bhuri AIR 1920 Lah. 20 in this behalf.
6. Along with it goes the argument of the learned Advocate for the appellants that entries of the Revenue Record contrary to the alleged sale-deed are wrong or that these have to be read in juxta-position to each column to convey the sense of land having been alienated to the appellants. The authorities of law cited by the learned Advocate for the appellants on the point relating to the entries in the Revenue Record i.e. West Punjab Province v. Siraj Din PLD 1951 Lah. 459; Mst. Bhag Bhari and others v. Mst. Bhagan and another PLD 1954 Lah. 356; Allah Dad v. Muhammad Ali and others PLD 1956 Lah. 245 and Misri through Legal Heirs and others v. Muhammad Sharif and others 1997 SCMR 338 are therefore, distinguishable in view of the facts and circumstances of the present case.
7. Similarly the argument of the learned Advocate for the appellants that document being 30 years old carries presumption of truth under Article 100 of the Qanun-e-Shahadat Order also becomes devoid of force, as notice of that document cannot be taken for the reason that it is not registered as required by the relevant laws relating to registration etc. Notwithstanding this, the presumption does not relate to the genuineness or legality of the document, but to the signature and execution of the document by the executant. As legality of the executed document is not valid, hence the presumption visualized by Article 100 of Qanun-e-Shahadat Order does not validate it so as to create any interest or title in the appellants. As for the argument of the learned Advocate for the appellants that unregistered document can be relied upon for collateral purposes supported by a case titled Ch. Muhammad Bashir v. Ch. Lal Din Arif and 5 others 2001 YLR 1299 is concerned, it is equally not helpful to him for the reason that no other relief is claimed relying on this case.
8. Another contention of the learned Advocate for the appellants that suit for possession filed by the respondents before the trial Court was time-barred, is also not tenable for the reason that Article 142 of the Limitation Act, relates to the suit based on the possessory title of a claimant. The respondents have filed the suit on the basis of their title of being owner of the land, not for having been dispossessed. The limitation could be considered if the appellants asserted themselves to be in adverse possession of the land, but they assert to be the owners under a defective title, hence the suit was not hit by the limitation. The learned Advocate for the respondents have relied upon the cases titled Mrs. Maqsooda Begum v. Ghulam Qadir and others 1996 SCMR 1539 and Swar Khan and 2 others v. Noor Alam and another 1985 CLC 1082.
9. As far the question that decree of possession on joint possession could not be passed against Rehmat Bibi as sheds one of the co-sharers in the land, is concerned this argument could hold the field provided the suit had been filed against the Rehmat Bibi alone not against other defendants.
The perusal of the written statement filed on behalf of the appellants as defendants in the trial Court reveals that the right of the appellants/defendants to hold the possession of the land is derived from the alleged sale-deed discussed above. In paras. 4 and 6 of the written statement Rehmat Bibi has categorically stated that she has reconstructed some rooms in the interest of the right of the other defendants (Muhammad Yasin and Muhammad Murtaza) on the direction of their attorney. It is further admitted in para.5 of the written statement that the land in dispute fell in the share of the father of respondents/plaintiffs which is transferred by him through the alleged sale-deed. An alternate plea in the same para. Is however, entered, that appellant No.3/defendant.
Rehmat Bibi, is entered as a co-sharer in the land and she is entitled to the extent of her share.
10. The above statement of facts and circumstances leaves no doubt that Rehmat Bibi is used by the appellants as shield to defend their illegal possession, and excuse of being co-sharer put up through her is a camouflage to defeat the claim of respondents. She cannot blow hot and cold in the same breath. On the one land, she admits the title of father of respondents on the land and it is further admitted to have been transferred to appellants Nos.1 and 2 and on the other hand, she alleges that she is the co-sharer. These inconsistent and destructive pleas cannot defeat the right of respondents based on lawful title. The authority of law cited by the learned Advocate for the appellants on this point i.e. Muhammad Rustam and 6 others v. Muhammad Malik and 18 others 1998 SCR 131 is not applicable in view of the circumstances of the present case.