1. ' The above captioned appeal is directed against the judgment and decree of the Additional District Judge Kahuta/Haveli Camp Dhirkot passed on 29-6-2002 whereby the judgment and decree of the Civil Judge Dhirkot, dated 3-3-2001, has been maintained.
2. ' Facts forming the background of this appeal are that the appellants/plaintiffs brought a suit for declaration, cancellation of mutation Nos.531, 528, agreement, dated 28-12-2003 (BK), gift deeds, dated 30-12-1974 and 31-8-1992 against the defendants/respondents in the Court of Civil Judge Dhirkot on 3-9-1981. The plaintiffs also prayed for possession of the suit-land. The dispute between the parties is with regard to the inheritance of Muhammad Afzal deceased who died issueless in 1951. He was owner of 66 kanals land, including Khasra Number 45 measuring 33 kanals 11 marlas. It is claimed that his widow in connivance with the revenue staff got his estate mutated in her name under the custom posing that Muhammad Afzal had died in 1947. The present plaintiffs claimed that she was only entitled to 1/4 share from the deceased's estate and rest would go to the plaintiffs in accordance with the Sharia. According to them, Muhammad Afzal died in 1951 and at that time Shariat Application Act was enforced in Azad Kashmir. In respect of Khasra Number 45 it was alleged by the plaintiffs that on the basis of fraudulent, concocted agreement allegedly executed on 28-12-2003 (BK), mutation number, 528 was got entered on 5-3-1953 in favor of the Mst. Guloo Begum widow of Muhammad Afzal on the ground that this Khasra number was given by Muhammad Afzal to her inlieu of dower. The claim of the plaintiffs/appellants is that Muhammad Afzal never executed any Iqrar-Nama in favor of Guloo Begum and the document has been prepared after the death of Muhammad Afzal. The plaintiffs seek quashment of the said document as well as mutation entered on the basis of the 'same. Some other gift deeds have also been challenged by the plaintiffs. Some of them have been executed prior to the institution of the suit and 'one is executed after the institution of the. Suit.
3. ' The suit was controverted by the defendants by filing written statement. The defendant refuted the claim of the plaintiffs and also raised some preliminary objections including bar of limitation and maintainability of the suit.
4. ' The learned trial Court framed issues in light of the pleadings of the 'parties and allowed them to lead evidence in support of their respective claims. Finally the learned Civil Judge Dhirkot vide his judgment, dated 2-3-2001 granted a decree for possession of the suit-land except Khasra No,45.
5. The gift deeds mentioned hereinabove were also cancelled by the learned Judge. However, the suit of the plaintiffs/ appellants was dismissed to the extent of cancellation of agreement, dated 28-12- 2003 (BK) and mutation number 528 attested on 5-3-1953 on the ground of limitation.
6. ' Feeling aggrieved from the judgment both the parties filed appeals before the Additional District Judge Dhirkot on 1-6-2001 and 18-6-2001 which were dismissed through a consolidated judgment on 29-6-2002.
7. ' The respondents herein have not filed any further appeal or cross objections, however, the appellants have challenged the dismissal of their suit and appeal to the extent of Khasra Number 45 measuring 33 kanals 11 marlas.
8. ' During pendency of appeal, respondents herein moved an application on 14-4-2003 stating therein that appeal has abated in toto for not impleading the legal heirs of Kala Khan, appellant who had died on 26-9-2002. After this, appellants herein moved an application on 20-5-2003 for impleading the legal heirs of Kala Khan, deceased. In this application, the death of Kala Khan is admitted, however, it is alleged that Kala Khan had died on 9-9-2002. The application even then is time barred, however, it is claimed that as the Law Reforms Ordinance, 1972 has been adopted in Azad Jammu and Kashmir, therefore, the appeal can proceed even in absence of the legal heirs of Kala Khan because amendment in the procedural law is always retrospective and question of abetment hardly arises in the circumstances of the case.
9. ' Arguing on behalf of the appellants, Raja Gull Majeed Khan, the learned Advocate, inter alia, made the following submissions:--
(i) That no suit or appeal can abate after adaptation of the amendments effected in the C.P.C.
10. Through Law Reform Ordinance, 1972 in Azad Jammu and Kashmir. As the amendments have been effected in the procedural law which will operate retrospectively, therefore, the appeal is liable to be decided on merits notwithstanding the death of Kala Khan, appellant herein.
(ii) That even otherwise appeal at the most could abate only to the extent of the share of Kala Khan which is ascertainable, hence, the question of total abatement of appeal does not arise.
(iii) That both the Courts below have erroneously held that agreement, dated 28-12-2003 (BK) was lawful and mutation No,528 entered on the basis of this document is legal. The document has not been registered in accordance with the provisions of the Registration Act, hence, was not admissible in evidence nor does create any right in the immoveable property.
(iv) That even otherwise the document has not been proved in accordance with the provisions of Evidence Act as the burden of proof was on the beneficiaries to prove that the document was properly executed.
(v) That no estoppel can be pleaded against the appellants/plaintiffs on the basis of a void document, hence, findings of the learned subordinate Courts are illegal, erroneous and are based on the wrong assumption of facts and law.
(vi) That every fresh entry in revenue record gives fresh cause of action, hence, it was wrongly concluded that suit was time-barred.
11. ' In support of his submissions, the learned Advocate placed reliance on the following precedents:- -
(1) Muhammad Yasin's case 2006 CLC 1257.
(2) Bostan's case (PLD 1993 SC (AJK) 24).
(3) Mst. Bushra Bibi's case (2002 CLC 587).
12. ' In Muhammad Yasin's case the argument that document being 30 years old carries presumption of truth under Article 100 of the Qanun-e-Shahadat Order, was repelled on the ground that notice of the document therein could not be taken for the reason that it was notregistered in accordance with the provisions of the Registration Act. 'It was further opined that presumption visualised by the said section does not relate to the genuineness or legality of the document but to the signature and execution of the document by the executants.
13. ' In Bostan's case, it was opined that where no valid transfer could be made except by a registered instrument, the question of estoppel would not arise. It was further opined that subsequent entries in the record of rights would be preferred to those made earlier for the purpose of counting the limitation period.
14. ' In 'Mst. Bushra Bibi's case, it was concluded that there is no bar of limitation for the purpose of enforcement of right of inheritance.
15. ' Sardar Muhammad Arif Khan, the learned counsel for the other side, controverting the arguments advanced on behalf of the appellants, submitted that both the Courts below have concurrently held that agreement, dated 28-12-2003 (BK) has been executed by Muhammad Afzal Khan and the suit filed by the plaintiff/appellants herein is hopelessly time barred. These findings being on fact cannot be reopened in second appeal, submitted the learned counsel. The learned counsel also argued that the appeal has to abate in toto, keeping in view the nature of the disputed document and the appellants cannot get rid of the consequences of the abatement, keeping in view the oneness of the document because the same cannot be declared partly valid and partially invalid.
16. The learned counsel further contended that the appellants have miserably failed to prove the execution of the document as was alleged by them. In support of his submission the learned counsel placed reliance on the following cases:--
(1) Muhammad Din's case (PLD 1977 Lah. 513).
(2) Aksar Ali's case (1982 CLC 1309).
17. ' In Muhammad Din's case, a- gift was challenged which was executed jointly in favor of the plaintiffs/appellants. One of the appellants died and his legal heirs were not brought on the record.
18. It was concluded that "it is not possible, in the circumstances of the case, to find that gift was effected in favor of one of the beneficiaries namely the surviving appellant, or the deceased. The factum of the gift being a single transaction has to be determined as such. The law does not contemplate its determination otherwise that it was made in favor of one person and not in favor of the other." Following the dictum of the apex Court laid down in Wali's case (1965 SC 651), it was concluded that the appeal therein stood abated in toto.
19. ' In Aksar Ali's case, the apex Court of Azad Jammu and Kashmir, held that decree appealed against was neither divisible nor theshares of the plaintiff/appellant ascertainable. The death of one of the appellants during pendency of appeal results in total abatement of the appeal.
20. ' I have heard the learned Advocates for the parties and have given my anxious thought to the proposition involved in the case.
21. ' The contention of Raja Gull Majeed Khan, the learned Advocate for the appellants, that after the enforcement of the Law Reforms Ordinance in Azad Jammu and Kashmir, the appeal will not abate in toto, is devoid of any force. The controversy has been concluded in Iftikhar Hussain Khan's case (2005 CLC 811), by this Court in light of the judgments of the apex Court of Pakisan rendered in Sardar Noor Hussain'a case (PLD 1983 SC 62) & Kh. Jalal Din's case (1985 SCMR 1359). In the aforementioned cases, it was concluded that amendments effected in Order XXII are not retrospective. However, the contention of the learned Advocate that agreement to sell, dated 28- 12-2003 BK, has not been proved by the beneficiaries, has a force.
22. ' By now the law is well settled that it is the beneficiaries of the document who are bound to prove the due execution of the document in A case fraud is alleged. In Muhammad Zaman Khan's case (PLD 1984 SC (AJK) 138), it was observed as under:- "(9) Even otherwise we are of the considered view that the onus has been wrongly placed on the appellant to prove that the document (will) is a forged one. The respondent claims to have acquired title to the suit-land on the basis of a will which .Fact, in the suit, was repudiated by the appellant claiming that thewill was forged one and, therefore, it was the respondent who was to prove that the will was executed by Muhammad Afzal Khan. The law is that those who rely on the will must show that the will was duly executed. Ordinarily, if there is no suggestion to the contrary any man who is shown to have executed a will, will be presumed to have done so, but the moment the execution is called in question the onus lies on those propounding the will to affirm positively the execution of the will. Therefore, the burden here should have been on the respondent to prove that the document (will) has been executed and it was not for the appellant to prove in negative that it had not been executed or it is a forged or fabricated one. However, as said earlier, the question of burden of proof is not important here because all the relevant evidence on the issue is available on the record it matters little as to which party has adduced the evidence."
23. ' At this juncture it is necessary to decide the objection raised by Sardar Muhammad Arif Khan Abbasi that concurrent findings of thesubordinate Courts are immune from challenge. In my estimation, this is not an absolute rule. The concurrent finding of fact is a different matter. The interpretation of a document is always a question of law, as has been C opined in Ahmad Khan's case (PLD 1975 SC 311). At page 315 of the apex Court it was concluded as under:-- "In my opinion, the argument is an attempt to over-simplify the question involved in this appeal. It may be that in some cases the question whether possession is adverse or not, is one of simple fact.
24. But it may not necessarily be so in all cases, for it may as well be a conclusion of law or a mixed question of law and matter of legal inference to be drawn from certain documents or any proved or admitted fact. As will be seen presently, the plaintiffs relied inter alia upon entries in the successive Jamabandis of the land for more than 20 years in support of their perfection of their proprietary title by prescription. Right construction of documents and in particular in a revenue record has always been regarded as question of law which the High Court is not precluded from considering in second appeal. There had been a flood of case-law in support of this proposition.
25. See among others: Lala Fateh Chand v. Rani Kishan Kanwar (1) and Satgur v. Kishan Lal (2) I have no doubt in my mind that the instant case falls in that category of cases."
26. ' The agreement, dated 28-12-2003 (BK) is admittedly an unregistered document and has been executed in favor of Guloo Begum to whom number Khasra 45 measuring 33 kanals 11 marlas has been D transferred. This document had been executed in contravention of the provisions of the Registration Act, hence, was not admissible in evidence, nor notice of the same can be taken in view of Article 100 of the Qanun-e-Shahadat Order, 1984. By now it is well considered law that E a Muslim owner can transfer his property only through modes recognised by law but not otherwise.
27. For the above stated reasons it is held that the F document is ab initio void and findings of the subordinate Courts on issues Nos. 1, 3 to 8, are contrary to law. No mutation can be attested G on the basis of an unregistered document.
28. ' The question of abatement of appeal in toto or otherwise would have a bearing if the agreement to sell remained in field or the agreement to sell, dated 28-12-2003 (BK) could be held valid qua deceased appellants. In the present case the agreement to sell has been declared bad as a whole, therefore, the possession of the parties if the document would not have been executed stands restored. This position stands supported from a case reported as Bank of Khulna, Ltd. v. Jyoti Prokash Mitra and others (Indian appeal cases (Vol. LXVII) 193940 (377)). As the document has been declared void ab initio, therefore, I am of theconsidered view that appeal can proceed notwithstanding the death of Kala Khan and abatement to the extent of Kala Khan will not deprive his legal heirs from inheritance. If Kala Khan would have not filed the suit even then the remaining appellants have an independent right to file the present suit for declaration and cancellation of the disputed agreement. Where an independent right is conferred upon a party for filing a suit that cannot be deprived from the fruits of the litigation on account of death of anyone else. This view lends support from Mst. Said Begum's case (PLD 1978 SC 133). This was a pre-emption case and one of the appellants therein died during pendency of the appeal and his legal heirs were not brought on the record. The abatement of the appeal in toto was pressed in view of the nature of the sale-deed but the apex Court concluded that notwithstanding the fact that legal heirs of the deceased appellant therein had not been brought on the record within the stipulated period, the appeal could proceed as the living appellants had an independent right under sections 4 and 15 of the Punjab Pre-emption Act to pre-empt the sale. The relevant observation of the apex Court is as under:-- "The test to see whether the suit or appeal abates as a whole or only in part is to find out if the suit, in the first instance could have been instituted and prosecuted with the deceased plaintiff left out.
29. In other words, if the plaintiffs could file separate suits then the abatement will only be in part. The same criterion will apply to an appeal. If, on account of partial abatement, it becomes, for any reason, impossible to proceed with the suit to its final conclusion, the entire suit will fail. The reason being that no decree can be passed or given effect to in so far as the rights of the parties actually before the Court are concerned, without interfering with the inte est of the legal representatives of the deceased party not brought on record. However, if this is not so then the suit abates partially.
30. ' Applying this test to the instant case, the right to pre-empt exists under section 4 of the Pre- emption Act with respect to the land or village immovable property in a particular person or persons before the sale of, such property takes place and becomes an actuality at the completion of the bargain. It is a personal right in the sense that it is created in him by the provisions of section 15 and accrues on account of personal relationship which the pre-emptor may have with the vendor or it may appertain to him as a co-sharer in the property or a proprietor in that estate. It is also personal in the sense that his interest in pre-emptive property is protected solely against determinate individuals. Therefore, any person standing in that situation can file a suit for pre- empting the sale of the property; and if the number bemore than one then they can join as plaintiffs to seek the same relief. Such right being personal, each one of them is entitled to prosecute the suit to the same extent as the others. And, if one of them withdraws or dies without his legal representatives being brought on record then this would not adversely affect the rights of the others."
31. ' This view further lends support from the judgment of the Privy Council in Mahomedally Tyebally and others v. Safiabai and others" (AIR 1940 Privy Council 215).
32. ' In view of above, the appeal is accepted and agreement, dated 28-12-2003 BK and mutation No,528 are declared illegal and of no legal consequences. The suit of the plaintiffs/appellants is hereby decreed to the extent of Khasra No,45. The parties would be entitled to inherit this piece of land in accordance with Sharia. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.