1. ' GHULAM MUSTAFA MUGHAL, C.J.---This second appeal arises out of the following facts:-- ' Babar Ali, appellant, herein, brought a suit for declaration and perpetual injunction against Mst.
2. Amena Bibi in the Court of Senior Civil Judge Mirpur on 5-10-2004. It was averred that land measuring 2 kanals 4 marlas comprising Khasra No,1378 situated in village Islam Garh Tehsil Mirpur was in the ownership of Makhan Khan. After the death of Makhan Khan his son Muhammad Khan was in possession of the suit land. Muhammad Khan died in 1990 and after the death of Muhammad Khan the plaintiff and pro forma respondents Nos.5 to 9, legal heirs of the deceased, are in possession of the suit land. It was further averred that defendant No,1 and pro forma respondents Nos.3 and 4 had never been in possession of the suit land. Defendant No,1 filed an application for partition and also obtained stay order but the same was withdrawn by her and thereafter, land comprising Khasra No,1378 situated in village Islam Garh Tehsil Mirpur allocated at the road side stood transferred by defendant No,1 to defendant No,2 vide sale deed dated 22-9- 2004. The sale deed was effected without possession and partition of the said land and in excess of the share of defendant No,1 and despite the fact that the same was in possession of plaintiff and defendants Nos.5 to 9. It was prayed that the sale-deed may be declared inoperative, in-effective and illegal against the rights of plaintiff and pro-forma respondents Nos.5 to 9. The suit was contested by the defendants by filing written statement. The learned trial Court on 21-3-2005 framed issues in light of the respective pleadings of the parties. At the conclusion of the proceedings vide judgment dated 14-3-2007 dismissed the suit filed by the present appellant for want of proof. Plaintiff/appellant felt aggrieved from the judgment and challenged the same through an appeal before Additional District Judge. Mirpur who also dismissed the same vide his judgment dated 5-5-2010, hence, this second appeal.
3. ' Ch. Muhammad Taj, the learned counsel appearing for the appellant inter alia argued that judgments of both the Courts below are against the record and settled position of law. By referring to copy of Jamabandi and khasra Girdawari the learned Advocate submitted that the suit land was in possession of the plaintiff/appellant, hence, the sale-deed was executed without possession. He argued that sale-deed has been executed with mala fide intention in order to deprive the plaintiff from his valuable rights.
4. ' Raja Khalid Mehmood, the learned counsel for the respondents raised a preliminary objection that appeal has been filed against concurrent finding of fact without pointing out any misreading and non-reading of evidence or record or any other procedural illegality. The learned advocate argued that no legal infirmity has been pointed out by the learned counsel for the appellant therefore, the appeal is liable to be dismissed. He further submitted that the findings of both the subordinate Courts are in line with the record and evidence produced by the parties and hardly require any interference.
5. ' I have heard the learned counsel for the parties and gone through the record of the case.
6. ' The objection raised by the learned counsel for the respondents that no second appeal is competent under section 100 of C.P.C. Until any legal infirmity, violation of some material issues of law or usage having the force of law is pointed out is correct and hardly require any deliberation.
7. Suffice it to observe that scope of second appeal is limited and confined to the conditions laid down in section 100 of C.P.C. Which is reproduced as under:- "100--Second appeal---Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court on any of the following grounds, namely;
(a) The decision being contrary to law or usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits."
8. ' A perusal of the above provision reveals that second appeal would lie only on the grounds covered by section 100 of the Code of Civil Procedure not otherwise. The Courts are unanimous on the point that second appeal is competent only when findings are based on no evidence or have been returned in violation of any law or some important evidence has not been considered by the subordinate courts. An erroneous finding of fact however gross or inexcusable the error may seems to be no appeal is competent. This view was approved in AIR 1929 PC 152. The same view was returned in Din Muhammad v. General Manager Communication (PLD 1978 Lah. 1134), in Bhirawan v.
9. Ahmed Bakhsh's case (PLD 1955 Lah. 187), in Karamat Ali v. Muhammad Yunus' case (PLD 1963 SC 191). Mr, Justice Malik Muhammad Aslam Khan also approved the same view in Ashraf Khan's case (PLD 1975 AJ&K 32).
10. ' Judging the controversy in view of the aforesaid position of law, I am of the view that concurrent findings of facts are sacrosanct and immune from challenging only when the' evidence has been appreciated properly and the conditions visualized by section 100, C.P.C. Reproduced hereinabove have been fulfilled. A conclusion which is not in line with the criteria laid down in the said section is not immune from challenge in second appeal and the Court will be responsible to examine the alleged misreading and non-reading of evidence and record.
11. ' Coming to the present controversy it may be stated that Ch. Muhammad Taj, the learned counsel for the appellant has challenged the findings of the subordinate Courts on the ground that Misl-e- Haqiat Exh.PB, application for partition Exh.PC, spot inspection report of Patwari Halqa Exh.DB, khasra Girdawari Exh.PAA and Jamabandi Exh.PBB have not been appreciated properly by the subordinate Courts. Have gone through the documents referred to hereinabove. A perusal of these documents reveals that both the subordinate Courts have misread these documents and not appreciated them in a legal fashion, therefore, interference on the ground of construction of the documents is within the ambit of section 100, C.P.C. (PLD 1975 SC 295). The sale deed in question has been executed in respect of Khasra No,1378, which is 2 kanals 4 marlas. A copy of jamabandi Exh.PBB, Khasra Girdawari Exh.PAA unequivocally reveals that Amena Bibi was not in exclusive possession of sold number Khasra rather this Khasra number was in exclusive possession of Babar Ali, Jahangir and Majid Khan. This fact is supported from the application filed by Amena Bibi for partition of the suit land which is on the record and has not been attended to by the subordinate Courts. This application was withdrawn by her and thereafter she has executed disputed sale-deed. Both the learned Advocates have relied upon the report of Patwari which cannot be read against the plaintiff/appellant for the reasons that he was not summoned by Patwari and report has been prepared in his absence. Such type of reports are not admissible and'cannot be read against a party. In Mustafa Khan's case PLD 1978 SC (AJ&K) 75, it was observed that a co-sharer in possession of specific field numbers---can validly transfer such land even though his share in such specific field numbers exceeds his share provided it does not exceed his over all entitlement of share in whole khewat.
12. ' In the case in hand total land of Khewat is 57 kanals 2 marlas and out of which the total entitlement of Mst. Amena Bibi is 5 kanals 14 marlas and 1-1/2 Sarsai but she is not in possession of the sold number, and plaintiff and pro forma respondents are in exclusive possession of this Khasra number. The joint property cannot be transferred by a co-sharer to injure the rights of other co- sharers that a specific number khasra which has potential value vis-a-vis to the others such transaction is mala fide and cannot be protected on any other ground.
13. ' The upshot of the above discussion is that appeal is accepted, findings of both the courts below are hereby set aside and decree for declaration and cancellation of sale deed dated 22-9-2004 is hereby granted in the terms that sale-deed executed by Amena Bibi in favour of defendant No,2 is declared to have been executed without lawful authority and is of no legal effect and is in- operative against the rights of other co-sharers. No order as to costs.