1. ' GHULAM MUSTAFA MUGHAL, C.J.---This appeal is filed against the judgment and decree passed by the learned District Judge Rawalakot on 4-9-2003, whereby the judgment and decree passed by the learned Sub Judge Rawalakot on 31-3-1988 has been maintained.
2. ' Facts necessary for the purpose of decision of the case are that a sale-deed was executed on 11- 4-1977 in respect of land comprising khasara No, 216 min measuring 1 kanal 1 marla, Khasara No, 467 measuring 1 kanal 19 marla, khasara No, 583 measuring 4 kanal 1 marla, khasara No, 580 measuring 9 kanal 6 marla, khasara No, 467 measuring 1 kanal 19 marla in all measuring 18 kanal 6 marlas situated in village Binakha Tehsil Rawalakot by Ghulam Haider, Mir Haider sons of Athar Hussain Khan, Rehmat Khan son of Balor Ali Khan and Mst. Gulab Jan widow of Athar Hussain Khan, defendants Nos. 2 to 6 in favour of Shakar Shah son of Zubair Shah. Abdul Rasheed Khan son of Rehmat Khan filed a suit for possession on the basis of right of prior purchase against vendee and vendors on 30-6-1977 in the Court of Sub Judge Rawalakot/Poonch. It was claimed that vendors Nos.1 and 2 are his first cousins, whereas vendor No,3 is his aunt and vendor No,4 is his real father. It was averred that he has a preferential right of purchase in respect of the sold land vis-a-vis to the vendee. This suit was subsequently amended. It appears that in the first suit the claim of the pre- emptor was to the extent of only 4 kanal whereas in the amended suit total land mentioned in sale deed was incorporated and relief for 18 kanal 6 marlas was claimed. The suit was contested by the vendee by filing written statement who refuted the claim of the plaintiff. It was claimed by him that plaintiff has waived his right by taking part in the bargain, therefore, the suit is liable to be dismissed. The vendors also filed a separate written statement in which they claimed that they have sold only 1 kanal 1 marla land from khasara No, 216 and rest of the land has been included in the sale-deed collusively by taking undue advantage of their illiteracy. A counter suit was filed by Ghulam Haider and his real brother against the respondents for declaration, challenging the sale-- deed dated 11-4-1977. It was claimed by them that they have sold only 1 kanal 1 marla land to the extent of Khasra No, 216 and the possession of the same was delivered to the vendee. The inclusion of the rest of the khasra numbers is outcome of manoeuvring, deception and fraud of the defendants. Both the suits were consolidated and the parties were given an opportunity to lead evidence in support of their respective claim. At the conclusion of the proceedings, the learned Sub Judge Rawalakot through a consolidated judgment dated 31-3.1988 granted a decree for possession in respect of the whole land measuring 18 kanal 6 marlas and dismissed the counter suit filed on behalf of Ghulam Haider Khan and another, appellant, herein for being barred by limitation. Feeling aggrieved from the judgment and decree Ghulam Haider Khan and one other appellants, herein filed an appeal against the judgment and decree before the District Judge Poonch on 16-7-1990. During pendency of the appeal the record of the appeal and file of the trial Court stood ablaze whereupon the record was reconstructed by the District Judge. After reconstruction of the record the learned District Judge heard the parties and while dismissing the appeal maintained the judgment and decree passed by the learned Sub Judge vide judgment dated 4-9-2003. This second appeal has been filed by the appellants against the aforesaid judgment, and decree passed by the learned District Judge.
3. ' It is admitted that dismissal of the declaratory suit the judgment of the trial Court dated 31-3-1988 has attained finality as appellants have not bothered to apply to the District Judge for reconstruction of the record to that extent.
4. ' Sardar Shamshad Hussain Khan the earned counsel for the appellants vehemently argued that both the judgments and decrees passed by the learned Sub Judge Rawalakot, and that of the first appellate Court are erroneous, capricious and against the evidence brought on the record. The learned advocate referring to the witnesses produced by the parties, as well as sale deed dated 11- 4-1977 strenuously argued that a perusal of the sale deed as a whole leads to the irresistible conclusion that the same was executed only to the extent of one kanal one marla and both the Courts below have erroneously came to the conclusion that land measuring 18 kanals 6 marlas had been transferred vide sale-deed in question. He argued that not only the sale-deed has been misinterpreted but the evidence brought on the record has also been misread. The learned Advocate also contended that the learned trial Court has failed to provide an opportunity of filing additional written statement to the defendants after allowing amendment in the plaint. He further argued that an additional issue was also framed but the parties were not allowed to lead evidence in support of the same, therefore, findings of the trial Court as well as District Judge to that extent are liable to be recalled. The learned Advocate in support of his submission placed reliance on the following cases:--
(1) Muhammad Saeed Segal v. Qazi Khurshid Hassan, Proprietor, India Film Bureau, (PLD 1964 SC 598);
(2) Ansar Ali and others v. Muhammad Ismail Miaji represented by Mahabbat Ali and others, (1968 SCMR 302);
(3) Allah Bakhsh and another v. Muhammad Ishaque and another, (PLD 1984 SC 47);
(4) Messrs United Cotton Factory, Hyderabad v. Ahmad Khan, (PLD 1960 (W.P.) Karachi 774);
(5) Prof. A, Hameed Kausar v. The State and others (PLD 1979 Lahore 727);
(6) Messrs Universal Brushes Ltd. v. The Superintendent Central Excise and Land Customs and 2 others (PLD 1985 Karachi 132);
(7) National Bank of Pakistan v. Alam Industries Ltd. Karachi and 5 others, (PLD 1992 Karachi 295);
(8) Inhabitants of Singola through Muhammad Haneef and another v. Azad Government and 22 others 2001 YLR 3190.
5. ' The learned Advocate lastly argued that though the suit filed on behalf of the appellants, herein for declaration and cancellation of the sale-deed has been dismissed and record has not been reconstructed but even then this Court is not precluded from granting relief to the plaintiffs/appellants because serious injustice has been done due to fraud and deception of the respondent/defendant who was petition writer. He referred to and relied upon Order VII Rule 7 of the Code of Civil Procedure and contended that the Court while deciding a case can consider the subsequent events and can also mould relief accordingly.
6. ' Raja Asif Kiani, the learned Advocate appearing for the respondents controverted the arguments advanced on behalf of the appellants and submitted that the appellants are precluded from claiming any right through the instant appeal after dismissal of their suit for declaration on merit.
7. He argued that appellants are also estopped from claiming any right because they have not got reconstructed record of their appeal to the extent of suit for declaration during the pendency of the appeal. The learned Advocate maintained that appellants are not entitled to file appeal and no relief can be granted to them indirectly through the collateral proceedings. The learned Advocate submitted that, law is well settled that concurrent findings of fact cannot be disturbed in second appeal unless violation of any of the grounds listed in section 100 of the Code of Civil Procedure is shown, as the appellants could not point out a single instance of misreading or non-reading of evidence or the documents, therefore, the appeal merits dismissal.
8. ' I have heard the learned Advocates for the parties and given my anxious thought to the record of the case.
9. ' Before attending the merits of the controversy I would like to discuss the authorities referred to and relied upon by Sardar Shamshad Hussain Khan, the learned Advocate for the appellants.
10. ' In M. Saeed Segal's case (PLD 1964 SC 598) it was ruled that while constructing a document' a specific conduct of the parties is also relevant factor and the Court should take into consideration the same for coming to the just and proper conclusion.
11. ' In Ansar Ali's case (1968 SCMR 302) it was observed that this documents, on the face of it, is an absolute conveyance. There is no indication in the documents that the property was given merely as a security for a loan. Now, the question is what was there to show that it was intended to be a mortgage. In such a case the Court would require cogent evidence to induce it to hold that the document is not what it purports to be".
12. ' In Allah Bakhsh's case (PLD 1984 SC 47) it was observed that "an elementary principle applicable to all cases of interpretation of documents is to read the document as a whole, to differentiate between the general statements and particular statements contained therein and to exert and attempt to save the document rather than destroy or nullify it".
13. ' The same principle has been reiterated in the other cases referred to and relied upon by the learned counsel, therefore, need not to be discussed. However, in the case cited from the Azad Jammu and Kashmir jurisdiction referred to hereinabove it was commanded that after the plaint is amended, the. Court should call upon the defendant to file an additional written statement if he chooses to do so, particularly after the newly added defendant's plea in his written statement. "
14. Relevant observation has been recorded at page 523 of the report which is as under:-- "The bare reading of Order VIII rule 9 C.P.C. Enables the Court to require a written statement or additional written statement from any of the parties at any time. After the plaint is amended, the Court shall call upon the defendant to file an additional written statement if he chooses to do so particularly after the newly added defendant's plea in this written statement. In fact it is the duty of the Court to have given an opportunity to the original defendant after the plaint has been amended and new pleadings have been brought on record: The object of the Code is to decide rights of the parties and not to punish them for the mistakes committed in the conduct of their cases. A party cannot be allowed to take a plea inconsistent with the plea taken earlier and the admission once made by a party cannot be revoked without the leave of the Court. No pleading subsequent to the written statement other than by way of defence of set-off can be filed by a party as a matter of right,'
15. ' In order to appreciate the controversy in light of the rule of law laid down in the authorities referred to hereinabove as well as in light of evidence brought on the record, I would like to reproduce the relevant portion of sale-deed executed on 11-4-1977, which is the bone of contention between the parties. The relevant part is reproduced as under:- {{URDU TEXT}} ' A perusal of the above would show that defendants have 'not alienated the total land mentioned in the deed i,e, 18 Kanal 6 marlas. It is clearly stated in the deed that vendors are co-sharers m the khewat and khasra numbers listed in the sale-deed, which in all is 18 kanal 6 marlas. What they have alienated is their own share-falling in the khasra numbers mentioned in the sale-deed. The position stands clarified from the stand taken by the vendors in their written statement as well as by the witnesses produced on behalf of the appellants namely Molvi Ahmed Shah and Fazal Ahmed Shah to some extent. They have categorically stated that only 1 Kanal land was alienated.
16. Though their this statement is not admissible in toto but it is partly relevant to the extent that at least 18 kanal 6 marlas land had not been transferred. These witnesses have not been cross- examined by the respondents, therefore, their depositions would be deemed to have been admitted. Another thing which supports the conclusion is the consideration amount. Though the deed has been executed in 1977 but the locality in which the land is situated 18 Kanal land cannot be alienated on such lesser price.
17. ' The contention of the ,learned Advocate for the respondents that appellant has no right to contest after dismissal of their suit on account of limitation is devoid of any force in the circumstance of this case. Though the declaratory suit has been dismissed on account of limitation but the defendants still have a right to defend their interest saying that they have alienated their specific share from 18 kanal 6 marlas land. In view of their defence and evidence brought on the record the Court can grant them relief under Order XLI Rule 33 notwithstanding the fact that there is no appeal before this Court on their behalf. Order 41 Rule 33 of the Code of Civil Procedure reads as under:-- "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, although such respondents or parties may not have filed any appeal or objection."
18. ' Besides the above statutory provision, this conclusion is also supported by the dictum of the apex Court of Azad Jammu and Kashmir rendered in 1980 CLC 789.
19. The contention of Raja Asif. Kiani, the learned Advocate for the respondents that concurrent findings of fact cannot be disturbed in second appeal is an approved principle of law and is also in line with the scope of section 100 of C.P.C. But when evidence brought on the record is misread or a document is erroneously interpreted, it becomes a question of law and the Court can interfere in such circumstance even in second appeal (PLD 1975 SC 311). Section 103 of the Code of Civil Procedure further makes a room for the purpose. Under this section it is obligatory for the High Court to decide the controversy itself when specific evidence is on the record. Section 103 of C.P.C.
20. Is reproduced is as under.- 'Power of High Court to determine issues of act. In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue of fact necessary for, the disposal of the appeal [which has not been determined by the lower appellate Court or which has been wrongly determined by such B Court by reason of any illegality, omission, error of defect such as is referred to in subsection (1) of section 100] .
21. ' The contention of Sardar Shamshad Hussain Khan, the learned Advocate for the appellants that it was imperative for the trial Court to call upon the defendants for filing additional written statement has a substance but I have found that additional/amended written statement has been filed by the defendants.
22. ' So far the question of deciding additional issue is concerned, as I have made up my mind to decide the case myself because sufficient evidence is available on the record, therefore, it is not desirable to remand the case for the purpose.
23. ' A contemplate perusal of the sale-deed leads to the irresistible conclusion that respondents have alienated only their specific share. This fact was also pleaded in the first suit by the plaintiff himself but he has changed his position by amending plaint subsequently. Now the question which emerges for decision is how much land had been transferred through sale-deed dated 11-4-1977 and what was the share of vendors in relevant khewat and khasra numbers listed in the sale-deed.
24. A perusal of Jamabandi available on the record reveals that Ghulam Haider Khan and Mir Haider Khan sons of Athar Hussain Khan are owners of the land to the extent of 13 marla 6 Sarsai each which comes to 1 kanal 7 marla and 3 sarsai. Mst. Ghulab Nashan widow of Athar Hussain Khan is the owner from the said khewat to the extent of only 6 marlas whereas Rehmat Khan son of Balor Ali Khan is the owner to the extent of 2 kanal 7 marlas, hence, the total share of the vendors comes to 4 kanal 3 sarsai and the sale-deed dated 11-4-1977 has been executed only to this extent.
25. ' The upshot of the above discussion is that the appeal is accepted and the judgment and decree passed by the learned Sub Judge Rawalakot dated 31-3-1988 and that of learned District Judge Rawalakot dated 4-9-2003 stands modified in the terms that these judgments and decrees would be deemed to have been passed to the extent of land measuring 4 kanal 3 sarsai min khasra Nos.216, 467, 583, 580, 467 situated in village Banakha. The suit to the extent of rest of the land would be deemed to have been dismissed for being not maintainable and the preemptor would be entitled to decree for possession in respect of 4 kanal 3 sarsai land. Beyond that neither the land was sold by the vendors nor the suit was maintainable.
26. ' The appeal stands disposed of in the manner indicated above.