The above titled appeal has been directed against the judgment and decree of District Judge Bhimber dated 12.11.2001, whereby the appeals of the appellants were dismissed by the said Court.
2. The brief facts forming the background of the instant appeal are that Muhammad Alam and others filed Suit No, 69/95 for declaration and cancellation of gift-deed dated 2.1.1995 in respect of land measuring 8 kanals, comprising new Survey No, 672, in the Court of Sub Judge Samahni on 23.5.1995. The contesting party, Raja Haq Nawaz Khan and others filed Suit No, 134/95 for declaration and possession in the same Court in respect of the same land on 7.9.1995. Later on, Raja Haq Nawaz Khan and others also filed another Suit No, 129/96 for declaration in the same Court through which they challenged the entries recorded in the revenue record. As the respondents in their suits had impleaded the revenue officials of AJ&K Government as answering defendants, therefore, vide order dated 18.11.1999, the learned Sub-Judge Samahni passed an order for return of both the suits No, 134/95 and 129/96 filed by Raja Haq Nawaz Khan and others for presentation before the Sub-Judge Bhimber as the suits against the Government Departments under the orders of the learned Chief Justice of the High Court were to the instituted at the Headquarter. This order of the Sub-Judge Samahni was not challenged in appeal by Raja Haq Nawaz Khan and others. However, in respect of the same land, the suit filed by Muhammad Alam and others on 23.05.1995 was awaiting disposal before the same Court, therefore, the Sub-Judge Samahni made a Reference to the District Judge Bhimber requesting the transfer of all the aforestated three suits to Sub-Judge Bhimber. The Reference was allowed and the cases were sent to the Sub-judge Bhimber. The Sub-Judge Bhimber ultimately vide his order dated 26.01.2001 dismissed the suit filed by Muhammad Alam and others and decreed the first suit filed on 7.9.1995 by Raja Haq Nawaz Khan and others before the Sub-Judge Samahni. An appeal was taken by Muhammad Alam and others before the District Judge Bhimber which was dismissed by the said Court on 12.11,2001. Muhammad Alam and others availed the right of second appeal before the High Court on 4.2.2002 which was partly accepted by the High Court vide its judgment dated 12.10.2002 to the extent of Suit No, 69/95 and the finding of 1st Appellate Court are maintained. Against the aforesaid judgment of High Court both the parties went in appeals before the Apex Court of Azad Jammu & Kashmir on 4.12.2002 and 11.12.2002 respectively. After hearing both the parties, the Apex Court by setting aside the impugned judgment of High Court dated 12.10.2002 and by accepting both appeals remanded the cases to this Court to seek wisdom on the merits of the cases of both the parties. After receiving of these files, the case was fixed for arguments.
3. Sardar Muhammad Azam Khan, the learned counsel for the appellants Muhammad Alam and others argued that the trial Court decreed the suit filed by respondents whereas the cross suit filed by Muhammad Alam was dismissed for want of proof vide its judgments and decrees dated 26.01.2001. He further argued that the appeal of the appellants Muhammad Alam and others was dismissed and upheld the judgment and decree of trial Court vide judgment end decree dated 12.11.2001. The learned counsel further contended that the Courts below failed to appreciate the evidence in its true perspective which resulted into wrong conclusion. According to the learned counsel, the trial Court as well as the 1st Appellate Court did not decide the matter keeping in view the facts on record. According to the estimation of the learned counsel, the suit which was dismissed for having been returned was decreed through the same was not restored by any order of the Court, it was explained that the suit filed on behalf of respondents in the Court of Civil Judge Samahni were returned as the Court has no jurisdictional competence. He further contended that it is crystal clear from the record that Suit No, 134 is no more in the Court of Sub-Judge Samahni according to the estimation of the learned counsel that the respondents obtained a decree with the connivance of Senior Civil Judge which is not presented before the Senior Civil Judge.
Furthermore, the suit land is Shamlat-Deh land and the gift deed is not maintainable because the gift-deed was without possession. Finally, the learned counsel prayed that the impugned judgments and decrees of both the Courts below dated 12.11.2001 and 26.01.2001 may be set-aside and the decree may be passed in favour of the appellants by accepting their suit. In support of his contention, the learned counsel cited the following case law:--
1. 2002 SCR 31,
2. 2006 SCR 92,
3. 2007 SCR 468,
4. 2008 SCR 207,
5. 2009 SCR 158.
4. On the other hand, Ch. Lal Hussain, the learned counsel for the respondents who representing the respondents accepted that there were three suits, one was filed on behalf of the appellants while the other suit filed on behalf of plaintiff respondents. The suits filed on behalf of the respondents were dismissed for having been returned. It was also accepted that respondents filed another suit before the Senior Civil Judge Bhimber which was subsequently dismissed by the trial Court. The learned counsel further argued that the suits file on behalf of respondents though were returned but those were consolidated with the suit file by the appellants therefore, the suits were also transferred to the Senior Civil Judge Bhimber alongwith the suit filed or behalf of respondents on the transfer application moved on behalf of the respondents, as such, the points raised on behalf of the appellants merits no consideration. The learned counsel zealously argued that the judgment of the trial Court was upheld by the 1st Appellate Court therefore, under Section 100 of CPC, the second appeal is not competent before this Court.
5. I have heard the learned counsel for the parties and gone through the record of the case with utmost care.
6. First of all I would like to reproduce the relevant Para of 1st appeal filed by the appellants in the Court of District Judge, which is as under:-- {{URUD TEXT}}
7. It reveals from the above para of appeal that Suit No, 134 was pending in the Court of Senior Civil Judge. According to the appellants, the Senior Civil Judge consolidated both the suits and decided.
Therefore, in the light of para above of the appeal, the objection raised by the learned counsel for the appellants is not tenable in the eye of law.
8. It is pertinent to mention here that appellants in 1st appeal as well as in the appeal in hand did not raise the plea that the impugned judgment was obtained with the connivance of the Court. I am of the view, that during the arguments they did not raise any sort of objection which is not part of file, the Apex Court in this case declared that two suits were exist, therefore, the question of connivance does not arise. The Para No, 1 of the memorandum of appeal is very much relevant which is as under:-- {{URUD TEXT}}
9. The next question whether or not the gift deed without possession is valid?
It is by now settled principle of law that a stranger cannot object the gift with regard to possession only the donee can challenge the gift deed on the basis of possession. The same like proposition arose before the Apex Court of Azad Jammu & Kashmir in a case titled Muhammad Bashir and others Vs. Muhammad Yaqoob & others [1993 SCR 161], in which the learned Judges held as under:- "We have given due consideration to the arguments raised at the bar. First coming to the question as to whether the gift-deed executed by Mst. Bago in favour of Gulla is not valid because the same was not followed by the delivery of possession, it may be stated that it is well settled principle of law that the objection regardirtg non-delivery of possession, it may be stated that it is well settled principle of law that the objection can only be raised either by the donor or his heirs and not by a third person. There is no dispute in the instant case that the plaintiff, Alif Din or for that matter his legal representatives are not legal heirs of Mst. Bago. Thus, the gift-deed in question could not be challenged on the ground of non-delivery of the possession. We find support in our view from the cases reported as Muhammad Lal V. Mohko [PLD 1979 AJK (SC) 27], Kalu Beg Afzal & Beg V.
Gulzarbeg Lal Beg (AIR 1946 Nag. 357), Fazal Ahmad V. Mst. Rokhi (PLD 1958 Lah. 218) and Saida V.
Finnu [NLR 1979 Civil SC (AJK 732]. Therefore, we are of the view that the argument that the gift was invalid on account of non-delivery of possession is not tenable and is devoid of any merits"
In view of above observation, this plea of the appellants seems to be without force thus, the same is repelled.
10. It is pertinent to mention here that the trial Court dismissed the suit of appellants whereas decreed the suit of respondents which is upheld by 1st Appellate Court. A second appeal can only lie on the grounds mentioned in Section 100 of C.P.C., which do not envisage a second appeal against a concurrent finding of fact. It has been observed in many cases that a finding of fact is conclusive in second appeal unless it is arrived at by committing an error of law or procedure. The same principle apply with greater force in the case of concurrent findings of fact by two Courts therefore, such findings are conclusive in second appeal unless an error of law or procedure is committed in arriving at the findings. It is pertinent to mention here that a litigant who seeks reversal of findings in second appeal which have been arrived at by the trial Judge and after having been carefully affirmed in appeal, comes always with a very heavy burden upon his shoulder. It is celebrated principle of law that concurrent finding appellate Court could not be disturbed by the High Court in second appeal under Section 100 of CPC.
11. It will be relevant to note here that in the case in hand, the learned trial Judge after examining the evidence of the parties rightly dismissed the suit with cogent and sound reasons. The learned counsel for the appellant miserably failed to point out any misreading or non-reading of evidence committed by the trial Judge. The learned District Judge has also discussed the evidence thoroughly and he has drawn a right conclusion. In this view of the matter, I am of the view that such finding shall be upheld. The impugned judgment and decree of the 1st appellate Court based on cogent reasons.
12. The case law cited by the learned counsel for the appellant have no relevancy with the facts and circumstances of the present case, therefore, need not to be discussed.
In the light of facts listed above, finding no force in this appeal, it is hereby dismissed.