RAJA MUHAMMAD KHURSHID KHAN, ACTG. C J.----This appeal to assail the judgment passed by a learned Single Judge of the High Court on 25-5-1972 was pending before a Division Bench of the High Court when, on 19-11-1974, under the provisions of Judicial Board Act it stood transferred to the Judicial Board (now Supreme Court) for disposal.
2. The dispute arises out of a suit by respondents' father, Khushia, for declaration of the acquisition of the occupancy rights through adverse possession of the suit land, measuring 2 kanals 5 marlas, falling under survey Nos. 1502 and 1503 (previously 1130), which was dismissed by the trial Court but decreed by the District Judge, Mirpur, on 1-5-1971. The finding of the learned District Judge was also affirmed on second appeal by a learned Single Judge of the High Court on 25-5-1972. The learned Judge in the High Court as well as the District Judge has concurrently found that Khushia had acquired occupancy rights over the suit land through adverse possession. It may be mentioned here that the proprietary rights of the suit land were held by an evacuee while the appellant- defendants were recorded as occupancy tenants.
3. The appeal was lodged by two contesting defendants, namely, Sher Muhammad and Jan Muhammad. Others admitted the claim of respondents. Both of them are dead. The legal representative of Sher Muhammad, however, have been brought on record but the legal representatives of Jan Muhammad have not been impleaded. It is interesting that the parties even do not know as to whether Jan Muhammad died during the pendency of appeal before the High Court or in this Court.
4. The question which falls for determination is: ------ Whether the death of Jan Muhammad, as argued, by Qazi Abdul Ghafoor, causes total abatement of the appeal or his death, as contended by Raja Muhammad Siddique, Advocate, would only cause the abatement to the extent of his share in the land ?
5. The well recognized principle is that if an appellant dies and his legal representatives are not brought on record, the appeal will abate In toto if the decree is indivisible or his share is not ascertainable. Conversely, if the decree is divisible or his share can be ascertained the abatement would to the extent of his share only.
6. In the instant case an indivisible decree based on adverse possession had been passed in favour of the respondent-plaintiffs. The decree being indivisible, the death of Jan Muhammad, therefore, would cause the total abatement of the appeal. No laboured arguments or deep thought is required to hold so. In the event the appeal of Sher Muhammad is accepted the decree for adverse possession, relating to the portion of Sher Muhammad, would vanish but on the same cause of action and subject the decree in favour of the heirs of Jan Muhammad would stand. If the decree is allowed to stand in favour of the heirs of Jan Muhammad deceased but set aside in relation to the portion of Sher Muhammad ; then two inconsistent decrees with regard to the same subject-matter would come into being which would be against the well recognized principle of administration of justice.
7. The principle of abatement, therefore, as we understand is that where the decree is joint and indivisible the failure to bring the legal representatives of any one of the appellants challenging such a decree on record, in time, would result in the abatement of the appeal as a whole. As stated earlier, in this case the decree in favour of the respondents on the basis of adverse possession is indivisible. This very question came for consideration in `Allah Dad and others v. Nawab and others'
(PLD 1960 Lah. 277). Mr. Justice Muhammad Shafi, J., discussing the point observed :------- "The next question which has to be considered is as to whether by reason of the fact that the appeal has abated so far as one appellant and one respondent are concerned, it abates as a whole or not. The test is whether in the event of an appeal being accepted in favour of the remaining appellants or against the remaining respondents, there would or would not be two contradictory decrees in the same litigation with respect to the same subject-matter. It is an elementary principle of administration of justice that a Court should be called upon to make two inconsistent decrees about the same property and in order to avoid conflicting decrees, the Court must dismiss the appeal as a whole. Where the interest of the defendants in the suit or those of the plaintiffs are joint and indivisible, then necessarily, if the appeal is accepted, two inconsistent decrees in the same case with respect to the same subject-matter are likely to come into existence. It is for this reason that in such cases it had been held that the appeal must abate as a whole. In the instant case the decree has been passed jointly in favour of thirteen plaintiffs against all the defendants. If the decree is allowed to stand in favour of Nur Hussain but set aside in favour of the remaining plaintiffs-respondents, or it is allowed to stand as against Allah Dad and set aside as against the retraining appellants, then two inconsistent -decrees with regard to the same subject-matter will come into being which would be completely against the well established principles of administration of justice. On the death of Nur Hussain and Allah Dad, therefore, the whole appeal has abated."
8. It would thus appear that where there are more appellants that one and the decree appealed from proceeds on any common ground to all the appellants and any one of the appellants dies and the decree is not divisible or the shares are not ascertainable, the appeal must abate in toto.On this short ground this appeal is liable to be dismissed.
9. Even on merits the appellants have no case. In support of the claim the respondents-plaintiffs examined Abdullah, Hassan Muhammad Ismail, Muhammad Sharif, Noor Muhammad and Hussaina. They all state that the land remained in uninterrupted and continuous possession of Khushia (deceased) who treated it as his occupancy. This evidence also gets convincing support from the documentary evidence comprising the copy of the Crops Inspection Register from Rabi 1999 to Kharif 2002 and Jamabandi 2003 to 2004 Bikirmi. These two documents enter Khushia in possession Bawajan Tasawer Muroos Kud---.This entry appears to be correct as it had not been challenged in cross-examination to the Patwari when examined as a witness by the plaintiffs to prove these copies.
10. Raja Muhammad Siddique, the learned counsel for the appellants, however, challenged the validity of the reasoning advanced by the learned Single Judge, inter alia, on the grounds-------
(i) that Exh. P. C. (this document is tendered in evidence by the respondents) a copy of ---Misla Haqeqat--- and Exh. D. A. (copy of the Crops Inspection Register from 1959 to 1961), tendered in evidence by the appellants, belie the stand of adverse possession taken by the respondents inasmuch as both these documents record Jan Muhammad, one of the co-sharers, and not respondents being in possession in the capacity of a co-sharer; but the learned Single Judge in the High Court misdirected himself to ignore this important aspect ; and
(ii) that the entries in these two documents, in fact, run counter to the case of the respondents (plaintiffs) inasmuch as the respondents claim adverse possession but these entries show that Jan Muhammad was in occupation of the disputed land and there is no reason not to place implicit faith in these taro documents.
11. We regret we cannot agree with the learned counsel for the following reasons;----
(a) The document Exh. P. C. (copy of Misla Haqeqat ) enters a fact which is not the case of any one of the parties. The respondent-plaintiffs claimed adverse possession over the suit land for holding the possession adversely to the appellants uninterruptedly for more than twelve years prior to 23- 11-1964 when the suit was moved. Sher Muhammad, the contesting defendant, in his written statement, on the other hand, ciaimed that the respondents' possession was permissive. It would thus appear that the entries made in Exh. P. C. And Exh. D. A. Are belied even by the averments of the parties in the plaint and written statements. Obviously these entries- have been rightly ignored.
(b) Exh. P. C. Does not show the year to which it pertains.
(c) The rent column in Exh. P. C. Records the possession of the cultivator as. It is not the case of Jan Muhammad, that he ever held the land as owner in disclaiming the title of the proprietors. His case precisely is that he acquired proprietary rights under the Land Reforms Act. The entry in the document Exh. P. C. Therefore, has been even--repudiated by Jan Muhammad in whose; name it stands.
(d) The mere entry in the revenue record, unless it does not get support from any other quarter, would not support the entry and cannot be accepted, One has to interpret such an entry in the light of the facts and the circumstances of the given case.
11. The ordinary classical requirement of adverse possession is that it must be adequate m continuity and in extent to show that it is a possession adverse to the competitors. A wrong notion, it appears, .Is entertained by the subordinate Courts that the quantum of proof in the civil cases is as much strict as is required in criminal cases. In fact it is not so. In civil cases only preponderance of probability is sufficient to record a finding in favour of the parties, while in criminal cases the offence must be established beyond reasonable doubts. It, therefore, follows that in civil cases the Courts have to see cumulative effect of all the material placed on record and if such material creates the preponderance of probability in favour of a party, that party must win the case.
12. We are convinced that the respondents held the land in their own rights and the appellants placed them at an equal footing with themselves. The respondents, we are convinced, had continuously been enjoying the whole produce of the land and paid nothing to the appellants.
There is thus a great deal of force in the plea of adverse possession raised in the present case.
13. The facts have revealed that the appellants, for a long period of 23 years, had never been paid any rent or land revenue and, therefore, it is legitimate to have a conclusion that the land, in clear ouster and in denial of the title of the appellants, remained in possession of the responder s/t uninterruptedly spreading over a period of 23 years. What more is needed to prove adverse possession ?
14. There is another factor worth consideration. Whether evidence makes out a case of adverse possession is undoubtedly a finding of fact ? A finding on a question of fact is open to attack as erroneous in law only if it is not supported by any evidence or if it is unreasonable and perverse ; but where there is evidence to consider the decision (as the case is before us) even though the High Court might not, on the materials, have con to the same conclusion if it had the power to substitute its own judgment, it would not be a ground to re-open this fact. The High Court has no jurisdiction to entertain the second appeal on the ground of erroneous finding of fact however gross and inexcusable the error may seem to ire unless the error is in the procedure provided by law which may possibly have produced an error or defect in the decision of the case on merits. A fallacy in appraising the evidence, as was contended before us, as to a fact unless it amounts to material mistaken assumption, is merely an error of law justifying interference in second appeal.
15. It is important that the finding of fact regarding adverse possession, as would appear from the observation made at page 2 of the report of the High Court, was not seriously challenged by the appellants. All that was argued is that occupancy tenancy cannot be acquired by adverse possession. This contention was thoroughly discussed and repelled and quite understand ably it has not been re-agitated before us. A matter which had beenabandoned in the lower Court, we feel, cannot, in the circumstances of the case, justifiably be made a ground of grievance again before us.
16. The learned District Judge as well as the learned Judge in the High Court has recorded well reasoned out judgments and we do not find any reason to disturb the finding on the points which have been raised before us and had been taken anti debated in both the Courts below. It had repeatedly' been emphasised that the Supreme Court would not permit a party to raise those very points which have been duly discussed and decided by the Courts below unless such a finding suffers from any apparent defect.
17. In this case the High Court has applied its mind to the facts of the case and has come to the conclusion, and in our view very rightly, that the learned District Judge has correctly recorded a finding of adverse posses--sion in favour of the respondents.
For the above-stated reasons, this appeal fails with costs.