' SARDAR ABDUL HAMEED KHAN, J. --- The above titled appeal has been preferred against the judgment & decree passed by the learned Addl. District Judge, Muzaffarabad on 05.09.2005, whereby, accepting the appeal filed on behalf of respondents, herein, the judgment & decree passed by the learned Civil Judge, Muzaffarabad dated 31.03.2004 has been vacated.
2. Curtly, stated facts of the case are that Syed Arif Hussain Shah & others, real respondent, herein brought a suit for declaration and as a consequence for possession, against the appellant herein, in respect of land comprising khewat No. 444/124, surevy Nos. 524 & 525 old, measuring 16 kanals situated in village Majhoter Tehsil & District Muzaffarabad, before the Court of Civil Judge, Muzaffarabad on 14.09.2001. It was averred that the suit land was in Mir possession by way of sale- deed and mutation No. 0 and decree dated 30.11.1980 as well as the agreement to sell dated 30.10.1958.
3. The suit was contested by the defendants by filing written statement, wherein, they refuted the claim of the plaintiff.
4. . The learned Trial Court, in light of the pleadings of the parties, framed issues and directed the parties to lead evidence in support of their respective claims.
5. On completion of the trial, vide judgment & decree dated 31.03.2004 dismissed the suit for want of proof as well as on the ground of limitation.
6. Feeling aggrieved from the said judgment & decree, plaintiff/respondents, herein knocked the door of the District Court Muzaffarabad by way of appeal on 19.05.2005, which was accepted vide order dated 05.09.2005, hence, the above titled appeal before this Court.
7. Sardar K.D. Khan, the learned counsel for the appellant has addressed the Court at length and argued that the learned Trial Court very right dismissed the suit of the respondents/plaintiffs for want of proof as well as being time barred. Whereas the first Appellate Court passed the impugned judgment in vacuum and did not bother to decide the appeal, by discussing and resolving all the issues.
8. The learned Counsel contended that the impugned judgment & decree, being derogatory to the legal provisions is liable to be set aside. The learned counsel vehemently argued that though sale- deed dated 06.04.1963 has not been exhibited in the evidence but the mutation thereof bearing No. 340 dated 10.11.1964 is on the record. The learned counsel while summing up his forceful arguments contended that the appellant is in the possession of the land by virtue of agreement to sell, a decree passed on filing the cognovits by father of respondents and sale-deed and under Section 53-A the appellant is entitled to retain the possession of whole the suit property, resultantly the impugned judgment passed by learned District Judge is a case of misreading and non-reading evidence as was as misconstruction of law,' which cannot be termed as judicial order/judgment under Order XX, Rule 5 of C.P.C. Finally, the learned counsel prayed for acceptance of appeal, vacation of the impugned judgment & decree and referred an unreported case, Civil Appeal No. 16/1984, titled Raja Muhammad Ismail Khan .v. Muhammad Muzaffar Khan & others, decided on 31.08.2001.
9. On the contrary, Ch. Muhammad Kaleem Afsar, Advocate, the learned counsel for the respondents, has filed written arguments, wherein, he has controverted the stance of the appellant and supported the impugned judgment & decree. Finally it is contended that there is no limitation for the suit land for possession by a land owner and the appellant is in possession of suit property without any legal right. Finally arguing that the appeal has been filed for procrastination of the litigation, therefore, the same be dismissed with costs.
10. I have heard the learned counsel for The parties scanned the record of the case.
11. It may be stated that the learned Court below, being 1st Appellate Court, was under legal obligation to discuss and resolve each and every issue, in favour of either party as required under Order XX, rule 5 o the C.P.C. But the impugned judgment has been passed, in hasty and telegraphic manner and in this eventuality, the case was of remand to the Court below as postulated under Order 41, rule 23. But the matter of the fact is that a glance perusal of the record persuaded me to proceed under Order 41, rule 24, C.P.C., because sufficient evidence is on record to determine the case, finally.
12. The impugned judgment, even if, prima facie does not fulfill the requirements of Order XX, rule 5 of the C.P.C. But the same does justify the spirit of justice. Hence, a judgment cannot, and must not be nullified on the technicalities,. That too, in the circumstances when sufficient evidence in support of the judgment is available on record.
13. Having made above observations, I have scanned and considered the impugned judgment, coupled with the record available on the file, minutely and have come to the conclusion that some transactions of suit land took place between Abdullah Shah and Abdul Rehman. As a result of which, the present /is.
14. The crux of the matter is that the respondent Arif Hussain Shah and others filed suit for possession of landed property old survey Nos. 524, 525 new survey No. 694 which was recorded 3 Kanals, 9 Marlas in revenue record after settlement operation, however later on as a result of correction of entries of record by the revenue authority vide mutation No. 237 it was recorded as 7 Kanals & 17 Marlas. Wherein it was alleged that the defendant appellant herein has taken the possession of the suit land 7 Kanals; 14 Marlas (now recorded as 7 Kanals, 7 Marlas in latest revenue record) in the garb of decree dated 30.11.1980 as well as an agreement to sale dated 30.10.1958 pertaining to old survey No. 523 new No. 695 bearing 8 Kanals, 6 Marlas. It is also noted that the amended plaint was filed by the respondents and the amended written statement was also filed by the appellant herein. The perusal of the written statement it transpired that the defendant/appellant has averred for holding the possession by virtue of decree dated 31.11.1980 and agreement to sell dated 30.10.1958 but not specifically alleged any other sale-deed. However, a casual assertion is made in the written statement that the defendant is holding the possession of the land by virtue of sale-deed, decree and agreement to sell. It is further averred that the petitioner is entitled to retain possession of the land in continuation of agreement to sell dated 30.10.1958 as provided under Section 53-A of Transfer of Property Act.
15. While keeping in view the averment made in the pleadings of the parties 1 have gone through the statement of appellant Abdul Rehman wherein he stated, that he is holding the ownership to have the possession of land by virtue of sale-deed of 3 Kanals and agreement to sell of land measuring 3 Kanals and decree of the suit land 'measuring 5 Kanals & 5 Marlas. He further stated that the sale-deed was executed in 1958 and agreement to sell was also executed on 1958. He further stated that the agreement to sell has lost hence the copy of the 'same has been filed. From the cross-examination it transpired that the appellant could not exhibit copy of the sale-deed.
However, the learned counsel for the appellant contended in his arguments that the copy of the sale-deed was not necessary to produce as the copy of mutation thereof bearing No. 340 is a public document which is on record. It is noted that a photo-stat copy of the sale-deed dated 06.04.1963 is also on record. The joint reading of entries/contents of agreement to sell dated 30.10.1958, sale-deed dated 04.06.1963 and the mutation No. 340 dated 10.11.1964 it can safely be concluded that initially the agreement to sell was made of land measuring 3 Kanals out of Khewat No. 118 and later on 04.06.1963 the sale-deed was executed of the land measuring 3 Kanals out of survey No.
523. From the entries of mutation No. 340 it transpired that survey No. 523 was firstly the part of Khewat/Khata No.
118. It is pertinent to note that survey No. 523 was total measuring 8 Kanals, 5 Marlas out of which the land measuring 3 Kanals was alienated firstly through agreement to sell which was later on transferred through sale-deed dated 04.06.1963 and mutation thereof was attested on 10.11.1964.
16. In view of the above while appreciating this documentary evidence on the touch stone of preponderance of probability of facts, the settled principle of appreciation of evidence in the civil cases, it is safely concluded that the transaction of 3 Kanals land is one transaction which started by execution of agreement to sell and completed through sale-deed of 1963 and rest of the land of the above-said survey number (5 Kanals, 5 Marlas) was decreed on filing of cognovits by the father of respondent which resulted into decree dated 30.11.1980 and in this way the total land me buring 8 Kanals, 5 Marlas survey No. 523 old which has been now recorded as survey No. 695 measuring 8 Kanals, 6 Marlas was alienated to the appellant. Whereas the appellant by ambiguous averment made in the written . Statement as well as in his Court statement claims more land, which if calculated comes to 11 Kanals, 5 Marlas. Though it is not the matter of fact, even then the appellant has not justified the possession of the remaining land in his possession which is 4 Kanals and 17 Marlas. It is worth mentioning that survey Nos. 524, 525 new survey No. 694 was the ownership of father of respondent which has now been inherited by the respondents/plaintiffs.
17. In the above scenario it is crystal clear that the respondents neither challenged the decree dated 03.11.1980 nor agreement to sell of the land measuring 3 Kanals, hence limitation for cancellation of the document/decree in case of declaratory suit will not run in this case, thus the learned Trial Court reached erroneous conclusion and erred in holding the suit as time-barred and misconstrued the law of limitation for suit for possession by a land owner, whereas no limitation runs against a lawful owner for possession of his landed property. This view of .The Court is fortified by the following case-law:--- ' PLJ 2013 SC (AJ&K) 215 2013 SCR 29 ' PLJ 2013 SC (AJ&K) 215 ' Limitation Act, 1908 (IX of 1908) ---Art. 144---If suit for possession of immovable property was filed after period of limitation--- Right to property would be extinguished-Validity-Limitation for filing suit for possession of immovable property was 12 years, if adverse possession of party was proved---Right of plaintiff was to be extinguished but S. 28 was amended through amending Act, 1992---If suit for possession of immovable property filed beyond period of limitation prescribed, which was under Art. 144 of Limitation Act, right would be extinguished but after amendment right of an owner of property was not extinguished, only remedy for filing suit for possession beyond period of limitation was barred and title of owner remains intact.
' 2013 SCMR 29 ' Specific Relief Act (I of 1877)
' There was no prescribed limitation for filing a suit for possession on basis of title---Suit for possession was competent---Mutation in question was sanctioned on basis of decree passed in favour of plaintiffsrespondents-Revenue authorities were under obligation to act upon the decree of Civil Court-Civil appeal was dismissed by Supreme Court.
18. While considering the findings of the trial on each issue it transpires, that total 9 issues were framed which are reproduced here under:- {{URDU TEXT}}
19. It is noted that the issue No. 1 pertaining to cause of action was decided in favour of the respondents, whereas issue No. 8 pertaining to improvements made on the suit land was resolved against the defendant-appellant. It is pertinent to mention that the appellant did not file any appeal against the resolution passed on issues No. 1 & 8 neither filed cross objections in the 1st Appellate Court, hence, resolution on these two issues have attained finality. Thus it is observed that no improvements have been made on the suit land by the appellants. It is pertinent to resolve that issue No. 2 pertaining to limitation was resolved, by Trial Court erroneously because this was a suit for possession of land and not for cancellation of any document/decree. No limitation runs against an owner for seeking possession of his land from an aggressor, so, issue No. 2 stand resolved in favour of the respondent in the light of verdict of apex Court reproduced here-in-above.
As for as the resolution passed by the Trial Court on issue No. 3 is concerned, it is also erroneous which pertains to possession of the land mentioned in the agreement to sell for the protection of possession under Section 53-A of Transfer of Property Act has also been resolved against the law.
As it has been held in the above paras that the total two transactions were made between the parties and the agreement to sell of 1958 was merged in sale-deed on execution of sale-deed in 1963 an the respondents have no objections on the retention of the possession by the appellant to the extent of survey No. Of 523, new 695 measuring 8 Kanals, 5 Marlas now recorded I revenue record as 8 Kanals and 6 Marlas.
20. Issue No. 5 was not a necessary issu otherwise it has been erroneously decided in favour of the appellant/defendant.
21. Issue No. 4 is against evidence and the learned Trial Court has not read correctly the entries revenued record. As said above that the latest revenue record which was prepared in year 1998-99, the land mentioned above is in the ownership of the respondents and the possession of the appellant is recorded as (Ghair Moroo hence the resolution on issue No. 4 is resolved in favour respondents-plaintiffs.
22. In the light of above discussion issue No. 5 resolved in favour of respondent and against the appellant as said earlier after proper appreciation of the evidence documentary as well as oral keeping in view the principle appreciation of evidence in civi case. It is concluded that the appellant took over the possession of the land in the garb of above two transactions of above-said piece of land by taking advantage of the minority/absence of the respondents-plaintiffs.
23. As issue No. 4 stands resolved in favour of the respondents-plaintiffs therefore, they were entitled to possession as has been held by first Appellate Court in a right direction.
24. Issue No. 6 is also part of issue No. 5 which stands resolved in favour of the respondents/plaintiffs accordingly. It has been found during settlement operation that the suit land survey No. 694 recorded as 7 Kanals & 17 Marlas is in the possession of appellant without any legal rights.
25. Now coming to issue No. 7 which was to be proved by the defendant/appellant, in case issues No. 5 & 6 not proved by the plaintiff. As, these issues have been resolved in favour of the respondents/plaintiffs hence the resolution on issue No. 7 is not necessary. It is also important to add that there is no quarrel between the parties regarding the land alienated by virtue of agreement/saledeed as well the decree as said above, and the appellant is entitled to enjoy the possession of the land Khasra No 695 measuring 8 Kanals, 6 Marlas and plaintiffs/respondents have no concern with this piece of land.
26. In the light of above findings this Court reached the conclusion that the judgment and decree for possession passed by the learned Additional District Judge.
Muzaffarabad dated 05.09.2005 in respondents/plaintiffs against the appellant/defendant warrants no interference by this Court. Resultantly the instant appeal stands dismissed with no order as to the costs.
27. Order announced. The file shall be consigned to record after sending back the record of Trial Court.