' SARDAR ABDUL HAMEED KHAN, J.---The above titled 2nd appeal has been addressed against the judgment and decree passed by the learned Additional District Judge, Kotli on 31-5-2012, whereby the judgment and decree passed by the Civil Court No,1 Kotli on 24-4-2008 has been maintained.
2. Facts, forming the background of the instant 2nd appeal are that Asad Ullah Khan and others plaintiffs/respondents, herein brought a suite for declaration in respect of suit property before the Civil Judge Court No,1 Kotli on 29-7-2003, which was later on amended and in amended suit, the plaintiffs/respondents sought a declaration for some landed properties situated in village Khuiratta and Bhial District Kotli on the basis of a `Punchayatnama' dated 14-5-1954, stating therein that the parties are the owners in possession of the suit land according to the family/private partition made through, the `Punchayatnama'.
3. The suit was contested by the defendants by filing written statement, stating therein that the suit, in its present shape, is not maintainable. It was also claimed that the plaintiffs have got no cause of action and the suit is also barred by limitation. It was further averred that in presence of the Registration Act, any bogus/fictitious or fraudulent document has not legal value and the alleged Punchayatnama is totally false and frivolous/bogus document and repudiated the fact of private/family partition of the suit lands.
4. In light of the pleadings of the parties, the learned trial Court framed as well as 8 issues and the parties were directed to lead evidence. On completion of the proceedings, the learned trial Court, vide judgment and decree dated 24-4-2008 decreed the suit. An appeal against the said judgment and decree was preferred before the learned Additional District Judge, Kotli, who after hearing the parties, also concurred with the trial Court and dismissed the appeal vide the impugned judgment and decree dated 31-5-2012, hence, the supra titled 2nd appeal before this Court.
5. Raja Rafi Ullah Sultani, Advocate, the learned counsel for the appellants, while reiterating the grounds taken in the appeal contended that the so-called partition deed/Punchayatnama is forged one. The parties are co-sharers and the suit land is undivided. The present litigation is the result of application/ suit for partition filed by the appellants and the respondents maneuvered the impugned document just to defeat the legal proceedings for partition. It was further contended by him that the said Punchayatnama was not signed by either party and this fact was also admitted by the plaintiffs/ respondents in their suit. The learned counsel also contended that at the time, when, the Punchayatnama was, allegedly written, the father of defendants Nos. 1, 2 and defendant No,8 were minors and in this regard issue No,3 was also framed. The learned counsel maintained that the learned trial court passed the resolution on the 1st part of issue No,3 but avoided to resolve the 2nd part of the said issue. The learned counsel claimed that had this very issue been resolved, the effect would have been in the shape of dismissal of the suit. The learned counsel claimed that the defendants/appellants, herein adduced ample evidence in support of their version before the trial Court, as well as before the 1st appellate Court but both the Courts below committed fatal error and reached the erroneous conclusion, which is not sustainable in any manner. The learned counsel contended that the learned trial Court, while handing down the impugned judgment and decree, miserably failed to consider and appreciate the documentary as well as oral evidence brought on record by the defendants/appellants herein while the 1st appellate court also fell in error of law, as well as of facts and dismissed the appeal filed by the appellants herein, without due appreciation of evidence, pleadings and law on the subject, hence, the impugned judgment and decrees fall within the definition of misreading and non-reading of record and evidence. The learned counsel further contended that the impugned document creates no right in favour of the respondents as it is an un-registered document and in presence of Registering Machinery, which is functioning since 1949 the document is a nullity in the eye of law, The learned counsel vehemently contended that though this document cannot tie termed as deed of family/private partition and for the sake of arguments, if it is so admitted, even then, under Section 147 of the West Pakistan Land Revenue Act, 1967, it has not been affirmed by the competent authority, which is not admissible in evidence. It was further agitated by the learned counsel that the impugned document was brought on scene for the 1st time in 1999, after the institution of partition suit by the appellants, which is clear proof of this bogus and fictitious document. It was also contended that there is no appeal or cross objection by the respondents, hence, the resolution to the extent of issues Nos.2 and 3 have attained finality, which were resolved against the plaintiffs/respondents.
The learned counsel for the appellants, requested for setting aside the impugned judgment and decrees of both the Courts to below and referred the following case law:--
(1) 2002 CLC 1244.
(2) 2005 SCR 286,
(3) 2009 SCR 38,
(4) 2001 M LD 364,
(5) 2001 M LD 493,
(6) 1999 YLR 1253,
(7) PLD 1952 Dacca 214,
(8) 1993 CLC 233,
(9) 2006 SCR 186,
(10) 2013 M LD 201
(11) 2013 CLC 148.
6. On the other hand, Mr. Riaz Naveed Butt, Advocate, the learned counsel for the respondents controverted the arguments raised on behalf of the appellants and contended that the learned trial Court, after framing issues in light of the pleadings of the parties, discussed each and every issue and considered its merits in a legal fashion and came to the conclusion that the plaintiffs/respondents are entitled to the decree, prayed for. The learned counsel further argued that the learned 1st appellate Court, after detailed examination of the pleadings of the parties as well judgment and decree, impugned therein, in the circumstances of the case, was constrained to concur with the findings of the trial court. The learned counsel maintained that the order of Revenue Officer passed in partition suit dated 3-1-1999 decided on 30-4-2003 has attained finality as not appealed against by the appellants and the suit in question was filed on 29-7-2003, which is within time from the order of the Revenue Officer.
7. The learned counsel vehemently contended that the appellants have stepped in the shoes of their forefathers, hence, stopped by law to challenge the family partition deed as a sacred instrument in the shape of 'Farman-e-Walida Sahiba'. It was further contended that under Order VIII Rule 4 of the C.P.C., the appellant filed an evasive reply to para No,4 of the amended plaint, which amounts to admission. In this way, the resolution passed by both the Courts below warrant no interference. The learned counsel forcefully argued that the document of private partition Exh.'PA' has been proved, by adducing ample evidence in shape of secondary evidence of FW Abdul Hameed, Sardar Ali, as the identifiers of the signatures of the members of 'Punchayat' and one of the participants of the meeting of Punchayat (aged more than 70 years) namely; Muhammad Khan. The learned counsel further contended that DW, Muhammad Hanif, Captain Afzal and one the appellant Muhammad Ilyas confirmed the impeachable character of the witnesses of the Punchayat. It was added that only alive son of Ghulam Hussain Farangi; Muhammad Bashir filed the cognovit before the trial Court, which fully proved the impugned document. The learned counsel, while rebutting the law point regarding veracity and legality of the impugned document of Punchayat, vehemently argued that Section 147 of the Land Revenue Act, 1967 was not in the field in 1954, at the time of execution of the document, hence, the impugned document is not hit by this provision of law rather being a thirty years old document, it has the presumption of truth as provided under Qanun-e-Shahadat Order, 1984. The learned counsel maintained that no reasonable misreading or non-reading of record or evidence has been pointed out by the learned counsel for the appellants and mere mentioning of these allegations in 2nd appeal does not create any ground for interference in the concurrent findings of both the Courts below while, concluding his arguments, placing reliance on the following case-law, the learned counsel maintained that in the present circumstances of the case, no interference by this Court is warranted:-
(i) PLD 1986 SC AJK 109
(ii) 2007 SCM R 497
(iii) 2005 M LD 168,
(iv) 2005 CLC 658
(v) 2007 SCR 491
(vi) 2007 CLC 1089
(vii) 2004 SCR 84,
(viii) 2005 SCR 322,
(ix) 1999 M LD 824
(x) PLD 2007 SC (AJ&K) 63
(xi) 2003 YLR 683
8. I have heard the learned counsel for the parties, gone through the record, appended thereto and considered the controversy involved in the case, with utmost care.
9. It may be stated that total 8 issues were framed by the trial Court, out of which onus of proof of issues Nos. 6, 7 and 8 was on the defendants/appellants, which have been decided against the present appellant by the trial Court. The resolution passed by the 1st appellate Court on these issues are worth-mentioning. Issued No,6 was regarding limitation, I have minutely scanned the plaint as well as amended plaint filed by the respondents, herein but I could not succeed to find any specific averment regarding the limitation of the suit. In this way, the plaint of the plaintiffs/ respondents did not come within the definition of legal pleadings, however, it is averred in content No,12 of the plaint as well in the amended plaint filed on 22-1-2008 'that cause of action arose and right to sue accrued on 30-4-2003 on the pronouncement of the order of Revenue Officer, Kotli' wherefrom, it can be gathered that the date of cause of action is alleged as 30-4-2003 and the suit is apparently claimed to be within time, but it is astonishing that the onus of proof was shifted on defendants, which is totally illegal. It is settled principle of law that 'who alleges, he has to prove' and it is clear that the suit was filed by the plaintiffs/respondents and they were bound to prove the suit to be within limitation. The 1st appellate Court also fixed the thumb impression on this illegal findings of the trial court, without application of judicial mind. Basically, the beneficiaries of the document are the plaintiffs/ respondents, as claimed by them. The background of execution of this family deed is stated to be the paying of the debts by one, Raja Fazal Dad, the father of the respondent, Assad Ullah and others.
10. Before resolving the issue of limitation it is pertinent to mention that issue No,2 was regarding the payment of debts of the grandfather of the appellant, namely; Ghulam Hussain Khan alias 'Farangi' and the onus of proof was on the plaintiffs/respondents read with issue No,3 regarding minority of the plaintiffs/ respondents. Both the issues have been decided against the respondents, which have not been objected by way of appeal or cross objections before the 1st appellate Court as well in this court, hence, attained finality.
11. As said earlier, issues Nos.2 and 3 have attained finality, then, it affected the foundation of the impugned document. In this background, when the statement of one of the plaintiff/ respondent; Raja Asad Ullah Khan is perused, which reveals that the impugned document was given to him by his father, Raja Fazal Dad Khan, who died in October, 1996 and the date/year of birth of Raja Asad Ullah Khan, is 1957/1959, wherefrom, it is evident that he was about 37/39 years old. It is important to note that the deceased Fazal Dad Khan, after execution of the alleged document in 1954 till 1996 did not bother to get the affirmation of this document by competent authority and from 1996 to 2003, the above-said plaintiffs/respondents also did not bother to get the document implemented/confirmed as required under law.
12. The fact of non-proving of payment of debts by Raja Fazal-Dad Khan, and non-challenging of these resolutions by the plaintiffs, the execution of the alleged document becomes questionable/doubtful. Moreover, the long sleep of the 1st beneficiary of the document; since 1954 to 1996 (more than 4 decades) and further silence of the plaintiffs/respondents for more than 7 years; from 1996 to 29-7-2003 made it crystal clear that this declaratory suit of the plaintiffs/ respondents was hopelessly time-barred, which is not covered even under residuary article of limitation Act. i,e, Article 120.
13. In view of the above facts of the record, the issue of limitation becomes crystal clear that the suit for declaration filed by the plaintiffs/respondents was time-barred and I order accordingly.
14. Next important issue No,8 was regarding the legality of the impugned document, in the following words:-
15. It will not be out of place to note that issues Nos.1, 4 and 8 are to the same effect. In my estimation, the issue No,1 was a sufficient issue to determine the controversy. The onus of proof of issues Nos.1 and 4 was on the plaintiffs/ respondents and the defendants/appellants were under obligation to rebut the same, however, the cumulative effect of all these three issues is that what is the legal value of the impugned private/family partition deed' which is bone of contentions in the present lis .
16. Keeping aside the factual position of the impugned document of family partition the question of law raised regarding the impugned document, is of vital importance. The learned counsel for the respondents, Mr. Riaz Naveed Butt, while meeting the objection raised by the learned counsel for the appellants, regarding the affirmation of the document by the Revenue Authorities, forcefully pleaded that the document was born before the enforcement of West Pakistan Land Revenue Act, 1967. Obviously, it took place in 1954, hence, the document/deed of family/private partition, Exh.'PA' is exempted from such confirmation/ ratification by any authority.
17. Having considered the contentions of the learned counsel for the parties, this Court is justified to hold that the impugned document is central tower of the litigation and question of its admissibility and legality is the only question which is a question of law, in the light of relevant law, it is important to place on record that before the adaptation the West Pakistan Land Revenue Act, 1967, (Act XVII 1967), in 1988, which has been adopted vide Azad Jammu and Kashmir Adaptation of Laws Act, 1988 dated 8-6-1988; the Punjab Land Revenue Act, 1887, (Act XVII of 1887) was holding the field in the Azad Jammu and Kashmir, which has been repealed by the Act, ibid. It will be beneficial to add that provisions relating to proposition in hand are provided in Section 167 read with Sections 143, 144, 145 and 146 of the West Pakistan Land Revenue Act, 1967, reproduced, hereunder, and the conforming sections of the Punjab Land Revenue Act, 1887 are Section 123 read with Sections 119, 120, 121 and 122. These provisions in both the Acts are same and are with no change, no modification no substitution no addition or deletion or amendment.
143. Administration of property excluded from partition. When any such property as is referred to in clause (b) of Section 136 is excluded from partition, the Reyenue Officer may determine the extent to and the manner in which the co-sharers and other persons interested therein may make use thereof, and the proportion in which expenditure incurred thereon and profits derived therefrom are, respectively, to be borne by and divided among those persons or any of them.
144. Distribution of Revenue and rent after partition.---(1) The amount of revenue to be paid in respect of each of the holdings into which land has been divided on a partition shall be determined by the Revenue Officer making the partition.
(2) The decision of the Revenue Officer under subsection (1) as to the revenue to be paid in respect of each holding shall, where the estate in which the holding is situate is subject to a fixed assessm ent, be deemed to be an order under subsection (67).
(3) Where new estates have been created at a partition and the land revenue has been fraudulently or erroneously distributed among them, the Board of Revenue may, within twelve years from the time of discovery of the fraud or error, order a new distribution of the land revenue among the several estates, on an estimate of the assets of each estate at the time of the partition to be made conformable to the best evidence and information procurable respecting the same.
145. Instrument of Partition. When a partition is completed, the Revenue Officer shall cause an instrument of partition to be prepared and the date on which the partition is to take effect to be recorded therein.
146. Delivery of Possession of property allotted on partition. An owner to whom land is allotted in proceedings for partition shall be entitled to possession thereof as against the other parties to the proceedings and their legal representatives, and a Revenue Officer shall, on application made to him for the purpose by any such owner at any time within three years from the date recorded in the instrument of partition under section 145, give effect to that instrument so far as it concerns the applicant as if it were a decree for immovable property.
147. Affirmation of partition privately affected.---(1) In any case in which a partition has been made without the intervention of a Revenue Officer, any party thereto may apply to a Revenue Officer for an order affirming the partition.
(2) On receiving the application, the Revenue Officer shall enquire into the case, and if he finds that the partition has in fact been made, he may make an order affirming it and proceed under Sections 143, 144, 145 and 146, or any of those sections, as circumstances may require, in the same manner as if the partition has been made on an application to himself under this Chapter."
18. Keeping in view the above provisions of law, to resolve issues. Nos. 1, 4 and 8, the case-law relevant to the proposition is reproduced hereunder:-- 2001 M LD 364 5.. We have given due consideration to the matter. It is admitted fact that the parties are co- sharers in the suit land. However, each of the parties claims that the suit land had fallen to its share in pursuance of private partition. It may be observed that private partition does not change the nature of the joint property and the same remains joint until and unless it is partitioned by the Revenue Authorities according to the Land Revenue Act. 2006 SCR 186.
4. We agree with the learned Judge of the Shariat Court to the extent that as the witness from whom the document is being got exhibited has neither prepared the document nor was in possession of the document, hence, he could not testify of exhibit document.
2013 M LD 201 ' Even if said document was treated as a deed of private partition, even then it did not attain finality or created any right because under section 147 of the West Pakistan Land Revenue Act, 1967, all the partitions privately affected, were subject to affirmation by the competent Revenue Officer according to prescribed procedure.
' Mere thirty years age, would not make a document un-rebuttable or absolute proof-such a document, according to the facts and circumstances of the case was subject to rebuttal.
2013 CLC 148 ---Principle that concurrent findings of fact could not be disturbed in second appeal, though was an approved principle of law and was also in line with the scope of S.100, C.P.C., but when evidence brought on the record was misread or a document was erroneously interpreted, it would become a question of law and the Court could interfere in such circumstances, even in second appeal section 103, C.P.C., had further made a room for the purpose; as under said section it was obligatory for the High Court to decide the controversy itself when specific evidence was on record.'
19. Rest of the case law, referred by learned counsel for the parties is not relevant in the proposition in hand, hence, need not to be discussed.
20. In the light of the above legal position and the verdict of the apex Court of Azad Jammu and Kashmir, this Court has no hesitation to hold that the impugned document, claimed to be deed of Family/ private partition is neither a partition deed nor it operated among all the co-sharers, even if the said document is treated as a deed of private partition, even then, it did not attain finality or created any right because under Section 147 of the West Pakistan Land Revenue Act, 1967, all the partitions privately affected are subject to affirmation by the competent Revenue Officer according to prescribed procedure. Hence, in the light of the above stated reasons, issues Nos. 1, 4 and 8 are resolved in terms that the impugned Punchayatnama dated 14-5-1954, (Exh. 'PA') is not a legal document, upon which no relief could be granted to the plaintiffs/respondents. Moreover, in the light of the statement of the only person, who allegedly witnessed the proceedings of so-called Punchayat, namely; Muhammad Khan son of Faiz Ullah Khan, aged 73 years, in 2005 did not utter a single word about the presence of the share-holders of the properties in his examination-in-chief, hence, the suit fails on score of evidence, too.
21. Issue No,5 and issue of relief are the same in the light of the resolutions on other issues, it is clear that the plaintiffs/respondents were not entitled to any relief, whereas, on issue No,7, no findings are required as the suit was decided after evidence and on merits.
22. I am not oblivious of the matter that it is a second appeal, where the concurrent findings are not subject to usual interference by this Court, under Section 100 of the C.P.C., but when a document.
Brought on record was erroneously interpreted or admitted in evidence or misread, it would become a question of law and this court is justified to interfere in such circumstances, even, in 2nd appeal. It is obligatory for the High Court to decide the matter itself, when, evidence is also on record. For this purpose Section 103 of the C.P.C. Makes a room and gives the power to this Court read with Order XLI Rule 33 of the Code of Civil Procedure.
23. Another aspect of the case needs resolution regarding a consent decree. During the pendency of the lis a suit was filed by Muhammad Bashir, respondent No,16, on 5-8-2005 and a cognovit was filed by respondent No,1 (Assad Ullah), on 23-9-2005 and consent decree was issued in favour of the respondent No,16, which is sufficient proof of the fact that the plaintiffs/respondents are in possession in excess to their shares and it also negates the fact of the execution of family partition and its implementation. The statement of Patwari Muhammad Ilyas is also important, wherein he has stated that Fazal Dad and Muhammad Bashir had alienated some pieces of land by sale-deed but no land was sold out of the property of Faqir Ullah.
24.Leaving everything aside, it is un- rebutted that the impugned partition deed is neither an admitted document nor an affirmed deed by the revenue authorities, hence, carries no value and creates not right in favour of the plaintiffs/respondents nor can deprive the defendants/appellants from their lawful right for asking the Revenue authorities for partition of suit lands being co-sharers according to their legal shares as recorded in the revenue record. It is also an admitted fact that the parties are already in joint possession of the land and the remedy lies with the revenue authorities by seeking the partition of the suit land.
25. The crux of the above detailed discussion is that the instant appeal is accepted, impugned judgments and decrees of both the courts below dated 24-4-2008 and 31-5-2012 are hereby set aside. Resultantly, the Suit filed on behalf of the plaintiffs/respondents stands dismissed for want of proof, cause of action as well as being time-barred, with costs.
26. Order announced in the open court, the file shall be consigned to record after due completion, by sending back the record of the courts below. Second .