' SARDAR ABDUL HAMEED KHAN, J.---The above captioned appeal has been filed against the judgment and decree passed by the learned Additional District Judge Hajira on 19-10-2012, whereby, the judgment and decree passed by the learned Civil Judge Hajira dated 28-6-2012 was maintained.
2. It may be stated that the perusal of the record of the case after arguments, it reveals that respondent No. 1, Hassan Muhammad died during the pendency of appeal and respondents Nos. 2 to 4 are his legal heirs who have been arrayed as respondents vide order dated 22-5-2014, whereas, they have already been arrayed as respondents Nos. 2 to 4. Therefore, the name of respondent No. 1 is deleted and respondents Nos. 2 to 4 are re-numbered as respondents Nos. 1 to 3 by deleting the name of respondent No. 1 and by correcting the title, it is re-titled as Muhammad Ayub v. Muhammad Azad and 2 others.
3. Precise facts of the case are that Muhammad Ayub, plaintiff/ appellant herein, filed a suit for declaration in the Court of Civil Judge Hajira on 13-8-2008, for cancellation of Mutation No. 81 attested on 22-3-1962 in respect of land survey No. 598 old, present 528, 529, 547 measuring 7 kanal 7 marlas situated in village Phagwati Tehsil Hajira. It is claimed that the impugned mutation is outcome of fraud and actually no such oral sale and mutation was even made. It is further stated that the appellant entitled to take the possession of land measuring 3 kanals bearing Khasra No.529. It is further stated that the disputed land was the property of father of plaintiff, who was an illiterate person and had no knowledge about the challenged mutation and the consent statement dated 23-7-1963 is also result of fraud. On filing of suit defendants/ respondents herein filed written statement and rejected the claim of the plaintiff and prayed for rejection of the plaint.
After filing of the suit the learned trial Court framed issues and parties were directed to lead evidence in support of their claims. After completing the trial, learned trial Court dismissed the suit vide judgment dated 28-6-2012. Feeling dissatisfied from the said judgment and decree filed an appeal before Additional District Judge Hajira on 1-8-2012 and the said Court also dismissed the appeal through judgment and decree dated 19-10-2012, hence, this 2nd appeal.
4. Sardar Muhammad Ejaz Khan, Advocate, the learned counsel for the appellant contended that the impugned judgment and decree of learned first appellate Court is hit by Order XLI, Rule 31 of C.P.C. As the same has not been passed in the light of provisions contained in Order XLI, Rule 31 of C.P.C. He further contended that the learned trial Court has not discussed the evidence on each issue, hence, this is a case of misreading of evidence of the parties, thus, the, judgments of both the Courts below cannot be termed as judgment under Order XX, Rule 5 of C.P.C. The learned counsel for the appellant seriously criticized the resolution on issues Nos. 1 and 2 pertaining to cause of action and limitation and it has been argued that no resolution in the light of the evidence of the parties has been passed on issue No. 11, which issue was of vital importance in the controversy in hand. The learned counsel prayed for acceptance of appeal and referred the following case-law; 2012 CLC 1274, 2014 M LD 1340 2014 M LD 1759 and 2015 M LD 470.
5. On the other hand, Mr. Sikandar Raja, Advocate, the learned counsel for the respondents, repudiated the arguments advanced on behalf of appellant, supported the impugned judgement and decrees on all four corners and contended that these are concurrent findings of two Courts below, wherein, no misreading or non-reading of evidence or mis-construction of law is pointed out. The learned counsel prayed for dismissal of the appeal and relied upon 2013 CLC 1013.
6. I have heard the learned counsel for the parties and gone through the record of the case with utmost muse.
7. From the arguments of the learned counsel for the appellant, it emerged that the learned counsel has agitated that both the Courts have delivered the judgments without discussing the evidence and without appreciating the evidence on each issue. In view of the important objection of the learned counsel, for the appellant I have scrutinized whole the record, where from, it transpires that in this case most of the evidence is of documentary nature, A whereas, appellant/plaintiff has got recorded evidence of only one witness namely Khan Muhammad son of Feroz Muhammad and got his own statement recorded, whereas, the defendant/ respondent, Hassan Muhammad (now deceased) has got recorded only his own statement and exhibited other documentary evidence. While going through the documentary evidence, it transpires that respondent/defendant has contested the claim of the appellant/plaintiff on the strength of judicial order/judgment of sub-judge Pallandri camp Rawalakot dated 23-7-1963 along with a copy of application as well as statement of father of appellant, Mohammad Ayub namely Khan Bahadar Khan and another judgment/order of Civil Judge Hajira dated 29-7-2004.
8. In this view of the matter, it may be observed that the objection of the learned counsel regarding validity of the judgment under Order XLI, Rule 31 as well as under Order XX, Rule 5 of C.P.C. Are of vital importance because the documents placed on the record are the judgments of the Courts, of which, the Court may take judicial notice as provided under section 111 of Qanun-e-Shahadat Order, 1984 and even it does not need to be formally proved. It may be added that these previous judgments are relevant to bar a second suit/trial. It may also be noted that allegation of fraud or collusion for obtaining judgment or incompetence of the Court be proved but the matter of the fact remains that a judicial order need not to be proved. In this eventuality, when the Court may take judicial notice and must take judicial notice, hence, in such like eventualities, the formalities of delivering the judgment on each issue become of a secondary importance. It may also be added that Articles 54 to 57 of Qanun-eShahadat Order, 1984 deal with subject of the relevancy of the judgments or adjudication. For proper appreciation. Article 54 and Article 111 of Qanun-eShahadat Order, 1984 are reproduced hereunder:-- "54. Previous judgments relevant to bar a second suit or trial. ---The existence of any judgment, order of decree which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such Court ought to take cognizance of such suit or to hold such trial".
111. Fact judicially noticeable need not be proved. ---No fact of which the Court will take judicial notice need be proved.
9. There is no quarrel with the proposition that issues and relevant facts must be proved by evidence either oral or documentary. However, through this rule there are two exception, one of fact judicially noticeable and second is fact admitted. Now I would like to refer the above noted order/judgment of Sub-Judge Rawalakot in Suit No. 65 instituted on 26-9-1962 and decided on 23- 7-1963 by Sardar Muhammad Sharif Khan (late) Sub Judge 1st Class Pallandri Camp Rawalakot as he than was pertaining to declaratory suit relating to land out of survey No. 598 measuring 6 kanal 3 marlas, share of plaintiff situated in village Paghwati Tehsil Sudhnuti, which is reproduced hereunder:-- {{URDU TEXT}}
10. It is pertinent to add that this order of the Court is exhibited as Exh.PB along with the statement on the back of the application for withdrawal of suit, which is annexed as Annexure "PA". It is further added that now the new survey numbers have been entered in the revenue record as 528, 529 and 547, land measuring 7 kanal 7 marlas. These new numbers are the part and parcel of old survey No.598. A bare reading of the contents of application Exh.PA, it transpires that father of the plaintiff has withdrawn his claim after receiving Rs. 200 as cost of the suit by stating that he forever withdraws from the case and the related issues.
11. The second suit filed by the appellant which has been decided on 29-7-2004, wherein, it has been noted by the learned Civil Judge Hajira, that the parties are co-sharers and they have approached the revenue authorities for partition of their landed property and for this reason, the suit of the plaintiff was dismissed/ rejected under Order VII, Rule 11 of C.P.C.
12. It is also not disputed between the parties, that the respondents have filed an application for partition of the landed property of Khewat No. 245 survey Nos. 528, 529 and 547. In this view of the matter the remand of the file on the basis of technicalities or some infirmities as contended by the learned counsel even if so found, is not justified for the above noted reasons. It may also be added that there is sufficient evidence on record to dispose of the case on merits as discussed in above paras. It is pertinent to mention that in the light of above noted judgment of the trial Court which are the part of the evidence of the case formal quotation of evidence for resolution on issue No. 11 is of no importance because no evidence by the appellant to prove the fraud or collusion in obtaining the above judgment has been produced. There is not an iota of evidence to this effect is on record. Mere assertion that his father was an illiterate person, F cannot take place of evidence of fraud or collusion etc. It is astonishing that the appellant/plaintiff got the knowledge of this alleged fraud after about half a century that too after a long period of demise of his father. It is important to note that the appellant/plaintiff has stepped into the shoes of his father and he is bound by judicial acts of his father/predecessor-in-interest. In these circumstances the stance of the learned counsel for non-discussing the evidence in resolution on issue No. 11 is without any force because there is sufficient material is on record, whereas, nothing has been proved by the appellant as alleged in pleading. In this eventuality resolution on each issue was not necessary because the 1st Appellate Court has concurred with the trial Court and has not reversed or modified the judgment of the trial Court.
13. This view of the Court is also fortified by 2013 CLC 1013, decided by Apex Court of Azad Jammu and Kashmir in case titled Sardar Begum and 5 others v. Mohammad Ilyas and another. The Apex Court. In para 4 of the judgment observed, the relevant portion of the case is reproduced as under:- "4. We have perused the judgment of the District Judge. Although the District Judge has not recorded the findings issue-wise but he has considered the record, which was the part of the file of the sub-Judge and dismissed the appeal after considering the whole record. Here we may observe that under Order XLI, Rule 31 of the Civil Procedure Code, it is enjoined upon the appellate Court to state the points for determination, decision thereon, the reasons for the decision and where the decree appealed from is reversed, the relief to which the appellant is entitled. The recording of findings issue-wise is the requirement of the rules but where the Court comes to the conclusion that the appeal can be decided without recording findings on each and every issue and delivers the judgment after considering the record, then the judgment is valid one".
14. Now coming to the concluding stage, as said above that, I have scrutinized the whole record of the case and both the impugned judgments of both the Courts below, these are concurrent findings of the facts and both the Courts recorded their findings in their own way but reached the same conclusion and dismissed the suit of the appellant concurrently, which merits no interference.
15. As far as the stance of the learned counsel for the appellant regarding issue No. 11 is concerned, I have also gone through the record and it is pointed out from the record that issue No. 11 regarding the compromise deed dated 23-7-1963, was the result of some fraud or collusion in obtaining the judgment of the Court. It is obvious that onus of proof is on the plaintiff and findings to this effect has been recorded by the trial Court that no evidence to prove the fraud or collusion has been brought on record. It will not be out of interest to note that this application/ compromise was signed by father of the appellant before Sub-Judge Pallandri camp Rawalakot, a Judge, who is not now between us, but known as symbol of integrity, honesty namely late Sardar Muhammad Sharif Khan, retired Chief Justice of Azad Jammu and Kashmir High Court.
16. While concluding I will not hesitate to say that the learned counsel made zealous efforts to make out his case and point out the legal technicalities but record of the case does not support these able efforts of the learned counsel, hence despite of his hectic efforts could not succeed.
17. The case-law referred by the learned counsel for the appellant is not directly relevant to the proposition in hand in peculiar circumstances and facts of the case, hence, need not to be discussed.
18. From the above, it may safely be concluded that neither any mis-reading or non-reading of evidence or mis-construction of law has been found in the concurrent findings of both the Courts below and in this eventuality the failure of the instant appeal is natural and legal one.
19. In light of what has been stated above, the instant second appeal is being without any substance is hereby dismissed. No order as to costs.
Second .