SARDAR ABDUL HAMEED KHAN,, J.---The above titled appeal has been addressed against the judgment and decree passed by District Judge, Rawalakot on 28.08.2003 whereby, the appeal of the appellants was dismissed and the judgment and decree of Additional Sub-Judge, Rawalakot dated 27.11.1997 was maintained.
2. Tersely, the facts forming background of the above captioned appeal are that two civil suits pertaining to land comprising survey No.29 min 29 min measuring 12 kanals 11 marlas situated at village Bai Balkh Dakhli, Dhamni were filed before Sub-Judge Rawalakot on 15.07.1990 and 11.08.1990.
Mohammad Hussain Khan (predecessor-in-interest of appellants herein) filed his suit claiming therein that he purchased the suit land from the father of respondents namely, Ghulam Mustafa through a sale-deed executed in his favour on 17.05.1973. He entered into the suit land as full owner and from there onward he occupied the same by raising construction over it however, the defendant-respondents maneuvered a fictitious gift-deed allegedly executed on 15.10.1966 and on the basis of the said document they are claiming the suit land as their ownership. He sought declaration to the extent that he was owner of the property and the gift-deed dated 15.10.1966 was ineffective and inoperative against his rights. Both the parties refuted the claim of each other through their written statements in response to their cross suits. Muhammad Hussain deceased controverted the averments in the cross-suit on the ground of limitation, non-delivery of possession in case of gift-deed along with genuineness of gift-deed allegedly executed in favour of respondent son 15.10.1966. The respondents controverted the claim of predecessor-in-interest of present appellants inter alia on the ground that their father namely Ghulam Mustafa (defendant No.2) was not competent to execute sale-deed dated 17.05.1973 in favour of father of appellants because prior to execution of said sale-deed he had transferred the suit land in their favour through a gift-deed dated 15.10.1966.
3. Both the suits were consolidated by the learned trial Court and after having done so the issues were framed. The parties led their evidence and finally the suit by the respondents was allowed by dismissing the cross suit filed by Muhammad Hussain deceased or his successors-in-interest (appellants) through the judgment and decree dated 27.11 1997. Feeling aggrieved the appellants filed an appeal before District Judge who after hearing the parties, also dismissed the same vide impugned judgment and decree dated 28.08.2003. Hence, the above titled appeal before this Court.
4. This Court through its order dated 24.12.2004, after examining the facts and in view of the pleadings of the parties, remitted the case to the trial Court after framing the issue i.e. "1. Whether the suit by respondents/plaintiffs (civil suit No.333 dated 11.8.1990) is within limitation?" with the direction that the trial Court shall conclude the trial of said issue positively within two months. The learned trial Court in compliance of the Court order heard the parties and recorded the evidence on the aforesaid issue. On conclusion, the learned trial Court after hearing the parties, recorded the findings for dismissal of the suit No.333 filed on 11.8.1990 titled "Mohammad Latif v. Mohammad Hussain and others" through its findings/judgment dated 30.11.2006.
5. Raja Aziz Kayani, Advocate the learned counsel for the appellants argued that the findings of the Courts below except fresh findings on additional issue of limitation are result of non-application of mind to the pleadings and evidence brought by the plaintiff which resulted into a wrong conclusion. The learned counsel further argued that the appellant's father entered into possession of the suit land in the year 1973 as a full owner on account of a sale-deed executed in his favour by the father of the respondents and this sale-deed was executed in presence and knowledge of respondents but despite the fact neither their father; Ghulam Mustafa nor they challenged it till the death of their father in the year 1988. The learned counsel contended that it is on record that the parties were contesting over the suit land and the sale-deed in favour of father of the appellants was result of an amicable settlement through a Plainchant in the year 1973. This sale-deed was impeached through a pre-emption suit by the sisters of the respondents however, their suit on account of failure in payment of sale consideration was disallowed consequently, sale-deed remained. Intact. The learned counsel further contended that both the Courts below have not considered the evidence produced by the appellants in its true perspective and fell in grave error while dismissing the suit and appeal of the appellants. Finally, the learned counsel prayed that by accepting the appeal of the appellants the suit filed by respondents may be dismissed and a decree in light of sale-deed dated 17.05.1973 may be passed in favour of the appellants by setting aside the impugned judgments passed by the Courts below.
6. On the other hand, Sardar Masood Ibrahim, Advocate, the learned counsel for respondents filed written arguments and contended that the judgment and decrees passed by the learned Courts below are in right direction which warrant no interference by this Court. The learned counsel further contended that the findings of the Courts below were concurred with each other and no illegality, irregularity or perversity have been found in it thus, needs no indulgence by this court. The learned counsel further contended that the defendants/respondents have proved their claim through oral and documentary evidence and the learned trial Court as well as 1st appellate Court has rightly passed the decrees in their favour. The learned counsel further contended that the sale-deed of year 1973 comes in the purview of defective documents and has no legal value at all. Finally, the learned counsel prayed that the impugned judgment and decree of both the Courts below may be maintained and appeal filed by the appellant be dismissed with heavy costs and referred the following case law:--
1. 2007 SCR 310
2. 1999 CLC 828
4. 2005 SCR 67 (sic)
5. 2001 M LD 184
6. PLD 1975 SC 624
7. I have heard the learned counsel for the parties and gone through the record of the case with due care.
8. Although the learned Courts below have rendered concurrent findings, but for the safe administration of justice, I opted to scan the impugned 'judgment and decrees along with the record, available on file and have noted the following points/facts:--
1. The land in dispute was purchased by Qazi Ghulam Mustafa; the predecessor in interest of the respondents, from the father of Muhammad Hussain, plaintiff-defendants, (the father of present appellants).
2. A lengthy litigation prevailed. Between the parties and ultimately, a 'Punchayat' took place in 1973, as a result, whereof, the impugned sale-deed dated 17.05.1973 and mutation No.634 in furtherance of the said sale- deed was attested on 24.11.1974.
3. The gift deed dated 15.10.1966 allegedly executed by Ghulam Mustafa in favour of his sons remained behind the curtain and after the mutation of land pertaining to survey No.29 total measuring 12 kanal 11 marlas in favour of Muhammad Hussain vide mutation No.634 dated 24.11.1974 the gift-deed was brought before revenue authorities for attestation of mutation after about 10 years and the mutation No.759 was sanctioned on 16.07.1976, whereby, the land in the ownership of Ghulam Mustafa including survey No.29 was mutated in favour of the plaintiff/respondents.
4. Suit for declaration and cancellation of sale-deed dated 17.05.1973 was brought before the Court on 11.08.1990, claiming therein that the plaintiffs, have got knowledge of the impugned sale-deed in 1988.
5. Presence of one of the plaintiff-respondents along with his brother in the 'Punchayat' is established through the said documents and other evidence on record.
6. Prior to the filing of the declaratory suit, the sister of the plaintiffs filed a suit on the basis of right of prior purchase, which succeeded but was dismissed on non-deposit of the decretal amount.
7. It reveals from the record that the suit was filed against Ghulam Mustafa in 1990 against a dead person, which stood abated to his extent vide order of trial Court dated 16.09.1991. It further transpires that the suit was firstly drafted by the respondents on 29.02.1988 and Ghulam Mustafa died in March, 1988 and after the reconstruction of record the suit was again filed on 11.08.1990. In this eventuality, the plaintiff/ respondents have also stepped into the shoes of their father as legal heirs, hence, they were bound by the obligation of their father.
9. It may be stated that this Court, vide order dated 24.12.2004 referred the matter of limitation to the trial Court for determination, which has been resolved by the trial Court against the plaintiffs and in favour of the defendants/appellants, herein.
10. The plaintiffs in Suit No.333, have taken the plea that they have got knowledge of the impugned sale-deed in 1988 but the file speaks contrary to their version because the presence of some of the defendants in previous litigation; criminal and civil as well. As the presence of some defendants in the Punchayat, which resulted into the execution of the sale-deed dated 17.05.1973 is established, therefore, the learned trial Court has rightly declared the suit time-barred while resolving the issue framed by this Court.
11. It is also on record that the impugned sale-deed was challenged by one of the sisters of the plaintiffs and the same succeeded but due to non-deposit of decretal amount, therefore, it cannot be held that the plaintiffs were not in the knowledge of the said transaction.
12. The plaintiffs in suit No.333 kept sleeping over the gift-deed dated 15.10.1966 till 1976 and thereafter, approached the revenue department for attestation of mutation, which is a subsequent transaction and can never be B preferred over the existing and prevailing status of the land in question.
13. The possession of the suit land remained with the defendants/appellants, herein continuously and no evidence supporting the plea of the plaintiffs-respondents that the possession was for the purpose of grass cutting could be established by them before the trial Court nor any record is available on the file.
14. The gift-deed dated 15.10.1966 contains the gift of different landed property or the said Ghulam Mustafa, which also includes the suit land survey No.29 total measuring 12 kanals 11 marlas, whereas, the sale-deed is regarding survey No.29 measuring 12 kanals 11 marlas land which was purchased by Muhammad Hussain, (predecessor of the defendants/ appellants) herein, in lieu of consideration money worth Rs.4900 and mutation, therefore, was also attested prior to the mutation in favour of the plaintiffs/ respondents, therefore, the said transaction, if proved, may be termed as an ineffective transaction, which is ineffective and inoperative on the rights of the vendees coupled with the fact of possession of the vendee and the gift-deed is being without delivery of possession to the plaintiff/ respondents, in 1966 at time of execution of gift or even at time of attestation of mutation in 1976.
15. If for the sake of arguments, it is presumed that the suit land, along with other land was gifted to the plaintiffs through gift-deed, the plaintiffs would have raised objection in the Punchayat and also after the execution of sale- deed, which was in their knowledge, being participants of the Punchayat and litigation prior to the sale-deed. Moreover, they could also raise objection on the filing of the pre-emption suit by their sister but they kept mum for a pretty long period and then after the death of their father, they knocked the door of the court, which was hopelessly time- barred.
16. It may also be observed that the gift-deed to the extent of land excluding the impugned land may be effective, even if the same is declared non-existent, even then, the inheritance of the deceased will have to devolve upon his descendants, therefore, no resolution to the extent of remaining land is warranted rather it may be added that the gift deed dated 15.10.1966 and mutation, thereto, to the rest of the land cannot be challenged by the appellants.
17. In view of above it can safely be concluded that the instant case is crystal clear case of misreading and non-reading of evidence, therefore this Court is fortified to reverse these concurrent findings of the Courts below and it is safely concluded that the impugned gift deed dated 15.10.1966 and mutation thereto, bearing No.759 dated 16.07.1976 is liable to cancellation to the extent of survey No.29 total measuring 12 kanal 11 marlas, which is the property of appellants and they are owners with possession of the piece of land and I order accordingly.
18. So far, the case law referred by the learned counsel for the respondents is concerned, the same has no direct relevance with the controversy in hand, hence, need not to be discussed in detail.
19. The nutshell of the above discussion is that the instant appeal is accepted, the impugned judgment and decrees of the learned courts below, are set aside and the suit filed on behalf of the Muhammad Siddique and others, plaintiffs Suit No.333 is hereby dismissed. Resultantly, the suit filed on behalf of Muhammad Hussain and others is decreed to the extent of land survey No.29 total measuring 12 kanals 11 marlas situated in village Bai Baikh Dakhli Dhamni and sale-deed dated 17.05.1973 as well as mutation thereof, bearing No.634 dated 24.11.1974 stand restored and it is decalred that Muhammad Siddique and others, plaintiffs in Suit No.333 shall have no concern with the suit land. No order as to costs.
Order announced. The file shall be consigned to record after due completion and sending back the record of the Courts below.