' MOHAMMAD AZAM KHAN, CJ. -- The titled appeal by leave of the Court arises out of the judgment and decree of the High Court dated 9.5.2012, whereby the appeal filed by the appellants herein, has been dismissed.
2. The respondents filed a suit for cancellation of consent decree dated 23.11.1998 and mutatim No, 359, dated 17.8.1999 and also sought possession of the land against the appellants, herein, in the Court of Senior divil Judge, Samahani on 8.5.2002. After necessary proceedings, the Trial Court decreed the suit through judgment dated 25.6.2005, set aside the consent decree dated 23.11.1998 titled Muhammad Tufail and others Vs. Sabir Hussain and others and also cancelled mutation No,
359. Dissatisfied, the appellants herein filed an appeal in the Court of District Judge, Bhimber. The learned District Judge through judgment and decree dated 18.8.2006 dismissed the appeal.
Second appeal was filed in the High Court on 15.11.2006. During pendency of appeal in the High Court, the appellants filed an application under Order XLI, Rule 27, CPC, for producing the documents i.e, the copies of sale-deeds registered on 14.4.1990, 23.8.1992 and 4.1.1993 and the copies of decrees passed by Civil Judge, Samahani dated 30.11.2001 and 23.11.1998 as additional evidence. The learned Chief Justice in the High Court dismissed the application for producing additional evidence and also dismissed the appeal on merit.
3. During pendency of appeal in this Court, the counsel for the appellants on 20.9.2013 filed an application for bringing on record the legal heirs of deceased respondents No, 1 and 2, in the line of respondents. The respondents filed objections on the application stating therein that respondent No, 1 died on 11.12.2007 and respondent No, 2 died on 2.3.2007, thus the application is time-barred and merits dismissal. They also produced the attested copies of the death certificates issued by the concerned authorities. The Additional Registrar after recording the statements of the witnesses of the appellants and referred the matter to the Court for decision.
4. Ch. Muhammad Mumtaz, Advocate, counsel for the appellants, submitted that the land is shamilat deh. The appellants and respondents reside at different places, away from each other.
The appellants were not in the knowledge of the death of the respondents. They had impleaded the respondents in the memorandum of the petition for leave to appeal before this Court and when the notice sent for service upon the respondents was returned with the report of process-server, they acquired the knowledge that the respondents are dead. The learned counsel submitted that the date of death incorporated in the death certificates cannot be relied upon in the evidence because the matter of death was reported and registered in the Union Council after filing of the application for bringing on record the legal representatives of deceased respondents No, 1 and 2.
He submitted that the limitation shall start running from the date of knowledge. Soon after attaining the knowledge, they filed an application for bringing on record the legal heirs of the deceased. The learned counsel relied upon the case reported as Abdul Shakoor Vs. Muhammad Rafique and 8 others (2013 SCR 771). He submitted that even otherwise the fact of death of respondents No, 1 and 2 will not affect the case as a whole because the land is shamlat deh, wherein the appellants are also sharers and the appeal cannot be dismissed.
5. While controverting the arguments of the counsel for the appellants, Mr. Zaffar Hussain Mirza, Advocate, counsel for respondent No, 3, submitted that respondents No, 1 and 2 died on 11.12.2007 and 2.3.2007 respectively. This fact is proved from the death certificates brought on the record by the respondent. The parties are residents of the same village. The appellants were negligent in filing the application for impleadment of the legal heirs of the deceased. The appeal has abated in toto and merits dismissal.
6. On merits, Ch. Muhammad Mumtaz, Advocate, counsel for the appellants, argued that the learned Chief Justice of the High Court dismissed the application for bringing on record the additional evidence without any justification. The appellants purchased the land in the village alongwith share in the shamilat deh land through three sale-deeds i.e, dated 14.4.1990, 23.8.1992 and 4.1.1993. The appellants wanted to produce the same in additional evidence alongwith the copy of the judgment and decree dated 23.11.1998 and 30.11.2001, wherein the suits filed by the respondents in respect of shamilat deh land have been dismissed. All the documents are part of the official record and the copies of the official record can be produced in evidence at a later stage. The learned counsel further submitted that the appellants are owners in the village. The appellants are sharers in the shamilat deh land as out of four brothers, the land was in possession of two brothers, which was transferred by them to the other two brothers through consent decree.
7. While controverting the arguments of the counsel for the appellants, Mr. Zaffar Hussain Mirza, Advocate, counsel for the respondent, submitted that additional evidence can only be allowed on the application of a party, if the Trial Court has refused to accept the same or the Court feels necessity for bringing on record the said document for just decision of the case. The documents were available to the appellants when the written statement was filed by them. They did not file the documents alongwith the written statement. They are not entitled to file the documents at the belated stage. From the record it is proved that the appellants are not owners in the village Choki, therefore, they are not entitled to the possession of shamilat deh of the said village. The judgment of the High Court is perfectly legal. The learned counsel requested for dismissal of the appeal.
8. We have heard the learned counsel for the parties and perused the record.
9. Firstly we would like to resolve the question for impleadment of legal representatives of deceased respondents No, 1 and 2. The respondents brought on record the death certificate issued by the Secretary Union Council that respondents No, 1 and 2 died on 11.12.2007 and 2.3.2007, respectively during the pendency of appeal in the High Court. Respondents No, 1 and 2 were dead when the petition for leave to appeal was filed in this Court. Petition for leave to appeal was filed against the dead persons. The application for impleadment of the legal heirs of the deceased has been filed on 20.11.2013. The appellants have produced witnesses in the Court. Miskeen, one of the witnesses, stated that he does not know the exact date of death. Muhammad Sharif, a witness of the appellants, stated that he is not in the knowledge of the death of the respondents. In the cross- examination, this witness stated that he does not know the exact date of death, however, both the respondents died in the year 2007. Jan Muhammad, witness, one of the appellants, deposed that the respondents died one year and three months ago. It is on the record that both the parties are residents of the same village, therefore, the arguments of the counsel for the appellants that they could not attain the knowledge, has no force. Reliance is placed by the counsel for the appellants on the case reported as Abdul Shakoor Vs. Muhammad Refique and 8 others (2013 SCR 771). The referred case is of no help to the case of the appellants because in the said case, the appellants were respondents in the High Court and the petitioners in the High Court had not arrayed the legal representatives of proforma respondents in the High Court. The Court declared that it was not fault of the appellants. They are entitled to move application from the date of the knowledge. The present appellants were also appellants in the High Court. Respondents No, 1 and 2 died during pendency of appeal in the High Court. The petition for leave to appeal was filed in this Court against dead persons. An application for impleading the legal representatives of respondents under Order XV, Rule 8 of the AJ&K Supreme Court Rules, 1978, may be filed within a period of 90 days. The Court has power to extend the time, if sufficient cause is shown by the party. It is proved that the respondents died in the year 2007 during pendency of the appeal in the High Court. The application has been filed in this Court on 20.9.2013, beyond the period of limitation. No case for extension of time is made out by the appellants. The application is dismissed.
10. It has been proved from the evidence that respondents No, 1 and 2 died during pendency of the appeal in the High Court in the year 2007. The appellants have filed appeal in this Court against dead persons. It is settled law that the suit or appeal against a dead person is not maintainable. It was observed in the case reported as Muhammad Ibrahim Vs. Custodian Evacuee Property and 10 others (PLJ 1999 SC (AJ&K) 413), as under:- "4. In our view the application moved on behalf of Muhammad Ibrahim is misconceived. The application to bring on record the legal representatives is only maintainable in respect of an appellant or a respondent but Ghulam Rasool was neither an appellant nor a respondent in this Court because admittedly before the living person and a dead person cannot be treated as a respondent. Therefore, the application for substitution of the legal representatives was liable to be dismissed in any case, irrespective of the fact whether the application was barred by time or not. If a dead person is impleaded as a respondent it may be possible to implead his legal representatives but that will be a case of addition of new party and not of substitution. Since the application for substitution was not maintainable, this appeal also cannot bear any fruit."
11. The respondents challenged the consent decree in respect of Shamilat Deh land with the consequential prayer of possession. The suit was decreed. The consent decree was set aside and it was ordered that the defendants shall handover the possession of the suit land to the plaintiffs.
12. We have carefully perused the whole record.
' Three Courts below have recorded concurrent findings of facts. There appears no misreading or non-reading of record. The Trial Court as well as the first Appellate Court has dawn the conclusion that the decree in favour of Muhammad Tufail and Fazal Hussain, in respect of shamilat deh land, is illegal and Sabir Hussain 'and Jan Muhammad are in illegal possession of the shamilat deh land and ordered that the possession be handed-over to the plaintiffs. This finding was affirmed by the High Court. It may be stated that under the relevant law, declaratory decrees for ownership in respect of shamilat deh land cannot be pass.Ed by a Civil Court. It was observed by this Court in the case reported as Khalid Hussain and 3 others Vs. Haji Muhammad Rafique and another (PLJ 2008 SC (AJ&K) 18), as under:- "...From the whole record it does not clearly reveal as to how much share Khalid Hussain or the appellants had in the shamilat deh land. As against it, it is clearly established that the parties are actively involved in occupying shamilat deh land without determination of their shares. The finding of the learned Judge of the High Court that Khalid Hussain and others have not specifically denied para 1 of the suit, therefore, the same is to be considered as admission on the part of Khalid Hussain and others, furnishes further support to our finding that the whole proceedings initiated before the District Judge were collusive and the District Judge, therefore, rightly dismissed the suit filed by respondent No, 1."
13. According to the annexure Ex.PA, the appellants, who are real brothers, were in illegal possession of the land bearing survey No, 916, which is shown as shamilat deh land. Muhammad Tufail and Fazal Hussain filed declaratory suit against Sabir Hussain and Jan Muhammad, the other two brothers. They filed cognovits and consent decree was passed, which is a collusive decree which could not be passed in respect of shamilat deh land.
14. A perusal of the record reveals that the plaintiffs-respondents are owners in the village and according to the record-of-rights (Ex.PG), pertaining to years 1991-95 BK, the land comprising survey numbers 321, 322 and 364 is shown in their possession. It is within their share and they are in possession of the same since long, as such the decree for possession has correctly been passed by the Courts below. An owner in the village is a sharer in whole shamilat deh land and on a suit for possession filed by an owner, the decree for specific possession against a stranger can be passed.
The appellants failed to prove from any record that they are owners in the village and holding the possession of shamilat deh and on the basis of their respective share. There is no illegality in the judgment and decree of the High Court.
15. The appellants moved application under Order XLI, Rule 27, CPC, for bringing on record the copies of sale-deeds and decrees of the Court. The High Court has dealt with the matter in detail and drew the conclusion that the documents, which the appellants want to bring on the record through additional evidence, were available at the time of filing of written statement. Moreover, after the decree passed by the Courts below a right has accrued to the respondents and their legal heirs, which cannot be taken away by allowing the application under Order XLI, Rule 27, CPC. The finding recorded by the High Court is unassailable.
16. The application for additional evidence cannot be allowed, as, the persons, to whom a right has accrued on the basis of decree of the Courts below, have not been impleaded as party. It has been observed in the case reported as Elahi Bakhsh Vs. Budha and another (1968 SCM R 328) as under:- "...The result, therefore, is that within the time allowed by law, the legal representatives of the sole deceased respondent have not been brought on record. Mr. Muhammad Anwar, on behalf of the respondent, claims that the respondent's legal representatives have gained a valuable legal right which should not be interfered with lightly. We see considerable force in this contention. We, therefore, dismiss the petition for bringing the legal representatives of Budha on the record, as being out of time, with the result that the appeal fails and is hereby dismissed.,"
' The result of above discussion that finding no force in his apeal, it is hereby dismissed With no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.