Ghulam Mustafa Mughal, J-- This appeal has been directed against the judgment dated 13.4.2017 passed by the learned High Court in civil appeal No. 92 of 2014.
2. The facts forming the background of the captioned appeal are that the appellants, herein, filed a suit for declaration and adverse possession in respect of Khalsa land measuring 30 kanal min survey No.570 (new) and land measuring 5 kanal min survey No. 253 (new), in the Court of Civil Judge Pallandri on 11.8.1992. It was claimed that the plaintiffs remained in continuous and uninterrupted possession of the suit land and they have made huge improvements on the said land in shape of construction of shops and hotels etc. Their continuous adverse possession has ripen into ownership. The suit was decreed vide judgment dated 21.2.1993 as the defendants have failed to file the written statement. The Forest Department, respondents, herein, moved an application for cancellation of ex-parte decree dated 21.2.1993 before the Civil Judge Pallandri, Sudhnooti on 8.8.2006. It was claimed in the application that the applicants\defendants were not summoned and the decree has been passed against them ex-parte on the basis of fraudulent service. It was further averred that as the decree could not have been granted without hearing the other side and the suit land is a forest land, therefore, the same may be recalled. It was claimed that the application for setting aside the decree is within limitation from the date of knowledge. The appellants, herein, contested the application by filing objections. It was stated by them that the appellants, herein, who were defendants in the suit, failed to file the written statement and did not turn up even after repeated notice. It was further stated that the application is hopelessly time barred and the land is in the ownership of respondents, hence, the application may be dismissed. In the light of the respective pleadings of the parties, the learned trial Court framed issues on 6.11.2006. The parties were directed to lead evidence in support of their respective claim. At the conclusion of the proceedings, vide judgment dated 13.3.2013, the learned Civil Judge Pallandri dismissed the application for want of cause of action and on the ground of limitation. The respondents, herein, felt aggrieved from the judgment dated 13.3.2017 went in appeal before the District Judge. The learned District Judge heard the parties and vide judgment dated 28.4.2014 dismissed the appeal. The second appeal was filed before the Azad Jammu & Kashmir High Court on 26.7.2014. The learned High Court through the impugned judgment dated 13.4.2017 has accepted the same and recalled the judgments and decrees of the Courts below and restored suit No. 158 instituted on 11.8.1992 to its original number and directed the trial Court to proceed in the matter in view of the guide lines given in the judgment.
3. Sardar Abdul Hameed Khan, the learned Advocate appearing for the appellants, argued with vehemence that the application for setting aside the ex-parte decree before the Civil Judge, Pallandri, was not maintainable as no ex-parte decree was granted by the trial Court vide judgment dated 21.2.1993. He argued that the fact of the matter is that the defendants before the trial Court failed to file written statement, as a result whereof their right of defence was closed and the judgment was announced against them. Such a judgment cannot be treated as an ex-parte judgment under the provisions of C.P.C. The learned Advocate further argued that the application was hopelessly time barred and the learned High Court has erroneously held that the question of limitation was not raised by the appellants, herein, before the trial Court. The learned Advocate further argued that non-serving of notice before filing of the suit against the Government was also not fatal and the case cannot be remanded on this ground because the Government has to be given three month's time for filing the written statement in case notice under section 80 of C.P.C, is not served before institution of the suit. The learned Advocate argued that the concurrent findings of facts recorded by the Courts below were binding on the High Court and the same cannot be recalled.
4. Mr. Muhammad Hanif Khan Minhas, the learned Advocate appearing for the respondents, vehemently argued that the judgment and decree recorded by the learned trial Court was ex-parte, which was passed without application of judicial mind because neither the proper parties were impleaded in the line of respondents nor the service was duly effected upon them, hence, the decree was a nullity in the eye of law. The learned Advocate argued that in the circumstances and as per record of the case, it was enjoined upon the learned trial Court to dismiss the suit. He further argued that the application for setting aside the ex-parte decree was within limitation from the date of knowledge and a categoric date of gaining the knowledge was mentioned in the application, which was not rebutted by the other side. The learned Advocate argued that concurrent findings of facts cannot be disturbed in second appeal only when these are based on proper appreciation of fact, evidence and law; where the concurrent findings are perverse, capricious and suffer from misreading and non-reading of evidence then the High Court is duty bound to reverse such findings. The learned Advocate argued that in the present case the decree was ab-initio void and it was open to the learned High Court to recall the same while exercising the supervisory jurisdiction conferred on it under section 46 of the Azad Jammu & Kashmir Interim Constitution Act, 1974.
5. We have heard the learned Advocates representing the parties and have gone through the record of the case. It may be stated that the captioned appeal has been filed by the appellants, herein, under section 42(11)
(d) and (e) of the Azad Jammu & Kashmir Interim Constitution Act, 1974, which reads as under:- "42. Supreme Court of Azad Jammu and Kashmir:- (11). ............................................
(a) .....................................
(b) .....................................
(c) .....................................
(d) If the amount or value of the subject-matter of the dispute in the Court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of the Council and the judgment, decree, or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or
(e) If the judgment, decree or final order involved directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside judgment, decree or final order of the Court immediately below; or
(f) ........................................"
A direct appeal before this Court under the above reproduced provisions of the Azad Jammu and Kashmir Interim Constitution Act, 1947, can be filed in the eventualities covered by clause (d) and (e) of sub-section (11) of section 42, and the same can be filed if the amount or value of the subject-matter of the dispute in the Court of first instance was and also in dispute in appeal is not less than fifty thousand rupees or such other sum as may be specified in that behalf by the Act of the Council and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below or if the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside judgment, decree or final order of the Court immediately below.
6. In the present case, the appellants, herein, filed a suit for declaration and adverse possession in the Court of first instance and the value of the subject matter is not as is mentioned in the above referred provisions.
Moreover, an application for setting aside the decree was rejected by the trial Court, therefore, all the proceedings including filing of appeal have been arisen out of the miscellaneous application either an application for setting aside the ex-parte decree, therefore, the direct appeal before this Court was not competent and the explanation offered by Sardar Abdul Hameed Khan, the learned Advocate for the appellants, has no substance in it. We are fortified in our view from the rule of law laid down in the following cases:-
1. Forest Department through Secretary Forest Azad Government of State of Jammu & Kashmir, Muzaffarabad vs. Shabbir Husasin and 11 others (PLJ 2014 AJ&K 201)
2. Ghulam Asghar vs. Sarwar Begum & 15 others (2015 SCR 141)
3. Ibrahim Yaqoob and 6 others vs. Ghulam Murtaza & 5 others (2016 SCR 896)
4. Begum Noor vs. Azad Govt. and 3 others (2017 SCR 410).
7. Even on merit, we have noticed that the judgment passed by the learned trial Court in the original suit was not maintainable. The adverse possession was claimed by the appellants, herein, over the crown land and the necessary parties have not been impleaded in the line of respondents. In absence of all the necessary parties, particularly the Government as well as the Forest department and the Revenue department, no decree could have been passed as has been held in the case reported as Muhammad Ashraf and 8 others vs. Azad Government of the State of Jammu & Kashmir and 13 others (PLD 1985 SC (AJ&K) 102), wherein it has been held as under:- "10. ...It may be stated here that the provisions of the Code of Civil Procedure apply to the proceedings under section 42 of the Azad Jammu & Kashmir Interim Constitution Act, 1974, and the persons adversely affected by quashing of an order in a proceedings under section 42 of the Interim Constitution Act, 1974, are necessary parties and no effective order for quashment can be made, for, that would not bind persons who have been benefited by the impugned order as it is well-settled principle that in such circumstances a Court will not make an ineffective order or an order which can be flouted in a proceeding under section 42 of the Interim Constitution Act, 1974..."
In an identical situation, an appeal was accepted by this Court in the case titled Azad Government and 3 others vs. Abdul Waheed and another (Civil Appeal No. 33/2016, decided on 3.4.2017).
8. So far as the question of limitation is concerned, if the judgment and decree is void in the eye of law then the question of limitation can be ignored as has been opined by the learned High Court, but the fact remains that a categoric date has been given by the respondents, herein, regarding the gaining of knowledge of passing of the decree, which has been proved through their statements and the appellants, herein, failed to rebut the same.
Therefore, the application was within limitation from the date of knowledge. The conclusion of the learned High Court on this question is unexceptional. As the decree for adverse possession has been given in absence of the necessary parties and proper service, therefore, has rightly been recalled by the learned High Court.
What has been discussed above, finding no force in this appeal, it is hereby dismissed along with the miscellaneous application.