Raja Saeed Akram Khan, J.-- The captioned appeal by leave of the Court has been directed against the judgment and decree passed by the High Court on 22.03.2014, whereby the appeal filed by the plaintiff- appellant, herein, has been dismissed.
2. The necessary facts for disposal of the instant appeal are that the plaintiff-appellant, herein, filed an appeal before the High Court alleging therein that the land comprising khewat Nos. 44, 45 and 54-min, situate at village Lamiyan Patian is in possession and ownership of the appellant. A mutation No. 170, in this regard, was also attested in favour of the plaintiff-appellant on 15.8.1966. The plaintiff-respondents and others challenged the mutation No. 170, through a revision petition before the Additional Commissioner Revenue, which was accepted vide order dated 30.4.1989. The plaintiff-appellant challenged the order dated 30.4.1989 through revision petition before the Board of Revenue on 15.3.1990, which was dismissed vide order dated 26.6.1993.
Thereafter, the plaintiff-appellant filed a suit for declaration cum-perpetual injunction and also challenged the above mentioned orders of Revenue Courts before the Senior Civil Judge, Muzaffarabad on 30.8.1993.
Respondent No. 1 along with one Mst. Sosan Jan also filed cross suit for declaration-cum-recovery of possession on 26.9.1993. After recording the evidence of both the parties, the trial Court accepted the suit filed by the plaintiff-appellant and dismissed the suits filed by respondent No. 1, herein, along with one Mst. Sosan Jan vide judgment and decree dated 27.4.2004. Respondent No. 1, Mst. Jan Bibi & others preferred an appeal before the learned District Judge, Muzaffarabad, which was made over to the Additional District Judge, Muzaffarabad for hearing and disposal under law. The learned Additional District Judge, Muzaffarabad, after hearing the parties accepted the appeal and dismissed the suit filed by the appellant and cross suit filed by the respondents was allowed vide judgment and decree dated 5.9.2007. Feeling aggrieved, the plaintiff-appellant filed an appeal before the High Court, which was also dismissed, hence, this appeal by leave of the Court.
3. Meer Sharafat Hussain, Advocate, the learned counsel for the appellant argued that the impugned judgment of the High Court is against law and the facts of the case, therefore, the same is not sustainable in the eye of law. He contended that the learned High Court failed to take into consideration that the trial Court decreed the suit filed by the appellant after due appreciation of the evidence and the learned Additional District Judge set aside the same without any justification. He strongly argued that both the Courts below have not taken into account that in the light of the statements made by the appellant's sisters before the Revenue officer, the appellant became the sole owner of the property which is in his possession since long. He added that the Courts below have also not given due weight to the important piece of evidence, i.e. mutation No.170, sanctioned in favour of the appellant, wherein it has categorically been mentioned that the appellant's sisters surrendered their share in favour of the appellant. The concerned revenue officer has also got affixed the thumb impressions of the appellant's sisters on the said document which have never been challenged. In this regard he drew the attention of this Court towards page 66 of the paper book, i.e. copy of mutation No.170, dated 30.07.1966. He added that in the light of the statements made by the sisters of the appellant the said document has attained the status of gift-deed. He added that the finding recorded by the High Court that the same is not Hibba is against the record. When he was confronted that the statements of the appellant's sister are not part of the record he submitted that it is admitted fact that record was reconstructed and presently the same are not placed on file. He lastly argued that the mutation was challenged after the lapse of 21 years, therefore, the suit filed by the respondents was hopelessly time barred. He lastly submitted that the respondents filed appeal before the District Judge without arraying Additional Commissioner Revenue and Board of Revenue as party. In absence of the necessary party, the appeal was liable to be dismissed but the Courts below have not considered this aspect of the case.
4. Kh. Muhammad Nasim, Advocate, the learned counsel for the respondents strongly opposed the arguments advanced by the learned counsel for the appellant. He submitted that the impugned judgment is perfect and legal which does not warrant any interference by this Court. He added that the both the appellate Courts appreciated the evidence available on record in a legal manner, therefore, there is no misreading and non- reading of the evidence. He further added that the order of the revenue officers have been challenged by filing civil suit which was not competent and liable to be dismissed on this sole ground as the same was barred by law. He added that the proper course for the appellant was to approach the High Court by filing writ petition.
While referring the contents of the plaint he submitted that no such prayer was made that on the ground of gift- deed the appellant is the owner of the property, therefore, no relief can be granted out of the pleadings. He forcefully argued that the appellant failed to prove that the respondents/sisters of the appellant ever surrendered their share in his favour and under the Sharia they are entitled to get their legal share from the inherited property.
5. We have heard the arguments of the learned counsel for the parties and gone through the record along with the impugned judgment. The version of the appellant is that he is the sole owner of the inherited property as his sisters have relinquished their shares by making statements before the concerned revenue authority. The appellant has mainly relied upon a document, i.e., mutation No.170, sanctioned in his favour on 30.07.1966, annexed with the trial Court record as Exh.PA. The bare reading of the said document shows that the sisters of the appellant, namely, Mst. Jan Bibi, Mst. Bibi Jan and Mst. Sosan Jan, appeared before Tehsildar concerned and stated that they withdraw from their shares in favour of their brother and also got recorded their statements in this regard. Later on, the sisters of the appellant approached the revenue authorities for cancellation of the aforesaid mutation and have taken the stance that neither they have withdrawn from their shares nor they have recorded statements in this regard. The Additional Commissioner vide order dated 30.04.1989, cancelled the mutation made in favour of the appellant. The appellant, herein, filed a revision petition before the Board of Revenue which was also dismissed. Thereafter, both the parties filed separate suits in the Court of Senior Civil Judge, Muzaffarabad. The appellant filed suit for declaration and his sisters filed suit for declaration/possession.
The trial Court accepted the suit filed by the appellant and dismissed the suit filed by his sisters. On appeal, the first appellate Court while accepting the appeal of the respondents set aside the judgment and decrees of the trial Court and decreed the suit in favour of the appellant's sisters. The appellant filed appeal before the High Court and the learned High Court dismissed the appeal while holding that: "6. A perusal of orders of Revenue Courts reveals that point of withdrawal was also taken by appellant before the said Courts, which was not accepted. It was also held by the Revenue Courts that mutation No.170 was not attested in favour of co-plaintiff in accordance with laid down rules and policy of land revenue, as the same was attested at headquarter, Muzaffarabad, instead of its attestation in the concerned village. After abrogation of mutation supra by the Revenue Courts, which were having jurisdiction to adjudicate upon the matter and its orders are neither void or against prescribed law nor consisting of malice, therefore, appellant-co-plaintiff cannot be declared as sole owner of disputed land by excluding his three sisters."
After going through the controversy involved in the matter and the findings recorded by the High Court, we have minutely examined the record. As has been stated hereinabove that the document, Exh.PA, shows that the sisters of the appellant surrendered their shares in favour of the appellant and also recorded their statements, however, it will be relevant to clarify here that no such statements are the part of the record. It is also spelt out from the record that the alleged thumb impressions of the appellant's sisters were never verified through expert.
In such situation, we are of the view that reliance cannot be placed on the said document, especially, when the appellant's sisters themselves denied the averments made in the said document. It transpires from the record that the appellant's sisters Mst. Sosan Jan and Mst. Jan Bibi, appeared before the trial Court and also recorded their statements. It will be useful to reproduce here the relevant portions of their statements which read as under:- Mst. Sosan Jan, in her statement, stated that: {{URDU TEXT}} Mst. Jan Bibi, stated in her statement that: {{URDU TEXT}} In the light of the statements made by the appellant's sisters before the trial Court, the preference cannot be given to the document on the strength of which the appellant is claiming his ownership over the disputed property. We have also examined the statements of the witnesses produced by the appellant. The witness, namely, Muhammad Misken son of Faqeer Muhammad stated in his statement that: {{URDU TEXT}} The appellant in his statement stated that: {{URDU TEXT}} In cross-examination he deposed that: {{URDU TEXT}} It appears from the perusal of the statements reproduced hereinabove that totally a different case has been established by the appellant side that the land in dispute was transferred to the appellant by her sisters through registered gift-deed, whereas, no such plea was taken by the appellant in his pleadings. Even no such point has been raised before the learned High Court or before this Court. In this scenario, the learned High Court was fully justified to hold that the appellant never took plea in pleading that disputed land was gifted to him by his sisters; therefore, the statements of the witnesses are against the principle of pleadings. During the course of argument, this position was also confronted to the learned counsel for the appellant but he was unable to satisfy the Court in this regard. It may be observed here that the property can only be transferred under the Transfer of Property Act, 1882 and Registration Act, 1908, but the perusal of the record shows that the procedure provided under law has not been adopted. It may also be observed here that neither any evidence regarding the registration of the gift-deed was produced before the Court nor the alleged statements recorded by the appellant's sisters at the time of execution of the mutation have been brought on record, therefore, mere on the vague verbal assertion which is not supported by any reliable evidence, the appellant's sisters cannot be deprived of their right of inheritance, granted to them by Almighty Allah. Both the Courts below concurred with the matter after evaluating the evidence in a legal manner and we do not find any misreading or non-reading of the evidence in the impugned judgments.
6. As we have reached to the conclusion that the appellant has failed to prove his claim and the learned High Court has not committed any illegality while passing the impugned judgment, therefore, there is no need to dilate upon the other points agitated before this Court mere for academic discussion.
The nutshell of the above discussion is that we do not find any justification to interfere with the impugned judgment which is maintained. The appeal being devoid of force is dismissed with no order as to costs.