GHULAM MUSTAFA MUGHAL, J.---The captioned appeal by leave of the Court arises out of the judgment and decree dated 22.11.2017, passed by the Azad Jammu and Kashmir High Court in Civil Appeal No,149 of 2015.
2. The precise facts giving rise to the captioned appeal are that the Latif Khan son of Muhammad Ashraf Khan, plaintiff-respondent, herein, challenged the legality and correctness of the sale-deed dated 31.08.2010, executed by Altaf Khan son of Muhammad Ashraf Khan, in favour of Farid Khan, defendant-appellant, herein, whereby, the land comprising khasra No,268, khewat No,7/7, measuring 15 kanal, 1 marla, situated in village Hariala Zamindaran, Tehsil and District Muzaffarabad, was transferred through a suit for declaration-cum-perpetual injunction in the Court of Civil Judge Court No,2, Muzaffarabad on 07.09.2010. It was claimed that the land measuring 66 kanal, 7 marla from khewat Nos,5/5, 6/6 and 7/7, was in the ownership of Ashraf Khan, father of the plaintiff and Altaf Khan, defendant No,1/proforma-respondent, herein, It was further claimed that after death of the father of the plaintiff and defendant No,1, his estate was partitioned, as a result whereof, the land comprising khewat No,7/7, khasra No,268, measuring 15 kanal, 1 marla, came in the ownership and possession of the plaintiff on the basis of family partition.
It was averred that defendant No,1, being real brother of the plaintiff, is also owner of the land measuring 15 kanal, 16 marla, from the aforementioned khewats but with connivance of defendants Nos,1 to 6, he has transferred the land comprising khasra No,268, measuring 15 kanal, 1 marla without having possession, entitlement and in excess of his share. The suit was contested by the defendants by filing written statement. The precise stand of defendants Nos,1 and 2 was that the land was in the ownership of defendant No,1 as a result of family partition. It was claimed by them that the holding of father of the plaintiff and defendant No,1 in village, Kalas Kandar and Takki, from khewat Nos,5, 6, 7 and 9 was more than 70 kanal. It was further claimed that defendant No,1 has not sold the land beyond his share. It was further claimed that defendant No,2 is in possession of the suit land, situated in village Hariala Zamindaran and prior to that defendant No,1 was in possession of the said khasta numbers exclusively. The learned trial Court framed issues in light of the pleadings of the parties on 17.10.2017 and asked them to lead evidence in support of their respective claim. At the conclusion of the proceedings, vide judgment and decree dated 30.07.2015, the learned trial Court dismissed the suit for want of proof. The plaintiff-respondent, herein, felt aggrieved from the judgment and decree dated 30.07,2015 and challenged the same by way of appeal before the District Judge Muzaffarabad on 18.08.2015. The learned District Judge after hearing the parties concurred with the trial Court and dismissed the appeal vide judgment and decree dated 05.10.2015. The judgment and decree dated 05.10.2015 passed by the District Judge was assailed by the plaintiff-respondent, herein, through second appeal before the Azad Jammu Kashmir High Court on 07.10.2015. The learned High Court after hearing the parties and for reasons recorded therein through the impugned judgment and decree dated 22.11.2017, has accepted the appeal and set aside the judgments and decrees of the Courts below and has cancelled the sale- deed dated 31.08.2010 to the extent of the land measuring 8 kanal, 6 marla, 2 sarsai.
3. Mr. Abdul Rashid Abbasi, the learned Advocate appearing for the appellant while referring to the plaint filed on behalf of respondent, herein, argued that the plaintiff respondent, herein, categorically claimed the ownership and possession of khosra No,268, measuring 15 kanal 1 marla, on the basis of family partition but he failed to prove the same before the trial Court. The learned Advocate argued that it was also admitted position that the parties are co-sharers in khewat Nos,5/5, 6/6 and 7/7 and the share of the vendor in all these khewats comes to 15 kanal, 6 marla. It was next argued by the learned Advocate that defendant No,1 executed the sale-deed only to the extent of 15 kanal, 1 marla which cannot be said to have been executed in excess of his share. The learned Advocate argued that even otherwise a co-sharer can validly alienate a specific survey number which is in his exclusive possession provided that it is not in excess of his overall entitlement in the khewat or ichata. The learned Advocate further argued that the learned Civil Judge after discussing the evidence led by the plaintiff came to the conclusion that the plaintiff miserably failed to prove his case set out in the pleadings and the judgment passed by the trial Court has been affirmed by the 1st appellate Court after proper appraisal of evidence. The learned Advocate further argued that concurrent findings of fact recorded by the Courts below are immune from challenge under section 100 of the Code of Civil Procedure and the High Court was not competent to upset the same. It was next argued by the learned Advocate that the learned High Court has considered mutation No,43., which was recorded by the Revenue Officer on the direction of the Commissioner without following the mandatory procedure. The learned Advocate further argued that this document was not available at the time of judgment of the trial Court as well as the first appellate Court. He submitted that order of reviewing imitation No,43 runs counter to the judgment of the trial Court and the 1st appellate court and a revenue court has no jurisdiction to go beyond the decree of the Civil Court. The learned Advocate further submitted that the document referred to and relied upon by the High Court in the impugned judgment i,e, mutation No,43 was not brought on the record in accordance with the settled procedure and has not been referred to even at the time of arguments. The learned Advocate further submitted that it is astonishing that the learned High Court has relied upon a document which was neither brought on the record of the trial Court not was tendered in evidence. He added that such a document could not tie considered for recording the judgment, hence, the conclusion reached at by the learned High Court is against the record as well as precedents of the superior Courts. In support of his submission the learned Advocate placed reliance on the following cases:--
1. Mustafa Khan and 3 others v. Muhammad Khan and another [PLD 1978 SC (AJ&K) 75].
2. Inayat Khan and another v. Muhammad Saleem Khan and 4 others PLD 1993 SC (AJ&K)
3. Atta Muhammad v. Sahibzada Manzoor Ahmad 1992 SCMR 138.
4. Town Committee, Jalalpur Pirwala through Chairman v. Malik Mehr Bakhsh and another [2007 YLR 82].
5. Abdul Hameed, Ex-Fatwari resident of Village Karbat, Tehsil Cantt., District Lahore and others v.
Member (Revenue) Board and 3 others 2005 SCMR 1617 = 2005 PLC (C.S.) 1367
4. Conversely, Ch. Manzoor Ahmed, the learned Advocate appearing for the respondent argued that the sale-deed was executed from khewat No,7/7, khasra No,268, and was not in the exclusive ownership and possession of defendant No,1, rather was also in the ownership of all the co-sharers, therefore, defendant No,1 was not entitled to alienate the suit land beyond his share. The learned Advocate further argued that for calculating the share of defendant, No,1, only khewat No,7/7 can be taken into consideration and the other khewats could not be considered for determination of the share/entitlement of the vendor/defendant. The learned Advocate further argued that concurrent findings of fact are sacrosanct only when the same are returned after proper appraisal of evidence and record. He added that erroneous, arbitrary and perverse findings are not immune from challenge and when it is found that concurrent findings are suffering from misreading and non-reading of evidence and the record, the learned 'High Court is duty bound to judge the legality and correctness of such findings and reverse the same. The learned Advocate further argued that if the mutation in question is excluded from consideration even then the position remains the same and defendant No,1 was not competent to alienate the suit land beyond his fractional share.
5. We have heard the learned Advocates for the parties and have gone through the record of the case. The plaintiff has set out his precise case in his pleadings that the whole share of his father Muhammad Ashraf Khan (late) in khewat Nos,5/5, 6/6 and 7/7 comes to 66 kanal, 7 marla. After his death his estate was divided` among his legal heirs and the share of each of his son comes to 15 kanal, 6 marla in all the khewats. It was further stated by him that Altaf Khan defendant No,1 has sold the land comprising khasra No,268, measuring 15 kanal, 1 marla from khewat No,7/7 without any entitlement and possession. This fact was refuted by the other side. The learned trial Court while deciding issues Nos,1 to 3, has rightly formed the opinion after discussing the evidence that the plaintiff has failed to prove family partition as well as his exclusive possession over the land comprising khasra No,268, measuring 15 kanal, 1 marla. The learned trial Court has also observed that the sale-deed dated 31.08.2010 is also not beyond the fractional share of Altaf Khan, vendor. It was further observed by the learned trial Court that only 15 kanal, 1 marla land has been alienated and the share of the plaintiff is still left to the tune of 15 marla only. The next question which has been resolved by the learned trial Court on the basis of evidence is regarding possession of khasra No,268. The plaintiff has produced Muhammad Ismail, witness in support of his claim who has admitted that before transfer of the land in question, the land was in the possession of Altaf Khan, vendor, and thereafter defendant No,2, vendee, is in the possession of the suit land. This fact has also been admitted by the local patwari. Beside oral evidence, the documentary evidence has also been produced in this regard which strengthens the claim of the defendant. When it is proved that the plaintiff was out of the possession, then it was enjoined upon him to seek the relief of possession and the suit filed by him was liable to be dismissed under section 42 of the Specific Relief Act. The findings recorded by the learned trial Court have rightly been maintained by the 1st appellate Court. The learned High Court has calculated the share of the vendor only from khewat No,7/7. As stated above, the plaintiff, in his plaint has himself claimed that the total share of the plaintiff as well as the defendant from khewat Nos,5/5, 6/6 and 7/7 comes to 15 kanal, 6 marla. It was further claimed by him that khasra No,268, measuring 15 kanal, 6 marla was in his exclusive possession. As neither the family partition has been proved nor the possession of khasra No,268, measuring 15 kanal, 6 marla, has been proved, therefore, the learned High Court was not justified in calculating the share of the plaintiff only from khewat No,7/7 while leaving the other khewats. After calculating the share of the plaintiff as has been alleged in the plaint, the whole holding in the village comprising khewat Nos,5/5, 6/6 and 7/7 was liable to be taken into consideration as has been done by the trial Court as well as the 1st Appellate Court. After reaching the conclusion that the land was not partitioned between the parties, the proposition that a co sharer in possession of a specific field number can validly transfer the suit land even though his share in such specific field number exceeds his share provided it does not exceed his overall share in the total land, narrows down. This view has been approved in Mustafa Khan's case referred to hereinabove, wherein, at page 76 of the report, it was observed as under:-- "6. The next point to be determined is whether Walayat Khan at the time of sale was in. sole and exclusive possession of this land. The adjudication of the point is necessary as land under specific numbers, as will be seen hereinafter, could be validly sold by Walayat Khan, if it is proved that he was in exclusive possession of the land under these specific survey numbers at the time of sale. On this point, we have the statements of Muhammad Khan Patwari and Faqar Din (P.Ws.). From their statement it appears that the co-sharers were enjoying the possession in severalty of specific Khasra numbers and at the time of the sale-deed, Walayat Khan vendor was in exclusive possession of the land transferred. The learned counsel for the appellants being alive to the import of the statement of his own witness, had not, quite understandably, seriously contested this finding recorded by the learned District Judge and concurred by the learned Single Judge in the High Court. He, however, attacked the finding of both the Courts, on the ground that a co-sharer, even if he is in possession of a specific survey number or plot is incompetent to alienate or transfer the same in excess of his entitlement in the specified survey number or plot without the consent of the other co-sharers. He thus challenges the finding of the learned Judge in the High Court that a co- sharer in exclusive possession of a certain piece of land is competent to dispose of the whole land under his possession."
In Inayat Khan's case, referred to hereinabove" the controversy has been dealt in a different manner. In that case, the share was calculated from the Khewat out of which the sale-deed was executed. The facts of this case are different because in the instant case the stand of the plaintiff is that whole share of the plaintiff and the defendant from all the khewats in the same village comes to 15 kanal, 6 maral, hence, in this case share can be calculated keeping in view the Overall holding in the village and not from the khewat 7/7 only.
6. The contention of Mr. Abdul Rahseed Abbasi, that the learned High Court, for reaching the impugned conclusion, has accepted mutation No,43, which was attested on the direction of the Revenue Commissioner without following the proper procedure, has a substance in it. It may be stated that this mutation has been reviewed under the direction of the Revenue Commissioner and entered in an unwarranted manner without following the proper procedure envisaged in the Land Revenue Act, 1967. The review order has been passed on 12.10.2015, whereas, the judgment of the trial Court was announced 30.07.2015, prior to recording of the said order. Even the judgment passed by the 1st appellate Court dated 05.10.2015 was prior in time. Mr. Abdul Rasheed Abbasi, Advocate, has rightly relied upon Abdul Hameed's case, referred to hereinabove, wherein, it was opined that the Revenue staff cannot go beyond the decree and is bound to give effect to it unless it is set aside or varied by the competent Court. After considering section 42 of the Land Revenue Act, 1967, at page 407 of the report, it was observed as under:-- "6. The careful examination of the above subsections would show that it is essential for the Revenue Officer to inquire into the correctness of all entries in the register of mutation except in case of decree of Court. The revenue staff cannot go beyond the decree and is bound to give effect to it unless it is set aside or varied by competent Court and it case of failure, the concerned official can be held guilty of Contempt or Court which is gross misconduct. However, notwithstanding the requirement of law to give effect to the decree or order of the Court, the revenue staff while dealing with the valuable rights of people in the property and discharging their duty must be vigilant and must not be ignorant of degree of care required to be taken in making entries in the revenue record therefore, the omission on the part of revenue official for not bringing the important and sensitive matters to the notice of senior officer and concerned authorities before giving effect to an order or a decree of Court, if is not as such misconduct, it is definitely an act of negligence."
The next contention of Mr. Abdul Rashid Abbasi, the learned Advocate for the appellant, that the learned trial Court has wrongly taken into consideration mutation No,43 which was reviewed and canceled by the Tehsildar declaring the sale in excess of the share of the vendor, We are in agreement with the learned Advocate that if a document is not brought on the record of the Court in accordance with the settled procedure then the same cannot be taken into consideration or accepted by the Court. The proper procedure for the appellant before the High Court was to apply for bringing this document on the record as an additional piece of evidence under Order XLI, Rule 27 of the Code of Civil Procedure. From the perusal of the interim orders recorded in the appeal before the High Court, we have not seen that at what time the document was placed before the Court. The contention of the learned Advocate for the appellant that the concurrent findings of fact recorded by the Courts below were binding on the High Court is also correct but it cannot be laid down as a general law for all the times to come. Law is well settled that the High Court will not disturb the concurrent findings of fact which are based on sound appreciation of evidence and does not suffer from misreading and non-reading of record, however, once it is shown that the findings recorded by the Courts below are perverse, arbitrary, capricious and against the settled law, the High Court is duty bound to record proper findings. Under section 103 of the Code of Civil Procedure, the High Court is empowered in the second appeal to determine any issue of fact necessary for disposal of the appeal, which has not been properly determined by the lower appellate Court by reason of any illegality, omission, error or defect. The contention of Ch. Muhammad Manzoor, the learned Advocate for the respondents that the High Court was competent to reverse the concurrently returned judgments of the Courts below, in the circumstances of this case, cannot be accepted because the conclusion reached at by the learned High Court is not justified on the facts and law.
The upshot of the above discussion is that while accepting this appeal, the impugned judgment and decree recorded by the learned High Court dated 22.11.2017, is hereby recalled. Resultantly, the judgments and decrees recorded by the trial Court as well as the 1st Appellate Court dated 30.07.2015 and 05.10.2015, respectively, stand restored. No order as to costs.