1. SADAQA T HUSSAIN RAJA, J.---The captioned appeal has been filed against the judgment and decree passed by the learned District Judge, Bagh on 18.03.2009, whereby judgment and decree passed by the Civil Judge, Bagh on 12.04.2007 has been maintained.
2. Precise facts of the case are that father of appellant No,1 and grandfather of respondent No,1 filed a suit before the Court of Civil Judge, Bagh on 02.04.2002 in respect of land bearing survey Nos, 2109/795, 2109/795, 2109/795
(old) and new survey Nos, 2024, 2026 and 2048 measuring 14 Kanals and 08 Marlas. Out of which measuring 08 Kanals and 03 Marlas and bearing survey Nos, 21.08/795, bearing survey Nos, 2025 and 2023 (new) measuring 14 Kanals and 12 Marlas, out of which measuring 04 Kanals total land measuring 12 Kanals and 03 Marlas situated in village Ravli, Tehsil and District Bagh was in the ownership and possession of Baloch Khan. It was prayed that the respondents were constrained to construct or make any improvement upon the land in dispute because defendants-appellants have no concern with the suit land, Defendants contested the suit by filing written statement, wherein, they stated that plaintif f has no locus standi to file the instant suit. The suit is mala fide, therefore, the same is liable to be dismiss ed. It was averred that suit filed on behalf of the plaintif f is time barred. It was submitted that the necessary parties have not been impleaded in the line of defendants and the will executed in favour of the plaintif fs dated 25.07.1978 is based on fraud, therefore, the suit is not maintainable. The defendants have prayed for dismissal of the suit. The learned trial court framed issues in light of the pleadings of the parites and after necessary proceedings, dismissed the suit for want of proof vide judgment dated 12.04.2007. Feeling dissatisfied from the aforesaid judgment and decree, an appeal was filed before the District Judge, on 03.04.2007, which also met the same fate vide judgment and decree dated 18.03.2009, hence, this second appeal.
3. Mr. Muhammad Yaqoob Khan Mughal, the learned counsel for the appellants reiterated the facts and grounds taken in the appeal and submitted that onus of proof regarding the "will" dated 25.07.1978 was on the defendants- respondents who were beneficiary of the same but they have miserably failed to substantiate their claim and had not produced even the marginal witnesses in order to prove the "will" in question. He argued that the defendant in whose favour the document has been executed, did not appear in the witness box, therefore, adverse inference was liable to be drawn against him, but learned trial Court failed to raise the presumption. It is contended that in order to prove the claim of the disputed "will" it was enjoined upon the respondents to prove the execution of the same through cogent evidence but they badly failed. He submitted that a confliction has been found in the statements of the witnesses namely Muhammad Nazeer son of Muhammad Bashir and Raja Muhammad Younas Advocate, who appeared on behalf of the defendants-respondents, hence, they could not prove their claim. The learned Advocate submitted that it was wrongly concluded by the learned Courts below that the "will" executed in favour of the defendants is perfectly legal because the same has been prepared fraudulently , therefore, the Courts below reached at wrong conclusion. The learned Advocate argued that factum of the disputed document can be proved by producing cogent evidence but the learned Courts below failed to exercise their powers. The learned Advocate argued that the statement of one Muhammad Afsar was not recorded, who is the marginal witness rather the statement of his son namely Muhammad Arif has been recorded, even then the statement of the concerned Patwari was not recorded in favour of the respondents. The learned Advocate contended that "will" dated 25.07.1978 (Exh.P A) reveals that the aforesaid document was attested by the Notary Public namely Muhammad Younas Khan in the year 1978 but at that time, the said person was not holdin g the license of Notary Public, therefore, the defendants-respondents cannot claim any right on the basis of so called forged "Will". The learned Advocate further contended that opinion recorded by the learned trial Court on issued Nos, 5 to 8 is also contrary to the record and violative of Order XLI, Rule 31, C.P.C. The learned counsel prayed for acceptance of the instant appeal.
4. While controverting the arguments of the learned counsel for the appellants , the learned counsel for the respondents refuted the claim of the appellants and argued that issue-wise findings have been recorded by the Courts below and no violation of Order XLI, Rule 31, C.P.C. has been committed and reached at right and just conclusion of the case. The learned counsel further argued that the Courts below concurred the findings, which cannot be disturbed in second appeal. The learned counsel submitted that in the previous round of litigation, the Courts have already recorded its findings upon the dispute in hand, therefore, the principle of res judicata is fully applicable in the case in hand, hence, the instant appeal is not maintainable 'on this sole ground. The learned counsel prayed for dismissal of the instant appeal.
5. Pro and contra arguments have been heard and the record perused.
6. As the whole case revolves around the "will" executed in the year 1978 in favour of the respondents, therefore, firstly , this Court is to see the authenticity of the aforesaid document. In other words, the bone of contention between the parties is the execution of "will" allegedly executed by Baloch Khan son of Shahnawaz Khan caste Maldiyal resident of Ravli District Bagh in favour of respondents Nos, 1 to 3 namely Muhammad Anwar Khan, Muhammad Nazir Khan and Akhtar Hussain sons of Muhammad Yaqoob Khan caste Maldiyal resident of Ravli Tehsil and District Bagh on 25.07.1978, whereas the record reveals that Baloch Khan has died in the year 1978.
7. Later on, plaintif fs and pro-forma defendants are his legal heirs. They have challenged the legality and correctness of "will" specifically claiming in the plaint that the aforesaid document has been prepared fraudulently after the death of Baloch Khan and no "will" has been executed in favour of the respondents in the life time of Baloch Khan.
8. Under Article 17(2)(A) of the Qanun-e-Sha hadat Order , 1984, the matter pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men or one man and two women, so that one may remind the other , if necessary and evidence shall be led accordingly . Considering Section 17(2)(A) and Article 79 of Qanun-e-Shahadat Order , 1984, it became crystal clear that the "will" in question could be proved only by producing two attesting witnesses. In the present case, the situation is totally different and amazing. The record shows that the "will" dated 25.07.1978 Exh. "PA" attested by the Notary Public namely Raja Muhammad Younas was not authorized for attestation of the said document because neither the Notary Public Act/Ordinance was existing in the field in the year 1978 nor any type of license of Notary Public had been issued. In this regard, the appellants obtained verification from the Law Department dated 13.08.2008 at Pg. 48 of the trial Court, which shows that in the year 1978, the Notaries Act/Ordinance was not adapted in Azad Jammu and Kashmir and the appointment in favour of Raja Muhammad Younas Advocate being Notary Public Bagh is false and fabricated. This question may not be easily answered by the respondents and it raises serious doubt in regard to the genuineness of the Will, rendering it totally dubious. Once it is found that the Will, which had been tendered to serve as foundation was doubtful the entire edifice built thereon will fall to the ground. This principle has been laid down in the precedent 1989 CLC 198. It is also a settled principle of law that when the foundation is illegal and how the superstructure built over it Can be declared to be a legal? In my considered view, in presence of the said verification, the "will" executed in favour of the respondents is totally void ab-initio, false and fabricated. In other words, the said will has been obtained fraudulently .
9. There is another aspect of the will which also deserves to be seen. The record reveals that the said Will is unregistered. The law is well settled that a Will of this kind whereby interest in any immovable property valuing more than Rs,100 is sought to be created requires to be registered compulsorily under section 17 of the Registration Act and if it is unregistered it has to be ignored straightway . Accordingly , even if the Will be held to be validly executed it would not operate to create any right or interest in favour of the respondents being unregistered.
10. A similar question arose in the precedent PLD 1973 Peshawar 63, held that the deed being compulsorily registerable under section 17 of the Registration Act and having not been registered, would not convey any right or interest in the property to the plaintif f, though it could be received in evidence.
11. It is also a settled principle of law that when it is alleged that an instrument is a fraudulent, the beneficiary of the instrument has to prove its genuineness and in case he proves it the person so alleging as to refute it. Admittedly , the authenticity of the "will" was not proved by the respondents by producing satisfactory evidence.
12. It is also settled principle of law that onus to prove as to whether the execution of document has been obtained duly is on the beneficiary of the document. As the appellants appeared in the witness box with a definite stand that alleged will has been obtained fraudulently , therefore, the onus shifted on the respondents to prove that the document was obtained properly and validly as has been held in PLD 2003 SC 31 and PLD 1984 SC(AJK)
138. In my opinion, calling of attesting witnesses were necessary in the circumstances of the case notwithstanding the fact that the Will was not compulsorily registerable but it was a document brought into existence for creating future obligations and financial liability . It is also well settled law that admissibility of document is one thing and genuineness thereof is another . The admissibility of document would not mean that contents of such document had also been accepted by the Court as genu ine. A reference can be made to 1987 CLC 798 and PLD 1977 Lah. 267.
13. In Ghulam Nabi's case, [1993 CLC 314], it was held that execution of private document could be proved by examining scribe and an attesting witne ss, where such person having not been examined, the document in question would be deemed to have not been proved and could be excluded from consideration. In the present case admittedly Baloch Khan to whom the execution of the will is attributed has died, even then, it was enjoined upon the respondents to prove the document by calling the witnesses in whose presence the will was executed and signed by Baloch Khan. It is not proved or even the statement of the concerned Patwari was not recorded before the trial Court.
14. The record also reveals that neither statements of the author of the disputed document nor the marginal witness namely Muhammad Afsar Khan have been recorded. Similar dispute has been resolved by the Supreme Court AJ&K in a case titled "Abdul Waheed Butt v. Excise and Taxation Officer and 3 others " [2003 SCR 298]. The relevant portion is reproduced, which is as under:-- "As we all know writing include the signat ures which under law can be proved eithe r by calling the writer himself or by recording evidence of such a person in whose presence the document was written or by producing such a person before the Court who was and could be acquainted with the writing of the writer or by comparison of the writing and signatures by the Court itself because Judges are expected to participate in the proceedings with their full consciousness and the failure on the part of the patties to do the needful does not absolve the Court from its fundamental responsibility to ensure that all proper and necessary steps are taken to arrive at the truth in order to meet the ends of justice. Mere fact that the defendants have denied the existence of the certain facts is not sufficient to consider such question as disputed question of fact."
15. Yet another important factor which also cannot be overlooked and after perusing the record, came into consideration of this Court that the respondents have not claimed any relief in respect of land bearing survey No, 2024 but surprisingly the Court below has issued the decree in favour of the respondents in respect of the said land.
16. According to settled principle of law that relief which is not the part of the pleadings cannot be given to any person by the Court. This view finds support from 2003 YLR 1810 .
17. The findings recorded by Courts below are based on conjectures and surmises, which are not maintainable in any manner . The point agitated by the learned counsel for the respondents that previou sly the matter regarding the Will has been adjudicated by the trial Court and has not been challenged, hence, this case is hit by the principle of res judicata is devoid of any force because a decree, which has been obtained fraudulently does not attain the finality and is liable to be set-aside even it has not been challenged. It is a settled proposition of law that a judgment or decree obtained by practicing fraud to the Court is a nullity in the eye of law and such a judgment/decree by first Court or highest Court has to be treated as nullity by every Court whether the superior or inferior . It is also a settled principle of law that a judgment or decre e obtained by fraud cannot be said a judgment or order in law. It is very astonishing that if a superior Court finds that a decree or order of the Court is obtained by fraud but the same is not subject matter of the case, the Court accepts its illegality on the ground that it has become a past and closed transaction and behaves like mute spect ator. It is not acceptable that justice can be defeated through fraud. It is observed that fraud and justice cannot prevail together . Centuries old Latin maxim is "Fraus et jus nunquam cohabitant" (fraud and justice never dwell together). My this view finds support from AIR 2013 SC 3568. In presence of the verdict of the superior Courts no further deliberation is required by this Court. The apex Court of Azad Jammu and Kashmir in a case titled Habibullah v . Mahmood [1984 PSC 291 held as under:-- "18, For the above stated reasons, the decree passed by the Court below is a nullity in the eye of law and such a decree is to be recalled wherever and whenever it is pressed in service. Under the provisions of Order XLIII, Rule 4 of the Azad Jammu and Kashmir Supreme Court Rules, 1978, read with section 42-A(1) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, which reads:-- "Order XLIII Rule 4 of the Supreme Court Rule: The Court shall have power to pass any decree and make any order which ought to have been passed or made, and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree, and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection."
18. The same principle has been laid down in the precedent PLD 1964 SC 97 .
19. As stated above, the respondents have not proved their case, therefore, in view of the position discussed hereinabove, I am of the view that judgm ents passed by the learned trial Court and affirmed by the first appellate Court are contrary to law. It is correct that concurrent findings of fact cannot be disturbed in second appeal until and unless the grounds enumerated in Section 100 of the C.P.C. are attracted but those findings of fact are not sacrosanct, which has been recorded against the record or by ignoring the legal provision regarding execution of document. A reference can be made to PLD 1981 AJK 54, wherein, at page 56 of the report it was observed as under:-- "In all the aforesaid cases the learned Judges followed the view enunciated by Privy Council in Venkata Kumara Maheipati Surya Rao's, case wherein, a distinction was made between an error or defect in procedure and erroneous finding of fact. It was held that second appeal was not entertain-able on the ground of erroneous finding of fact, however , gross or inexcusable the error may seem to be. The aforesaid view was followed in a number of cases.
20. The other view is that concurrent finding of fact based on misreading or misrepresentation or non-consideration of material evidence or on no evidence, was open to scrutiny by High Court. Similarly , question of right, construction of rights, were held as question of law. Hence, High Court considered such questions in second appeal. This view has been adopted in this Court throughout and view is accepted by the Supreme of Azad Jammu and Kashmir . The aforesaid view being broad, is comparatively nearer to the rule of justice."
21. The upshot of the above discussion is that the instant appeal is hereby accepted and judgment and decree of the trial court as well as the first appellate court are recalled. Resultantly , the judgments and decrees based upon the aforesaid will are also recalled and the suit file don behalf of the appellants is decreed in the terms as indicated herein above.