GHULAM MUST AFA MUGHAL, J. The captioned appeal by leave of the Court arises out of the judgment dated 11.4.2018 passed by the Azad Jammu & Kashmir High Court in Civil Appeal No. 17 of 2013.
2. The precise facts forming the background of the captioned appeal are that Syed Bashir Hussain Shah, appellant, herein, brought a suit for declaration- cum-perpetual injunction and cancellation of mutation No. 484, dated 17.10.2007 against the defendants, respondents, herein, in the Court of Senior Civil Judge Bagh on 7.5.2008. It was claimed that Syed Safeer Hussain Shah, the husband of defendant No. 1 and the father of defendant No. 2 was real brother of the plaintif f, who has died and mutation No. 180 regarding his estate was attested on 21.8.1996 in accordance with law. It was claimed that the defendants in connivance with each other moved some applications to the Revenue Authorities and got cancelled the said mutation. After cancellation of mutation No. 180, the fresh mutation No. 484 in their favour was attested posing that Syed Safeer Hussain Shah belongs to Shia sect and in presence of the widow and daughter , the plaintif f and proforma respondents were not entitled to any inheritance from the estate of Syed Safeer Hussain Shah. The suit was contested by the defendants by filing written statement.
It was pleaded that under the Shia law of inheritance, the plaintif f and proforma respondents were not entitled to inherit from the estate of Syed Safeer Hussain Shah and mutation No. 180, dated 21,8.1996 was got entered collusively by the plaintif f, which was corrected on a review by the Collector on 17.8.2007 and new mutation No. 484 has been entered. The other paras of the plaint were also refuted by the defendants. The learned Trial Court framed issues in light of the respective pleadings of the parties and directed them to lead evidence pro and contra .
At the conclusion of the proceedings vide judgment and decree dated 30.5.2012, the suit was dismissed for want of proofs. The appellant, herein, felt aggriev ed from the judgment and decree dated 30.5.2012 challenged the same through an appeal before the District Judge Bagh on 26.6.2012. After hearing the parties, the learned District Judge Bagh vide judgment and decree dated 26.1.2013 dismissed the appeal. Second appeal was filed by the appellant, herein, before the Azad Jammu & Kashmir High Court on 9.3.2013, which also met the same fate and stood dismissed through the impugned judgment dated 1 1.4.2018.
3. Raja Ibrar Hussain the learned Advocate appearing for the appellants argued with vehemence that the judgments and decrees passed by the Courts below are against the record, perverse, perfunctory , arbitrary and badly suffer from misreading and non-reading of the record, hence, are liable to be reversed. The learned Advocate further argued that the learned Trial Court has read the statement of Sardar Mukhtar Khan and Muhammad Iqbal, PWs in favour of the plaintif f, whereas the fact of the matter is that these witnesses were produced by the defendants but the Clerk who has recorded the evidence has wrongly mentioned them as the witnesses of the plaintif f The learned Advocate further argued that after considering their statement the learned Trial Court has given findings against the appellant, herein. The learned Advocate further argued that the matter was agitated before the High Court but the same has not been considered. He further argued that mutation No. 484 was entered after cancellation of mutation No. 180 on a review , but before passing the order , the appellant, herein, has not been heard, hence, mutation No. 484 was void and liable to be cancelled.
4. Syed Mushtaq Hussain Gillani the learned Advocate appearing for the responde nts argued with vehemence that mutation No. 180 was got attested by the plaintif f, appellant, herein. collusively and the fact of the matter is that Syed Safeer Hussain Shah belongs to Shia sect and under that law his property devolved only on the widow and his daughter . He argued that in presence of these legal heirs, none from the proforma respondents and the plaintif f is entitled to inherit from the estate of Syed Safeer Hussain Shah. The learned Advocate argued that the question as to whether mutations No.-180 and 484 have been attested in accordance with law was a question of fact, which has been resolved by the Senior Civil Judge, District Judge and the learned High Court in favour of the respondents, therefore, concurrent findin gs of fact recorded by the Courts below cannot be reversed in appeal because reappraisal of evidence is not the job of this Court.
5. We have heard the learned Advocates representing the parties and have gone through the record of the case.
The contention of Raja Ibrar Hussain, the learned Advocate for the appellants, that Sardar Mukhtar Khan and Muhammad Iqbal were produced by the defendants, respondents, herein, and have wrongly been quoted as plaintif fs' witness and their statements have wrongly been read against the appellants, herein, is devoid of any force. A perusal of the record reveals that after framing the issues, the learned Trial Court has directed the plaintif f to produce evidence on 11.11.2008. It was further directed that if the evidence is summoned through the indulgence of the Court then the necessary expenses may be deposited. Syed Bashir Hussain Shah, appellant, herein, filed an application for summoni ng the witnesses as well as depositing the expenses in the Court on 14.11.2008. Sardar Mukhtar Khan and Sheikh Muhammad Iqbal, witnesses have been listed respectively at serial Nos. 2 and 4 of the said application. So this is factually incorrect that these witnesses were produced by the defendants and their statements have been wrongly considered against the plaintiff. The learned Advocate has admitted that while considering their statements the conclusion of the Trial Court is not erroneous and could be the same. Be that as it may, we have perused the evidence as well as the entire record for our own satisfaction. The moot point in the case was as to whether Syed Safeer Hussain Shah belongs to Shia sect, thus the mutation No. 484 was attested in accordance with law. Issue No. 2 was raised by the learned Trial Court to the same effect. On the basis of the evidence produced by the parties this issue has been decided against the plaintif f and the findings recorded by the learned Senior Civil Judge has been affirmed by the District Judge Bagh and subsequently in second appeal by the learned High Court. These findings being question of fact are not open to interference. By now law is well-settled that if concurrent findings of fact are based on proper appraisal of evidence then the same cannot be disturbed by this Court. Even otherwise, the learned Advocate for the appellants has failed to bring on record any misreading or non-reading of evidence except leveling a general allegation in the terms that the judgment passed by the learned Senior Civil Judge badly suffers from misreading and non-reading of the record.
The learned High Court in this regard has rightly , relied upon Muhammad Zarin Khan's case (1993 SCR 114), wherein it was observed as under:-- "...A general allegation of misreading or non-reading of evidence would not render the concurrent findings of fact open to challenge. It is necessary for the party to specifically point out the witnesses whose statements were misread and support the contention by certified copies of the said statements."
Again on the question of fact, it was observed in Adalat Khan's case (1995 SCR 151) as under:- "...Even if a different conclusion from the one reached by the Courts below is possi ble, the High Court is not legally competent to disturb the findings until and unless a case of non-reading or misreading of evidence is made out or a gross illegality is shown to have been committed while appreciating evidence of a witness." the light of afore-mentioned judgments of this Court, we approve the findings of the Courts below .
6. One of the arguments of Raja Ibrar Hussain the learned Advocate for the appellants was considerable that mutation was reviewed without providing the right of hearing to the appellants, herein. But we are of the view that this fact was directly in issue and has not been proved by the appellants by summoning the relevant record from the office of the Tehsildar/Collector . Moreover , for cancellation of mutation No. 484 on technical ground, it was necessary to implead the Collector as well as the concerned Tehsildar as a party in line of the respondents. The right of appeal was also available to the appellants, herein, and the delay , if any, could have been condoned by the higher forum but the appellants have not opted to adopt the proper legal course in this regard. The discretionary relief, otherwise, cannot be granted when an alternate remedy is available to a person.
The upshot of the above discussion is that finding no force in this appeal, it is hereby' dismissed with no order as to costs.