' SHER ZAMAN CHAUDHRY, J.-The appellants Allah Ditta and others through this appeal, by leave, seek the reversal of the judgment and decree passed by the High Court on 11-2-1981. The facts giving rise to the controversy are that on 16-5-1971, the appellant/plaintiffs filed a declaratory suit in the Court of Additional Sub-Judge, Mirpur.. Their claim with regard to the suit land was A that they along with respondents were co-sharers in their ancestral landed property situated in villages Rajoha, Dagar and Bandariyan Balagara. Through a private partition land in village Rajoha i. e. The suit land came to their share whereas respondent/defendants got that of the village Dagar and Bandriyan Balagara. They, therefore, became the sole owners of the suit land and also are in possession of it since the date of private partition. The suit was resisted only by the respondents Nos. 1 to 5.
2. The trial Court vide its order dated 7-3-1976 decreed the suit of the appellants. The appeal by the respondents before the District Judge failed. B Their second appeal in the High Court against the judgment and decree passed by the District Judge on 17-2-1977, however, succeeded. The case was remanded back to the District Judge for deciding the appeal afresh. This order of remand was passed by the High Court on 27th of December, 1977. Not satisfied with the order of remand passed by the High Court the appellants filed an appeal in the Supreme Court. The ground on which the appellants sought the reversal of the High Court's judgment was that since the contesting respondents during the pendency of their appeal before the District Judge had disposed of their share in the suit land, through a sale deed, their appeal therefore, was incompetent. This important legal point, they contended, was not attended to by the High Court, the judgment of the High Court was therefore bad in law. The Supreme Court finding no fault in the High Court's judgment declined to interfere and dismissed their appeal vide its judgment dated 28-1-1980.
3. The appeal after having been remanded back to the District Judge was again dismissed by the District Judge vide his judgment dated 20-7-1980. The respondents' appeal in the High Court succeeded. The findings of the trial Court as well as that of the first appellate Court were set aside and the appellants' suit to the extent of contesting respondents' share was dismissed by its order dated 11-2-1981. It is this judgment of the High Court the validity of which is being challenged through this appeal.
4. From among various grounds of objections, listed in the petition, leave however was granted on two points only, namely :-
(a) whether a concurrent finding of facts by the Courts below could legally be interfered with by the High Court in second appeal ; and
(b) whether the admissions made by some of the defendants in their written statements were binding on non-admitting co-defendants ?
5. Time and again this question about the competency of the High Court to interfere in concurrent finding of facts arrived at by the Courts below has been a subject of consideration by the superior Courts. There seems to be a general consensus on the point that keeping in view the provisions of section 100 and Order XLI of C. P. C. The finding of facts cannot be interfered with in second appeal yet many a time the learned Judges had to ask themselves the question "is the rule absolute, could it not be interfered with under any circumstances." The same is under consideration now.
6. Qazi Abdul Ghafoor, the learned counsel for the appellants, argued at a considerable length that the concurrent finding of facts no matter how erroneous may it be cannot be a subject of second appeal. Wrong appreciation of facts and conclusion drawn therefrom, he submitted, can never be interfered with. Interference simply for the reason that a different conclusion is possible in the estimation of the High Court is not permissible under law. In support of the proposition reliance was placed on Keramat Ali and another v. Muhammad Yunus Haji and others, Anaitullah Khan and 2 others v. Sarfaraz Khan and 16 others and Bahadur Garu v. Secretary of State.
7. We have gone through these authorities carefully and examined the principle enunciated. We may say that in fact there are number of other authorities and more recent too on the point. We are quite in agreement with the principle laid down in those authorities. "Findings concurrently arrived at by D the Courts below on point of facts and conclusions drawn from the evidence, no matter how erroneous those may be, no doubt could not be interfered with at the second appeal stage by the High Court, yet however, if based on misreading and non-reading of evidence would be subject to exception. The High Court can and rather is duty bound to interfere in such an eventuality to redress a wrong," This view has consistently been followed by this Court in number of cases. We are supported in our view by a Supreme Court judgment titled as Mst. Bibi Jan v. Habib Khan and another which has been referred to by the learned counsel for the appellants himself.
The principle laid down in that case by their Lordships was that finding of facts based on misreading, non-reading/misrepresentation of evidence can be interfered with and has no sanctity attached with it. It was also laid down that inference of proper legal effect is necessarily a question of law on which second appeal is competent.
8. After having dealt with the principle involved in its correct perspective we now proceed to decide as to whether there existed any justification for the High Court to interfere with the findings of the Courts below. The learned counsel for the appellants submitted that there has neither been any miscreading or non-reading of the evidence by the trial as well as the first appellate Court nor has any illegality been committed necessitating the interference by the High Court. In order to appreciate the arguments in its correct perspective we would like to attend first as to what exactly1 2 3 4 is the appellants' case as disclosed in their plaint and then the nature of evidence led in proof thereof. From the close perusal of the plaint their claim precisely is :-
(a) that there was a family partition ; (b/ that the respondents were co-sharers in the suit land, and
(c) that land in village Dagar and Bandriyan Balagra now under possession of the respondents was also ancestral property of the appellants and respondents both, but on account of family partition it went to the share of respondents. The suit land, therefore, exclusively belongs to them.
Two copies of the record of rights both pertaining to year 1963-64 marked as Exh. P. A. And Exh. P. B.
Relating to the suit land in village Rajoha were placed on record by the plaintiffs. There is another document marked as Exh. D. A. a copy of mutation with regard to the suit land sanctioned in favour of both appellants and respondents after they were granted the proprietary rights under Land Reforms Act, 1960, so much for the documentary evidence, rest is oral evidence.
9. Agha Ashiq Hussain, the learned counsel for the respondents, submitted in reply that on principle he has no quarrel with the proposition as such. However, according to him this is not just a case of mere reappraisal of evidence and drawing conclusion therefrom on point of facts. It is the case where interference by the High Court was necessitated for number of valid and sound reasons, such as -
(a) that the judgments of both the trial as well as the first appellate Court were based on hearsay and inadmissible evidence and were in total disregard to the rules of evidence ; and
(b) that there being sufficient documentary evidence on the record both the Courts below failed to draw the necessary presumption which under law they were bound to. Some of the documents having vital bearing on the case and on its ultimate outcome were not even considered.
Appreciation and interpretation of documents and drawing necessary interference from those has always been regarded as question of law."
10. In order to have a correct perception of the learned counsel's arguments with regard to the judgments of both the trial as well as first appellate Court having been passed on hearsay or, as he puts it, on no evidence, we have carefully gone through evidence. Since the claim of the appellants is based on sole ground of private partition, if they are to succeed, it must firstly be proved that there was any ancestral land of the appellants and the respondents in villages Bandriyan Balagra and Dagar in which both the parties were co-sharers. Secondly that there had been any private partition.
11. So far as there being any ancestral land in those villages of Bandriyan Balagra and Dagar is concerned no revenue record of any kind has been produced. There is no evidence with regard to the scale of the land in those villages which the appellants alleged to be their ancestral. There is no evidence about any of their common ancestors having even been found in possession of that. The only explanation offered by the learned counsel for the appellants is that partition took place long ago and there remains no living person to depose to that effect. If that be so, this fact could have been proved by producing the copies of the revenue record pertaining to the land. As to why such record was not or could not be produced there is no explanation of it in the evidence. The learned counsel for the appellants argued that since it is in the evidence of the appellants' witnesses that on account of family partition land in those villages went to the share of respondents, it can safely be held that the land was ancestral. But then it is also in their evidence that none had seen it happen in their lifetime. They had no personal knowledge of it as it happened before they were even born. It is also not in evidence as to how did they know that land in those villages was ancestral property of the parties. Their only explanation to be found in the evidence is that since the suit land in village Rajoha, admitted to be ancestral property of both the parties is in exclusive possession of the appellants, it can therefore, be assumed that land in village Dagar and Bandriyan Balagra belonging to the respondents was also ancestral. Evidence, as it is, we are of the view, does not warrant such an assumption.
12. It is further argued that since the suit land is in the exclusive possession of the appellants without sharing any of its profits with the respondents, it should be taken as a proof that the respondents had relinquished their right in the suit land in lieu of the property situate in village Bandriyan Balagra and Dagar. It is correct that there is enough evidence on the record that the suit land is in exclusive possession of the appellants/ plaintiffs but then it is, in itself, no proof that the land in other villages was also ancestral property. Secondly, since the suit land is admitted to be the ancestral property of both the parties and they being co-sharers, neither any length of time of exclusive possession nor their exclusive enjoyment of profits would be sufficient to put an end to the rights of the respondents. The possession of one or some of the co-sharers would in law be considered as possession of others or on behalf of others. This aspect of the exclusive possession and that of the exclusive enjoyment of its profit to the exclusion of respondents might have been of some consideration had the case been of adverse possession. The argument has no substance in the present case. In view of the evidence we are in agreement with the learned counsel for the respondents that there was no legal evidence on the basis of which the trial Court and the learned District Judge could legally hold that land in villagek Bandriyan Balagra and Dagar was also ancestral property and that there was a private partition. Both the Courts below misdirected themselves in passing their judgments on flimsy and hearsay evidence. We, therefore, are of the view that if lower Courts are found to have acted in flagrant disregard to the rules of evidence the High Court in such an eventuality would not hesitate to interfere. It cannot and ought not sit back and allow an obvious wrong and illegality go unredressed.
13. Another point requiring determination is as to whether drawing inference from the documents in evidence is a question of fact. Qazi Abdul Ghafoor, the learned counsel for the appellants, argued that since the documents were considered and evaluated along with oral evidence, the conclusions drawn by the lower Courts from the cumulative effect of whole the evidence were, therefore, questions of fact. It matters little whether the conclusions thus drawn were erroneous or otherwise. Simply that conclusions were wrong in the estimation of the learned Judge in the High Court was not a reason enough justifying the interference.
14. Findings being finding of facts, be it right or wrong, cannot be a subject of second appeal in the High Court. Considering the circumstances of the case we find no substance in reasoning advanced by the learned counsel for the following reasons :- ' It is admitted by the appellants/plaintiffs in their plaint that land in dispute was originally ancestral property of the parties. They were co-sharers. Copies of Jamabandi Exhs. P. A. And P. B. Of the year 1963-64 pertaining to suit land contain entries showing the respondents as co-sharers along with appellants. There is a copy of mutation effected in favour of respondents after the occupancy tenants were conferred the proprietary rights under Land Reforms Act. This document has not been taken into consideration by the Courts below. The submission made by Mr. Ashiq Hussain Advocate, the learned counsel for the respondents, is that there documents give rise to a legal presumption in respondents' favour. Drawing inferences from the documents, their interpretation and appreciation is always a question of law. Reference was made to PLD 1971 SC 330 and PLD 1960 Lah.
181. The facts in PLD 1971 SC 330 were that the entries in the revenue record carrying a presumtion of correctness under section 44 of Land Reforms Act were to the effect that the respondents/defendants had all along been shown as occupancy tenants to the suit land. The oral evidence led by the appellants/plaintiffs was too meagre to rebut the presumption attached to the record of rights. Finding of both the Courts below however, went against the respondents/defendants. On second appeal before the High Court, objection was raised that since there was a concurrent findings of fact the High Court could not interfere; but the. High Court refused to accept the plea and held that as the Courts below failed to raise the presumption of correctness attached to the revenue record the High Court was competent to interfere. One appeal before the Supreme Court the principal laid down by the High Court was upheld as correct. The facts of the present case in hand are almost akin to the case referred above. We have also carefully gone through the other authorities referred to by the learned counsel for the respondents.
The principle laid down in PLD 1960 Lab. 1981 was that term "record of rights" itself connotes that the record are something more than from the record of possession or record of assessment. Although record of rights are not instrument of title but they are certainly presumptive pieces of evidence to prove a person's title and a presumption of truth is attached to such entries.
15. In the present case copies of the record of rights were produced in evidence by the appellants themselves. Then there is admission by the appellants in their plaint that respondents were co- sharers in the suit land which is supportive to the entries in the record of rights. There is also a copy of mutation. Al these have been disregarded by both the Courts below on the basis of evidence which is flimsy in nature and hearsay. The judgment beingbased on meagre or no evidence and refusal to draw necessary presumption from the documents on the record is a ground for interference by the High Court. Reference has been made to 1971 SCMR 395. The principle laid down in that case was that if finding of the lower Court is found to have been on no evidence the High Court could not decline to interfere simply for the reason that the findings are claimed to be findings of fact. The case in hand incidentally happens to have striking similarity to the above situation. We, therefore, find lot of substance in the arguments advanced by the learned counsel for the respondents and hold that the interference by the High Court was justified G and unexceptionable.
16. The next point urged by the learned counsel for the appellants was with regard to the admission made in their written statement by some of the co-defendants in the suit. From the perusal of the record of the trial Court it appears that the suit by the appellants/plaintiffs having been filed in the Court of Sub-Judge on 6-5-1971 was fixed for summoning of the defendants on 14-7-1971. Bagh Ali respondent, however, applied on 29-5-1971 that the case may be taken up on that date and his written statement may be recorded earlier. The request was allowed. Similarly, the written statement of Bagh Ali defendant was received by the Court on 2-6-1971, at the request of one of the plaintiffs. Both the written statements which were admissions of the appellants' claim were received by the Court earlier to the actual date of hearing and behind the back of the non- admitting respondents. The written statement of Mst. Jewni was also filed on 6-10-1973. None of them appeared as a witness in the Court.
17. It has been argued by the learned counsel for the appellant that since the admitting defendants were also interested in the disputed property their admissions are also binding on the contesting defendant-respondents. The judgment could be passed, according to him, on admissions under section 18 of Evidence Act, even against the non-admitting defendants. The questions to determine are :-
(a) as to whether the Court is bound to give judgment on such admissions of fact, and
(b) could the admissions of fact made by the co-defendants be used as evidence against the non-admitting co-defendants ?
18. Adverting to the first point of query it may be stated that judgments on admission could be passed under rule 6, Order XII of C. P. C. On admission of fact having been made either on pleadings or otherwise any party may apply to the Court for such judgment or order he may be entitled to without waiting for the determination of any other question between the parties. From the plain reading of rule 6 of Order XII it is clear that it is not incumbent on the Court to pass a judgment on such admissions. It has rather been left to its discretion. In the present case none of the plaintiffs applied for nor the Court passed any such judgment against the admitting defendants as such; instead after the conclusion of the trial and on the basis of cumulative effect of all the evidence and using the admissions in written statements as evidence against the contesting respondents the appellants' suit was decreed. Obviously, it was not a judgment on admissions as such within the terms of Order XII, rule 6 of the C. P. C.
19. The provisions of rule 6 do not make it imperative for the Court to pass a judgment but it merely leaves the matter to its discretion.
20. The next point for determination is as to whether admissions made by the co-defendants in their written statement could be used as evidence against other defendants. Agha Ashiq Hussain, the learned counsel for the respondents, submitted that the judgments passed by the trial as well as by the first appellate Court were not based on sound legal principles and, therefore, had rightly been set aside by the High Court. The admissions made by the co-defendants in their written statement, according to him, could not be made basis for passing the judgment against the contesting respondents. After giving careful consideration to the point involved we are of the view that judgment on admissions by some defendants in their written statment could no doubt legally be passed against the admitting defendants but to stretch the proposition further and to hold that admission by some defendants made in their written statement simpliciter would also bind the other defendants, in our view, would not be in accordance with the correct legal principle. It would be unfair to leave the non-admitting defendants at the mercy of admitting defendants who might have been persuaded for some ulterior motives to damage the cause of other defendants. If the admissions or the concessions made by some of the defendants in their written statement are to be used against the other defendants then it is incumbent that those admitting defendants must appear as witnesses and ,unless and until that is done, mere admissions in written statement cannot be termed as legal evidence against the other defendants.
21. Even if it be assumed that admissions in the written statement could be termed as evidence in the case till considering the collusive nature of those, it was an unjudicious exercise of the discretion by the trial Court and its confirmation by the first appellate Court. We are supported in our view by the judgments reported in 30 I C 2 & 29 and 29 I C 924. The facts of the case reported in 30 I C 2 were that a suir for possession was filed by the plaintiffs on the basis of their being reversioners of a widow, who, they claimed had died before the institution of the suit. The property in dispute was found to have been transferred by the widow to her brother Sheeba in 1888 who, in turn, transferred a part of it to the defendant Pooran Lal in 1896. Daughter-in-laws of Sheeba having a portion of the property in dispute in their possession were impleaded as defendants 2 and 3 in the suit alongwith Pooran Lal. Codefendants 2 and 3 in their written statement stated that widow had died 3 years before the institution of the suit. The Court on evidence found that widow had died more than 12 years before the institution of the suit so the suit was dismissed on account of being time-barred. On appeal the first appellate Court also disbelieved the plaintiff's evidence yet decreed the suit on the ground that defendants 2 and 3 in their written statement admitted the time of death of the widow as 3 years earlier to the institution of the suit ; so those admissions about the suit being within time were binding on the contesting defendant Pooran Lal. On appeal by the contesting defendants the learned Judges in the High Court reversed the finding for the reason that since two ladies did not appear as witnesses in the case, their admissions in the written statement could not be termed as legal evidence against Pooran Lal. Same principle was laid down by their Lordships in the High Court in a case reported in 29 I C 924.
22. The admitting defendants in the present case never appeared as witnesses in the case. Their admissions in written statement, we therefore, hold could not be the evidence against the contesting respondents. Both the trial Court as well as the first appellate Court misdirected themselves by using the admissions in written statement against the contesting respondents. We, therefore, are of the view that the learned Judge in the High Court had sufficient legal justification to interfere and redress a wrong done to the respondents. The admissions could also not be used against the contesting respondents on account of these being collusive in nature. The appellants' suit was fixed for 14-7-1971, it is surprising and there seems no sound reason as to why the admitting defendants were so eager to rush to Court much ahead of the date fixed for case and submit their written statements. The conduct and the manner in which these written statements were filed are a strong pointer of their being collusive in nature.
' For the foregoing reasons we, therefore, hold that the judgment of the High Court is based on very cogent and sound reasons and we find no fault in it. The appeal is, therefore, dismissed with costs. PLD 1963 SC 191 PLD 1979 SC (A J K) 53 AIR 1929 P C 152 PLD 1975 SC 295