SYED SHAHID BAHAR, J. Captioned appeal has been directed against the impugned judgment and decree passed by the learned Additional District Judge Muzaffarabad on 05.05.2015, whereby the appeal filed by the present appellants has partly been accepted.
Precise facts forming background of the instant appeal are that plaintiff-respondent No.1, herein, filed a suit cum-perpetual- injunction against defendants-appellants, herein, in the Court of Civil Judge Court No.III, Muzaffarabad, by claiming her ownership and possession upon land comprising khewat No.106, survey No.49 (old), 146 (new), measuring 03 marlas situated at village Ambore, Tehsil and District Muzaffarabad, which come to her ownership through mutation No.796. It was stated that plaintiff is a widow and defendants-appellants are bent upon to deprive her from the aforesaid land and defendants-appellants without obtaining NOC from the concern departments have started construction upon the said land. It was further claimed that plaintiff has constructed two shops upon the said land which were destroyed in the devastated earthquake of 2005, hence, decree was prayed for in her favour. The suit was contested by the other side through written statement, wherein claim of the plaintiff was refuted through separate written statements dated 27.11.2010 and 24.01.2011, respectively, wherein it was stated that the plaintiff has no cause of action and has no concern with the said land and suit of the plaintiff is liable to be dismissed under Order VII, Rule 11, C.P.C., 1908. It was further added that plaintiff has not annexed any sort of document which can prove her ownership upon the disputed land. The mutation No.796, is pertaining to correction of name and the same has also not been challenged or incorporated in the suit. It was maintained that as per Misl-e-Haqiat pertaining to the years 1998-99, from khewat No.106 and as per decision of the Custodian of Evacuee Property dated 30.05.2007. the plaintiff is owner to the extent of 01 kanal and 10 marlas, however, through Award No.10/2009, the land was acquired in favour of Abbas Institute of Medical Science (AIMS), whereby plaintiff has received compensation of 18 marlas and 01 sarsai, however, 10 marlas land has already been sold by her to her sister namely Ismat Bibi, therefore, plaintiff is now become owner only to the extent of 02 marlas land, however, she has possessed upon on survey No.147, approximately 07 marlas land in shape of constructed house. However, house of defendant-appellant No.1, was constructed upon survey No.146, much earlier which was destroyed in the Earthquake of 2005 and compensation of the same was received by him from ERRA, however, during fresh construction on his part plaintiff- defendant No.1, by twisting facts and committing fraud has filed suit and succeeded to obtain status-quo, therefore, suit may be dismissed. Learned trial Court in light of pleadings of the parties directed them to lead evidence in support of their respective claim. At the conclusion of the trial, the learned trial Court decreed the suit in favour of the plaintiff-respondent No.1, vide judgment and decree dated 31.10.2014, which was assailed by the present appellants before the 1st appellate Court and the same after hearing the parties was partly accepted and it was directed that till partition of the land as per law the appellants, herein, neither make construction upon the disputed land nor transfer or interfere in possession of the same through the impugned judgment and decree dated 05.05.2015, hence, the captioned appeal.
Learned counsel for the parties were directed to file written arguments through order dated 14.04.2022 and needful has accordingly been done on behalf of the contesting parties.
Syed Nazir Hussain Shah Kazmi, filed written arguments on behalf of the appellants which are almost similar to the contents as well as facts of the case and impugned judgment and decrees.
However, he while attacking upon the impugned judgment and decrees, submitted that the trial Court as well as the learned 1st. appellate Court have mis-read and non-read the evidence adduced by the parties as well as failed to examine the relevant record in its true perspective while passing the impugned judgment and decrees which amounts to serious miscarriage of justice due to which the appellants have suffered an irreparable loss, hence, the same are not sustainable in the eye of law, which may be set aside. Learned counsel in support of his contentions referred to and relied upon the following case law and prayed for acceptance of appeal:-
1. [2013 SCR 262],
2. [2011 CLC 2020],
3. [2006 YLR Lah. 856],
4. [2004 SCR 202],
5. [2004 YLR 2301],
6. [PLJ 2002 SCAJ&K 526],
7. [2002 CLC 749] and
8. [1999 CLC 1406].
Haroon Riaz Mughal, Advocate for respondent No.1, in his written arguments while reiterating the facts of the case submitted that both judgment and decrees passed by the Courts below are in accordance with law which hardly require any interference by this Court, therefore, appeal may be dismissed.
I have considered written arguments filed on behalf of the contesting parties and gone through the impugned judgment and decrees and minutely perused the record as well.
The respondent No.1, herein, filed a suit for declaration cum perpetual injunction before the Court of first instance by alleging that she is owner and possessor of the suit land bearing khasra No.49 (old), 146 (new), measuring 03 marlas in view of mutation deed No.796, in A devastating earthquake of 2005, her house built' upon the suit land also turned into debris. Respondents (appellants, herein) are her real brothers who are inclined to snatch the suit land from the plaintiff and in this connection they are raising construction over the suit land.
After necessary proceedings written statement was duly filed and in light of pleadings of the parties, learned trial Court framed as many as 04 issues, which are reproduced as under:- Plaintiff-respondent, herein, produced three witnesses in support of her version and also got recorded her own statement which in juxtaposition the appellants, herein, produced two witnesses in rebuttal and one of the appellants, got recorded his own statement.
Ultimately the Court of 1st instance rendered the judgment and decreed the suit in favour of the appellants, herein, who went in appeal and the 1st appellate Court endorsed the decree of the trial Court to the extent of grant of relief by way of perpetual injunction and dismissed the same to the extent of declaratory relief, hence, the instant appeal.
Parties are admittedly co-sharers and it is settled principle of law that possession of co-sharers over the portion of undivided property has to be deemed on the part of all the co-sharers.
Therefore, in such like eventuality proper course provided by law is to seek partition of the undivided property, civil cases are to be decided on the basis of doctrine c of preponderance of probability of evidence.
Contention of disparity regarding fractional share is purely within the domain of the relevant revenue authority and findings concurrently recorded by both the Courts below cannot be set at naught randomly. In this regard, I am fortified to follow ratio-decidandi of vertical precedents in the following case law:- i. Mst. Farooq Bibi v. Abdul Khaliq and 26 others [1999 CLC 1358], ii. Mst. Kubra Begum v. Muhammad Yasin Khan [PLD 1983 SC AJ&K 56] and iii. Muhammad Riaz Khan and 11 others v. Mst. Tahira Begum and 16 others [1996 CLC 1540].
In case of Mst, Farooq Bibi, supra, it was held by the Hon'ble Supreme Court at pages 1361 and 1362, as under.- "........ It is settled principle of law that a piece of evidence or statement of witness which goes against the interests of a particular party and that party does not question the correctness of that assertion of a particular party and that party does not question the correctness of that assertion or the deposition of the witness it shall be deemed to have been admitted."
"A finding of fact, it is now settled law, cannot be disturbed in second appeal unless it can be shown that the evidence was misread and the finding is based on surmises and conjectures.
Erroneous findings of fact, however, inexcusable it may be, cannot be disturbed in second appeal unless there is some defect in the procedure causing error in the decision of the case on the merits."
Pronouncement of appellate Court pertaining to dismissal of the suit to the extent of declaratory decree is in consonance with law, only decree of joint possession is permissible in case of joint undivided property. In this regard ready reference in case titled Muhammad Rustam and 06 others v. Muhammad Malik and 18 others [1999 CLC 1406], wherein it has been laid down ut-infra: - "Therefore, the appeal is partly accepted in the terms, that the appellants are co-sharers in the suit land but they are not entitled to decree for possession because they are already in joint possession with the respondents. If they are in possession of the share lesser than to what they are entitled, their remedy lies with the Revenue Authorities by seeking the partition of the land............ "
Findings concurrently recorded by the Courts below pertaining to the perpetual injunction subject to proper partition of the suit land are completely in lien with the scheme of law and record as well as evidence.
Nub of above discussion is that, the instant appeal fails, which is dismissed. The parties are left to bear their own costs.