Raza Ali Khan, J:- Impugned herein is the judgment dated 08.11.2022, rendered by the learned High Court passed in Civil Appeal No. 150/2015, whereby the appeal filed by the respondents, herein, has been accepted.
2. The facts forming the background of the captioned petition for leave to appeal are that the petitioner, herein, filed a suit for declaration, cancellation of mutation No. 102, dated 10.04.2009 and for perpetual injunction against respondents, herein, in the Court of Civil Judge, Dhirkot, on 7.10.2009 stating therein that as per the revenue record suit land is in the ownership of plaintiff, Mir Zaman Khan and defendants No.1 and 2. It was averred that Mir Zaman Khan was issueless, who adopted the plaintiff and vide will deed executed in year 1977, transferred his whole share to the plaintiff and will deed was executed in presence of witnesses. It was further averred that Mir Zaman Khan also transferred possession of his share to the plaintiff in his life time, however, defendant No. 1 illegally got attested mutation No. 102, on 10.04.2009, in his name and in the name of defendants No. 2 and 5 and now he is threatening the plaintiff for snatching possession of the plaintiff. The defendant No.5 admitted claim of the plaintiff, while defendant No. 1 and 2 contested the suit by filing written statement, wherein, the claim of the plaintiff was refuted and pleaded that will deed is forged and fake. The learned trial Court in the light of the pleadings of the parties framed issues and directed them to lead evidence pro and contra and at the conclusion of the proceedings decreed the suit and cancelled mutation No. 102, dated 10.04.2009, vide judgment and decree dated 3004.2014.
Feeling aggrieved from the said judgment and decree, the respondents, herein, preferred an appeal before the learned Additional District Judge Dhirkot, which met the same fate vide judgment and decree dated 30.07.2015. The judgment and decree dated 30.07.2015, was further assailed by the respondents, herein, before the learned High Court. The learned High Court has accepted the appeal through the impugned judgment and decree dated 08.11.2022.
3. Ch. Shoukat Aziz, the learned Advocate appearing for the petitioner argued that the deceased Mir Zaman alienated the whole share of his land in favour of the petitioner and also handed over the possession of the same during his life time in presence of witnesses, but the respondents No.1 and 2, illegally and secretly got recorded mutation No. 102 and deprived the petitioner of the land, therefore, the learned trial Court as well as the learned 1st appellate Court rightly decided the case in favour of the petitioner. He further argued that the document dated 16.12.1977, whereby the whole share of Mir Zaman was transferred to the petitioner was not challenged before any forum and the ingredients necessary for the completion of a gift are fulfilled in the case in hand, hence, the mutation got recorded by the respondents No.1 and 2 is illegal, which was rightly set aside by the trial Court as well as by the first appellate Court. The learned Advocate added that without challenging the decision and decree of the trial Court no relief could be extended in favour of the respondents and the learned High Court has wrongly merged the decision and decree of the trial Court into the decision and decree of first appellate Court. He argued that the learned High Court in its recent decision rendered in Civil Appeal No. 93 of 2019, decided on 17.12.2022, has held that without challenging the judgment and decree of trial Court, no relief could be extended only for setting aside the decree of first appellate Court, hence, the impugned judgment and decree passed by the learned High Court is liable to be set aside on this sole ground. The learned Advocate stated that substantial questions of law of public importance are involved in the petition for leave to appeal, hence, the leave may be granted. In support of his contention, the learned Advocate has referred to and relied upon the judgment of this Court rendered in civil appeal No. 93/2019, decided on 23.12.2022 and the case reported as 2012 SCR 427.
4. On the other hand, Raja Sajjad Ahmed Khan, the learned Advocate appearing for the respondents forcefully defended the impugned judgment and decree passed by the learned High Court. He argued that the plaintiff-petitioner has assailed mutation No. 102 on the basis of will deed, therefore, the learned trial Court while handing down its judgment travelled beyond the pleadings, hence, the learned High Court has rightly declared the observation made by the trial Court as fanciful and against the pleadings of the parties. He argued that the learned High Court while handing down the impugned judgment has committed no illegality and the petitioner has failed to point out any legal or factual error in the impugned judgment. He argued that no question of law of public importance is involved in the petition for leave to appeal, hence, the same may be dismissed. The learned Advocate in support of his contention has placed reliance on the cases reported as 2017 CLC 664 and 1989 CLC 2028.
5. We have heard the learned Advocates representing the parties and gone through the record of the case along with the impugned judgment of the learned High Court as well that of the Courts below. From the perusal of the suit filed by the plaintiff-petitioner, herein, it transpires that the petitioner-plaintiff, throughout his suit claimed cancellation of mutation No. 102, attested on 10.04.2009, on the basis of will-deed dated 12.06.1977 as well as on the basis of the expenses he afforded on the illness, funeral and burial of Mir Zaman Khan, deceased. In the prayer clause of his suit, the plaintiff-petitioner prayed as under:- Apart from the said claim, the plaintiff does not appear to make any claim regarding his ownership in respect of the suit land. The learned trial Court framed as many as seven issues. Issue No. 2 is relating to ownership of plaintiff whether he is owner of the suit land or not. After discussing the evidence led by the parties, the learned trial Court observed that the plaintiff has neither furnished any detail in respect of the expenses incurring upon the disease, funeral and burial of Mir Zaman nor in this regard the witnesses of the plaintiff have stated anything. It was further observed that the plaintiff has proved his claim only to the extent of will-deed dated 12.06.1977 but while concluding the judgment declared him entitled to the whole remaining portion of the suit land on the basis of the cognovit and the principle of estoppel against the defendants-respondents. In our considered view, the findings recorded by the learned trial Court to the extent of remaining land is incorrect, firstly because the plaintiff-petitioner claimed ownership of remaining land on the basis of the expenses he bore on disease, funeral and burial of Mir Zaman but he did not bring on record anything in furtherance thereof as has been observed by the learned trial Court itself in its judgment while resolving issue No.2. For better appreciation, the relevant portion of the judgment of the trial Court, is reproduced as under:- If the finding of the learned trial Court to the extent of cognovit in favour of the petitioner by the proforma respondent, herein, is deemed correct, even then the plaintiff could only be declared entitled to the extent of land mentioned in the cognovit.
6. Apart from the cognovit, the trial Court declared the plaintiff entitled to the whole remaining land on the basis of principle of estoppel. It may be observed here that where the parties are co-sharers in the suit land and from the record, partition of land between the co-sharers is not proved, then the principle of estoppel is not attracted. In this regard we agree with the observation made by the learned High Court in the impugned judgment as from the record, Mir Zaman and Ali Sher Khan the grandfather of the plaintiff were real brothers and partition of land between them is not proved.
The judgment of the trial Court is self-contradictory and has been passed beyond the pleadings of the parties. The learned District Judge failed to point out the contradictions found in the judgment of the trial Court and fell in totally an irrelevant discussion while declaring the document Exh. PA as gift-deed. It may be observed here that a judgment has to be based on pleadings of the parties and a Court cannot travel beyond the pleadings of the parties and no relief can be granted to any party which is beyond the scope of its pleadings. Reliance may be placed on the cases reported as Azad Govt. & 6 others v. Faqir Hussain Shah and another (2004 SCR 23) and Javed Iqbal and 5 others v. Social Welfare Deptt. and 5 others (2004 SCR 435), 2016 SCR 887 and 2014 SCR 1608.
7. After juxtaposed perusal of the impugned judgment and the record, we are unable to persuade ourselves to arrive at any conclusion different from the one recorded by the learned High Court.
The petitioner has failed to convince us that there was any legal, procedural or jurisdictional error, defect or flaw in the impugned judgment of the High Court, that may furnish basis for grant of leave to appeal. The impugned judgment of the High Court is well reasoned, based on appreciation of the facts and record, hence, the same warrants no interference by this Court. The petitioner has failed to point out any illegality or infirmity in the impugned judgment, therefore, leave is refused.