1. The captioned appeal has been filed against the judgment and decree passed by learned. District Judge, Rawalakot dated 25.10.2017, whereby, appeal filed by respondents herein against the judgment and decree recorded by Senior Civil Judge Rawalakot dated 17.08.2013 was accepted and suit filed by respondents herein has been decreed.
2. Facts forming the background of captioned appeal are, Muhammad Ashraaf Khan and others, respondents herein filed a suit for possession against Muhammad Ashraf and others appellants herein in the Court of Senior Civil Judge Rawalakot on 10.10.1995, wherein it was submitted that land comprising Survey No. 957/49 measuring 8 kanal 1 marla, Survey No. 958/49 measuring 6 marla, Survey No. 966/51 measuring 3 kanal 18 marla, and Survey No. 965/51 measuring 8 kanal 121/2 marla total measuring 21 kanal 5 marla min measuring 10 kanal 1234 marla situated in village Tarar Tehsil Sudhnooti is in the ownership of plaintiffs and defendants are in possession of the land as tenants at will and have got no concern with the land, therefore the plaintiffs are entitled to get a decree for possession of said land.
3. Defendants contested the suit by filing written statement wherein the claim of the plaintiffs has been refuted and submitted that suit land was in the ownership of Jumaedar Burhan Ali predecessor of defendants and then transferred to father of defendants in Dogra regime. A suit filed by Eid Wali Khan was dismissed by Sub Judge Rawalakot in Dogra regime and. appeal was also dismissed by District Judge Poonch vide its judgment dated 07.07.2002 B.K. It was stated that record had ablaze in an accident, hence plaintiffs have got no concern with the suit land. It was also stated that defendants have made a huge improvement in the suit land. The learned trial Court framed issues in the light. of pleadings of the parties, provided them opportunity to lead evidence, hoard pro and contra and at the conclusion of the Proceedings vide its judgment and decree dated 17.08 2013, dismissed the suit for want of proof. Feeling aggrieved, Plaintiffs/respondents preferred an appeal before the learned District Judge Rawalakot on 09.10.2013. The learned District Judge after nearing pros and cons, accepted the appeal and decreed the suit vide its impugned judgment and decree dated 25.10.2017, hence the captioned appeal.
4. The learned counsel for the parties have filed written arguments which are made part of the file, hence need not to be reiterated for the sake of brevity.
5. I have considered the written arguments filed on behalf of the parties and gone through the record of the case with utmost care and caution.
6. In view of pleadings of the parties and grounds raised in the written arguments submitted by the learned counsel for the parties, the moot point which entails to be determined by this Court is whether plaintiffs were entitled to get a decree for possession of the land as owners or whether the suit was liable to be dismissed on the ground that predecessor of defendants purchased the land from forefathers of plaintiffs, hence, plaintiffs have no cause of action to file their suit?
7. A perusal of jamabandi pertaining to year 1988 B.K. reveals that suit land was in the ownership and possession of Jaffara and Eid Wall sons of Akku in equal share. Jaffara and Eid Wali sons of Akku were predecessor of Muhammad Ashraaf Khan and others plaintiffs. Jamabandi pertaining to years 1968-69 Exh.DE reveals that Muhammad Afsar Khan and his two brothers S/o Jaffara were owners of the land in equal share and Muhammad Azeem Khan and Khan Bahadur Khan alias Kala Khan S/o Afsar Khan and Eid Wali defendants are in possession of the suit land, thus as per revenue record, plamtiffs are the owners of land but land is in possession of defendants. Defendants took a specific stance that land was transferred to Burhan All father of defendants in Dogra regime and a suit filed by Eid Wall Khan predecessor of plaintiffs was dismissed by Sub Judge Rawalakot which was further endorsed in appeal by District Judge Rawalakot Poonch vide its impugned judgment and decree dated 07.07.2002 (B.K.), however, defendants/appellants failed to place a certified copy of decree recorded by Sub Judge as well as District Judge in the suit filed by Eid Wali Khan.
8. Photostat copies of the documents relied upon by defendants/appellants cannot be taken into consideration and in this regard, the learned District Judge has rightly observed that photostat copies of the documents not tendered in evidence are not admissible in evidence. The witnesses produced by plaintiffs also supported the stance taken by plaintiffs and deposed that some share of land is in possession of children of Eid Wali and other in possession of Azeem Khan. It was further deposed that Azeem Khan has taken the suit land for cultivation purpose from Jaffara Khan. They also deposed that suit land was in possession of Jaffara Khan and Eid Wall Khan. A perusal of Exh.PN postulates that Mutation No. 508 on the basis of which the ownership has been claimed by the defendants reveals in its report that decree sheet was not appended which further shrouded its existence into mystery. The defendants in their written statement claimed ownership on the suit land on the basis of some sale-deed, however, Muhammad Ashraf Khan one of defendants in his Court statement claimed ownership on the basis of decree of the Court and adverse possession, which were not pleaded in their pleadings available in shape of written statement. It is a well settled maxim of law that a party cannot go beyond it pleadings nor a judgment can be recorded beyond pleadings of parties. Reliance can be placed on 2004 SCR 23 & 2018 SCR 20. The defendants took contradictory stands in their written statement, Court statement and even before the commission and could not prove even one of their stance in a legal fashion. In my considered view plaintiffs have proved their claim of ownership of the suit land while on the other hand defendants failed to prove their possession of the land as owners rather one of defendants/appellants Muhammad Ashraf Khan even did not mention about any sale-deed in his Court statement, hence in absence of any convincing evidence and merely relying on photostat copies which are also invisible an owner cannot be deprived of his lawful right of the ownership. It is a trite law that civil cases are to be decided on the touchstone of preponderance of probability of evidence led by the parties. The ratio decidendi listed by the learned District Judge are justified and entails to be sustained from the record while on the other hand the learned trial Court based its judgment on assumptions and anomalously relied upon photostat copies which are inadmissible in evidence.
9. The sum and substance of the above discussion is, finding no essence the instant appeal is hereby dismissed.