Kh Muhammad Nasim, J.--The above titled appeal by leave of the Court, has been directed against the judgment and decree of the High Court dated 16.11.2020, passed in Civil Appeal No. 18 of 2019.
2. The succinct facts of the case leading to the filing of the instant appeal are that the plaintiff/appellant, herein, filed a suit for declaration-cum-perpetual injunction and specific performance on the basis of agreement-to-sell, dated 19.05.2010, pertaining to the shop built upon the land comprising survey No. 278-min, measuring 01 marla, situated in Mozia Budhyara, Tehsil and District Muzaffarabad. It was alleged that Muhammad Zaman, predecessor-in-interest of the defendants/Respondents No. 1 to 9, transferred the disputed built property through agreement-to- sell dated 19.05.2010, in favour of the plaintiff-appellant, in lieu of Rs. 15,00,000/-, It was further alleged that after payment of the consideration amount, the predecessor of the defendants/Respondents No. 1 to 9, herein, handed over the possession of the disputed shop to the plaintiff-appellant. Thereafter, Muhammad Zaman was died and his successor-in-interest were asked to execute the sale-deed in favour of plaintiff/appellant, but they refused to do so. The other side filed written statement, wherein, the claim of the plaintiff was refuted in toto. After necessary proceedings, the trial Court dismissed the suit with costs, for want of proof, vide its judgment and decree, dated 22.10.2018. The said judgment and decree was challenged by the appellant, herein, before the High Court. Through the impugned judgment, the learned High Court has dismissed the appeal with costs of Rs. 20,000/-. This judgment of the learned High Court is the subject matter of the instant appeal by leave of the Court.
3. Sardar Karam Dad Khan, the learned Advocate, representing the appellant submitted that the judgments and decrees passed by the Courts below are against law and the record of the case, which are not sustainable in the eye of law. He argued that while passing the impugned judgments and decrees, the Courts below have committed grave misreading and non-reading of the record, due to which wrong conclusion has been drawn. The Courts below, even not bothered to appreciate the important documents i.e. cognovits, submitted by one of the wives and sons of the deceased Muhammad Zaman, as well as the copy of Khasra-Girdawri, which were necessary to be examined for reaching the just conclusion. The learned Advocate, further submitted that the appellant in his plaint/suit sought the multiple reliefs and if for the sake of arguments, the Courts below were of the opinion, that the declaratory suit cannot be granted in respect of the shamilat deh land, then, It was enjoined upon the Courts below to grant the decree of perpetual injunction.
In this state of affairs, the impugned judgments and decrees passed by the Courts below are patently illegal and liable to be set aside. Lastly, the learned Advocate, prayed for acceptance of appeal.
4. Conversely, M/s. Saghir Javed and Asif Shahzad, the learned Advocates, while appearing on behalf of Respondents No. 10 to 14, argued with vehemence, that the judgments and decrees passed by the Courts below are perfectly legal, calling for no interference by this Court. They submitted that the appellant, himself in his Court statement deposed that he was entered in the disputed shop as a tenant of Respondent No. 10, Muhammad Saghir, and this fact is also proved from the record that the appellant had continuously been paying the rent of the disputed shop to the owner. The appellant, herein, got executed the agreement-to-sell fraudulently and also failed to prove the execution of the said deed before the trial Court as the marginal witnesses of the said deed denied his version and even the notary public denied the attestation of the said deed. They submitted that the appellant herein, with the connivance of the revenue officials got succeeded to enter the name of the executor in the Khasra Girdawari. The respondents challenged the said entry before the Commissioner (Revenue). The learned Commissioner (Revenue) vide its order dated 28.2.2012, cancelled the Same, which attained finality. Both the Courts below after detailed deliberation of the record, passed the judgments and decrees in a legal fashion. There are concurrent findings of facts recorded by both the Courts below, therefore, the interference by this Court is not warranted under law. Lastly, the learned Advocates, prayed for dismissal of appeal.
5. We have considered the arguments of the learned Advocates representing the parties and gone through the record of the case, made available along with the impugned judgment. The whole controversy involved in the matter, revolves around the agreement-to-sell, dated 19.05.2010, whereby the shop built upon the land comprising survey No. 278-min, measuring 01 merle, situated in Mozia Budhyara, Tehsil and District Muzaffarabad, alleged to be transferred by Muhammad Zaman, predecessor-in-interest of the defendants/Respondents No. 1 to 9, In favour of the plaintiff- appellant, in lieu of Rs. 15,00,000/-. On the basis of the aforesaid agreement-to-sell, the appellant, herein, filed a suit for declaration-cum-perpetual injunction and specific performance. For convenience we would like to reproduce here the prayer clause of the plaint which reads as under: The perusal of the above reproduced prayer clause, shows that the plaintiff/appellant, in his plaint prayed for declaratory decree in respect of the land in question/shop, on the basis of agreement- to-sell dated 19.05.2010. The record further shows that the plaintiff in support of his claim produced the documentary evidence i.e. Misle-e-Haqeat (Ex.PC) and Khasra Girdawari (Ex.PC/1), pertaining to the years 2003 to 2009, which shows that the suit land is shamilat deh land and Muhammad Sagheer is in possession of the same. According to the settled principle of law no declaratory decree can be granted in respect of the shamilat deh land. Reference may be made to a case reported as Walayat Khan vs. Abdul Khaliq & 15 others [2006 SCR 92], wherein it was observed by this Court as under: ".... No declaration of title can be made on the basis of agreement-to-sell nor a decree of title can be granted in respect of shamilat-deh land unless all the co-owners are given chance to contest on merit the suit of the plaintiff claiming rights exclusively for himself."
Similarly, in the case reported as Sakeena Bibi vs. Muhammad Ashiq and 3 others [2017 SCR 242], it was observed as under: "8. However, keeping in view the nature of the suit property which is admittedly Shamilat deh land and both the parties claim their title on the basis of sale-deed and compromise decree, it may be observed that in this regard this Court has already enunciated principle of law that in respect of Shamilat deh land, the decree of title cannot be granted. Reference may be made to the cases reported as Khalid Hussain and others vs. Haji Muhammad Rafique and another [2008 SCR 2007] and Khalid Hussain & others vs. Muhammad Najeeb [2008 SCR 223]. This Court has consistently enunciated principle of law that the land owners of the village, if they are in possession of any portion of Shamilat deh land, can retain such possession till legal partition of the land by the competent authority and on determination of proportionate share they can be ejected from the excess land if found in their possession.
Therefore, for doing complete justice we deem it also necessary to hold that as both the parties are land owners in the village and they claimed to be possession of the Shamilat deh land, but they, on legal partition of the Shamilat deh land of the village, shall only be entitled to the -land to the extent of the share determined according to their entitlement."
7. So far as the contention of the learned Advocate, representing the appellant, that the appellant in the suit sought -multiple reliefs and it was enjoined upon the Courts below to grant the decree of perpetual injunction, is concerned, the record shows that the plaintiff himself during the cross- examination deposed that he took the disputed shop on rent from Muhammad Sagheer in year 1998. It is also established from the record that the plaintiff/appellant remained paying the rent of the shop to Muhammad Sagheer. The witnesses produced by the plaintiff/appellant also admitted this fact in their Court's statement. In this state of affairs, when it is established from the record that the relationship of the plaintiff and the defendants was of tenancy, then, how the decree for perpetual injunction can be granted in favour of the plaintiff on the basis of the agreement-to-sell, which has not been proved as valid. It is celebrated principle of law that a tenant cannot question the ownership of landlord about rented property. In this regard, both the Courts below have rightly referred to Article 115 of the Qanun-e-Shahadat 1984, which provides that a tenant is estopped to raise any question about title of landlord.
8. The next argument of the learned Advocate, representing the appellant that the Courts below have not considered the important documents, i.e. Khasra Girdawari and cognovits, the same has no substance. Both the Courts below have considered the aforesaid record and also recorded finding that as the ownership of Muhammad Zaman on the disputed shop is not proved, so cognovits submitted by one of the wives and sons of Muhammad Zaman, does not make any difference.
9. From the perusal of the judgments of the Court below and the High Court, it cannot be said that the evidence on record was misread by the said Courts, rather both the Courts properly attended the points in controversy. There are concurrent findings of facts, recorded by the Courts below and it is now well settled law that concurrent findings of fact recorded by the Courts below cannot be disturbed unless some misreading and non-reading of the record is noticed. While dealing with the scope of concurrent findings this Court in a case reported as Mst. Sardar Begum and others vs. Muhammad Ilyas and others [2013 SCR 433] observed as under: "6 It is now a well-settled law that the findings of facts recorded by two Courts below cannot be disturbed by the High Court in second appeal. Two crucial issues, one relating to the ownership. of the land and the other relating to jurisdiction, have been decided by the trial Court on the basis of record and the first appellate Court has affirmed the same. The High Court has correctly declined to interfere with the concurrent findings recorded by two Courts below. Our this view finds support from the judgment of this Court recorded in the case reported as Adalat Khan vs. Fazal Hussain & another [1995 SCR 151], wherein it was observed that even if a different conclusion from the one reached by the Courts below is possible, 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 grass illegality is shown to have been committed while appreciating evidence of witnesses.
Similarly, in the case reported as Azmat Hussain Kayani & 2 others vs. Ansa Bibi & 4 others [2016 SCR 496], it was observed that: "... It may be observed here that in the instant case, the concurrent findings have been recorded by the Courts below and this Court is always reluctant to substitute the findings which have been concurrently recorded by the Courts below, except there appears any misreading or non-reading of the evidence, whereas, the learned counsel for the appellants failed to point out any such misreading or non-reading of the evidence."
In another case, reported as Kamal Hussain vs. Muhammad Shabir and others [2017 SCR 236], it was Observed as under: "7 The defendant-appellant could not succeed to point out any misreading or non-reading of evidence, therefore, the findings of facts concurrently recorded by the Courts below cannot be disturbed or interfered with merely on the strength of the argument which does not find support from the law or record."
In the light of what has been discussed above. This appeal having no force is hereby dismissed with no order as to costs.