SYED SHAHID BAHAR, J. The captioned appeal has been directed against the judgment and decree dated 11.03.2019 passed by the learned District Judge Kotli, whereby, the judgement and decree passed by the learned Civil Judge Khuiratta dated 21.09.2016 was upheld.
Scope of the second civil appeal under Section 100, C.P.C.
Infra eventualities provide room for indulgence in second appeal;
(A) The decision being contrary to law or usage having the force of law;
(B) The decision having failed to determine some material issue of law or usage having the force of law;
(C) A substantial error or defect in the procedure provided by the Code or by any law of the time being inforce which may possibly have produced error or defect in the decision of the case upon the merits.
After comparative analysis of the rival stance in light of the record/evidence and findings given by the Courts below concurrently, the instant 2nd appeal does not come up to the compass of Section 100, C.P.C., thus, fails.
2. The facts of the case in brevity are that predecessor in interest of appellants, herein, filed a suit for declaration against the respondents, herein, in the Court of Civil Judge Khuiratta on the ground that the land comprising khewat No.35 khata No.866/826, survey Number old 1348/585 new survey No.1521 measuring 12 kanal 11 marlas situated at Mozia Khor Tehsil and District Kotli was allotted to the plaintiffs and Proforma defendants as per law and in this regard the plaintiffs also got the proprietary rights of the land and they had also in possession of the land since its allotment. It has been stated that in respect of the supra land, the father of defendants Nos. 1 and 2 had given a registered gift deed dated 06.10.1987 to their ancestors without any possession, authority and law, so, the same is ineffective and contrary to law is liable to be cancelled and all the entries on the basis of said instrument are also liable to be cancelled. After filing of the suit, the defendants/respondents were summoned who filed written statement in the manner that the plaintiffs had no cause of action, the suit is time barred and the land in dispute is non-evacuee which could not be allotted to anybody and if there is any allotment, the same is illegal and against the law and finally prayed for dismissal of the suit. The learned trial Court in light of pleadings of the parties framed 8 issues and directed the parties to lead their evidence. After completion of the proceedings, the learned trial Court dismissed the suit for want of cause of action and being barred by time vide the impugned judgment and decree dated 21.09.2016. Feeling dissatisfied from the said judgment and decree, predecessor in interest of appellants, herein, preferred an appeal before the learned District Judge Kotli which also met the same fate, vide the impugned judgment and decree dated 11.03.2019, hence, this appeal for setting aside the supra judgments and decrees.
3. The learned counsel for appellants vehemently argued that while accepting the appeal the impugned judgments and decrees passed by the Courts below may be set aside. The learned counsel virtually reiterated the averments raised in the memo of appeal and submitted that while passing the impugned judgments and decrees the Courts below misread and non-read the evidence of the parties. The learned counsel maintained that appellants had possession over the disputed land since its allotment and defendants/respondents have not challenged the issues decided in appellant's favour. He further alleged that neither any documentary evidence has been produced by the respondents in their favour nor any statement in this regard was recorded. Finally, prayed for setting aside the judgments and decrees of the Courts below. The learned counsel in support of his version referred the following authorities:- [PLD 1996 Peshwar 1] [PLD 2009 SC (AJ&K) 13] [1998 SCR 204].
4. Conversely, the learned counsel for respondents submitted that learned counsel for appellants have miserably failed to point out that which evidence or part of evidence, documentary or oral, was misread or non-read by the Courts below and concurrent finding of facts could not be reversed merely on the assumption of appellants without pointing out specifically which evidence was misread or non-read. The learned counsel argued that the gift deed has been given only to the extent of sole share of the donor, so, the claim of the appellants that the same has been given to the excess of his share is nullity in the eye of law and having no force. The learned counsel further contended that the gift deed was registered in 1987, whereas, the suit was filed approximately after elapsing 16 years which was clearly barred by time, so, the learned Courts have rightly dismissed the suit and appeal. The learned counsel defended the impugned judgments and decrees on all counts and prayed for dismissal of the appeal with exemplary costs.
5. I have heard the learned counsel for the parties and perused the available record cautiously.
6. The basic claim of the appellants is that the gift deed dated 06.11.1987 was made excess to the share of donor, so, the same is liable to be cancelled. A perusal of the gift deed shows that from the different khewat, the land was transferred by the donor to his sons, neither any measurement of the land/gifted property has been mentioned in the gift deed nor the share of the donor from all the khewats has been shown in the said instrument, so, when the measurement of the land has not been made yet and the shares of the sharer have also not been determined and calculated then the claim of the appellants that the gift deed has been made excess to the donor's share and the gift deed may be cancelled has no force and substance as the said claim is itself rebutted by the documentary evidence i.e. a copy of Mislehaqiat Exh. "PA" pertaining to years 1975/76. Furthermore, the issue pertaining to limitation was rightly decided by the trial Court against the appellants as the gift deed was made and attested on 06.11.1987, whereas, the suit was filed in year 2003 after passing more than 16 years. It also reflects from the record that the entry of the predecessor in interest of respondents exists in the record and he being the owner transferred his sole share from the different khewats to his sons, so, in my considered view, the gift deed was made purely in accordance with law and within the shares of the donor.
7. Trial Court after dilating upon each issue passed the impugned judgment and decree which was rightly upheld by the first appellate Court while concurring the judgment and decree passed by the trial under law. Perusal of record shows that no misreading and non-reading of evidence has been committed by the Courts below while passing the impugned judgments and decrees. However, the learned counsel for appellants have miserably failed to point out any misreading and non-reading of evidence committed by the Court below while passing the impugned judgments and decrees, as such, same need not to be interfered with by this Court. Concurrent findings of fact could not be disturbed unless and until it is specifically pointed out by the appellants, litigant party that which part of evidence oral or documentary or which evidence as a whole was misread and non-read.
The authorities referred to and relied upon by the learned counsel for appellants are not applicable due to distinguishable facts and circumstances of the case. Similar proposition has been resolved by the apex Court in a case titled Akhtar Hussain and others v. Raja Mohammad Zarin Khan [1993 SCR 114] wherein it has been observed as under:- Evidence- ----A general allegation of misreading or non-reading of evidence would not render the concurrent findings of fact open to challenge....It is necessary for the party to specifically point out the witnesses whose statements were misread and support the contention by certified copies of the said statements."
Trite that concurrent findings of fact will not be disturbed in second appeal even if the Court disagrees with that findings on its own view of the evidence. Mere erroneous findings are not suffice to reverse the same when concurrence of two Courts is found, that too, in the course of appraisal of the evidence.
SQUEEZED ANALYSIS IN THE LIGHT OF RECORD.
Gift deed impugned in the suit is a registered instrument and definitely limitation runs from the date of registration of the same. Gift deed was registered/attested in 1987 while the suit against the same was brought in 2003, much after inordinate delay of 16 years. Thus, limitation in such like eventuality goes to the roots of the case and is purely a question of law rightly dealt by the Courts below accordingly as a time barred lis on the very face of the case could not be entertained in view of Article 3 of the Limitation Act, 1908. It is useful to reproduce the Section 3 supra as infra:-- "3. Dismissal of suit, etc., instituted etc., after period of limitation. Subject to the provisions contained in sections 4 to 25 (inclusive) every suit instituted, appeal preferred and application made after the period of limitation prescribed thereof by the I schedule shall be dismissed, although limitation has not been setup as a defence."
8. Under Section 3 of the Limitation Act, 1908, it is the bounden duty of every Court of law to take notice of question of limitation[1]. Suit, appeal or application filed after the period of limitation is to be dismissed[2]. Section 3 is couched in a mandatory form which empowers the Court before whom a us is brought to dismiss the same if it is found having not been brought before the Court within the time prescribed by the 1st schedule of the Limitation Act, 1908. Word although limitation has not been setup as a defence provides a clear indication of the legislative intent that it is not left to the parties to take or not take the objection that the suit, appeal or application is outside the time limit fixed by law and that Court must dismiss the suit, appeal or application, if it has not been made timely. In other words, contracting out or waiver of the statutory time limit fixed by law and that the Court must dismiss the lis having outside the time limit prescribed by law[3].
Section 3 of the Limitation Act, 1908 is a mandatory provision of law and must be construed as per its plain language, however, if on the very face of the record matter tilts in the realm of mixed question of fact and law or a case of borderline difference as to whether limitation is a pure question of law or mixed question of law and fact the lis should be decided after framing issues in light of the evidence adduced by the parties, keeping in view the Doctrine of civil law i.e. preponderance of probabilities of evidence. Section 3 supra is mandatory codal provision and cannot be overlooked and brushed aside. Underlining is mine
10. Where limitation is purely question of law then Court in suchlike matter is obliged to independently advert to the question of limitation and to determine the same. So far as the object and scope of law of limitation in view of embargo placed by Section 3 supra is concerned, it is not merely a formality but it is couched in a way to be observed as being of mandatory matter, it takes breath from the analogy that lapse of time creates rights in favour of other party and therefore, burdening the party which fails to act within time, resultantly such right becomes unenforceable[4].
10(sic) Comparative study and reappraisal of the evidence pertaining to issue Nos. 3, 4, 6 and 8, we have found no misreading or non-reading. It is evident from the record that predecessor in interest of the respondents (Goppi) converted and embraced Islam and did not migrate, thus, his landed property could not be declared as evacuee and was not available for allotment even otherwise.
The outcome of above discussion is that finding no force in the instant appeal, the same is hereby dismissed with no order as to costs, file shall be kept in archive.
1. 2025 SCMR 380
2. 2017 YLR 229
4. 2015 CLC 1290+PLD 2016 SC 705 +PLD 1985 SC 153.