' This is an appeal against the judgment and the decree passed by the learned Additional District Judge Poonch (Bagh) dated 20-8-1979 whereby he dismissed the appeal of the appellant and confirmed the decree of the learned Sub-Judge Bagh dated 31-3-1979.
2. This second appeal arises out of the following facts:
(i) Mst. Shahro Begum wife of Muhammad Akbar Khan caste Dhoondh (Abbassi) Resident of Hill Sarung Tehsil Bagh brought a suit for the possession of 1/2 of land under Survey No.1772/1513 measuring Kanals and 71 Marlas situate in Village Hill Sarung on the basis of the right of prior purchase (pre-emption) on 2-5-1974 before the learned Sub-Judge 1st Class Bagh.
' She claimed the possession of the suit land being the wife of Mir Akbar Khan who had transferred the suit land in favour of Abdul Qayyum Khan defendant No.1 (respondent) through a compromise decree (Exh.P.B.) passed on 3-5-1973. She averred that the respondent Abdul Qayyum Khan brought a suit for adverse possession against her husband Mir Akbar Khan and obtained a decree which in fact amounts to a sale in the Garb of a compromise decree. Treating the decree of 3-5- 1973 as a sale, she came as a pre-emptor and prayed for the possession of the suit land on the payment of Rs.250 which was the value of the land according to the plaintiff.
(ii) Abdul Qayyum Khan son of Ali Akbar Khan resisted the suit and in his written statement produced on 24-12-1975, took the stand that the defendant Abdul Qayyum got the suit land through an Agreement to Sell dated 12-8-1958 as the other half of the suit land was purchased by him through a registered sale-deed. He averred in his written statement that Mir Akbar Khan did not transfer the other half (the suit land) and, therefore, he (Abdul Qayyum Khan) took back Rs.250 which were given to Mir Akbar Khan as the price of the suit land. The Agreement to sell the suit land became inoperative but Abdul Qayyum Khan had been continuing in the possession of the suit land in his own right since April, 1960 A.C. The defendant Abdul Qayyum Khan thus set up his right of adverse possession in defence.
(iii) The Sub-Judge of Dhirkote dismissed the suit for possession of the suit land on 31-3-1979 and passed the decree of adverse possession passed on 3-5-1973.
(iv) The plaintiff Mst, Shahro Begum went up in appeal before the learned Additional District Judge Poonch (Bagh) on 26-4-1979 but failed to get a decree as the learned Additional District Judge Poonch (Bagh) dismissed her appeal on 20-8-1979.
(v) Dissatisfied with the judgment and decree of the learned Additional District Judge Poonch
(Bagh) dated 20-8-1979, the appellant (plaintiff) came up before the. High Court in second appeal on 18-11-1979. Mr.Justice Sardar Said Muhammad Khan, the learned Judge of the High Court (now the Judge of the Supreme Court of Azad Jammu and Kashmir), accepted her appeal and set aside the judgments and decrees of the Courts below and remanded the case to the trial Court vide his judgment dated 14-6-1980.
(vi) Abdul Qayyum Khan then went upto the Supreme Court against the judgment and decree of the High Court dated 14-6-1980 and the learned Chief Justice Raja Muhammad Khurshid Khan was pleased to set aside the judgment of the learned Single Judge of the High Court and remanded the case back to the High Court to decide it afresh vide his judgment dated 24-6-1984.
(vii) The operative part of the judgment of the Supreme Court read: "In view of the above, we set aside the judgment of the learned Single Judge of the High Court and remand the case back to the High Court to decide it afresh."
3. Let me first of all deal with the document which is called as an Agreement to sell and sometimes as a conditional mortgage deed.
' This document dated 12-8-1958 was never tendered in evidence according to law before the trial Court. It was never exhibited and proved. It is true that a mortgage is always a mortgage but this document was not acted upon by the parties as Abdul Qayyum Khan took back the amount which he had advanced to Mir Akbar Khan and the document was returned to Mir Akbar Khan. It is now useless to hold as to whether this Agreement was in fact an Agreement to sell or a Mortgage Deed, because the parties of the deed by their mutual consent cancelled it. It was was an ill-drafted document and, therefore, a controversy arose as to whether this document was an Agreement to sell or Mortgage Deed. Why should we attach any importance to a document which was not legally got exhibited and proved and which was treated as a dead letter by the parties to that document.
' However, this document is mentioned by the parties for one purpose--Sardar Muhammad Yasin Khan Advocate, says that the adverse possession of his client begins from the date that document, whatever it was, terminated, if not earlier. According to his contention, if the earlier possession of Abdul Qayyum was by consent or by permission under the said document, it became adverse after the termination of that document because Abdul Qayyum Khan then continued to hold his hostile possession in his own right and adverse to Mir Akbar Khan for more than twelve years if the starting point is claculated from the termination of that document.
4. Mr.Ashfaq Kiani, the learned counsel for the appellant has raised the following points:-
(a) That the consent decree is pre-emptible. He referred to PLD 1953 Lah. 470 in this connection;
(b) That the burden of proof in all cases of adverse possession is upon the person who asserts the claim and the necessary in gredients of adverse possession as given in 1979 SCMR 481 must be proved. He also referred to 1976 SCMR 436 and argued that the claim of adverse possession fails in this case;
(c) That the copy of a complaint from which Abdul Qayyum wants to get the benefit of adverse possession was produced before the Supreme Court for the first time and as such this document should be ruled out of consideration especially when Mst. Shahro Begum was not given any opportunity to produce any evidence in rebuttal;
(d) That being the wife of Mir Akbar Khan, she was entitled to get the possession of the suit land which is near and adjacent to her house. On the other hand, Abdul Qayyum resides at a place which is at a considerable distance from the suit land; and
(e) That there is no house or fruit trees on the suit land. It is a barren land where no cultivation is made, hence no question of adverse possession arises because no cultivation is done in it and tie cattle of the people nearby use this land for grazing purposes.
5. As agaisnt these points, Sardar Muhammad Yasin Khan, Advocate has pressed the following points:-
(a) That the property in suit is not pre-emptible because it was obtained by way of a consent decree. As there was no sale at all, hence no pre-emption. He referred to:- PLD 1961 SC 34; PLD 1963 Dacca 816 and PLD 1974 SC 322.
(b) That even if the pre-emption suit proceeds, it is liable to be dismissed on the point of partial pre-emption because the house has not been included in the suit although a house exists on the spot and this fact stands established by the evidence. He referred to:- PLD 1972 Pesh. 115 and PLD 1979 SC (A J & K) 123.
(c) That if a person enters the suit land by permission or consent but later on holds possession in his own right and does not allow the original owner to enter it, his possession becomes adverse from the point he holds it in open, hostile and in his own right. He referred to:- PLD 1951 Lah. 177; PLD 1978 SC (A J& K) 118 and PLD 1984 SC (A J & K) 63.
6. I have duly considered the points agitated at the bar and have perused the files pertaining to this case. I also visited the spot on my way to Rawalakot on 3-11-1984.
7. Let me at the very beginning point out that there are concurrent findings of the two Courts below and, therefore, the High Court is generally slow to interfere into such finding unless they are perverse or there is some misreading or non-reading of the evidence or some procedural defect is pointed or for any other reason a kin to it. I have myself gone through the evidence and have found no misreading or non-reading of the evidence. In fact none has been pointed out. Sardar Muhammad Yasin Khan has referred to one and a half dozen authorities on this point and I agree with him that the High Court does not upset the concurrent findings of fact arrived at by both the Courts below. I am fortified in my view by the following authorities:- PLD 1951 Azad J& K 45; PLD 1975 Azad J& K 13; PLD 1978 SC (A J & K) 109; PLD 1979 SC (A J & K) 87 and PLD 1984 Azad J & K 61.
8. I have seen no house and no improvements in the suit land. Some dilapidated walls of an old house are visible but there is no building. Therfore, the question of partial pre-emption does not arise.
9. The suit land is not pre-emptible because both the Courts below have held so. The compromise decree was passed on 3-5-1973. It says that due to the compromise a decree of adverse possession is passed in favour of Abdul Qayyum Khan son of Sardar Ali Akbar Khan Caste Dhoondh Resident of Sarung Tehsil Bagh against Mir Akbar Khan son of Daftar Khan Caste Dhoondh Resident of Hill Sarung Tehsil Bagh defendant about the suit land under Survey No.1772/1513 with Kotha situate in village Hill Sarung Tehsil Bagh.
10. Mst. Shahro Begum proved wisey that her husband and instituted a suit for pre-emption on 2-5- 1974 but I cannot help her in view of the fact that her husband transferred the possession of the suit land to Abdul Qayyum Khan in 1958.
11. It is true that in the beginning Abdul Qayyum Khan entered in the suit land under an Agreement to sell dated 12-8-1958 but her husband Mir Akbar Khan failed to get the possession of the suit land when the so-called Agreement to sell was terminated by the mutual agreement of Abdul Qayyum Khan and Mir Akbar Khan. The poor Mir Akbar Khan gave Rs.250 to Abdul Qayyum Khan but I do not know as to why he failed to get the possession of the suit land back. Perhaps he is a simpleton and never bothered about this land which is in fact absolutely barren land where I could find some Pine trees and some oblive trees (Zaitun or Kou). This land is barren and the cattle of the people nearby use it for grazing, purposes. I feel that the decree of adverse possession could not be granted in view of the fact that the suit land is barren and does not appear to have been cultivated in the past 20 or 25 years. The consent decree was therefore, suited best to the interests of Abdul Qayyum Khan and he was successful in bringing Mir Akbar round to his view.
12. Mst. Sharo Begum has got one or more daughters and she appears to be move sensible and sensitive than her husband who is not much interested in the suit land perhaps due to the fact that he has got no male issue. I wanted to help Mst. Shahro Begum but under law I cannot treat the consent decree as sale and hold that the suit for pre-emption lies because even after the return of the "Agreement to Sell", more then 12 years have elapsed and after the return of the so-called "Agreement to Sell" Abdul Qayyum Khan held the suit land in his own right and in adverse possession against Mir Akbar Khan. Mst. Shahro was displeased with Mir Akbar Khan and it is in the evidence that the relations of the spouses did not remain cordial for a considerable period.
13. Mst.Shahro Begum should, therefore, blame her husband Mir Akbar Khan for what he has done and the Courts cannot redress the wrong done to her by the action of her husband Mir Akbar Khan.
14. So the decree of adverse possession was rightly passed. The law is that even if there is an invalid transfer in favour of a person and he holds the possession of the property transferred to him, his possession is in his own right and adverse to the transferor. If he continues in possession of the immovable property for more than 12 years, he acquires an indefeasible title. I am fortified in my view by the case of Esso v. Abdur Razaq, PLD 1964 SC 220.
15. The other authorities which help Abdul Qayyum Khan are:- PLD 1962 Kar. 209; Faiz Muhammad and others v. Muhammad Sharif and 7 others PLD 1976 Quetta 23 and PLD 1975 SC 311.
' It was observed at page 316-E:- "It is well-established principle that a vendee who remains in possession after the sale of property which goes off or is otherwise defective in law holds adversely to the vendor. See among others: Mst.Jasoda Kaur v. Janak Missir AIR 1925 Pat.
787."
(iv) The case of Aksar Ali and 2 others v. Fazal Karim and 11 others 1982 CLC 1309.
' Under these circumstances, finding no force in this second appeal, it is hereby dismissed. The parties shall bear their own costs throughout because Mst. Shahro Begum is a poor lady.