' The appeal is addressed against the order of the learned District Judge, Mirpur, passed on 2nd January, 1983, whereby the learned District Judge concurred with the finding of the trial Court and dismissed the appeals of the present appellant.
2. Bir Wali, respondent instituted a suit for perpetual injunction against Qurban Hussain and others, in the Court of Sub-Judge, Mirpur, on 9th June, 1973 in respect of the suit land measuring 4 Kanals 12 Merles, comprising Survey Nos. 4100 and 4101, situate in village Kalyal Bainsi, Tehsil Mirpur, on the basis of title acquired through an order of the Court passed in the suit instituted by Bagga against Bir Wali, in the light of a compromise with Mst. Fazal Bibi, the widow and Mst. Shah Begum and Mst.
Raj Begum, daughters of Bagga, deceased, Subsequently on the application of Bir Wali, Mst. Nek Bibi and Muhammad Sharif, descendants of Ghulam Muhammad and, some other co-sharers were arrayed as defendants on 2nd October, 1973. The suit was resisted by the defendants who denied the title and possession of Bir Wali. Meanwhile, Muhammad Sharif instituted two suits against Bir Wali in respect of the suit property. The first suit for perpetual injunction was instituted on 18th June, 1973 whereas the second suit for a declaration and perpetual injunction was instituted on 26th March, 1974. The claim of Muhammad Sharif in the suit property was resisted by Bir Wali who denied his possession and title in the suit land. The trial Court consolidated the suits on 11th October, 1975 and framed common issues arising out of the pleadings of the parties. The suits filed by Muhammad Sharif were dismissed and the counter-suit of Bir Wali was decreed by the trial Court. On appeal, the learned District Judge concurred with the finding of the trial Court and dismissed the appeal of Muhammad Sharif.
3. It is well-acepted that in second appeal, this Court is not vested with jurisdiction to re-examine the concurrent findings of the subordinate Courts unless it is satisfied that a question of law raised in the appeal, warranted its interference. The concensus is that non-reading, misreading or misinterpretation of evidence by the subordinate Courts is a question of law, as such, on satisfaction of this Court that the concurrent findings of the subordinate Courts suffer from misreading, non-reading or mis-interpretation of the evidence, under section 100, C. P. C., this Court is vested with jurisdiction to look into such findings and record its own opinion. In the present case, it was pointed out by the learned counsel for the appellant that the subordinate Courts fell in error by misreading and misconstruing the oral evidence and failing to consider the documentary evidence of the parties. Some part of the oral evidence and the undisputed documentary evidence was brought to the notice of this Court in support of the contention of the learned counsel for the appellant.
4. The parties asserted their exclusive possession, to the exclusion of each other, over the suit land.
The case of Bir Wali was that he purchased the suit land from Bagga, the last owner, in Dogra regime and thereby occupied the land at the time of its alienation. He pleaded his possession since Dogra regime and aserted that the possession was continuous till the institution of the suit.
Contrarily, Muhammad Sharif pleaded his possession over the suit land in his own right and averred, in the alternative, that his possession was adverse against all claimants including Bir Wali.
It was alleged by Muhammad Sharif that he was in continuous possession of the land since time immemorial, as his grand father, father and, on their death, the plaintiff himself occupied the suit land without any intervention or break. Thus, the pivotal point of the proposition confines to determination of the actual physical possession of the parties.
5. Before embarking upon the question of actual physical possession over the suit land, it is equally essential to point out that the parties failed to challenge the correctness of the entries of the Record of Rights. They rather relied on the record of rights in support of their respective claims. The record of rights appended with the pleadings of the parties consists of 'Misl-e-Haqiyyat' for 1960-61, Exh.P.A. and copies of Khasra Girdawaris, Exh.P.B., Exh.P.C. and Exh .D.A . /2. According to the entries of 'Misl-e-Haqiyyat', Exh.P.A., the suit land was is joint ownership of Mst. Phallo and others and Muhammad Sharif, appellant and others. The total shares of the co-sharers in the suit land were entered as 5040. The number of shares held by Mst. Phallo, the widow of Bhag, and Shah Begum and Raj Begum, daughters, was 315 and 1680, respectively. Likewise, Muhammad Sharif, son, held 2/3rd share and Mst. Nek Bibi, daughter of Ghulam Muhammad, 1/3rd share, alongwith Shah Wali, Bir Wali, Rehm All and Raj Muhammad, sons of Kaka, whose total number of shares was 1140. In column No.4, the entry was as:[URDU TEXT] ' The possession of Muhammad Sharif was also entered in the register Khasra Girdawari. Exh.P.B., a copy of the Khasra Girdawari relating to the year 1972-1973, contained the entry of possession of Muhammad Sharif in column No.2, upto Kharif 1972, whereas the entry was changed in Rabi 1973 in favour of Bir Wali, respondent, on the basis of a mutation, No.136. The entry was recorded on 11th April, 1973, whereby survey number 400 was entered as: Survey No. 4101 was entered as " . These entries were repeated in Exh.P.C. whereas the possession of Muhammad Sharif, appellant, was entered in Kharif 1964 upto Rabi 1972. The change of entries occurred in Kharif 1972 when Bir Wali was entered in possession "" In Kharif 1973, 1 Marla out of survey number 4100 was occupied under a shop whereas survey number 4101 continued as". The aforesaid record of rights, as mentioned earlier, was relied upon by the parties to support their respective claims and the entries therein were not challenged in the pleadings or the evidence of the parties.
Thus, according to the documentary evidence, Muhammad Sharif, appellant continued in possession of the suit land upto Kharif 1972, vide Exh.P.B., Exh.P.C. and Exh .D.A . /2, when Bir Wali entered into possession on account of sanction of mutation No.136.
6. The learned Sub-Judge as well as the learned District Judge failed to apply their mind to the documentary evidence to settle the controversy at rest. The subordinate Courts primarily considered th oral evidence and recorded their decisions as such. In the well-considered view of this Court, in case the Sub-Judge and the District JudgeB would have considered the documentary evidence in the case, there is no reason to disbelieve that their finding would have been otherwise.
The objection of the learned counsel for the appellant that the subordinate Courts failed to consider the documentary evidence, is, therefore, sustained.
8. The other aspect of the case is, as I have noticed, that mutation No.136 was attested on the basis of an order of the Sub-Judge, passed on 2nd November, 1961, in a suit titled "Bagga v. Bir Wali", whereby the suit of Bagga for possession of the suit land was dismissed in the light of admission of Mst. Phallo and others, in favour of Bir Wali. A copy of the mutation was appended with the plaint of Bir Wali (file No.180). The mutation was attested on 18th March, 1972, in the light of an order of the Sub-Judge, dated 2nd November, 1961, passed in the shape of dismissal of the suit of Bagga. It was on account of the attestation of the mutation that the entry of possession of Bir Wali was recorded for the first time in the Register Khasra Girdawari in Kharif, 1972. In case there had been no institution of the suit by Bagga or admission by the descendants of Bagga in favour of Bir Wali, resulting in the dismissal of the suit of Bagga, there would have been no order of the Court and, as such, no attestion of mutation in favour of Bir Wali. Likewise, in absence of attestation of mutation, the entry of possession of Bir Wali in the Register Khasra Girdawari would not have existed.
9. In order to appreciate the position of the mutation in question, it is considered relevant to examine the pleadings of Bagga, the admission and the order of the Court. Bagga, in his pleadings, Exh.D.E., averred his title in the suit land and, in para.2 of the plaint, stated that six months prior to the institution of the suit, Bir Wali forcibly occupied the suit land and thereafter refused to deliver the possession of the land, on which the plaintiff felt compelled to institute a suit for possession.
The suit was instituted on 17th October, 1959. During the pendency of the suit, Bagga died. His legal heirs were brought on record. Mst. Fazal Bibi (alias Phallo), widow and Mst. Shah Begum and Mst.
Raj Begum, daughers of Bagga accepted the claim of Bir Wali on the suit land and moved for dismissal of their suit. Their application, Exh.D.F., is dated 25th October, 1961. The learned Sub-Judge at the relevant time, recorded the statement of the counsel and dismissed the suit in the light of the admission of the plaintiffs, on 2nd November, 1961. The order of dismissal of the suit of Bagga or his legal heirs, was produced before the Revenue authorities and the same was treated as a decree in favour of Bir Wali and a mutation was attested as such. It was accepted by Agha Ashiq Hussain, the learned counsel for the respondents that the dismissal of the suit of Bagga cannot be termed as a decree in favour of Bir Wali. As the order of dismissal of the suit was not a decree in favour of Bir Wali, the mutation in question could not be sanctioned by misconstruing the order of dismissal of the suit as a decree.
10. The matter did not end there, as the order of attestation of the mutation was challenged before the Revenue authorities and ultimately the Revenue Commissioner and the Financial Commissioner, on accepting the contention of Muhammad Sherif, cancelled the mutation order vide orders passed on 28th February, 1978 and 20th September, 1980, respectively. The orders of the Revenue Commissioner and the Financial Commissioner were disputed by Bir Wali by invoking special jurisdiction of this Court under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, but the objection was repelled, resulting in dismissal of the writ petition by a learned Judge of this Court on 24th May, 1982. In this view of the matter, the entry of possession of Bir Wali in the Khasra Girdawari, which rested on the attestation of mutatior No.136, by fiction of law, obliterated in the light of the final order of the Financial Commissioner. But as the final order was passed on 20th September, 1980, once the entry of possession was recorded in the Khasra Girdawari in 1972, it continued as such. Be as it may, in presence of the afore-mentioned facts the entry of possession in the Khasra Girdawari attaches no importance to uphold the claim of the respondent unless, in addition to attestation of the mutation, delivery of possession of the suit land to the respondent, was found proved in due course of law or by an independent overt act.
11. The rule of law is that at the time of delivery of possession of immovable property (land), on the basis of alienation or other transaction devised by law, the act of transfer of possession is recorded in the daily diary of the Patwari. In addition to that, when the possession is not delivered in presence of the Patwari, such change of possession is recorded at the time of next Girdawari, the daily diary of the Patwari as well as the register of Khasra Girdawari. In the instant case, the respondent failed to bring on record any relevant evidence in support of delivery of possession by Bagga to him in Dogra regime at the time of the alleged transaction or immediately thereafter. In absence of convincing evidence, the claim of the respondents cannot be accepted. Moreover, it was equally essential for the respondent to prove that at the time of the alleged transaction of alienation, the suit land was in possession of the vendor. There is nothing on record to suggest that Baga the vendor of the suit land, at any stage exclusively occupied it in his independent right or as a co-sharer. Unless the vendor is shown in exclusive possession of the land in dispute, at the time of aliention, the delivery of possession of the land to the vendee cannot be presumed.
12. The subordinate Courts, in support of their opinion, referred to the testimony of Alam Din, P.W. and concluded that in presence of admission of title of Bagga in the suit land, Muhammad Sharif, appellant was not entitled to a decree for perpetual injunction. Alam Din in his statement recorded on 20th December, 1975, disclosed in examination in-chief that Bagga was owner of the suit land and Kaka, the grand father of Muhammad Sharif, plaintiff, remained in possession, on whose death, Ghulam Muhammad, the father of Muhammad Sharif, entered into possession and thereafter Muhammad Sharif, continued in possession of the suit land. According to him, Kaka died 40/45 years earlier and since then the land remained in possession of Ghulam Muhammad and thereafter Muhammad Sharif, plaintiff. In answer to a question in cross-examination, the witness disclosed that Bagga alienated the suit land in favour of Bir Wali in 1944. Bir Wali also constructed a house in the suit land but at present neither of the parties was in possession of the suit land. The aforesaid evidence of this witness is divided into two parties. So far as the title in the suit land is concerned, it is undenied that he accepted the title of Bagga and thereafter Bir Wali by virtue of alienation in his favour. But on the other hand, this witness expressly testified in favour of possession of Muhammad Sharif since the time of his grand-father. The subordinate Courts, thus, were justified to hold that the testimony of Alam Din supported the title of Bagga in the suit land, but they fell in error by misconstruing testimony of the witness in respect of the physical possession of the suit land. The witness at no place denied the possession of Muhammad Sharif. The acceptance of construction of a room in the suit land by Bir Wali, is not material in presence of an application of Muhammad Sharif submitted in the trial Court on 19th June, 1963, wherein Bir Wali was ascribed forcible construction of a room at night in a portion of the suit land. The construction of a room in the suit land after the institution of the suit was even proved by the pleadings of Bir Wali as well as the testimony of his witnesses. Reference is made to the evidence of Muhammad Saleem, D.W., who in the first before last sentence in examination-in-chief, deposed that 3/4 years earlier, the defendant constructed a room, measuring 4 yards, in the suit land. Muhammad Walayat, D.W., in answer to a question in cross-examination, stated, "Now a days, I have seen a Kacha room in the suit land". Bir Wali, in the concluding part of his examination-in-chief, stated: [URDU TEXT]
13. the evidence of the respondents and the pleadings clearly lead to the conclusion that the house in question was constructed after the institution of the suit of Bir Wali. Thus, the acceptance of Alam Din of existence of a room constructed by Bir Wali in a portion of the suit land, was not enough to hold the possession of Bir Wali over the entire suit land. The subordinate Courts obviously misread and misconstrued the evidence of Alam Din. the evidence of this witness even otherwise, loses importance as the witness is not shown conversant with the material facts relating to the claims of the parties. It was well-accepted that Bagga instituted a suit against Bir Wali in respect of the suit land in 1959 and he died during the pendency of the suit, say, some time in 1961 as the suit was dismissed in that year on the admission of his descendants. According to Alam Din, Bagga died 30/32 years earlier. Secondly, he referred to sale-deed executed by Bagga in favour of Bir Wali in respect of the suit land, whereas Bir Wali himself in his examination-in-chief denied the inclusion of the suit land in the said sale-deed. Bir Wali testified that he purchased land measuring 20/21 Kanals from Bagga in 1943 through a sale-deed, but the suit land was not included and entered as such in the deed. Thus, the admission of alienation of the suit land through a sale-deed, appearing in the testimony of Alam Din was not a conclusive proof to accept the title of Bir Wali in the suit land on the basis of a sale-deed. The other witnesses categorically supported the claim of Muhammad Sharif by testifying in favour of his exclusive possession over the suit land. As against this, Muhammad Saleem, Muhammad Walayat and Bir Wali testified in favour of possession of Bir Wali.
14. The oral evidence of the parties was incredible on two counts;
(i) it clashed with the undisputed documentary evidence resting on the record of rights. For, it is well-accepted that the documentary evidence, particularly undisputed one, excludes oral evidence; and
(ii) there being an oath against oath, the oral evidence of either party, unless was overwhelmingly convincing, could not be relied upon to the exclusion of the oral evidence of the either party.
15. It was noticed in the opening part of the order that Bagga, in whose shoes Bir Wali claims to enter, was a co-sharer with Muhammad Sharif and others in the suit land. The share of Bagga was explicitly described in 'Misl-e-Haqiyyat' 1960-61. In presence of admission of the legal heirs, including the widow and two daughters of Bagga, Bir Wall was obviously entitled to retain title in the suit land to the extent of interest and title of Mst. Phallo, Mst. Shah Begum and Mst. Raj Begum, descendants of Bagga. The title of Bir Wali, therefore, to the extent of the title of Mst. Phallo, Mst.
Shah Begum and Mst. Raj Begum who admitted his claim in a previous suit, is permissible.
16. It is well-accepted that the possession of a co-sharer is possession of all the co-sharers in immovable property. The claim of adverse possession by a co-sharer to the exclusion of other co- sharers cannot be accepted unless the contender fully established that his possession was open, continuous and hostile to the knowledge and exclusion of other co-sharers. Muhammad Sharif, co- sharer, who claimed his adverse possession to the exclusion of other co-sharers, failed to prove his possession as adverse to the exclusion of other co-owners. Therefore, in opinion of this Court, the possession of Muhammad Sharif, as accepted in the earlier part of the order, was the possession of a co-sharer to the exclusion of those who appeared as witness or otherwise admitted the claim of Muhammad Sharif.
17. It is also noticed that Bir Wali constructed a room over a portio of the suit land measuring one Marla. The possession of the site of th room was even admitted by Muhammad Sharif and his witnesses in th plaint as well as testimony. Bir Wali being a co-sharer, despite his forcible occupation of a Marla of the suit land, in absence of a praye for dispossession, is found entitled to retain the possession of this G part of the land in dispute. As the contending parties are found co- sharers in the suit land, Bir Wali who has acquired an interest and title in the suit land from Mst.
Phallo, Mst. Shah Begum and Mst. Raj Begum, is free to seek possession of his share by seeking partition of the land, under law. Muhammad Sharif shall, therefore, retain possession of the suit land except one Marla under the room unless evicted from the same in due course of law.
18. Before parting with the order it is deemed relevant to mention that an admission of a co-sharer binds only him and not the other co-sharers. Bagga, who instituted the earlier suit for possession against Bir Wali, stated that Bir Wali forcibly occupied the suit land six months prior to the institution of the suit. Subsequently, the descendants of Bagga admitted the alienation of the suit land in favour of Bir Wali and supported his possession. In that suit, Muhammad Sharif and other co- sharers were not impleaded as party. Apart from the fact that H Muhammad Sharif, appellant, was not a party to that suit, the admission relating to possession of Bir Wali, in the pleading of Bagga and subsequently the admission of the descendants of the Bagga, was not binding on Muhammad Sharif. The contention of Raja Muhammad Siddique Khan, the learned counsel for the appellant, that the suit of Bagga against Bir Wali was collusive, finds support from the subsequent admission made by the descendants of Bagga in favour of Bir Wali. Be as it may, the fact remains that, legally, the said admission on the part of the co-sharers is not binding on Muhammad Sharif.
19. The finding of the subordinate Courts is reversed. The suit' filed by Muhammad Sharif is accordingly decreed and the other suit filed by Bir Wali is dismissed. In view of the proposition raised, the parties are left to bear their own costs.