' This appeal, by leave. Has been directed against the judgment. And decree of a learned Single Judge of the High Court, dated the 18th of November, 1981. By this judgment, the learned Judge declined to set aside the judgment and decree of the learned District Judge, Mirpur, dated the 9th of July, 1981 who accepting the appeal of the respondents, herein, namely, Abdul Ghani and others, proceeded to set aside the judgment of the trial Judge dated 26th of November, 1979, by which the trial Court declined to pass a decree for possession of the houses consisting of 12 rooms under Survey No, 772 which were claimed by Abdul Ghani and others respondents (the other respondents were pro forma respondents in the original suit) on the basis of title.
2. The facts as detailed below have given rise to the controversy: Abdul Ghani, respondent, on the basis of title, sued the appellants for possession of the houses consisting of 12 rooms in Survey No, 772 in the Court of Sub-Judge, Dadyal (Mirpur District). Respondents Nos. 2 to 4, namely, Muhammad Siddique, Muhammad Latif and Muhammad Sabir (alleged to be co-sharers) were impleaded as pro forma defendants. The appellants-defendants resisted the claim of the respondents on the ground that the suit land, on which the houses are constructed, was jointly owned by the parties and these ancestral houses are in their possession since more than fifty years. In alternate adverse possession over the property was claimed.
3. The trial Judge dismissed the suit of the respondents for want of evidence vide judgment and decree dated 26-11-1979. The learned District Judge, on first appeal moved by the respondent, vide judgment and decree dated 9-7-1981, reversed the finding of the trial Court in consequence of which the decree in favour of the respondents was passed in accordance with their prayer. The second appeal before the High Court moved by the appellants failed vide report dated 18-11-1981.
This appeal, by leave, wants me to call up and quash the said judgment of the learned Single Judge of the High Court by substituting it with the judgment of the learned trial Court.
4. I have heard the learned counsel for the parties at considerable length. The learned counsel for the appellants, Raja Muhammad Siddique, has offered the following criticism to assail the judgment of the High Court :-
(i) that as the respondent, Abdul Ghani, has alleged in his plaint dispossession of the suit property, to get possession, it was incumbent for him, under law, to establish that he was in occupation of the houses within 12 years prior to the institution of the suit but as he failed to prove so, the suit was not tenable. In this respect, the learned counsel seeks adverse inference to be drawn against the respondent for his failure to enter the date and year of dispossession in his plaint. It was the respondent who was to prove that the suit has been filed within 12 years and, therefore, the omission to specify the year in which he was dispossessed, the learned counsel argued, is fatal to his suit and is sufficient to hold that the suit was time-barred ;
(ii) that it was wrong on the part of the District Judge as well as the High Court to attach presumption of truth to the entries made in the copy of Vamabandi' pertaining to the years 1998- 99 Bk. (Exh. P. A.). The presumption attached to this document, according to learned counsel, stands nullified by the say of the Patwari, Ali Akbar (a witness examined by the respondent) who says that he did not bring original record of rights pertaining to the years 1998-99 Bk. To testify that the copy, Exh. P.A., is in accordance with the entry made in the original record ;
(iii) that the copy of Vamabandi' of the years 1998-99 Bk. Only shows the respondent to be the owner of one-half of the property under Survey No, 772 and the remaining half is entered under the proprietorship of Ilman and Karam Ellahi sons of Fazal Dad. The learned counsel's case on this aspect is that as the appellants are not shown to be proprietors of the whole of the land under Survey No, 772, whereupon the houses are alleged to be constructed, they are not entitled to have the possession of the houses;
(iv) that Abdul Ghani, in his statement recorded on 14-7-1979, tells his age as 35/36 years and in view of his age, he was not even born in the year 1998-99 Bk. And, therefore, his entry as an owner in the `Jamabandi', being an absurdity, nullifies the presumption attached to the entries in the copy of record of rights of the years 1998-99' Bk. ;
(v) that the solitary statement of Abdul Ghani, in the circumstances cannot be deemed sufficient to prove that he, alongwith pro forma-respondents, was the sole proprietor of the suit land; and
(vi) that as the market value of the houses and the land is above the jurisdictional value of the trial Court, the decree of the trial Court, having been passed without jurisdiction, is ab initio void and needs to be recalled. On this point the learned counsel maintained that as the market value of the houses and the land is beyond Rs, 60,000, the suit was beyond the pecuniary jurisdiction of the Sub-Judge."
5. To counter Raja Muhammad Siddique, Agha Ashiq Hussain, the learned counsel for the respondents, submitted that as the points of objection regarding -the suit to be time-barred and that of the lack of jurisdiction of the trial Court had not been raised before any of the subordinate Courts, they cannot now be taken up before this Court. Regarding other points of objection, the learned counsel argued that they only aim at the appreciation of evidence, which is not permissible in this Court. The learned District Judge, the learned counsel maintained, discussed the evidence of the parties in detail and arrived at the conclusion that Abdul Ghani, respondent, had successfully proved his claim. The finding of the learned District Judge was maintained by the High Court. The Court of District Judge is alone the Court of facts and, therefore, the concurrent findings of facts cannot be disturbed in this Court. He has referred me to Sarwa Begum v. Ali Muhammad and others (1) and Sher Alam and others v. Hawaldar Muhammad Nawaz and others (2). In the first case it has been observed:- "The inference drawn from the evidence amounts to a finding of fact. Such a finding is open to attack as erroneous in law only if it is not supported by any evidence or if it is unreasonable or perverse. Where there is evidence to consider the decision, as the case is before me, it is final even though the Court might not, on the material, have come to the same conclusion if it had the power to substitute its own judgment. A finding of fact cannot be, in second appeal before the High Court, discharged unless that finding is vitiated by misreading of evidence or non-consideration of material evidence. The fallacy in appraising the evidence unless it amounts to material mistaken assumption (though such is not even the case here) is merely an error in coming to a finding as to that fact and such an error cannot be said to be an error of law justifying interference in second appeal."
' In the second case it is said :- "It would thus appear that unless some procedural defect, such as non-reading of evidence, misreading of evidence or travesty of the finding is not established, a finding of fact cannot be allowed to be discharged by the High Court. In the instant case no such defect could be noticed."
6. I have given my due consideration to the arguments advanced at the bar and have also looked into the record. So far as the point of limitation is concerned, in the first instance, this was never raised before A any of the Courts below and this, being a mixed question of law and fact, cannot be allowed to be raised for the first time before this Court. Even otherwise I am of the view that the suit of the respondent was very much within time. No doubt in the plaint the respondent (plaintiff) does not specify the year in which he was dispossessed but I think that he cannot be penalized for the omission; especially when he clarifies his position in his statement (as his own witness) that the houses were constructed fifteen years back and he was dispossessed 4 or 5 years prior to the date he got his statement recorded. His statement was recorded on 14-7-1979 and his dispossession thus, at the most, be taken back to the years 1973-74. Here it may be noted that possession of the appellants, for the first time, appears in the year 1978, as is evidenced from the copy of `Khasra Girdawari' (Exh. D.A.). This entry also supports the respondent's stand about dispossession. Thus, my considered view is that the suit of the respondent, having been filed within twelve years of dispossession, was well in time.
7. So far the lack of jurisdiction of the trial Court is concerned, this Court, in Muhammad Sukman and another v. Javed Iqbal. And others (3) has dealt with an identical point and %after discussing a host of case-law found that failure of the appellant to challenge the jurisdiction before the two appellate Courts and to object to the jurisdiction of the trial Court would create an estoppel for such a person especially when a person does
(1) P D 1981 SC (A J & K) 1 (2) PLD 1981 SC (A J & K) 124
(3) PLD 1985 SC (A J & K) I not feel aggrieved by the judgment of the trial Court but rather all along and even before the Supreme Court .Prays for its restoration. In that case it was found that such a person cannot be allowed.To wriggle out of his consistent stand taken and say that the decree of the trial Court was a nullity because such a demand would be complete volte face not permissible under law. - In that case too, as the case is before me, the appellant on the one hand .Wanted the restoration of the judgment and decree of the trial Court and on the other hand challanged the competency of the trial Court for lack of jurisdiction to adjudicate upon the controversial issue. This was not allowed.
Therefore, I reiterate the view taken in the case referred to above and hold that the appellants' stand precludes to challenge the jurisdiction of the trial Court to hear and determine the controversial points in the present case. It would be too late in the day. To allow such a belated objection to be taken.
8.Now I propose to determine points of objection listed under 1 Nos. (ii), (iii), (iv) and (v). All these objections, in fact, amount to C appreciation of evidence which hardly forms the basis for interference. Besides, my deep consideration of the arguments touching the points makes me to believe that they are devoid of force and ha.Ve no merits. The arguments in the first instance, have been advanced mainly on the basis of the statement of the Patwari who stated that he did not bring the original record of rights pertaining to the years 1998-99 Blc., and'had only brought the original record of rights pertaining to the years 1974-75. This omission is being capitalised in favour of the appellants with the arguments that it may be said that the copy of Vamabandr pertaining to the years 1998-99 Bk. Stands unproved.
9.I regret .I cannot accept this contention. In view of the stand taken by the appellants that they hold the land jointly, it would be said that they contest the title of Abdul Ghani on the ground that they are also co sharers in the suit land. As they have failed to prove so it can reasonably be said that the statement of Abdul Ghani is sufficient to prove the case that he, alongwith other respondents, is owner of the suit land. However, even if the objection listed by Raja Muhammad Siddique that there are some other unknown co-sharers of the suit land is accepted, it would not, in any way, be helpful to the appellants. The appellants, u that case, shall be considered to be trespassers and any one of the co-sharers (as the plaintiff is), assuming that there were some other co-sharers as contented by Raja. Muhammad Siddique, is competent to eject the appellants from the suit laid and the other co-sharers, if any, may settle their account if any with Abdul Ghani and others. The reason of the rule is that since trespass is a wrong to another's possession, any person who is in possession, actual or constructive, can sue to eject a trespasser; and every co- sharer has interest in, and possession over, every particle of the joint property insomuch so that when the property is in the actual possession of one co-sharer his possession is deemed to be the possession of the other co-sharers as well. Since a co-sharer's interest and possession extends to the entire joint property, he is entitled to eject a trespasser from the whole of it. I am duly supported in Habib and others v. Mst. Hakam Bihi and others (1) Mr. Justice Akhlaque Hussain, J., who delivered this judgment on behalf of the Court, observed': "So far as the question of ejectment of the defendants from the shop (1) P L I) 1955 Lab. 31 is concerned, it is now settled law that one or several co-owners or tenants-in-common can sue to eject a trespasser without impleading all the co-owners or tenants-in-common as parties to the suit."
' Again in Hussain Ali Mondal v. Khoka Mulla (Minor) and others (1) it was observed :- " I really do not see how a trespasser can. Resist a suit such as this one on the ground of defect of parties. A co-sharer is undoubtedly entitled to maintain a suit for ejectment against trespasser without impleading all the co-sharers."
10. For the above stated reasons, the entry of some other co-sharers, per se, to me, therefore, cannot be considered to be fatal to the suit of Abdul Ghani and other respondents.
11. Apart from the above the possibility cannot be excluded that Abdul Ghani and others may have somehow or other got this land somewhere during the time intervening the long period since the entry of other co-sharers was made. In these circumstances, implicit faith placed in the statement of respondent, Abdul Ghani, by the District Judge and the High Court is to be respected and if I do otherwise, it would amount to appreciation of evidence which is no function of this Court.
12. On the question of age, I feel that the evidence of illiterate persons on the question of age is often vague and unreliable and it is unsafe to base a finding on it. I am in agreement with the Calcutta High Court in Lukhan Chandra Mondal v. Takim Dhali and others (2) that the Courts should not rely upon the statements of the ages of witnesses at the head of depositions which do not furnish any evidence on the subject. This view was based on an earlier case Maqboolen v. Aikad Hussain (3) Similarly, the statement of Patwari hardly advances the case of the appellants. He does not say that the entries in Eva: P.A. Are incorrect. All that he says is that he did not bring the original record of rights pertaining to the years 1998-99 Bk. This only shows his inefficiency and does not, in any way, lessen the evidentiary value of the copy of famahandi' of 1998-99 Bk. Which is otherwise certified to be true copy by the Patwari.
' Thus, all the contentions of the learned counsel for the appellants' to me, are devoid of, force and stand repelled resulting in the dismissal of the appeal. No order as to the costs of this Court.
2.1. B. A. .
(1) PLD 1964 Dacca 739 (2) 80 I C 357
(3) 31 I A 38