The second appeal is addressed against the order of the learned District Judge, Kotii, passed on March 30, 1985, whereby decision of Sub-Judge, Kotli, resulting in dismissal of suit of Budhoo, plaintiff --appellant, was upheld.
2. The suit land comprising Surveys Nos. 1159 and 1160, situate in village Jamalpur Aghar, Tehsil Kotli, is Shamilat Deh (Banjar Qadim). Imam Din and others, claiming as members of the proprietary class, alienated the suit land through a registered sale-deed, dated 15 December, 1977, in favour of Liaqat Hussain, Khurshid and Muhammad Qadir. Budhoo who is also a member of proprietary class, challenged the propriety of the alienation by alleging his own title and exclusive possession of the suit land. He sought a declaration by seeking cancellation of the sale-deed, to safeguard his own possession resting on his interest in the land. Muhammad Khan son of Ali Bakhsh, another member of the proprietary class, equally challenged the alienation by seeking cancellation of the sale-deed, for want of passing of consideration, possession of vendors and joint ownership in the land. Both the suits were consolidated and disposed of together. The learned Sub-Judge dismissed both the suits and decision was upheld by the District Judge who dismissed the first appeal.
Muhammad Khan felt satisfied with that situation but Budhoo, the present appellant, feeling aggrieved of the decision of the subordinate Courts, preferred the present appeal.
3. The first objection against the second appeal rests on concurrent finding of facts of subordinate Courts. The objection, on going through the evidence on record, is not considered sustainable. It is true that section 100, C.P.C. Imposes restriction on second appeal, unless, of course, one of the conditions listed therein, was found available. In present case, the evidence of the parties consists of documentary as well as oral testimony. The documentary evidence rests on record of rightsth spreading on period of Dogra Regime and post-partition. It will be seen next that the subordinate Courts fell in error by their failure to apply their mind to the record of rights lending complete support to the claim of Budhoo, appellant, in respect of his continuous possession of Survey No. 1159. It is an accepted rule that on satisfaction that a concurrent finding of fact resting on no evidence or showing omission of appreciation of documentary evidence, misinterpretation of documents or its misreading, constitutes a substanial error of law. The presence of such position permits the High Court to review the entire evidence to arrive at a correct conclusion. In Feroze Din's case PLD 1963 Lah. 283, Mr. Justice Sardar Muhammad Iqbal Khan, in second appeal, by repelling an objection raised by respondent felt persuaded to appraise the documentary evidence on satisfaction that documents claimed to have been referred to by the counsel before the lower Court but not considered in judgment of that Court, were considered by the learned Judge in second appeal. In Vikio's case PLD 1964 Kar. 549, the Division Bench consisting of Mr. Justice Wahiduddin Ahmad and H.T. Raymond, in disposing of an objection in this regard, observed:- "But this rule will not be applied to those cases in which the High Court, on examination of the evidence which the lower Courts used for arriving at the finding of fact, comes to the conclusion that the evidence was entirely misread in lower Courts. In such cases the finding of fact cannot claim immunity from being disturbed by the High Court and it is competent and has jurisdiction to give a finding on the question of fact that arise in a matter before it."
In Mst. Sarwari Begum's case PLD 1965 Lah. 32, Mr. Justice Sajjad Ahmed, equally arrived at the conclusion that where lower Courts failed to apply their mind to material piece of evidence, oral or documentary, and its finding was based on an oversight or mis-statement of that evidence, the High Court was competent to review the evidence itself, to give effect to correct conclusions The relevant observation is as under:- "There can be no dispute with the proposition that a finding of fact reached by the lower appellate Court on an appraisal of the evidence by it, is not to be disturbed even though the finding be fallacious unless the fallacy involves an error of law or of procedure. But in a case where the lower appellate Court has not applied its mind at all to a material piece of evidence, oral or documentary, and where the finding of fact is based on an oversight or mis-statement of that evidence, the High Court in second appeal would be hesitant to accept the finding as conclusive, and it will then be open to the High Court to review the evidence itself to give effect to correct conclusions deducible from that evidence and in consonance with the correct weight of that evidence."
4. In present case, as noticed earlier, Budhoo, appellant, sought cancellation of sale-deed by pressing in service his continuous possession resting on his own title in the suit land. His claim was rejected by the subordinate Courts particularly in the light of the testimony of Maulvi Faizullah, P.W.
The learned District Judge rather reproduced the reasoning of the trial Court in his own words and failed to apply his mind to the record of rights, relied upon by the parties. This is so as he failed to appreciate the documentary evidence to record his conclusion.
5. The documentary evidence relied upon by the parties, consists of Jamabandi for the years 1999- 2003 Bk, Exh. P.C., Khasra Girdawari and 'Misal-e-Haqqiat'. According to the entries of Jamabandi, 1999-2003 Bk. Allah Ditta, father of Budhoo, was shown in possession of the land in dispute. In that record, Survey No. 342-Min measuring 23 Kanals 19 Marlas, was shown divided into Surveys Nos.
1159 and 1160. In subsequent record of rights, Survey No. 1159, measuring 3 Kanals 5 Marlas was shown in possession of Budhoo, whereas Survey No. 1160 (16 Kanals 18 Marlas) was entered in possession of Imam Din and others, the present vendors. Budhoo was shown in possession of Survey No. 1159 in the light of record relied upon by the contesting defendant---respondents, upto Kharif, 1972. According to the note made by the local Patwari, the Settlement Officer by his order, released the land from the possession of Budhoo, but again, in 1980, according to Khasra Girdawari relied upon by the defendants, Budhoo was shown in possession of Survey No. 1159. Thereafter, the possession of Budhoo is shown up-to-date. The defendants relied upon the aforesaid record to repudiate the claim of Budhoo, whereas Budhoo equally relied upon such record by insisting upon his continuous possession of Survey No.1159. The documentary evidence, including record of rights, supports the possession of Budhoo over Survey No.1159. The dispossession of Budhoo appeared in Kharif 1972, by virtue of another order of the Settlement Officer but in the light of previous order, Imam Din and other co-sharer-vendors were recorded in possession. The order of the Settlement Officer was neither mentioned in the pleadings nor cared to be produced in evidence and no reference to it was made even in evidence by any witness. Ch. Abdul Karim, the learned counsel for the respondents, was unable to satisfy to the propriety of such an order. The self-conflict in the order of Settlement Officer is evident from a contradictory note appearing in two different copies placed on the file of the counter-suits. In one Khasra Girdawari, the note relating to order of the Settlement Officer ends at the point of release of the land from the possession of Budhoo, whereas in the other copy it does not end there and further states that Imam Din and other co-sharers were put in possession of Survey No. 1159. The material contradiction of the note resting on the order of the Settlement Officer was unexplained. In other words, the contradiction suggest that the respondents in exercise of their influence, manipulated contradictory note in Khasra Girdawari to suit their interest. The unscrupulous Revenue Officer responsible for making note, was equally shown to have ignored the contradiction by making such a note freely at his own convenience. Be as it may, one cannot pass over a contradictory note by closed eyes. The entry of possession of Imam Din and others and subsequently that of Liaqat Hussain and others, in respect of Survey No.1159, is nothing but forged one. This entry does not help the defendant-respondents to claim possession over Survey No.1159.
6. It is a settled rule that once possession of a party is accepted by his opponent, such possession shall carry a presumption unless it is satisfied that that party was evicted from the land in due course of law. Budhoo whose father was shown in possession of total suit land in Dogra Regime and on whose death Budhoo entered into possession, particularly of Survey No.1159, was not shown to have been dispossessed on behest of Imam Din and others, vendors nor it was claimed so by the vendors in their pleadings and evidence. In absence of such a claim supported by tangible evidence, possession of Budhoo in Survey No.1159 cannot be denied.
7. It is mentioned in the operative part of this order that the subordinate Courts repelled the claim of the appellant in the light of statement of Maulvi Faizullah, P.W. This witness, in his examination- in--chief, explicitly supported the title and possession of Budhoo. In answer to a question it cross- examination, the witness denied his knowledge of current possession of the suit land by showing that he had not visited the land in dispute during the last four years. This solitary sentence uttered in answer to a question in cross-examination was stretched to the extent of total denial of possession of Budhoo in Survey No.1159. The consensus is that the evidence of a witness is appreciated as a whole and it is not permissible to pick up a solitary sentence favouring either party and to denounce rest of the material evidence. This is what has happened in the present case as both the subordinate Courts, by disregard of major part of testimony of Maulvi Faizullah, P.W., picked up single sentence out of his testimony for its lack of knowledge of current possession, to make it the basis of their decision. Moreover, for unknown reasons, the subordinate Courts failed to consider the rest of oral evidence of witnesses. This suggests that the subordinate Courts were on a look to find out somewhere some loophole in the evidence of the plaintiff, to turn down his claim. This is not the true approach to appraisement of evidence.
8. The land in question is 'Banjar Qadim', used as pasture and occasionally, its grass is sold by the parties. This aspect is undisputed. Plaintiff strived to establish his possession by leading evidence to show that on occasions he sold the grass growing in the land in dispute. In rebuttal, the contesting defendants also attempted to establish that the grass was sold by vendors and thereafter by the vendees. The oral evidence of the parties was evenly placed, as such, was not sufficient to help either party, But the oral evidence when read in conjunction with documentary evidence, clearly lends support to the claim of the plaintiff. Another factor helping the plaintiff is that all the vendees were admittedly minors, as such incapable of taking or enjoying actual physical possession of the land. The possession of land on their behalf was to be taken by their father. Ordinarily, Girdawari is made in the name of persons having actual physical possession, in his own capacity or on behalf of third party. Here in the case, the Girdawari, after the execution of sale-deed, entered the names of minor vendees in possession not through their father or guardian.
This suggests that entry of Girdawari in the names of minors was also fake. This was an additional factor which negated the claim of the defendant-respondents. None of these factors was taken into consideration by the subordinate Courts.
9. Ch Abdul Karim, the learned counsel for the respondents tried to show that Budhoo having acquired proprietary rights in the village under the Land Reforms Act, 1960, was not eligible to retain possession of Shamlat land. The contention is unsustainable as this plea was neither raised at any earlier stage nor it found support from any record. It is true that it is a question of law and is permissible to be raised even in second appeal but unless it is supported by evidence, it cannot be gone into.
10. The reasons listed above support the claim of the plaintiff-appellant. He is found entitled to decree for declaration by setting aside the sale-deed to the extent of Survey No.1159, measuring 3 Kanals 5 Marlas. The decree for declaration and perpetual injunction is, therefore, passed in favour of the plaintiff-appellant, against the defendant-respondents who shall refrain from interfering in possession of Budhoo of Survey No.1159 until he is found liable to eviction from the land, in due course of law. The costs shall follow the event.