' The appellants being aggrieved of the judgment and decree passed by the learned Additional District Judge, Muzaffarabad on 16th of March, 1988, whereby while dismissing the appeal of the appellants, he maintained the judgment and decree allowed by the learned Sub-Judge Hattian, in favour of plaintiffs-respondents Nos.1 and 2, have preferred this second appeal.
2. Necessary facts which have given rise to the present appeal briefly stated are that appellants Nos. 1 and 2 brought a declaratory suit against the pro forma-respondents Nos.3 and 4 on 15th of June, 1974 in the Court of learned Sub-Judge Muzaffarabad, wherein they sought a declaratory decree on the ground that land under survey numbers 42 (one kanal and 9 marlas) and 38 (3 kanals and 14 marlas) total measuring 5 kanals and 3 marlas situate in village Malikpura Tehsil Hattian District Muzaffarabad was obtained by them through oral sale, on account of which, they had become owners of the same. Pro forma-respondents Nos. 3 and 4 accepted the claim of the appellants whereby on 28th of November 1974, the requisite decree was passed in their favour.
Respondents Nos.1 and 2 challenged the legality of this decree vide their suit, dated 4th of January 1975. They claimed that Mahna Sheikh was owner in possession of the suit land who was survived by these plaintiffs as daughters and widow because his son Abdul Aziz and daughter Mst. Maryan had died during the lifetime of Mahna Sheikh. It was further averred that as Mst. Maryan, mother of pro forma-respondents Nos.3 and 4 had not acquired any title in the suit land, therefore, pro forma-respondents 3 and 4 had also not acquired any title in the suit land as such the decree obtained by the appellants, 1 and 2 against pro forma-respondents, 3 and 4 was had in law and ineffective and inoperative against their rights. It was further averred that Mahna Sheikh, predecessor-in-interest of the plaintiffs-respondents had never alienated the suit land in favour of defendants-appellants Nos.1 and 2 during his lifetime. Therefore, the appellants Nos.1 and 2 without impleading the plaintiffs who were legal descendants of Mahna Sheikh and who were entered so even in the revenue record, obtained decree by impleading the pro forma-respondents Nos.3 and 4 in their suit as defendants who had no concern with the land in dispute. It was further claimed that as no interest had ever bestowed on pro forma-respondents Nos. 3 and 4, as such any compromise decree obtained against these respondents by appellants Nos. 1 and 2 was nullity in the eye of law.
3. The trial Court, after conclusion of the trial, decreed the suit of the plaintiffs-respondents in their favour vide judgment and decree dated January 1, 1986. The appellants being dissatisfied, filed an appeal before the learned District Judge Muzaffarabad which was later on entrusted to the learned Additional District Judge who, vide judgment and decree under appeal, while dismissing their appeal, maintained the findings arrived at by the learned Sub-Judge Hattian in favour of respondents Nos. 1 and 2. This judgment and decree has been assailed in appeal before this Court on the following grounds:-- (i)That the plaintiffs-respondents Nos. 1 and 2 were not entitled to file a suit against the decree which was not passed against them;
4. (ii) that it has not been proved that Mst. Maryan, daughter of Mahna Sheikh, died during the lifetime of her father. (In this connection the learned counsel for the appellants raised serious objections with regard to the findings which were recorded by the Courts below);
(iii) that the evidence led by the plaintiffs-respondents was misread by the Courts below.
Therefore, they cannot derive benefit from the weaknesses of the evidence of defendants- appellants.
4. Repudiating the claim of the learned counsel for the appellants, the learned counsel representing the respondents vehemently argued:-
(i) That second appeal has erroneously been filed before this Court against the concurrent findings arrived at by the subordinate Courts;
(ii) that no decree of ownership can be passed on the basis of oral sale. Therefore, the decree allowed in favour of respondents by the learned Sub-Judge on 28th of November, 1974, was a nullity in the eye of law;
(iii) (iii) that pro forma-respondents Nos. 3 and 4 were impleaded in their suit by the appellants as defendants as daughters of Mst. Maryan whereas in revenue papers the plaintiffs-appellants Nos. 1 and 2 were shown as descendants of Mahna Sheikh as his daughters and widow. But they were not impleaded with pro forma-respondents by them in their suit. Therefore, the decree was secured without impleading proper and necessary parties. Even from this angle, the decree was a nullity in the eye of law;
(iv) that Mahna was in possession of the suit land during his lifetime and after his death, the plaintiffs-respondents are continuously in possession of the suit land. Therefore, without seeking the decree for possession, the suit filed by respondents was liable to be dismissed by virtue of Section 42 of the Specific Relief Act; and
(v) That none of the appellants appeared as his own witness.
5. After taking into consideration the respective contentions of the learned counsel for the parties, in the light of the evidence both, oral and documentary, I am of the view that this appeal must fail for the reasons to follow.
6. No doubt, the concurrent findings recorded by the Courts below, cannot be disturbed in second appeal simply on the ground that there being possibility of having some other viewpoint, if the evidence is appreciated in some other manner. But when it is proved that some material evidence was not taken into account, or the same was misread or non-read by the subordinate Courts, then this Court under Section 100, C.P.C. Can reverse the finding. The Courts of law have to evaluate the evidence of both the parties on record as a whole. If the evidence led by the parties is equally balanced, then the party who was to discharge the burden of proof is to suffer in that case. The decree was obtained by defendants-appellants Nos.1 and 2 with regard to the suit land which, after the death of Mahna Sheikh had bestowed on the plaintiffs-respondents. In the circumstances of the case, the plaintiffs-respondents were necessary party in whose absence no effective decree could be passed. The decree, in the circumstances, was rightly set aside by the Courts below while decreeing the suit of the plaintiffs-respondents.
7. No decree of ownership can be passed on the basis of oral sale, because under the Transfer of Property Act, the transfer of ownership can pass hands from one person to another only through the modes recognized by law. The defendants-appellants had not pleaded adverse possession on the basis of oral sale, as such the plaintiffs-respondents were necessary party who were entitled to file an independent suit which was filed by them and ultimately after the trial, it resulted in decree in their favour. Therefore, the first objection of the learned counsel for the appellants is without any force which stands repelled.
8. As regards second objection agitated by the learned counsel for the appellants, I think, it has no substance. The evidence led by the plaintiffs-respondents in order to prove that Mst. Maryan daughter of Mahna Sheikh died during the lifetime of her father, is sufficiently proved. This is an admitted fact that Mst. Maryan, mother of pro forma-respondents Nos.3 and 4, was the daughter of Mahna Sheikh. The only point needing resolution in this case is as to whether she died during the lifetime of her father or after his death. Fajar Ali, Khalid Mir (Office Quanoongo), Abdul Jalil, Sher Zaman and Manzoor Hussain Shah were produced by plaintiffs-respondents in support of document Ex.PC which was obtained from birth and death register maintained by Police Station Chenari. Abdul Jalil has deposed that Mst. Maryan had died on 30th of August 1973. This information was furnished by him in the Court on the basis of document (PC) which is a copy of birth and death register maintained in Police Station Chenari. Sher Zaman, the other witness of the plaintiffs-respondents deposed that in the month of August, 1973 one Abdul Aziz came at his shop and purchased coffin from him, for his mother-in-law. According to this witness, Mst. Maryan was mother-in-law of Abdul Aziz. But in cross-examination, he deposed that he cannot say with certainty that in the month of August, 1974, how many persons purchased coffin from him. He cannot give even the names of such persons who bought coffin from him. Fajar Ali is the only witness who stated that he had participated in funeral ceremony of Mst. Maryan. He has accepted this proposition that litigation between him and Ghulam Hussain (one of the brothers of the appellants) was going on in the Court. Besides the abovementioned evidence, the plaintiffs- respondents have also produced a copy of birth and death register of Police Station Chenari.
According to Ex.PC, at serial number 437, the death of Mst. Maryan widow of Wali Muhammad was recorded. The relevant register was summoned. On its inspection, it was found that at serial number 437 of page 50, Mst. Zainab Bibi wife of Alam Din was mentioned, whereas at the bottom of page 49 serial number 437 was added and with different pen and ink, the name of Mst. Maryan was inserted and later on, serial number 437 appearing at page 50 was corrected and made 438, whereas the remaining serial numbers have not been corrected which apparently proves that this entry was subsequently made with the connivance of staff of Police Station Chenari. According to the deposition of Khalid Mir (Office Qunoongo), in revenue record, the date of death of Mahna Sheikh is entered as 6-2-1974 whereas his daughter, Mst. Maryan has been shown to have died on 30-8-1973. A copy of the order of Assistant Collector II Class, dated November 10, 1975 Ex. PM has been produced wherein Mst. Maryan has been shown to have died earlier than her father. So, in my estimation, the Courts below have rightly held that Mst. Maryan died in the lifetime of her father. No evidence has been brought on record in rebuttal. Therefore, there is no justification to disturb the findings concurrently arrived at by the subordinate Courts. The evidence produced by the parties, in this case, was properly appreciated by the Courts below. No misreading or non-reading of the same has been shown.
9. There is yet another aspect of the matter. On the basis of oral sale, a person can claim adverse possession against true owners, entered in the revenue record. But in the suit filed by defendants- appellants, the plea of adverse possession was not taken as is evident from the copy of order and decree-sheet appended with the file of the trial Court, appearing at pages 25 and 26. In this case, it has been concurrently held by the subordinate Courts that plaintiff-respondents are in possession of the suit land. All the witnesses who appeared on behalf of the plaintiffs-respondents unanimously stated that the possession of the suit land, after the death of Mahna Sheikh, remained with the plaintiffs-respondents. The correctness of this version was not challenged in cross- examination. Even none of the appellants appeared in support of their case. Therefore, no mistake was committed by the Courts below while relying on evidence of plaintiffs-respondents. Therefore, the next objection agitated by the learned counsel for the appellants also being devoid of any force, stands repelled.
10. The upshot of the above discussion is that finding no force in this appeal, r it stands dismissed with costs.