This appeal is directed against the judgment and decree passed by the learned District Judge, Kotli dated July 10, 1990, whereby he dismissed the first appeal of the appellants.
2. The facts giving rise to the present controversy briefly stated are that on June 17, 1968, respondent No,3 brought a suit against respondent No,2 alleging therein that out of land falling under Khewat' No,1 `khata numbers 42 and 44, he purchased land measuring 10 kanals for a sum of Rs,4,000 through oral sale from respondent No,2 Azam Shah in Kharif 1933 and since then Munir Shah, respondent No,3 having continued in possession for more than 12 years, his possession has ripened into ownership by prescription extinguishing the title of defendant, Azam Shah.
3. At the time of presentation of the suit, it transpired that Azam Shah was also present in the trial Court who admitted the claim of Munir Shah as such on the same day, i,e, on June 11, 1968, he received Rs,4,000, before the trial Court, therefore, on the basis of this admission a decree of ownership was allowed in favour of Munir Shah on the basis of adverse possession spreading over 12 years.
4. It is interesting to note here that alongwith the suit, no Revenue Record was appended. The trial Court, without taking into consideration the legality of the compromise, granted decree in favour of Munir Shah. On the basis of this decree, in `Misl-e-Haqiyar for the year 1970-71, the entries were recorded in favour of Munir Shah. The present appellants brought a suit in the trial Court on 23rd of April, 1983, whereby they challenged the correctness of `Misl-e-Haqiyat' and the correctness of the compromise decree allowed in favour of Munir Shah on June 17, 1968. In the original suit it was contended that possession of the suit land lies with the plaintiff-appellants. However, subsequently, they sought permission to amend their suit through two different applications. Amendment was allowed by the trial Court. Therefore, amended suit was filed on 28th of September, 1986. After fulfilling all the requirements, of trial the trial Court ultimately vide order dated January 30, 1989 dismissed the suit of the plaintiff-appellants. This judgment and decree was assailed before the learned District Judge Kotli who vide order dated July 10, 1990 maintained the finding of the trial Judge. Hence the present appeal.
5. I have heard the learned Counsel for the parties and have very carefully perused the relevant record with the assistance of the learned Counsel.
6. It has been argued by the learned Counsel for the appellants that in the light of the Revenue Record which was appended with the suit, by the plaintiffs, it reveals that Azam Shah alongwith plaintiff-appellants and pro forma respondents who are also entered as pro forma defendants in the original suit, was a co-sharer in the suit land to the extent of one-fourth. Therefore, in these circumstances, the suit based on the ground of adverse possession should have been filed against all the persons who were entered in Revenue Record as owners, whereas in the present case, Munir Shah, brought .a suit against Azam Shah who obtained Rs,4,000 in the Court of Sub-Judge and entered into compromise with plaintiff, Munir Shah and on the basis of this compromise, Munir Shah, obtained a decree on the same day. This illegal decree was given effect by the Revenue staff.
In support of his contention, he relied on Exhs. PA., P.B. and P.C. He further argued that in the suit of Munir Shah, no survey number was given, which he had purchased from Azam Shah nor he had given any other description of the property in his suit that on that side of the rest of the land, he obtained possession from Azam Shah in the year 1953 and continued in possession since then till the filing of the suit in 1968. He was, therefore, of the view that this decree was wrongly given effect by the Revenue Authorities who on the basis of this decree, recorded the entries in the revenue papers in favour of Munir Shah, decree-holder.
7. As against this, it was argued by the learned Counsel for the respondents that in the suit filed by the plaintiff-appellants on 23rd of April, 1983, it is admitted in para. 3 of the plaint that share of Azam Shah in the `khewat' was more than 10 kanals out of which only 10 kanals of land through compromise, he surrendered in favour of Munir Shah. In this view of the matter, he urged that as Azam Shah out of his share had alienated land measuring 10 kanals in favour of Munir Shah, the plaintiff-appellants, had no cause of action either to challenge the decree or entries made in revenue papers on the basis of such decree. He further emphasised that suit filed on 23rd of April, 1983 was brought beyond the prescribed period of limitation, as such it was rightly dismissed by the Courts below.
8. I have considered the respective contentions of the learned Counsel for the parties.
9. I am of the view that decree dated June, 17, 1968, is a nullity in the eye of law. In fact, Azam Shah and Munk Shah have deprived the Government from stamp duty. Transfer of Property Act and Registration Act both were enforced in Azad Jammu and Kashmir from 1949. However, the Registration machinery was provided in 1950. In 1968, the machinery under the Registration Act was available everywhere in Azad Kashmir, therefore, the right of ownership in any immovable property could have been transferred through modes recognized by law.
10. In the present case Munir Shah brought a vague suit before the trial Court on June 17, 1968, wherein the description of the property was not mentioned. Azam Shah who was arrayed as defendant in the suit appeared at the same time, and received a sum of Rs,4,000 from Munir Shah and admitted his claim. Therefore, on the basis of this compromise the learned Sub-Judge recorded decree in favour of Munir Shah on the same day. As this decree is void ab initio, therefore, the question of limitation in the circumstances, does not arise.
11. In the suit of the plaintiff-appellants filed on 23rd of April, 1983, through Revenue Record Exhs. PA to PC it was proved beyond doubts that Azam Shah, alongwith the plaintiff-appellants and the pro forma respondents was one of the sharers to the extent of one-fourth share in the suit land. If he was in exclusive possession of any part of the suit land, he could have alienated the same through the modes recognized by law. Even he could have delivered the possession of the specific land in favour of such vendee. But in the present case, he admitted the claim of Munir Shah and thus, helped him in obtaining a decree against the spirit of law. A suit based on the basis of adverse possession could be brought against all the co-sharers whereas without giving the description of the suit land in the suit and even without producing any copy of Revenue Record, Munir Shah filed a suit against Azam Shah alone and on the basis of his admission obtained compromise decree in his favour. All the proceedings were conducted by Azam Shah and Munir Shah against the recognized norms of law, therefore, this decree should have been set aside by the Courts below.
But taking an erroneous view of the matter, the learned Sub-Judge has not only maintained this decree but has also maintained the entries made in the revenue papers on the basis of this decree and this view was wrongly confirmed by the first appellate Court.
12. In view of the above observations, while accepting the appeal of the appellants, the judgments and decrees of the trial Court as well as that of first appellate Court are hereby set aside and it is held that decree obtained by Munir Shah respondent, on June 17, 1968 was a nullity and bad in law, as such is ineffective and inoperative against the rights of the plaintiff-appellants in the suit land. It is further held that the entries made in the record-of-rights on the basis of this illegal decree, are also of no legal consequence, as such are ineffective and inoperative against the rights of the plaintiff-appellants. Consequently the appeal succeeds with costs.