1. ' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment and decree of the High Court dated 6-12-1989 whereby accepting the appeal, the findings of the Courts below were reversed.
2. ' Brief facts giving rise to the present appeal are that land measuring 9 Kanals and 4 Marlas, comprising survey No,169, situate in village Bandi Mir Samadani, Tehsil Muzaffarabad was in the ownership of one Mst. Memoona Begum, deceased, ancestor of present appellants. She brought a suit for possession of the suit land on the basis of title; a cross-suit was filed by the respondents, herein, seeking declaration that the suit land was purchased by their ancestor through an oral sale and in alternative they claimed that their possession over the suit land had ripened into ownership.
3. Both the suits were consolidated by the trial Court and decided together. The trial Court decreed the suit for possession of the appellants, herein, but at the same time awarded the costs of improvements to the respondents to the tune of Rs,2,58,000. Both the rival parties preferred appeals against the judgment of the trial Court to the District Judge, the appellants questioned the legality of awarding improvements to the respondents, whereas the respondents challenged the judgment and decree of the trial Court whereby the decree for possession was passed in favour of the appellants. The District Judge dismissed the appeal filed by the respondents whereas accepted the appeal filed by the appellants to the extent of awarding costs to the respondents.
4. The respondents' second appeal before the High Court was accepted in terms that the case was remanded back to the trial Court with the direction that the question regarding .Improvements should be decided according to law. Consequently an appeal was preferred to this Court. The appeal was partly accepted and the judgment of the High Court was amended in terms that the High Court should frame additional issue on the point of improvements and remit the same to the lower appellate Court for trial with the direction that it should transmit its finding and record to the High Court. It was further ordered that after receiving the report from the District Judge on additional issue, the High Court shall hear arguments afresh and decide the matter according to law. After receiving the report of the District Judge whereby the amount of cost of improvements was reduced to Rs,66,675 the High Court reheard the appeal and decreed the suit of the respondents in terms that their possession over the suit land had ripened into ownership through prescription. So far as the question of improvements was concerned, the High Court has expressed the view that there was no reason to disturb the finding of the District Judge on the point.
5. ' We have heard the arguments and perused the file. Sardar Rafique Mahmood Khan, the learned counsel for the appellants, has vehemently argued that the High Court has committed error in disturbing the concurrent findings on the question of fact pertaining to the documents Exh.DA and DB. He has contended that the trial Court and the first appellate Court, after appreciating the evidence, have come to the conclusion that Exh. DB does not pertain to the suit land and similarly Ex. DA, which was apparently executed after the execution of Exh. DB, is also of no avail to the case of the respondents-plaintiffs. The learned counsel has argued that the possession of the respondents-plaintiffs was as tenants on the payment of Rs,6 annually as rent as is evident from the Revenue Record. The learned counsel has cited the following authorities in support of his view that the concurrent findings of fact arrived at after due appreciation of the evidence are not open to challenge in the second appeal:-
(1) All Zaman v. Qasim Jan (PLD 1984 Azad J&K 61);
(2) Ali Akbar Khan v. Muhammad Hayat Khan (PLD 1978 SC (AJ&K) 109);
(3) Noor Akbar Khan v. Abdul Aziz Khan (PLD 1981 SC (AJ&K) 115);
(4) Mst. Kubra Begum v. Muhammad Yasin Khan (PLD 1983 SC (AJ&K) 56);
(5) Gul Muhammad Khan v. Yar Muhammad Khan (1983 CLC 668), and
(6) Mst. Shahro Begum v. Abdul Qayyum Khan (1985 CLC 695).
6. ' In reply, the learned counsel for the respondents-plaintiffs has argued that the trial Court and the first appellate Court have committed error in holding that Exh.DB does not help the case of the respondents-plaintiffs because that does not pertain to the suit land. He has contended that in the declaratory suit filed by the respondents, the joint reading of paras.2, 3 and 4 of the plaint clearly reveals that the case of the respondents-plaintiffs was that they came into possession of the suit land as owners in pursuance of Exh.DB which also finds mention in Exh.DA. He has further contended that the perusal of the aforesaid paras. Of the plaint reveals that the suit land which is the subject-matter of Exh.DB is the same which comprises survey No,169 and has been described as {{URDU TEXT}}. But the appellants-defendants failed to assert in the written statement that Exh.DB does not pertain to the suit land and the same related to some other land. The learned counsel has further contended that difference between the area sold vide Exh.DB, i,e. 20 Kanals and the suit land which is subject of controversy between the parties, which measures 9 Kanals and 4 Marlas, is due to the fact that although vide Exh.DB the land measuring 20 Kanals was transferred by the husband of Mst. Mamoona Begum yet the possession was delivered to the transferees to the tune of 9 Kanals and 4 Marlas. Consequently, in the subsequent revenue settlement instead of twenty Kanals only 9 Kanals and 4 Marlas of land was shown in their possession.
7. ' We have given our due consideration with regard to the question as to whether the findings of the trial Court and the first appellate Court that Ex.DB does not relate to the suit land are correct in view of the material on the record. The main consideration which weighed with these Courts in reaching at the aforesaid conclusion was that the area of the suit land is 9 Kanals, 4 Marlas whereas according to Exh.DB the land transferred measures about 20 Kanals. Irrespective of the reasons advanced by the High Court in support of the findings that Exh.DB pertained to the suit land, we are of the view that the stand taken by the appellants at the stage of arguments in the trial Court that Exh.DB did not pertain to land in question was not sustainable for the simple reason that no such plea was taken by them in their written statement nor they produced any evidence to prove the fact. Abdullah, deceased-respondent, appreared as a witness and categorically stated that their possession over the suit land was in pursuance of Exh.DB but his deposition was not challenged in cross-examination by suggesting that Exh.DB pertained to some other land and not to the suit land.
8. The aforesaid document was not objected to as being irrelevant when the same was tendered in evidence. Under Order VI rule 7 of Code of Civil Procedure if a party does not take a plea in his pleadings; such a plea cannot be raised without an amendment and evidence on such a plea cannot be considered. The said proposition has been affirmed in cases reported as Messrs Sabina Ltd. v. China Silk House (PLD 1971 Kar. 255) and Amin Yousuf Nizami v. Rashid Rayon Mills, Karachi (PLD 1971 Kar. 505). Thus, we are of the opinion that the contention of the learned counsel for the appellants that the concurrent findings by the Courts below with regard to the identity of land was not open to challenge in the second appeal, is not sustainable for the simple reason that the trial Court and the first appellate Court have made a wrong approach to the case to give finding on a point which was not raised in the pleadings by the appellants. It is settled principle of law that if the trial Court and the first appellate Court make such wrong approach to the case, concurrent findings are open to challenge. A reference may be made to cases reported as Muhammad Bakhtiar Khan v. Qari Bashir Ahmad (PLD 1957 Lah. 803), Anjuman Islamia, Muzaffargarh v. Ashiq Hussain (PLD 1967 Lah. 336), Haji Allahbanda v. Sadarangmal (PLD 1967 Kar. 859) and Muhammad Afsar v. Allah Ditta (1970 SCMR 118).
9. ' The High Court has rightly held that it was not necessary for the plaintiffs to prove that if they had purchased the suit land vide Exh.DB, why they were in possession to the extent of 9 Kanals, 4 Marlas and not 20 Kanals which was allegedly purchased through Exh.DB. Apart from the change in the formula of measurement adopted in the subsequent settlements, the appellants and their predecessors-in-interest might have been given possession lesser than 20 Kanals; the vendees could not be shown in possession of 20 Kanals when they were in possession of land only to the extent of 9 Kanals and 4 Marlas. We have no revenue record of successive settlements so as to ascertain as to what was the initial survey number of the suit land when the suit land was allotted present survey No,169; and whether initial acreage was bifurcated and was allotted differrent survey numbers. The copies of Khasra Girdawaris pertaining to the years 1952 to 1955 do not show the nature of the possession of the appellants. However, apart from that the revenue record enters the possession of the appellants as tenants on payment of rent of Rs,6 per annum. It may be observed here that there is no quarrel with the proposition that entries in the Jamabandi' carry a presumption of truth and those in Khasra Girdawari' are a valuable piece of evidence but even the presumption of truth attached to the entries in the record of rights is rebuttable. If there is oral or documentary evidence contrary to such entries, presumption of truth would stand rebutted. In the instant case there is no other evidence that plaintiffs-respondents ever paid rent to Mst. Mamoona Begum. The plaintiffs-respondents, according to the statements of their witnesses and the report of the Commission, had constructed two houses over the suit land one of which is pakka house'; the cost of the houses comes to thousands of rupees. Exh.DB is a thirty years' old document which finds corroboration from the contents of Exh.PA wherein it is recorded that previous to the execution of Exh.DA a piece of land was transferred to Abdullah, the father of Safiullah and Abdul Aziz. The execution of Exh.DA stands proved by the admission of Usman Shah, one of the appellants, who states that the same is written in the hand of his father. Thus, apart from the presumption of due execution under section 90 of the Evidence Act, the execution of Exh.DB is supported by the contents of Exh.DA. In addition to this, Usman Shah has admitted in his statement that actual land revenue of the suit land was about Rs,3 and the respondents and their predecessor-in-interest had been paying the same to Lambardar Muhammad Yunus Shah, one of the appellants. The question arises if the land was leased with the respondents, as is the case of the appellants, then why the revenue should have been paid by them. The same should have been paid by the owners of the land, i,e., the appellants. This lends support to the case of the respondents that they came into possession of the land in pursuance of document, Exh.DB, and not as lessee of Mst. Mamoona Begum, deceased. The aforesaid documents, according to the case of the respondents, were executed by the husband of Mst. Mamoona Begum. Thus, the question of leasing the suit land to the respondents by Mst. Mamoona Begum does not arise.
10. ' It may be pointed out here that Usman Shah, one of the appellants, when questioned in cross- examination as to what was the name of the and comprising Exh.DB his answer was evasive. As has been already stated the name, of the suit land, comprising survey No, 169, has been described as {{URDU TEXT}}. It is not probable that Usman Shah, appellant, could have been unaware of the name of the land which is also recorded in the revenue record. The description of the suit land given in Exh.DB more or less tallies with the description given by the Commission in its report while assessing the improvements. Even Usman Shah, one of the appellants, admits that "Kohri road" is situated on the western side of the land; this fact also finds support from the report of the Commission which contains the description of the suit land in detail.
11. ' The next question which falls for determination is as to whether the High Court was correct in raising the presumption of truth regarding Ex.DB under section 90 of the Evidence Act. The learned counsel for the appellants has referred to Wazir Muhammad v. Ali Muhammad (PLD 1982 SC (AJ&K) 37) wherein it has been opined that if a document which is thirty years' old is not supported by any other evidence, the same is not entitled to any weight. In the instant case, the fact is that document Ex.DB finds corroboration by the statement of Usman Shah who has proved that Ex.DA is written in the hand of his father. Exh.DA clearly records that a piece of land had earlier been transferred to Abdullah, the father of the vendees. This means that indirectly the fact that a piece of land was transferred by the husband of Mamoona Begum to Abdullah, the father of Safiullah and Abdul Aziz, finds corroboration from Exh.DA of which execution stands proved by Usman Shah, appellant. The nature of the corroboration of thirty years' old document should be such which excludes the possibility of fabrication of the same. The kind and condition of the paper on which the contents of Exh.DB appear are themselves a convincing factor to exclude the possibility of a forgery of the same.
12. The upshot of the above discussion is that as the trial Court and the first appellate Court made a wrong approach while interpreting the documents Exhs.DA and DB, the findings of the said Courts were rightly open to challenge in the second appeal. The wrong approach to the case or an illegality or irregularity committed in procedure, which affects the case on merits, furnishes a valid ground for considering the validity of concurrent findings of the Courts below by the High Court. It is settled proposition of law that the nature of possession of land under an invalid document would be deemed to be adverse against the owner. If, at all, any authority is needed, a reference may be made to a case reported as Mir Laik Ali v. Standard Vacuum Oil Company (PLD 1964 SC 220) which affirms the proposition that the nature of possession under an invalid document would be adverse from its inception.
13. ' So far as the amount of compensation in case of decree for possession is awarded is concerned, that has become irrelevant because we see no reason to differ with the finding of the High Court on the point that the possession of the respondents over the suit land has ripened into ownership.
14. However, it may be pointed out that after going through the report of the Commission, we are of the view that the finding of the District Judge affirmed by the High Court regarding the amount of the cost of improvements does not suffer from any infirmity.
15. ' In the light of what has been stated above finding no force in this appeal, it is hereby dismissed. In view of the circumstances of the case no order is made as to the costs.