' SARDAR SAID MUHAMMAD KHAN, C.J.---As the above-entitled two cross-appeals arise out of the same judgment of the High Court, we propose to dispose of the same by this single judgment.
2. The facts giving rise to the present appeals are that a suit for declaration and perpetual injunction with regard to the land comprising Survey No,574, measuring one Kanal, one Marla, and land comprising Survey No,575, measuring four Marlas, was filed by Ghulam Rasool, the predecessor-in-interest of Abdur Rehman and others, appellants, in the Court of Additional Sub- Judge, Muzaffarabad, alleging that one Fateh Joo son of Usman Joo had transferred the land comprising Survey No,574, measuring one Kanal and one Marla, through a sale-deed to one Muhammad Ismail in Bhadoon 1999 Bikrimi for which Mutation No,366 was entered in the relevant register but the same was not attested for one reason or the other. Muhammad Ismail, vendee, transferred the aforesaid piece of land by a registered sale-deed executed on 7th Phagon, 2002 Bikrimi to Abdullah son of Rehman, the father of Ghulam Rasool, plaintiff, whose legal representatives are appellants before this Court. It was further alleged that Mutation No,371 in pursuance of the said sale-deed was also entered in the relevant register and the same was attested in the year 1974. So far as the land comprising Survey No,575, measuring four Marlas, is concerned, the case of the plaintiff was that it was also transferred through a registered sale-deed, dated 7th Phagon, 2002 Bikrimi, in favour of Abdullah, the father of Ghulam Rasool, deceased- plaintiff. It was alleged that the aforesaid land comprising both the survey numbers mentioned above was transferred by Abdullah through a registered gift-deed to Ghulam Rasool and mutation of the same was registered on 4th of July, 1974 A.D. It further was averred in the plaint that the defendants who had no right in the property in dispute put up a false claim of title to the land and initiated proceedings for the ejectment of the plaintiff before the Revenue Authorities. It was prayed that the said proceedings before the Revenue Authorities might be declared null and void and without jurisdiction against the interest of the plaintiff. The suit was resisted by Abdul Qadir and others, defendants, contending that earlier a suit was filed by the plaintiff before the Assistant Collector but the same was dismissed for non-prosecution. Thus, it was contended that the present civil suit was not maintainable. It was further contended by the defendants that they had got the possession of the suit land through a warrant for possession, which was issued by the Revenue Assistant for the ejectment of Ghulam Rasool, deceased-plaintiff. It was further averred in the written statement that no sale-deeds pertaining to the suit land were executed either by Fateh Joo or Muhammad Ismail and that the sale-deeds, if any, would be forged documents. Atter the trial, the suit of Ghulam Rasool, plaintiff, was decreed by the trial Court and on appeal to the District Judge, the findings of the trial Court were upheld. However, on appeal to the High Court by Abdul Qadir and others, the High Court opined that so far as the land comprising Survey No,574, measuring one Kanal, one Marla, is concerned, it is proved that Muhammad Ismail, the alleged purchaser from Fateh Joo, the original owner, had transferred the land through a sale-deed, Exh.PB, to Abdullah but as the sale-deed which is alleged to have been executed by Fateh Joo in favour of Muhammad Ismail was not produced, it could not be said that Muhammad Ismail had title to the land and was competent to execute the sale-deed Exh. PB, in favour of Abdullah. Consequently, the suit was dismissed to the extent of the land measuring one Kanal, one Marla comprising Survey No,574 and the judgments and decrees of the Courts below were set aside. However, the judgments and decrees of the Courts below pertaining to the suit land measuring four Marlas comprising Survey No,575 were maintained. It is against the aforesaid judgment and decree of the High Court that the above-entitled cross appeals have been preferred to this Court.
3. We have heard the arguments and perused the files. Kh. Shahad Ahmad, Advocate, the learned counsel for Abdur Rehman and others, appellants, has contended that the High Court has committed an error in disturbing the concurrent findings of the Courts below whereby the land comprising Survey No,574, measuring one Kanal and one Maria, was held to have been duly transferred to Abdullah, the father of Ghulam Rasool, plaintiff, through the registered sale-deed, Exh.PB. He has argued that the learned Judge in the High Court has reversed the findings with regard to the aforesaid piece of land without any legal ground. The learned counsel has argued that when the appeal was pending in the High Court, an application for producing a sale-deed allegedly executed by Fateh Joo in favour of Muhammad Ismail was sought to be placed on the record as additional evidence. Abdul Qadir and others, defendants-appellants, filed objections to the application. Meanwhile, it transpired from the contents of the sale-deed which was sought to be produced in additional evidence that it was executed by Fateh Joo in favour of Abdullah and not by Muhammad Ismail in favour of Abdullah, the father of Ghulam Rasool, plaintiff. Thereafter, another application was submitted on behalf of Ghulam Rasool, plaintiff, praying that he might be permitted to withdraw his application for bringing the aforesaid sale-deed on record because Muhammad Rafique, the son of Muhammad Ismail, had given him a different sale-deed which was not relevant to the case in hand. The High Court accepted the application for the withdrawal of prayer for adducing additional evidence. However, while giving the judgment in the case in hand, the High Court reversed the findings with regard to the land measuring one Kanal and one Marla solely on the ground that, according to the case of the plaintiff, the sale-deed with regard to the land comprising Survey No,574 was executed in favour of Abdullah by Muhammad Ismail whereas the sale-deed which the plaintiff intended to produce as additional evidence was executed in favour of Abdullah by Fateh Joo. The learned counsel for Abdur Rehman and others has argued that after allowing withdrawal of the application for bringing the aforesaid document on the record, the High Court was not legally justified in considering the contents of the said document, rather the proper course for the High Court was to return the aforesaid sale-deed to the plaintiff, he has maintained that even if it remained on the record, the Court could not read it in evidence in favour of one party or the other.
4. The arguments with regard to the reversal of the aforesaid findings by the High Court were controverted by Mr. M. Tabassum Aftab Alvi, Advocate, the learned counsel for Abdul Qadir and others. He has argued that the High Court was not debarred from considering the said document even if the same was not admitted into evidence. The learned counsel has also argued that even otherwise, there was no eidence in proof of the fact that in the first instance the land was transferred by Fateh Joo to Muhammad Ismail because the original sale-deed purported to have been executed by Fateh Joo in favour of Muhammad Ismail has not been produced in evidence and no attempt was made for proving the same by leading secondary evidence. Thus, the learned counsel maintained that even otherwise the findings of the High Court on the aforesaid point do not call for interference. The learned counsel has contended that not only the sale-deed or its contents which was allegedly executed by Fateh Joo in favour of Muhammad Ismail were not proved, the other two sale-deeds, Exhs. PA and PB, which were allegedly executed by Fateh Joo and Muhammad Ismail, respectively, in favour of Abdullah have not been proved according to law. The learned counsel has cited following authorities in support of his contentions: ' In case reported as Niamatullah Shah v. Farmanullah (1980 SCM R 953), it was held that as the original receipt necessary for the decision of the case was not filed and no secondary evidence was led to prove the loss of the same, the findings were not sustainable because the copies of the receipt were not admissible into evidence.
' In Abdul Karim v. Sattar Muhammad (1980 CLC 692), it was observed that the original sale-deed was not produced in the Court on the ground that the same had been lost but there was no evidence on the record as to how the sale-deed was lost; the marginal witnesses were not the persons acquainted with the executant of the sale-deed and were unable to say whether the plaintiff was the same person who had executed the document or not, besides, the man who had identified the plaintiff before the Registrar was also not produced, and the register of the stamps vendor showed that there has been tampering with regard to the purchaser of the stamps. In the aforesaid circumstances, the appeal was dismissed observing that the findings of the Courts below were not open to exception.
' In case reported as Mst. Rehmat Bibi v. Muhammad Qasim (1993 SCR 13), it was observed that the High Court was justified in vacating the concurrent findings of the Courts below because the trial Court and the first appellate Court had taken into consideration the Police Diaries of a criminal case and the documents which were not proved by producing the executants of the same, the application wherein the husband was alleged to have admitted to have given divorce to his wife was also unproved. It was in the aforesaid circumstances that the concurrent findings of the Courts below were reversed by the High Court.
' In an unreported case entitled Maulvi Abdul Saboor v. Faqeer Muhammad (Civil Appeal No,28 of 1993) decided on 20-10-1993, the concurrent findings of the trial Court and the first Appellate Court were disturbed on the ground that Exh.PA was not a sale but an agreement-to-sell and, thus, it did not transfer any title in the land to the purchaser. Besides, Gul Khan, one of the witnesses of Exh.PA, had stated that he did not know whether Khani Zaman, executant, put thumb-impression on the relevant document or he signed the same; similarly, Ghulam Muhammad, who claimed to be scribe of the agreement, Exh. PA, did not state that Khani Zaman signed or put his thumb impression on the document, Exh. PA. He merely stated that he had written Exh. PA.
5. As is evident from the brief survey of the authorities relied upon by the learned counsel for the defendants-appellants, the facts of the cases, referred to above, are distinguishable and are not attracted to the present case. In the instant case, two original registered sale-deeds, Exhs.PA and PB are on the record. Thus, there is no question of proving the loss of the original sale-deed or leading secondary evidence in support of the same. Similarly, in the divorce case, the findings were given on inadmissible evidence and, thus, same were rightly reversed by the High Court. None of the eventualities which existed in the cases cited by the learned counsel for the defendants- appellants is present in the instant case. The sale-deed which, according to the plaintiff, was executed by Fateh Joo in favour of Muhammad Ismail has not been produced but all the same the sale-deed which was executed by Muhammad Ismail in favour of Abdullah is on the record wherein it has been clearly mentioned that the land comprising Survey No,574, measuring one Kanal one Marla, came into the ownership of Muhammad Ismail as he had purchased the same from Fateh Joo, the original owner. While dealing with the question as to whether there is any proof that in fact a sale-deed of land comprising Survey No,574, measuring one Kanal and one Marla, was executed by Fateh Joo in favour of Muhammad Ismail or not, we have to consider the respective stands of the parties. The defendants in their written statement made a general assertion that if there were any sale-deeds, as alleged by the plaintiff, those would be forged. It is well-settled principle of law that although the initial burden of proof of a fact is on the party which alleges it but when such party leads evidence in support of the issue resulting in preponderance of probability in favour of the party, the onus to rebut the probability shifts to the opposite-party. So far as sale-deeds, Exhs. PA and PB are concerned, they stood prove by the statements of Qadir Joo, one of the marginal witnesses of the said documents. He has not only stated that he was a marginal Witness of the aforesaid sale-deed but in cross-examination, he has deposed that he was present while bargain between the parties with regard to the sale-deeds, Exhs. PA and PB was struck. He has further stated that in fact he was present at the time of bargain. Even otherwise, Exhs.
PA and PB are thirty years' old registered documents and all the Courts below including the High Court have raised a presumption of correctness in favour of the same, not a single question has been directed either to Qadir Joo or Ghulam Rasool, P.Ws., in cross-examination that the aforesaid two documents were forged or they did not bear the signatures of Qadir Joo and Habib Joo, the other attesting witness of Exhs. PA and PB. It has been stated by Qadir Joo, P.W., that the signatures of Habib Joo, the other attesting witness, were correct on the aforesaid two sale-deeds. Therefore, the Courts below, including the High Court, were correct in holding that Exhs. PA and PB are proved.
However, the High Court reversed the findings on Issue No,4, which pertains to the transfer of land comprising Survey No,574 by Fateh Joo in favour of Muhammad Ismail, on the extraneous ground inferred from the sale-deed which the plaintiff wanted to produce as an additional evidence. It has already been pointed out that the said sale-deed was not received in additional evidence. Thus, the High Court was not justified to draw any inference from it. The said sale-deed was not the part of the record and should have been returned to the plaintiff when his application for withdrawal was accepted. The additional evidence is brought on the record as laid down under Order 41, Rule 27, C.P.C. If additional evidence is not brought on the record according to law, neither any inference can be drawn from it, nor it can be read into evidence. The learned Judge in the High Court has also overlooked the fact that in the registered sale-deed which was executed by Muhammad Ismail in favour of Abdullah, it is clearly mentioned that Muhammad Ismail had become the owner of the suit land as a result of transfer by Fateh Joo in his favour. Not a single question has been directed in cross-examination to Ghulam Rasool that the sale-deed executed by Muhammad Ismail in favour of Abdullah, the father of Ghulam Rasool, was null and void because Muhammad Ismail had no title to the land sold. In fact no plea was taken in the written statement by the defendants that the sale-deed executed by Muhammad Ismail in favour of Abdullah, the father of Ghulam Rasool, plaintiff, was void because Muhammad Ismail had no title to the property in dispute; or he had not purchased the said land from Fateh Joo. It is for this reason that there is no issue on the point in terms that the sale-deed. Exh. PB, executed by Muhammad Ismail was inoperative because he had no title to the land sold. In the instant case, Abdullah, the grandfather of the present appellants derived the title from Muhammad Ismail and Fateh Joo, the executant of the registered sale-deeds, Exhs. PA and PB. Thus, it was not necessary for the plaintiff to prove, as a substantial fact, that Fateh Joo had sold the land in dispute to Muhammad Ismail in absence of a specific plea in that regard. But as has been pointed out earlier, there is general averment in the written statement that sale-deeds, if any, are forged documents. There is a marked difference between a ' forged document' and a document which although is genuine one but does not transfer the title in the property because its executant had no title in the land sold. Under these circumstances, the reversal of the findings by the High Court on Issue No,4 on the ground that as the original sale-deed executed by Fateh Joo in favour of Muhammad Ismail is not on the record, the title of Abdullah or for that matter Ghulam Rasool, the deceased-plaintiff, is not proved is not tenable. For convenience, the relevant part of the judgment of the High Court which deals with the reversal of the findings on Issue No,4 is reproduced as under:--- "According to the pleadings, the plaintiff claimed to have purchased the land measuring one Kanal, one Marla, out of Survey No,574, from Muhammad Ismail, whereas according to the sale- deed, the land was transferred by Fateh Joo to Abdullah, father of the plaintiff. It appears that the evidence brought on record by the plaintiff not only contradicted his own stand but also falsified the whole claim with regard to the said land. Therefore, it can safely be concluded that the plaintiff has failed to discharge the burden of proof for Issue No,4, framed with regard to the transfer of land measuring one Kanal, one Maria, on behalf of Fateh Joo, in favour of Muhammad Ismail. Though sufficient evidence was brought on record by the plaintiff to the effect that the aforesaid land was transferred by said Muhammad Ismail in the name of Abdullah, his father, it does not give any strength to the plaintiff's case. As the plaintiff has failed to prove the basic Issue No,4, therefore, no resolution with regard to Issue No,5 would be required as the same rested upon Issue No,4."
' From the above extract it is evident that the High Court reversed the concurrent findings of the Courts below on the grounds which were not available to it for the reasons stated above. So far as Exhs. PA and PB are concerned, as stated earlier, those have been held to have been proved not only by the trial Court and first Appellate Court but also by the High Court.
6. The learned counsel for the defendants-appellants has also argued that according to Munshi Ghulam Sarwar, Patwari, a witness for the plaintiff, in the 'Khasra Girdawaris' prior to the year 1974.
The possession of the plaintiff Survey No, 574 was recorded as {{URDU TEXT}}". It may be stated that the perusal of the statement of the said witness would indicate that he was produced to prove the contents of 'Khasra Girdawari' pertaining to the year 1974. He stated in the examination-in-chief that tampering had been made in 'Khasra Girdawari' for the year 1974. However, in cross- examination, he has stated that so far as Khasra Girdawaris' prior to year 1974 were concerned, in those the possession of Ghulam Rasool, plaintiff, was recorded as{{URDU TEXT}} ".It may be observed here that if we come to the conclusion that the suit land was transferred to Abdullah in 2002 Bikrimi, as is the case of the plaintiff, then mere entry of the plaintiff or his father Abdullah as a tenant would not adversely affect the case of the plaintiff, especially so when all the Courts below have come to the conclusion that the stand of the defendants that possession of Abdullah was on the basis of 'Iqrar Nama', dated 28-9-1957 whereby the suit land purports to have been given to Abdullah on lease on the payment of Rs,120 per year was not correct. The additional Issue No,7-A, onus of which was on the defendants, was decided against them by all the Courts. Thus, the contention of the learned counsel for the defendant-appellants that the statement of Ghulam Sarwar, Patwari, contradicts the stand of the plaintiff is not tenable, especially so when the Courts below have come to the conclusion that the said 'Iqrar Nama' did not pertain to the land in dispute but to some other land.
7. The learned counsel for the defendants-appellants has also argued that the High Court has not given due weight to the case of the defendants that after the dismissal of the suit by Revenue Assistant in the ejectment proceedings, the Civil Court has no jurisdiction in the matter. It may be observed here that the case of the defendants in the Courts below has been that the dismissal of the suit by the Revenue Assistant creates bar of res judicata to the Civil Court. It was held that as the suit or the application, whatever it was, was not decided on merits, the same would not operate as res judicata. In this Court, the learned counsel for the defendants has changed his stand and has argued that the dismissal of the suit by the Revenue Assistant would bar the jurisdiction of the Civil Court. The point of the jurisdiction of Civil Court was not taken in the written statement, or in any of the Courts below during the arguments. Thus, there is no finding on the point. Therefore, the learned counsel for the defendants cannot be heard saying at this stage that the Civil Court had no jurisdiction, especially so when the defendants have submitted themselves to the jurisdiction of the Civil Courts and contested the case throughout. Even otherwise, as is evident from the history of the case narrated above, the dispute between the parties is one of title rather that of landlord and tenant. The question of the title to the land in dispute is essentially triable by the Civil Court and not by the Revenue Courts. Therefore, the contention of the learned counsel for the defendants that Civil Court had no jurisdiction to try the case is without any force.
8. The learned counsel for the defendants has also argued that as the plaintiff had challenged the proceedings before the Revenue Assistant for his ejectment, it was essential that the Revenue Authorities or at least the Revenue Assistant should have been impleaded as a party in the civil suit. It may be stated that the question with regard to the misjoinder or non-joinder of the party can be raised at the earliest opportunity. Therefore, it is not open for the defendants to agitate this point in this Court when the same was not raised in any of the Courts below. Even otherwise, we are of the opinion that even if an order of the Revenue Authority is challenged in the Civil Court, the Revenue Authority cannot be regarded as a necessary party in the proceedings. The learned counsel has cited a case of this Court to support his contention that the Revenue Assistant was a necessary party. The authority came into existence in exercise of the writ jurisdiction. Thus, the said authority does not help the case of the defendants-appellants. The writ jurisdiction being a Constitutional jurisdiction is quite distinct from the ordinary civil jurisdiction of the Civil Court, thus, the legal proposition regarding necessary parties is not identical in the aforesaid eventualities.
9. The learned counsel has also contended that the defendants were given the possession of the land in pursuance of the order of the Revenue Assistant. The learned counsel has admitted that at present the suit land has been attached under section 145, Cr.P.C. After the decree of the said land in favour of the plaintiff, the question of the restoration of the possession hardly presents any difficulty, the judgment of the trial Court in favour of the plaintiff is quite clear on the point. Hence we need not further dilate upon the question of the restoration of possession to the plaintiffs- appellants.
' In the light of what has been stated above, we accept the appeal filed by Abdur Rehman and others and dismiss the appeal filed by Abdul Qadir and others. Consequently, the judgment and decree of the High Court stands amended to the extent indicated above and that of trial Court and the first Appellate Court stand restored.