' This second appeal under section 24 of Dastur-ul-Amal Diwani, Kalat read with section 100 of the Code of Civil Procedure is directed against the order dated 22nd April, 1972 whereby Majlis e- Shoora Kalat Division, reversed the judgment and decree dated 17tH January, 1972 passed by the Qazi, Kharan in favor of the appellant.
2. Briefly narrated the facts are that the appellant instituted a suit for possession of land situated in Kohak, Gowash, Tebsil and District Kharan on 3rd May, 1971 in the Court of Naib-Tehsildar, Kharan against the respondent No, t and two other persons namely Abdul Qadir and Ghulam Qadir alleging that they had illegally taken possession of the disputed land which was his ancestral property and was lying uncultivated for a long time and that the defendants had after illegally occupying the said land about one year prior to the filing of the suit brought it under cultivation by constructing embankments around it. It was further stated in the plaint that the respondents succeeded in illegally occupying this land because of appellant's absence from Kharan District for couple of decades in connection with his education. Subsequent to the filing of the suit the appellant learnt that the respondent No, 2 was also occupying this land jointly with his father, the respondent No, 1, as such he impleaded him as a party to the suit with the permission of Qazi, Kharan.
3. Abdul Qadir filed his written statement on 15th May, 1971 stating therein that he was a tenant of one Haji Saga on these lands and paid him rent in the beginning but after his death he paid rent to his brother, the respondent No, 1, as such he does not claim any right of ownership over this lard.
Ghulam Qadir filed his written statement on 27th July, 1971 denying any connection with the disputed land. However he explained that one Haji Sega was owner of this land and during his lifetime he had given it to respondent No, 2 by way of gift. Since both Abdul Qadir and Ghulam Qadir had expressed that they had no right or interest in this land as owner the appellant did not press his claim against them and the suit proceeded only against respondents Nos. 1 and 2.
Respondent No, 1 filed his written statement on 25th of August. 1971 asserting that Hs deceased brother Haji Saga was the owner of the disputed land and he had brought under cultivation through Abdul Qadir and Ghulam Qadir. The respondent No, 2 filed his written statement on 13th September, 1971 claiming that his uncle Haji Saga was originally the owner of this land, and he had received it from him by way of gift. He also took the plea that the suit was time-barred as the possession of his uncle Haji Saco related back to a period of twenty to twenty-five years.
4. The Assistant Commissioner, Kharan framed two issues in the case and referred it to Qazi, Kharai, for decision. The Qazi added four more issues and proceeded to record the evidence of the parties and finally decreed the suit on 17th January, 1972 against which an appeal was preferred to Majlis- e Shura, Kalat, who vide their orders impugned in this second appeal reversed the judgment and decree passed by the Qazi, Kharan.
5. The main points requiring determination are as to whether the findings of Qazi Kharan on the point of ownership of disputed land and application of Article 142 of the Limitation Act to the case deserved setting aside by the Majlis-e-Shura, Kalat and also if the appeal before Majlis-eShure, Kalat was within time. The learned counsel for the appellant has detail fully discussed the evidence produced by the appellant on the point of ownership in order to substantiate that the Majlis-e- Shura in their brief judgment did not take into account this evidence at all. The witnesses produced by the appellant have categorically stated that the disputed land, belonged to the father of the appellant from whom the appellant inherited it but due to paucity of water it was lying uncultivated for a very long time. They further stated that the appellant remained away from District Kharan for about two decades in connection with his education. These witnesses could not be dislodged by the respondents in cross-examination and therefore there was every reason for the Qazi, Kharan to confide in their veracity. On the other hand the respondents based their claim on a "Sanad" pertaining to 1311 Hijri bearing the seal of the then ruler of Kharan to prove that the disputed land original 'y belonged to Haji Saqa. This "Sanad" was disbelieved by Qazi, Kharan and for very cogent and convincing reason t He has observed in his judgment that Yaqub Khan who is said to have put his seal on the "Sanad" in 1311 Hijr1, in fact, ascended to the seat in 1327 Hijri and therefore the "Sanad" was in genuine as the said ruler could not be expected to sign it as a ruler 16 years before his accession. The Majlis-e-Shura also seem to have felt satisfied by this reasoning and presumably that is why they did not refer to this point in the impugned order. With the rejection of "Sanad" the claim of ownership of Haji Saga is completely negatived and on this basis I hold that the finding of learned Qazi on this point is free from any error.
' The learned counsel for the respondents lay emphasis only on the point of ownership by dint of adverse possession for period of 20 to 25 years and tried to take shelter under Article 142 of the Limitation Act by arguing that the suit was barred by time as it had been instituted beyond a period of 12 years prescribed by this section for filing of such suits. I shall be presently dealing with this point. The appellant's claim in the plaint was that the disputed land was in occupation of the respondents for little over 2 years at the time of the filing of the suit, but the respondents denied this assertion and pleaded that their occupation related back to twenty to twenty-five years. The parties examined several witnesses to establish their respective averments. The respondent's witnesses whose statements have been referred to me could not satisfactorily prove that they occupied this land for twenty to twenty-five years as some of them stated that the respondents occupied it for about 10 years while others could not give exact period. On the other hand the appellants' witnesses ethically stated that the respondents' possession related back only to two to two and a half years before the date on which they were examined. As the statements of the appellant's witnesses were more accurate and inspired confidence the same were accepted by the Qui, Kharan, who gave a finding accordingly. The Majlis-e-Shura not only misread the evidence on this issue but also misread and misconstrued the decision of the Qazi on this point as they arrived at the conclusion that the Qazi, Kbaran, had accepted it that the respondent's possession of the disputed land related back to a period of twenty to twenty-five years but he gave him concession for filing a belated suit on the ground that he had remained away from Kharan. It is evident from the observation of Majlis-e-Shure that absence from the place where the disputed land was situated would not entitle the appellant to file a belated suit as under Article 142 of the Limitation Act a suit for recovery of possession of land in adverse possession A of another person was to be filed within 12 years from the date of adverse possession and not from the date of knowledge of such possession. There can be no dispute with this legal position but the question that arises is as to wherefrom Iviajlis-e-Snura inferred that a belated suit was decreed by computing the period of limitation from the date of knowledge instead of the date of actual possession. There is specific finding to the effect that the adverse possession related back only to two to two and a half years and therefore die suit was within time. The finding of the Majlis-e-Shura on this issue is absolutely unwarranted by the evidence on record and is evidently based on surmises and conjectures. The learned counsel for the respondents, however argued that any objection with regard to the decision on the above-cited questions was outside the scope of section 100 of the Code of Civil Procedure which debars the High Court from interfering with a finding of fact. He referred to me Mir Said Muhammad and another v. Mir Chakar Khan and 6 others
(1) wherein it was held that second appeal was competent on the limited grounds provided in section 100 of the Code of Civil Procedure and that the case-law wherein it was earlier held that in spite of application of the Code of Civil Procedure, to Kalat Division by virtue of the Central Laws (Statute Reforms) Ordinance, 1960 section 24 of Dastur-ul-Amal Diwani, Kalat which provided that a second appeal was competent both on points of law and fact had been overruled. No doubt this is correct position of law and a 2nd appeal emanating from Kalat Division would now be heard keeping in view the limitations envisaged by section 100 of the Code of Civil Procedure, but under this provision of law also the High Court is no debarred from interfering with a finding of fact if the same appears to be the result of misreading of evidence or of ignoring material evidence. In Vathyam Balarama Sastri v. Vavilala Sastri (2) it was held that second Appellate Court while exercising jurisdiction under section NO of the Code of Civil Procedure was competent to reverse a finding of fact for which there was no jurisdiction. There is abundant case-law on the point th such findings of fact which the evidence on Secord did not justify or which were the result of misreading or not reading the material evidence could b - disturbed in Second appeal. The intention of the Legislature is that the second Appellate Court should not normally embark upon the task of appreciation of evidence and the District Judie who ordinarily hears first appeal should be regarded the sole Judge of facts, but in such cases where a finding of fact is apparently perverse for the reasons discussed above the second Appellate Court should not allow an illegality to be perpetuated and set it aside at once. Accordingly I am of the view that the finding of the Majlis-e- Shura that the suit was time-barred as the respondent's possession was twenty to twenty-five years old is not sustainable.
(1) PLD 1973 Quetta 43 (2) PLD 1947 P C 270
7. The learned counsel for the appellant also contended that the first appeal having been preferred to Majlis-e-Shura beyond a period of 30 days from the date of the passing of the judgment by Qazi, Kharan, was barred by time and was therefore liable to be dismissed on this ground alone. He argued that since the Limitation Act had been made applicable to Kalat Division by Central Laws (Statute Reforms) Ordinance, 1960 which provided a period of limitation of 30 days for the filing of first appeal, the period provided by section 24 of Dastur-ul-Aural Diwani, Kalat for filing appeals would not apply and that as in this case appeal was filed beyond that period the same was not maintainable by virtue of section 3 of the Limitation Act. In short, he argued that section 24 of Dastur-ul-Amal Diwani, Kalat stood repealed also to the extent that it provided a period of limitation of 90 days for both the first and second appeal. However I am reluctant to agree with this contention Before examining the question as to whether section 24 of Dastur-ul-Amal Diwani, Kalat stood repealed in entirety or it was saved to the extent that it provided a period of limitation for appeals itself I may refer to section 29 of the Limitation Act, which excludes the application of the provision as to limitation given by the Act in such cases where a special D or local law is self- contained in this respect.
'For convenience of reference I reproduce below section 29 of Limitation Act I- "Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law-
(a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law I and
(b) the remaining provisions of this Act shall not apply."
' Examining the question whether section 24 of Dastur-ul-Amal Diwani, Kalat stood repealed in entirety by virtue of the application of the Code of Civil Procedure in Kalat Division, or it was saved to the extent that it provided a period of limitation for appeals different than the Limitation Act, we may also examine the case-law that has evolved on this point since the coming into force of Central Laws (Statute Reforms) Ordinance, 1960 which made Civil Procedure Code and Limitation Act, among other laws, applicable to Kalat Division. In Dost Muhammad and another v. Rats Stalk and another (1) which is the first case on this point it was held that by application of the Code of Civil Procedure in Kalat Division, Dastur-ulAmal Diwani, Kalat stood repealed to the extent of corresponding provisions only. As such the result was that the second appeal could not be heard on facts as a corresponding provision on the subject was available in section 100 of the Code of Civil Procedure. But the period of limitation of 90 days for filing first and second appeal remained intact. In this case the provisions of Limitation Act also came under consideration but in a different context. The same question came up for consideration before another Bench of this Court in Arbab Qadir Bux and others v. Roshan and another (2) which radically charge 'be poison as In this ewe it was held that section 24
(1) PLD 1962 Quetta 82 (2) PLD 1966 Quetta 22 ' of Dastur-ul-Amal Diwani, Kalat did not stand repealed at all u it had no corresponding or parallel provision to section 100 of the Code of Civil Procedure. The result was that both the appeals were considered competent if they were filed within 90 days of the passing of the impugned order and second appeal could also be heard on facts. As the question required further consideration it was referred to a Full Bench of this Court. Accordingly in Said Muhammad and another v. Mir Chakar Khan and 6 others it was considered again and it was held that section 24 of Dastur-ul-Amal Diwani, Kalat corresponded to the provisions of section 100 of the Code of Civil Procedure and therefore second appeal was competent only on limited grounds provided by it. The case reported in PLD 1966 Quetta 44 and another case, on the same subject reported in PLD 1971 Quetta 97 (sic) stood overruled. However, in this case as well the question of limitation was not examined, as it was not directly in issue. In this context I may reproduce below the observations of their Lordships in Full Beach judgment with regard to section 24 of Dastur-ul-Aural Diwani, Kalat in order to find out whether this section was held to have been repealed in entirety with the application of the Limitation Act and the Code of Civil Procedure in this region or otherwise :- " . My conclusion therefore, is that Dastur-ul-Amal Diwani to the extent that there are provisions on the same subject in the Code of Civil Procedure, 1908, though no identical stood repealed, and accordingly section 24 of the Dastor-ul-Arral Diwani stood repealed by section 100 of the Code of Civil Procedure, 1908 being the provision contained in the C. P. C. On the same subject, notwithstanding the fact that while in the former Second Appeals would He both on questions of fact and law, in the latter it would be confined to law only."
The words underlined in the above observation are significant and make the intention of their Lordships crystal clear. Accordingly as there is no provision in section 100 of the Code of Civil Procedure on the subject of limitation, section 24 of Dastur-ul-Amal Diwani, Kalat shall be considered to have been saved to this extent and the period of limitation for both the first and second appeals would be ninety days, and not the period prescribed by the Limitation Act. The contention of the learned counsel for the appellant that the first appeal was time-barred as it was filed beyond a period of 30 days from the date of the passing of the order by Qazi Kharan is devoid of force.
' For the foregoing reasons I allow the appeal and set aside the impugned order with costs throughout.
"[Hers in italics)