MUHAMMAD YUNUS SURAKHVI, J.--- This appeal, by way of leave of the Court, is directed against the judgment and decree passed by the High Court on 16-10-1997, whereby the appeal filed by the appellant, herein, was dismissed.
2. The precise facts, giving rise to the present appeal, are that a declaratory suit for the cancellation of a gift-deed executed on 31-3-1981, on behalf of Salah Muhammad in favour of his daughter, Mst. Farooq Bibi, appellant herein, with regard to the land measuring 5 Kanals, 12 Marlas, 3 Sarsahis, was instituted in the Court of Sub-Judge, Mirpur by Abdul Khaliq, respondent No. 1, as being illegal, in excess of share of the donor, without possession, ineffective and inoperative against the rights of the plaintiff. The suit was resisted from the opposite side. The trial Court after framing the necessary issues, arising out of the pleadings of the parties, and recording evidence from both the sides and hearing them decreed the suit. The gift-deed to the extent of 2 Kanals, 12 Marlas and 3 Sarsahis was found and held to be in excess of the share of the donor as such the same was cancelled. The appeals taken to the District Judge and the High Court were also dismissed. Hence, this appeal by way of leave of the Court.
3. Arguing the case on behalf of the appellant, Ch. Muhammad Sharif Tariq, the learned counsel, vehemently contended that all the Courts below fell in error in declaring the gift-deed in excess of the share of the donor. It was submitted that the gift-deed was executed well within the share of the donor. The 7Parned counsel pressed into service the submission that the oral evidence as well as the documentary evidence, particularly, the Revenue Record Exh.P.A., copy of Jamabandi for the year 1979-80 clearly supported the assertion of the defendant-appellant. The calculation of the land earlier transferred by the donor from Khata Nos. 1557 and 1558 was against the facts on record as such all the Courts fell in error in arriving at a wrong conclusion. It was highlighted by the learned counsel for the appellant that it is indeed correct that land measuring 2 Kanals, 9 Marlas, was sold by Salah Muhammad in favour of Abdul Rehman's and others from Khata No. 1558/885- min, but in so far as the land from Khata No.1557/888 measuring 2 Kanals, 9 Marlas entered in Khasra No. 145 is concerned there appears to be an entry of sale but not that of an oral sale but all the same the Patwari witness has deposed that it was an oral sale. According to the learned counsel for the appellant, how the Patwari was in a position to testify that the land was sold orally.
Even otherwise, the land could not have been sold orally under law unless the same had been duly registered under the Registration Act. The learned counsel also submitted that in Exh.D.A. There is an entry of exchange against Khasra No. 145 which also shows that the land was not sold prior to the execution of gift-deed as it is claimed by respondent.
4. On the other hand, Mr. Abdul Ghafoor Qureshi, the learned counsel for the respondents, controverting the arguments raised by the learned counsel for the appellant, contended that the defendant-appellant before the execution of gift-deed in dispute transferred the land measuring 2 Kanals, 9 Marlas, comprising Survey No. 145, Khata No.1557/888 and Survey No. 139-min and 140 measuring 2 Kanals, 9 Marlas, from Khata No. 1558. Therefore, after transferring the land measuring 4 Kanals, 18 Marlas of land, the donor was left with a share of 3 Kanals only as such the gift-deed for the land measuring 5 Kanals, 12 Marlas, 3 Sarsahis, was clearly beyond his share to the extent of 2 Kanals, 12 Marlas, 3 Sarsahis, and the same was held to be so by the High Court. It was further submitted by the learned counsel for the respondents that both the Courts below as well as the High Court concurrently decided against the defendant-appellant declaring the gift-deed as having been executed in excess of share of the donor. Thus, the orders passed by the Courts below and the High Court were not open to exception.
5. After hearing the respective contentions of the learned counsel for the parties and perusing the relevant record, including the impugned judgment of the High Court, it may be stated that plaintiff and father of defendant No. l were real brothers who were entitled to land measuring 15 Kanlas, 16 Marlas, out of the estate left by their father in equal share, as such, Salah Muhammad, donor, was entitled to the land measuring 7 Kanals, 18 Marlas, out of which land measuring 4 Kanals, 18 Marlas, was alienated by him prior to the execution of the gift-deed. Therefore, the land left in his 'share was only 3 Kanals but he transferred through the gift-deed in favour of his daughter Mst. Farooq Bibi defendant-appellant, the land measuring 5 Kanals, 12 Marlas, 3 Sarsahis which to the extent of 2 Kanals, 12 Marlas and 3 Sarsahis was in excess of his share.
6. The assertion made by the learned counsel for the appellant that land measuring 2 Kanals, 9 Marlas, comprising Survey No. 145, Khata No.1557/888 shown to be transferred on behalf of Salah Muhammad through an oral sale in favour of Abdul Rehman's, son of Ilam Din, claiming to be illegally entered in the Revenue Record, has no substance for the simple reason that the said land stands transferred in the name of Abdul Rehman's, vendee, through a sale. Be it a registered or an oral sale as the fact remains that Salah Muhammad in exclusion of other co-sharers transferred the same. The Patwari witness, appearing on behalf of plaintiff has stated in similar terms and elaborated in his statement in the Court that the said transaction took place on the basis of an oral sale. The main objection of the learned counsel for the appellant appears to be the Patwari could not have been in a position to depose so as he was never a witness to the oral sale. On careful consideration, the argument raised by the learned counsel for the appellant seems to be based on flimsy ground for the simple reason that during the cross-examination not a single question was suggested to the Patwari witness with regard to the said statement and to get his position explained. It is a settled principle of law that a piece of evidence or statement of witness which A goes against the interest of a particular party and that party does not question the correctness of that assertion or the deposition of the witness it shall be deemed to have been admitted.
7. Another significant aspect of the case is that this entry made in Khasra Girdawari Exh.D.A. Was never challenged by the appellant as being ineffective or inoperative against her rights so it was too late at the stage of arguments before this Court to raise such a plea which having no substance in it is hereby repelled. Similarly, the learned counsel submitted that a Khasra Girdawan Exh.D.A. Against Khasra No. 145 there is an entry of exchange deed as such it could be easily construed that this Khasra number was exchanged and was never sold prior to the execution of the gift-deed. We regret to subscribe to the views of the learned counsel for the appellant for the simple reason that this plea, too, was not raised in the written statement filed by the defendant- appellant nor this point was argued or urged before the Courts below or in the High Court. A point not raised in the Courts below or before the High Court cannot be permitted to be raised or agitated for the first time before this Court.
8. In Jamabandi Exh.P.A. As stated earlier, produced by the plaintiffs--/respondents Khasra No- 145, Khata No. 155 7!888 appears to have been sold by Salah Muhammad the father of appellant, prior to the execution of gift-deed This fact was not categorically rebutted in the written statement. Even if there be a contradictory entry in the Khasra Girdawari EXh.T).A.. The entry in Jamabandi must prevail as the same has a presumption of truth. Moreso. It is not the case of the appellant- defendant that Khasra No. 145 was exchanged by his father. It is pertinent to mention that exchange of one piece of land is always within other piece of land but to this extent we do, not find any entry in the Khasra Girdawari. The defendant-appellant in our considered view cannot be allowed to set up a totally different and inconsistent case which is alien to the original case set up by her in the Courts below as well as in the High Court
9. In the instant case, the findings have been concurrently recorded by the trial Court as well as the first appellate Court and confirmed by the High Court. In a case reported as Muhammad Riaz Khan and 11 others v. Mst. Tahira Begum and 16 others PLJ 1996 SC (AJK) 179, it has been held at page 182 of the report at para. 7 in a following manner:-- "7. In our view the conclusion drawn after appraisal of evidence by the learned Sub-Judge and confirmed by learned District Judge, Bagh appears to be plausible. In our considered opinion it admits of no exception that when evidence has received due and full consideration by the subordinate Courts on a fact, the finding cannot be disturbed by the High Court on the ground that the inference drawn by the Courts did 41 not fairly arise out of the evidence. If the High Court for that reason disturbs the concurrent findings it assumes jurisdiction not vested in it under section 100 of Civil Procedure Code. In second appeal it is not possible to disturb concurrent findings of fact simply because some other view point, on the evidence produced could also be taken. In the reported case Mst. Kubra Begum v. Muhammad Yasin Khan PLD 1983 SC (AJ&K) 56, it was held at page 61 that-- 'A finding of fact, it is now settled law, cannot be disturbed in second appeal unless it can be shown that the evidence was misread and the finding is based on surmises and conjectures. Erroneous finding of fact however, inexcusable it may be, cannot be disturbed in second appeal unless there is some defect in the procedure causing error in the decision of the case on the merits'. "
For the aforesaid reasons, finding no force, in this appeal, it is hereby dismissed with costs.