' SARDAR SAID MUHAMMAD KHAN, C.J.---As the above entitled appeals arise out of the same judgment and decree of the High Court, we propose to dispose of the same through this single judgment.
2. The brief facts giving rise to the present appeals are that three suits were instituted in the Court of Additional Sub-Judge, Muzaffarabad: a suit was instituted by Muzaffar Khan and others against Mst.Sarwar Jan and others, whereby certain sale-deeds, agreement-to-sell and compromise decree, ated 30-7-1975 were challenged as being violative of law. This suit was dismissed by the Additional Sub-Judge and no appeal was filed against the finding of the Additional Sub-Judge in the higher forums. Therefore, it is not necessary to recapitulate the facts of the same; the second suit was instituted by Mst. Attar Jan, appellant herein, in the trial Court alleging that family partition between the parties had taken place in Dogra Regime and in pursuance of the same the land comprising Survey Nos.28,41 and 71 fell to the share of Muhammad Sharif, her husband, who died in the year 1971 and his legal representatives, including the plaintiff-appellants, are in possession of the said land. It was alleged that partition of the land was accepted by defendant No,2 and Muhammad Sharif, .Her husband, and the parties remained in possession of their respective shares which fell to them as a result of private partition. It was further alleged that defendant No,2, without the knowledge of the plaintiff-appellants, executed a sale-deed of land measuring 27 Kanals and 16 Marlas, comprising the aforesaid survey numbers in favour of Mst. Resham Jan, defendant- respondent, for a consideration of Rs,1,025. The sale-deed was challenged as being against the private partition which had been taken place between the parties. It was prayed that the sale- deed executed in favour of Mst. Resham Jan might be declared as inoperative against the interests of the plaintiffs. The third suit was instituted by Muhammad Haneef and others, pre-empting the sale-deed which was executed by Muzaffar Khan in favour of Mst. Resham Jan, respondent. They claimed that they were entitled to decree for pre-emption on the basis of right of prior purchase.
3. The trial Court consolidated all the three suits and disposed of the same by the single judgment.
As has already been stated, the suit filed by Muzaffar Khan against Mst. Sarwar Jan and others was dismissed. The suit filed by Mst. Attar Jan against Mst. Resham Jan challenging the sale-deed which was executed in favour of Mst. Resham Jan was dismissed while pre-emption suit filed by Muhammad Haneef and others was decreed by the trial Court. Consequently, Mst. Attar Jan and Mst. Resham Jan filed appeals to the Additional District Judge who dismissed the same and upheld the findings of the trial Court. Mst. Resham Jan and Mst. Attar Jan preferred appeals to the High Court against the judgment and decree of the Additional District Judge who accepted the appeal filed by Mst. Resham Jan and set aside. The preemption decree passed in favour of Muhammad Haneef and others while the appeal filed by Mst. Attar Jan was dismissed. The present appeals have been filed by Mst. Attar. Jan and Muhammad Haneef and others against the judgment and decree of the High Court, dated 22-12-2000.
4. It has been contended by Raja Muhammad Hanif Khan, Advocate, the learned counsel for Mst.
Attar Jan, appellant, that the Courts below have committed an error in dismissing the appeal filed by her. He has argued that the High Court was not justified in maintaining the sale-deed in favour of Mst. Resham Jan on the ground that the same vas executed in lieu of dower. He has further submitted that as Mst. Resham Jan did not implead Mst. Attar Jan as respondent in her appeal in the High Court and, thus, the same was incompetent. However, the learned counsel conceded that Mst. Attar Jan, appellant, had filed a cross appeal in the High Court which was consolidated with the appeal filed by Mst. Resham Jan and the same were disposed of by single judgment. The learned counsel has further argued that the High Court has committed an error in disallowing the objection that Mst. Reshma Jan, respondent, did not file the copy of the decree sheet of the trial Court along with her appeal filed before the Additional District Judge and, thus, the same was incompetent. He has submitted that the appeal filed by Mst. Resham Jan, respondent, in the High Court, was not competent on the ground that copy of the decree sheet of the trial Court was not filed before Additional District Judge. The learned counsel has stressed that a law point can be raised at any time and, thus, the above reflected points which were not raised before the Additional District Judge could be entertained by the High Court and this Court. The learned counsel has cited following authorities in support of his contentions:--- ' In a case reported as Muhammad Amin Shah v. Mehtab. Din PLD 1996 SC (AJ&K) 11, it has been held that compliance of Order XLI, rule 1 and Order XLII, rule 1, C.P.C., is mandatory and as the copy of the judgment of the Court of first instance is not filed before the High Court, the appeal was liable to be dismissed on the said ground.
' In a case reported as Muhammad Ashraf v. Azad Government of the State of Jammu and Kashmir PLD 1985 SC (AJ&K) 102, it has been held that if necessary party is not impleaded in the appeal, the same would be incompetent in view of Order XLI, rule 20 read with Order 1, rule 10, C.P.C.
5. Mr. Ghulam Mustafa Mughal, Advocate, the learned counsel for Muhammad Haneef and others, pre-emptors in Appeal No,34 entitled above, has repeated the arguments advanced by Raja Muhammad Hanif, the learned counsel for Mst. Attar Jan, so far as the same pertained to the objection of non-filing of the copy of the decree sheet of the trial Court before the Additional District Judge was concerned. He has further argued that agreement/dower deed, dated 7th Magh, 2000 Bk., Exh.DC/5, is a fake document and, thus, it cannot be held on its basis that the land in dispute was transferred to Mst. Resham Jan by her husband, Muzaffar Khan, in lieu of dower. The learned counsel has stressed that as the appeal of Mst. Resham Jan before. The Additional District Judge was incompetent for failure to file the copy of decree sheet, her appeal before the High Court would also be deemed incompetent. He has also argued that the copy of the judgment of the trial Court was also not filed alongwith the memorandum of appeal filed in the High Court which was mandatory. The learned counsel has submitted that the aforesaid point was also agitated before the High Court but the same was not resolved. The learned counsel has cited following authorities in support of his contentions:--- ' In a case reported as Muhammad Latif Butt v. Muhammad Usman 1999 YLR 704, it has been held that non-compliance of rule 1 of Order XLI, C.P.C. Is fatal to the appeal filed before the High Court and the same is liable to be rejected on this sole ground. Identical view was held in a case reported as Muhammad Amin Shah, v. Mehtab Din PLD 1996 SC (AJ&K) 11.
' In a case reported as Lutufur Rehman v. Zahoor PLJ 1999 SC 204, it has been held that the Court can refuse to raise, presumption under Article 100 of Qanun-e Shahadat, 1984 if the circumstances of a case so warrant. It is discretionary with the Court to raise the presumption of correctness under the aforesaid provision; if the circumstances of a case show' that the document which is 30 years old is doubtful, the Court may refuse to raise presumption of correctness.
' In a case reported as. Mst. Fazal Bibi v. Ghulam Hussain 1980 CLC 789, it has been held that under rule 33 of Order XLI, C.P.C. a party can protect the judgment and decree of Court despite the fact that it failed to file appeal or cross-objections in the Court concerned.
6. In reply, Syed Azad Hussain Shah, Advocate, the learned counsel for Mst. Resham Jan, respondent, has controverted the arguments raised on behalf of the learned counsel for the appellants. He has argued that the moot point in the case is as to whether the sale made in lieu of dower is pre-emptible under Muslim Law. The learned counsel has argued that it is well-settled principle of law that such a sale cannot be pre-empted as being in nature of a gift. He has further contended that the High Court has rightly refused to allow the objection that the appeal filed before the Additional District Judge filed by Mst. Resham Jan was incompetent on the ground that the same was not accompanied by the copy of the decree sheet of the trial Court because same was not raised before the Additional District Judge. The learned counsel has further contended that the Additional District Judge has decided the appeal filed by Mst. Resham Jan on merits but no objection was raised before him that as the memorandum of appeal filed before him did not accompany the copy of the decree sheet, the same cannot be decided on merits. He has argued that the point was raised for the first time before the High Court which was not rightly entertained, especially so when the Additional District Judge decided the =appeal filed by Mst. Resham Jan on merits. He has further contended that the private partition does not create an exclusive title in favour of a co-sharer; the land remains joint as long as it is not regularly partitioned by metes and bounds. He has also submitted that the presumption of correctness was rightly raised regarding dower deed, dated 7th Magh 2000 Bk. He has argued that the said document was referred to in the sale-deed which was executed in the year 1975 by Muzaffar Khan in favour of Mst. Resham Jan. The learned counsel has further argued that the said document has not been challenged by the appellants by filing a replication and all the Courts below did not doubt its authenticity. He has also argued that authorities cited on behalf of the appellants have no application to the present case as being distinguishable. He has cited following authorities in support of his contentions.
' In a case reported as Rehmat v. Muhammad Suleman 2001 M LD 364, it has been held that private partition does not change the nature of joint property and the same remains joint until and, unless it is partitioned by the Revenue Authorities according to the Land Revenue Act.
' In a case reported as Muhammad Hanif v. Muhammad Latif Khan 2001 M LD 493, it has been held that in absence of material to the contrary, the Court is justified to raise presumption of correctness regarding a document which is 30 years old.
' In cases reported as Gulzar Khan v. Mst. Shahzad Bibi PLD 1974 SC 204 and Muhammad Afsar Khan v. Muhammad Rashid PLD 1986 Azad J & K 196, it has been held that sale by husband to the wife in lieu of dower is not pre-emptible.
7. We have given due consideration to the arguments raised at Bar. The contention of Raja Muhammad Hanif Khan, the learned counsel for Mst. Attar Jan, that she was not impleaded as a party in the appeal filed by Mst. Reshman Jan before the High Court was raised for the first time in this Court during the course of arguments; the same was not raised even in the concise statement filed on behalf of Mst. Attar Jan, appellant. It may be observed that this Court has repeatedly held that even a law point which is not raised in the concise statement filed by a party cannot be allowed for the first time during the course of arguments. Even otherwise, Mst. Attar Jan, appellant, had filed cross appeals before the Additional District Judge and then High Court. The said appeals and one filed by Mst. Resham Jan, respondent, were disposed of through a consolidated judgment; even otherwise she was not a necessary party to be impleaded in the appeals filed by Mst. Resham Jan, respondent, because Mst. Attar Jan, appellant, was not a party in the suit of pre-emption in which pre-emption decree was passed in favour of Muhammad Haneef and others against which Mst. Resham Jan filed appeals; the suit filed by Mst. Attar Jan for the cancellation of the sale-deed executed in favour of Mst. Resham Jan was dismissed by the trial Court; her appeal was also dismissed by the Additional District Judge. Consequently, neither any appeal was filed against her nor she was necessary party in the appeal filed by Mst. Resham Jan in preemption case.
8. The contention of the learned counsel for Mst. Attar Jan and Muhammad Haneef and others regarding the failure to append the copy of the decree sheet with the appeal filed before the Additional District Judge renders the appeal before the Additional District Judge incompetent is also not sustainable in view of the fact that the point was not raised before the Additional District Judge; the Additional District Judge dismissed the appeal filed by Mst. Resham Jan on merits. No law has been cited that if an incompetent appeal is decided by the District Judge without objection by a party, the High Court is bound to allow such objection if raised before it. Thus, we are of the opinion that the High Court has rightly refused to allow the objection regarding non-filing of the copy of the decree sheet on the grounds which have been enumerated in paragraph 9 of its judgment. Poi convenience, paragraph 9 of the judgment of the High Court in reproduced as under:- "9. As the contention of the learned counsel for the respondents is concerned that the appeal filed by Mst. Resham Jan before the District Judge did not contain the copy of decree sheet and it was liable to be dismissed on this ground. Therefore, the present appeal is not maintainable. It has no substance for the following reasons:-
(a) No doubt that the memo. Of the appeal before the District Judge must have been accompanied by the copy of the decree and the judgment, if at all it was not accompanied by the decree sheet even then this point was not agitated before the learned District Judge. Therefore, the case PLD 1996 SC (AJ&K) 11 referred by the learned counsel for the appellant is not applicable to the present case.
(b) There is no finding of the learned District Judge on this point because it was abandoned by the learned counsel for the respondents and the points which have been abandoned by the learned counsel for the respondents before the lower Court cannot be agitated at this stage.
(c) The learned District Judge has dismissed the appeal of the appellant, but he has not dismissed the appeal on the ground that it was not accompanied by a copy of decree sheet and if the respondents have any objection, then they should have filed the appeal. Neither the appeal has been filed, nor the cross-objections,
(d) Now when no appeal has been filed by the respondents against the judgment of the learned District Judge then now the present appeal of the appellant could not be dismissed on the ground that the appellant did not file the decree sheet along with the appeal before the District Judge."
We fully endorse the view taken by the High Court in the matter and hold that the High Court has rightly refused to allow the aforesaid point before it. The authorities relied upon by the counsel for the appellants are distinguishable and are not applicable to the present case.
9. It may be observed here that so far as the case of Mst. Resham Jan that land was transferred to her in lieu of dower is concerned, that has not been seriously disputed by the appellants, herein; even the trial Court has observed in its judgment that it is admitted fact that the land was transferred to Mst. Resham Jan in lieu of her dower. Therefore, it is too late in the day to argue before this Court that in fact the land in dispute was not transferred to Mst. Resham Jan in lieu of dower. There is also nothing on the record that the land transferred by Muzaffar Khan in favour of Mst. Resham Jan was in excess of his share. The Revenue Record clearly shows that' the land is joint property and was in the joint possession of the owners. Even otherwise,- the private partition did not debar Muzaffar Khan to transfer the land within his share.
' In the light of what has been stated above, finding no force in the above entitled appeals, they are hereby dismissed with no order as to the costs.