' MUHAMMAD YUNUS SURAKHVI, J.--- This appeal, by way of leave of the Court, has been directed against the judgment, dated 12-5-2001 and decree, dated 14-5-2001 passed by the High Court, whereby Appeal No,43 of 2000 filed by Muhammad Azam and others was accepted, however, both the suits stood dismissed.
2. The necessary facts, giving rise to the present appeal, are that respondent, Muhammad Azam, instituted a suit No,252 for perpetual injunction pertaining to land measuring 2 Kanals and 11 Marlas, comprising Khewat Nos.151/143, Khata Nos.755/1920 to 764/1759-min, Survey No,1079, situate in village Channi Thothal on 8-10-1997, while Muhammad Hussain and another, appellants herein, instituted a declaratory Suit No,289 against Muhammad Azam, Muhammad Yar and Muhammad Iqbal, respondents herein, regarding the suit-land and for cancellation of sale-deed executed in favour of respondent No,1, Muhammad Azam by respondents Nos.2 and 3, Muhammad Yar and Muhammad Iqbal on 8-7-1997, in the Court of Senior Civil Judge, Bhimber on 31-12-1997.
3. The trial Court consolidated both the suits and issues arising out of the pleadings of the parties were framed. Both the parties led evidence and after hearing them Suit No, 289 filed on behalf of Muhammad Hussain and another against Muhammad Azam and others was decreed, while Suit No,252 filed on behalf of Muhammad Azam, respondent Nc.1 herein, against Muhammad Hussain and another, appellants herein, :vas dismissed by the trial Court on 29-1-2000. Two separate appeals were filed by Muhammad Azam and others against Muhammad Hussain and another on 27-4-2000 before the District Judge, Bhimber which were also dismissed. Feeling aggrieved by the judgment and decree of the District Judge, dated 27-4-2000 Muhammad Azam and others, respondents herein, filed two separate appeals before the High Court. A learned single Judge in the High Court accepted Appeal No,43 of 2000 filed by Muhammad Azam and others, respondents herein, while other Appeal No,45 of 2000 filed by Muhammad Azam, respondent No,1 herein, was dismissed. However, the suits filed by both the parties stood dismissed vide the impugned judgment, dated 12-5-2001 and decree, dated 14-5-2001. It is the aforesaid judgment and decree of the High Court which are the subject-matter of appeal.
4. In support of appeal it was vehemently contended by Ch. Muhammad Afzal, the learned counsel for the appellants, that the judgment and decree passed by the High Court are patently illegal, against law and facts of the case. The High Court, according to the learned counsel, fell in error in accepting the appeal of respondents. The learned counsel contended that the sale-deed was executed in favour of respondents without delivery of possession, therefore, the decree could not be passed against the appellants in favour of respondents. It was also pressed into service by the learned counsel for the appellants that the possession of land in dispute is with the appellants and this fact stood admitted by the respondents. Thus, the High Court fell in error in accepting the appeal of respondents. The learned counsel also contended that the statement made by Raja Muhammad Siddique, the learned counsel representing the appellants before the High Court, to the effect that both the suits filed on behalf of parties were liable to be dismissed, as the appellants could not prove their ownership and that they were simply tenants-at-will in the suit-land, was without any lawful authority as the appellants did not give him any authority to make such a statement, as such the impugned judgment and decree are liable to be set aside. Tne learned counsel also contended that Muhammad Yar and others filed a suit for possession of the suit-land which was dismissed on 2-10-1997 as such the possession of the appellants in the suit-land stood admitted by Muhammad Yar and others, respondents herein. Similarly he pointed out that on behalf of one Shehbaz Khan, a gift-deed was executed including the share of Shamilat in favour of the appellants on 10-5-1997 which has been placed on record of this Court at page. No,41 of the paper book. Similarly the learned counsel referred to file No,289 wherein at page 16 of Khasra Girdawari is appended which shows the possession of the appellants.
5. Raja Hassan Akhtar, the learned counsel for the respondents, contended that he did make a statement like Raja Muhammad Siddique that both the suits filed by the parties were liable to be dismissed as in the suit filed by Muhammad Hussain and another, appellants herein, their possession was in their capacity as tenants-at-will. Similarly in the other suit filed by Muhammad Azam, respondent No,1 herein, which was a suit for permanent injunction, the decree in the same could not have been granted because of lack of possession. The learned counsel for respondents also contended that Raja Muhammad Siddique, the learned counsel representing the appellants before the High Court, was fully justified to make the statement before the High Court to the effect that the suit filed by the appellants was not maintainable as in the power-of-attorney he was given wide powers to make any statement and even to admit the claim of opposite party, nevertheless the statement made by the learned counsel for the appellants was in accordance with factual position.
6. We have given our due consideration to the arguments advanced by the learned counsel for the parties and perused the relevant record carefully. The learned counsel for the appellants placed reliance on the attested copy of a gift-deed which was executed by one Shehbaz Khan in favour of the appellants for one Kanal of land including the share of Shamilat on 10-5-1997. Similarly he also relied on a Khasra Girdawari which is available in File No,289. Both these documents were not tendered in evidence before any of the Courts below nor additional evidence was sought for by the appellants, therefore, the documents which are not part of any of the Courts below cannot be taken into consideration at this stage.
7. So far as the merits of the case are concerned, it is established from the record as well as the findings of the High Court that the trial Court as well as the First Appellate Court dismissed the suit filed by Muhammad Azam, respondent No,1 herein, on the ground that before execution of sale- deed by Muhammad Yar and another in his favour, no possession was obtained by him from the Collector District, Bhimber. It was also observed by the Courts below that the suit earlier filed by Muhammad Yar and another, vendors, for possession of suit-land was dismissed for non- prosecution and thereafter the sale-deed in favour of Muhammad Azam was executed.
8. The cross-suit filed by Muhammad Hussain and another seeking a declaration that they were owners in possession of suit-land was dismissed on the ground that no record with regard to their ownership was produced as they were shown in possession of suit-land as tenantsat-will.
' In the light of what has been stated above, finding no force in this appeal, the same stands dismissed with costs. The High Court committed no illegality in dismissing both the cross-suits, as such the impugned judgment and decree passed by the High Court stand upheld.