2019 PLP 33 (CLCN)

RAJA SAEED AKRAM KHAN, J.

This appeal by leave of the Court has been directed against the judgment and decree of the High Court dated 27.07.2016, whereby, the appeal filed by the respondents has been accepted.

2. The facts forming the background of the instant appeal are that Guldad Khan (deceased), and Faiz Ali Khan (deceased), ancestors of respondents Nos.2 to 7, herein, filed a suit for declaration in the Court of Sub-Judge, Sehnsa, alleging therein, that Muhammad Saleem, appellant No.8, herein, transferred the land comprising survey Nos.499, 500 and 501 (old), measuring 45 kanal, 2 marla, situate at Village Garhota, Tehsil Sehnsa, District Kotli, to Gulbahar Khan, ancestor of appellants Nos.1 to 7, herein, on 30.09.1966, through a gift-deed. It was alleged that the land in dispute is shamilat deh land which is in possession of the plaintiffs and has not been partitioned as yet, therefore, the gift-deed and the mutation sanctioned on the strength of the same are illegal and liable to be cancelled. The suit was contested by the defendants by filing written statement, wherein, they refuted the claim of the plaintiffs. The trial Court, after conducting necessary proceedings, decreed the suit vide its judgment dated 31.08.1999. Feeling aggrieved from the judgment and decree of the trial Court, the ancestor of appellants Nos.1 to 7, herein, Gulbhar Khan (deceased), filed an appeal in the Court of Additional District Judge, Sehnsa which was accepted and the suit was dismissed vide judgment and decree dated 10.02.2005. Feeling dissatisfied by the judgment and decree passed by the first appellate Court, the plaintiffs filed an appeal before the High Court which was accepted and the case was remanded to the trial Court. The judgment of the High Court was challenged before this Court by way of appeal, which was accepted and a direction was issued to the High Court to decide the case on merits. On remand of the case, the learned High Court after hearing the parties accepted the appeal and while setting aside the judgment and decree passed by the first appellate Court upheld the judgment and decree passed by the trial Court through impugned judgment and decree dated 27.07.2016, hence, this appeal by leave of the Court.

3. Mr. Abdul Majeed Mallick, Advocate, the learned counsel for the appellants, argued that the impugned judgment passed by the High Court is based on misreading and non-reading of the record as well as mis-interpretation of the statutory provision of law which is not sustainable in the eye of law. He submitted that the learned High Court accepted the appeal on the strength of such document which' was not tendered in evidence. He added that it is an admitted position that the evidence of both the parties were closed and the document, i.e. jamabandi, pertaining to the year 1996-97, was not part of the record at that time but surprisingly later on, the judgment was passed by the trial Court on the strength of that document. The learned counsel while referring the note written by Patwari upon the aforesaid jamabandi, submitted that on the basis of this note the learned High Court has held that the gift-deed was executed excess to the share. He forcefully contended that the learned High Court without adhering to that the document which was not tendered in evidence or was not part of the record even at the time of final arguments and cannot be read in evidence, disturbed the well reasoned judgment of the first appellate Court.

4. On the other hand, Ch. Muhammad Mumtaz, Advocate, the learned counsel for the plaintiff-respondents, strongly controverted the arguments advanced by the learned counsel for the appellants. He submitted that the land in dispute is shamilat deh land which could not be transferred before partition through sale or gift-deed. He contended that it has been proved from the record that the gift-deed was executed in excess of the share which is not permissible under law. He lastly submitted that if the document referred to by the learned counsel for the appellants, i.e. jamabandi, pertaining to the year 1996-97, is ignored even then sufficient material is available on record for cancellation of the gift-deed, therefore, the argument of the learned counsel for the appellants in this regard has no substance and this appeal is liable to be dismissed.

5. We have heard the arguments and gone through the record made available along with the impugned, judgment. The crucial point agitated by the learned counsel for the appellants, in support of appeal, is that the learned High Court has passed the impugned judgment while relying upon such document which was not tendered in evidence or brought on record in accordance with law. To appreciate the argument, we cautiously examined the record. From the perusal of the judgment of the High Court as well as of the trial Court it reveals that both the Courts placed sole reliance on a jamabandi, pertaining to the year 1996-97. It demonstrates from the record that the trial Court heard the final arguments on 11.08.1999, whereas, on the aforesaid jamabandi the date of production has been mentioned as 27.08.1999, after the final arguments. How this document was made part of the record; in this regard the interim orders of the trial Court are quite silent. On the date, on which the alleged jamabandi was produced before the trial Court, the case was actually fixed for decision and the trial Court passed following order on the said date and has not even mentioned that any document has been produced before the Court:- The learned High Court at paragraphs Nos.9 and 10 of the impugned judgment has discussed the aspect of production of jamabandi at belated stage and thereafter, while reproducing Order XIII, Rule 2, C.P.C., has considered the same as a relevant documentary evidence. In the statutory provision, i.e. Order XIII, Rule 2, C.P.C. although, it has been provided that the Court is empowered to receive the documentary evidence at any subsequent stage if good cause is shown by a party, but it has also been mentioned in the statutory provision that the Court is bound to record the reason for receiving such documentary evidence at subsequent stage. In the case in hand, the situation is quite otherwise as no reason whatsoever has been assigned by the trial Court for receiving the document at subsequent stage, even it has not been mentioned in the order sheets that any document has been placed before the Court. Although, the learned High Court has reproduced Order XIII, Rule 2, C.P.C., in the impugned judgment, however for better appreciation the same is reproduced again which reads as under:- "Effect of non-production of documents.

No documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements of rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof; and the Court receiving any such evidence shall record the reasons for so doing." After going through the statutory provision, we agree with the stance taken by the learned counsel for the appellants that the learned High Court while considering the jamabandi in question, as a relevant documentary evidence, has misinterpreted the statutory provision of law. Nothing is available on record to show that the jamabandi in question was in the knowledge of the opponent party; therefore, in such situation the reliance could not be placed upon the same. As the trial Court as well as the learned High Court has passed the judgments while relying upon such document, which in view of the admitted facts could not be read in evidence, therefore, we are constrained to hold that the judgments of both the Courts below are bad in law which cannot be upheld.

6. The learned counsel for the respondents during the course of arguments submitted that if the jamabandi in question, is ignored even then sufficient material is available on record for cancellation of gift-deed dated 30.09.1966. However, keeping in view the peculiar circumstances of the case, discussed in the preceding paragraph, we do not incline to go into the other material made available on record rather deem it proper to declare the jamabandi in question as inadmissible and while setting aside the judgments of the Courts below the case is remanded to the trial Court with the direction to decide the same afresh after providing fair opportunity of hearing to the parties within a period of 4 months positively from the date of communication of the judgment. This appeal stands accepted in the manners indicated above with no order as to costs. ZC/16/SC(AJ&K) Case remanded.