2025 PLP 309 (MLD)

Chaudhary Khalid Rasheed, J.

The captioned appeal has been filed preferred the judgment and decree recorded by the learned District Judge Neelum dated 14.09.2019, whereby, judgment and decree recorded by learned Civil Judge Athmuqam dated 31.10.2018 has been maintained. Brief facts forming background of the instant appeal are, appellants herein filed a suit for declaration cum perpetual injunction against respondents herein in the Court of Civil Judge Athmuqam wherein it was pleaded that predecessor of the parties namely Raza Muhammad was owner of suit land who in his lifetime partitioned his land among his four sons namely Nabi Ullah, Akhbar Ullah, Saleh Muhammad and Ghulam Sarwar in equal shares. It was contended that father of the plaintiff No.1 Saleh Muhammad died in lifetime of his father Raza Muhammad, whereupon defendants started trespassing in the share of plaintiffs which is in the possession of plaintiffs. It was further contended that father of plaintiffs was given land comprising khewat No.09/09 measuring 20 kanals and 4 marlas out of which the plaintiffs are in possession of 12 kanals and 5 marlas of land whereas rest of 7 kanals and 19 marlas is in illegal possession of defendants. It was also stated that father of plaintiffs was given 11 kanals and 10 marlas from khewat No.02/02 and plaintiffs are in possession of 8 kanals and 12 marlas whereas, the defendants have forcibly occupied 2 kanals and 18 marlas land. Similarly, father of plaintiffs was given 10 kanals, 7 marlas and 6 sarsai of land from khewat No.01/02 which has been snatched by the defendants. It was also contended that plaintiffs have done enormous improvements in the suit land. Defendants, except defendant No.5 who admitted the claim of the plaintiffs by filing cognovit, contested the suit by filing written statement wherein the claim of plaintiff was refuted. The learned trial Court framed issues in the light of pleadings of the parties, provided them opportunity to lead evidence and after hearing pros and cons released the suit vide its judgment and decree dated 31.10.2018. Feeling aggrieved, respondents herein presented an appeal before District Judge Neelum on 26.01.2019. The learned first appellate Court after hearing parties, concurred with the findings of the trial Court and send away the appeal through impugned judgment and decree dated 14.09.2019, hence the captioned appeal. The learned counsel for the appellants reiterated the facts and grounds already agitated before the Courts below by submitted that father of plaintiffs was given his share by Raza Muhammad in his lifetime and the predecessor of plaintiffs Saleh Muhammad remained in possession of the land in the lifetime of his father Raza Muhammad, hence the plaintiffs as being the legal heirs of Saleh Muhammad are entitled to get their share from the property of Raza Muhammad given to their father Saleh Muhammad but the Courts below miserably failed to understand the in hand controversy and wrongly dropped the suit filed by plaintiffs herein. The learned counsel for the respondents supported the impugned judgments on all counts and prayed for the dismissal of the instant appeal. I have heard the learned counsel for the parties, gone through the record of the case with utmost care and caution. The moot point which is required to be determined by this court is as to whether the plaintiffs/appellants were entitled to get a share from the property of Raza Muhammad or not? It is an admitted position that Raza Muhammad had four sons and it is also not denied by the plaintiffs that Saleh Muhammad predecessor of plaintiffs died in the lifetime of his father Raza Muhammad, hence after the death of Raza Muhammad, the mutation was attested in favour of three sons namely Nabi Ullah, Akhbar Ullah and Ghulam Sarwar, so the Courts below accurately observed that as predecessor of plaintiffs Saleh Muhammad died in the lifetime of his father Raza Muhammad, hence the plaintiffs cannot claim a share from the inheritance of Raza Muhammad. Though it is not disputed that Raza Muhammad partitioned his property amongst his four sons but the private partition of the legacy of Raza Muhammad was not confirmed as was required by section 147 of the West Pakistan Land Revenue Act, 1967, thus has got no legal sanctity. Since the defendants have not claimed possession from the plaintiffs, hence the question of improvements by the plaintiffs in the suit land is irrelevant and if the defendants claims possession of the land from the plaintiffs then the plaintiffs can claim improvement but merely on the basis of improvements, the plaintiffs cannot be declared as the owners of the suit land, hence a decree for declaration cannot be passed in their favour. Though one of the defendants namely Ghulam Sarwar admitted the claim of the plaintiffs but the Courts below have rightly observed that if defendant No.5 has accepted the claim of the plaintiffs they may transfer the suit land in their names from him through any recognized mode and merely on the basis of admission of defendant No.5 the plaintiffs cannot be declared owners of the land. The Courts below have appreciated every iota of evidence adduced by the parties in a legal fashion and reached at a just conclusion which hardly requires any indulgence by this Court. It is also pertinent to mark that only the question of facts are involved in the captioned second appeal which have concurrently been decided by both the Courts below. It is a trite law that concurrent findings of facts cannot be reversed in the second appeal unless some apparent misreading, non-reading of evidence has been spotted by the appellant or flagrant violation of any statutory law has been committed by the Courts below. Reliance in this regard may be placed on 2022 SCR 416, wherein the Supreme Court of Azad Jammu and Kashmir at page 428 observed as under:- "The principle is that ordinarily the second appellate Court, such as this Court, would not interfere with the findings of fact recorded by the trial Court and confirmed by the first appellate Court. Second appellate Court under section 100, C.P.C., would overturn such findings and conclusions only in exceptional cases. The circumstances under which such intervention may legally be permissible or justifiable if it was established with absolute clearness that some oversight or error resulting in a miscarriage of justice was apparent in the way in which the Courts below had dealt with the facts, it must be established that Courts below clearly erred in the presence of a crucial documentary evidence or the principle of evidence had not properly been applied or the findings was so based on erroneous proposition of law that if that proposition be corrected, the finding will become meaningless and finally, it must be demonstrated that the judgments of both the Courts below were clearly wrong." As no misreading, non-reading of evidence or violation of any settled law has been pointed out by the appellants hence, in view of the settled precept of law second appeal is not maintainable. It is also not out of context to mark that an amendment has been effected in Transfer of Property Act, 1882 vide Transfer of Property (Amendment) Act, 2021 qua the children of son of the propositus have been declared entitled to get the share of their deceased father but the amendment has not been given a retrospective effect rather it has been blatantly mentioned in section 1 subsection (2) of the Act that it shall come into force at once, hence this amendment is also not helpful to the plaintiffs/appellants. The sum and substance of the above discussion is, finding no essence the instant appeal is hereby dropped. MQ//31-AJK. Appeal dismissed.