2015 PLP 400 (MLD)

SARDAR ABDUL HAMEED KHAN, J.

The captioned appeal has been filed against the judgment and decree passed by the learned Additional District Judge, Kahuta/Haveli camp Dhirkot dated 24-9-2002 whereby judgment and decree passed by the Civil Judge, Dhirkot on 2-3-2001 has been maintained. Precise facts of the case are that Predecessors of respondents, herein Gul Akbar Khan and Gul Ahmed Khan sons of Gul Dad Khan brought a suit for adverse possession in the Court of Sub-Judge, Dhirkot against defendants-appellants in respect of land comprising No. Khasra 841 measuring 3 Kanals 8 Marlas situated in village Kotli Tehsil Dhirkot District Bagh on 10-10-1984. The name of plaintiff No.2 Gul Ahmed Khan was struck off by the trial Court on 2-3-2001 in the light of an application filed by the counsel of plaintiffs dated 26-10-1999. It was averred that grand father of the plaintiffs namely Sardar Jhandal Khan forcibly occupied the said land in Dogra Regime and remained in continuous possession of the same. After the death of Sardar Jhandal Khan, father and uncles of plaintiffs occupied the land and thereafter as a result of family partition, the land was given to father of the plaintiffs who remained in possession as owner. It was claimed that Shamas Khan and Muhammad Akbar Khan predecessors of the defendants tried to get possession of the land but remained unsuccessful. It is stated that one Muhammad Afzal Khan, who was not present at the time of the dispute, came back and executed an agreement on 7-12-2003, B.K. in favour of plaintiffs whereby he acknowledged title as well as adverse possession of the plaintiffs. It was further averred that the possession of the plaintiffs has ripened into ownership and the respondents have no concern, whatsoever, with the land. Defendants converted the suit by filing written statements on 11-8-1985. A counter suit for possession was also filed by the appellants/defendants on 30-10-1990. This suit was controverted by the respondents, herein by filing written statement on 29-7-1991. The learned trial Court consolidated both the suits and framed issues in light of the respective pleadings of the parties. The parties led their evidence and ultimately the trial Court vide its judgment dated 2-3-2001, decreed the suit filed on behalf of Gul Akbar Khan whereas counter suit filed for possession on behalf of the appellants was dismissed. Feeling aggrieved from the judgment and decree, the appellants filed an appeal before the Additional District Judge, Dhirkot on 31-5-2001. The learned Additional District Judge, Dhirkot, vide his judgment and decree dated 29-4-2002, dismissed the appeal of the appellants, however, modified the impugned decree and judgment to the extent of the order of abatement of suit respecting one plaintiff in cross suit Mr. Nazir Khan, (deceased), hence, this second appeal. Ch. Amjad Ali, the learned Advocate appearing for the appellants, contended in his written arguments at length, that originally the suit was filed by predecessor of respondents herein and one Gul Ahmed Khan claiming joint adverse possession over the suit land and thereafter Gul Ahmed Khan withdrew his claim on 2-3-2001, thus in view of the changed position, it was enjoined upon the plaintiff to amend his plaint for inclusion of the whole claim failing which the suit for adverse possession was not maintainable and the conclusion reached at by the subordinate Courts is erroneous. The learned Advocate argued that as per revenue record parties were co-sharers, therefore, the possession of all co-sharers and no ouster can be claimed on the basis of an unregistered document which was not proved in accordance with the provisions of the Qanun-e-Shahadat Order, 1984 nor the same is incorporated in Revenue Record. The learned Advocate submitted that mere fact that the document is 30 years old, is not sufficient to hold that the same was properly executed, and it was enjoined upon the plaintiffs-respondents to prove the document by other corroborative evidence which is missing in the case, thus, the admission of Exh.PA in evidence is contrary to the settled principle of law of evidence. The learned counsel vehemently argued that by proper appreciation of the said document, it is proved that the document Exh.PA is bogus and fraudulent document which could not be taken under consideration, thus, both the Courts below fell in error while granting the decree. He contended that the judgment of the trial Court is based on no evidence rather is recorded on the basis of surmises and conjectures, hence, is liable to be reversed. In support of his submissions, the learned counsel relied upon the owing case law:-- (1) PLD 1962 AJ&K 23; (2) PLD 1981 AJ&K 66; (3) PLD 1983 SC (AJ&K) 89; (4) PLD 1984 SC (AJ&K) 108; (5) 1987 CLC 830; (6) 1993 SCR 335; (7) 2003 CLC 830; (8) 2004 SCR 321; (9) 2009 SCR 27; (10) 2010 SCR 280 and (11) 2011 SCR 280; Mr. Muhammad Yaqoob Khan Mughal, the learned Advocate for the other side has controverted the arguments and maintained in his written arguments that the appellants herein have not challenged the agreement Ex. PA in their suit for possession nor denied in the written statement, filed to the suit of the respondents herein, therefore, they are estopped to question the legality of the document and the same would be deemed to have been admitted. The learned Advocate submitted that the suit land was admittedly in possession of grandfather of the plaintiffs and thereafter remained in possession of their father during his life time and now the plaintiffs are in possession of the same which is supported by the agreement Ex. PA as well as entries in the revenue record. The learned advocate lastly argued that the concurrent findings of the facts reached at by the Courts below cannot be re-opened in second appeal merely on the ground that from the same record or evidence some other view is possible. The learned advocate placed reliance on case titled Khadim Hussain and others v. Mst. Sarwar Jan and others 1999 MLD 824 and following other case law:-- (1) 1982 CLC 1309; (2) PLD 1983 SC 62; (3) 1985 SCMR 1359; (4) 1983 CLC 16; (5) 1992 SCR 214; (6) 1994 SCR 151; (7) 1996 PLC (C.S.) 901; (8) 1997 MLD 2867; (9) 1999 CLC 828 (10) 1999 MLD 82; (11) 2001 MLD 493 and (12) 2002 PLC (C.S.) 1282 I have heard the leaned counsel for the parties and gone through the record of the case and case law referred to by the parties thoroughly. In an earlier round of litigation, this Court decided the controversy on the question of abatement and dismissed the appeal of appellants being abated in toto vide judgment dated 15-3-2005. However, the apex Court remanded the case in the light of this Court interim order dated 4-4-2004, which is reproduced as under:- "The learned Advocates for the parties have partly argued the case on the question of abatement. During the course of arguments both the learned Advocates submitted that the appeals may be disposed off on merits, therefore, the appeals are adjourned for further arguments on 20-5-2004." It deems appropriate to reproduce the above referred observation of the apex Court hereunder:- "In view of above, we feel persuaded to accept the appeal, set aside the impugned judgment and remand the case to the High Court for a fresh decision after hearing the learned Advocate for the parties on the point of abatement, and on merits as well, if so deemed proper. The appeal is accepted with costs." Keeping in view, the direction of the apex Court and order dated 4-4-2004, it is appropriate to decide the case on merits, as the parties are agreed too. Before discussing the case in detail, it deems proper to reproduce the following provisions of law to address the proposition in hand.

1. CIVIL PROCEDURE CODE ORDER VIII RULE 5 Every allegation of act in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability: Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission."

2. Qanun-e-Shahadat Order, 1984:

100. Presumption as to documents thirty years old. Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Explanation. For the purpose of this Article and Article 92, documents are (said) to be in proper custody they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances the particular case are such as to under such an origin probable." A perusal of the record reveals that two counter suits were filed in the Court of sub-Judge, Dhirkot with respect to land comprising Khasra No.841 measuring 3 Kanal 8 marlas situated in village Kotli, Tehsil Dhirkot District Bagh. One of the suit was filed by predecessor of Muhammad Gulzar Khan and others for adverse possession over the land, while the other one was filed by Iftikhar Hussain Khan and others claiming possession of the suit land. The trial Court consolidated both the suits. After framing issues, the parties were allowed to lead evidence pro and contra. At the conclusion of the proceedings, the trial Court vide judgment dated 2-3-2001, decreed the suit filed on behalf of Gul Akbar Khan whereas the counter suit filed on behalf of Iftikhar Hussain and others was dismissed. The claim of the appellants is that they are co-sharers, therefore, possession of one co-shares may be considered as possession of all co-sharers. A perusal of Exh.PA reveals that the same has not been challenged by Iftikhar Hussain Khan and others in their suit. The document which has not been challenged or rebutted would be deemed to have been admitted in light of Order VIII, Rule 5 of the C.P.C. The relevant portion of Exh."PA" is reproduced as under:-- This document is 30 years old and presumption of truth is attached to it because appellants have not challenged this agreement as forged in their pleadings. It is also proved from the revenue record that respondents have long and continuous possession over the suit land. The trial Court as well as the first appellate Court has appreciated the evidence in its true perspective. Neither any misreading or non-reading of evidence has been found while perusing the record nor any illegality or irregularity has been committed by the Courts below while passing the impugned judgment and decree in favour of Gul Akbar Khan, therefore, the judgment and decree passed by the learned Additional District Judge, Kahuta/Haveli Camp Dhirkot dated 29-4-2004 is hereby maintained. The crux of the above discussion is that, finding no force in this appeal, it is hereby dismissed with no order as to costs. AG/5/HC(AJ&K) Appeal dismissed.