2019 PLP 2867 (YLR)

AZHAR SALEEM BABAR, J.

The above titled appeals have been filed against the judgment and decree passed by Additional District Judge Dhirkot dated 25.03.2010.

2. Facts leading to the instant appeal are that Mohammad Sharif Khan filed a suit for declaration along with perpetual injunction in the Court of Civil Judge Dhirkot pertaining to land comprising Khasra No. 217 measuring 1 kanal 06 marlas and Khasra No. 218 measuring 13 kanal 19 marlas total measuring 15 kanals 15 marlas situated at village Ghori Kair Khas Tehsil Dhirkot District Bagh. It was contended that the suit-land was owned by Suleman Khan. After the death of Suleman Khan, the suit-land has devolved upon plaintiff in three shares and one share has been transferred to his widows as legal heirs. So, they are owners of the suit-land now.

3. Suit was contested by the defendants by filing written statement wherein it was contended that the plaintiff has no cause of action to file the suit. It was further contended that the plaintiff has not impleaded the other co-sharers as party, so the suit is liable to be dismissed. It was next stated that Suleman Khan had alienated whole his share to Raja Afrasayab Khan via gift-deed.

4. Raja Afrasayab Khan also filed a suit for declaration by contending that mutation in the name of Mst. Hayara Begum has been attested who has died and her legal heirs have been impleaded as respondents Nos. 3 to

13. Suleman Khan transferred the land through gift-deed on 05.08.1999. It was contented that Suleman Khan, the donor alienated whole of his share in Village Ghori Kair Khas and Ghori Kair Barriyan through gift-deed registered on 05.08.1999 but the land under survey Nos. 217 and 218 measuring 15 kanal 15 marlas situated in village Ghori Kair Khas could not be included in the gift-deed because of clerical mistake.

5. The suit was also contested by defendant No. 1 through written statement wherein respondents Nos. 2 to 13 were proceeded ex-parte. It was contended that the plaintiff had no cause of action to file the instant suit. Suleman Khan had not transferred the land to the plaintiff so the suit is liable to be dismissed. Learned trial Court consolidated both the suits and following issues were framed in light of pleadings of the parties on 26.11.2007:--

6. After framing issues the parties were directed to lead evidence pro and contra. At the conclusion of the proceedings the learned trial Court decreed the suit filed by Mohammad Sharif Khan while the suit filed by Raja Afrasayab Khan has been dismissed. Feeling dissatisfied from the judgment Raja Afrsa Sayab Khan filed an appeal against Mohammad Sharif Khan in the Court of Additional District Judge Dhirkot and appellant Mohammad Sharif Khan also filed partial appeal in the Court of Additional District Judge Dhirkot. Learned Additional District Judge dismissed the appeal filed by Raja Afrasayab Khan and accepted partial appeal filed by Mohammad Sharif Khan, hence these appeals.

7. I have considered the arguments in the light of available record. Controversy between the parties relates to survey Nos. 217 and 218 situated in Village Ghori Kair Tehsil Dhirkot. Sulernan Khan Son of Ali Bahdar Khan alienated his land under survey Nos. 35, 159, 219, 511, 510, 158, 565, 566, 569, 567, 568, 572, 160, 32, 36, 38, 42, 173, 164, 163, 52, 51, 24, 193, 20 through a registered gift-deed to Raja Afrasayab Khan, the appellant herein. It is the contention of the appellant Raja Afrasayab Khan that Suleman Khan, the donor alienated whole of his share in Village Ghori Kair Khas and Ghori Kair Barriyan through gift-deed registered on 05.08.1999 but land under survey Nos. 217 and 218 measuring 15 kanal 15 marlas situated in village Ghori Kair Khas could not be included in the gift-deed because of clerical mistake. It has further been explained that a bare reading of phraseology of gift-deed reveals that the donor intended to alienate whole of his share in both the villages.

8. Raja Mohammad Imtiaz Khan learned Advocate appearing for Raja Afrasayab Khan, the appellant explained that the gift-deed includes a house which is situated in survey No.

218. He further stated that the donor had no other house in village Ghori Kair Khas. In this context, he extended his argument by stating that the appellant reconstructed the house situated in survey No. 218 after the Earthquake of the year 2005. He further maintained that the respondents have admitted in their written statement that survey Nos. 217 and 218 fell in share of Suleman Khan, the donor. Learned counsel objected to the maintainability of rival suit by contending that the suit-land has been mutated to Mohammad Sharif Khan and two widows of the donor but the widows have not been arrayed as defendants in the rival suit. He further emphasized that Mohammad Akbar has been mentioned as brother of deceased donor but he has also not been impleaded as defendant. It was further argued that possession of the appellant on the suit-land is admitted because Mohammad Sharif Khan seeks possession of land in the rival suit. Learned counsel argued that gift-deed dated 05.08.1999 should be read and implemented including in survey Nos. 217 and

218. In such situation, learned counsel argued that mutation No. 115 is liable to be set aside whereby legacy of Suleman Khan (late) has been alienated to Mohammad Sharif Khan and two widows.

9. On the other hand, Mr. Atta Ellahi Abbasi Advocate appearing for Muhammad Sharif Khan appellant came up with the stance that concurrent findings of the Courts below cannot be disturbed in second appeal. He asserted that the Courts below have recorded their findings on facts so the appeal filed by Raja Afrasayab is not competent. He relied on 2010 MLD 1980, 2004 SCR 510, 2006 SCR 19 and 2016 SCR 105 in support of his version. Learned counsel provided a copy of mutation No. 11 registered on 26 Harr 1968 Bik and a copy of Jamabandi of the year 1993 Bik and explained that the suit-land under survey Nos. 217, 218 with previous survey No. 132 stood alienated to Ali Bahadar Khan who happened to be father of Suleman Khan, the donor. In this way he explained that the suit-land was undoubtedly owned by Suleman Khan (late) and has rightly been mutated to his brother Mohammad Sharif Khan and two widows. It was argued that the gift-deed dated 05.08.1999 is a detailed document wherein all the survey numbers and Khewat numbers have been mentioned. Learned counsel is of the view that had the donor intended to alienate the suit-land through gift-deed, he would have definitely inserted these survey numbers in the gift-deed. He claimed that mutation No. 115 has been attested in accordance with law of inheritance and cannot be disturbed at the wish of rival appellant. He explained that Suleman Khan, the donor remained alive for more than two years after registration of gift-deed and he could have rectified the mistake if any, by executing another gift-deed of the land under survey Nos. 217 and

218. In his esteemed view, inaction of donor is an ample proof of the fact that he left this property for his legal heirs to be distributed in accordance with law.

10. It needs not to be stated that documentary evidence has a priority over the oral evidence. The 1st Appellate Court recorded that the suit-land is registered in the name of Azad Government and is not proved to be ownership of Suleman Khan, the donor. The Court below took a view that it was because of this reason that Suleman Khan (late) did not include the disputed survey numbers in the gift-deed. Learned Court explained its view that Suleman Khan, the donor was not even competent to alienate survey Nos. 217 and 218 through a gift-deed because he was not owner of the land. A perusal of mutation No. 11 attested on 11 1967 reveals that proprietary rights of Khalsa land under survey No. 132 measuring 15 kanal 13 marlas were alienated to Ali Bahdar and rent (Lagan) of mutated land was also thereby fixed in column No. 15 of mutation No.

11. It has been mentioned that the mutation has been attested at the behest of Court order dated 11 1967. Learned counsel appearing for Mohammad Sharif Khan appellant furnished a copy of Jamabandi of Village Ghori Kair for the year 1993 Bik wherein Ali Bandar Son of Nasar Ali has been entered as possessor of land by ascertaining a particular amount of rent ( ). So, it can be concluded without any hesitation that Ali Bahdar Khan owned survey Nos. 217, 218 which bore previous survey No.

132. Obviously, after death of Ali Bahdar Khan the land devolved on Suleman Khan, the donor who is father of Mohammad Sharif Khan, the appellant.

11. The question arises that whether Suleman Khan the donor intended to alienate land under survey Nos. 217 and 218 to Afrasayab Khan, needs to be resolved. Gift-deed dated 05.03.1999 is part of record of trial Court as Exh. "PA". It has already been mentioned that this is a detailed document comprising 5 pages and survey numbers along with khewat numbers have been mentioned in detail. The donor mentioned in the gift-deed in specific terms that besides other land he intends to alienate khewat No. 78 survey No. 38 and 42 measuring 7 kanal 11 marlas along with a marvelous house to the donee. The donor mentioned the house as and this marvelous house obviously fell in survey Nos. 38 and 32 Khewat No.

78. I can find a copy of Jamabandi of village. Ghori Kair Khas for the year 2001-02 regarding survey Nos. 217, 218 measuring 15 kanal 15 marlas on record as Exit. "DH" which does not mention any marvelous house. In the same way, copies of Khasragirdawari Exh. "DI" and Exh. "DJ" also do not find mention of a marvelous house. Although, a comprising 06 marlas has been mentioned in survey No. 218 in Khasragirdawri of the years 2001 to 2004 but his entry does not match with the words .

12. It may be stated here that Suleman Khan, the donor alienated more than 100 kanal of land to Raja Afrasayab Khan through gift-deed dated 05.08.1999 and left behind only 15 kanal 15 marlas of land under survey Nos. 217 and 218 for distribution to his legal heirs in accordance with legal shares but the donee is not ready to accept distribution of this land to the legal heirs. The act of donee can be termed as nothing short of greed of land. The gift-deed mentions that the donor alienated whole of his share in village Ghori Kair Khas and Ghori Kair Barriyan to the donee but non inclusion of survey Nos. 217 and 218 would lead to the conclusion that he never intended to alienate these survey numbers to the donee. It is logically understandable that a brother and two wives of the donor were alive at the time of execution of gift-deed. There is no evidence on record to prove that the donor had any interest of clash with his brother Mohammad Sharif Khan or with his wives. In such a situation, it islogical to assume that Suleman Khan (late) left a portion of his land for his legal heirs.

13. For the reasons afore discussed, suit filed by Raja Afrasayab Khan has rightly been dismissed by the Courts below. Concurrent findings on this point cannot be disturbed in second appeal. So far as suit filed by Mohammad Sharif Khan and other is concerned, it is noticed that the plaintiff impleaded sons of Mohammad Akbar Khan (late) as defendants. Although, Muhammad Sharif Khan plaintiff did not implead Mst. Hayara Begum and Mst. Anara Begum widows of Suleman Khan (late) as defendants. However, it does not affect the maintain-ability of suit because the plaintiff is competent to file a suit to the extent of his share which comes to be three shares out of four shares as per mutation No. 115.

14. So far as claim of appellant/ plaintiff Mohammad Sharif Khan regarding possession of land is concerned, the parties are co-sharer in the land and have a right to file partition proceedings before the competent Revenue Officer. A decree for specific possession cannot be delivered against a co-sharer, however, title of appellant/plaintiff Mohammad Sharif Khan stands established on the suit-land as per mutation No.

115. Nutshell of the above discussion is that both the appeals are dismissed with no order as to the costs. ZC/53/HC(AJ&K) Appeals dismissed.