1990CLC177 (PLP)

Javaid Akhtar and Abdul Basit for Appellants. Shahid Ahmad Rathore for Rcspondent. This second appeal is directed against the judgment and decree of the District Judge, Kotli, dated 27‑2‑1986, whereby the appeal of the appellants against the judgment and decree of the Additional Sub‑Judge, Kotli, passed on 27‑2‑1985 was dismissed.

2. The brief facts giving rise to this appeal are that Safdar All and Muhammad Sadiq, appellants, instituted a suit on 20‑5‑1969 against oa:e Sakhi Muhammad in the Court of Sub‑Judge, Kodi, in which declaration was sought to the effect that their adverse possession on the Shamilat Del. 'land measuring 150 kanals out of survey number 131, situate in village Kenthi, Tehsii Kotli, had ripened into ownership and that the entries in respect of the said land in the Revenue Record prior to Rabi, 1964, were void and ineffective on their rights.

3. The case of the appellants was that they had purchased the suit land from Sakhi Muhammad by oral transaction in the year 1956 and since then they are in possession of the same in their own right.

4. On the date of the institution of the above suit, Sakhi Muhammad, defendant therein, filed written statement in which he admitted the claim of the appellants, as a result of which the trial Court passed the consent decree prayed for vide its judgment and decree dated 20‑5‑1909.

5. Sher Muhammad, whose legal representative is Muhammad Afzal respondent, filed on 21‑10‑1981 a suit against the appellants in the Court of Additional Sub‑Judge, Kotli, wherein he prayed for the grant of a declaration that the above consent decree in file No.291 being unlawful, without jurisdiction and against facts and law, was void and ineffective against his and pro forma defendants' rights and that the Mutation No.366 of village Kenthi sanctioned on its basis and the subsequent entries in Misl‑e‑Haqiyyat for 1970‑71 in respect of the suit land were also incorrect, unlawful and liable to cancellation. As a consequential relief, the decree for the possession of the suit land was also asked for.

6. The appellant‑defendants resisted the above suit on the grounds that the suit was barred by limitation; that the plaintiff‑respondent had no cause of action and that the decree of adverse possession as well as the mutation and the entries in the record of rights in respect of the suit land in their favour were correct and lawful.

7. The trial Court after framing the necessary issues, recording the evidence produced by the parties in respect thereof and hearing the arguments of the learned Counsel for the parties, decreed the suit of the respondent vide its judgment and decree dated 27‑2‑1985. The appellant‑defendants went in appeal against the above judgment and decree before the District Judge, Kotli, but the same was dismissed vide the judgment and decree impugned in this appeal.

8. This Court had dismissed this appeal vide its judgment and decree dated 10‑7‑1986, but on appeal, the Supreme Court set it aside and remanded the case back with the direction to decide all the questions raised before it including that of limitation after hearing the parties.

9. I have heard the learned Counsel for the parties and have also gone through the record of the case. It is contended by the learned Counsel for the appellants that the suit of the respondent was barred by limitation as under Article 91 of the Limitation Act, it could only be brought within three years from the date of the passing of the decree dated 20‑5‑1969 but the same was filed about 12 years after the said date. The learned Counsel for the respondent, on the other hand, has contended that in this case the question of the suit of the respondent being time‑barred does not arise as the consent decree challenged in it was obtained by fraud in collusion with Safdar Ali, defendant therein without impleading Sher Muhammad, the father of the respondent, who being an owner of land in the village in which the suit land, which is Shamilat‑e‑Deh, is situate, was a necessary party It is thus contended that the impugned consent decree was void ab initio and nullity against Sher Muhammad deceased by reason of having been passed without impleading him in the suit in which it was passed and, as such, no period of limitation was fixed for filing a suit for setting it aside. It is further contended by him that in case his above contention does not prevail, even then the suit of Sher Muhammad, deceased, predecessor‑in‑interest of the respondent, against the appellants was within time having been filed within six years from the date of the knowledge of the said deceased about the passing of the decree impugned therein as Article 11. tl and not 91 of the Limitation Act was applicable to it. In support of his above contention, he has referred to P L J 1974 Baghdad‑ul‑Jadid 88, P L D 1974 Lahore 434, P L D 1975 Lahore 707 and P L D 1975 S C 624.

10. I have given my due consideration to the above contentions of the learned Counsel for the parties. The appellants, in my view, have failed to prove that the suit of Sher Muhammad deceased against them was barred by limitation. As would be seen later on in this judgment, Sher Muhammad deceased was an owner of land in the estate in which the Shamilat‑e‑Deh land in respect of which the consent decree was passed in favour of the appellants is situate and, as such, no suit of adverse possession regarding it was competent without making him and other owners of the land in the estate as party to it. In this view of the matter, any consent decree obtained by the appellants against Sakhi Muhammad was a nullity A against Sher Muhammad, deceased, and other land owners in the estate which could simply be ignored by the aforesaid persons and consequently no question of limitation would arise for instituting a suit by them for getting it declared as void and ineffective as against their right in the suit land. The above proposition of law finds support from the authorities referred to by the learned Counsel for the respondents. Thus, an objection as to the suit of Sher Muhammad deceased having been filed after the expiry of period of limitation is of no substance as no such objection could stand in his way of seeking legal remedy against an ab initio void decree.

11. However, apart from the above reason, the suit of the respondent was quite within time in view of the provisions of Article 120 of the Limitation Act, which, in my opinion, would be otherwise applicable in the case if the suit of Sher B Muhammad deceased was required to be governed by any period of limitation. The contention of the learned Counsel for the appellants that Article 91 of the Limitation Act governs the suit of Sher Muhammad deceased, is not tenable as the said Article is applicable in a case where an instrument for which no pariod of limitation is otherwise prescribed in the said Act, is sought to be cancelled or set aside. In the instant case, Sher Muhammad deceased had not prayed for the setting aside of any instrument but had asked for declaring the consent decree passed by a Court as well as the mutation of the suit land sanctioned on its basis to be void and ineffective against his rights.

12. In view of issue No.6, it was for the appellants to prove that the suit of Sher Muhammad deceased was time barred but they have failed to discharge the above onus of the proof. There is nothing on the record to show that Sher Muhammad deceased had filed the suit against them beyond the pariod of six years from the date of his obtaining the knowledge of the consent decree under discussion having been passed in favour of the appellants against Sakhi Muhammad. Muhammad Afzal respondent, in his evidence before the trial Court, has stated that the passing of the decree in favour of the appellants had come to hit knowledge in 1981_ This statement stands unrebutted as none of the witnesses of the appellants, including Safdar Ali appellant, has, in his evidence, said any thing as to the date on which Sher Muhammad deceased came to know of the passing of the consent decree impugned in his suit. Under Article 120 of the Limitation Act, a suit for setting aside the said decree could be instituted Within the period of six years from the date of the knowledge of its passing. Thus the suit of Sher Muhammad was quite within time having been filed within the prescribed period from the date of knowledge of the impugned decree to him. Both the Courts below have come to the concurrent finding that the suit of the respondent's predecessor‑in‑interest against the appellants was not barred by limitation and for the reasons stated above, I do not find any ground to disagree with them or interfere with their above finding.

13. It next contended by the learned counsel for the appellants that Sher Muhammad deceased, who is now represented by Muhammad Afzal, respondent, had no cause of action to file the suit against the appellants because he was not a land‑owner in the estate and was only `Maalik Qaabiz' as the entries in the Jemabandi for 1966‑67 filed with the suit show. I find no merit in this contention. It is undisputed that Sher Muhammad and other pro forma defendants in the suit are land‑owners in the estate in which the suit land is situate. The witnesses of the appellants, including Safdar Ali appellant, have admitted in their evidence before the trial Court that Sher Muhammad deceased and the pro forma defendants in the suit were land‑owners in the estate in question. In view of their above admission, the counsel for the appellants cannot contend that Sher Muhammad deceased not being an owner in the estate, could not file the suit against the appellants for the declaration that the consent decree obtained by them against Sakhi Muhammad was void and ineffective against his rights. Apart from the above admission appearing in the evidence of the appellants itself this fact of Sher Muhammad deceased being a land‑owner in the estate concerned is established even otherwise from the record of the case. Sher Muhammad , ad was ‑‑occupancy tenant in the astate and had become owner in it after the enforcement of the Land Reforms Ordinance in the year 1960. According to the definition of "land‑owner" as given in the Azad Jammu and Kashmir Grant of Khalsa Waste E Land as Shamilat‑e‑Deh Act, 1966, occupancy and sub‑occupancy tenant who has acquired or is entitled to get proprietary rights under the Azad Jammu and Kashmir Land Reforms Act, 1960 or any other law, is a land owner. Both the Courts below have come to the concurrent finding that he was a land‑owner in the estate and, as such, entitled to share in the Shamilat‑e‑Deh in proportion to his ownership in the astate. This being a finding of fact, cannot be disturbed in second appeal unless it is found to have been based on no evidence or misreading F or non‑reading of evidence but the above finding does not suffer from any such defect in this case. Even the Supreme Court in para. 4 of its judgment whereby it has remanded this appeal back to this Court for fresh decision, has held Sher Muhammad deceased to be land‑owner in the estate and entitled to Shamilat‑e Deh according to his share. It would be appropriate to reproduce the following extract from the above judgment: "All the Courts below concurrently found that Sher Muhammad, who is now represented by Muhammad Afzal, respondent, being an owner in the estate held the share in the `Shamlat‑Deh' land which is the subject of controversy and the consent decree of this land passed in favour of the appellants on 20‑5‑1969, without impleading Sher Muhammad, cannot operate against Sher Muhammad in the land. This finding, as held by the High Court, gets stamp of truth from the entries of the copies of `Jamabandi' for the year 1966‑67, wherein Sher Muhammad is recorded as. The record examined by the learned Judge in the High Court showed that Sher Muhammad was originally an occupancy tenant of the aforesaid land and after the enforcement of the Land Reforms Act he became proprietor of the said land; and he was recorded as such in the record of rights pertaining to the year 1970‑

71. Thus, it becomes abundantly clear that Sher Muhammad, after the acquisition of the proprietary rights under the Land Reforms Act, had assumed the character of an owner and was entitled to `Shamlat Deh' according to his share and his share could not be affected by any compromise decree passed in absentia. The finding of the High Court to that effect has no infirmity to be questioned.'

14. Both the Courts below have given concurrent finding that Sher Muhammad deceased was a necessary party in the suit filed by the appellants against Sakhi Muhammad and that the consent decree passed in the above suit G was collusive and against facts as the appellants were not in adverse possession of the suit land. The above finding is based on evidence and, as such, cannot be interfered with. The entries of the copy of Jamabandi for the year 1966‑67 filed with their suit by the plaintiffs and Ex.PM/1 would show that the suit land was Shamilat‑e‑Deh Hasb Rasd Khewet but was occupied by co‑sharer Fazal Dad. Thus, according to the above entries, neither the appellants nor Sakhi Muhammad was occupying the suit land on the date of the institution of the suit by the plaintiffs against Sakhi Muhammad. So the question of the appellants' being in adverse possession of it for a period of more than 12 years prior to the institution of their suit did not arise. The above copy of Jamabandi was obtained by Sakhi Muhammad for the purpose of effecting sale‑deed of the suit land. Not only that, even Safdar Ali appellant, in his evidence given as a witness, has categorically admitted that he had purchased the suit land from Sakhi Muhammad on the date of obtaining the consent decree and not before that. Thus, their plea in the plaint that they had purchased the suit land from Sakhi Muhammad in the year 1956 and since then were in its possession as owner, proves to be false and consequently the question of the appellants' alleged adverse possession on the suit land having ripened into ownership did not arise The above fact clearly shows that the appellants had obtained the decree in collusion with Sakhi Muhammad by misrepresenting the facts and perpetrating fraud on the Court as well. Sher Muhammad deceased and other owners in the estate, who are entitled to the share in the shamilat of the estate, were necessary parties in the suit for adverse possession because adverse possession is always against the owner of the suit land and not any other person. The decree of adverse possession obtained not against the owner of the land is not binding on such an owner and is a nullity in the eye of law. From the record even Sakhi Muhammad against whom the consent decree of adverse possession was obtained by the appellants, does not appear to be an owner in the estate concerned, with the result that he did not hold any share in the Shamilat‑e‑Deh, any decree of adverse possession against him was of no value and could not adversely affect the rights of the co‑sharers in the suit land.

15. For the reasons stated above, the decree of the trial Court and maintained by the first appellate Court so far it granted declarations in respect of consent decree dated 20‑5‑1969, mutation sanctioned and entries made in Misle e‑Haqiyyat in respect of the suit land sought in the suit of the respondent, is I perfectly lawful and is accordingly maintained. But so far it also grants the relief of delivery of possession of the suit land to the respondent, I am of the opinion that it cannot be upheld to that extent because in the facts and circumstances of the case, the respondent was not entitled to such a relief. Muhammad Afzal, respondent, in his statement before the trial Court, has admitted that he is in joint possession of the suit land. Similarly, his witnesses Muhammad Iqbal and Muhammad Qasim also testified to the effect that the suit land is in joint possession of all its co‑sharers. Thus when he is in joint possession of the suit land along with its other co‑sharers, the question of his obtaining the possession of the whole of the suit land does not arise. From the evidence on the record, the share of the respondent in the Shamilat‑e‑Deh cannot be ascertained and, as such, it cannot be said that his possession on the Shamilat‑e‑Deh is not to the extent of his share in it and he is entitled to some more such land. In view of what has been stated above, the judgment and decree of the trial Court as well as that of the District Judge passed on 27‑2‑1985 and 27‑2‑1986 respectively to the extent it granted declaratory reliefs prayed for in the suit, are maintained and this appeal to that extent is dismissed. But the judgment and decree of the trial Court and maintained by the District Judge whereby the possession of the suit land was also granted to the respondent, is set aside. In the facts and circumstances of the case, the parties shall bear their own costs throughout. AA/369/H.CA , Appeal partly allowed.