P L D 2024 High Court (AJ&K) 9 (PLP)

CHAUDHARY KHALID RASHEED, J.

The captioned appeal has been filed against the judgment and decree recorded by the learned District Judge Neelum dated 17.06.2021, whereby, judgment and decree recorded by Senior Civil Judge Athmuqam dated 30.07.2019 has been maintained. Brief facts forming background of the instant appeal are, Mst. Hajiran Bibi respondent No.1 herein filed a suit for declaration cum possession against Bashir Ahmed and others in the Court of Senior Civil Judge Athmuqam empowered as Civil Judge Sharda wherein it was pleaded that father of plaintiff namely Fazal Hussain was owner/sharer in the land comprising survey Nos.1621 and 1623 renumbered as 281, 282, 283, 323, 324, 332 measuring 11 kanals. It was submitted that on the death of Fazal Hussain, he left behind plaintiff as sole daughter, Mst. Quresha Begum, widow and defendants Nos. 1 to 3 as brothers and mutation was also attested in the same manner, thus the plaintiff was entitled to get 4/8 share from the legacy of Fazal Hussain, which comes to 5 kanals and 10 marlas. It was further contended that few days before it came into the knowledge of the plaintiff that defendant No.1 has got registered a forged and fabricated gift deed dated 20.10.1997 on behalf of plaintiff and has got attested mutation No.28 in furtherance thereof which is illegal, fraudulent, forged, inoperative and ineffective against the rights of plaintiff, hence liable to be set aside. Defendants Nos.2, 3 and 5 admitted claim of plaintiff, defendant No.4 was proceeded ex-parte, however, defendant No.1 contested the suit by filing written statement and submitted that he is owner of the land in view of gift deed dated 22.10.1997. The learned trial Court framed issues in the light of pleadings of parties, provided them opportunity to lead evidence and at conclusion of the proceedings decreed the suit vide its judgment and decree dated 30.07.2019. Feeling aggrieved, appellant herein preferred an appeal before District Judge Neelum. The learned District Judge after hearing pro and contra dismissed the appeal vide its impugned judgment and decree dated 17.06.2021, hence the captioned appeal. The learned counsel for the appellant argued that suit filed by respondent No.1 herein was time barred and in this regard a specific plea was taken by appellant in para No.2 of his written statement but both the Courts below failed to frame issue on this point and to decide the same, hence the suit filed by respondent No.1 herein was liable to be dismissed as being barred by limitation. The learned advocate further contended that main claim of the plaintiff was that at the time of registration of alleged gift deed dated 20.10.1997 she was minor whereas the defendants has produced substantial documentary evidence to prove that at the time of execution of gift deed she was major but both the Courts below have failed to appreciate the relevant ticklish evidence in a legal fashion and anomalously decreed the suit. He placed reliance on following case laws:- 1. 2014 PLC (C.S.) 116, 2. 1999 YLR 2209,

3. PLD 2003 Karachi 598, 4. 2019 SCR 200, 5. 1998 PLC (C.S.) 110 and 6. 2019 SCR

288. The learned counsel for the respondents supported the impugned judgments and decrees on all counts, hence craved for 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. In view of arguments advanced at bar the questions which are required to be resolved by this Court are whether the suit filed by plaintiff was time barred and that whether gift deed was fraudulent or not? As far as the first argument advanced by the learned counsel for the appellant that gift deed dated 20.10.1997 was assailed on the ground that at the time of registration of said gift deed, donor/plaintiff Mst. Hajiran Bibi was minor but defendants proved through documentary evidence that she was major has got no substance for the reasons that gift deed has been assailed on the ground of fraud and both the courts below have decided issue No.3 and additional issue No.2 regarding registration of gift deed dated 20.10.1997 through fraud concurrently and observed that gift deed has been obtained by practicing fraud, hence concurrent findings of facts cannot be disturbed in second appeal. It is a trite law that concurrent findings of facts cannot be disturbed in second appeal unless misreading or non-reading of evidence is pointed out 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." The claim of the appellant that the plaintiff at the time of registration of gift deed dated 20.10.1997 has attained maturity is not proved from the record because it is established from evidence that plaintiff took birth after the death of her father, thus if the stance taken by defendant/ appellant that father of plaintiff died on 29.03.1980 is accepted even then on 20.10.1997 (date of registration of gift deed) the plaintiff was minor for the purpose of Transfer of Property Act, thus, the gift deed was illegal for the reason that a minor is not competent to enter into an agreement, so argument advanced by the learned counsel for the appellant is repelled. The next argument advanced by the learned counsel for appellant that suit was time barred has also bears no force of law. Plaintiff in para 4 of the plaint has categorically illuminated that few days ago on scrutiny of revenue record she came to know about the registration of impugned gift deed dated 20.10.1997. The defendant in rebuttal of para 4 simply stated that suit is against law, procedure, facts, without entitlement and jurisdiction, hence, liable to be dismissed and did not utter any word regarding knowledge of the plaintiff, hence, it would be deemed that defendant admitted the claim of the plaintiff that she came to know about the said gift deed few days prior to the institution of suit because it is a celebrated precept of law that evasive denial would be deemed as an admission. Even otherwise the plaintiff has assailed the gift deed on the basis of fraud and it is a bedrock maxim of law that in case of fraud limitation would run from the date of knowledge. Reliance may be placed on 2013 SCR 563 and 2016 MLD 365, thus, the suit filed by the plaintiff is within the span of limitation from the date of knowledge. After going through the pleadings of parties, evidence lead by them and record of the case, I am of the view that both the Courts below have appreciated evidence and record of the case in a recognized legal fashion by reaching at an appropriate and judicious conclusion as from cautious reappraisal of evidence no other view is possible, hence, judgment and decrees of the Courts below are entail to be sustained. The sum and substance of the above discussion is, finding no essence the instant appeal is hereby dropped. MQ/2/HC(AJ&K) Appeal dismisse