1980CLC1533 (PLP)

RAJA MUHAMMAD KHURSHID KHAN, J.-This appeal is directed against the. judgment un decree of the learned Chief Justice of the High Court passed on 17th December, 1975 whereby accepting the Appeal of Mst. Phatti respondent-.plaintiff herein the concurrent fndfr9y of the Court of Ist instance and that of the lst Appellate Court in-favour of the appellant defendant were discharged resulting in a decree in favour of Mst. Phatti respondent in accordance with her claim.

2. To appreciate the controversy facts of the case in brief may be stated. One Kakoo, an crctipancy tenant of Kotli District, before the promulgation of Land Reforms Act, owned 1/3rd share in land measure1645 canals 5 marlas. After the death of Kakoo he was survived by two daughters Mst..Phatti respondent and Mst. Kaisran Bibi. who died during the pendency of the suit and was turvived by a son, named Mohammad Jan the pro forma respondent. A mutation of the occupancy was entered and registered on .14th of April, 1959 in the names of Kakoo and Bahadon. Kakoo is dead and .his share has fallen to the lot of Bahadon, the appellant.

3. Mst. Phatti respondent-plaintiff challenged this mutation in the Court of Sub-Judge through a regular suit with the prayer that the mutation of the whole land in the name of co-tenants, being illegal, be held as ineffective and inoperative qua her and her sister Kaisran Bibi pro forma respondent's rights and that she be put into possession. According -to her Kakoo died after the enforcement of Shariat Act in 1956 and the entire land left by him could not be, to her and her sister's total exclusion, mutated in the name of defendants. Mst. Phatti was controverted by contesting defendants in their written statement on the ground that as Kakoo had died prior to the promulgation of the Shariat Act, during Dogra Regime, Mst. Phatti respondent and Mohammad Jan, pro forma defendant-respondent (son of Mst. K,aisran), have no entitlement to have any share out of the land left, by Kakoo.

4. The learned Sub-Judge vide his judgment and decree dated 30th April, 1974 dismissed her suit on the ground that the evidence led by the parties being evenly balanced, there is no material to support the claim of Mst. Phatti respondent and as the burden to prove the issue lay on her, she stands non-suited. On appeal before the learned District Judge the finding of the Sub-Judge was maintained. However; on second appeal before the I3ioh Court it -was nerd that the evidence put forth by Mst. Phatti respondent-plaintiff is all potent to prove that Kakoo died after the promulgation of Shariat Act and that both the Courts below have failed to read the evidence in its true perspective i.e., in the context of entire evidence. The learned Judge setting aside the judgment and decree of both the Courts below passed a declaratory decree to the effect that mutation of the land in question in favour of Rhadon, to the total exclusion of Mst. Phatti and her sister Mst. Kaisran Bibi, is ineffective as against their rights. As a consequential relief the decree for possession in favour of Mst. Phatti respondent and Mohammad Jan' son of Kaisran Bibi for 1 /3rd share out of Kakoo's land for each of them, was passed and the remaining land was allowed to go to Bahaldon and other heirs of Kakoo respondent.

5. Qazi Abdul Ghafoor, the learned coup, 1 for the respondent, raised a preliminary objection that .the appeal being incompetent under the provisions of section 7 (2) (b) of the Azad Jammu 3c Kashmir Judicial Board (Constitution of Jurisdiction) Act, 19 4 (hct XX of 1974) (hereinafter to be referred as Act) is liable to be dismissed. As against this Ch. Mohammad Taj, the learned counsel for the appellant maintained that the appeal is competent under the said provisions' of law because the property to dispute admittedly exceeds Rs. 5,000 in value. In alternate, he sought the indulgence of the Court to treat the appeal as a petition for leave to appeal. His application for condonation of delay, submitted on 29th March, 1979, enters the value of the property as more than Rs. 50,

000. To counter this Qazi Abdul Ghafoor, the learned counsel for the respondents, in his written objections on .the point states that the value of the property does not exceed Rs. 17,

000. This means that even the learned counsel for the respondents admits the value of the property as more than Rs. 5,

000. When the value of the land is admittedly more than Rs. 5,000, it needs determination whether the appeal in respect of the suit land is competent.

6. Appeals as of rights before the Judicial Board are governed under section 7 (2) (a), (b), (c) and (d) of the Act which reads :- "

7. Jurisdiction of the Judicial Board.-(I) Subject to the provisions of this section, the Judicial Board shall have jurisdiction to hear and determine appeals from judgments, decrees, orders or sentences of the High Court. (2) An` appeal to the Judicial Board from any judgment, decree, order or sentence of the High Court shall lie as of right where- (a) the amount or value of the subject-matter of the suit or other proceedings in the Court of first instance was five thousand rupees or more or where the judgment, decree or order involves directly or indirectly some claim or question respecting property of the like amount or value ; or (b) the case is certified by the High Court to be a fit one for appeal to the Judicial Board : Provided that in cases mentioned in clause (a) where the decree or final order of the High Court affirms the decision of the Court immediately below, no appeal shall lie to the Judicial Board unless it involves some substantial question of law ; or (c) a person has been sentenced to death or imprisonment for a period of ten years or above ; or (d) the High Court has imposed punishment on a person for contempt-of Court." It requires no laboured argument for interpretation that this case is squarely covered under subsection (2) (a) of section 7 of the Act which conveys a clear sense that an appeal relating to the property whose value A is Rs. 5,000 or mote,/is competent as of right, When confronted with this state of law Qazi About Ghafoor, learned counsel for the respondents, frankly conceded hat the appeal is competent. The preliminary objection, therefore stands repelled. 6-A. After A.4 posing the preliminary objection, we now proceed to determine the circuit point as to whether Kakoo died after or before the promulgation of the Shariat Act. The decision on this question shall resolve the issue. ; It is admitted at the Bar that the Shariat Act, for occupancy tenancy , was promulgated in the year 1952. It was conceded by the learned counsel for the appellant that in case it is found that Kakoo died after the enforcement of Shariat Act, i.e. after 1952, the judgment of the High Court shall stand and appellant stands non-suited. However, he learned counsel maintained that the evidence lacks proof to show hat Kakoo died after the enforcement of Shariat Act and both the Courts below (Curt of original jurisdiction and Ist appellate Court) have rightly leaded the issue in favour of appellant and while dealing with second appeal the High Court exceeded its jurisdiction and dealt with. evidence s if it was acing as a Court of fact. According to him the High Court in upsetting the well-considered judgments of the lower Courts on a question of fact. To counter this-the learned counsel for the respondent argued that as the findings of both the Courts were perverse, being based on misappreciation and non-reading of the evidence, the learned Judge was well within its bounds to disturb such a finding.

7. We have given our earnest consideration to the arguments advanced at the bar and feel inclined to agree with the learned counsel for the respondent that the learned Judge of the High Court, in the circumstances of the case, has rightly. exercised the discretion in vacating the concurrent findings of the Court of first instance and that of the Ist appellate Court. There is no denial of the fact that ordinarily concurrent findings of fact are not to be lightly interfered with in second appeal before the High Court. But if in the circumstances and facts of a given case is appears that the finding is patently perverse say for misreading or non reading of evidence there is no bar, rather it is the duty of the High Court to vacate such a finding. Here in this case, we may say with regret that the finding of the .learned District Judge cannot be construed to be a finding of fact at all. The judgment does not provide a happy reading. It conveys a clear impression that the learned Judge has failed to apply his mind to the facts and evidence of the case. The evidence of the witnesses has not at all received due and full consideration at his hand. He in his cryptic order without appreciating and analysing the evidence only contented to put a stamp of confirmation on the judgment of the Sub-Judge, and advanced no reasons whatsoever for maintaining the finding. In P L D 1954 Lah. 614 Mr. Justice M. R. Kayani_ (as he then was) faced with somewhat similar situation, speaking for the Court observed :- "But upon an examination of the statement of the defendant himself and of the finding of the District Judge on this point, we are of the view that it is not a finding which can be treated as conclusive. It is not enough for the Court of appeal to say that "the defendant has led evidence to show that this sale was effected with the consent of the plaintiff and in agreement with the learned Sub-Judge I am also of the opinion that the plaintiff did give her consent. The evidence that was led ought to have been discussed and an independent mind brought to bear on the issue. Even if the Court of appeal professes to have examined the evidence but it does not appear from the judgment that it has done so, a mere statement that upon are examination of the evidence it agrees with the conclu sions of the trial Judge would not convince the Court of second appeal that the. evidence has been so appraised as to make it unnecessary for that Court to undertake a second appraisal. It is only when the Court of second appeal is thus convinced that it will regard the finding of fact by the District Judge as conclusive." (Underlining* is ours) It is thus manifest that in second appeals it' the High Court finds that the lower Courts have omitted to consider certain items of evidence in determining the issue of a fact, it becomes imperative for the High Court to determine that issue having regard to the evidence on record, including the items of evidence omitted to be considered by the Court of firs appeal. Mere statement that upon an examination of the evidence it agrees with the conclusion of the trial Judge would not convince us. [Here in italics] 7-A. We will be failing in our duty if we do not make a mention of l the nature of the judgment passed by the Sub-Judge. His judgment does not stand on a better footing and conveys the impression that he too failed to apply his mind to the facts of the case. He has advanced no. reasons as to how the witnesses led by plaintiff-respondent Mst. Pharti lack evidence to .prove her case. Simply saying that the. Evidence evenly balanced is nothing but verbosity not sufficient to discredit the witnesses. Some tangible reasons ought to have been recorded in support of the finding. But the learned Sub-Judge without any legal grounds ignored the statement of witnesses examined by Mst. Phatti. The sole considera tion that weighed with the Sub-Judge is that they do Clot give the year during which Kakoo died. The reasoning is without substance. He has unfortunately lost sight of the fact that it is a basic principle of civil law that evidence is required in support of the issues as framed and not the pleadings, because these are only issues and not pleadings which guide the parties in adducing the evidence. The relevant issue No. 1 which reads :- "Whether the father of the plaintiff and maternal uncle of respondent No. 3 died after the enforcement of Shariat Act and plaintiff and defendant No. 3 are entitled to inherit his property ? " does not require the plaintiff to prove the year of the death of Kakoo. It was only required of her to prove that Kakoo died after the promulgation of the Shariat Act, and the learned Sub-Judge fell in error to say that it was expected of her to prove that Kakoo died in the year 1956.

8. Let us now see whether there is evidence to prove the issue. Mst. Phatti has examined Mir Alam, Kala, Noor Mohammad and Fazal Dad in support of her case. The statement of Mir Alam leads us no where either in support or rebuttal of the issue. However, Kala P. W. an independent witness, in his statement recorded on 24th February, 1972 says that Kakoo died some 14 or 15 years back and he participated -in his 'lanaza' prayer which was conducted by Mian Saeed. He proceeds to say that Mst. Kaisran Bibi had died some 8, 10 or 11, years after the death of Kakoo who died 3 years before his statement was recorded. This clearly shows that Mst. Kaisran died somewhere in the year 1969 ; and if the death of Kakoo is taken 11 years back from the death of Mst. Kaisran Bibi, it falls in the year 1959 obviously after the enforcement of the Shariat Act: Noor Mohammad P. W's evidence is that Kakoo died during the year 1956 when he was on leave from the army and he attended his funeral prayer. This witness gives a positive year of the death of Kakoo. He is an independent witness and his veracity remains unshaken in cross-examination. No reason whatsoever has been advanced by the learned Sub-Judge or the District Judge as to why he is disbelieved. Fazal Dad P. W. 3 also proves the death of Kakoo after the enforcement of the Shariat Act. All these witnesses have been, in .fact, misread and their evidence has not been properly appreciated. They proye the issue satisfactorily.

9. The appellant in defence has examined Raja Karamat Ullah, Lambardar Sarfaraz, Mohammad Hussain Nasib Ullah, Allah Ditta and Mian Said Mohammad as his witnesses. Raja Karamat Ullah proves the copy of the register of deaths Exh. D. A. allegedly maintained by the Chowkidar. Chowkidar has not been produced to prove the entry. This copy enters the death of Kakoo in the year 1950. Apart from the inherent defects in the entries hinted at by the learned Single Judge this documents has to be ignored for the solitary reason that the oral evidence to the effect that Kakoo died during the year 1947 is at variance with the entry which shows Kakoo's death in the year 1950. Not only this the appellant-defendant in his written statement claimed that Kakoo died during Dogra Regime". The death of Kakoo in the year 1950 entered in Exh. D. A. is obviously destructive of the appellant's own case put forth in his written statement that Kakoo died during Dogra Regime. Nasib Ullah witness examined by the appellant, says that his father died in the year 1966. When we read his statement alongwith the statement of Said Mohammad who says that the father of Nasib Ullah died 2/3 years after the death of Kakoo, Kakoo's death falls somewhere in the year 1962 or

63. Such evidence in our view hardly inspires 'confidence to be believed.

10. For the reasons enumerated above the evidence of the appellant is hardly sufficient to rebut the convincing evidence of Mst. Phatti respondent in support of her case.

11. The learned counsel for the appellant then contended that Mst. Phatti did not enter into the witness-box to prove the issue and an adverse inference is legitimate to be drawn against her. The argument is misconceived. No doubt, if a person, who is in the best position to depose about a fact, fails to put himself into the witness-box, he invites the rigor of adverse inference about the authenticity of his case. But no such inference is permissible, if the case stands proved otherwise through evidence of other witnesses. In this case as said earlier the evidence led by Mst. Phatti sufficiently proves her case.

12. The learned counsel for the appellant then submitted that Raja Muhammad Akram Knan, who, prior to the engagement of Qazi Abdul Ghafoor, acted as a counsel of Mst. Phatti respondent has, in his concise statement admitted that Kakoo died in the year 1950 and this admissions binds respondent Mst. Phatti who is now estopped to turn found and say that Kakoo died after the enforcement of the Shariat Act, in the year 1956.

13. In our view this argument is without substance. Throughout the proceedings

right from the Court of the Sub-Judge upto the High Court Mst. Phatti's stand remained consistent that Kakoo died in the year 1956. The evidence was also led to prove the death of the Kakoo after the enforce ment of the Shariat Act. How can she now be expected to put up an altogether different stand about the date of the death of Kakoo and that the total destruction of her case. It is correct that a pleader' general power for the conduct of a case includes power to make admission on a question of fact even but them is one exception to this general rule that where concession is erroneously made by an Advocate it does not bind her client. An action of a pleader, authorised to act on behalf of his client, must necessarily be in the proper conduct of the case. In dealing with the point in P L D 1958 Kar. 458 it was held chat "acting" includes all steps which a pleader is expected to take in proper conduct of case. '

14. Taking into account the circumstances of the case detailed above Mst. Phatti respondent cannot be bound down by the admission of her counsel which, does not seem to have been made with due diligence and care. In view of the consistent stand taken by the respondent through and through that Kakoo died in 1956 we entertain, the belief that the admission made by Raja Mohammad Akram Khan Advocate to the effect that he died in 1950 was due to either his inaptitude or lack of his complete grasp of the case. Most probably the counsel laboured under a wrong belief that promulgation of the Shariat Act, in 1948, which was only applicable to owners of the land, was also applicable in this case and under this impression, it appears an incorrect admission is made which does not bind his client Mst. Phatti. The overall result of the whole discussion is that the appeal merits no consideration. The appeal, therefore, fails with costs. Appeal dismissed.