2007 PLP 1885 (CLC)

SYED HAMID ALI SHAH, J.

Two real brothers namely Ali Muhammad and Sher Muhammad, entered into a transaction of mortgage of suit-land on 7-12-1916, relevant entry was incorporated in the Revenue Record. One Ghulam Muhammad Kundani filed a suit for pre-emption in the year 1917, asserted in the plaint that true nature of transaction was sale but given the shape of mortgage to defeat the right of pre-emption. Subsequently, suit as a result of compromise, was withdrawn but the entry in the Revenue Record remained unchanged. The appellant/defendant No.1 initiated the proceedings for redemption of mortgage in the year, 1944 before Chaudhry Sawarn Singh, Assistant Collector, who dismissed the application on the ground that transaction of transfer land in dispute, was traced as sale as per Exh.P.3 and if the transaction is considered to be mortgage, the period for which the land was mortgaged had not lapsed by then. Predecessor-in-interest of the respondents instituted the suit, sought declaration on 2-1-1973 to the effect that they (plaintiffs) are owners in possession of suit-land measuring 53 Kauals, 1 Marla, as owner and the defendants/appellants have no concern with it, with consequential relief of permanent injunction. It was asserted in the plaint; that land was purchased against the consideration of Rs.770 and to avoid threat of pre-emption it was even the shape of mortgage. The entries in Revenue Record still reflect the transaction to be a mortgage; that the land was alienated by defendant No.1 to defendant No.2, through. Mutation No.1956, subject to mortgage; that mutation is illegal and collusive as defendant No.1 was not the owner and. as such not competent to transfer/sell the land in dispute. The appellants contested the suit denied that transaction in question, was transaction of sale and raised various preliminary .objections regarding locus standi, limitation and jurisdiction. As many as five issues were struck, but no oral evidence was recorded by either party. Both the parties placed on record various documents pertaining to earlier litigation, which were duly exhibited by the learned trial Court. The suit was decreed with costs vide judgment and decree dated 28-2-1974. The appeal of the appellants met the fate of dismissal through a judgment and decree of learned lower appellate. Court dated 21-12-1974, hence this appeal.

2. Learned counsel for the appellants has submitted that learned trial Court and. the learned appellate Court had drawn conclusion that suit-land was said to Hassan Shah (predecessor-in-interest of the respondents), on the basis of admission made by Ali Muhammad and Sher Muhammad (Exh.P.2). in the earlier suit, whereby they admitted Chaff suit-land was sold and transaction of sale was ,given the colour of mortgage to defeat the right of pre-emption of their collateral namely Ghulam Muhammad Kundani. Learned counsel added the Courts at the same time, have ignored That Exh.D.2 i.e. the written statement of Muhammad Hassan Shah, in the same proceedings, where he admitted that real transaction was mortgage anti not the sale. Learned Court has fallen into error in accepting one admission and discarding the other, in the same proceedings. He-went on to argue that admission of party is only relevant in the proceeding in which it is made and such admission cannot be used against such party, in other proceedings/suit. Learned counsel supported his contention by referring to the cases of Muqarrab Hussain (deceased) through his Legal Representative and another v. Pirzada Muhammad Rafique (deceased) through his Legal Representative 2001. YLR 1103, Ahmad Khan v. Malik Fazal Dad deceased represented by Legal Heirs.1983 CLC 74 and Naseer Ahmad and another v. Asghar Ali 1992 SCMR 2300. Learned counsel has submitted that instant matter is case of no evidence or a case of inadmissible evidence. The statement of plaintiff or defendant was not recorded while referring to the case of Feroz Khan v. Mst. Waziran Bibi 1987 SCMR 1647, it was contended that non-appearance of party in the witness-box is fatal and gives rise to adverse inference against such party. Learned counsel has submitted that suit was filed on 2-1-1973, in respect of an entry in the Revenue Record, incorporated in the year, 1916. The suit was hopelessly time-barred and the findings of learned Courts below are erroneous on question of limitation and also on the possession of the suit property. Learned counsel summed up his arguments by submitting that case in hand is case of no evidence and suit is liable to be dismissed. He supported this contention by referring to the case of Abdul Hameed and others v. Khalid and others 2007 SCMR 938.

3. Learned counsel for the respondents; on the other hand, fully supported the concurrent findings off' learned Courts below. He has submitted that real nature of transaction is sale and not mortgage. It stands proved, from statement of defendants Nos.2 and 3 recorded on 11-11-1917 (Exh.P.2), order of Assistant Collector and sale of land through Exh.P.3. Case of Mst. Haleeman and 4 others v. Abdul Shakoor Khan 2007 CLC 589 was referred to contend the reappraisal of evidence in the second appeal against concurrent findings of two Courts is not open to exception. Learned counsel went on to argue that even erroneous findings of learned Courts below do not call for interference in the second appeal, unless gross and inexcusable error on strong legal ground is found by the Appellate Court against concurrent findings. Learned counsel supported his contentions from the dictum laid down in the cases of Fazal Rahman v. Amir Haider and another 1986 SCMR 1814 and Haji Sultan Ahmad through Legal Heirs v. Naeem Raza and 6 others 1996 SCMR 1729.

4. Heard learned counsel for the parties and record perused.

5. The controversy, subject-matter of this appeal, is a century old, controversy cropped up for the third time .while -the instant appeal has been fixed after lapse of 32 years. Both the parties during trial, instead of producing oral evidence, opted to produce documents through their respective counsel, which were accepted on record by the learned trial Court after exhibiting these documents. The first suit with regard to the property in dispute was filed by a collateral of original vendees Ghulam Muhammad Kundani, who filed a suit for pre-emption in the year 1917 and asserted in the plaint that the impugned transfer of the land by the predecessor-in-interest of the appellants was a sale and not mortgage, as incorporated in the Revenue Record. Predecessor of the appellant in the written statement had admitted that the nature of the transaction was sale and it was given shape of mortgage to defeat the right of pre-emption. The respondents' predecessor/vendee, however, took the stance that transaction/transfer of the property in dispute was on the basis of mortgage. The suit was withdrawn on 1-11-1917 as a result of compromise between the parties. The respondents' predecessor remained in possession throughout, without any challenge from the appellants' side either to the ownership or possession of respondent. It was on 11-7-1944 that the predecessor-in-interest of the appellants filed a petition before the Collector for the redemption of the mortgage. Ch. Suran Singh, the then Assistant Collector, Bhakkar vide his order, dated 22-6-1945 dismissed the petition and observed that respondents claim that the property was sold to them finds support from statement of Sher Muhammad and Ali Muhammad, which reelected that the mortgage was shown to avoid pre-emptioii. It was a sale transaction against consideration of Rs.700. Secondly it .was also observed that the mortgage, which was for 55 years and the period of mortgage was to elapse in 1971, thus, the property cannot be redeemed. The order of Assistant Collector whereby he had held the transaction inter se the parties was sale, was not assailed in any higher forum. Such question in subsequent proceedings cannot be agitated again. The question resolved directly and substantially by the Assistant Collector, cannot be tried in the instant suit.

6. The litigation inter se the parties for the third time, started when the respondents filed a suit for declaration to the effect that they are in possession of the land in dispute as owners. As a consequential relief a prayer for permanent injunction restraining the appellants to interfere in their possession and cultivation, was made. The plaintiffs as well as the defendants had not entered in the witness-box nor the statement of any other witness from either side was accorded. The documents produced in evidence were through the statement of the respective learned counsel for the parties, ignoring the normal procedure. Adverse inference can be drawn for non-appearance of the parties as witness, to support their respective claims. Remand of the case to the trial Court for a fresh trial will not serve a useful purpose as the instant matter is pending since 1973 and litigation will not come to an end. I, therefore proceed to decide this appeal on. the available record, In this behalf, I am fortified with the dictum of law laid in the ease- of Raza Munir and another v. Mst. Sardar Bibi and 3 others 2005 SCMR 1315, wherein the apex Court held that the documents which-have not been produced in evidence and brought on record, can be read and given effect by the Court even in the absence of a plea by a party to that effect.

7. Para.3 of the plaint and its reply needs specific mention, which is reproduced hereunder:--

8. The appellants had not denied contents of para.3 in specific terms, which under Rule 8 of Order V, C.P.C., be taken to be admitted. Learned trial Court under Order XII, rule 6, C.P.C., has to pass judgment on the strength of admission by the respondents in para.3 of the written statement. The question of sale was thus, -not required to be determined and the judgment was to be pronounced as per Order XV, rule 1, C.P.C. Ali Muhammad and Sher Muhammad (predecessor of the origin)) vendee) recorded their statements in the pre-emption suit, to the effect that the land in question with other land was mortgaged for a sum of Rs.600 and the same was redeemed yesterday, the statement is reproduced hereunder.

9. The admission by the appellants and the other admission by the original vendor as far as back in the year 1917 was sufficient for the Court below to conclude that the nature of the transaction was sale and not mortgage. Further the appellant has not entered in the witness-box to support the assertions made in the written statement in the instant case. A written statement, where the defendant does not make himself available for cross-examination, loses its force as a authentic piece of evidence, it cannot be acted upon and used as substantive piece of evidence. While holding so, I am fortified by the judgment in the case of Bakhat Bedar v. Naik Muhammad 2004 MLD

341. Further, in the case of Muhammad Rafiq and others v. Muhammad Ali 2004 SCMR 704, the apex Court has observed that once an admission is made in the written) statement, no issue is required to be struck nor any further proof is required.

10. Adverting to the question of possession, it was observed by the Courts below that the possession of the respondents was admitted by the appellants. Now the appellants have denied this fact before me. Learned counsel for the appellants has not substantiated with cogent evidence the factum of the possession qua the suit-land. It is the case of the appellants that there exists a valid mortgage qua the suit-land. The Revenue Record, entry of mortgage and petition for redemption filed by the appellants in the year 1942, lead to the conclusion that the respondents were in possession of the suit property.

11. The arguments of the appellants that the admission is relevant only in the proceedings in which such admission was made and the same cannot be used in subsequent suit. The Courts below while passing the impugned judgment and decrees have decided Issue No.5 on the basis of Exh.D.1, Exh.D.2, Exh.P.2 and Exh.P.4. Learned Courts after appraising Exh.D.1, Exh.D.2 and various other documents had concluded that the transaction inter se the parties was a sale. The decree was thus, not passed solely on the basis of the admission in the earlier suit. Additionally, the appellants have raised this plea at this stage. The plea, which was not raised before the trial Court as well as before First Appellate Court, cannot be raised at this stage.

12. Both the Courts below, after appraisal of the whole of the evidence of the parties, had held that the transaction was sale and not the mortgage. No interference at the stage of second appeal is permissible, merely on the ground that on the basis of available evidence, another view is possible.

13. For the foregoing, the appeal has no force and is accordingly dismissed. F.B./F-23/L Appeal dismissed.