2018 PLP 127 (CLCN)

RAJA SAEED AKRAM KHAN, J.

The titled appeal by leave of the Court has been filed against the judgment and decree passed by the High Court on 11.10.2017, whereby the appeals filed by the contesting parties have been dismissed.

2. Brief facts of the case are that appellant, herein, filed a suit for declaration-cum-perpetual injunction regarding the land comprising survey Nos.457 and 463, measuring 10 kanal, situate at village Bathara, Tehsil Dhirkot, in the Court of Civil Judge, Dhirkot. The trial Court after necessary proceedings, partly accepted the claim of the appellant and decreed the suit to the extent of land measuring 6 kanal, comprising survey No.457, in favour of the plaintiff-appellant. Feeling dissatisfied; both the parties filed appeals in the Court of Additional District Judge, Dhirkot, which were dismissed, vide judgment and decree dated 25.10.2008. The contesting parties filed second appeals before the High Court, which have met the same fate, hence, this appeal, by leave.

3. Mr. Abdul Hameed Khan Shahid, advocate, counsel for the appellant, submitted that it is a case of misreading and non-reading of evidence and interference by this Court is warranted under law. He added that both the Courts below have failed to appreciate the evidence/record in its true perspective while handing down the judgments. The learned High Court also committed the same illegality and failed to record any finding on the strength of record produced by the appellant, rather the High Court was influenced by the concurrent findings of the two Courts below and dismissed the appeal without adhering to the fact that the trial Court as well as the first appellate Court have failed to take into account the evidence produced by the appellant in support of his claim. He added that the appellant is the owner in deh (village proprietary body) and is entitled to retain the possession of shamilat deh land, who cannot be dispossessed without adopting the proper course. He added that the first and second appellate Courts failed to examine that the claim of the appellant against the land comprising survey No.463 is based on the strength of the possession, which has been proved from the record. Moreover, the appellant has constructed a house after spending huge amount, with said survey number, which fact has also not been considered by the Courts below. The learned counsel submitted that the appeal has been dismissed on the ground of concurrent findings, without adhering to the settled principle of law that if the concurrent findings are based on misreading or non-reading of evidence, the same can be interfered with.

4. On the other hand, Raja Gul Majeed Khan, advocate, counsel for the respondents, strongly controverted the arguments of the counsel for the appellant and submitted that the trial Court has rightly passed the decree of perpetual injunction to the extent of survey No.457, as the appellant succeeded to prove his possession to that extent, however, the suit filed by the plaintiff-appellant has rightly been dismissed to the extent of survey No.463, as not an iota of evidence has been brought on the record to prove that the appellant is in possession of the said survey number. The well-reasoned findings recorded by the trial Court have been upheld by the first and the second appellate Court, while assigning strong reasons, which are not open for interference, as the appellant failed to substantiate any misreading or non-reading of evidence. The learned counsel forcefully argued that although respondent No.1 has no grievance regarding survey No.457, but, being owner in deh, if such a decree is allowed to be passed in routine, then the rights of every co-owner in the village will badly be affected, as the same is not warranted under law. The learned counsel submitted that no declaration can be sought on the strength of the possession over shamilat deh land until and unless the same is partitioned and specific certificate is granted by the Collector, as the Civil Courts have limited jurisdiction and cannot grant decree of perpetual injunction against all the share holders, but possession of the land-owner cannot be disturbed without adopting the proper procedure of law. The learned counsel referred to and relied upon the cases reported as Muhammad Rasheed and 5 others v. Muhammad Mushtaq Khan and 5 others (2016 CLC 1485), Aurangzeb and 4 others v. Muhammad Ayub and another (2017 SCR 464) and Ch. Maqbool Ahmed and 17 others v. Ch. Muhammad Iqbal (2017 SCR 1653).

5. We have heard the learned counsel for the parties and gone through the impugned judgment along with the record made available.

6. The dispute relates to the land comprising survey Nos.457 and 463, measuring 10 kanal, situate at village Bathara, Tehsil Dhirkot. The appellant filed a suit for declaration-cum-perpetual injunction in respect of the suit land. Respondent No.1 contested the suit by filing written statement. After necessary proceedings, the trial Court partly accepted the claim of the appellant and decreed the suit to the extent of land measuring 6 kanal, comprising survey No.457, in favour of the appellant. The parties filed appeals in the Court of Additional District Judge, Dhirkot, which were dismissed vide judgment and decrees dated 25.10.2008. The contesting parties filed second appeals before the High Court, which have also been dismissed through the impugned judgment dated 11.10.2017.

7. The claim of the appellant to the extent of survey No.457 has been admitted by the respondent, as has been discussed in the impugned judgment and during the course of arguments. The argument of the counsel for the appellant that the High Court in its judgment has not discussed the evidence, is ill-founded. After taking into account the evidence brought on the record, the detailed findings have been recorded regarding survey No.457 and the same have been admitted even by the respondent before this Court, therefore, there is no need to discuss the same to the extent of survey No.457. The controversy is left only to the extent of survey No.463. To appreciate the argument of the counsel for the appellant that he is also in possession of the land falling under survey No.463, we have examined the record minutely with the assistance of the counsel for the parties but failed to find out anything from the record in support of the claim. When this position was confronted to the counsel for the appellant, he could not satisfy the Court, instead, he submitted that the revenue record has been placed on the file of this Court. It may be observed here that the documents produced before this Court were not part of the record or the trial Court, therefore, the appellant cannot be allowed to build up his case on the basis of said documents. Admittedly the disputed land is shamilat deh which is not partitioned as yet. There is no cavil with the proposition that without partition, nobody can be dispossessed from shamilat deh land, which falls in his/her possession, without adopting the proper course and even if a party is in possession of the land in excess of his legal share, the aggrieved person can approach the relevant forum, as laid down in the cases reported as Muhammad Rasheed and 5 others (2016 CLC 1485), Aurangzeb and 4 others v. Muhammad Ayub and another (2017 SCR 464) and Ch. Maqbool Ahmed and 17 others v. Ch. Muhammad Iqbal (2017 SCR 1653), the case-law referred to by the counsel for the respondent. Both the counsel for the parties have also relied upon the case reported as Auragnzeb and 4 others v. Muhammad Ayub and another [2017 SCR 464], wherein, it has been observed as under:- ".....Thus, the learned High Court has not committed any illegality while interfering with the concurrent findings recorded by the Courts below as it is now settled that the concurrent findings of facts recorded by the Courts below are open to attack and can be recalled if the same are based on misreading or non-reading of evidence. Reliance may be placed on a case reported as Akhtar Khan and 9 others v. Sarwar Khan and 12 others [2003 SCR 128], wherein, it has been held that: 'It is by now settled proposition of law that the concurrent findings of fact are open to attack if the same are not supported by any evidence or otherwise are unreasonable or perverse.' Similarly, in another unreported judgment titled Sadiq Hussain Shah and others v. Syeda Gudo Fatima and others (Civil appeal No.24 of 2010 decided on 23.04.2015) this Court has held as under:- '

10. The argument of the learned counsel for the respondents that there are concurrent findings recorded by all the Courts below which cannot be disturbed, has also no substance. It is now settled that the superior Courts always reluctant to interfere with the concurrent findings recorded by the Courts below, however, in case of any misreading or non-reading of evidence by the Courts below the superior Courts have intervened.'

8. So far as, the argument of the learned counsel for the appellants that the appellants proved their entitlement to retain the possession of Shamilat Deh land and Khalsa land, therefore, the findings recorded by the High Court that the appellants failed to prove their entitlement, are against record, is concerned, in this regard, we have examined the record minutely. It is spelt out from the record that no proof regarding the legal partition of Shamilat Deh land of the village has been produced by the appellants. In such situation, no decree for perpetual injunction regarding the said land can be passed in favour of the appellants; however, in the interest of justice, we deem it proper to hold that if any portion of the land whether it is crown land or Shamilat Deh land, is in possession of the appellants they cannot be dispossessed without adopting the due course of law. The observation made by the learned High Court that the appellants, herein, may approach the concerned forum for determination of their share in Shamilat Deh land as Hasbe Rasad Khewet, is in accordance with law, hence, we endorse the same." There is no second thought regarding the proposition resolved by this Court in the referred case, however, the same can only be helpful to the case of the appellant, if he succeeds to prove his possession over the disputed survey number. In this state of affairs, we are convinced that the Courts below have dilated upon the matter and resolved the same in a legal manner.

8. We have failed to find out any piece of evidence, which was not taken into account by the Courts below, thus, in absence of which, this Court remains slow to interfere with the concurrent findings. Resultantly, finding no force in this appeal, the same is hereby dismissed with no order as to costs. Before parting with the case, it may be observed that the appellant is at liberty to approach the proper forum for redressal of his grievance, if so advised. ZC/35/SC(AJ&K) Appeal dismissed.