2010 PLP 69 (GBLR)

MUHAMMAD YAQOOB, J.

The plaintiff/appellants herein seek leave to appeal against the judgment/decree passed by the learned Judge of Chief Court, Camp at Skardu in C.S.A. No. 13 of 2002 dated 8-4-2006. The brief facts of the case are that the father of appellants and defendant/respondent No. 2 had given land to defendant No. 2 in Mouza Olding Kharmang with residential houses, while appellants had received their shares in Mouza Ingut in result of domestic partition with the advice to refrain from interfering in the shares of each other. According to the version of the petitioners/appellants defendant No.2 was in possession of his share in Mouza Olding while appellants/ plaintiffs were in possession of their shares in Mouza Ingut. In the year 1987 the defendant/respondent No.2 received the suit land as AMANAT through a deed "AMANAT NAMA" dated 6th November 1981 vide Exh.P-III. Later on, the defendants/respondent No.2 have given the suit land to defendant/respondent No.1 for cultivation and have been receiving the rent since then. In 1996 the appellants/plaintiffs demanded the suit land back from defendant/respondent No.2 but the respondent No.2 tactfully did not hand over the possession of land to plaintiff/appellants, whereupon the appellants/plaintiffs approached to Sharie Arbitration where "decision" was given in favour of plaintiffs/appellants but the plaintiffs/ appellants could not get the possession of the suit land and approached to Revenue Court. In September, 1996, plaintiffs/appellants could succeed in getting the possession of suit land through Revenue Court. In the month of April 1997 againly a dispute arose when the plaintiffs/ appellants were busy in ploughing. The local police lodged a complaint under section 145 Cr.P.C. and the same was brought in the Court of Assistant Commissioner Kharmang against the parties and the learned A.C. restored the possession of the suit land to defendant No.1, during the proceeding under section 145, Cr.P.C. the plaintiffs/appellants came to know that the respondent/defendant No.2 had illegally gifted the suit land to defendant No. 1 through gift-deed No. 146/87 registered on 14-12-1987, which was liable to be cancelled. The Health Department Northern Areas has constructed a First Aid Post on a piece of suit land measuring 1 Kanal 4 marlas at Khotial and the Health Department Northern Areas, had promised to appoint a grade-1 from appellants/plaintiffs in consideration of the suit land. Resultantly son of the plaintiff was temporarily appointed as grade-1. The defendants on 16-3-1998 filed their written statement separately, wherein defendant No.1 has contested the claim of appellants/plaintiffs, whereas defendant No.2 has admitted the claim of the appellants/plaintiffs as reveals from the written statement submitted before the Court by the defendant No.2. In the light of pleadings the learned trial Court struck out fifteen issues including the relief sought by the plaintiff. The learned trial Court dismissed the suit after taking evidence in pro and contra and discussing each and every issue separately by declaring the same as time barred. Feeling aggrieved with the judgment/decree the appellants filed Civil First appeal before the District Judge Skardu, which was accepted and decreed in favour of the plaintiffs/appellants vide judgment/decree dated 8-7-2002. Respondent/defendant No.1 filed Civil Second Appeal against the judgment/decree dated 8-7-2002, before the Northern Areas Chief Court. The learned Chief Court for Northern Areas Camp at Skardu heard the arguments in pro and contra and converted the appeal into revision petition by setting aside the judgment/decree dated 8-7-2002 passed by the first appellate Court and maintained the judgment/decree dated 3-8-2002, of the trial Court, hence this petition for grant of leave to appeal. We have carefully scrutinized the written arguments advanced by both the Counsel for parties and perused the record. From perusal of the record it transpires that in this case 15 issues were framed by the trial Court including the relief sought by the plaintiff. It is also evident that appellants/plaintiffs had adduced five PW's in proof of their claim and also produced documents vide Exh. P-1 to Exh. P-12 as reveals from the record. On the other hand the respondents/defendant No.1 in rebuttal and proof produced five D.W's. besides his statement. Defendant/ respondent No.1 also produced Exh.D-/A to Exh. D-I as documentary evidence. From perusal of the record it transpires that the gift-deed No.146/87 which is said to be a registered deed, has been registered in the office of the Sub Registrar Skardu/Naib Tehsildar Skardu on 14-12-87. But it is extremely astonishing to mention here that the office of concerned Sub Registrar does not provide the registering record of above mentioned gift-deed. In this respect Exh. P-A, P-9 and the statement of the Record Keeper who was examined in the court on 11-3-1999 confirms, that no such gift-deed was duly registered. It means that no Hibah as indicated in the pleadings has ever made by the respondents/defendants No.1. It is also admitted fact that property in question was situated in Mouza Ingut Kharmang where the Registrar and the Sub Registrar were there for the registration of such documents. The same fact is also admitted by the respondent/defendant No.1, in his statement " How the gift-deed of the property situated at Mouza Ingut Sub Division Kharmang has been registered in the office of Sub Registrar for District Skardu", in spite of the availability of the same registering office in Sub Division Kharmang. It means the gift-deed in question was registered at Skardu, is without jurisdiction and carries no value and sancitity in the eye of Law. The said point has also been admitted by the Chief Court Northern Areas, in its impugned judgment dated 8-4-2006. It is further clear from the record that the donor Jaffar respondent/defendant N.2 also denies the execution of the same gift-deed and any involvement in transaction of the disputed land with respondent/defendant No.1, whereas the marginal witness of the registered deed namely PW-Ali clearly stated that he had never put his signature upon the deed. From perusal of the record it is fully proved that the registered gift-deed prepared after 1995-96 is forged one. Section 28 of the Registration Act clearly shows that beyond the territorial jurisdiction, such registration could not form valid notice to the public as the same had not sent to the office of Registrar/Sub Registrar of Sub Division where the property covered by gift-deed was situated. Moreover, it should have been registered under section 49, of Registration Act, by Sub Registrar Kharmang but it was taken before the Sub Registrar Skardu and shown got registered by him, whereas he has no territorial jurisdiction over the land involved. The fundamental plea taken by the respondent No.1 in his written statement is hopelessly failed to prove the same. The respondent/defendant No.1 submitted copy of Exh.D-1/A or Exh.P/1 which has been challenged by the appellant/plaintiffs in the instant declaratory suit with the request that the gift-deed No. 146/87 Exh.D-1/A or Exh.P-1 be declared bogus fraudulent and ineffective against the rights of plaintiff. The Hon'ble Chief Court also declared that the respondent No.1 has failed to prove the gift-deed Exh.D-1 because of some technical points. Respondent No.1 firstly disclosed gift-deed Exh.D-1/A before Tehsildar Kharmang during the proceedings under section 145, Cr.P.C. in 1997 and denied the contract of Battai/ajara of under amanat property but also placed himself as donee. The possession of respondent No.1 became adverse to the plaintiff when denial of title opened to the plaintiffs coupled with exclusive use of property, principle that every fresh interference with the rights of plaintiffs give them fresh cause of action. Plaintiff has instituted this suit on the basis of title in 1997, the same year when cause of action accrued to him. Respondent No.1 admitted the same adverse possession within a period of three months by submitting a written statement on 16-3-98. (Self-confessed squatter). The suit, therefore, governed by Article 144 of Limitation Act for possessory relief and declaratory relief governed by ancillary relief under Article 120 of Limitation Act, therefore, it is clear that the Hon'ble Member of Chief Court reached at a wrong conclusion by misconception of Limitation Act. According to this Article, in the case of fraud, suits may be filed within a period of 12 years from date of discovery of fraud. Thus the suit is well within time. It is also an admitted fact that defendant/respondent No.1 has been paid Ajara/Batti to respondent/defendant No.2 and admitted by defendant/respondent No.2 and corroborated by PW-5. Thus the respondent No.2 has granted permission to respondent No.1 to enjoy certain privileges, it means respondent No.1 has a permissive possession over the property occupied by him, but at no stage acquire a right to claim adverse possession. Plea of adverse possession is not tenable in the eye of law as such the suit of plaintiffs/appellants is not hit by Article 142 of Limitation Act. Consequent upon what has been discussed in detail above, we accept the appeal and set aside the impugned judgment/decree of the Chief Court dated 8-4-2006, by upholding the judgment/decree passed by the First appellate Court dated 8-7-2002. Appeal is allowed with no order as to the costs. M.H./14/Glt.??????????????????????????????????????????????????????????????????????????? ??????????? Appeal allowed.