MUZAFFAR Versus AHMED SHER
1. This 2nd appeal is directed against the judgment and decree, dated 9‑3‑1976 of the learned Additional District Judge, Sargodha and judgment and decree, dated 3‑7‑1974 of Civil Judge 2nd Class Jauharabad, whereby the suit filed by the respondents was decreed.
2. 2.. Brief facts out of which the present 2nd appeal arises are that the appellant and his brother filed suit for declaration with consequential relief of possession in the Curt of Civil Judge Sargodha against the respondents. Suit was decreed on the basis of the compromise arrived between the parties on 18‑7‑1958. The compromise deed reveals as under:‑‑‑
3. "The appellant shall get possession of land measuring 5 Kanal, 17 Marlas bearing Khasra No.1432/1 in Village Uttra S.B Tehsil Khushab District, Sargodha. The appellant filed execution petition before the Senior Civil Judge, Sargodha which was finally disposed of by the learned Civil Judge on 7‑11‑1969. Mutation No.3269 was entered by the Revenue Authorities in favour of the appellant in respect of Khasra No.1596/6."
4. Respondents being aggrieved by the aforesaid mutation filed suit for declaration and permanent injunction before the Civil Judge 2nd Class Jauharabad on 6‑4‑1971. . The contents of the plaint reveal that respondents are the owners in possession of the suit land comprised in Khewat No. 1267 rectangle No.1596/6 and the appellant/defendant has got no connection whatsoever with it. Contents of the plaint further reveal that mutation No.3269 got attested by the defendant/ appellant in his favour on 26‑11‑1969 qua the land in question is illegal, void, without consideration, collusive, fictitious and ineffective upon the rights of the respondent/plaintiff. As the consequential relief the respondents/plaintiff had prayed that perpetual injunction be issued restraining the appellant/defendant from interfering in their possession over the suit land on the basis of the aforesaid mutation. The appellant/defendant filed written statement controverted the allegations levelled in the plaint. Out of the pleadings of the parties, the trial Court framed the following issues:
(i) Whether the suit has been correctly valued for the purposes of court fee and jurisdiction? If not, what is the correct valuation?
(ii) Whether the suit is maintainable in the its present form?
(iii) Whether the Civil Court has no jurisdiction to entertain and try this suit?
(iv) Whether the suit is barred by the principle of res judicata?
(v) Whether the plaintiffs are owners of the suit land?
(vi) Whether the impugned Mutation No.3269, dated 26‑11‑1969 is illegal, without consideration, .fictitious and beyond jurisdiction?
(vii) Relief
5. The trial Court decreed the suit vide judgment and decree, dated 3‑7‑1974. The appellant being aggrieved tiled appeal before the District Judge, Sargodha who entrusted the same to Additional District Judge. During the pendency of the appeal appellant filed application under Order 41, Rule 27, C.P.C. producing documentary evidence before the learned Additional District Judge Sargodha. The learned Additional District Judge, Sargodha dismissed the application as well as appeal vide judgment and decree, dated 9‑3‑1976. Hence the present appeal.
3. Learned counsel for the appellant submits that respondent should have resorted to the provisions of section 47, C.P.C. rather than to file a separate regular suit. Both the Courts below erred to entertain the suit as the consent decree has already been passed in favour of the appellant on the basis of the compromise, dated 18‑7‑1958. In support of his contention he relied upon the following judgments:
6. Muhammad lqbal v. S.A.M. Khan PLD 1970 Lah 614.
7. Muhammad Yunus v. Abdul Ghaffar 1998 MLD 1622,
8. Abdul Karim v. Asadullah 1998 CLC 974
9. He further submits that the documents sought to be produced as additional evidence were certified copes of public record and they could not be refused to be considered in appeal. Learned first appellate Court was erred in law to refuse to produce the documentary evidence. In support of his contention he relied upon the following judgments:‑‑
10. Zar Wali Shah v. Yousaf Ali Shah 1992 SCMR 1778
11. Syed Phul Shah v. Muhammad Hussain and others PLD 1991 S.C 1051.
12. Mst. Fazal Jan v. Roshan Din PLD 1992 SC 81
13. Mst. Seetan v. Mirza 1998 KLR 225
14. He further submits that originally compromise a.‑rived between the parties qua Khasra No.1432/1 but subsequently Khasra No.1432/1 was removed from the ownership of the respondents by the settlement authorities and in lieu thereof the respondents were given the land in rectangle Nos. 1595, 1596 and 1605. The appellant filed application before the executing Court on 2‑5‑1969 with the prayer to execute decree by giving the appellant possession of same quantum of land out of rectangle No. 1596 which was transferred to the respondents during the pendency of the execution proceedings. Learned Senior Civil Judge directed delivery of possession of the said land to the appellant vide order, dated 6‑5‑1969. He further submits that judgment of both the Courts below are result of misreading or non- reading of the record.
4. Learned counsel for the respondent submits that judgment of both the Courts below have given concurrent finding of fact against the appellant and this Court has very limited jurisdiction to disturb the same unless and until the same is result of misreading or non‑reading of the record. Learned counsel for the appellant failed to point out any piece of evidence which was misread or non‑read by both the Courts below. He further submits that suit filed by the appellant was decreed on the basis of compromise deed, dated 18‑7‑1958. The compromise deed clearly Teveals that the appellant shall get possession of land measuring 5 Kanal, 17 Marlas in Khasra No.1432/1 whereas impugned mutation was sanctioned by the Revenue Authorities in favour of the appellant in respect of Khasra No.1596/6 which is not part and parcel of the decree, dated 18‑7‑1958. Therefore, appellant has no alternative remedy except to file suit for declaration with permanent injunction as the cause of action is entirely different. Therefore, both the courts below were justified to entertain the suit and decreed the suit in favour of the respondent. He relied upon the following judgments:‑‑
15. Ghulam Muhammad v. Sultan Mahmud and others PLD 1963 SC 265 and Saida v. Kala 1990 MLD 1189
16. He further submits that the first appellate Court was justified to dismiss the application for producing additional evidence. He further submits that the appellant wants to produce the following documents through the application before the first appellate Court:‑‑
17. The first document Le execution petition is already on the file of the trial Court as Exh.P.10. Copy of report of Girdawar Halqa, dated 25‑7‑1969 is also on record as Exh.P.9. Copy of order of Court is vague does not mention at all the date and name of the Court. Therefore, the judgment of the first appellate Court is in accordance with law laid down by the superior Courts in the following judgments:
18. Ejez Muhammad Khan v. Mst. Sahib Bibi 1996 SCMR 598;
19. Abdul Hameed v. Abdul Qayyum 1998 SCMR 671 and
20. Sh. Muhammad v. Lal Khan 1997 MLD 1784.
21. He summed up his arguments that documents were with the appellant and the appellant did not produce before the trial Court at proper time. He further submits that the contention of the learned counsel for the appellant that Khasra No.1432/1 was removed from the ownership of the respondents by the Settlement Department and in lieu thereof respondents were given land in Khasra No. 1596 is not in accordance with written statement filed by the appellant before the trial Court. This contention is afterthought and is not sustainable in the eyes of law.
5. I request Ch. Riasat Ali, Senior Advocate to assist the Court as amicus curiae. He submits that Executing Court cannot go beyond the decree. He relied upon "Land Acquisition Collector v. Rana Motors Ltd. 1989 MLD 1850; he further submits that in case decree is not in accordance with the judgment, then subsequent suit is maintainable and is not barred by section 47 of C.P.C. He relied upon 6hulam Muhammad's case PLD 1963 SC 265; that Executing Court has vast powers to undo or rectify its mistake to avoid miscarriage of justice. He relied upon Muhammad Inayat's case PLD 1987 Lah. 537; that executing Court has also vast powers to take note of subsequent events; he relied upon Sultan Ahmed Sharif's case PLD 1958 Dacca 36; that in case order of Court relied upon by the appellant for production of same in his application filed before the 1st appellate Court cannot be taken into consideration in case the documents are not on record; or attached with application.
6. I have given my anxious consideration to the contention of learned counsel for the parties and perused the record. I would like to decide first whether 1st appellate Court was justified to reject the application of appellant for production of following documents:‑‑
22. The documents mentioned at Serial Nos. 1 and 3 are already on file of the trial Court vide Exhs.P.9 and 10 respectively but so far as document at serial No.2 is concerned, the same does not disclose the date and name of the Court; even copy of order has not been attached with the application filed before the 1st appellate Court; the appellant failed to attach copy of order mentioned in the application alongwith this second appeal. It appears that the application was filed to fill in the gap without placing on record the order of Court, therefore, 1st appellate Court was justified to reject the application as suggested by learned amicus curiae. I am also of the view that without perusing copy of order to be produced, the application filed by appellant is not' sustainable in the eyes of law. I am fortified by Ijaz Muhammad Khan's case 1996 SCMR 598 and Abdul Hameed's case 1998 SCMR 671. It is admitted fact that consent decree was passed between the parties qua Khasra No.1432/1 whereas Mutation No.3269 was entered by the Revenue Authorities in favour of appellant in respect of Khasra No.1596/6. In presence of consent decree, second suit is maintainable as the mutation was sanctioned in violation of consent decree 5s the law laid down in PLD 1963 SC 265. Both the Courts below have given concurrent finding of fact against the appellant. It is settled proposition of law that High Court while exercising powers under section 100, C.P.C. can disturb the concurrent finding of fact only when the evidence is misread and finding is based on in admissible evidence or there existed an error or defect in the procedure which may possibly have introduced an error or defect in the decision on merits as principle laid down by the Honourable Supreme Court in Mussarat Sultana's case 1997 SCMR 1866. The learned counsel for appellant has failed to point out any piece of evidence which was misread by both the Courts below or decided the case in violation of any mandatory provisions of C.P.C, or rule laid down by the superior Courts.
23. In view of aforesaid discussion, there is no merits in this appeal and the same is dismissed with no order as to costs. In the end, I must .put on record my deep sense of appreciation for the invaluable assistance rendered by' learned amicus curiae.
24. H.B.T./M‑165/L Appeal dismissed.