MUZAFFAR HUSSAIN Versus SAFEENA BEGUM
MUHAMMAD SHERAZ KAYANI, J.--- The above captioned appeal has been filed against the judgment and decree passed by the District Judge, Bhimber on 17.01.2005, whereby, the appeal filed on behalf of the present appellants has been dismissed and the judgment and decree of the Senior Civil Judge Bhimber, dated 30.04.2004 has been maintained.
2. Precise facts forming the background of the above appeal are that Muzaffar Hussain and another plaintiff/ appellants, herein, filed a suit for declaration and cancellation of gift-deed dated 13.03.1995, against Muzamal Hussain Khan and another, in the Court of Senior Civil Judge Bhimber on 09.04.1995. It was stated that plaintiffs and defendant No.1 are real brothers and in Khewat No.5, village Serla, his share comes to 6 kanals and 19 marlas, which has been alienated by him, through sale-deed, award and gift-deed and through the impugned gift-deed, he has alienated the land in excess of his share, therefore, a declaratory decree for cancellation of the impugned gift-deed, to the extent of excess of his share, measuring 2 kanals 5 marlas be granted in favour of the plaintiffs. A further decree on the basis of prior right of purchase has also been prayed.
3. The defendants were summoned for filing written statement. Defendant No.1 did not appear and was proceeded ex-parte however, defendant No.2 filed written statement, stating therein that the plaintiffs have got no cause of action. The suit is not maintainable in its present form, therefore, the same be dismissed with costs.
4. The learned trial Court, in light of the pleading of the parties framed issues and directed the parties to lead evidence and upon conclusion of the usual proceedings, vide judgment and decree dated 30.04.2004 dismissed the suit of the present appellants for want of proof. Feeling aggrieved from the said judgment and decree, the plaintiff-appellants herein, knocked the door of District Court, Bhimber by preferring an appeal on 21.07.2004, which, after hearing the parties, also met the same fate and stood dismissed vide judgment and decree dated 17.01.2005, hence, the above captioned 2nd appeal before this Court.
5. Raja Khalid Mehmood, Advocate, the learned counsel for the appellants, while reiterating the stance taken in the petition contended that the judgment and decrees under challenge have been passed contrary to the facts, justice and the pleadings of the parties and are also self-contradictory. The Courts below have failed to consider and appreciate the stance of the appellants as well as the prevailing facts and circumstances of the case. The learned counsel put emphasis on the point the claim of the plaintiffs was amply proved before the trial Court, by adducing oral and documentary evidence but the learned trial Court miserably failed to appreciate the controversy in its true perspective and reached at an erroneous and arbitrary conclusion and the findings of the trial Court badly suffered from misreading and non-reading of record and evidence and were liable to be struck down, at the earliest but the learned 1st appellate Court also fell in grave error while concurring with the findings of the trial Court. The learned counsel, finally craved for acceptance of the appeal, reversal of the impugned judgment and decrees on the ground of misreading and non-reading of record and evidence and submitted that there are sufficient grounds for interference in the concurrent findings of the Courts below, therefore the impugned judgment and decrees be set aside.
6. Nobody has appeared on behalf of the respondent and they were proceeded ex parte.
7. I have heard the learned counsel for the appellants, gone through the record and considered the controversy with utmost care.
8. A careful perusal of the record of the Courts below reveals that the plaintiff, in his amended plaint, clearly and categorically claimed that gift-deed dated 13.03.1995 has been executed in excess of the share of the donor, defendant No.1; Muzamal Hussain, in favour of defendant No.2 as land measuring 2 kanals 5 marlas was alienated in excess of his share.
9. Now the question and proposition in this case remains to be resolved, whether, the impugned gift-deed was within the share of the donor or not?
10. The plaintiff, Muzaffar Hussain, in his statement deposed that they are three brothers and the share of each of them in the joint property was 6 kanals and 13 marlas. Muzamal Hussain; donor/ defendant No.1 earlier sold land measuring 1 kanal 1 marla to Mushtaq and others and in support of his version, he produced a copy of mutation Exh. PA. He stated that Muzamal, donor also transferred land measuring 1 kanal 7 marlas through gift-deed and in support of this version, he produced a copy of mutation Ex.PB. He further deposed that land measuring 1 kanal 11 marlas and 1 sirsai from the share of Muzamal, defendant was awarded by the Government for construction of Hospital and award was issued and in support of this version, he also placed photo copy of the relevant document on record. Thus, according to the calculation made by the plaintiff, the defendant/donor, through the impugned gift-deed has transferred the land measuring 2 kanals 19 marlas in excess of his share. The plaintiff also stated that on the spot, he is in possession of the suit land and prayed for cancellation of gift-deed dated 13.03.1995 to the extent of excess of the share of the donor.
11. A copy of mutation No.218 is also available on file as Ex. PB which shows that Muzamal Khan gifted the land measuring 1 kanal 7 marlas in favour of his son; Imran through a gift-deed. Copy of mutation No.231 Ex. PA reveals that the donor-defendant transferred land measuring 1 kanal 1 marla to Qurban, Mushtaq and Farman. Copy of Asamiwar shows that his land measuring 1 kanal 11 marla 1 sarsai was awarded by the Govern-ment. Hence, apart from the statement of the plaintiff, when, the calculation is made according to the available record, it becomes crystal clear that the defendant No.1 was competent to consume his share of land measuring 6 kanals 19 marlas, as mentioned in Exh. PB, 53/640 shares in the relevant Khewat No.4/5, whereas, through the abovementioned documents, he alienated the total land measuring 8 kanals 19 marlas, hence, there is no hurdle to conclude that the defendant/ donor had alienated land measuring 2 kanals in excess of his share.
12. Having made above analysis of the record, this Court is constrained to hold that the trial Court as well as the 1st appellate Court did not bother to appreciate the record available on file and also the evidence of the plaintiff, hence, the impugned judgment and decrees, in my considered opinion, are a result of serious misreading and non-reading of record and evidence.
13. It may also be observed that interference in the concurrent findings of the Courts below is not permissible in routine, however, when such misreading or non-reading of record or evidence is apparent on its face, the concurrent findings are not immune from interference.
14. According to the copy of Jamabandi, available on the file, donor/defendant; Muzamal Hussain is a co-sharer in the suit land and now the question arises, whether, a co-sharer who is not in exclusive possession of a particular survey number, can alienate that land to another person. The law is well established on the point that a co-sharer not in physical possession of the joint land can alienate only his share in the particular survey number and needless to say that he is not entitled to transfer the land from the whole Khewat in excess of his overall share in the relevant Khewat. The proposition has been resolved in case titled 'Muhammad Afzal Khan and another v. Muhammad Latif and another [1995 CLC 1951 (SC AJ&K)], wherein, the apex Court of Azad Jammu and Kashmir has observed as under:---
"10. It is a settled principle of law that a co-sharer out of possession could only validly make a transfer to the extent of his or her fractional share in that survey number and not beyond that. Admittedly the fractional share of Mst. Zubaida Begum defendant was 7 marla and 4-1/2 sersais and she was competent to alienate the land only to that extent.'
15. Again in the same judgment at page 1958 of the report it has been observed as under:-
"13. From the critical survey of the case-law we respectfully agree with the principle laid down in Mutafa Khan's case and hold that Mst. Zubaida Begum being out of possession of specific survey number could only transfer through sale-deed her fractional share in the survey number i.e. 7 marlas and 4-1/2 sersaies. The sale-deed to that extent shall stay intact but in respect of rest of the land for having been made in excess of her fractional share, stands cancelled. The High Court in our opinion committed no illegality in passing the impugned order."
16. In light of the dictum, laid down by the apex Court, reproduced above, I am of the view that Muzamal Hussain, donor-defendant was competent to alienate only his share from the impugned Khewat and not in excess, hence, the impugned gift-deed dated 13.03.1995, beyond his share, to the extent of land measuring 2 kanals is of no legal effect and consequence and liable to be set aside to this extent.
17. As far the question of right of prior purchase is concerned, not a single word has been uttered by the plaintiff-appellant in his statement in this regard and the suit was rightly dismissed to this extent and the learned Court below also opined in the right manner.
18. The sequel of above discussion is that the above titled second appeal is hereby accepted partly, to the extent that the impugned gift-deed dated 13.03.1995 shall remain intact, only to the extent of the share of the donor/defendant, whereas, to the extent land measuring 2 kanals, in excess of his share is hereby cancelled. The judgment and decrees under challenge stands modified in the manner, indicated above.
ZC/2/HC(AJ&K) Appeal partly allowed.