FAZAL DAD and others vs JEHANDAD and others

ORDER

' The above-captioned two appeals have been filed against the judgment and decree of the learned District Judge Kotli passed on August 29, 1987. As both appeals are directed against common judgment and decree of the District Judge, these are, therefore, disposed of together.

2. The facts leading to the present controversy, briefly stated are that Fazal Dad and Muhammad Yusuf (appellants herein) transferred land under survey members 324 and 254 measuring 14 kanals and 3 marlas situate in village Saroa ehsil Sehnsa District Kotli through a registered sale-deed on July 8, 1976 in favour of Bagh Hussain (deceased), father of respondents Nos.1 to 5 and husband of respondent No,6. On July 20, 1976, Bagh Hussain filed a suit in the Court of Sub-Judge Sehnsa against defendants-appellants Fazal Dad and Muhammad Yusuf to the effect that actually they sold land comprising Survey numbers 154, 349 and 349/1, measuring 13 kanals and 11 marlas and also handed over possession of this land but by practising fraud they manoeuvred the entry of survey numbers 324 and 254 in the sale-deed. In these circumstances he sought a decree of rectification of the sale-deed and perpetual injunction against some other persons including Walayat, the other appellant.

3. This suit was resisted by the defendants who denied the correctness of the contents made in the suit and claimed that in fact land under survey numbers 324 and 254 was sold to Bagh Hussain (deceased) father of respondents Nos.1 to 5 and possession of the same land was given to him.

The trial Court in the light of the pleadings of the parties framed issues. Plaintiff-respondents produced Munshi Riaz Hussain Patwari, Mahandoo, Haji Sain Muhammad, Lal Din, Allah Ditta and Khadim Hussain one of the plaintiffs who was impleaded in the line of plaintiffs, after the death of his father Bagh Hussain appeared as witnesses. In rebuttal, Munshi Faiz Akbar, Hukam Dad and Muhammad Yunus, the defendants-appellants appeared as witnesses. The plaintiffs-respondents in rebuttal again produced Abdul Aziz and Sain Khan as their witnesses.

4. At the conclusion of the trial, the trial Court vide judgment and decree, dated October 31, 1984, decreed the suit of the plaintiffs-respondents in their favour. This judgment was assailed in appeal before the learned District Judge Kotli who vide judgment and decree, dated August 29, 1987 dismissed the appeal of the defendants-appellants and concurred with the finding recorded by the learned Sub-Judge, Sehnsa in favour of plaintiffs-respondents.

5. I have heard the learned Counsel for the parties and have perused the relevant record of the case with utmost care.

6. It was argued by the learned Counsel for the appellants that in fact land out of survey numbers 324 and 254 measuring 14 kanals and 3 marlas was sold through sale-deed, dated July 8, 1976 to Bagh Hussain. It was further argued that in fact possession of this land was given to Bagh Hussain and that till this time the respondents are in possession of the land under survey numbers 324 and

254. The Courts below have misread the evidence and have wrongly rectified the survey numbers through the decrees allowed in favour of the plaintiff-respondents. It was submitted by the learned Counsel for the appellants that the Courts below have wrongly held that the plaintiff-respondents are in possession of the land under survey numbers 154, 349 and 349/1. According to the learned Counsel the decision of the Courts below was based on mere conjectures and surmises.

7. As against this, the learned Counsel for the respondent raised the following points:-

(i) That there was concurrent findings in favour of the plaintiff-respondents, therefore, this second appeal is liable to be dismissed. On facts he maintained that land under survey numbers 324 and 254 was already alienated firstly through registered gift deed, dated April 7, 1971 in favour, of Shukkar Din by Muhammad Yusuf appellant and subsequently Fazal Dad, Idrees and Ismail through a registered sale-deed, dated June 27, 1971 alienated the land in favour of Lal Din who as vendee is in possession of the same;

(ii) that land under survey numbers 324 and 254 is under continuous cultivating possession of Lal Din whereas land under survey numbers 154, 349 and 349/1, measuring 13 kanals and 11 marlas since 1976 is entered in the Revenue Record firstly in the name of Bagh Hussain and then in the name of the present plaintiff-respondents. In support of his contention besides oral testimony of the witnesses, the learned Counsel relied on revenue record Ex. PA and PA/4,PA/5, and the attested gift deed PA/2 and sale-deed Ex.PA/3.

' I have considered the respective contentions raised by the learned Counsel for the parties. All the witnesses who have appeared on behalf of the plaintiff-respondents have unanimously deposed that land out of survey numbers 154, 349 and 349/1 was, in the light of the contract, given in possession of Bagh Hussain by the defendants-appellants and since then, the present respondents are in possession of the same. In Ex. PA (Copy of Khasra Girdawari for the year 1976- 77), the possession of Bagh Hussain was entered on land falling under survey numbers 154, 349 and 349/1. Again, in Ex. PA/4, which is a copy Khasra Gudawari commencing from the years 1974 to 1979, the possession of Bagh HUssain is entered against' the land comprising survey numbers 154, 349 and 349/1 Ex. PA/2 is a copy registered gift deed executed Muhammad yusuf in favour or one Shukkar Din, , wherein the land under survey number was given.To Survey number 90 is an suryey number In the recent settlement it has been given a new number i,e.

324. Again; PA/3 is a sale-deed which was executed by the appellant, Fazal 'Dad alongWith Muhammad Ismail and Muhammad Idress in favour of Lal Din Through this sale-deed, land under survey numbers 33, 90 and 108 was sold to him on June 27;1971: It is clear from the statement of Patwari (Riaz Hussain) whok statement is at page 29 of the file of the trial Court that land under survey number 324 previously was bearing survey number 90. He has further deposed that land presently shown under survey number 254 was previously entered under survey number 108. So, on the basis of this evidence and keeping in view the oral testimony of the witnesses particularly the statement of Sain Khan, witness, it becomes crystal clear that in fact land under survey numbers 154, 349 and 349/1 measuring 13 kanals and 11 marlas was sold by Muhammad Yusuf and Fazal Dad, the appellants in favour of Bagh Hussain vide sale-deed executed on July 8, 1976. The land comprising survey numbers 324 and 254 which got place in the above-mentioned sale-deed at the relevant time was not in the ownership of the vendors as they had already alienated it in favour of Lal Din vide sale-deed executed in the year 1971. Therefore, they were not legally competent to transfer that land which was not in their ownership. In this view of the matter, both the subordinate Courts after proper appraisal of the evidence, have passed the requisite decree in favour of the plaintiff-respondents. The appellants were not legally competent to challenge the correctness of the findings of the Courts below. An appeal is not an inherent right of any party. It is the creature of statute and it can be exercised within the frame work of the statutes.The learned Counsel for the appellants have not been able to disclose that the concurrent findings of the Courts below were based either on no evidence or some material evidence was ignored or it was based on an inadmissible evidence.

9. Walayat Khan, appellant was arrayed in the line of defendants. He failed to appear as his witness in support of the contention, he has pleaded in the written statement. Under law, a presumption can be taken against him to the B effect that as he was unable to support his stand, for that reason he thought it I better not to appear in the witness-box. Minor discrepancies appearing in the statements of the witnesses is not sufficient to discredit the credibility of the evidence.

10. In the light of what has been discussed above, finding no force in this appeal, it is hereby dismissed with costs.