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Civil Appeal No. 75 of 1987 (Mzd), decided on 3rd July, 1988.

S. 17 Admission Effect Plaintiff"s admission that specified share in land was held by one of the defendants but claimed that same was purchased by his father through sale deed Failure to prove such sale would render plaintiff to be bound by his admission that such land was held by one of the defendants.

Art. 144 Adverse possession Co sharers in possession of land Nature of possession Revenue record showed that plaintiffs were holding possession of suit land as co sharers Oral evidence produced by plaintiffs by interested witnesses did not positively show that plaintiffs were holding such land in their own right in dental of rights of other defendants co sharers Plaintiffs" claim with regard to adverse possession was thus not sustainable and was rightly rejected by lower Court. [Co sharer].

P L D 1962 AJ&K 11; 1983 C L C 1029 and P L D 1985 Pesh. 29 ref.

S. 54 Sale Proof of Document purporting to be basis of sale was forged document and did not find place in revenue record Such document could not be read into evidence as proof of sale transaction. [Evidence].

Art. 142 Suit for possession on basis of title Land purchased by defendant in 1959 Such land remaining attached under provisions of 5.145, Cr.P.C. from 1960 to 1973 Suit filed in 1980 would be well within time as the period during which land remained attached would be excluded for computing period of limitation.

P L D 1957 SC (Ind ) 250; P L D 1962 Azad J&Kll; P L D 1984 Pesh. 278; P L D 1985 SC (AJ&K) 150,; P L D 1985 Pesh. 29; PLD 1957 SC (Ind.) 250; P L D 1958 Lah. 568; P L D 1978 SC (AJ&K) 33; 1983 CLC 1029 and 1984 S C M R 909 ref.

S. 100 Second appeal Scope Second appeal to be competent only on law points Point of limitation and to draw inference from documentary evidence for arriving at a decision with regard to adverse possession being law points, second appeal against such points would be competent.

O. VI, R. 2 & O. VII, R. 18 Documents neither produced alongwith plaint nor entered in the list to be added or annexed to such plaint Effect Plaintiffs" prayer to amend plaint to add therein that their father purchased land from "G" through a sale deed executed in specified year, was turned down by Trial Court Such matter having not been challenged in revision became final Plaintiffs subsequently relied on a different sale deed in respect of same land purported to be executed by "S" Plaintiffs did not produce such document Evidence led by plaintiffs to prove such document could not be looked into because same had not been pleaded in accordance with provisions of O.VII, R. 18 and 0. VI, R. 2, C.P.C. No amount of evidence could be looked into upon a plea which was never put forward either in plaint or in written statement.

A I R 1930 PC 57 rel.

Document Admissibility of Plaintiffs producing two documents executed on same date pertaining to same land One document showed that such land had been mortgaged in favour of plaintiffs" father with a right to redeem while the other document revealed that it had been sold to plaintiffs" father Evidence produced by plaintiffs to explain such contradiction being unreliable, authenticity of such documents could not be deemed to be above board.

Art. 144 Object and scope of Law of Limitation Object of law of limitation was not to deprive a person of his property.

It is not intended by the Law of Limitation to deprive a person of his property. The essence of the Law of Limitation is to provide against dilatoriness and negligence in the enforcement of one"s right but when a party contests a claim in the proceedings and there is likelihood that the proceedings may finish in his favour and he may get relief he is interested in but if proceedings terminated against him and thereafter he sues for the relief, it cannot be said that he was negligent or he failed to avail to himself the cause of action that had accrued to him.

M. Yunus Tahir for Appellants.

M. Arif Khan for Respondents.

This appeal has been filed to challenge an order dated 20th July, 1984 passed by the Additional District Judge Poonch (Bagh) whereby the appeals filed against orders dated 8th October, 1978 and 30th October, 1984 passed by Sub Judge, Dhirkot, were rejected.

2. The brief facts of the case which gave rise to this appeal are that appellants filed a suit against the respondents on 12th August, 1959 in the Court of Sub Judge Bagh on the basis of adverse possession. It was alleged that they are occupancy tenants of land comprising Survey No. 834 measuring 23 kanals situate in village Makhiala Tehsil Bagh to the extent of one half and the other half of it was held by Ghulam Hussain, the father of Muhammad Rafique Khan, respondent as an occupancy tenant who in the year 1982 Bk. alienated it in favour of their father on payment of Rs. 200 and since then they are in possession and enjoyment of it in their own right without payment of any rent to the proprietors, therefore, the sale deed dated 7th August, 1959 executed by Muhammad Rafique Khan and Muhammad Yaqoob Khan in favour of Ali Marad Khan about it is null and void.

3. When the defendants respondents contested the suit and denied the claim of the Appellants, the learned Sub Judge tried the suit and through an order dated 8th October, 1978 dismissed it. The appellants challenged the said order by way of an appeal in the Court of District Judge which was transferred to the file of Additional District Judge Poonch (Bagh).

4. When the appeal was pending in the Court of District Judge, Ali Marad Khan who is since dead and is represented by the respondents Nos. 1 to 6 filed a suit for possession of the said land in the Court of Sub Judge Dhirkot on 3rd December, 1980 and claimed that he has purchased the suit land through sale deed dated 7th August, 1959 and the appellants are not ready to deliver possession of it, therefore, a decree for possession may be passed in his favour.

5. The appellants contested the suit filed by Ali Marad Khan and pleaded that they are holding the possession of the land in their own right and their adverse possession has matured into ownership. Furthermore, they have made improvements over the land worth two lass of rupees in the shape of construction of houses and plantation of trees etc. It was further claimed that the plaintiffs failed to file the suit within the period of limitation.

6. The trial Judge after settlement of issues, recorded evidence of the parties and through his judgment, dated 30th October, 1984, decreed the suit. The appellants defendants challenged the said order by way of an appeal in the Court of Additional District Judge Poonch (Bagh).

7. As both of the appeals pertained to the same land and the parties were the same, therefore, the Addl. District Judge disposed of them through a single order dated 20th July, 1986 and rejected both of them and the said order is subject matter of the present appeal.

8. The learned Counsel for the appellants has assailed the order passed by the Additional District Judge on the following grounds: --

(i) The appellants are in possession of this land since the year 1982 Bk and their adverse possession over it had ripened into ownership in the year 1959 AD when they filed the suit to seek declaration therefore and they led sufficient evidence to prove their claim but the lower Courts fell in error to misread the evidence and arrived at a wrong conclusion;

(ii) Ghulam Hussain Khan, the father of the respondent No.7, sold his rights in the suit land in favour of the father of the appellants through sale deed dated 5th Magh, 1981 Bk. on payment of Rs. 200 and the lower Courts unlawfully rejected the document on the basis of forgery; and

(iii) The suit for possession of the land in dispute filed by Ali Marad Khan was time barred, therefore, the decree for possession of it passed in favour of the respondents Nos. 1 to 7 (his legal representatives) is illegal.

9. To take up his first point concerning the adverse possession of the appellants over the land, he took me to sale deed (PA) and pointed out that Ghulam Hussain Khan, the father of the respondent No. 7 who held occupancy tenancy over the land measuring 11 kanals and 15 marlas, sold his rights in favour of the father of the appellants and from that day, the appellants are in possession of the land in their own right without acknowledging the rights of Chulam Hussain Khan, the respondent No. 7, Ali Marad Khan or his successors-in interest. He also made reference to the copies of "jamabandis" for 2002 Bk. 1953 AD and copy of survey register for 1955 to 1960 AD and stressed that the appellants are holding the possession of the land on payment of land revenue and this evidence is sufficient to prove their adverse possession over the suit land.

10. The appellants are in possession of the suit land in their own right since 1981 Bk. Out if in any case, the period from the year 1981 Bk to 11 8 1959 AD is not taken into account for considering the appellants" plea of adverse possession, the time from 12 8 1959 when the appellants filed a suit and declared their adverse possession over the suit land till 2 12 1980 when Ali Marad Khan filed suit for grant of decree for possession, can in no case, be overlooked and as this period is also over 12 years, therefore, the appellants" adverse possession had ripened into ownership at the date the suit was filed by Ali Marad Khan.

11. To criticise the judgments passed by the lower Courts, he stated that the document (PA) was written by one Devi Singh (petition writer) who migrated in 1947 and it was not possible for the appellants to produce him as a witness. The appellants, however, produced Muhammad Said Khan, a marginal witness of PA who affirmed that Ghulam Hussain Khan sold the suit land in favour of the father of the appellants through this deed. He denied the suggestion that it was a forged document, therefore, there was no reason for the lower Courts to reject his statement and hold that PA is a forged document.

12. He referred to the written statement filed by the respondents and argued that the stand taken up by the plaintiffs appellants in para 3 of their plaint was not controverted by the defendants respondents, therefore, it will be presumed that PA was accepted to be a genuine document and in this view of the matter, the appellants were not obliged to produce any evidence in support of its execution.

13. To assail the decree passed in the suit filed by the respondents Nos. 1 to 6 for possession of land, the learned Counsel argued that Ali Marad Khan, predecessor in interest of the aforesaid respondents purchased this land on 7th August, 1959 and filed the suit for possession of it on 2nd December, 1980 i.e. after the expiry of the period of more than 21 years, therefore, this suit was time barred and it would have been dismissed by virtue of the provisions of Section 3 of the Limitation Act. In support of his contention he cited P L D 1957 .SC (India) 250, P L D 1962 AJ&K 11, P L D 1984 Peshawar 278, PLD 1985 SC (AJBK) 150 and P L D 1985 Peshawar 29.

14. The learned Counsel for the respondents prayed that both of the lower Courts concurrently found that the appellants were not in adverse possession of the land and as the District Judge is a sole Judge of facts, therefore, this second appeal is not competent and this Court has no jurisdiction to conduct appraisal of the evidence once again to arrive at a different conclusion.

15. Although the stand of the appellants" Counsel that the lower Courts fell in error of misreading of the evidence is not correct, yet if this Court, for a reason, considers necessary to examine the order passed by the lower Courts in, the light of the evidence brought on the file, it will not derive any conclusion other than the one which has been derived by the lower Courts.

16. The appellants admitted in their plaint that the respondent No. 7 held one half share in the land comprising Survey No. 834 but claimed that his father sold his share: in favour of their father through sale deed written in the year 1982 Bk. by Sher Ahmed Khan petition writer, yet failed to prove it hence they are bound by their admission

17. The revenue record placed on the file which consists of "Jamabandis" for 2002 Bk. 1953 AD, survey register for 1955 to 1960 show that the appellants are holding the possession of the suit "land as co sharers. The evidence led by the appellants which consists of the statements of interested persons also does not positively show that the appellants hold the land in their own right in denial of the right of Muhammad Rafique Khan and others, thus their stand with regard to adverse possession over the suit land has rightly been rejected by the lower Court. The story of sale of the suit land made by Ghulam Hussain Khan put forth by the appellants is an invention. The document PA which has been made the basis of the sale is a forged document and it was not even pleaded, therefore, it cannot be read into evidence. This document does not find place in the Revenue record i.e. "jamabandis" for 2002 Bk 1953 AD and survey register for 1955 to 1960 AD in any form which lends support to the view that it has been forged after the suit was filed in 1959.

18. Ali Marad Khan, predecessor in interest of the respondents Nos. 1 to 6 filed a suit for possession of the land on the basis of title based on sale deed dated 7th August, 1959 and this is not a time barred claim. Ali Marad Khan took possession of. the land at the time of the execution of the sale deed in August, 1959 and cultivated wheat crop into it as is admitted by Muhammad Afzal Khan, PW but on the basis of a wrong information provided by the appellants, the Magistrate 1st Class initiated proceedings against the respondents under Section 145, Cr.P.C. and attached the land which remained with the receiver till 25 12 1973 when the appellants took possession of it. As the appellants were not in possession of the suit land from 12 12 1960 to 25 12 1973, therefore, Ali Marad Khan could not have filed a suit for possession against them because during this period the land remained attached, hence the suit which was filed on 2 12 1980 was within time and the decision arrived at by the Courts below is not in any way incorrect, it was argued by the respondents" Counsel and he cited the authorities reported in P L D 1957 S.C. (India) 250, P L D 1958 Lahore 568, P L D 1978 SC (AJ&K) 33, 1983 C L C 1029, P L D 1984 S C M R 909, P L D 1984 Peshawar 278 and P L D 1984 SC (AJ&K) 150.

19. I have studied the record of the case, the authorities cited at the Bar and considered the points raised by the learned Counsel for the parties.

20. Before reverting to examine the merits of the objections raised by the appellants" Counsel against the judgment of the lower Courts, the objection with regard to the competency of the present appeal in the light of the provisions of section 100, C.P.C. is required to be seen.

21. It has been laid down in Section 100, C.P.C. that an appeal shall lie in the High Court when the decision appealed against, is contrary to law or usage having the force of law or some important issues of law were not resolved.

22. The contention of the respondents" Counsel is that the District Judge is the sole Judge of facts and here in this case, not only the District Judge but even the trial Judge, after taking into consideration the evidence brought on the file, found that the appellants" possession over the suit land is not adverse and the document PA is an act of forgery, therefore, this second appeal is not competent.

23. The objection of the learned Counsel for the respondents that second appeal lies only on law points and the learned District Judge is the sole Judge of facts, is no doubt, correct, but here in this case, the objection cannot be allowed because the grievance of the appellants is that the lower Courts conducted misappraisal of the evidence, and derived a wrong conclusion. The point of limitation and to draw inference from the documentary evidence for arriving at a decision with regard to adverse possession over the suit land are law points hence I pass on to examine the merits of the appeal.

24. The appellants rely on document PA to prove that the land in dispute was purchased by their father from Ghulam Hussain Khan, the father of the respondent No. 7. The date of the execution of document (PA) is 5th Magh, 1981 Bk. and it is written by Devi Singh petition writer but the appellants, in pare 3 of their plaint, took up the stand that their father purchased the suit land from Ghulam Hussain through a sale deed executed in 1982 and the scribe of that sale deed was Raja Sher Ahmed Khan, petition writer. The appellants, however, prayed for grant of permission to amend the plaint and add into it that their father purchased this land from Ghulam Hussain Khan, through a sale deed executed in 1981 Bk. and the scribe of it was one Devi Singh but their prayer was turned down by the trial Court and this order was not challenged by way of revision and now the fact of the matter is that the appellants rely on a sale deed executed by Sher Ahmad Khan petition writer, in the F year, 1982 Bk. but they did not produce any such sale deed and in view of their pleadings, the document (PA) is of no assistance to them and it cannot be read into evidence to prove the sale of occupancy rights in the suit land in favour of their father by Ghulam Hussain Khan. The evidence led by the appellants to prove document (PA) cannot be looked into because it has not been pleaded by them as is laid down in Order VII, Rule 18 read with Order VI, Rule 2, C.P.C. and in an authority reported in A I R 1930 PC 57 and the relevant observation is hereinafter re-produced:

"Where a claim has been never made in the defence presented no amount of evidence can be looked into upon a plea which was never put forward."

25. The copies of "Jamabandis" for 2002 Bk and 1953 AD and copy of survey register for 1955 to 1960 AD were produced in they evidence. The appellants are shown to be in possession of the land as co sharers, of it. This documentary evidence negates their claim of adverse possession and the absence of entries of (PA) or any other sale deed in the Revenue record supports the respondents" contention that the appellants remained in possession of the suit land as co sharers.

26. The oral evidence consists of the statements of Dost Muhammad and Muhammad Said Khan. Both of these witnesses are close relatives of the appellants, therefore, their statements which are contradictory" to the documentary evidence cannot be taken into consideration unless there is corroborated evidence. Muhamad Bakhsh one of the appellants appeared as a witness but he did not say that he or the other appellants were holding this land in adverse possession and keeping in view this state of the facts, I think, the decision arrived at by the lower Courts that the appellants failed to prove their adverse possession over the suit land is not in any way incorrect. The rule laid down in the authorities reported in P L D 1962 AJ&K 11 and 1983 CLC 1029 and P L D 1985 Pesh. 29 also does not provide any assistance to the appellants" to prove their adverse possession because the facts of those cases are different from the facts of this case.

27. The second objection of the appellants, Counsel is that the lower Courts fell in error to conclude that (PA) is a forged document. I paid deep thought over the point and conducted very close examination of the evidence of the appellants to prove that (PA) is a genuine document but failed to differ with the decision arrived at by the lower Courts.

28. The appellants produced two documents i.e. PA and PB which stand executed on the same day i.e. on 5th"Magh, 1981 Bk. pertaining to the same Ian executed by Ghulam Hussain in favour of the father of the appellants. Document PB speaks that Ghulam Hussain mortgaged his share in the land comprising Survey No.834 with the condition to redeem it in favour of the appellants" father on payment of Rs.200 whereas document (PA) reveals that Ghulam Hussain Khan sold his rights in the suit land in favour of the father of the appellants for a sum of Rs.200. To explain this contradiction the appellants led evidence to the effect that the document PB was incorrectly written by the scribe who was a Jemadar in the postal department and was not a qualified petition writer and when the document was read to the executant, the fault was detected, thus document (PA) was got executed. This story does not appeal to me. If it would have been true, there was no reason for the appellants to retain document (PB) intact because it was of no use to them, rather it was against their interest to keep it intact and it must have been destroyed there and then. Furthermore, in para.3 of the plaint, the appellants pleaded that their father purchased the suit land from Ghulam Hussain, the father of the respondent No.7 through a sale deed written in the year, 1982 Bk. and its scribe was Raja Sher Ahmad Khan petition writer and the said deed was put on fire by the Dogra Army in the year. 1947 but later on, the appellants produced documents (PB AND PA) but none of those documents is written by Raja Sher Ahmad Khan and in this view of the matter, I think, the authenticity of document (PA) is not above board.

29. Now it remains to be seen as to whether Ali Marad Khan filed the suit for possession of the land within the period of limitation. The objection of the appellants" Counsel is that Ali Marad Khan purchased the suit land in the year, 1959 but filed a suit for possession of it on 3rd December, 1980 which was time barred because it was filed after the expiry of 12 years. This objection keeping in view they peculiar circumstances of this case, I think, is not correct. The land was, no doubt, purchased by Ali Marad Khan on 5th August, 1959 but on the report of the appellants submitted to the police on 12th December, 1960, the 1st Class Magistrate attached this land on 14th March, 1961 and handed over its possession to the receiver who, remained in its possession till 25th December, 1973, therefore, the period from 14 3 1961 to 25 12 1973 cannot be read in favour of car against the interest of any of the parties. The land was in possession of the receiver on behalf of the Court till 25 12 1 73, therefore, there was no sense or justification for Ali Marad Khan to sue the appellants for the recovery of possession of It, especially when he contested during the proceedings taken under section 145, Cr.P C that the appellants were in possession of the land in dispute and asserted that he was in fact in peaceful possession of it at the time, it was attached.

30. The Supreme Court of India in a case reported in P L D 1957 (India) at page 251 where the point of identical nature was at issue, observed: --

"A receiver is an officer of the Court and is not a particular agent of any party to the suit, notwithstanding that in law his possession is ultimately treated as possession of successful party on the termination of the suit. To treat such receiver as plaintiff"s agent for the purpose of initiating adverse possession by the plaintiff would be to impute wrong doing to the Court and its officers. The doctrine of Receiver"s possession being that of the successful party cannot be pushed to the extent of enabling a person who was initially out of possession to claim the tacking on of Receiver"s possession to his subsequent adverse possession."

31. It is not intended by the law of Limitation to deprive a person of his property. The essence of the law of limitation is to provide against dilatoriness and negligence in the enforcement of one"s right but when a party contests a claim in the proceedings and there is likelihood that the proceedings may finish in his favour and he may get relief he is interested in but if proceedings terminated against him and thereafter he sues for the relief, it cannot be said that he was negligent or he failed to avail to himself the cause of action that had accrued to him.

32. The cause of action arose to Ali Marad Khan on 25 12 1973 when the criminal Courts finally rejected his claim of having been in peaceful possession of the land on 12 12 1960 and he filed suit for recovery of possession of the land on 3 12 1980 which was within time.

33. As no illegality has been found in the judgment impugned by way of the appeal, hence this appeal fails with no order as to costs.

A . A . / 343 / H . A . Appeal dismissed.

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