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Civil Appeal No. 58/Mzd. of 1986, decided on 9^thJanuary, 1989.

(On appeal from the judgment and decree of the High Court dated 27 6 1985 in Civil Appeal No.57 of 1984).

S.44 Appeal before Supreme Court No infirmity found in the judgment of High Court No grievance of misreading/non reading of evidence established Re appraisal of evidence Scope Supreme Court would rarely re appraise evidence, unless gross miscarriage of justice in non reading or misreading of evidence was established Held, unless it was established that impugned judgment suffered from illegality which might perpetuate injustice same could not be disturbed in routine by Supreme Court.

Art.144 Adverse possession Proof of Claim of adverse possession set up by appellant was resisted by respondents within twelve years of the institution of suit as per evidence of appellant Question of adverse possession thus loses all importance Statements of appellant"s witnesses run counter to averments made in the plaint Evidence of all witnesses barring one, being all hearsay could not be read to support the issue of adverse possession set up by appellant. [Evidence].

Kh. Muhammad Saeed, Advocate for Appellant.

Sardar Rafique Mahmood, Advocate for Respondents

This appeal, by leave, moved by Taleh Muhammad, appellant, to assail the judgment of the High Court dated 27 6 1985, whereby the High Court was pleased to dismiss the appeal in affirmation of the possessory decree of the suit land passed by the District Judge, Poonch, on 15 8 1984, arises in the following way:

2. Bahadur Ali Khan and others, respondents, filed a suit for possession of land measuring 32 kanals and 6 marlas situate in the area of village Kanjeri, Tehsil Pallandri (District Poonch), inter alia, on the ground that the land was mortgaged by them with Taleh Muhammad for a sum of Rs. 150 and Taleh Muhammad, despite their willingness to pay the mortgage amount, was hesitant to hand them over the possession of the suit land.

3. Taleh Muhammad repudiated the claim of the respondents as put forth and also filed a suit to have a decree of possessory title, inter alia, on the ground that the land was his ancestral property which was inadvertently entered in the name of Karak Ali Khan, the grandfather of the defendants, and he, in the year 1914, forcibly took possession of the suit land and since then he held it adversely and his possession as such has matured into title by virtue of adverse possession.

4. The learned Sub Judge consolidated both the suits and vide judgment, dated 18th of February, 1979, decreed the suit of Taleh Muhammad, appellant, in holding that he was in adverse possession of the suit land which had ripened into ownership. Resultantly the suit of Bahadur Ali Khan and others, respondents, was dismissed.

5. Bahadur Ali and others, respondents, feeling aggrieved of the aforesaid judgment and decree of the Sub Judge appealed to the District Judge, Poonch, who, through his judgment and decree dated 26th July, 1984, accepting the appeal moved by Bahadur Ali and others held that Taleh Muhammad"s possession over the suit land was a permissive one and the learned Sub Judge erroneously held the possession of Taleh Muhammad to be adverse to Bahadur Ali and others. The learned District Judge thus felt advised to discharge the judgment and decree made by the learned Sub Judge and passed a possessory decree on the basis of title in favour of Bahadur Ali and others, respondents herein. Appeal moved by Taleh Muhammad before the High Court also failed vide the impugned judgment passed on 27 6 1985. Hence this appeal, by leave, to assail the said judgment of the High Court.

6. We have heard the learned counsel for the parties in support of their respective contentions.

Kh. Muhammad Saeed, the learned counsel for the appellant, inter alia, submitted that since the statements of the witnesses, namely, Dalel Khan, Muhammad Fazil, Muhammad, Hussain, Muhammad Azam and Fateh Sher, examined by the appellant, have not been appreciated and discussed by the learned Judge, the impugned judgment is a defective one as it suffers from non reading of the evidence; and this omission warrants remand of the case to the High Court to decide it afresh after appreciating the evidence left out of consideration.

7. As against this Sardar Rafique Mahmood the learned counsel for the respondents, maintained:

(i) that the statements c f the witnesses, referred to above by Kh. Muhammad Saeed contain all hearsay evidence and have no relevance to the controversial issue of adverse possession;

(ii) that the examination of the statements of these witnesses would show that the rather prove the case of the respondents that the appellant" possession had all along been a permissive one,

8. We have given our best thought to the arguments advanced at the Bar and have also gone through the record. We have come to the conclusion that this appeal merits no consideration and is liable to be dismissed.

9. The evidence, relevant to the issue of adverse possession, we find in the statements of two witnesses, namely, Faiz Muhammad and Muhammad Iqbal, P.Ws. and the statement of Taleh Muhammad, appellant. Taleh Muhammad, appellant, in his plaint stated that hostile title was set up in April, 1958, when the defendants respondents unsuccessfully tried to occupy the aforesaid land forcibly. Faiz Muhammad and Muhammad Iqbal, P.Ws. stated on 17th of January, 1979, that about 15/16 years ago, Taleh Muhammad was ploughing the suit land when Bahadur Ali and others tried to eject him. It would, thus, appear that the statements of these witnesses run counter to the averment made in the plaint. If we take the statements of Faiz Muhammad and Muhammad Iqbal, P.Ws., as correct, the adverse possession of Taleh Muhammad would start somewhere from 1964 or 1965 and not from April, 1958, as claimed by Taleh Muhammad. The suit was filed on 9^thApril, 1974, and even if we believe the statements of Faiz Muhammad and Muhammad Iqbal as correct, the suit was filed within the period of twelve years from the date the appellant resisted the forcible possession of the respondents; thus, the question of adverse possession loses all importance. In the circumstances, the argument of the counsel for the appellant cannot be accepted that the adverse possession of Taleh Muhammad had ripened into ownership.

10. The first limb of the arguments advanced by Kh. Muhammad Saeed which, inter alia, contains the grievance of non reading of some of the evidence is also without substance. The evidence of all witnesses, barring the one referred to in para. 9 above, is all hearsay and it cannot be read to support the issue of adverse possession raised by the appellant. Besides, as repeatedly emphasised, this Court would rarely re appraise the evidence unless gross miscarriage of justice in non reading or misreading of the evidence is established.

But no such infirmity is noticed nor brought to our notice in this case.

In view of the above we are of the considered view that there is no infirmity in the impugned judgment of the High Court to call for our interference. Unless it is not established that the judgment suffers from an illegality which may perpetuate injustice, the same cannot be disturbed in routine it this Court.

In the result this appeal fails with costs.

A.A./243/S.C.A.

Appeal dismissed

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