2020 PLP 1446 (YLR)

RAZA ALI KHAN, J.

This appeal has been filed against the judgment and decree recorded by the learned District Judge, Poonch dated 09.01.2014, whereby, the judgment and decree passed by the learned Civil Judge Court No.1, Rawalakot dated 24.03.2010 has been maintained. Precise facts of the case are that Major Khadim Hussain Khan and others, appellants herein, filed a suit for declaration and possession against Muhammad Akhtar and others, respondents herein, in the Court of Civil Judge Court No.1, Rawalakot, stating, therein, that land comprising khasra No.283 situated in village Rawalakot was in the joint ownership and possession of predecessors of plaintiffs and defendants Nos.2 to

34. It was submitted that more than 60 years ago, as a result of private partition, land comprising khasra No.283 was handed over to Juma Khan, grandfather of the plaintiffs and an agreement dated 23 Chait 1996 B.K. was executed by Mehndo Khan and abandoned his right from khasra No.283. It was further submitted that 4 marla land from khasra No.283 was given to defendant No.1 for business and defendant No.1 constructed a hotel thereupon, however, now defendant No.1 has obtained sale deed from defendant Nos.2 to 4 on 28.09.1985 for which defendants Nos.2 to 4 were not competent and were bound to private partition, therefore, sale deed dated 28.09.1985 is illegal, ineffective and inoperative against the rights of the plaintiffs and the plaintiffs are entitled to the possession of the land. The defendants contested the suit by filing written statement and refuted the claim of the plaintiffs. Muhammad Akhtar and others, respondents herein, also filed a counter suit for joint possession against Captain Muhammad Afsar Khan and others stating therein that they are co-owners in the suit land and defendant No.45 is in possession of the suit land comprising khasra No.283 and they have competently sold 5 marla land from khasra No.283 being co-owners and in possession of the land. It was submitted that after sale of 5 marla land, the share of the plaintiffs comes to 47 kanal 9 marla, whereas, only 40 kanal 3 marla land is in their possession and the defendants are in possession of 7 kanal 6 marla land in excess of their share. The defendants contested the suit by filing written statement, wherein, it is submitted that the suit land has been partitioned between the plaintiffs and defendants since more than 100 years ago. It is further submitted that predecessors of plaintiffs had sold 9 kanal 16 marla land, therefore, the plaintiffs are in possession of the land in excess of their share. The learned trial Court framed issues in light of pleadings of the parties and provided them opportunity to lead evidence and at the conclusion of the proceedings, dismissed the suit filed by appellants herein for want of cause of action as well as for want of proof and decreed the counter suit filed by respondents herein vide judgment and decree dated 24.03.2010. Feeling aggrieved, appellants, herein, filed an appeal before District Judge, Rawalakot on 14.04.2010. The learned District Judge, Rawalakot after providing the parties a right of hearing, dismissed the appeal vide impugned judgment and decree dated 09.01.2014, hence, the captioned appeal. The learned Advocate appearing for the appellants vehemently argued that predecessors of the plaintiffs and defendants were co-owners in the suit land and vide agreement dated 23 Chait 1996 B.K. Mehndo Khan has abandoned his right in land comprising khasra No.283 because he has received the compensation of land comprising khasra No.285 acquired for construction of a school. The learned Advocate submitted that subsequently Mehndo Khan also executed agreement Exh.PI in 1970 and admitted earlier agreement dated 23 Chait 1996 B.K. The learned Advocate contended that these agreements in fact were the private partition between the parties but the Courts below illegally held that an agreement does not create any right of title and misinterpreted the said documents. The learned Advocate further submitted that agreements Exh.PJ and Exh.PI were more than 30 years old documents, hence, had presumption of truth under Article 100 of Qanun-e-Shahadat Order, therefore, the same were not required to be proved by producing marginal witnesses. The learned Advocate submitted that marginal witnesses of the agreement had died, therefore, the agreements were liable to be believed being 30 years old documents. The learned Advocate further submitted that both the Courts below have failed to appreciate the evidence in its true perspective and reached at a wrong conclusion which is liable to be set aside. The learned Advocate in support of his submission placed reliance on 2019 SCR 622 and PLD 2005 SC

455. Sardar Aamir Jamil, the learned Advocate for the respondents Nos.4 to 9 argued that the captioned appeal has been filed against admitted facts, hence, is not maintainable. The learned Advocate further argued that under Article 100 of Qanun-e-Shahadat, only a registered document has presumption of truth, whereas, the documents relied upon by the appellants are unattested agreements and have not been entered into the revenue record, which does not create any title. The learned Advocate further contended that respondents Nos.4 to 9 are bona fide purchasers, therefore, the appeal is liable to be dismissed. The learned Advocate in support of his submissions placed reliance on the following case law: 1. 2019 YLR 1310, 2. 2001 YLR 161 and 3. 2004 CLC 882 Sardar Muhammad Suleman Khan, learned counsel for respondent Nos.1 to 3 adopted the arguments advanced by the learned counsel for respondents Nos.4 to 9 and submitted that the appellants have not agitated the point before the Courts below regarding presumption of truth, therefore, the same point cannot be agitated in appeal. The learned Advocate submitted that under law, private partition is no partition. The learned Advocate contended that both the Courts below have appreciated oral as well as documentary evidence in its true perspective and reached at just conclusion, which is liable to be maintained. I have heard the learned counsel for the parties and gone through the record of the case. The moot point which required resolution by this Court is whether the Courts below fell in error while disbelieving agreement dated 23 Chait 1996 B.K. and agreement Exh.PJ which were more than 30 years old documents. Article 100 of Qanun-e-Shahadat Order 1984 lays down that Court "may presume" and not that "shall presume" document 30 years old and produced from proper custody to be genuine. The presumption of correctness of document executed more than 30 years back is permissive and not imperative. Even if a document is 30 years old and is produced from proper custody, the Court is not bound to presume its genuineness, however, it is for the trial Court to decide, the appellate Court would be slow to interfere with discretion exercised by the trial Court in raising or declining to raise presumption under Article 100 of the Qanun-e-Shahadat Order in a judicious manner, it should not be arbitrary without considering all relevant facts and circumstances of the case. In case titled "Jang Bahadar and others v. Toti Khan and another" (2007 SCMR 497), the Supreme Court of Pakistan observed that it is not essential to attach the presumption of truth to a more than 30 years document in all the cases without attending the relevant facts and circumstances of the case. The relevant observations recorded by the Supreme Court are recorded as under: "It is not essential for a Court to attach the presumption of execution of a document more than 30 years old in all the cases without attending to the other relevant facts and circumstances of the case before raising such presumption was claimed to be attached to such document." In case titled "Ch. Muhammad Shafi v. Shamim Khanum" (2007 SCMR 838), the Supreme Court of Pakistan observed that the Court should be very careful about raising any presumption under Article 100 of the Qanun-e-Shahadat Order in favour of old documents produced during trial of suit and further observed that where evidence to prove document is available and where the evidence is produced and disbelieved, the Court may refuse to apply the presumption. The relevant observations recorded by the Supreme Court at page 842 are as under: "It is settled law that presumption qua thirty years old document under Article 100 of Qanun-e-Shahadat Order, 1984 is permissive and not imperative. The Court must consider the evidence of the documents, in order to enable it to decide whether in any specific case it should or should not presume proper signature and execution. It is settled law that the Court should be very careful about raising any presumption under Article 100 in favour of old documents specially when the same are produced during the trial of suits in which under proprietary rights are set up on the basis of such documents/ deeds. It is also settled law that the Court may refuse to apply the presumption where evidence in proof the document is available or where the evidence has produced and disbelieved." In the case in hand, plaintiff Bashir Hussain admitted that the legal heirs of Mehndo namely Akhtar, Shoukat and Aslam etc. are co-owners in the land comprising khasra No.283. Muhammad Liaqat who appeared as witness did not depose any word regarding agreement dated 23 Chait 1996 B.K. and also admitted that the plaintiffs and defendants are co-sharers and are in possession of the land to the extent of their shares. He also admitted that Muhammad Ishaq Khan was in possession of the land as owner and thereafter, his legal heirs are in possession of the land and have constructed a building of more than Rs.100,00,000/-, therefore, these statements of the plaintiffs inclined the Court not to attach presumption of truth to the documents relied upon by the appellants. No entry in the revenue record has been made in light of agreements relied upon by the appellants and till the sale of land, the same was entered in joint ownership and possession of the parties. Moreover, the appellants are also estopped by their conduct because it is admitted by them that Muhammad Ashraf Khan has constructed a building on the suit land in their presence, therefore, now they cannot claim that the building may be demolished and can also not claim any right on the basis of agreement dated 23 Chait 1996 B.K. which was violated in their presence and they did not objected the same. In my considered view, both the Courts below rightly not attached the presumption of truth to the document relied upon by the appellants mere on the ground that the same is more than 30 years old. So far the other issues are concerned, they are the questions of facts and both the Courts below have decided the same concurrently and the learned counsel for the appellants failed to point out any misreading or non-reading of evidence to that extent and even did not argue the point of misreading and non-reading to that extent, therefore, in light of settled principle of law, the concurrent findings of facts cannot be disturbed in second appeal. In view of above finding no substance in this appeal, it is hereby dismissed. ZC/80/HC(AJ&K) Appeal dismissed.