1999 PLP 2016 (YLR)

Instant civil revision is directed against the judgment and decree, dated 12‑2‑1999 passed by the learned District Judge, Khushab whereby he reversed the findings of the trial Court decreeing the suit of the plaintiffs/petitioners vide judgment and decree dated 23‑10‑1995.

2. Briefly stated the facts are that Sultan Mubariz plaintiff/predecessor‑in‑interest of the present petitioners filed a declaratory suit to the effect that he was owner of suit land measuring 15 Kanals and 17 Marlas comprising Khewat No.384/381, Khatuni No.865, Khasras Nos.91 and 92 according to Register Haqdaran Zamin pertaining to the year 1984‑85, situated in Village Dhadhar District Khushab. He further contended that the suit land originally belonged to Sher Baz father of defendants/respondents who sold the same to their grandfather Noor Khan vide sale‑deed, dated 19‑2‑1911 which could not be got implemented in the Revenue Record for some unknown reason, that he (predecessor‑in‑interest of the petitioners) came to know about a few days earlier that defendants/respondents had been incorporated as owners in possession of the suit land in the Revenue Record. He, thus, filed a suit for declaration to the effect that he is owner in possession of suit land being legal heir of Noor Khan and that defendants/respondents have got no right over the suit land. He further prayed that the entries in Jamabandi be declared illegal, with a consequential relief of restraining the defendants/respondents to interfere in his possession.

3. The defendants/respondents contested the suit contending therein that disputed land was no doubt owned by Sher Baz but the same was never sold to Noor Khan. They asserted that they were owners in possession of the suit land and the alleged sale‑deed, dated 19‑2‑1911 was a forged document. Preliminary objections of limitation, cause of action, locus standi, estoppel and, maintainability of suit were also raised and special costs were also demanded.

4. The divergent pleadings of the parties gave birth to the following issues:‑‑ (1) Whether the plaintiff is owner in possession of the suit land and entries in Revenue Record are liable to correction? OPP. (2) Whether the suit is time barred?OPD. (3) Whether the plaintiff has no cause of action and locus standi to file the suit? OPD. (4) Whether the plaintiff is estopped by his words and conduit? OPD. (5) Whether the form of the suit is incorrect? OPD. (6) Whether the suit has been filed just to harass the defendants and defendants are entitled to recover special costs under section 35‑A of C.P.C.? OPD. (7) Relief.

5. In support of their stand plaintiffs/petitioners examined P.W.1 Maula Bux and Sultan Mubariz (predecessor‑in-interest of the present petitioners) as P.W.2. They also brought on record copy of field book for the year 1891‑92 Exh.P.1, copy of field book for the year 1913‑14 Exh.P.2, Copy of field book for the year 1977‑78 Exh.P.3, copy of Jamabandi for the year 1913‑14 Exh.P.4, copy of Jamabandi for the year 1977‑78 Exh.P.5, copy of Jamabandi for the year 1988‑89 Exh.P.6 and the original document, dated 19‑2‑1911 Exh.P.7. In rebuttal the defendants/respondents examined Gul Muhammad D.W.1 and Azhar Khan as D.W.2. Their learned counsel brought on record copy of Jamabandi for the year 1988‑89 Exh. D.1, copy of Khasra Gardawari for the year 1987‑91 Exh.D.2, copy of Khasra Gardawari for the year 1991‑93 Exh.D.3, copy of Jamabandi for the year 1908‑09 Exh.D.4, copy of Jamabandi for the year 1913‑14 Exh.D.5, copy of Jamabandi for the year 1992‑93 Exh.D.6, copy of Khasra Gardawari from Kharif 1994 Exh.D.7 and copy of application Exh.D.8.

6. After going through the evidence produced by the parties the trial Court decreed the suit vide judgment and decree, dated 23‑10‑1995. The defendants/respondents felt aggrieved of the said judgment and decree and filed an appeal which was accepted vide judgment and decree, dated 12‑2‑1999. Hence the instant civil revision.

7. Arguments have been heard and record perused.

8. It is submitted by the learned counsel for the petitioners that Sher Baz had alienated the suit land in favour of Noor Khan vide sale‑deed, dated 19‑2‑1911, that as the said document is more than 30 years old, so it shall be presumed that the same had been executed by Sher Baz in favour of Noor Khan and there was no need to adduce any further evidence to prove its execution, that the plaintiffs/petitioners though not bound to adduce any evidence to prove the execution of document Exh.P.7 yet produced P.Ws. 1 and 2 who also proved the stand of plaintiffs/petitioners, that as such trial Court rightly decreed their suit, that, however, the Appellate Court has wrongly reversed the said findings, that judgments being at variance, revision be admitted for hearing.

9. It is evident from the facts disclosed above that the trial Court decreed the suit attaching presumption of correctness to the document Exh. P.7 as contemplated by section 100 of Qanun‑e‑Shahadat. However, the Appellate Court did not see eye to eye with the reasonings of the trial Court and consequently reversed the said findings. The question arises, if the said presumption can be drawn in respect of instant document. Allegedly the said document was executed on 19‑2‑1911 and thereafter, it was never acted upon. There is no doubt that presumption of execution can be drawn in respect of document purporting to have been executed 30 years ago, yet this presumption is discretionary and not imperative. The presumption mentioned in this Article 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. The Article shows that the Court "may presume" and not that it "shall presume", a document 30 years old and produced from proper custody to be genuine. The Court can refuse to apply the presumption where evidence in proof of the document is not available or where evidence in proof of the document has been produced, but disbelieved. It may also refuse to raise the presumption where it has reasons to believe the document to be a fabrication or where grave suspicion attaches to it, e.g. where a document is suspicious on the face of it on account of erasures and rewriting. The effect of the presumption may be weakened by circumstances which tend to raise doubts as to the authenticity of a document.

10. In the instant case the petitioners have tried to prove the execution by examining P.Ws. 1 and

2. However, they have failed to give any satisfactory explanation for not getting the said document implemented for the last 81 years, as the suit was filed in 1992 in respect of document allegedly executed on 19‑2‑1911. They have tried to prove the execution said document Exh.P.7 by producing documents Exhs. P.I to

6. A perusal of documents Exhs.P.1 to 6 clearly reveal that these have got no relevancy, so far as the execution of document Exh.P.7 is concerned. On the other hand the defendants/respondents have brought on record documents Exh.D.l to 7 which go to establish their stand that they have been coming in possession of the land, a subject. matter of document Exh.P.7.

11. Since the document, dated 19‑2‑1911 was never acted upon during the last about 81 years and there is no satisfactory explanation for not doing so on the part of plaintiffs/petitioners, so no presumption as contemplated by Article 100 of Qanun‑e Shahadat can be attached to such document. The presumption mentioned in this Article is, permissive and not imperative. There is also no cavil to the proposition that question whether a presumption under Article 100 should not be raised is primarily a question for the trial Court. The Appellate Court is slow to interfere with the discretion exercised by the first Court in raising or declining to raise the presumption under this Article, and it will not interfere unless the discretion has been exercised arbitrarily, capriciously or perversely, or without the consideration of all the relevant facts and circumstances of the case, or unless the reasons given are prima facie unsound, or the first Court has raised the presumption in favour of the document apparently without carefully examining it. It is evident from the judgment and decree of the trial Court that it has attached presumption of genuineness without carefully examining, analysing and scanning the document which task has been carried out analytically by the Appellate Court.

12. The upshot of above discussion is that the judgment rendered by the learned District judge, Khushab is unexceptionable and the same is upheld. Resultantly revision petition fails and is hereby dismissed in limine. H.B.T./S‑418/L