2016 PLP 1139 (MLD)

LAL JAN KHATTAK, J.

This revision petition under Section 115, C.P.C. is directed against the judgment and decree dated 31.01.2007 of the learned Additional District Judge-IV, Abbottabad, whereby the respondents' appeal against the judgment and decree dated 29.06.2005 of the learned Civil Judge-VII, Abbottabad, has been accepted.

2. Brief facts of the case are that petitioner Mohabat Khan had filed a suit against the respondents for declaration, mandatory injunction and possession of landed property measuring about 19 marlas falling in khasra No.2609 of Mauza Nawanshehr, Tehsil and District Abbottabad (hereinafter to be referred as the suit property). It was the petitioner-plaintiff's case that the suit property was owned by him with other co-owners but it had come to his exclusive hissadari and the respondents-defendants have no right to deny his such entitlement. He further averred in his plaint that taking advantage of his stay at abroad, the respondents unlawfully occupied the suit property.

3. Respondents, on their end, contested the suit by filing their written statement wherein they refuted the petitioner's claim. They further took the plea that by dint of two sale deeds dated 11.07.1945 and 03.01.1946, the suit property has come to them and since then they are possessing it. On the case issues, parties adduced their respective evidence whereafter the learned trial Court vide its judgment dated 29.06.2005 decreed the suit whereagainst the respondents filed an appeal which was allowed by the learned appellate court vide judgment and decree dated 31.01.2007, hence, the instant revision petition.

4. Learned counsel for the petitioner-plaintiff contended that through oral as well as documentary evidence the petitioner has proved his suit, which was decreed by the learned trial Court through a well reasoned judgment but the learned appellate court for no valid and convincing reasons has reversed the judgment and decree passed in favour of the petitioner. It was argued by the learned counsel that findings of the learned appellate court are based on incorrect approach and run contrary to the documentary evidence, hence, are liable to be reversed.

5. As against the above, learned counsel for the respondents defended the judgment and decree of the learned appellate court for its being based on proper appreciation of the case evidence. Learned counsel for the added petitioners adopted the arguments advanced by learned counsel for the petitioner.

6. I have heard arguments of learned counsel for the parties and gone through the case record with their assistance.

7. Pronounced aspect of the instant case is that in the revenue record since 1948-49, firstly predecessor of the petitioner, namely, Qalandar Khan and then the petitioner have been recorded as owners of the suit property. For the purpose of convenience, status of the parties in the column of ownership and cultivation of the suit property, as per the revenue record produced at the trial Court, is tabulated as under:- Year Owner Possessor Exhibit No. 1948-49 Qalandar Khan and others i.e. predecessor of the petitioner Khud kasht Fazal-ur-Rehman Ghair Dakhilkar Ex.DW4/1 1952-53 Qalander Khan etc. Khud kasht Fazal-ur-Rehman Ghair Dakhilkar Ex.DW4/2 1957-58 Qalander Khan etc. Khud kasht Fazal-ur-Rehman Ghair Dakhilkar Ex.DW1/P3 1961-62 Qalander Khan etc. Khud kasht Malikan Muhammad Asghar Murtahin Ex.PW1/1 1982-83 Muhabbat Khan etc. i.e. the petitioner Muhammad Asghar Qabiz Ex.PW1/1 (five sheets) 1986-87 Muhabbat Khan etc. Muhammad Asghar Qabiz Ex.PW1/1 1990-91 Muhabbat Khan etc. Muhabbat Khan etc. co-owner Ex.PW/1/1 1994-95 Muhabbat Khan etc. Muhabat Khan etc. co-owner Ex.PW/1/1 1998-99 Muhabbat Khan etc. Muhabat Khan co-owner Ex.PW1/1

8. Above referred documentary evidence reveals that since 1948-49, either predecessor of the petitioner or the petitioner are coming owners of the suit property and nowhere the respondents have been recorded as owners thereof. Even in the column of cultivation they have not been recorded as persons in possession pursuant to any sale deed. Though in the jamabandis for the years 1948-49, 1952-53 and 1957-58, respondents have been recorded in possession of the suit property but their such possession is that of 'Ghair Dakhilkar' and not on the strength of any ownership, as has been averred in the written statement and deposed by them in their evidence. Even in the Khasra Girdawari produced as Ex.PW1/2, petitioner has been shown in possession of the suit property and it was kharif 1999 when on the spot respondents were found in its possession. Prior to Kharif 1999 they have never been recorded in possession of the suit property, as its owners.

9. According to the documentary evidence, it is established that the petitioner is owner in possession of the suit property but in kharif 1999 for the first time respondents made their way into it. Of course, as mentioned earlier, in some jamabandis their possession over the suit property is there but their such possession is of 'Ghair Dakhilkar' and not as of owners, therefore, such entries and their possession of being Ghair Dakhilkar would not confer any right or title in them in the suit property.

10. Learned counsel for the respondents vehemently argued that pursuant to two deeds dated 11.07.1945 and 03.01.1946, the suit property was purchased by predecessor-in-interest of the respondents from predecessors of the petitioner. It was also argued that both these documents are thirty years old and, as such, per Article 100 of Qanun-e-Shahadat Order, 1984 presumption of truth and correctness is attached to them. The deeds mentioned above have been produced before the Court as Ex.DW1/1 and Ex.DW1/2 respectively. No doubt, both the referred documents are thirty years old and generally presumption of correctness and due execution is attached to a document, which is thirty years old, but the court is not bound to presume every document, which is thirty years old, as genuine and duly executed, as Article 100 of the Qanun-e-Shahadat Order, 1984 lays down that the court "may presume" and not "shall presume" a document, which is 30 years old as duly executed. Mere passage of a period of 30 years or more alone would not confer any genuineness to a document. Apart from oldness, producer of a document of 30 years old has to prove before the court that the transaction embodied in the deed was genuine one. In absence of any corroboratory piece of evidence no weight could be given to a document merely for its being 30 years old.

11. In the case in hand, neither predecessor of the respondents nor the respondents themselves ever tried to incorporate the deeds in the subsequent jamabandis pertaining to the suit property. It is pertinent to mention that according to the deposition of DW-1, his father was in police services and after his retirement he acted as petition writer for 7/8 years. He has also admitted that his grand father, namely, Fazal-ur-Rehman too was a petition writer, who died in the year 1974. Both the predecessors of the respondents were educated persons presumingly knowing well that a sale deed relating to a landed property is not only required to be registered but at the same time needs to be incorporated in the revenue record in order to avoid any future headache. Non-registration and non-incorporation of the sale deeds Ex.DW1/1 and Ex.DW1/2 in the revenue record, cast a serious doubt on their genuineness and authenticity.

12. Even otherwise, the deeds have not been proved in accordance with law. Though scribes of the deeds were dead but the respondents could have produced legal heirs of the scribes and of the marginal witnesses to verify their signatures on the deeds, referred above. Above omission has weakened the respondents' case. Besides, the respondents have also failed to produce in Court the register of the concerned stamps vendor in order to show that the two stamp papers were issued to their predecessor, on which the transactions were scribed. Production of the ibid register of stamp vendor or extract therefrom was very relevant because from this document it could have been ascertained that the stamp papers were actually issued to the predecessor of respondents for the purpose of scribing sale transaction thereon. It was not the respondents' case that the stamp vendor's register was neither traceable nor available in the concerned office. Non-production of the stamps vendor's register has immensely prejudiced the respondents' case.

13. Thorough and careful examination of the case record would show that the petitioner has successfully established his case through reliable and convincing evidence while, on the other hand, the respondents have not proved their stance as put forth by them in their written statement and evidence. The learned trial Court had correctly appreciated and scrutinized the case evidence whereafter suit of petitioner was decreed but the learned appellate court without properly analyzing the case evidence has reversed the trial Court's judgment and decree.

14. For what has been discussed above, this revision petition is accepted, judgment and decree of the learned appellate Court dated 31.01.2007 is set aside and that of the learned trial Court dated 29.06.2015 stands restored. ZC/4/P Revision allowed.