1994 PLP 2458 (MLD)

This petition in revision under section 115 of the Code of Civil Procedure, 1908, arises out of a suit brought by Zarnosh since dead and represented by Mst. Mohsina and another and Shamsul Oamar, respondents Nos.1 and 2 against Sher Ali and others, petitioners, wherein, besides seeking a declaration of their proprietary rights in and confirmation of their possession over 4 Kanals of the disputed land, they had challenged the propriety and legality of Mutation No.4917 attested on 13-1-1986 and that entries of the Revenue Record against the respondents were void and ineffective qua. their title and for perpetual injunction.

2. The claim of the plaintiffs-respondents set up in the plaint briefly stated is that they were owners-in-possession of the disputed land in the column of cultivation by virtue of private partition/ family settlement and that defendants were not legally entitled to transfer the land aforesaid to any one and, therefore, Mutation No.4917 sanctioned on 13-1-1986 and the entries of the Revenue Record against the aforesaid partition/family settlement dated 1-4-1961 (photo copy Exb.P.W.4/2) were void and ineffective qua their rights of ownership.

3. The suit was contested by defendants Nos. l to 5 and 7 to I1 wherein the claim of the plaintiffs that they were owners-in-possession of the disputed land on the strength of private partition was controverted. A few legal objections were also taken up. The pleadings of the parties were reduced to the following issues:

(1) Whether the suit is within time? (2) Whether the suit is competent in its present form? (3) Whether the family partition has been effected between the parties, if so, its effect? (4) Whether the plaintiffs are owners to the extent of one Kanal seven Marlas? (5) Whether the plaintiffs have a cause of action? (6) Whether plaintiffs have become owners of the suit land by their family settlement through agreement deed? (7) Whether Mutation No.4917 in the name of defendants Nos.24, 25 entered on behalf of the defendants Nos.1 to 23 is wrong and ineffective upon the rights of the plaintiffs? (8) Whether the plaintiffs are owners of the suit land? (9) Whether the plaintiffs are entitled to the decree as prayed for in the plaint? (10) Relief. In the present round of litigation, after earlier remand order, the learned trial Judge decided Issue No.2 against the defendants while issue No.1 in favour of the plaintiffs. Issues Nos.3, 6, 7 and 8 were taken up together and it was held that "from the evidence available on the file it is clear that original of the partition/family settlement Exh.P.W.4,'1 is not with the plaintiffs". It was further observed that "though the plaintiffs had stated that it was handed over to Diyar Khan after scribing it ....hence in these circumstances as the deed which has been relied upon by the plaintiff is merely a photostat copy and the plaintiffs were unable to produce the original .." It was thus concluded that the claim of the plaintiffs-respondents that 4 Kanals of land had fallen to their share was not established and in consequence the impugned Mutation No.4917, dated 13-1-1986 could not be annulled. The three issues were "decided accordingly". On Issue No.4 it was held that "the plaintiffs and defendants were co-owners in the suit land to the extent of their share". In view of the findings on Issues Nos.3, 6, 7 and 8, the plaintiffs were held to have got no cause of action and were, therefore, disentitled to the decree prayed for and thus issues Nos.5 aid 9 were decided against the plaintiffs. As a result of these findings, the plaintiffs were non-suited.

4. In appeal, "the material point for consideration" agitated before the learned Additional District Judge was "as to whether in the absence of original deed the photostat copy thereof could have been taken into consideration as secondary evidence?" The learned appellate Court appears to have reversed the findings of the learned trial Judge on the question of the evidentiary value of the photostat copy of the alleged crucial deed photo copy Exh.P.W.4/2 and held that "under Article 76 of Qanun-e-Shahadat the appellants could produce copy of the original deed as secondary evidence". Rest of the discussion in the appellate order pertains to the proof of execution of the photo copy Exh.P.W.4/2 of the alleged partition deed/family settlement which is not proposed to be reiterated at this juncture. Nonetheless, the appeal was accepted, the judgment and decree non-suiting the plaintiffs was set aside and the suit of the plaintiffs-respondents was decreed.

5. Feeling aggrieved, the defendants-petitioners, as stated earlier, have challenged the appellate judgment and the decree in the instant revision.

6. From the perusal of the judgment and decree of the learned appellate Court it transpires that procedure for permitting and adducing secondary evidence has been confused with the proof of execution of the partition deed/family settlement photo copy Exh.P.W.4/2. Under section 72 of the Qanun-e-Shahadat (P.O. 10 of 1984) the contents of a document must be proved by primary evidence, unless secondary evidence becomes admissible for any reasons mentioned, in Article 76, in which case such contents must be proved by secondary evidence. Under Article 73, "Primary Evidence" means the document itself for the inspection of the Court. As against this, under Article 74 "Secondary Evidence" means and includes

"(i) certified copies given under the provisions hereinafter contained; (ii) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies; (iii) copies made from or compared with the original; (iv) counterparts of documents as against the parties who did not execute them; (v) oral accounts of the contents of a document given by some person who has himself seen it:' Both the Courts below appear to have been confused on the concept and legal implications of the secondary evidence. A few other cases have also come to my notice on the same pattern. It would, therefore, be appropriate to highlight different aspects of the concept of secondary evidence in the light of the provisions of the Qanun-e-Shahadat (P.O. No. 10 of 1984).

7. Under Article 75, documents must be proved by primary evidence except in the cases mentioned in Article

76. For resolving the controversy clauses (a), (b) and (c) of Article 76 are relevant which are reproduced hereunder:

"

76. Cases in which secondary evidence relative to documents may be 'given.

Secondary evidence may be given of the existence, condition or contents of a document in the following cases:-- (a) when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Article 77 such person does not produce it; (b) when the existence, condition or contents of the original have beg s, proved to be admitted in writing by the person against whom it is proved or by his representative-in-interest; (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. In cases (a), (c), (d) and (e), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible." It would thus be noticed that under Qanun-e-Shahadat, when the terms of a contract, or of grant, or of any other disposition of property have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of the Qanun-e-Shahadat. It is thus settled that it is for the person tendering the evidence that the case is fit for reception of secondary evidence and that one or more of six clauses of Article 76 ibid are applicable to the circumstances of the case. Again, secondary evidence of contents of a document cannot be admitted in evidence without the non-production of the original being accounted for in such a manner as to bring the case within one or more of the clauses to Article 76 of the Order. In (1) Badsha Meah v. Muhammad Sirajul Islam PLD 1964 Dacca 300 and (2) Arbab Qadir Bakhsh v. Roshan PLD 1966 Quetta 44 it was held that where a certified copy of a document was produced without calling for the original nor was it proved that the original had been lost, the certified copy was not held admissible in evidence. The ratio of these two pronouncements and plethora of other case law is that the party alleging that original of a document is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, notice to the adversary to produce document is necessary to render secondary evidence admissible under clause (a) of Article 76 ibid unless notice be excused under the provisions of Article 77.

8. Nonetheless if the secondary evidence is sought to be given without serving a not:::-- to produce, objection to the reception of secondary evidence should be taken up at the time when it is tendered in evidence. If the evidence is admitted without objection in the trial Court, the Appellate Court or the revisional Court will not entertain the objection.

9. In the instant case, notwithstanding the omission of the piatntiffs respondents to give notice to the defendants-petitioners it) produce the original partition deed/family settlement photo copy Exh.P.W.4/2, the defendants-petitioners ignored either consciously or unconsciously due to ignorance of law to take objection to the reception in evidence of the aforesaid photo copy of the deed when for the first time Zarnosh plaintiff P.W. tendered it in evidence. Again, it was tendered in the evidence of Qayamuddin (P.W.5) and that of Azam Khan (P.W.6) without any such objection.

10. In consequence and without endorsing the premises on the basis of which the learned appellate Court had accepted the deed photo copy Exh.P.W.4/2 in evidence, I hold that notice by the plaintiffs-respondents to defendants-petitioners to produce the original as required under Article 77 ibid was a sine qua non for adducing secondary evidence of the execution of the family settlement. Nonetheless, the omission by the latter to raise objection to the reception thereof in evidence, I am constrained by law, not to entertain the objection at this revisional stage.

11. The learned counsel for the defendants-petitioners has taken serious exception to the non-registration of deed photo copy Exh.P.W.4/2 on the ground-that it was a partition deed admittedly involving property worth more than Rs.100 which required compulsory registration under section 17 of the Registration Act (XVI of 1908) and having not been registered would not confer any title. This contention of the learned counsel is equally fallacious. The deed photo copy Exh.P.W.4/2 for all intents and purposes is a family arrangement and not a regular partition deed. The recitals therein would reveal that the elders of the village of the parties have effected partition between the parties orally, the memorandum whereof was recited in the settlement photo copy Exh.P.W.4/2 and, therefore, it does not require compulsory registration. (See Roshan Singh and others v. Zile Singh and others 1989 MLD 2899).

12. The deed photo copy Exh.P.W.4/2 whether it is construed to be a family settlement is saved from inadmissibility in evidence owing to elimination of sub-clause (c) from section 49 of the Registration Act. Again in the light of Pakistan Employees Cooperative Housing Society Ltd., Karachi v. Mst. Anwar Sultana and others PLD 1969 Kar. 474 as well as on general principles, "it is clear that question of the admissibility or otherwise of a document is indeed nothing more than a mere matter of procedure." The document Exh.P.W.4/2 would, therefore, become admissible in evidence although it is not registered as required by section 107 of the Transfer of Property Act, moreso when the Transfer of Property Act has not been made applicable to this Province. This principle has been reiterated in a recent judgment of Sindh High Court In re: Mst. Farooqun Nisa v. Muhammad Yasin 1987 MLD 2835. Respectfully subscribing to the above dictum, it is held that even if the document photo copy Exh.P.W.4/2 is construed to be partition deed requiring compulsory registration under section 17 of the Registration Act, 1908, having not been registered but produced as evidence without any objection, the admissibility thereof in evidence is not barred.

13. On a careful review of evidence on record, I have come to the conclusion that the document photo copy EXh.P.W.4/2 is satisfactory piece of documentary evidence to be relied upon. In other words, the plaintiffs respondents have been able to prove the execution of the document by the testimony of Qayamuddin (P.W.5) or the scribe Azam Khan (P.W.6) the marginal witness thereof. There is nothing on the record to show that they falsely deposed in regard to the execution of this document. Even the defendant-petitioners have not challenged that signatures of those witnesses were forged or fictitious as no cross-examination has been directed on that score. As stated earlier, it is now rule of evidence that if execution of a deed is proved, and its reception in evidence goes without challenge to its non -registration, the question whether it has not been registered would have no bearing upon the merits of the case.

14. Consequently, I find no substance in this revision petition which is dismissed with costs. AA./1622/P Revision dismissed.