2023 PLP 138 (CLC)

ASIM HAFEEZ, J.

C.M. No.1-C/2022. Instant application seeks permission to place few documents on record, though forming part of the lower court record but not appended with the revision petition. Costs imposed is paid in court. In view of the aforesaid and reasons pleaded, this application is allowed. And documents enclosed are taken on record, subject to all just and legal exceptions. MAIN CASE.

2. Civil revision arises out of judgment and decree dated 18.01.2011 of the first appellate court, whereby petitioner's appeal was dismissed, and judgment and decree dated 20.03.2010, passed by learned trial court, was maintained, in terms whereof suit for declaration and injunction filed by the respondents Nos.3 and 4 was decreed and Mutation(s) Nos.92 and 93, including subsequent transfer of property, through sale deed and mutated vide Mutation No.115, to the petitioner, was declared void and ineffective.

3. Dispute relates to the ownership of land measuring 6-K 18-M of village Chaila, District Sialkot ('suit land'). Petitioner claimed purchase of property from the respondents Nos. 5 to 7 - legal heirs of Ahmad Din. It is the claim of the petitioner - claiming purchase for value and without knowledge of alleged claim of respondents Nos.3 and 4 qua the property - that Ahmad Din was the occupancy tenant of suit land, who allegedly deposited consideration in cash for acquiring proprietary rights - claiming that date for deposit was extended -, and whereupon alleged ownership rights were conferred; recorded through Mutations No.92 and 93, respectively, which alleged rights were conveyed to the petitioner against consideration, recorded through Mutation No.115 (all three referred as 'adverse mutations'). Conversely, the case of the respondents Nos.3 to 4 is that their predecessor in interest - Umar Hayat - acquired ownership rights in the suit land in terms of decision dated 30.06.1924, by Tehsildar / AC-1, Sialkot, passed on the suit filed by Umar Hayat, claiming that Ahmad Din had abandoned possession of land, whose occupancy rights stood ceased - fact was endorsed vide order of 30.06.1924. Additionally, another objection was that, besides absence of any alleged occupancy right, essentially required to extend eligibility to bid to deposit acquisition amount - Zar-e-Malkana -, the amount deposited was after the cut-off date - 31.12.1977, hence, no right was claimable. Respondents sought legitimacy and protection, qua rights in suit land, based on order dated 04.01.1981 - passed by D.C / Collector while allowing application of the respondents Nos.3 and 4 for incorporation of entries in the revenue record, based on order of 30.06.1924 - and order of 03.02.1987 - passed by the Additional Commissioner while disallowing appeal of the legal heirs of Ahmad Din and affirming order of 04.01.1981. Later, respondents Nos.3 and 4 filed civil suit seeking declaration of invalidity against adverse mutations, wherein issues were framed, and evidence recorded. Upon conclusion of trial, suit of the respondents Nos.3 and 4 was decreed vide judgment of 20.03.2010, which decree sustained unsuccessful attack by the petitioner and appellate court dismissed appeal vide decision of 18.01.2011. Hence, this Civil revision.

4. Learned counsel for the petitioner submits that order of 30.06.1924 lacked legitimacy and no right can be claimed based on said order, which was never implemented, and otherwise details whereof were not found in the revenue record; and no change therein was made on its basis. Adds that consideration amount was paid, accepted and record was accordingly changed, registering ownership rights of the legal heirs of Ahmad Din, which were transferred to the petitioner, who had acquired rights with consideration and in good faith. Submits that orders dated 04.01.1981 and 03.02.1987 were passed on the erroneous assumption qua alleged existence and legality of order of 30.06.1924 - based on which ownership was claimed by the respondents Nos.3 and

4. Further submits that original copy of order of 30.06.1924 was not produced and only uncertified copy was placed on record - marked as Mark-C. Learned counsel submitted that document was inadmissible and cannot be referred to or relied upon for determining rights claimed thereunder.

5. Conversely, learned counsel for the respondents Nos.3 and 4 submits that while passing order dated 04.01.1981 report was procured from the Patwari, when factum of the existence and legality of order dated 30.06.1924 was amply substantiated. He referred to the proceedings before Deputy Commissioner - Exh.P-4. Adds that courts had appreciated the orders of 04.01.1981 and 03.02.1987 and even judicial notice can be taken of the order, which is a public document. Reference is made to the decisions in cases of "Abdul Karim v. Muhammad Ismail" (PLJ 2006 Lahore 269), "Muhammad Shamim through Legal Heirs v. Mst. Nisar Fatima through Legal Heirs and others" (2010 SCMR 18) and "Qadir Bakhsh (Deceased) through L.Rs. v. Allah Dewaya and another" (2011 SCMR 1162). Learned counsel emphasized that admissibility of Mark-C be held validated when no objection of inadmissibility was raised. Adds that petitioner was aware of the rights of the respondents Nos.3 and 4, who are in possession of the suit land.

6. Arguments heard and record perused.

7. Critical significance of order of 30.06.1924 - Mark-C - cannot be undermined or overlooked, in wake of the facts narrated and rights allegedly claimed by competing parties. Learned trial court and appellate court, while deciding issue No.7, based decisions on said order, and fortified reasonings by variously referring to the observations recorded in orders dated 04.01.1981 and 03.02.1987, by the revenue hierarchy. Original or certified copy of order 30.06.1924 was not filed, hence document was not proved by primary of secondary evidence. Only a copy of order of 30.06.1924 was produced, which was marked as Mark-C. No effort was made to summon the official record for producing original of order of 30.06.1924, nor it was established that original was lost, and secondary evidence ought to be produced in the circumstances. Nothing is available on record to show that any application under Article 76 of Qanun-e-Shahadat Order 1984 was filed, nor any notice served under Article 77 of the Qanun-e-Shahadat Order 1984. Respondents Nos.3 and 4 are claiming ownership based on order of 30.06.1924, which is a relevant fact, but failed to bring original or certified copy thereof on record. Mere photocopy of order of 30.06.1924 - not otherwise coming from the official record / proper custody - would not per se attract the status of a public document, when compliance of Article 76 was not made. Order dated 30.06.1924, though relevant but inadmissible, when same was placed on record without fulfilling essential requirements. Reference is made to the ratio laid in the case of "Imam Din and 4 others v. Bashir Ahmed and 10 others" (PLD 2005 Supreme Court 418), which held that "This is settled law that in the absence of original document, its certified copy if not admissible evidence and notwithstanding the presumption of correctness being attached with the certified copy of a document pertaining to the official record, if the validity or the existence of the document is disputed and original is not produced, its certified copy would not be admissible in evidence without proving the non availability of the original".

8. The requirement of satisfying the test of admissibility qua the order of 30.06.1924 was, even more critical, when it was not recorded in the revenue record - secret well-kept for over eighty years. Absence of production of original of order of 30.06.1924, and without fulfilling of the requirement producing secondary evidence, upon fulfilling conditions prescribed, would lead to inference of withholding of best evidence. Reference is made to the principle elucidated in the case of "Amirzada Khan and others v. Ahmad Noor and others" (PLD 2003 Supreme Court 410), wherein it was observed as "we are amazed to find that instead of original document a photostat copy was exhibited in evidence without the leave of the trial Court to lead secondary evidence, after the proof of loss or destruction of the original one". There is no cavil that order of 30.06.1924 was repeatedly referred in the orders of 04.01.1981 and 03.02.2987 but such reference would not absolve respondents Nos.3 and 4 from the obligation of satisfying the test of admissibility. Submission that objection cannot be raised qua the admissibility of Mark-C is misconceived. The document Mark-C was not brought on record in accordance with the mandate of Order XIII, Rule 4 of Code of Civil Procedure, 1908, Articles 76 and 77 of Qanun-e-Shahadat Order 1984. Learned counsel gave a muted response when asked that how this marked document be relied upon unless requirements of law are met. The rights claimed by the respondents Nos.5 to 7 - in lieu of occupancy tenancy, claiming maturing into ownership upon alleged payment of consideration - 'Zar-e-Malkana' - within extended time - cannot be determined / adjudged unless the admissibility and genuineness of order of 30.06.1924, is adjudged. Judgments referred by the learned counsel for the respondents Nos.3 and 4 are distinguishable, dicta held therein are not attracted to the facts of the case.

9. Learned appellate court failed to take into consideration evidentiary principles dealing with the admissibility / genuineness of the document, existence whereof when specifically disputed. It is unfair to non-suit respondents Nos.3 and 4 solely for the failure of the appellate court to apply the law correctly and conversely no premium could be extended to the petitioner merely, in the wake of gross error of law, by the appellate court, while treating photostat copy, Mark-C, as admissible document and drawing legal inference on the basis thereof. It is appropriate to remand the matter to the appellate court.

10. In view of the above, instant civil revision is allowed and judgment and decree dated 18.01.2011 by the appellate court is set-aside and matter is remand to the appellate court, for determining the question of admissibility and genuineness of order dated 30.06.1924 - where the parties are at liberty to weigh options of invoking powers available to the appellate court under Order XLI, Rule 27 of the Code of Civil Procedure, 1908 and to decide the appeal of the petitioner afresh on its merits, which appeal of the petitioner shall be deemed pending. It is expected that appeal shall be decided within 90 days of the receipt of the order, upon issuing notices to the parties. Office is directed to deliver copy of the order to the concerned appellate court. Any observation recorded in this judgment is only for the purposes of deciding the lis, which shall neither prejudice case of any party, nor affect the determination on merits. No order as to the costs. ZH/I-8/L Revision allowed.