2001CLC1115 (PLP)

SARDAR SAID MUHAMMAD KHAN, C.J,‑‑‑. This appeal has been directed against the judgment and decree of the High Court, dated 18‑4‑2000, whereby accepting the appeal, filed by Qurban Ali, respondent herein, the concurrent findings of the Courts below 'were set aside. 2; The brief facts of the case are that Abdul Karim, appellant herein, filed a suit for setting aside the gift‑deed, dated 16‑3‑1992 which was executed by Muhammad ;Sughram Khan and Muhammad Siddique, respondents, in favour of Qurban Ali, respondent No.3. He alleged that donors‑respondents were owners in the suit land comprising Khewat No.298 min, situate in village Panjeri, vide Mutation No.2532, to the tune of 25 Kanals but they executed the gift‑deed of land measuring 217 Kanals, 2 Marlas, comprising Survey No.3123. The plaintiff‑appellant alleged that he was owner in the Khewat and, thus, was entitled to the share in. 'Shamilat'. He prayed that the gift‑deed was valid only to the extent of 25 Kanals and rest to the tune of 192 Kanals was in excess of the share of the donors. The trial Court, after taking necessary proceedings, held that gift deed was in excess of the, share to the extent of 206 Kanals, 11 Marlas and, thus, the same was set aside to that extent. Qurban Ali, respondent filed an appeal to the District Judge against the judgment and decree of the Sub‑Judge but the same was dismissed. On appeal to the High Court, the concurrent findings of the Courts below were set aside on tile ground that the plaintiff appellant was not owner in the estate and, thus, was not entitled to any share in ' Shamilat' ; therefore, he had no locus standi to challenge the gift‑deed and the mutation on the basis of which the Courts below have calculated the share of the donors were not exhibited and tendered in evidence and, thus, the same should not have been read into evidence by the Courts below. The learned Judge has expressed the view that the document which is not tendered and duly proved;‑ the judicial notice of such document cannot be taken. It is against the aforesaid judgment and decree of the High Court that the present appeal has been preferred.

3. Mr. Abdul Ghafoor Qureshi, the learned counsel for the appellant, has argued that in the written statement, the respondents have not taken the plea 'that the plaintiff‑appellant was not owner in village Panjeri or that mutation which was relied upon by the Courts below and has also been referred to in the plaint was not admissible in evidence. The learned counsel has argued that failure to exhibit a document does not debar the Court from reading the same as evidence, especially so when the document is admissible as being an attested copy of a public record. The learned counsel has argued that the mutation in question was an attested copy and the same was rightly relied upon by the Courts below, especially so when there was no objection with regard to its admissibility by the opposite‑party. The learned counsel has cited following authorities in support of his contentions: In a case reported as Mian Tajammul Hussain v. State Life Insurance Corporation of Pakistan 1993 SCMR 1137, it has been held that a document filed with the written statement and admitted by the defendant, the failure to exhibit the same 'would not make the document inadmissible in evidence and vitiate the judgment based on the same. In a case reported as Pribhadinomal. Melhumal v. Mt. Chitti AIR 1933 Sindh 379, it was observed that a document produced by a party, referred to in the arguments and made use in the judgments of the Courts below, cannot be held to be inadmissible in evidence merely because the same was not exhibited‑ the non‑exhibiting the document is merely an irregularity which is not incurable.

4. In reply, Ch. Muhammad Afzal the learned counsel for the respondents, has argued that as the document was not formally tendered in evidence, the same could not be relied upon for holding that the appellant was owner in the estate. He has also referred to a case reported as Mahmood Akhtar Kiani v. Azad Jammu and Kashmir Government 1998 SCR 310, wherein it has been held that question of, admissibility of a document being a question of law, can be considered by this Court in appeal. The learned counsel has argued in alternative that even if it is conceded that the copy of the attested mutation was admissible in evidence despite the fact that the same was not exhibited, even then the plaintiff‑appellant was owner of 'uncultivated land' and, thus, he had no locus standi to file the suit. He has referred to rule 4 of the Rules Relating to Mutation of Khalsa Waste Land as Shamilat Deh in Jammu Province; according to the learned counsel only an owner of cultivated land in the estate is entitled to a share in 'Shamilat' under the said rule.

5. We have given due consideration to the matter. The copy of the mutation was relied upon by the plaintiff‑appellant and was read into evidence by the trial Court as well as by the first Appellate Court; no objection was 'raised by the respondents that the same was inadmissible as having been not exhibited or formally tendered in evidence. The objection was not raised even in the memorandum of appeal filed in the High Court. It may be stated that as the attested copy of the mutation was admitted and read into evidence by the trial Court and the First Appellate Court without any objection by the respondents, the same cannot be excluded from evidence merely because the same was not exhibited; the non‑exhibiting the document which is otherwise admissible in evidence is merely an irregularity and does; not render such 'a document as inadmissible into evidence. The High Court, has also committed an error in holding that the attested copy of the mutation should have been proved by producing oral evidence. It is well‑settled principle of law that an attested copy of a public document is admissible in evidence without formally proving the same.

6. So far as the objection of the learned counsel for the respondents that according to mutation, the plaintiff‑appellant was owner of uncultivated land and, as such he was not entitled to the share in Shamilat' is concerned, that was raised for the first time during the course of arguments in this Court; the point was neither raised in the memorandum of appeal nor in the concise statement filed in this Court. It is well‑settled principle of law that a point which is not raised in the memorandum of appeal or the concise statement cannot be' permitted to be raised for the first time in this Court even if the same is a question of law. A reference is made to the following authorities in support of the aforesaid view. (1) Deputy Collector, Excise and Taxation v. Abdul Hamid 1998 MLD 2038, (2) Muhammad Azad Khan v. The Secretary, AJ&K Council 1999 PLC (C.S.) 122, (3) Muhammad Ellahi v. Muhammad Hussain 1992 SCR 183, (4) Abdul Shah v. Rehabilitation Department 1‑992 SCR 269, and (5) Sadiq Hussain Qureshi v. Azad Government 1992 SCR 356.

7. Even otherwise, rule 4 of the said Rules relied upon by the learned counsel for the respondents does not say that an owner of uncultivated land in a village is not entitled to share in ' Shamilat' ; rule 4 deals with the land which could be recorded as 'Shamilat' under the said rules subject to certain conditions, i.e., one of them being that total area of 'Shamilat' including that previously existing should not exceed 100% cultivated area in the village. Thus, the aforesaid argument is misplaced and is hereby repelled. In the light of what has been stated above, we accept the appeal, set aside the judgment and decree of the High Court and restore that of the trial Court. H.B.T./164/SC(AJ&K)??????????????????????????????????????????????? Appeal accordingly.