2003 PLP 1010 (YLR)

3. The appellant in his written statement stated that after cancellation of remission of Land Revenue the land has been acquired and resumed under the said MLR and the matter cannot be agitated in the Civil Court; that the remission was in favour of the said mosque of Roras and respondent No.1 being an Administrator of the affairs of the mosque was Maufidar. It was stated that Sanklepnama being relied upon by respondent No.1 was never incorporated in the Revenue Records and was never implemented and no possession was delivered to the predecessors of respondent No.1. It was also stated that respondent No. 1 is not the sole heir of the alleged donee. It was then explained that, respondent No.1 had no right in the land except to recover Rs.54 towards the Land Revenue in respect of land measuring 163 Kanals, 13 Marlas and that too on behalf of the said mosque. Regarding the decision of the Revenue Officers in the matter of recovery of produce share it was stated that the decision is limited only to 15 Kanals and 5 Marlas of land. In the light of the pleadings of the parties following issues were framed:‑‑ (1) Whether Budh Singh etc. the original owners of the suit‑land gifted it to the predecessor‑in‑interest of the plaintiff by means of Sankalip Nama dated 7th Phagan Sammat 1851? OPP. (2) Whether the plaintiff got possession of the land in pursuance of the said Sakalip Nama. If so, when? OPP. (3) Whether the plaintiff is owner of the suit‑land? OPP. (4) Is this suit time‑barred? OPP, (5) Whether there are heirs of the original donee other than the plaintiff. If so, who are they and are they necessary party in this case? OPD. (6) Whether the land in dispute was treated as evacuee property. If so, when and what is its effect? OPD. (Onus objected). (7) Whether the Civil Court has jurisdiction to try this suit? OPD (8) Relief. Evidence of the parties was recorded. The suit of respondent No.1 was decreed by the learned trial Court vide judgment and decree, dated 31‑5‑1967. A first appeal filed by the appellant was dismissed by a learned Additional District Judge, Sialkot on 21‑7‑1969. 3‑A. Mr. Nadim Afzal Lone, learned counsel for the appellants argues that the original Sankalip Nama was never produced and its certified copy was produced as Exh.P.1. According to the learned counsel, both the learned Courts below have attached the presumption arising under section 90 of the Evidence Act, 1872 to the said document without any legal basis inasmuch as the said provision of law relates to original documents and not to copies. According to the learned counsel the said Sankalip Nama has not at all been produced much less proved. Learned counsel contends that the production of the original was absolutely necessary to attract the presumption under the said provision. Relies on the case of Basant Singh and others v. Brij Raj Saran Singh and others (AIR 1935 PC 132) to urge that even if a copy is admitted, genuineness of the original cannot be presumed unless and until the original itself is produced. Refers to the case of Shripuja v. Kanhaya Lal (AIR 1918 Nagpur 114) to urge that the original document must be produced in Court to make the presumption in its favour and further that section 90 only dispenses with proof of the execution and the said provision cannot be enlarged and extended to dispense with proof of the contents of the document. Also relies on a judgment of this Court in the case of Muhammad Azam and others v. Muhammad Yar and others (1988 CLC 2388) in this behalf. Learned counsel then proceeds to argue that the said Sankalip Nama was never incorported in the Revenue Records and the non‑Muslims continued to be recorded as owners. Further contends that the orders of the Revenue Officers do neither decide title nor proved the contents of the Sankalip Nama. Further urges that the learned Courts below have certainly overstepped their jurisdiction while deciding the nature of the property in view of the bar contained is section 41 of the Administration of Evacuee Property Act, 1957. Also contends that the learned Courts below have erred in law in applying the rule of primogenature when there is no evidence of custom and presumption is in favour of personal law. Relies on the case of Mst. Karam Bibi v. Hussain Bakhsh (1991 PR 1901) to state that the Qureshis are not governed by agricultural custom in the matter of succession. The precise contention is that even if the property is treated to be non‑evacuee, respondent No. 1 could have claimed possession only to the extent of his inherited share.

4. Sh. Ziaullah, learned counsel for respondent No. 1, on the other hand, argues that the execution of the Sankalip Nama was not disputed and as such production of original was not necessary; that the concurrent findings of fact recorded by the learned Courts below that the deed was executed and the donee had been exercising the rights of proprietorship cannot be interfered with. Further states that the tenants have been attorning to the donee. Answering the objection as to jurisdiction states that the property could not have been treated as evacuee after 1‑1‑1957 and that there is no plea that it was a hidden property. Further states that the document was marked as Exh. P.1 without any objection. Relies on section 90‑A introduced in the Evidence Act vide Law Reforms Ordinance, 1972 in support of the argument that the certified copy was admissible and enjoyed the presumption attached to the original, under section 90 of Evidence Act, 1872.

5. Learned counsel for the appellants in reply states that the document was objected to when it was introduced in evidence and that document stood denied in the written statement filed by the appellant.

6. I have gone through the trial Court's records, with the assistance of the learned counsel for the parties. I have already referred to the respective pleadings of the parties above. I find that the said document as also the meaning attributed to it was denied by both the defendants in the case and it is precisely for this reason that Issue No.1 was framed and the parties went on trial. I find that Hakim Akhtar Hassan, plaintiff entered the witness‑box as P.W.1 on 5‑5‑1964. He proceeded to state that the suit‑land was owned by Budh Singh and Sharam Patt etc. and they gifted this property to Ghulam Ali by means of Sankalip Nama that Ghulam Ali was his ancestor and that he passed on the said Sankalip Nama to him which was produced in the Court of Mr. Meeran Bakhsh, Revenue Assistant, Sialkot in connection with a suit of rent; that he obtained a certified copy of Sankalip Nama for production before the Revenue Officer in another suit for recovery of rent and that the original deed of Sankalip Nama was destroyed alongwith the file; that he had summoned the file in which a certified copy was produced. The witness then requested the Court that the said copy be transferred to the file of the present case. At this stage the learned trial Court made a note that the said file is before him and certified copy of Sankalip Nama marked as Exh.PA is on the file; that the original document has been lost and no certified copy can be issued. The learned Judge then noted that the authenticity of the document cannot be doubted and the plaintiff is not in a position to produce the original and exercising his powers under section 151, C.P.C. and other enabling provisions he proceeds to transfer the said copy to the file of the suit. It was, however, noted that the document is 30 years old and it is admissible in evidence without proof of execution. It was accordingly admitted in evidence as Exh.P.1. Learned counsel for the defendant objected to the admissibility of the document on the ground that the loss .of original is not proved and the document is, copy of a copy. Learned counsel for respondent No. 1 replied that further evidence will be produced to prove the loss of the original. The objection was accordingly overruled. I have checked up the record and I find that no further evidence was produced to prove the loss of the original.

7. I have examined the document marked as Exh.P.1. It is available at pages 201 and 202 of the trial Court file. The document reveals that it is copy of a document that was produced in the Court of Ch. Meeran Bakhsh, Assistant Collector 1st Grade, Sialkot in a suit that was filed on 16‑12‑1932 and decided on 30‑11‑1933. Copy was applied for on 7‑4‑1941 and was delivered on 16‑4‑1941. There is neither any allegation nor proof that the Sankalip Nama was a registered document. According to respondent No.1 as P.W.1 the original document was placed on the said file and its certified copy is Exh.P.1. There is no evidence whatsoever on the record that the original was destroyed as claimed by the said witness. No official from the record room has been produced with the record or report. Now under the law a document has to be proved by primary evidence which is the document itself unless and until a case for leading secondary evidence can be made out under section 65 or Evidence Act, 1872 (Article 76 of the Qanun- e‑Shahadat Order, 1984). The objection was duly taken but on the representation on behalf of respondent No. 1 that evidence regarding loss/destruction of original will be produced, the learned trial Court proceeded to admit the document Exh.P.1 in evidence. I have already stated above that no such evidence of the loss or destruction of the original document is available on the record. Thus the very admission of the document in evidence is illegal, rather without jurisdiction.

8. Assuming that the document was lawfully admitted in evidence, it being a copy no presumption of valid execution stood attached to it under section 90 of the Evidence Act, 1872 (Article 100 of Qanun‑e -Shahadat Order, 1984). There is no doubt in my mind that the presumption contemplated by the said provision of law is attached only to an original document. Learned counsel for respondent No.1 has referred to section 90‑A of Evidence Act, 1872 introduced vide Law Reforms Ordinance, 1972. Suffice is to say that at the relevant time the said provision of law was not in existence and the document would not be admissible with reference to the same. Even if it be assumed that the said provision was applicable at the time the document was produced, then the requirement of law is that the copy to be admitted must itself be 30 years old. I have already referred to above that the copy was made on 15‑4‑1941 and delivered on 16‑4‑1941. It was produced in Court on 5‑5‑1964. Thus even going by the provisions of the said latter provision of law, the copy was not admissible and did not enjoy the presumption attached to an original document under section 90 of the Evidence Act, 1872. Thus from whatever angle seen, document Exh. P.1 was not admissible in evidence and its admission in evidence constitutes an error of law affecting the merits of the entire case which is built on the said document.

9. The document appears to be ascribed in Persian language. Its Urdu translation is available in the trial Court record. It narrates that Budh Singh, Hari Singh, Jodh Singh, Chanda, Sharam Patt, Khushia, Soja and Ghathia and the council of the brothers, Boora, Hukam Chand, Karan Singh, Karmal, Suba, Todar, Bland, Mehnia, Dessa and Meer Chand and council of brothers Jasso etc. are owners in Village Roras, District Sialkot; that Ghulam Ali is a pious person and is living in the area since ancestors and to protect and to take care of the said person is the duty of the said persons and for this purpose 15 Ghamon of agricultural land in Mahal of Faridpur and 36 Kanals of the land at Chah Bulandwala is being granted to the said Ghulam Ali by means of Sankalip Nama by way of Dharam Arth; that if any other person makes any claim to the said land or any portion thereof he will be a liar and the said writing will be a formidable answer to the claim of any such person and except Mian Ghulam Ali and his progeny no other person shall interfere with the land in any manner and all our real brothers and our religion following children shall act upon the said document and will not resile from the same. The document then narrates:‑‑

10. Although none of the learned counsel have addressed on the nature of the said document and its legal implication with reference to the Hindu Law, I have sought some guidance in the matter from Maine's Book on Hindu Law. Although the document with the said nomenclature does not find mention in the said book, yet I find that such a grant for religious purpose is permissible under the said Law. On a plain reading of the said document I find that the said non-Muslims had proceeded to make a grant of the usufruct of the land to the said Mian Ghulam Ali. Sh. Ziaullah, Advocate insists that a reading of the entire document does make it a case of complete transfer of the corpus as well. I am, however, afraid that such an intention is not forthcoming from the said document, particularly its operative part reproduced by me above.

11. There is no dispute that this document was never incorporated in the Revenue Records and the non‑Muslim owners from generation to generation continued to be recorded as the owners of the property as admitted by respondent No. 1 while appearing as P.W.1. Even otherwise, the entire Revenue Records produced by both the parties on record shows that the ownership of the non‑Muslims continued to be recorded throughout. The learned counsel below have relied upon judgment Exhs. P.9 and P.13 to hold that respondent No.1 had been exercising proprietorship rights in respect of the suit land. A reading of the said judgments passed by the Revenue Officers would show that primarily the suits were filed to recover produce and rent in lieu of the Land Revenue that stood remitted in favour of the mosque as its Administrator. Needless to state that the Revenue Officers would not be competent to decide the question of title. The judgment Exh. P.9 itself would show that the suit filed by respondent No. 1 was converted into a suit under section 77(m) of the Punjab Tenancy Act, 1887 and was decided as such. The said provisions relate to the recovery of emoluments, inter alia, of the Inaamdars.

12. The respondent‑Government produced in evidence a statement made by respondent No.1 himself as Exh.D.5. Vide statement made by respondent No. 1 on 16‑9‑1964 'in the trial Court he admitted the said statement having been made by him. Now in this statement Exh.D.5, respondent No.1 has stated without any demur that Re.1 and one Pand of wheat per year was recovered from the non‑Muslims in lieu of the Muafi of Rs.54. It was not paid in cash but in the said kind. Nothing, therefore, turns on the fact that the said cash and crop share was being received by respondent No.1 from the non‑Muslim owners. Exhs. D.3 and D.4 are the statements made by the uncles of Jan Muhammad, father of respondent No.1, also confronted to and admitted by him as P. W.1, which state that remission was made in the name of the mosque which was being administered by his father and it was assured that the income so being received is being spent on the welfare of the mosque. There is thus do evidence on record that the said Mian Ghulam Ali or any of his successors including respondent No.1 exercised proprietorship rights over the suit land at any time while the non‑Mulsims throughout were being recorded and were claiming themselves to be the owners of the land.

13. There is also force in the argument of the learned counsel that even if the land could be assumed to be non‑evacuee, the respondent No.1 could not have sought possession of the land in excess of the share which ultimately fell to him coming down from Mian Ghulam Ali. Learned counsel for respondent No. 1 has not been able to cite any law contrary to the one cited by the learned counsel for the appellant to urge that the Qureshis were not governed by agricultural custom and rather were governed by Muslim Personal Law in the matter of succession. Coming to the question of jurisdiction section 41 of the said Act, 1957 leaves no manner of doubt in this regard i.e. the matter has to be decided by the Custodian. Learned counsel for respondent No. 1 has urged that the land could not have been treated as evacuee after 1‑1‑1957 and that there is no plea that it was a hidden property. I find that even at an earlier stage vide order, dated 23‑11‑1995 it was proposed to refer the matter to the Custodian but for reasons recorded in the order it was deemed proper to decide the matters in the appeal. As would be apparent from the record the suit was filed in the year 1962. This R.S.A. was filed in the year 1969 and has been heard and is being decided in the year 2002. In view of the entire evidence on record when primarily allotment in favour of respondent No.1 has been challenged and the record does reflect that the land was evacuee and that the title of the evacuee was never extinguished, the said allotment has been made with jurisdiction.

14. For all that has‑ been discussed above, this R.S.A. is allowed and the impugned judgments and decrees of both the learned Courts below are set aside and the suit filed by respondent No. 1 is dismissed leaving the parties to bear their own costs. Q.M.H./N‑212/L Appeal allowed.