P L D 1958 Azad J (PLP)

Sh. Abdul Hamid for Appellants. Kh. Muhammad Shafi for Respondents. Muhammad Aziz Khan respondent brought a suit for possession of land, comprised of Khasra No. 289, measuring 6 kanals and 17 marlas, situate in village Mandhol, on the ground that it was his property which is in possession of the defendants since a pretty long time, who have been cultivating it as tenantsat-will but now they are setting up adverse possession. The defendants' plea was that they were not tenants‑at‑will but were in possession on account of rights acquired by them from the plaintiff's father under documents Exs. D. A., D. B. and D. C. and that the right had ripened into ownership by prescription. The following issues were struck :‑ (1) Was the land in suit sold by Saida and Yar Muhammad, the uncle and father of the plaintiffs, for a consideration of Rs. 390 to Fateh Haider and Lala of vide Exs. D. A., D. B. and D. C. ? (O. P. D.). (2) In case issue No. 1 is proved, have the proprietary rights in the land in suit been legally transferred to the defen dants ? (O. P. D.) (3) In case issue No. 2 is not proved, whether the defendants were in possession of the suit land for more than 12 years prior to the institution of the suit and has this possession ripened into ownership? (O. P. D.) (4) Relief ? The trial Court held that issue No. 1 was proved and decided it in favour of the defendants. On issue No 2, it was held that the rights of ownership cannot be transferred without a registered deed. As regards issue No. 3, the trial Court held that the defendants were in possession since Sambat year 1985, as owners: However the trial Court held that the plaintiffs' suit was time barred and dismissed it with costs. The plaintiffs went up in appeal before the District Judge, Poonch, who held that the docu ments were not genuine and that adverse possession had not been established He, therefore, passed a decree for possession of the suit land in favour of the plaintiffs against the defendants with costs, ‑ The defendants have now come up in second appeal to this Court It has been argued by the learned Counsel for the defendant appellants that the lower appellate Court had no right to put itself forth as an expert when it proceeded to compare the hand writing of the scribe in Exs. D. A. and D. B., but I do not agrees with him in stating this broad proposition of law. I am of the view that the Court has power to make comparisons and come to a conclusion from it. The learned Counsel for the plaintiff respondent has cited 120 I C 335 on this point with which I agree. I do not agree with the lower appellate Court when it holds that the execution of the document Ex. P. A. is also not proved. Jhalla D. W. is the witness who proves Ex. D. A, and has clearly stated that Saida and Yar Muhammad executed Ex. D. A. in favour of Fateh Haider and Lala, He, further states that Saida and Yar Muhammad accepted Rs. 300 as consideration for Ex. D.A and executed the document in his presence by affixing their thumb‑mark on it. He is the marginal witness of the document. The learned District Judge while discussing the documents Exs. D. A. and D. B. has been influenced by the statement of Fazal D. W., who is the marginal witness of Ex. D. B. Fazal states that both Ex. D. A. and D. B. were drawn up by Nihal Chano The learned District Judge on comparing the hand‑writing of these documents has held that Exs, D. A. and D. B, are not in tire hand‑writing of the same person and has; therefore, rightly disbelieved Fazal D. W., who states that both the Exs T

5. A. and D. B. are in the hand‑writing of same scribe, but he has overlooked this fact that Jhalla is the marginal wit ness, who proves document Ex. D. A. The learned District Judge has remarked that both Jhalla and Fazal are illiterate persons and that their statements are not sufficient to prove transactions entered into since a pretty longtime, I cannot agree with him in holding that illiterate persons cannot prove documents written some 30 years back. Disagreeing with the learned District Judge, I hold that the execution of Ex. D, A. stands proved and that it is a genuine document. Ex. D. A. has been drawn‑up on a stamped paper on 11th Phagan sambat year 19$

4. Ex. D. B. is written on an unstamped paper and is dated 11th Maghar sambas year 1985. By virtue of Ex. D. A. Saida and Yar Muhammad transferred the possession of the land in suit to Fateh Haider and Lala sons of Said Khan Dulli of Mandol for a consideration of Rs. 300 and it was agreed that the produce of land shall go to liquidate the interest of Rs.

300. On a proper construction of Ex. D. A., I hold that it is not a sale deed but a mortgage‑deed, By virtue of Ex. D. B. it was intended that Saida and Yar Muhammad for a further consideration of Rs. 90 relinquished their rights in the land in suit for all times to come and that the defendants can get the ownership entered in their names. Ex. D. B. which purported to extinguish the title of Saida and Yar Muhammad was a more important document than Ex. D. A. There is no explanation on the record why Ex. D. B. was not drawn‑up on a stamped paper. I accordingly view this document with great misgivings and hold that it is not a genuine document. Sardar Fateh Bahadur, the plaintiff's witness, who was examined in the lower appellate Court states that Yar Muhammad and Saida had transferred the land in suit to Fateh Haider and Lala for a consideration of Rs. 300 some 30 years back and that Fateh Haider and Lala and their descendants had been in possession of the lard in suit since then. To the same effect is the evidence of Jhalla and Fazal. Even the plaintiff, who appeared as his own witness, when cross‑examined, could not deny that the land had been transferred by his father to the defendants though he stated that he could not say what was the nature of the possession of the defendants. Ex. D. A. is virtually a mortgage‑deed but it is unregistered. I hold that even the mortgage rights can be acquired by prescrip tion when the defendants have been in possession under Ex. D. A. b which though unregistered dates back to 11 th Phagan sambat year 1984. The defendants have been in possession as mortgagees for over 12 years and in spite of the document being unregistered they have acquired mortgagee rights by prescription. I, therefore, up‑hold the decree for possession passed in favour of the plaintiff respondent against the defendant appellants but with this modifi cation that Muhammad Aziz Khan the plaintiff respondent shall be entitled to execute his decree only on payment of Rs.

300. In view of the circumstances of the case, the parties shall bear their own costs in this Court. A. H. Decree modified.