P L D 1994 Peshawar 165 (PLP)

Abdul Samad Khan for Respondents. Date of hearing: 29th January, 1994. Ghazi Khan son of Dheri Gul and 14 others of Gumbat Kohat brought a suit against Usman son of Nawaz and 10 others of the same village for declaration‑cum‑permanent injunction regarding 7/8 share in property measuring 10 Kanals 4 Marlas comprised in various Khasras detailed in the plaint situated in the same village. The relief sought for was based on the ground that this property was purchased by Dheri Gul, predecessor of the plaintiffs, from the predecessors of defendants Nos.l to 6, Latif son of Azad and Mushki son of Shahbaz far back in the year 1932 on payment of consideration as per sale‑deed dated 13‑9‑1932 and that since then the plaintiffs had been enjoying usufructs of the property.

2. That recently the defendants brought a suit for ejectment before the Collector where from it transpired that the Revenue Record was in favour of the defendants and hence the suit which was contested on multifarious grounds of title, possession, jurisdiction of Court, cause of action, limitation, estoppel, maintainability of suit, mis-joinder and adverse possession etc. After holding a trial, Mr. Riaz Ahmad, the then Civil Judge, Kohat granted a decree in favour of Ghazi Khan etc. vide his judgment and decree dated 9‑3‑1983 which was upheld by Muhammad Nawaz Khan, the then District Judge, Kohat on 15‑12‑1984 and hence this revision.

3. The entire case of the plaintiffs/respondents is based on sale‑deed dated 13‑9‑1932, Exh.P.W.3/1, on record. Both the Courts below seem to have been convinced predominantly of the factum of presumption that could be taken regarding documents which are 30 years old. It was held that as it was executed on a proper stamp paper and as it had come from proper custody, therefore, the presumption ought to be taken infavour thereof.

4. After having gone through record, I have come to the conclusion that the two Courts below have fallen into error, both legally as well as factually. The presumption attached to 30 years old documents under section 100 of Qanun‑e‑Shahadat and section 90 of the old Evidence Act is never an absolute presumption. It is always rebuttable and the party opposing the document may rebut the same through evidence and the Court may or may not presume the correctness involved. This duty becomes all the more heavily cast when the opposite‑party challenges the very genuineness of such documents. In the present case as well, the same thing happened when the defendants in their written statement categorically alleged that the sale‑deeds were forged, fictitious and above all, that it did not bear the signatures or thumb‑impressions of any one concerned. I have gone through the deed Exh.P.W.3/1 from which the plea taken by the defence seems to be fully correct. What I seek to bring home is that the genuineness or otherwise of the deed in question was a matter under hot contest and being a thorough question of fact, it required to be proved and disproved on either side. A perusal of evidence would suggest that no effort has been made to that effect by both the parties, most obviously, because no issue was framed to that effect. The non‑framing of issue regarding sale‑deed has not harmed the plaintiffs apparently because they could bank easily on the aforesaid presumption duly taken in their favour; while on the other hand, the defendant‑petitioners were seriously jeopardized in not being afforded an opportunity to attack the genuineness of the document that apparently bore no signatures or thumbs‑impressions of the persons concerned whose names were written all right as executors and witnesses.

5. One can rely upon AIR 1937 Oudh 353, PLD 1982 Supreme Court (AJ&K) 37, 1990 SCMR 1238 and AIR 1937 Lah. 17, where the nature of presumption attached to such documents is not only explained but the Courts of law were required to follow such rule with great caution.

6. I do not have two opinions about the fact that non‑framing of issue qua the deed in question, specifically pleaded in the written statement, was not only a material irregularity but a visible illegality whereby the two Courts below were not provided full opportunity to appreciate the real matter in controversy. As the deed dated 13‑9‑1932 Exh.P.W.3/1 is the pivot of the entire claim, therefore, the other facts fall to be of the secondary importance.

7. Consequently the revision petition is accepted, the impugned judgments and decrees dated 9‑3‑1983 and 15‑12‑1984 of the two Courts below are set aside and the case is remanded back to the trial Court for holding fresh trial on the following issue:‑‑ "Whether the deed dated 13‑9‑1932 is a genuine or forged and fictitious document conferring valid titles in favour of the transferee? Opposite‑parties are directed to appear before the trial Court on 16‑3‑1994. The entire record be made available to the trial Court conveniently before the date of appearance. In view of the legal question involved, parties are left to bear their own costs. A.A./1537/P Case remanded.