P L D 2004 Supreme Court 325 (PLP)

Remaining Respondents (in C. A. No. 1267 of 1996): Ex parte. Mian Yunus Shah, Senior Advocate Supreme Court for Appellants (in C.A. No. 1268 of 1996). M. Zahoor Qureshi, Advocate‑on‑Record for Respondents Nos. l to 12 (in C. A. No. 1268 of 1996). Remaining Respondents (in C.A. No. 1268 of 1996): Ex parte. Date of hearing: 3rd December, 2003. MUNIR A. SHEIKH, J.‑‑‑By this common judgment, we propose to decide both the titled appeals by leave of the Court which have been filer against the consolidated judgment dated 4‑6‑1995 of the Peshawar High Court by which the revision petitions filed by the appellants have been dismissed.

2. The land in dispute was owned by one Faqir Hussain deceased predecessor‑in‑interest of respondents Nos. 1 to 8 in Civil Appeal No.1268 of 1996. He mortgaged this land with possession in the years 1897 and 1898 in favour of Feroze Din, deceased predecessor‑in‑interest of the appellants Nos. 40 to 50 in Civil Appeal No. 1268 of 1996 for an amount of Rs.80. According to the case of the said appellants who are the plaintiffs in the suit from which these two appeals have arisen, Faqir Hussain subsequently on 3‑10‑1900 sold the land in favour of Ferozuddin deceased, Amiruddin Ghulam Mahboob and Shamsul Haq, deceased for an amount of Rs.80. On the death of Faqir Hussain mortgagor, Mutation No.6594 was attested by the Revenue Officer on 19‑6‑1988 through which the land was mutated in favour of the said respondents. The appellants in Civil Appeal No. 1268 of 1996/plaintiffs feeling aggrieved filed the suit from which this two appeals have arisen for declaration that, they had become owners of the land by virtue of sale‑deed dated 3‑10‑1900 and were no more mortgagees as such, mutation of inheritance attested in favour of respondents Nos. 1 to 8 on the assumption that Faqir Hussain deceased mortgagor continued to be owner was invalid and ineffective against their rights. The suit was contested not only by respondents Nos. 1 to 8 but respondents Nos.9 to 11 also. Respondent/defendant No.9 in his written statement admitted that he was in possession of the land but claimed that his possession was adverse which had matured into ownership. The trial Court after considering the evidence produced by the parties came to the conclusion that the sale of land by Faqir Hussain deceased, mortgagor in favour of the plaintiffs being a 30 years' old document, presumption of genuineness as to execution thereof could be raised in their favour, as such, the plaintiffs had attained the status of owners of the land, therefore, a decree for declaration as such was passed in their favour with consequential relief of delivery of possession of the land from respondent No.9. Two appeals were filed before the First Appellate Court one by defendant No.9 and the other by defendants Nos. 1 to 8 heirs of the deceased Faqir Hussain to challenge the findings of the Court below on the question of sale in favour of the plaintiffs and also decree of possession passed in their favour. The First Appellate Court declined to exercise discretion of raising presumption under Article 100 of the Qanun‑e‑Shahadat Order that the sale‑deed dated 3‑10‑1900 a thirty years' old document was genuine. The findings recorded by the First Appellate Court in paragraph 7 of judgment dated 4‑3‑1992 are reproduced below in extenso for facility of ready reference:‑‑ "

7. According to the learned trail Judge the sale-deed Exh.P.W.3/2 being more than 30 years old carries presumption of truth and secondly that the plaintiffs have matured their title through prescription as the prescribed period of 60 years has elapsed is not correct. Perusal of the sale‑deed Exh.P.W.3/2 reveals that first the suit‑land was mortgaged for Rs.80 per mortgage deeds dated 1‑5‑1897 and 4‑5‑1898 and subsequently on 3‑10‑1900 the suit land was allegedly purchased by the predecessor‑in‑interest of the plaintiffs for the same amount of Rs.80. This transaction is obviously without consideration. There may be two distinct rights in one and the same property as in this case the mortgage right is different property from the equity of redemption therefore, the value of consideration of the mortgagee rights, cannot' become consideration for the equity of redemption without payment of extra amount. Therefore, the sale of equity of redemption of right to redeem without consideration is void under the law of contract. The presumption under section 40 of the Evidence Act can only dispense with the necessity of proving a document and does not touch the question of evidentiary value of document. Therefore, mere production of an old document without corroborative evidence is entitled to little weight. As the possession of the plaintiffs is admittedly that, of mortgages, therefore, it cannot be treated as corroborative piece of evidence for the dispute. Had this deed been in existence at the time of latest settlement operation, the same would hav6 been produced for incorporation in the Revenue Record before the Settlement Authorities and its non‑production on this occasion makes the deed in question doubtful. The presumption attached to 30 years' old document required corroborative evidence which is missing in the case in hand. It is also in the evidence that many members of the plaintiff family were serving in the Revenue Department and had this document been a genuine one, the same would have been produced before the Revenue Officer for incorporation in the Revenue Record."

3. The appeal filed by defendants Nos. 1 to 8 heirs of deceased Faqir Hussain was accepted and the plaintiffs were declared to be not the owners of the property and that they continued to be the mortgagees but decree of recovery of possession of the land in their favour was maintained on the ground that as mortgagee with possession, they had a right to recover possession from defendant No.9 who had trespassed over the land. Two revision petitions were filed against this judgment before the High Court, one by the plaintiffs to claim that the findings of the trial Court that they had become owners of the land should be restored and the other by defendant No.9 against the decree of possession passed in favour of the plaintiffs. Both the revision petitions have been dismissed through the impugned judgment dated 4‑6‑1995 against which these appeals by leave of the Court are directed.

4. Learned counsel for the appellants in Civil Appeal No. 1268 of 1996 argued that the findings of the First Appellate Court were that the sale‑deed dated 3‑10‑1900 had not been acted upon whereas in cultivation column of the Revenue Record, it was incorporated that the land was in possession of the plaintiffs as "ﻪﻌﻳﺑ ﻪﺟﻮﺑ ﻥﺎﮕﻠ ﻼﺒ", as such, it is a case of misreading of evidence. The Appellate Court has come to the conclusion that had this document been available at the relevant times in particular at the time of settlement of Bandobast, the same would have been produced and entries made in the Record of Rights in favour of the plaintiffs in ownership column, therefore, corroborative evidence as to the genuineness of the document was missing. We will agree with the findings recorded by the First Appellate Court, for a person or ordinary prudence if had purchased the land which was already in his possession as mortgagee would get the proper mutation entered and attested in his favour and his name entered in the ownership column. The plaintiffs kept quiet for a long time and were merely relying upon an entry "ﻪﻌﻳﺑ ﻪﺟﻮﺑ ﻥﺎﮕﻠ ﻼﺒ" in particular when they were already enjoying the status of mortgagee with possession was not sufficient corroborative evidence to raise presumption in the discretion vested in the Court under Article 100 of the Qanun‑e‑Shahadat Order in favour of genuineness being 30 years' old document.

5. Learned counsel for the appellants attempted to argue that by this time, the suit of redemption of mortgage had become barred by time and by virtue of section 28 of the Limitation Act, right of heirs of Faqir Hussain shall stand extinguished. This plea cannot be decided in these proceedings. As and when heirs of Faqir Hussain would file any suit for recovery of possession of the land or redemption of mortgage, it will be open to the appellants to raise all, legal and factual pleas inclusive of limitation under section 28 of the Act which shall be decided on their own merits in accordance with law by the Court.

6. The findings of fact recorded by the First Appellate Court and affirmed by the High Court as to the status of plaintiffs as owners of the land by virtue of the said document of sale are perfectly in accordance with the law and have not been shown to have been based on misreading or non‑reading of any material piece of evidence, therefore, Civil Appeal No. 1268 of 1996 has no force.

7. Reverting to Civil Appeal No.1267 of 1996, it may be mentioned that defendant No.9 did not claim any other right except right of adverse possession which had according to him matured into ownership. The land was rightly held to be in possession of mortgagee and he having entered into possession wrongfully could be directed to deliver possession to the plaintiffs who had a right as mortgagee to get possession thereof, therefore, Civil Appeal No. 1267 of 1996 has also no force.

8. For the foregoing reasons, both the appeals are dismissed with no order as to costs. M.H./S‑2/S Appeals dismissed.