P L D 2013 Peshawar 5 (PLP)

MRS. IRSHAD QAISER, J.

Petitioner Muhammad Saeed and three other sons of Saifoor Khan have filed the present revision petition under section 115, C.P.C. against the judgment and decree dated 17-5-2012 of learned ADJ-V, Swabi, whereby appeal of the petitioner against the judgment and decree dated 11-11-2010 of learned Civil Judge-IV, Swabi has been dismissed.

2. The brief facts of the case are that plaintiff/respondents filed a suit for possession of property measuring 1 kanal 11 marlas bearing khasra No. 265 khata No. 861/1065 situated in Mauza Kalabat Tehsil and District Swabi. They also prayed for mesne profit as Rs.24000 or whatever prove correct from 6 crops prior to the institution of suit till the decree and payment. In the body of the plaint it is asserted that they are the owner of the property wherein the status of petitioners is of Ghair Dakhul Kar who are not paying any produce and occupying it illegally and unjustly. On service petitioner appeared before trial Court and filed written statement wherein they denied the allegation of plaintiffs/ respondent and contended that their predecessor Saifoor had purchased the property in dispute from the predecessors of the respondents/ plaintiffs for a sale consideration of Rs.1000 vide sale agreement No.134 dated 1-6-1967 and also got possession from the pleading of the parties learned trial Court framed as many as 13 issues. Both the parties produced pro and contra evidence and after hearing the arguments the learned trial Court vide judgment and decree dated 11-11-2010 passed a decree of possession to the extent of prayer-I of the plaint while suit to the extent of prayer No.II was dismissed. Against this judgment and decree petitioners filed an appeal which was also dismissed vide impugned judgment and decree dated 17-5-2012.

3. The contention of learned counsel for the appellant is that their predecessor Saifoor had purchased the suit land from the predecessor of plaintiff/respondent namely Rojab Khan and Zamurud Khan for a sale consideration of Rs.1000 and since then they are owner in possession of the same. That the deed No.124 is validly proof being more than 30 years old document. Presumption of truth is attached to the deed in view of Article 100 of Qanun-e-Shahadat, 1984. Sale deed in respect of property in dispute, therefore, could not be brushed aside for want of registration or production of marginal witnesses. That the entries in the record of rights would not confer any rights/title nor carry any presumption of truth and the party in whose favour such entries were recorded must establish his right or title by adducing independent evidence.

4. From perusal of record it reveals that in order to prove their case the respondents have produced material witnesses including patwari Halqa who supported the stance of respondent through revenue record Exh.P.W.1/1 to 1/5 and specifically stated that according to revenue record the respondents/plaintiffs are the owner of the suit property while defendant are not mentioned in the column of ownership and cultivation and according to site plan the possession of the disputed property lies with the appellant/defendants. Petitioners also admitted the ownership of the predecessors of the plaintiff but their entire case rest upon the deed No.34 dated 1-6-1967. Exh.D.W.2/2. The discussion on this document is mani-faceted. The first among those is that this is a mere agreement ( ) never converted in to a regular sale. It is an admitted principle of law that a mere agreement of transfer does not create title. The second one is the privilege, claimed by the petitioner to the effect that it was a thirty years old document, to which certain presumptions are attached under Article 100 of Qanun-e-Shahadat Order, 1984. It would be convenient to reproduce Article 100 as follows:-- Article

100. Presumption as to documents thirty years old.

Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person is in the person's handwriting and in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.

5. A perusal of the above section would indicate that the required presumption at the first place is not conclusive but completely rebuttable. The presumption mentioned in Articles 90 to 95 and 99 of Qanun-e-Shahadat Order, 1984 are obligatory where as presumption mentioned under Articles 96 to 98, 100 and 129 are permissive in nature and the Court may or may not raise a presumption. Secondly the presumption is attached to the documents which is 30 years old. Thirdly it must come from proper custody. Fourthly the Court has a discretion to presume that the signature/thumb impression and every other part of such documents, which purports to be in the hand writing of any person, is in that person's handwriting and further that it was duly executed by the person by whom it purports to be executed. It may be mentioned that the proof of such agreement would be sine qua non for proving the ownership of the petitioners. It may further be observed that though Article 79 of Qanun-e-Shahadat Order, 1984 would not be applicable as the agreement was allegedly executed on 1-6-1967 but in view of Article 78 of Qanun-e-Shahadat Order 1984 the document of sale agreement allegedly said to have been signed/thumb impressed by the respondents predecessor-in-interest namely Syed Rojab, Zamurud sons of Mehmood and Soba Jan sister of Abdul Khaliq will have to be proved to be their thumb impression under the provisions of Qanun-e-Shahadat Order, 1984. Respondents/plaintiffs in their statement have totally denied the execution of any deed in between the predecessor-in-interest of the parties and stated that it is a fake and bogus document. Now the petitioners have to prove agreement Exh.D.W.2/2 to have been thumb impressed by the above noted owners (predecessors-in-interest of respondents) and further that amount of sale consideration was also paid to them.

6. I have gone through the entire evidence on record minutely. In order to prove the deed petitioner No.3 Khurshid who is also attorney of other petitioner was examined as D.W.2 and Mir Said petitioner No.2 was examined as D.W.3. In their examination-in-chief they stated that disputed property was purchased by their father Saifoor from Syed Rojab, Zamurud and Suba Jan through unregistered deed dated 1-6-1967 for consideration of Rs.1,000 and possession was delivered to their father, but in cross examination D.W.2 admitted Except the petitioner no evidence has been produced to prove the unregistered agreement. The petitioners were expected to produce best evidence to prove Exh.D.W.2/2. But the statement made in the cross examination by the above D.Ws. falsify the contents of alleged agreement.

7. Keeping in view the above facts and circumstances I hold that the concurrent finding of both the Courts below in respect of factual controversy required no interference by this Court in exercise of revisional jurisdiction. The present revision petition is devoid of merits hence dismissed in limine having no order as to costs. MH/317/P Revision dismissed.