2005 PLP 180 (CLC)

S. 115

West Pakistan Land Revenue Act (XVII of 1967), S.42-- Qanun-e-Shahadat (10 of 1984), Art.100

Revision

Refusal of Courts below to raise presumption in favour of mutation under Art.100 of Qanun-e-Shahadat, 1984--Validity

Findings of Courts below were based on sound materials and reasons

High Court in view of narrow and limited jurisdiction under S.115, C.P.C. could not interfere into discretion exercised by Courts below

Revision was dismissed in limine. (f) West Pakistan Land Revenue Act (XVII of 1967)

S. 42

Mutation

Evidentiary value

Mere attestation of mutation would not convey any title nor same would be an evidence of title-- Beneficiary of mutation would be required to prove transaction through independent evidence

Mere entry of mutation or its attestation would be of no benefit to party claiming benefit thereunder. Abdul Sattar Khan for Petitioners. Impugned herein are the judgments and decrees of the learned Senior Civil Judge dated 9-6-2003 and that of the learned Additional District Judge, Swabi dated 19-6-2004. The former dismissed the suit of the petitioners and the latter confirmed the same in appeal.

2. Precisely, facts of the case are that petitioners instituted a suit seeking decree regarding declaration of title over the suit-land described in the plaint on the basis of Mutation No.8609 dated 17-9-1955 through which the suit-land is shown to have been transferred by Muhammad Khan and Ghulam Muhammad Khar in favour of Ghulam Hussain father of the petitioner No.

1. The same is shown to be a Tamleek mutation. This mutation did not find place in the next periodical record/Jamabandi or any subsequent Jamabandi. The petitioners have also challenged Mutations Nos. 12122 and 12123 dated 11-4-1964 through which the suit -land has been transferred in favour of the defendant by the original owner which too are gift (Tamleek mutations). The transaction through these mutations was in the prescribed manner incorporated into the next Jamabandi and the same is repeated up to date. 2-A. It was vehemently contended that Mutation No.8609 dated 17-9-1955 has remained unchallenged and being more than 30 years old document and that when it was endorsed by the Court by admitting it into the evidence put on it exhibit mark without any objection from the opposite side, therefore, on the strength of provision of Article 100 of the Qanun-e-Shahadat Order, 1984 was entitled to the statutory presumption which provides that such document shall be deemed to be genuine and proved whenever is adduced in evidence and no further supporting evidence is required to be adduced to reinforce its legal worth attached to it under the above provision of law. In support of his contention the learned counsel relied on the view taken by this Court in the case of Muhammad Darwesh v. Haji Muhammad Hussain and others 1999 CLC 106 (Peshawar).

3. As considerable stress was laid on the above proposition and being the solitary contention of the learned counsel, therefore, it requires to be considered in its true legal perspective. To appreciate and understand the true import of Article 100 of the Qanun-e-Shahadat Order, 1984, the same is reproduced below:-- "

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 that persons; 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. Explanation: For the purpose of this Article and Article 92, documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable."

4. The rule contained in Article 100 of Qanun-e-Shahadat Order is founded on convenience and expediency alone. In the case of ancient documents by afflux of time vital evidence may disappear like the non- availability of the author, its executants and the witnesses attesting the same either because of death or that they cannot be procured being not subject to the process of the Court or have otherwise become incapable of giving evidence. The presumption to be raised, however, is discretionary with the Court, and the Court may refuse to raise the presumption in a particular case keeping in view peculiar circumstances and facts of that case, thus, the rule of raising presumption is not imperative. The provision of Article 100 has a limited scope as the presumption is confined to and would arise in respect of the document to the extent (i) that the signature and every other part of such document, which purports to be in the handwriting of any particular person, (ii) that the document was executed by the person by whom it purports to have been executed, and (iii) that the document was attested by the person by whom it purports to have been attested, the same would not by itself amount to a proof about the correctness of its contents. The scope of such presumption is thus, confined to the extent stated above and does not dispense with the formal proof regarding the contents of a document. When such proof about the correctness of its contents is provided, then it becomes imperative for the Court to raise presumption about its contents also and the onus would shift to the opposite party to dislodge such a presumption by leading cogent, convincing and believable evidence to the contrary.

5. There are certain other exceptions to the rule of raising a presumption in favour of thirty years old document albeit, it is produced by person having proper custody and is brought on record in the laid down manner, still the Court may refuse in raising the requisite presumption about it in the following cases amongst others:-- (i) if it is executed by a "Parda Nasheen illiterate lady" or even by illiterate person with unintelligent mind, (ii) is executed by a person of unsound mind, (iii) or facts and circumstances suggest exercise of undue influence, element of practising fraud or is the result of misrepresentation or in case of sale transaction, the payment of sale consideration becomes a begging question, then all these would serve as negation factors and in all such cases, in the absence of requisite proof about the correctness of the contents of the document, the Court shall refuse to raise the presumption.

6. A document, the genuineness of which is seriously challenged by the opposite party on the ground of fraud, forgery, fabrication or there are apparent over-writings, interpolations made in it rendering it suspicious one, then in that case tote party relying on it shall adduce evidence by producing the signatory to the document i.e. the executants, its author and the two attesting witnesses, if they are alive or capable of giving evidence and are subject the process of the Court and whose attendance can be procured without any inconvenience or without any unreasonable delay to free the document from all suspicions/doubts surrounding it. In the absence of such evidence, the raising of requisite presumption may be refused by the Court being discretionary with it, because the effect of presumption may be weakened or even dislodged by circumstances, which tends to raise doubts about authenticity of W document.

7. It is incorrect proposition that once such document is tendered in evidence and mark of exhibit is put on it by the Court without objection by the other side, then it stands proved and shall be taken into consideration by the Court. The endorsement on the document only makes it a part of the evidence but its evidentiary value and legal worth l depends upon the above pre-requisites which are provided in the; provision of Article 100 itself, The presumption to be raised in respect of documents provided in the relevant provisions of Qanun-e-Shahadat Order are of two kinds, some are imperative, where the Court shall presume a document to be correct while in other cases like the one under Article 100 (ibid), as the word "may" has been employed leaving discretion with the Court to raise or refuse to raise such a presumption thus, when genuineness of thirty years old document is susceptible to suspicion then unless additional proof is provided about the genuineness of its contents, the presumption would be weakened or almost; diminished.

8. The question that as to whether a mutation comes within the definition of document is debatable. The word "document" has been defined in, Article 2(b) of the Qanun-e-Shahadat Order which means any matter expressed or described upon any substance by means of letters figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter in this regard in the case of Muhammad Tahir v. Mst. Sardar Bano AIR 1952 All. 782 the following view was taken:-- "One of the essential elements of due execution of a document is that the document should be signed' by the party or parties associated with it. The words "intended to be used, or which may be used" in the definition of the word `document' in section 3, Evidence Act, necessarily imply that the document has to be used by some party against another. If it is to be so used, then there should be intrinsic evidence in the document itself of some particular party or parties being associated with the same." Under the provision of section 42 of the Land Revenue Act, 1967 mutation is required to be entered on the information given by the person acquiring any interest, right or title whether by way of purchase, inheritance, mortgage, gift or otherwise and the Patwari shall enter such information in the Roznamcha and also enter the mutation in relevant register which shall be placed before the Revenue Officer per requirements of subsection (6) who shall attest the same in presence of two respectable persons (Lumberdars) or members of the Union Council/Committee whose signatures/thumb-impression shall be obtained on it by the Revenue Officer thus, the relevant provision does not speak about the execution of the mutation by the vendor and it is only an incident of transfer which according to the revenue law requires to be entered in the relevant register and to be attested in the open gathering. The entire exercise thus, carried out under the scheme provided therein is meant to maintain the record up to date for fiscal purposes and the vendor/transferee is neither the executant of the mutation nor he is signatory to the same in view of the plain language of section 42 (ibid) thus, in such circumstances it is difficult to hold that the mutation is a document like a deed executed by the parties duly signed or thumb- impressed by them. In ordinary sense no doubt it comes within the definition of a document but for the purpose of Article 100 (ibid) it is doubtful as to whether it is document of that nature as contemplated thereunder.

9. The view taken by this Court in the case of Muhammad Darwesh 1999 CLC 106 (Peshawar) relied upon by the learned counsel operates on entirely different facts and proposition and is, therefore, distinguishable from the facts of the present case and law point involved herein.

10. In the instant case the Mutation No.8609, dated 17-9-1955) was never made public. It could not find way into the required periodical record (Jamabandi) and has no reflection therein at any stage till the date of the institution of the present suit while to the contrary the Mutations Nos. 12122 and 12123 dated 11-4-1964 were incorporated into the next Jamabandi in favour of the respondent-defendant. These entries have been repeated continuously right from the first Jamabandi up to the last one and has remained uninterrupted and unbroken one. Apart the above, the respondent-defendant has been shown continuously as owner-in -possession of the suit-land thus, the evidence led by the respondent- defendant has overriding and super-imposing effect on the Mutation No.8609 dated 17-9-1955 in support of which no independent evidence was led and when the two learned Courts below after proper appraisal of the evidence both oral and documentary on record has refused to raise a presumption in its favour under Article 100 (ibid) then this Court in view of narrow and limited jurisdiction under section 115, C.P.C. cannot interfere into the discretion exercised by the two learned Courts below. The findings recorded are based on sound materials and proper reasons have been given therefor. It is also settled principle of law that mere attestation of mutation does not convey any title nor it is an evidence of title and its beneficiary is required to prove the transaction through independent evidence and mere entry of mutation or its attestation would be of no benefit to the party claiming benefit therefrom. For what has been discussed above, this petition being without legal merits is, therefore, dismissed in limine. C.M. 793 of 2004 having become infructuous is also dismissed. S.A.K./246/P Revision dismissed.