P L D 1962 (W (PLP)

SAJJAD AHMAD JAN, J.‑This is a plaintiffs second appeal met by the defendants' cross‑objections, arising in the following circumstances. In the year 1930, one Muhammad Khan sold the suit land measuring 80 kanals, situated in the area of mauza Chhichharianwali, Tehsil Phalia, to one Hayat, a predecessor‑in- interest of the defendant‑respondents. Khizrat Muhammad, one of the plaintiff‑appellants, challenged the sale as reversioner of Muhammad Khan on the ground that the sale was without necessity qua their ancestral property and would not affect the rights of the reversioners after the death of the vendor Muhammad Khan. The suit was dismissed by the first Court but was decreed on appeal by the District Judge on the 26th of March 1943. The declaration granted was qualified by the condition that Rs. 770, representing a previous mortgage debt, included in the considera tion paid by the vendees was to remain a charge on the property. Later, 'V4uhammad Khan died but when exactly, is a point of controversy between the parties as it ' affects the question of limitation for the present suit for possession which was instituted on the 6th of October 1952, by Khizrat Muhammad, mentioned above, joined by the two widows and other reversioners of Muhammad Khan. Hayat, the vendee, had also died in the meanwhile. His heirs were impleaded as defendants but one of them, namely, Mst. Rahmat Bibi, who was admittedly his daughter, had been left out from the suit.

2. The suit was resisted on several grounds which are reflected in the issues framed by the trial Judge. At this stage, however, only two issues remain of practical interest for the decision of the present appeal and the cross‑objections, which alone were argued before us from both sides. These are issues Nos. 7 and 8 which are to the following effect: ‑ (7) Whether Mst. Rahmat Bibi is the daughter of Hayat deceased ? (8) Whether the plaintiffs' suit is within limitation ? Issue No. 7 was not comprehensively framed as it did not precisely cover the objection of the defendants in regard to the non impleadment of Mst. Rahmat Bibi as an heir of Hayat in the plaintiffs' suit, however, in the discussion under this issue the learned trial Judge has adverted to the real objection and has given his decision that although Mst. Rahmat Bibi is the daughter of Hayat, her non‑inclusion in the suit would only affect her interests which were separable from the interests of the other heirs of Hayat. He thus decreed the plaintiffs' suit to the extent of 6/7th of the suit property on proportionate payment of the charge amount of Rs. 770 to the defendants and also on payment of the price of the house to them which had been constructed by them on the suit land. Costs were also awarded to the plaintiffs to the extent of 3/4th. The plaintiffs' suit was thus decreed to the extent of 6/7th share of the suit land including the house existing thereon on the total payment by them of Rs. 2,304‑6‑. The plaintiffs' suit for the remaining 1/7th share, belonging to Mst. Rahmat Bibl, was dismissed.

3. On the question of limitation under issue No. 8, the learned trial Judge held the suit to be within time by a reference to Exh. P. 4 which was produced by the plaintiffs as a copy of death entry of Muhammad Khan from the register of deaths and births, maintained by Dinga Police Station, showing that he had died on the 3rd of June 1950, (not the 15th of June 1950, as noted by the trial Judge, which is the date on which the entry was recorded in the register of deaths). The learned trial Judge considered the objection of the defendants that Exh. P. 4 was not a duly certified copy, but held that it was not a valid objection as the copy bore the seal of the police station and the signatures of the official who certified it. The suit having been instituted within three years from the date of Muhammad Khan's death, as mentioned In this copy, was held to be within time under Article 2 (b) of the Punjab Limitation (Custom) Act (I of 1920),

4. An appeal was‑preferred against this order by the plaintiffs, claiming the whole of the suit land, including the share of Mst. Rahmat Bibi which had been withheld by the first Court. The defendant‑respondents filed cross‑objections praying for the dismissal of the entire suit. The learned Additional District Judge, Gujrat, Mr. Ata Ullah, by his order dated the 25th of July 1955, accepted the cross‑objections and dismissed the plaintiffs' suit on the Issue of limitation as well as on the ground that in the absence of Mst. Rahmat Bibi as a defendant it was not possible to maintain the integrity of the original declaratory decree passed in favour of the reversioners and to give effect to it. To quote his own words, "the decree for the declaration along with its terms must be taken as‑a whole and it is not the function of the learned trial Court to incorporate its own terms and change it. The order actually proposed by the lower Court is that the share of Mst. Rahmat Bibi will not be touched and she will not get any part of the sum of Rs.

770. However, the plaintiffs were held entitled to 6/7th portion of the suit land and they were allowed to reduce the charge proportionately. In my opinion, such an interference in the terms of the decree already passed cannot be justified and as it is impossible to give effect to that decree without the representation of Mst. Rahmat Bibi the whole suit must fail on account of her non joinder."

5. We consider that on this last point the learned lower appellate Court has taken a mistaken view of the legal position. Whether Muhammad Khan died in April 1948, as alleged by the defendant‑respondents, or in June 1950, as contended by the plaintiff‑appellants, admittedly he had died after the enforcement of the West Punjab Muslim Personal Law (Shariat) Application Act (1X of 1948) which was enforced on the 15th of March 1948. Under the Muslim law, his daughter Mst. Rahmat Bibi had become vested with a specific share in the property which is separable from the shares of the other heirs. Her non‑inclusion in the suit would leave her specific share intact, not impairing the efficacy of the plaintiffs' suit as far as the shares of the defendants before the Court were concerned. The position would have been different if, because of the absence of Mst. Rahmat Bibi from the record as a necessary party, no effective relief could have been granted to the plaintiffs regarding their claim for possession, based on the declaratory decree in their favour. Order I, rule 9 of the Civil Procedure Code may here be referred to with advantage "No suit shall be defeated by reason of the misjoinder or non‑joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and Interests of the parties actually before it."

6. In the case of Muhammad Ashraf and another v. Mahboob Sultan and 2 others (P L D 1958 Lah. 296), a suit by four reversioners, for possession of land, based on the invalidity of a gift under custom, was decreed by the trial Court. The defendants preferred an appeal omitting one of the decree‑holder reversioners as a respondent. A subsequent appeal was filed against the omitted respondent but was dismissed as time‑barred. The appellate Court also dismissed the earlier appeal of the other reversioners on the ground that the decree as originally passed in this suit could not have been split up and challenged only against three and not against the fourth. The learned Judge (Akhlaque Husain, J.), relying on the Full Bench decision in Sant Singh v. Gulab (A I R 1928 Lah. 572), held as follows: ‑ "Since the subject‑matter of the two appeals, that is to say, the share of the respondent In the subsequent appeal on the one hand and those of the three respondents in the earlier appeal in the property of the donor were separable, there could be no conflict between the decree in the subsequent appeal and the decree which could have been passed in the earlier appeal. It was not a case of two decrees in respect of the same property and, therefore, the question of conflict between them could not arise. The possibility of contradiction or conflict in the judgment was immaterial."

7. In the present case, there is no conflict of judgment or decrees at all. The situation that emerges is that the decree which has been passed in favour of the plaintiff‑appellants, cannot bind Mst. Rehmat Bibi who was not a party to the suit, but this fact does not stand in the way of the plaintiffs getting their relief against the rest of the property inherited by the other heirs of Hayat, in their separable shares, excluding the share of Mst. Rahmat Bibi.

8. The learned counsel for the respondents, however, argued the case from another angle, not denying the position that on account of the separateness of the shares of the respective heirs of Hayat suit for possession could proceed validly against the heirs who were arrayed before the Court. He contended that the sum of Rs. 770 was a mortgage debt over which Hayat deceased and now all his heirs had the right of subrogation. This mortgage, which was found to exist on the property In the amount of Rs. 770, could not be redeemed except as a whole in a suit against all the mortgagees under Order XXXIV, rule 1, Civil Procedure Code. We consider that this is altogether a mis conceived objection which has been taken for the first time before us. The plaintiffs' suit was not for redemption but was one for possession and they admitted their liability to pay the sum of Rs. 770 as a charge on the property, representing a previous mortgage, and this amount they had paid off by depositing it in the treasury. We, therefore, disagree with the learned lower appellate Court on this point.

9. The other question in the suit is that of limitation. Undoubtedly, it was for the plaintiffs to prove that their suit was within time. On this point, their main stand was on Exh. P. 4 which, if legally admissible and acceptable, would be a relevant piece of evidence to prove that Muhammad Khan had died on the 3rd of June 1950. The learned counsel for the appellants has pointed out, by referring to the relevant Punjab Police Rules, 1934, Volume III, framed under the Punjab Police Act (V of 1861), and In particular to Rules 22'4, 22 45 and 22'66, that the maintenance of a register of deaths and births at police stations is a public duty. The register of deaths and births maintained as such would, therefore, be a public document and is capable of proof by secondary evidence without the production of the original. But the legal requirement under section 75 of the Evidence Act (I of 1872), is that only a certified copy, as described in this provision, and no other evidence, is admissible. It is necessary to quote this provision which is as follows: "Every public officer having the custody of a public document which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefore, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies." Applying the test of section 76, we cannot accept the learned counsel's contention that Exh. P. 4 answers the requirements of section

76. It bears the seal of the police station and also purports to bear the signatures of Fiaz Ali Khan, Head Constable Muharrir, as Naqal kunrnda and of another official whose name it has not been possible to decipher (it is perhaps Mian Khan) as tasdiq kuninda. This obviously is not a compliance with the require ments of section 76 for which it is necessary that the copy must D bear a note that it is true and a correct copy of the original. In this connection, however, a point has been stressed by the learned counsel for the appellants with great force which merits considera tion. Exh. P. 4, along with other documents, was produced by the plaintiffs' counsel on the 27th of April 1954, when he closed his evidence except for the statement of the plaintiffs. This document was duly exhibited by the Court and admitted as Exh. P. 4 on the same date without any objection by the opposite side. The learned counsel for the appellants argued that after this document was duly exhibited and admitted, under Order X111, rules 4 and 7 of the Code of Civil Procedure it should be con sidered as duly proved. It was taken by the plaintiffs, the Court and the defendants as an acceptable document, being a certified copy of the original death entry, thus obviating the necessity for the plaintiffs to prove the entry by any other legal means. It is not fair to surprise them subsequently at the appeal stage with the objection that the document was not validly proved. He referred to a Privy Council ruling reported in Gopal Das and another v. Sri Thakurji and others (A I R 1943 P C 83) in which their Lordships observed as follows: "Where the objection to be taken is not that the document is in Itself inadmissible but that the mode of proof put forward is Irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof." We consider that in the case before us this view is very pertinently applicable. Exh. P. 4 was exhibited and admitted into evidence as a certified copy of the death entry from the register of deaths and births, which is a public document, maintained at the Dinga Police Station. The objection on which it was ruled out by the lower appellate Court is that it is not a duly certified copy, not bearing the necessary endorsement as required by section 76 of the Evidence Act. If this objection had been taken at the time of the production of the document, the plaintiffs would have been put to the necessity of proving the entry of Muhammad Khan's death as contained in the original register itself or by other legal means open to them. Exh. P. 4 has been ruled out not because its original does not exist but because it does not bear the legal proof of its being a certified copy. Its admissibility is not open to question if it were a duly certified copy of the original. The point of objection, therefore, relates to the proof of the document as the certified copy and not to its inherent inadmissibility as a copy of a public document. We do not feel inclined to throw out Exh. P. 4 bearing proof on the question of limitation on a highly technical point urged for the defendants and accepted by the lower appellate Court. However, to avoid any suspicion of this document being a superious one, we would remand this case to the trial Court to decide afresh the question of limitation after giving an opportunity to the plaintiffs to produce the original or duly certified copy of the death entry of Muhammad Khan, as he may be advised. This would be subject to rebuttal by the other side.

10. We may point out here that some verbal evidence was also led by the plaintiffs in this behalf which has not been con sidered by the Court below. A copy of the inheritance mutation Exh. P. 6 of Muhammad Khan's estate was also produced on the record. This again has not been referred to by the Courts below and the learned counsel for the plaintiff‑appellants pressed it on our attention as it contains, in Column No. 3, the date of the death of Muhammad Khan as the 3rd of June 1950, mutabiq- kitab‑e‑chowkidar. We do not think this has any evidentiary value by itself, being a piece of second‑hand evidence based on the chowkidar's book which was not produced.

11. The case is remanded to the trial Court for a fresh decision on the question of limitation alone in the light of the lower Court on other issues which will be considered as closed, reversing the lower appellate Court's findings on issues Nos. 7 and

8. Costs shall abide the ultimate result. The appeal and the cross‑objections are disposed of accordingly. K. M. A. Case remanded,