P L D 1989 Peshawar 127 (PLP)

(2) Is the suit in time? (3) Are the plaintiffs estopped to bring this case? (4) Are the relations of landlords and tenant exist between the contesting parties, if so, with what effects? (5) Whether the suit is liable to dismissal for want of necessary parties? (6) Whether the plaintiffs are owners‑in‑possession of 3/4th of the suit property on account of its purchase from defendant No.2 and the predecessor‑in‑interest of defendants Nos.3 to 10 through sale‑deed dated 24‑5‑1963? (7) Whether the plaintiffs are owners‑in‑possession of the rest of the suit land through sale‑deed dated 18‑5‑1964? (8) Are the existing entries of the Revenue record collusive, fraudulent, unlawful and ineffective on the rights of the plaintiffs? (9) Whether the plaintiffs are in possession of the suit land for a period of more than 12 years and have matured their title to the suit land? (10) Whether the two sale‑deeds relied on by the plaintiffs dated 24‑5‑1963 and 18‑5‑1964 are fraudulent, fictitious and ineffective on the rights of the contesting defendants? (11) Whether the plaintiffs are entitled to the declaratory decree prayed for? (12) Whether the plaintiffs are entitled to the decree of possession of the suit land as an alternative relief? (13) Relief. After recording evidence as produced by the parties the learned trial Judge decided issues Nos. 1, 2, 6 and 8 in favour of the petitioners and the other issues against the defendants and decreed the suit of the petitioners by judgments dated 15‑10‑1979. Feeling aggrieved by the said judgment Ajoon Khan respondent No.1 and two others Bahadur s/o Bara Khan and Abdul Aziz s/o Anzallah filed an appeal which was accepted by the learned District Judge, Mansehra and the suit of the petitioners was dismissed by judgment dated 7‑10‑1981. Hence the revision petition in hand by the plaintiffs of the suit.

2. I have heard learned counsel for the parties who also led me through the record of the case.

3. It is an admitted fact that the area where the suit land is situate was fomerly Tribal Area and was merged with the then District of Hazara in the year 1952 by order of the Governor‑General and Registration Act, 1908 and other Laws which were applicable to the then District Hazara were made applicable to the said area in the year 1960 under the provisions of the Central Laws (Statute Reform) Ordinance, 1960. Prior to the year 1960 the Registration Act was not applicable to the said area.

4. The claim of the petitioners is based on two documents of sale, one, copy Exh. PW 2/3, alleged to have been executed by Ajoon respondent No.1 in favour of Ghulam Jani, Ghulam Rabbani and Zardad on 12‑3‑1935 and the second, copy Exh. PW 2/2, executed by Ghulam Jani, Ghulam Rabbani and Zardad in favour of Abdul Jalil and Darvesh petitioners on 24‑5‑1963. Both these documents of sale are unregistered.

5. In so far as the document dated 12‑3‑1935, copy Exh. PW 2/3, is concerned it was written at the instance of the vendors Ajoon and Ibrahim by PW 3 Maulvi Abdul Khanan aged about 70 years. This witness had stated that he had written this document at the instance of the vendors in the year 1935 and that the vendees were put in possession thereof. This is a document which was executed more than 30 years ago. The learned counsel for the respondent has contended that the execution of the said document was not proved because the attesting witnesses had not been produced in evidence to prove its execution and in this connection he relied upon the provisions of section 68 of the Evidence Act, 1872 (Article 79 of the Qanun‑e‑Shahadat, 1984). His contention was that this document was required by law to be attested by at least two witnesses and that neither any attesting witness was produced nor any evidence was led by the petitioners to prove that the attesting witnesses were not available. In the first place the learned counsel for the respondents cannot rely upon the provisions of section 68 of the Evidence Act (Article 79 of the Qanun‑e‑Shahadat) for the simple reason that in the year 1935 the Evidence Act was not applicable to that area. Secondly this was a document which was executed more than 30 years ago and the presumption of truth attached to it under section 90 of the Evidence Act, 1872 (Article 100 of Qanun‑e‑Shahadat, 1984). Since the scribe of this document had been produced in evidence by the petitioners and he had clearly stated that he had written that document A at the instance of the vendors, the document clearly stood proved. Moreover the presumption of truth was attached to this document, as it was proved by the petitioners beyond any doubt whatsoever that Ajoon respondent No.1 had sold the suit property to Zardad respondent No.2 and Ghulam Jani and Ghulam Rabbani predecessors of respondents Nos.3 to

10. In this respect reliance may also be placed on the case of (Thakur) Baghubar Singh v. Thakur Sanwal Singh (A.I.R. 1929 Oudh 55).

6. In so far as the document, copy Exh. PW 2/2, is concerned it was executed by Ghulam Jani, Ghulam Rabbani and Zardad on 24‑5‑1963 in favour of the petitioners. This is also unregistered sale‑deed creating an interest of the value of more than Rs.100. In the year 1963 it was compulsorily register-able because the Registration Act, 1908 was made applicable to this area in the year 1960. Although B under section 49 .of the Registration Act 1908, as amended by Registration (Amendment) Ordinance, 1962, this document did not create any title in favour of the petitioners as it was required to be registered but it could be admitted in evidence and could also be relied upon to prove any collateral purpose. The perusal of the record of rights of 1966‑67, prepared after the Settlement shows that although Abdul Jalil and Darvesh were shown in possession as tenants yet they were not paying any rent to Ghulam Jani, Ghulam Rabbani and Zardad on account of purchase. Similarly the latter three are also recorded as tenants of Aioon co‑sharer but they were also not paying any rent to him on account of purchase. This entry had been repeated in the record of rights on 1971‑

72. The claim of the petitioners was that Zardad, Ghulam Jani and Ghulam Rabbani had purchased the suit land from Ajoon and that the said vendees had then sold the suit land to them and since the record of rights was prepared behind their back, they could not be recorded as owners therein although they were recorded as tenants paying no rent on account of purchase. This entry in the record of rights in favour of the petitioners and their vendors appears to have been made on the basis of the aforesaid two documents of sale. The said documents although not registered, were admissible in evidence and could also be relied upon to prove C the factum of possession. The respondents have also admitted that the petitioners were in possession since the last more than 12 years. Obviously the possession of the petitioners was as vendees of the suit land. The entries of purchase in the record of rights coupled with the documents would clearly establish that the petitioners entered into possession of the suit land as vendees and had become owners by valid purchase. In so far as the question of relying upon the sale‑deeds for collateral purpose is concerned I draw benefit from the case of Messrs Rahman Cotton Factory v. Messrs Nichimen Co. Ltd. (Formerly Messrs Japan Cotton and General Trading Co. Ltd. Karachi (P L D 1976 S C 781).

7. It was further contended by the learned counsel for the respondents that none of the petitioners had appeared as witness and that adverse inference should be drawn against them. In this respect he relied upon the case of Feroz Khan and others v. Mst. Waziran Bibi (1987 S C M R 1647). However, I cannot see eye to eye with the learned counsel for the respondents on this point for the simple reason that they had produced their attorney as a witness and also the scribe of the document executed on 12‑3‑1935. As such no adverse inference can be drawn against them.

8. Not only that but the petitioners had also claimed prescription of title of adverse possession by more than 12 years on the basis of the said sale‑deeds. Although the sale‑deed executed on 23‑5‑1963 was defective inasmuch as it being an unregistered document did not D create any title in favour of the petitioners yet the factum of possession in its turn was clearly established in their favour and they could validly claim title by prescription of time as being in adverse possession. In arriving at this conclusion I draw support from the cases of Mir. Laik Ali v. Standard Vaccum Oil Company (Esso) and Abdul Razzak (P L D 1964 S C 220) and Ahmed Khan v. Rasul Shah and others (P L D 1975 S C 311).

9. The above discussion will establish that there was a valid sale of the suit land in the year 1935 in favour of Ghulam Jani and Ghulam Rabbani and Zardad on the basis of a document which was more than 30 years old and the said three sold the suit land to the petitioners and also put them into possession under the sale. As such the petitioners had become owners of the suit land by purchase and by being in Possession as vendees. The learned District Judge failed to appreciate the proper legal position in this case. Although E the deed in favour of the petitioners was unregistered yet they were put in possession of the suit land as vendees and as such they had become owners by purchase as well as by prescription. It was a case of misreading and non‑reading of evidence on the part of the learned District Judge.

10. I will, therefore accept this revision petition, set aside the impugned judgment of the learned District Judge and will restore the judgment of the learned Senior Civil Judge. However, there shall be no order as to costs. A . A . /684/P Revision accepted