PLJ 2014 Peshawar 26
Present: Mazhar Alam Khan Miankhel, J.
Mst. ZAKIA BEGUM & others--Petitioners
MIAN ABDULLAH SHAH & others--Respondents
C.R. No. 1713 of 2010 with C.O.C. No. 52-P of 2012, decided on 7.10.2013.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Arts. 100 & 101--Document of thirty years old--Presumption of correctness--File was not available in record room as burnt to ashes--Production of certified copies of order of the Court--Claim of title through suit for declaration on strength of compromise decree of preemption--Validity--Certified copies of the documents u/Art. 101 of Order, no doubt, had presumption as attached to thirty years old documents as provided in Art. 100 of Order 1984 and were public documents but it appeared that Courts below bitterly failed to consider contents of these documents--Documents though a thirty years old document but was not a public document and presumption of genuineness cannot simplicitor be extended to such a document which on face of it was not free from suspicion--On account of compromise decree, in preemption suit, owner of property, i.e. predecessor had surrendered his right of ownership in the property and due to some inadvertence, same was not incorporated in revenue record--Mere age of document is not only yardstick--It should also be established that it came out from proper custody and same was signed or written by person whose signature appear on it--Such presumption is always reubutable and would not be extended to such like document--Such type of document could not be seen within parameters of Art. 100 of Qanun-e-Shahadat and contents would require evidence for proof. [P. 28] A, B & C
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Entries in revenue record against rights relating to suit property are ineffective upon rights on basis of wrong entries the suit for produce by defendants--File was burnt to ashes--Suit on face of it was barred by law of limitation--Suit was nothing less than a counterblast of suits--Court is unable to understand that how trial Court granted a decree in favor of plaintiff on basis of documentary evidence and how appellate Court had shut its eyes on such a piece of evidence and concurred with judgment of trial Court--Decrees of Courts below were against the law and record and thus were not maintainable--Petition was accepted. [P. 29] D
Mr. Muhammad Asghar Khan Kundi, Advocate for Petitioner.
Mian Qamar Gul Kakakhel, Advocate for Respondents.
Date of hearing: 7.10.2013.
This civil revision under Section 115 C.P.C. by the petitioners is directed against the judgment and decree of Additional District Judge-I, Mardan dated 31.05.2010 whereby their appeal against the judgment and decree of Civil Judge-XII, Mardan dated 29.06.2009 was dismissed.
2. Concise facts of the case are that the plaintiffs brought a Suit No. 213/1 of 2009 against defendants seeking declaration to the effect that plaintiffs are the owners in possession of the suit property measuring 8 Kanals 4 Marlas bearing Khasra Nos. 172, 273/173, 268/103 (according to settlement 1925-26) and Khasra Nos. 110, 108, 126, as per register Haqdaran Zamin 1998-99 of Mauza Jalal Ismailzai, Tehsil and District Mardan and the defendants have no concern with the same. Similarly, entries in the revenue record against the rights of the plaintiffs relating to the suit property are ineffective upon the rights of the plaintiffs and on the basis of those wrong entries the suit for produce brought by the defendants is also illegal. They also sought for perpetual injunction and possession against the defendants. Defendants were put on notice who on appearance submitted their written statement. After recording pro and contra evidence and hearing learned counsel for both the parties, the learned trial Court decreed the suit in favour of the respondent/plaintiffs against the petitioner/defendants on 29.06.2009. The defendant/ petitioners filed appeal there against in the Court of Additional District Judge-I, Mardan which was dismissed on 31.05.2010. Hence this revision petition.
3. The learned counsel for the defendant/petitioners submitted that the findings of the two Courts below are totally against the law and facts of the case and are the result of misreading and non-reading of the material evidence on the record. He next contended that the plaintiff/respondents had no right whatsoever in the suit property and their present suit was not maintainable and was barred by law of limitation.
4. As against that, learned counsel for plaintiff/respondents supported the findings of the two Courts below and submitted that the respondents are the owners of the suit property on the basis of a compromise decree in a pre-emption suit way back in the year 1926 and the same decree was subsequently verified by the predecessor of the defendant/petitioners.
5. Learned counsel for the parties were heard and record of the case were perused.
6. Perusal of the record would reveal that the plaintiff/ respondents have based their claim of title through a suit for declaration on the strength of a compromise decree of show-camption in Suit No. 33/1 filed on 26-03-1926 and decided on 6-04-1926 copy of which is available on the file as Ex. PW 3/2 and said compromise according to them was further verified through an agreement deed dated 06.08.1964 by the owners. The trial Court, in the present suit, while granting decree in favour of plaintiff/respondents relied upon the above said decree and the subsequent agreement dated 6.8.1964 being a document of thirty years old having the presumption of correctness/truth as provided in Article 100 of Qanun-e-Shahadat Order. The clerk of record room in this case appeared as PW.2 who categorically stated that the above referred case file of show-camption suit is not available in the record room as the general record room of Mardan was burnt to ashes in the year 1973. The plaintiff/respondents through their attorney,Afridey, PW-3, produced certified copies of the said compromise including the order of the Court obtained way back on 13-03-1964 as Ex.PW 3/2. Certified copies of these documents under Article 101 of Qanun-e-Shahadat Order 1984 no doubt, have the same presumption as attached to thirty years old documents as provided in Article 100 of the Order of 1984 ibid and are public documents but it appears that the Courts below bitterly failed to consider the contents of these documents. The perusal of the said documents would reveal that on account of compromise, the suit of the plaintiff therein i.e predecessor of plaintiff/respondents was dismissed. The suit referred to was not that of a title but was a show-camption suit dismissed on account of compromise, then how it could extend any title in favour of predecessor or the present plaintiff/respondents. Similarly the deed dated 06.08.1964 Ex. PW 3/3 apparently signed by Sharafat ullah and others refers to the above said decree but that document though a thirty years old document but was not a public document and presumption of genuineness cannot simpliciter be extended to such a document which on the face of it is not free from suspicion. The contents of this document would further reveal that on account of compromise decree, in show-camption suit, owner of the property i.epredecessor of defendant/petitioners had surrendered his right of ownership in the property in favour of predecessor of plaintiff/respondents and due to some inadvertence, the same was not incorporated in the revenue record. The perusal of contents of both the documents would reveal that both are in conflict with each other. Mere the age of document is not the only yardstick. It should also be established that it came out from proper custody and the same was signed or written by the person whose signature appear on it. Such presumption is always rebuttable and would not be extended to such like disputed document. Such type of document could not be seen within the parameters of Article 100 of Qanun-e-Shahadat and the contents therein certainly would require evidence for proof. Besides this documentary evidence, the plaintiff/ respondents also produced revenue record and copy of extract of register Haqdaran-i-Zamin for the year 1991-92 as Ex. PW 1/4. The same would reveal that the defendant/petitioners have been recorded in the column of ownership whereas the predecessor of plaintiff/respondents has been shown as tenant-at-will of the suit property. The record of the case is silent as to what was the cause of the deep slumber of the predecessor of plaintiff/respondents from the date of decree i.e. 6.4.1926 till verification of the decree by way of deed dated 6.8.1964. If at all it is accepted true then what was the hindrance and hurdle in their way preventing them to implement the subsequent deed till filing of suit on 28.4.2003. Their suit on the face of it is barred by law of limitation. What can be gathered from the record is that the instant suit was nothing less than a counterblast of the suits of recovery of produce filed by the present petitioners against the plaintiff/respondents. I am unable to understand that how the trial Court granted a decree in favour of plaintiff/ respondents on the basis of documentary evidence referred to above and how the appellate Court had shut its eyes on such a piece of evidence and concurred with the judgment of the trial Court. The judgment and decrees of both the Courts below are against the law and record and thus are not maintainable. So, by accepting this revision petition, judgment and decrees of the two Courts below are set aside and suit of the plaintiff/respondents stands dismissed with no order as to costs.
C.O.C. No. 52-P/12
Since the main controversy has been decided, so, this Court does not consider it appropriate to decide this contempt of Court petition. Hence disposed of accordingly.
(R.A.) Petition accepted