' MUHAMMAD NAWAZ ABBASI, J.--- This is a direct appeal against the judgment, dated 13-5-1999 passed by a learned Single Judge of Lahore High Court,, Rawalpindi Bench, Rawalpindi in a Civil Revision arising out of civil suit.
2. The essential facts for disposal of this appeal are that a residential Haveli constructed on an area measuring 6 Marlas 49 feet situated in the Municipal limits of Talagang, was owned by Ghulam Muhammad, predecessor-in-interest of the parties and two separate suits for partition of the Haveli were filed by the respondents. The first suit was filed by the respondents 4 to 7, legal heirs of Raza Muhammad, son of Allah Dad, appellant No, 1, on the ground that the Haveli in question, along with some agricultural land, was gifted by Ghulam Muhammad, their paternal- great grandfather to their father in 1961, who died in 1977, and claimed that they were owners to the extent of 2/3rd share in the Haveli whereas the remaining 1/3rd share belonged to Allah Dad and Mst.. Sonia, their grand-parents. The second suit was filed by the respondents 1 to 3, namely, Dhuman Khan, Muzaffar Khan, real brother of Allah Dad (appellant) and Mst. Khadija, their real sister claiming 4/7th share in the property and sought a decree for possession through partition.
The respondents 8 to 11, who were tenants of the property, were also impleaded as defendants and both the suits were consolidated. The claim of Allah Dad (appellant), who was defendant in the suits, was that in consequence to the family settlement made by Ghulam Muhammad, as contemplated in the deeds dated 19-1-1951 (Exhs.D.1 and D.3), he became exclusive owner of the Haveli and that plaintiffs had no share in the suit Haveli. The case of plaintiffs/respondents (1 to 3), on the other hand, was that the Haveli was joint property of the parties and that the transfer deeds (Exhs.D1 and D-3) were not genuine and claim of respondents 4 to 7 that Ghulam Muhammad had made an oral gift of the suit property in favor of their father was also without any basis. They also asserted that the gift of the Haveli made by Allah Dad in favor of his daughter, Mumtaz Begum (appellant No,3) who further gifted the same to her sister Mst. Azmat Ara Begum was illegal, void and ineffective to their rights in the suit property.
3. The learned trial. Judge at the conclusion of the proceedings in the suit, held that Haveli was joint property of the parties and while dismissing the suit of respondents 4 to 7, passed decree in favor of respondents 1 to 3 to the extent of 4/7th share in the suit Haveli, vide judgment, dated 22-11-1986.
Mst. Mumtaz Begum and Mst. Azmat Ara, who were impleaded as defendants in the suit, did not challenge the Malkan judgment and decree but Allah Dad, appellant herein, filed an appeal and learned Additional District Judge, Chakwal, after detailed scrutiny of the oral and documentary evidence brought on record by the parties, held that the documents, (Exhs.D.1 and D.3) were more than 30 years old and unless proved otherwise, despite being unregistered, would be admissible in evidence by virtue of Article 100 of the Qanun-eShahadat Order, 1984 and would also be presumed to be genuine. The. Learned Additional District Judge, thus, while keeping in view the uninterrupted possession of Haveli with Allah dad since the life time of Ghulam Muhammad and Mst. Malkan, concluded that he was owner in possession of the Haveli in terms of family settlement incorporated in the documents referred above and by allowing the appeal, dismissed the suit vide judgment, dated 5-1-1988. The respondents 1 to 3, assailed the. Judgment and decree passed by the Appellate Court by way of filing a civil revision in the Lahore High Court, Rawalpindi Bench, wherein a learned Single Judge of the High Court, vide impugned judgment, allowed the civil revision and by setting aside the judgment and decree passed by the Appellate Court, restored that of the trial Court with the observations (a) that Allah Dad having transferred the property in favor of his daughter, would have lost his interest in the property and had no locus standi to file the appeal and challenge the decree (b) the documents (Exhs.D.1 and D.3) purported to have been executed by Mst. Malkan and Ghulam Muhammad on 9-1-1951 being unregistered documents, would not confer any title (c) the execution and attestation of the deeds in question was denied by the respondents and the appellants have not been able to discharge the burden of proving the age of these documents more than 30 years old for the purpose of raising a presumption of execution and genuineness in respect of the said documents under Article 100 of Qanun-e- Shahadat Order, 1984 without formal proof, therefore, the same would not be read in evidence for the purpose of determination of rights of the parties (d) Mst. Malkan having no share in the suit Haveli, she could not pass on title in favor of Allah Dad and the transfer of land by her in favor of respondents Nos.1. To 3, was an independent transaction.
4. Learned counsel for the appellants has contended that claim of Mst.. Mumtaz Begum and Mst.
Azmat Ara was based on the title of Allah. Dad, who was a necessary party in the suit and decree was also passed against him, therefore, notwithstanding the fact that Mumtaz Begum and Azmat Ara (donees) did not file appeal, Allah Dad in his own right could competently file an appeal to challenge the decree and the view taken by the learned Judge in the High Court that Allah Dad having transferred his interest in the property in favor of his daughter through gift had no locus standi to challenge the decree, was against the law.
'Learned counsel for the respondents submitted that the appeal filed by Allah Dad for the benefit of non-appealing party, would not be competent.
5. In light of the above facts of the case and the law on the subject, we having examined the question relating to the locus standi of Allah Dad to file an appeal against the judgment and decree of the trial Court and, the competency of appeal, find force in the contention raised by the learned counsel for the appellants. The law confers right of appeal on the parties in the suit and under Order XLI, rule 4 C.P.C. Any party in the suit, can prefer an appeal against the decree but the necessary parties must be brought on record in appeal, either as appellants or respondents and if a decree proceeds on grounds common to all the plaintiffs or defendants and only one of them has appealed against the decree, the Appellate Court may pass an order in favor of all plaintiffs or defendants as the case may be and appeal by one can be considered on behalf of all. Similarly, by virtue of Order XLI, rule 33, C.P.C., if an appeal is filed against a part of decree, the Appellate Court is empowered to make an appropriate order in favor of any of the non appealing party subject to the condition that decree proceeded on a common ground. Allah Dad, Appellant herein, was a necessary party who was impleaded as defendant in the suit and since in his absence, no effective decree could be passed, therefore, he could conveniently challenge the judgment and decree in his own right and thus the appeal filed by him by impleading non-appealing parties (appellants Nos.1 and 2) as respondents, was competent and the view of the learned Judge in the High Court that he had no locus standi to file an appeal or the appeal filed by him was nbt competent, was not correct. It was held in H.M. Saya & Co. v. Wazir Ali Industries Ltd. PLD 1969 SC 65 that even a stranger, who was not made party to the suit, if affected by an order or decree passed by the Court, can competently file an appeal.
6. The second contention of the learned counsel was that Ghulam Muhammad and Mst. Malkan by virtue of the deeds of family settlement (Exh.D.3) and (Exh.D.1) dated 9-1-1951 distributed their property during their life time and the High Court for no good reasons, excluded these deeds from consideration. The learned counsel submitted that the respondents have neither specifically denied the execution of above documents on the date given thereon nor challenged that same were not attested by the executants, therefore, these documents by virtue of Article 100 of Qanun- e-Shahadat Order, 1984, would be admissible in evidence, without formal proof and would also be presumed to be genuine in absence of. Any evidence to the contrary and that mere denial of the correctness of the contents of above deeds through an oral assertion, would not be sufficient to reject the same as evidence of family settlement. The learned counsel added that the admissions of Dhuman Khan and Muzaffar Khan that Allah Dad was in possession of Haveli since the life time of their parents and they did not claim share in the Haveli at any stage before filing the suit, and further the site plan for additional construction was approved by the Municipal Committee in the name of son of Allah Dad, who was also being shown owner of the Haveli in the record of Excise and Taxation Department, would be a strong circumstance for raising a statutory presumption in favor of attestation and genuineness of the above documents. The learned counsel for the respondents contended that since the execution and genuineness of the documents in question was denied by the respondents, therefore, appellants were under heavy burden to prove the correctness of these deeds through independent evidence but neither could they satisfactorily neither discharge this burden nor establish their claim.
7. Learned counsel for the appellants lastly contended that learned Judge in the High Court by reappraising the evidence reversed the finding of fact in civil revision in utter disregard of the principles governing exercise of revisional jurisdiction under section 115, C.P.C. The learned counsel submitted that this power is exercised only in the cases of illegal assumption of jurisdiction, illegal exercise or non-exercise of jurisdiction, misreading or non-reading of evidence and cannot be invoked in a case of wrong conclusion on a question of law or facts which do not affect the jurisdiction of the Court. The learned counsel argued that the High Court in its revisional jurisdiction cannot disturb the finding of fact based on evidence, even if erroneous.
' The learned counsel for the respondents, on the other hand, has submitted that the learned Judge in the High Court having come to the conclusion that the finding of trial Court on a question of fact was wrongly reversed by the Appellate Court on the basis of inadmissible evidence has rightly interfered in the matter in exercise of its revisional jurisdiction.
8. The question relating to the admissibility and genuineness of a document is a mixed question of law and facts. The case of the appellants was that the property belonging to the parents of parties, was distributed amongst them under the family settlement mentioned in the above-referred two documents and that Allah Dad was also entitled to get share in the agricultural land owned by Mst.
Malkan but by virtue of this settlement, the agricultural land was given to Dhuman Khan and Muzaffar Khan, respondents and in lieu thereof, the Haveli, was allowed to be retained by him whereas respondents denied the family arrangement and claimed their share in the Haveli. The appellants in proof of their claim in addition to the deeds of family settlement (Exhs.D.1 and D.3), also placed reliance on the affidavit (Exh.D.2) of Muzaffar Khan and Mutation (Exh.D.4), but the respondents except relying on their own statement, have not produced any other evidence in rebuttal. Therefore, in view of the nature of controversy between the parties, the basic question requiring determination would be with regard. To the genuineness of the above documents and the nature of possession of appellants, either as co-sharers in the joint property or exclusive owner under the family settlement and for better appreciation of this question, it is essential to examine the evidence in the light of provisions of Article 17 and Article 100 of Qanun-e-Shahadat Order, 1984, which provide as under:-- "17. Competence and number of witnesses.--- (1) The competence of a person to testify and the number of witnesses required in any case shall be determined in accordance with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah.
(2) Unless otherwise provided in any law relating to the Enforcement of Hudood or any other special law:--
(a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; and
(b) in all other matters, the Court may accept, or act on, the testimony of one man or one woman, or such other evidence as the circumstances of the case may warrant."
"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."
9. The rule of evidence incorporated in Article 17 (ibid) is that in the cases which fall within the ambit of sub-Article (2) of said Article, the Court may accept or act on the testimony of the number of witnesses mentioned therein or such other evidence as the circumstances of the case may warrant. In the light of this rule, in addition to or in absence of direct evidence, the Court may also consider the direct and circumstantial evidence brought on record in proof of a fact.
10. The principle underlined in Article 100 is that if a document 30 years old or more is produced from proper custody and on its face it is free from suspicion, the Court may presume that it has been signed or written by the person whose signatures appear on it and that it was duly executed and attested by the executant. The age of document, its unsuspicious character, its custody and other circumstances are foundation to raise a presumption of its execution and if a document is proved more than thirty years old, it is admissible in evidence without formal proof but if the genuineness of such a document is disputed, it is D the duty of the Court to determine the question of its genuineness and true character. Therefore, the rule is that Court may raise a presumption of existence and execution of a document which is more than 30 years old but it is not necessary that by raising such presumption Court must presume the contents of the document to be true and in such a case, Court may call the parties to produce the evidence. However, the presumption of genuineness of a document is rebuttable and the question whether such a presumption can be raised or not is a question of law which can be raised at any stage.
11. The examination of the statement of respondents namely, Dhuman Khan and Muzaffar Khan, would show that they have not as such denied the execution and attestation of Exhs.D.1 and D.3, by the executants on the date mentioned thereon. Rather their assertion was that these documents did not bear their thumb impression and except the bare denial they have not brought any other evidence, direct or circumstantial, on record in support of their assertion. The documents in questions were undeniably executed on a stamp paper bearing seal of India and the stamp paper bearing such seal remained in use only for a limited period after partition and thereafter, the same would not be available and consequently, a statutory presumption of the execution of these documents on the date mentioned thereon, could safely be raised and without formal proof, would be admissible in evidence under. Article 100 of Qanun-e-Shahadat Order, 1984. The rule of evidence is that a document which is tendered in evidence if is admitted in evidence, it cannot be subsequently excluded from consideration unless it is shown that it cannot be read in evidence.
However, there is difference between the admissibility of a document and its evidentiary value and if the objection to the admissibility and mode of proof of a document is not taken at the time of its admission, before the proper Court, it cannot be subsequently, allowed to be, taken before the next forum and since the admission of a document in evidence is not challengeable in revisional jurisdiction, therefore, the question regarding the admissibility of the above document could not be raised and reopened before the High Court in the civil revision even if the scribe and the marginal witnesses of these documents at the time of tendering the same in evidence, were not available.
The High Court, in its revisional jurisdiction, without going into the question of admissibility or otherwise of a document, may examine and interpret the contents of such document to determine its true character and ascertain the intention of executant. The rule of interpretation of documents is that the character of a document is not necessarily to be recognized from the apparent name given to it rather the same is determined from the terms contained therein, therefore, the description of a document as an agreement may be in fact a gift-deed or a family settlement and similarly, the intention of executant and the construction of a document is gathered from its language and the natural meanings of the words used in the written instrument. In the light of the above rule, the combined reading of Exhs.D.1 and D.3 would suggest that Ghulam Muhammad and Mst. Malkan were joint owners of the suit Haveli and they distributed the property owned by them amongst their successors-in-interest through family settlement to avoid the future dispute. In the normal circumstances, on the death of a Muslim male or female, the property owned by him/her if any, devolves upon his/her successors-in-interest in accordance with the law of Shariah but in the present case, we find that the agricultural land owned by Mst. Malkan was given to the respondents as mentioned in Exh.D.1 in lieu of share in the Haveli and stipulation therein would show that the agricultural land was linked with the suit Haveli for the purpose of family settlement, therefore, it was necessary for the Courts to ascertain the true character of the above documents for the purpose of effective decision of the dispute between the parties. It was also necessary to ascertain that what other properties were owned by the parents of the parties and in what manner, the same were distributed amongst the parties. We having analyzed the matter in detail, have found that the question relating to the existence of family settlement as incorporated in the above documents, was neither properly attended nor determined and instead the issue was confused by treating the documents of family settlement as gift.
' It is to be seen that the object behind the family settlement is always to settle existing or future dispute of the property amongst the members of family and to create goodwill and avoid future disputes between the successors-in-interest. The bona fide transaction of family settlement would be binding on the parties and if the settlement by conduct of parties, is capable of receiving constant recognition for a long time, the right to assert under the agreement must not be subsequently allowed to be impeached and Courts may not reject the family settlement on technical grounds.
12. The examination of the matter in detail would show that High Court without considering the fundamental issues involved in the case, dilated upon the question of facts by raising presumption beyond the scope of revisional jurisdiction under section 115, C.P.C. This is well-accepted rule that revisional jurisdiction is meant primarily for correction of errors made by the subordinate Courts in the exercise of jurisdiction and the proceedings conducted by the said Courts but the finding of fact is not open to challenge and correction in revision unless it is shown to be not based on any evidence or suffering from non-reading or misreading of evidence. This is settled law that erroneous conclusion of law and fact can be corrected in appeal and a revision is not competent in such matters but an erroneous decision on a point of law or fact in consequence to which Court assumes or declines to assume jurisdiction is revisable, therefore, the finding of fact even if erroneous, cannot be disturbed in the revisional jurisdiction unless it is shown that the same was the result of misreading or non-reading of evidence. The Court in exercise of the revisional power is not supposed to reappraise the evidence and upset the finding of fact.
13. The question relating to the admissibility of the documents under discussion would no longer be an issue to be reopened in the civil revision before the High Court rather the real dispute requiring determination would be regarding the existence of family settlement and the mode of distribution of the property owned by Ghulam Muhammad and Mst. Malkan. The parties have not brought any evidence to show that suit Haveli was owned only by Ghulam Muhammad or it was joint property of both Ghulam Muhammad and Mst. Malkan and the transaction by virtue of which agricultural land was given to the respondents, was independent. In the facts of the present case, and without determination of above mixed questions of law and facts, no effective decision of the dispute between the parties could be made and we find that these questions were not attended by the lower Courts and the learned Judge in the High Court also, without taking notice of the above defects and errors in the case, dismissed the suit in the civil revision on assumption that suit Haveli was exclusive property of Ghulam Muhammad and Mst. Malkan had no share in the Haveli and that land owned by Mst. Malkan, was not part of the dispute between the parties.
14. In the light of above discussion, we find that the following basic question requiring determination for effective decision of the dispute, were not at all attended at any stage of the proceedings:--
(a) Whether the suit Haveli was joint property of Ghulam Muhammad and Mst. Malkan or was exclusively owned by Ghulam Muhammad?
(b) Whether they owned more than one property, if so, what were those properties and whether the suit only to the extent of Haveli in question was competent, without seeking partition of other properties?
(c) If the documents Exhs.D.1 and D.3 were not genuine and there was no family settlement, then for what other reason and consideration the agricultural land owned by Mst. Malkan was exclusively given to the contesting respondents and Allah Dad was deprived of his share in the land?
' We, being of the considered view that there could be no proper adjudication of the matter without decision of the above questions, deem it proper to remand the case to the trial Court.
15. For the foregoing reasons, this appeal is allowed. The judgment of the High Court is set aside and case is remanded to the trial Court for decision of the suit afresh on all issues, with permission to the parties to produce further evidence in support of their respective claims. This is an old matter and trial Court should make efforts to dispose of the suit within a period of six months. The parties are left to bear their own costs.