' MUHAMMAD MUZAMMAL KHAN, J.---This civil revision assails judgment and decree dated 28-10- 1987 passed by the learned Additional District Judge, Kasur, whereby appeal of respondent No,1 was accepted and her suit was decreed, reversing judgment and decree dated 4-3-1987 passed by the trial Court.
2. Precisely, relevant facts are that respondent No,1 filed a suit for declaration with permanent injunction as consequential relief averring that petitioner along with respondents Nos.2 and 3, who are her real brother, mother and sister respectively, owned some land jointly, which was being cultivated by the petitioner on behalf of other co-sharers. Respondent No,1 pleaded that petitioner taking undue advantage of his possession over the land, connived with respondents Nos.2 and 3 and produced some other woman in her place at the time of entry of Rapat No,321 dated 22-11-1974 showing sale of land of her share in favour of the petitioner. He further challenged entries of the Rapat N6.321, asserting that she neither entered into any transaction of sale with the petitioner nor received the alleged amount of Rs,5,000 and thus the entries therein are fake. Respondent No,1 claimed declaration of her title to the land forming part of the joint Khata, seeking adjudgment of the asserted sale by the petitioner and also prayed by way of permanent injunction, relief regarding restraining the petitioner from claiming ownership rights over the land in question and from further transferring it in any manner whatsoever.
3. Petitioner being a defendant in the suit, pleaded lawful sale by respondent No,1, denied assertions in the plaint and contested the suit through his written statement, wherein certain preliminary objections regarding estoppel and incorrect valuation of the suit for the purposes of court-fee and jurisdiction were raised. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned trial Judge, who was seized of the matter, after doing the needful, on the basis of his appraisal of evidence, vide his judgment and decree dated 4- 3-1987 dismissed the suit of respondent No,l.
4. Respondent No,1 aggrieved of the decision of the trial Court dated 4-3-1987 filed an appeal before the learned Additional District Judge, where she succeeded as her appeal was accepted, suit filed by her was decreed and judgment and decree of the trial Court was reversed through a judgment and decree dated 28-10-1987. Thereafter the petitioner filed the instant revision petition, which was admitted to regular hearing and after completion of service has now been laid for final determination. Respondents Nos.2 and 3, who before the Courts below sided with the petitioner, in spite of service did not appear. They were informed through a postal card regarding fixation of case but none has appeared on their befalf to defend this petition, hence they are proceeded against ex parte.
5. Learned counsel for the petitioner submits that thumb-impression of respondent appearing or Rapat No,321 dated 22-11-1974 entered by the Patwari concerned were ordered to be compared with the admitted thumb-impressions, but report prepared by the Finger Print Expert was misplaced. According to his submissions, a copy of the report was produced without obtaining any permission for leading secondary evidence, thus the same could not have been made basis of the judgment. He further contended that the learned trial Judge in his judgment observed that a copy of the report of Finger Print Expert is not beyond doubt and thus it deserved no reliance but the appellate Court fell in error in relying on this unproved copy of the report. Learned counsel for the petitioner further elaborated his arguments by saying that the petitioner had moved an application before the trial Court with the prayer that after loss of original report of the Finger Print Expert, fresh thumb-impressions of respondent No,1 be sent for comparison, but this application was dismissed with an observation that if ultimately any necessity arises for comparison that will be resorted to. In view of these observations it was contended that the appellate Court should not have relied on a copy of the report of the Finger Print Expert and instead should have resorted to fresh comparison of thumb-impression. It is also an argument of the petitioner that the appellate Court while reversing well-reasoned judgment of the trial Court has fell in error of law, in not meeting the point evolved therein and incorrectly passed a superficial judgment.
6. Learned counsel appearing on behalf of respondent No,1 refuted the arguments of the learned counsel for the petitioner, supported the appellate judgment and urged that after loss of original report of Finger Print Expert, P.W.3 Muhammad Yaqoob Retired DSP, who had prepared the report was produced to prove the report Exh.P.3, thus it could not be said that a copy of the original report was not entertainable in evidence. It has also been argued that petitioner did not object to the examination of P.W.3 or to entertainment of copy of the report as Exh.P.3 before the trial Court, hence he was estopped to raise such an objection before the revisional Court. He further submitted that the petitioner who stands in a fiduciary relationship with respondent No,
1. Being her real brother was required to prove not only the contents of Rapat No,321 dated 22-11-1974, but was also needed to prove the transaction of sale between the parties, but there is no evidence on the file showing such transaction between the parties.
7. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Undeniably, thumb-impressions of respondent No,1 appearing on copy of the daily diary of the Patwari (Rapat No,321) was sent to Finger Print Bureau, Lahore for comparison but report therefrom was not received by the trial Court and ultimately it revealed that the report has been misplaced. After loss of a document, the proper course was to seek permission for leading secondary evidence to prove the report of the Finger Print Bureau but instead a copy of it was produced as Exh.P.3., which was proved by P.W.3 Muhammad Yaqoob Retired DSP. The course adopted was not permissible under law because on the one hand, under Articles 72 and 73 of Qanun-e-Shahadat, 1984 contents of a document, are to be proved by producing original document and in absence of it, the document was to be proved through secondary evidence under its Article 76, whereas on the other hand, objections to this report were not invited from the parties and mere examination of the scribe in absence of original report was of no worth especially when the trial Court had observed in its judgment that the copy of the report' is not beyond doubt. Petitioner had moved and application for fresh comparison of thumb- impressions of respondent No,1, which though was dismissed yet it was observed by the trial Court that in case of necessity this A exercise will be undertaken at the appropriate time. The appellate Court, it was of the view that comparison of thumb-impressions was unavoidable it should have resorted to fresh comparison instead of relying on a doubtful copy of the report, original of which was not available. Controversy between the parties was with regard to sale of land jointly held by all the respondents in favour of the petitioner. Respondents Nos.2 and 3 who are real mother and sister of respondent No,1 have not challenged sale by them rather have supported the case of the petitioner. D.W.1 Rehmat Ali is a school teacher who along with the respondents signed daily diary No,321 of Patwari (Exh.P.1) materially supported the case of the petitioner. Likewise, Mst. Sharifan Bibi mother of respondent No,1 appeared in the witness-box as D.W.2 to negate stand taken by respondent No,
1. She categorically stated that her both the daughters (respondents Nos.1 and 3) sold their share of land in favour of the petitioner and thumb-marked Exh.P.1. She detailed reasons for filing of suit by respondent No,1, deposing that the suit was filed because there was some dispute between brothers of husband of . Respondent No,1 and the petitioner. D.W.3 is petitioner himself who corroborated his case in the plaint and statement of other D.Ws. This evidence clearly demonstrates that a doubtful copy of the report of Finger Print Expert was not worth reliance but the same was heavily relied by the appellate Court while passing the impugned judgment. The appellate Court has also wrongly graded the findings of the trial Court, whereunder it was observed that respondent No,1 did not resort to criminal proceedings on account of fictitious preparation of Exh.P.1, as uncalled for. I find that Exh.P.1 is dated 22-11-1974, whereas the suit in hand was filed on 2-1-1978 after lapse of almost four years of sale. The trial Court has correctly remarked that respondent No,1 slept over her rights for this long period and had there been any reality in the story narrated in the plaint, she must have proceeded against the petitioner for some criminal action. Be as it may, the entire dispute between the parties hinges over comparison of thumb- impressions of respondent No,1 over Exh.P.1, thus, I refrain from commenting any more on the merits of the case.
8. For what has been discussed above, I am of the considered view that Rapat Exh.P.3 was neither a valid document for reliance nor the same was produced through lawful process of obtaining permission to lead secondary evidence and at the same time, it was doubted by the trial Court and petitioner having moved for fresh comparison, the appellate Court should have resorted to this exercise, but it was erroneously Lot adverted, negatively reflecting on the impugned judgment and decree, which for these reasons suffers from material illegalities and irregularities envisaged by section 115, C.P.C. I accordingly, accept this revision petition, set aside the judgment and decree dated 28-10-1987 passed by the learned Additional District Judge, Kasur and remit back the case to the appellate Court to have fresh thumb-impressions of respondent No,1 and decide the case after confirming the report so received, in accordance with law, again. Case shall be transmitted to the learned District Judge, Kasur, who may decide it himself or entrust to any learned Additional District Judge for decision, as noted above. Parties are directed to appear before the learned District Judge, Kasur on 26-4-2004. There will be no order as to costs.