1. ' ANWARUL HAQ, C. J.-This appeal, by the leave of the Court, is directed aginst the judgment and decree, dated the 25th of June, 1973, of. The Peshawar I Ugh Court, whereby the second appeal filed by the respondent Muhammad Amir was accepted and it was held that he was entitled to 1/3rd share in the disputed property as a reversioner of Mst. Masitan.
2. ' The facts relevant for the determination of the question arising in this appeal are that the house in dispute belonged to one Qadir Din, who transferred it to his wife Mst. Durrani, in lieu of of her dower; and on her death in 1943 the house devolved on her daughter Mst. Masitan and her brother Zareef in equal shares. On the 24th of June, Mst. Masitan made a will in favour of the second defendant Fazal Mahmood with the result that 1/3rd of her 1/2 share in the property devolved upon him. This matter is now no longer in dispute before us.
3. ' Mst. Masitan died issueless on 31-8-1959, her husband having died earlier, with the result that her share also devolved upon her maternal-uncle Zareef. This gentleman died on 9-12-1959, and the house devolved upon the present petitioners as his legal heirs, They filed a suit on 15-12-1961 for the possession of the house, contending that the defendants Fazal Mahmood and Muhammad Amir were in its illegal possession, and had repudiated their title.
4. ' The suit was decreed by the learned trial Judge on the 12th of December, 1966, to the extent of 5/6th share in the house, holding that the will made by Mst. Masitan in favour of Fazal Mahmood was valid only to the extent of 1/6th share of the property.
5. ' Three appeals were filed against this judgment, one by the plaintiffs, (i. e. The present appellants), claiming the whole of the house ; the second by defendant Fazal Mahmood, who also claimed the whole of the house ; and the third one by defendant Muhammad Amir making a similar claim on the basis of his being a collateral of Mst. Masitan. All the three appeals were dismissed by the learned Additional District Judge, Peshawar, by his judgment dated the 30th of January, 1971. In so far as defendant Muhammad Amir was concerned, the trial Court as well as the lower appellate Court held that he was not connected to Qadir Din, the father of Mst. Masitan.
6. ' This judgment was assailed in the High Court by all the parties concerned, by way of appeals, which was disposed of by a learned judge by a single order. He dismissed the appeal filed by the present appellants Khuda Bakhsh etc., as well as well as that of defendant Fazal Mahmood, but allowed the appeal of Muhammad Amir on the finding that he was the grandson of Sadao Din, an uncle of Mst. Masitan's father Qadir Din and, therefore, entitled to inherit the property of Mst.
7. Masitan to the exclusion of Zareef, the predecessor-in-interest of the present appellants.
8. ' Leave to appeal was granted to consider the contention whether the High Court was justified in setting aside the concurrent finding of the two Courts below to the effect that it was not proved on the record that defendant Muhammad Antic was a collateral of Mst. Masitan through Sadar Din, as it was entirely a question of fact. It is contended be Mr. S. M. Zafar, learned counsel for the appellants, that in second appeal the High Court was not competent to interfere with a finding of fact unless it could be shown that there was a misreading of evidence, or material evidence had been ignored, but none of these conditions were present in the instant case. He further submits that even otherwise the three lease deeds on which the learned Judge in the High Court had chosen place reliance were not genuine documents, and the fact that they were more than 30 years old did not automatically lead to the inference that their contents were correct, as the presumption arising under section 90 of the Evidence Act did not extend to the contents of the documents but only to their execution.
9. ' We find that the learned Judge in the High Court was fully conscious of the limitations on his power and jurisdiction to interfere with a concurrent finding of fact, and it was for this reason that he first set out to examine whether the evidence had been misread by both the lower Courts. After having catalogued the evidence produced by the parties on the question of the relationship of Muhammad Amir with Sadar Din, the learned Judge proceeded to observe that the trial Court had omitted to consider the effect of the entries appearing in the death certificate of Muhammad Amir's father Ghazi-ud-Din which showed him as the son of Sadar Din ; and that the learned Additional District Judge, acting in first appeal, had omitted to consider the effect of the three lease deeds relied upon by the defendant, although he held that to be genuine. In this . Regard the lower appellate Court had reversed the finding of the trial Court as to the genuineness of these documents, but having accepted them as genuine, it omitted to examine their effect on the question in issue. Having thus laid the foundation for interference in second appeal, namely, misreading and ignoring of material evidence, the learned Judge then proceeded to examine the three lease deeds in question. He upheld the finding of the learned Additional District Judge that these documents were genuine, that they showed that defendant Muhammad Amir was Katar Nelab by caste ; that they also showed that Muhammad Amir was the son of Ghazi-ud-Din and Ghazi-ud-Din was the son of Sadar Din. He further took note of the entries appearing in the death certificate of Ghari-ud-Din, the father of Muhammad Amir defendant, which showed that Ghazi- ud-Din was the son of Sadar Din. On the basis of this evidence, he came to the conclusion that defendant Muhammad Amir had succeeded in proving that he was a collateral reversioner of Mst.
10. Masitan and as such he would exclude Muhammad Zareef, the predecessor-in-interest of the present appellants, who was a distant kindred.
11. ' Mr. S. M. Zafar contended that the three lease deeds, Exh. D. W. 16/1, dated the 9th of October, 1908, Exh. D. W. 16/2, dated the 25th of November, 1932, and Exh. D. W. 16/3, dated. The 17th of November, 1934, had not come from proper custody, as they were produced at the trial by one. Fazal Illahi appearing as D. W. 16, who was a young man of 36 years of age and had no business to be in possession of these documents. He further contended, as already noticed, that, in any case, the presumption arising under section 90 of the Evidence Act as to the execution of these documents did not extend to the proving of the correctness of their contents. In this regard, he placed reliance on Lajpat Raj and others v. Faiz Ahmad aid others (1), Rhetra Mohan Das and others v. Bhairab Chandra Das and
(1) AIR 1927 Lab. 448 ' others (1), Abdul Ghani v. Faqir Muhammad and others (2) and Chandulal Asharam Travadi and others v. Bai Koshi (3) besides the commentary appearing on page 841 of M. Mimic's Law of Evidence.
12. ' We regret we do not see any substance in these submissions, for the reason that not a single question was put in cross-examination to defence witness Fazal Illahi regarding the manner in which he came to be in possession of these lease deeds. This was understandable, as in his examination-in-chief this man had stated that defendant Muhammad Amir had been cultivating their lands, and the three lease deeds were executed by him at different times in token of his tenancy. Au examination of these lease deeds shows that they are, indeed, very old, and were executed in favour of Fazal Illahi's father Haji Abdul Hameed. It is, therefore, clear to us that they were produced from proper custody, and, accordingly, they fully attracted the presumption arising under section 90 of the Evidence Act as to their execution. Once the execution of the document is proved by raising the necessary presumption under section 90 of the Evidence Act, the document becomes primary evidence of its contents. It is correct that there is no presumption under section of the Evidence Act as to the correctness of the contents of such of A documents, even though the contents stand proved on the record, but a observed by Muhammad Monir at page 841 of his commentary on the La of Evidence, a presumption as to correctness may arise under section 114 of the Evidence Act in such a case, besides there being external evidence in support of the facts recited in the document.
13. ' In this case the lease deeds were executed by defendant Muhammad Amir at a time when there was no dispute at all as to his parentage, nor as to the parentage of his father Ghazi-ud-Din, and, therefore, in terms of illustration (e) of section 114 of the Evidence Act the Court could raise a presumption that the description of the name of the fathers of Muhammad Amir and Ghazi-ud-Din was correctly recorded in these documents. Further, apart from other oral evidence, there was the evidence of Fazal Illahi himself, who had produced these lease deeds to the effect that the defendant belonged to the same caste as himself, namely, Katar Bilab, and there was also the death certificate of Muhammad Amir's father Ghazi-ud-Din in which the name of Ghazi-ud-Din's father was mentioned as Sadar Din. On the basis of this evidence the High Court was justified in holding that Muhammad Amir had been shown to be the grandson of Sadar Din, who was an uncle of Qadir Din, father of Mst. Masitan.
14. ' It is also significant that when appearing as his own witness the appellant Khuda Bakhsh simply made a negative statement that Muhammad Amir was not connected with Sadar Din, but did not choose to give any information as to the pedigree-table of Muhammad Amir, who had been proved to be a member of the same caste as the plaintiffs appellants themselves.
15. For the foregoing reasons, we are satisfied that the learned Judge in the High Court was justified in interfering with a concurrent finding of face regarding the ancestry of Muhammad Amir as that finding had been recorded on a misreading and ignoring of material evidence.
16. ' As a result, the present appeal fails and is hereby dismissed with costs.
(1) AIR 1927 Cal. 229 (2) AIR 1929 Lah. 78
(3) AIR 1939 Born. 59