' JAWWAD S. KHWAJA, J.---The petitioners-plaintiffs impugn the appellate judgment and decree, dated 28-4-1999 whereby the decree of the learned trial Court, dated 25-6-1992 was set aside and, as a result, the declaratory suit filed by the petitioners seeking possession by way of consequential relief was dismissed.
2. The facts of the case have been elaborately set out in thejudgment of the learned trial Court and need not, therefore, be reproduced in extenso. The question on which the decision of this case turns is the authenticity of a registered gift deed, dated 3-4-1986 allegedly executed by Rehmat Ali in favour of the respondents. According to the petitioners-plaintiffs, Rehmat Ali had died on 29-3- 1986 i,e, five days prior to the gift deed. To support this contention, the petitioners produced on record Exh.P-1 which is an extract from the register of deaths. This document shows the date of death of Rehmat Ali as 29-3-1986. Khushi Muhammad Chowkidar, who made the report, also appeared as P.W.2 to confirm the same. The learned trial Court relied on Exh.P-1 while concluding that the gift deed was fabricated by the respondents after the death of Rehmat Ali. The learned appellate Court has, however, proceeded on the basis of an order purportedly passed by the District Magistrate, Gujranwala, whereby the date of death recorded in the register of deaths, was ordered to be corrected to read as 24-4-1986 instead of 29-3-1986. The order of the District Magistrate, however, was not produced in evidence by the respondents. I have also gone through the original record which was requisitioned. From the same, it is clear that the order purportedly passed by the District Magistrate has not been exhibited in evidence. There is, however, available in the trial Court record an unexhibited document signed on behalf of the District Magistrate, Gujranwala, addressed to the Chairman, Union Council Olakh Bhaike. This document, firstly, cannot be considered in evidence because it has not been exhibited on record. More importantly, however, it is not an order passed by the District Magistrate. It merely refers to an application made by respondent No.1 seeking correction of the death entry of Rehmat deceased. Learned counsel for the petitioners argued that the respondent No.1 had moved the said application keeping the petitioners in the dark. The petitioners were never associated in any inquiry undertaken by the District Magistrate himself or by the Tehsildar on his directions. In these circumstances, this unexhibited document was not sufficient for the purpose of dislodging the presumption attaching to the entries in the register of deaths as evidenced by Exh.P-1.
3. Another important aspect of the case is that Haq Nawaz, who is one of the marginal witnesses to the gift deed, appeared as P.W.6. He did not support the defence set up by the respondents- defendants. Furthermore, the original gift deed, which should have been in the possession of the respondents, was never produced in evidence. The certified copy thereof cannot be treated as primary evidence because the respondents did not complete the requisite formalities justifying the admission of a copy of the original in evidence.
4. Learned counsel for the respondents was not in a position to controvert the above suhmissions.
He, however, argued that Rabia Bibi,who was the sister of Rehmat deceased, appeared as D.W.2 and deposed that Rehmat Ali had gifted the suit property to the respondents. I have gone through the testimony of D.W.2 and find the same to be unreliable. She, by her own admission, was 80 years old and was residing with respondent No.1 at the time her testimony was recorded. She admitted her animus against the petitioners. Furthermore, she belied the stance of the respondents. By asserting that she had affixed her thumb-impression on the gift deed. She also deposed that there was no one else present when the same was executed by Rehmat. This testimony is contrary to the contents of the gift deed which show Haq Nawaz (P.W.6) and one Sanaullah (D.W.3) as marginal witnesses to the gift deed.
5. In the foregoing circumstances, I am quite clear that the petitioners-plaintiffs were able to prove that Rehmat died prior to the execution of the gift deed while the respondents-defendants were unable to establish the defence set up by them.
6. Learned counsel for the respondents then drew the attention of the Court to Exh.D-1 which is a copy of the Nikahname of Haji Ilyas and Nusrat Parveen. The Nikah recorded in Exh.D-1 was performed on 9-4-1986 purportedly by Rehmat deceased. From this document, learned counsel for the respondents attempted to show that Rehmat was alive on 9-4-1986. The document, however, cannot be relied upon, firstly, because it is not one of the four original counterparts. Furthermore, it does not bear the signature of the witnesses or even of Rehmat deceased. It is also to be noted that none of the witnesses of the Nikahnama were produced by the respondents to prove that Rehmat was the Nikha Khawan.
7. In the above circumstances, I find that the impugned appellatedecree is a result of misreading of evidence. The same is, therefore, set aside. As a consequence, the decree of the learned trial Court, dated 25-6-1992 stands restored.