' JAWWAD S. KHAWAJA, J.---The petitioners-defendants impugn the order, dated 20-12-2001 whereby the learned appellate Court set aside the decree of the learned trial Court, dated 12-11- 1995 and remanded the case to the learned trial Court for decision afresh.
2. The facts of the case have been elaborately set out in the judgment of the learned trial Court and need not, therefore, be reproduced in extenso.
3. The reason which has prevailed with the learned appellate Court for remanding the case is that the trial Court should have taken "judicial notice" of certain fact referred to in the concluding paragraph of the appellate judgment. Based on the pleadings of the parties, the learned trial Court has framed as many as eleven issues. These issues were fully discussed and adjudicated upon by the learned trial Court.
4. The learned appellate Court clearly recorded that the respondents-plaintiffs were duty bound to lead evidence of disproving the execution of four registered documents by their predecessor-in- interest, namely, Muhammad Maqsood, but then proceeded to hold that even though the plaintiffs had failed to do so the Court should have, on its own initiative, called for evidence for ascertaining the authencity of the signatures of Muhammad Maqsood on the disputed documents. Here it may be noted that the documents in question were all registered instruments; being three sale-deeds executed by Muhammad Maqsood in April and May, 1980, while the fourth one was a registered exchange deed executed on 30-9-1979.
5. Learned counsel for the respondents-plaintiffs did not deny that a presumption of correctness attached to the authenticity of these documents. Furthermore, the petitioners-defendants also produced the marginal witnesses and persons identifying Muhammad Maqsood for proving the documents in question. In the circumstances, it was not for the appellate Court to fill in this deficiency and to put the appellants tothe agony and expense of litigation, which in this case has been pending for almost sixteen years.
6. There are other aspects of the case also which militate strongly against the veracity of the case set up by the respondents-plaintiffs. The four registered documents mentioned above were executed for conveyance of agricultural land to the petitioners. Since 1979-80 the petitioners are in cultivating possession of the suit-land. Muhammad Maqsood died in 1982 while the respondents- plaintiffs filed their declaratory suit in 1991. There is no explanation as to why for a period of nine years after the death of Muhammad Maqsood, the respondents-plaintiffs remained silent and did not assert their alleged right in the suit A property. Learned counsel for the respondents argued that they were minors until 9-9-1981 when the suit was filed.This contention, however, is not true.
Respondents Nos. 5 to 11 who are respectively the sons and daughters of Muhammad Maqsood admittedly had attained the age of majority. Even the alleged minority of the plaintiffs (respondents Nos. 1 to 3) is belied by the birth certificates produced by the respondents themselves, which show that the respondent-plaintiff No,1 was born on 2-7-1971 and respondent- plaintiff No,2 was born on 17-8-1973. These respondents had attained the age of majority prior to the filing of the suit. Respondent No,3, namely, Farah Maqsood, was a minor on the date of filing of the suit. She was sued through her guardian ad litem. She too attained the age of majority during the pendency of the suit.
7. In order to ensure that the respondents-plaintiffs have not been prejudiced on account of any shortcoming in the judgment of the trial Court, I have gone through the record with the assistance of both learned counsel, I have come to the inescapable conclusion that the plea raised by the respondents-plaintiffs was false and that the filing of their suit constitutes an abuse of process of the Court. The most important evidence to support this conclusion is the testimony of Arif Mahmood (P.W.1) who is the elder brother of plaintiffs-respondents Nos. 1, 2 and 3. He deposed that Muhammad Maqsood had actually given the disputed land to the petitioners on lease initially in 1977 for three years whereafter the lease period had been extended by a further period of two years. He acknowledged that the petitioners had never paid any lease money or batai to the respondents after the death of Muhammad Maqsood. No explanation was given by him for the continued inaction of the respondents either for recovery of the land or the lease amount from the petitioners after the death of Muhammad Maqsood. In the light of the testimony of Arif Mahmood (P.W.1) and in view of the evidence produced by the petitioners-defendants to prove the authenticity of the four registered documents, mentioned above, there is no room for any doubt that the suit of the respondents-plaintiffs wasrightly dismissed by the learned trial Court and there was no justification for the appellate Court to remand the case.
8. In view of the foregoing discussion, the impugned remand order, dated 20-12-2001 is set aside.
As a result the decree of the learned trial Court, dated 12-11-1995 stands restored. The petitioners shall also be entitled to their costs throughout.