TALLAT QAYYUM QURESHI, J.--- Petitioner/plaintiff filed suit in the Court of learned Civil Judge, Nowshera seeking declaration to the effect that he was owner in possession of the suit property on the basis of deeds dated 26.3.1952 and 14.8.1952 and that respondents have nothing to do with the said property. Perpetual injunction restraining the respondents/defendants to interfering into the property was also sought. The said suit was resisted by the respondents/defendants by filing written exercise. The learned Trial Court after framing issues recording pro and contra evidence of the parties dismissed the suit vide judgment and decree dated 14.2.2006.
2. Feeling aggrieved with the said judgment and decree , the petitioner filed appeal in the Court of learned District Judge, Nowshera but his appeal was also dismissed vide judgment and decree dated 14.5.2006. Being not contented with the judgment and decrees of the Courts below, the petitioner has filed revision petition in hand.
3. The learned counsel for the petitioner argued that the learned Trial Court had failed to resolve issues Nos. 2 and 3 properly. The Courts below failed to appreciate that the claim of the petitioner/plaintiff was based on documents dated 26.3 1952 and 14.8.1952 and documents being more than 30 'years old a presumption of truth was attached to them. Moreover the petitioner/plaintiff was in possession of the suit property which fact had been admitted by D.W.1 by Sirdast Khan in his statement.
4.. The Courts below failed to appreciate evidence available on record, hence the impugned judgment and decrees are based on misreading and non-reading of evidence
5. It was also argued that the Courts below have failed to exercise jurisdiction vested in them.
6. I have heard the learned counsel for the petitioner at length and perused the available record.7.
The claim of the petitioner is based on two deeds dated 26.3.1952 and 14.8.1952. It was the bounden duty of the petitioner/plaintiff to have proved those documents by producing marginal witnesses and the scribe but none of them was produced before the learned Trial Court to prove those documents. The learned counsel while arguing this petition stated at the bar that the marginal witnesses of both deeds were dead, therefore, they could not be produced but the record of the case belies the stand of the learned counsel as neither any application mentioning that the marginal witnesses and scribe of the deeds were dead, was filed nor any permission was sought from the Trial Court for producing the secondary evidence. However, at the appellate stage, the petitioner/plaintiff submitted an application for withdrawal of the suit with the permission to file fresh one. In the said application too it was never C.L.R. mentioned that the marginal witnesses and the scribe of the deeds were dead rather a; plea was taken that those witnesses could not be produced, therefore, the petitioner/plaintiff be allowed to withdraw the suit enabling him to remove the lacuna and produce those witnesses too. That application alongwith the appeal was dismissed.
8. It is by now settled law that it was incumbent upon the petitioner/plaintiff to have proved both the deeds dated 26.3.1952 and 14.8.1952 and it was he who was to examine attesting witnesses and scribe of the same if all of them were dead, the said fact should have been pleaded before the learned Trial Court and it should have been. Established that the marginal witnesses and scribe were not available due to their death, steps and should have been taken to adduce secondary evidence with the leave, of the Court. Simply because no objection was raised to the production of documents would not render the document as proved. This was held in Anwar Ahmad Vs. Mst. Nafis Bano through L. Rs. (2005 SCM R 152).
9. It is also settled principle of law that a party withholding best evidence, the presumption would be that if such witnesses were produced their deposition must have been against the one who withheld them. Reliance in this regard is placed on Muhammad Mal Khan Vs. Allah Yat Khan- (2002 SCM R 235) and Mst. Gohar Sultan Vs. Gul Waris Khan (PLD 2003 Pesh. 189).
10. Since the petitioner/plaintiff has failed to prove the documents relied upon by him, therefore, the Courts below have rightly dismissed his suit as well as appeal.
11. I have not been able to find out any misreading/non-reading of evidence or any illegality or irregularity or any jurisdictional error or defect warranting interference. Resultantly the revision petition in hand is dismissed in limine.
Civil Revision .