RAJA FAYYAZ AHMED, J.--- These two appeals are directed against the consolidated judgment passed by the learned Single Judge in Chambers of High Court of Balochistan, Bench at Sibi, whereby Regular First Appeals Nos.(S)04/2001(Q)43 and 44 of 1999 preferred by the two sets of the respondents against the judgment and decree dated 20-8-1999 decreeing the suit .Of the appellants was set aside, consequently the suit instituted by the said appellants was dismissed. As these appeals are the outcome of a consolidated judgment mentioned above, as well as; involved common questions of facts and law, therefore, both these appeals are proposed to be decided by this single judgment.
2. The appellants and the respondents Nos.1 and 2 in these, two appeals are the descendants of a common ancestor Haji Mangal Khan, who during his life contracted three marriages. Out of his first marriage only one son namely Saadullah Khan who died on 18-5-1995 was born.
' Respondents Nos.1 to 2, namely Toti Khan and Mujeeb-ur-Rehman are the sons of said Saadullah Khan. Haji Mangal Khan remained issueless from his second wife, whereas; from his third Wife two sons and two daughters, plaintiffs in the suit, namely, Jang Bahadur, Dilawar Khan, Mehr Khatoon and Bakht Khatoon were born and they are the appellants now before this Court.
3. In the suit instituted by the appellants; respondents Nos.5, 6 and 7, namely, Amanullah, Usman and Bahawal were claimed to be tenants in the premises in their respective occupation. During pendency of the suit, respondent No,8 Muhammad Hayat filed application under Order I, rule 10, C.P.C. To be impleaded as necessary party to the suit on the ground that one of the properties in question i,e, hotel was purchased by him on 16-2-1994 and ever since he is in the possession of the said property which was demolished by him in the year 1994 being in dilapidated condition and on the said site raised a new construction viz. Three shops rented out by him to the respondents Nos.5, 6 and 7/defendants. This application was contested by the appellants.
' The learned Additional District Judge, Sibi Division being the trial Court in the case allowed the application, accordingly respondent No,8 was impleaded as one of the co-defendants in the suit and an amended suit was filed.
4. The precise relevant facts of the case are that late Haji Mangal Khan i,e, the predecessor-in- interest of the appellants/ plaintiffs died in the year 1968 who at the time of his death was the owner of various properties at Sibi, described in para. No,3 of the suit. It was claimed in the suit that the property mentioned at S. No,6 comprising of shop/veranda was converted into three shops and all the properties in question even at the time of institution of the suit remained in the name of Haji Mangal Khan with the further averments that after the death of Haji Mangal Khan, Saadullah Khan deceased (father of ,respondents Nos.1 and. 2) being the elder brother had taken over the control of the properties left by Haji Mangal Khan which he rented out and are in occupation of the tenants, out of which Shop No,630(2-1)/38 and the upper storey/Chowbara No,631-37 described at S. No,2 of para. No,3 of the suit remained in occupation and possession of respondents Nos.1 and 2 (sons of Saadullah Khan), whereas; shop situated at Liaqat Bazar, Sibi mentioned at S. No,3 remained in the possession of respondents Nos.3 and 4 (Gul Muhammad and Noor Ali). Shop (Bardana) noted at S. No,5 in the above said para. No,3 situated at Chakar Road, as abovementioned converted into three shops by the respondents/defendants are in the occupation of respondents Nos.5, 6 and 7 by virtue of Will dated 28-3-1962. It was alleged that said respondents are in the illegal and unlawful possession of the properties mentioned above being, the property in dispute.
' It was further contended in the suit that for the first time in the year 1996, it came to the knowledge of the appellants that their father (Haji Mangal Khan) left a written Will dated 28-3-1962 with the recitals that the father of respondents Nos.1 and 2, Saadullah Khan deceased had already received his share in the property of late Haji Mangal Khan and after receiving his due share he had 'no concern with the property and thus the remaining properties, immovable and movables devolved upon the appellants, as such are the owners of the properties through inheritance; so, it was alleged that the appellants many a time approached to the said respondents and apprised them about the factual position with the request to hand over vacant possession of the properties in dispute to them but they deferred the same on one or the other pretext by disputing their legal rights. On these material averments suit for declaration, possession and perpetual injunction was instituted on or about 11-11-1997 by the appellants.
5. Separate written statements to the suit were filed. The respondents Nos.1 and 2 filed a joint written statement and resisted the claim of the appellants on various grounds of law and facts. On merits of the case, it was alleged that the so-called Will is a gorged and fake document which never was executed by late Haji Mangal Khan i,e, their grandfather, which also lacks necessary details in respect of the properties in question stated to have been given to their father late Saadullah Khan and in the previous litigation resting between the said respondents/defendants and the appellants nothing was said about the, attributed Will but in fact, after having failed to succeed in the eviction proceedings, the present suit was instituted on the basis of a fake document. It was further claimed in the written statement that the property mentioned at S.No,6 of para. No,3 of the plaint was sold by their father Saadullah Khan to one Muhammad Hayat, through sale-deed dated 16-2-1994 within the notice and knowledge of the appellants/ plaintiffs. It was admitted in the written statement that late Haji Mangal Khan owned various properties as mentioned in para. No,3 of the suit, who during his lifetime distributed the same between the appellants and the father of respondents Nos.1 and 2 (Saadullah Khan) and thus the appellants/plaintiffs came into possession of House No,851/3-1/100, whereas; Shop No,530(2-A)37 and its upper storey No,631(2-1)/37 and veranda No,2/1/1 including the Property bearing No,630/A- 2-1/38 was given to their predecessor-in-interest namely Saadullah Khan and since they are in occupation of the same as lawful owners and it was only after the death of their father that the appellant for the first time filed eviction application against them which was initially allowed by learned Civil Judge/Rent Controller, Sibi against which order, F.A.O. No,79 of 1995 was filed, which was accepted by the learned Single Judge of the High Court of Balochistan and the judgment of the learned Rent Controller was set aside vide judgment dated 15-4-1996 by concluding that relationship of landlord and tenant between the parties could not be established by the applicants who in the first instance to get their claim of ownership determined from the Civil Court.
' It was reiterated in the said written statement that during the lifetime of late Haji Mangal Khan, the appellants and the father of the said defendants namely Saadullah Khan received their respective shares and since then the said defendants are in the lawful possession of the above said properties as owners and that no Will was ever executed by late Haji Mangal Khan which now perhaps been got prepared by the plaintiffs through misrepresentation practising fraud.
6. In the written statement filed by respondent No,3 GuI Muhammad he only admitted to be in occupation of the shop in question as tenant and as regards to the other contents of the plaint it was stated to be not in his knowledge with the submission that he shall be bound by the decision of the Court.
' Similar written statement was filed by respondent No,4, Noor Ali.
7. Joint written statement was filed by respondents Nos.5 to 8, wherein it was claimed that shop Bardana No,2/1/1 (previously hotel) was purchased by respondent No,8 (Muhammad Hayat) from Saadullah Khan father of respondents Nos.1 and 2 against consideration of Rs,2,36,000 on 16-2-1994 and agreement to such effect was also executed and possession of the same was delivered to the vendee which was in dilapidated condition, therefore, after demolition of existing structure, three shops were constructed on the said site, which were rented out by respondent No,8 to respondents Nos.5, 6 and 7.
8. Out of pleadings of the parties 10 issues were framed besides Issue No,11 relating to the relief.
Both the parties led evidence in support of their respective claims in the light of the issue framed by the learned trial Court which after hearing the parties vide judgment and decree dated 20-8- 1999 decreed the suit in favour of the appellants/ plaintiffs in respect of the property in dispute.
9. This decree was assailed by respondents Nos.1 and 2 by filing R.F.A. No,(S)04 of 2001/(Q)43 of 1999 and the respondents Nos.5 to 8 challenged the said decree through R.F.A. No, (S)4 of 2001/(Q)44 of 1999 before the learned Single Judge, High Court of Balochistan, Bench at Sibi which by means of the impugned judgment were allowed and the suit instituted by the present appellants was dismissed.
10. The learned counsel for the appellants contended that copy of the Will on which the suit of the appellants was based had been annexed with the plaint and also the same was duly described in the list of documents relied upon by the appellants in their suit, hence; the same was brought into the notice of the respondents that the Will dated 28-3-1962 was duly executed by Haji Mangal Khan in respect of the property in dispute but the contesting respondents in their written statement took the plea that the same was a fake and forged document, therefore, onus was upon the defendants, to prove that the said document was a forged and, fake document which they failed to discharge, therefore, presumption of truthfulness of the execution of said Will and its contents being more than 30 years old document 'to have been attached to such instrument, moreover; as per Issue No,4 since the special plea with respect to the said document was taken, therefore, it was for the contesting defendants to have discharged the onus which they miserably failed to substantiate and since the said document of Will was produced from the proper custody i,e, by the appellants being the successors-in-interest of the testator, hence; presumption of the execution of the documents within the meaning of Article 100 of the Qanun-e-Shahadat Order 1984 essentially to have been attached but the learned Judge in the High Court for unsustainable reasons did not attach the required presumption to the said instrument. The learned counsel strenuously argued that the findings in such behalf recorded in the impugned judgment deserved to be reversed, however; the learned counsel in view of the record of the case admitted that the original instrument of Will was not produced at the trial and instead a photocopy of the said document was filed with the plaint, copies whereof were duly supplied to the defendants in the suit. In such behalf he further submitted that the technical lapse on the part of the counsel, who at the relevant time, appeared for the appellants/plaintiffs, would not ipso facto result into any adverse consequences of the failure to produce/exhibit the original document of the Will before the learned trial Court.
' He next argued that being the Regular First Appeals were required to be heard by a Division Bench of the High Court in terms of Rule 2(1)(i)(a) of part 'B' Chapter 3 of the Rules and Orders of the Lahore High Court, Lahore opted and made applicable to the business of the High Court of Balochistan but conversely the learned Single Bench of the High Court decided the appeals set down for hearing by the office of the Court, hence; without prejudice to above noted contentions, the impugned judgment being coram non judice is liable to be set aside and the appeals be remanded to a learned Division Bench of the said Court to be decided afresh after hearing the parties. The learned counsel while adverting to the merits of the case, argued that the appellant proved their case in the light of the issues framed by the learned trial Court and the judgment passed by the aforesaid. Court was not open to any interference in appeal.
11. On the other hand, the learned counsel for the respondents argued that the presumption of execution of the document of Will heavily relied upon by the appellants in support of their case did not arise within the, purview of Article 100 of Qanun-e-Shahadat Order, 1984 and since the appellants based their claim on the instrument of Will, therefore, notwithstanding the terms of Issue No,4, which was wrongly framed by the learned trial Court, it was obligatory for the appellants to have proved its execution and in case the presumption in respect of the said documents under Article 100 of the Qanun-e-Shahadat Order at least was to be attached; in view of the defence taken in the written statement, essentially the original document should have been produced and tendered in evidence by the attorney of the appellants/plaintiffs which was not done, hence; no reliance in the circumstances of the case on the photostat copy, if any, filed with the plaint could have been placed, thus; appropriately no such presumption was attached to the so-called Will by the learned Judge in the High Court. According to the learned counsel, the impugned judgment is unexceptionable and the learned Single Bench of the High Court seized of the matter decided the appeals, as the High Court, under the Constitution and the law, therefore, the impugned judgment could not be said to be coram non judice, moreover; the appellants submitted to the jurisdiction of the Court and did not raise any objection in the light of the relevant rule of the High Court Rules and Orders for to be heard by a Division Bench of the said Court cannot later on object to the jurisdiction of the Court in view of the said rule, which primarily is procedural in nature and does not affect the jurisdiction of the High Court.
12. The contentions put forth on behalf of the parties by their learned counsel have been considered in the light of the impugned judgment gone through carefully and minutely with their assistance including the judgment passed by the learned trial Court and the evidence available on record. It is an admitted feature of the case that the original document of the Will was not placed on record nor was filed with the plaint nor even tendered in evidence by any of the witnesses of the appellants or by the attorney for the appellants during the course of his statement recorded by the trial Court. Also copy of the same has not been filed on this paper book, however, it appears from the impugned judgment that copy of the same was available on the original record of the case as some reference with respect to the contents of the said document has been mentioned in the impugned judgment. Also no explanation was furnished at any stage of the trial by the appellants as to the reason of failure for non-production of the original Will and nothing was even said about the scribe and marginal witnesses of the said document being alive, dead or not traceable at the relevant time; and more particularly for the reason that it was specifically denied by the contesting defendants in their written statement that no Will was executed by late Haji Mangal Khan with respect to the property owned by him and it was alleged that the instrument of Will relied upon by the appellants in their plaint and as claimed by them, is a fake and forged document.
' The appellants since claimed to be the beneficiaries of the document of Will, therefore, notwithstanding the formulation of terms of Issue No,4, it was essential for them to have proved its execution through the marginal witnesses and the scribe of the instrument in case such witnesses and the scribe of the instrument in case such witnesses were not alive/could not be found to depose as the case be, which they failed to explain, nor even the original document was produced, therefore, in the circumstances as above discussed no presumption of its execution can be attached within the meaning of Article 100 of the Qanun-e-Shahadat Order and the conclusion drawn by the learned Bench of the High Court with respect to the alleged Will are unexceptionable.
' It is not essential for a Court to attach the presumption of execution of a document more than 30 years old in all the cases without attending to the other relevant facts and circumstances of the case before B raising such presumption and not merely because any such presumption was claimed, to be attached to such document. It was essential for the appellants/plaintiffs to have produced the original document and in case of failure to so do, plausible explanation for the non- production of the document or the same having been lost, destroyed or in the possession of any other person not capable to be produced should have been provided by applying or satisfying the Court at least for production of the secondary evidence in the shape of copy thereof, which has not been done in the instant case, hence; attachment of presumption of the execution of the document was a matter of great care, caution to have been undertaken in the case involving rights of the parties to the property. The fact of presumption may be weakened which tend to raise suspicion about the genuineness of the document.
' It is pertinent to note that in the earlier ejectment proceedings, as it appears from the record nothing was mentioned by the appellants at any stage of such proceedings with respect to the execution of any Will by late Haji Mangal Khan, therefore, in our considered opinion the learned High Court appropriately did not attach presumption of execution of the said document which is permissible and not imperative even if the document be a 30 years old and is produced from proper custody.
13. As regards the other conclusions on merits of the case drawn by the learned High Court in the impugned judgment particularly with reference to the evidence of the appellants, nothing was said on behalf of the appellants nor such conclusions claimed to have been arrived at, as a result of misreading, non-reading or misappraisal of evidence, hence; the same are not open to any exception which in our considered opinion in view of the evidence appraised by the learned Judge in the High Court do not appear to be not unsustainable.
14. Adverting to the other contention of the appellants learned counsel, no doubt in view of the above quoted rule of the High Court Rules and Orders; the office should have listed these appeals for hearing before a Division Bench of the High Court but such was not done and the learned Single Judge in the High Court seized of the matter fixed before him, decided the appeals vide impugned consolidated judgment. On behalf of the appellants, these appeals were argued by their appointed learned counsel, who did not point out to the learned Court nor expressed any reservation for hearing of the appeals to be made by a Division Bench of the said Court but when the appeals were accepted, the appellants have come with the plea that the matter was to be heard by a Division Bench of the High Court and, therefore, the decision rendered by a Single Bench of the learned High Court was Coram non judice. The appellants by their conduct are estopped to raise such pleas. Secondly, the High Court Rules and Orders are the Rules of Business regulating the practice and procedure of the High Court providing manner in which such powers are exercisable which do not and cannot confer or take away any of the powers which are vested in the Judge and to have add or subtract any of the powers vesting in the Judge under the Constitution and the law which in our considered opinion are not subject to any clog or restriction unless the same having been formally entrusted to him. Each Bench of the High Court, be a Division Bench, Full Bench and a Single Bench represents the High Court and the judgments delivered by any of the Bench shall be that of the High Court. The above quoted rule relating to the hearing of the regular first appeals by a Division Bench would not divert the learned Single Judge of his jurisdiction conferred and exercisable by him under the Constitution and the law. The lapse on the part of the office for not listing these appeals in view of the value of the property in question before a Division Bench of the said Court would not in the circumstances of the case rendered the impugned judgment as coram non judice and of no legal effect. The contention raised in such behalf are devoid of substance. The case-law cited by the appellants' learned counsel i,e, Chitranjan. Cotton Mills Ltd. v. Staff Union PLD 1971 .SC 197, .Rashid Ahmed v. The State PLD 1972 SC 271, Moulvi Aziz-ur-Rehman v. Ahmad Khan and others 2004 SCM R 1622 and Habibullah v. Land Acquisition Collector and others 2005 SCM R 1320 are not relevant on the point raised before us nor of any assistance to the proposition in hand. Out of which PLD 1949 PC 45 was a wrong quoted reference as at the said page no case of Privy Council was reported.
15. For the foregoing reasons, these appeals being devoid of substance are dismissed with no order as to costs.