1. ' RAFIULLAH SULTANI, J.--- This appeal is directed against the judgment and decree of Additional District Judge Camp, Mirpur dated 26-11-2005, whereby the judgment and decree of Senior Civil Judge, Mirpur dated 11-2-2005 was maintained.
2. ' Brief facts arising from the instant appeal are that appellants/ plaintiffs filed a declaratory suit against the respondents/defendants regarding land comprising Survey Numbers 506, 382, 388, 245, 264, 293, 299, 301, 453, 528, 605 and 700 measuring 16 Kanals and 9 Marlas situated at Village Rakhyal Herdoochhi, Tehsil Mirpur, in the Court of Senior Civil Judge, Mirpur on 25-7-1993. It was alleged in the plaint that the suit-land fell in the sole ownership and occupation of forefathers by way of private partition. It was further alleged that plaintiffs are in possession of suit-land as owners and entries of Revenue Record as owners in the name of defendants, be declared illegal and liable to be corrected in favour of plaintiffs. It was further alleged to refrain the defendants from interfering with suit-land. The defendants/respondents contested the suit and submitted the written statement in which they denied the allegations levelled in plaint. After conducting the trial of case, the Senior Civil Judge, Mirpur dismissed the suit for want of evidence on 11-2-2005. Feeling aggrieved by the said judgment and decree, the appellants preferred an appeal before District Judge, Mirpur on 7-5-2005. The District Judge, Mirpur entrusted it into the Court of learned Additional District Judge, Mirpur, who dismissed the appeal on 26-11-2005. The appellants feeling aggrieved by the said judgment and decree preferred an instant appeal before this Court.
3. ' The learned counsel for the appellants reiterated the grounds of appeal and further contended that both the Courts below issued the judgments and decrees not in accordance with law and facts of the case. He further contended that both the Courts below failed to appreciate the evidence led by the appellants. He further contended that through documents Exh.P.A. And Exh.P.B.
4. The disputed land exclusively fell in ownership of appellants and the said documents carry presumption of truth being old more than 30 years which cannot be overlooked according to peculiar circumstances of the case and Article 100 of Qanun-e-Shahadat fully applies on the case in hand. He further contended that plaintiffs proved their version through cogent and reliable oral evidence, but both the Courts below fell in error of misreading and non-reading of evidence of the appellants. He also contended to accept the appeal and struck down the impugned judgment and decree, which was made by the learned Additional District Judge, Mirpur. In support of his version, he cited following case-law: 2001 M LD 493 and 1999 CLC 106.
5. ' The learned counsel for the, respondents defended the impugned judgment and decree and further contended that both the Courts below have passed the judgments and decrees in accordance with law and facts of the case, which requires no legal interference by this Court. He further contended that appellants failed to prove private partition through documentary evidence as well as oral evidence. He further contended that documents Exh.P.A. And Exh.P.B. Do not fulfil the requirements of execution under Article 179 of Qanun-e-Shahadat, 1984. He further contended that the said documents are forged documents. He further contended that appellants failed to discharge the onus of proof lies upon them. He further contended that concurrent findings of both the Courts below cannot be disturbed in second appeal by this Court. Lastly, he requested to dismiss the appeal.
6. ' I have heard the learned counsel for the parties and gone through the available record of the case carefully.
7. ' In 'order to determine the controversy between the parties whether the forefathers of parties have entered in private partition regarding their common lands?
8. ' Appellants produced in support of their version Karamat Hussain, Muhammad Ismail and Muhammad Hussain as their witnesses and one of the plaintiffs named Muhammad Iqbal got recorded his statement as a witness to rely on documentary evidence as Exh.P.A., Exh.P.B. And Misl- e-Haqiat Exh.P.C. And Exh.P.D. Pertaining to the year 1991-1992. Whereas, the respondents in negation produced Fazal Hussain, Muhammad Sharif, besides their agents, Talib Hussain and Muhammad Gulzar. The respondents also produced documentary evidence as Exh.D.A. To Exh.D.D.
9. ' The first point, which needs resolution is as to what is legal effect of documents Exh.P.A. Iqrarnama dated " {{URDU TEXT]}}(I; f q ql Art. Y o " and Exh.P.B. Iqrarnama dated " {{URDU TEXT]}}j43 ".No quarrel with this matter that these documents are not registered documents but these documents are thirty years old documents, which carry presumption of truth. I do not agree with the learned counsel for the respondents that Article 79 of Qanun-e-Shahadat, 1984 would apply on this case. In case of such-like documents the Article 100 of the Qanun-e-Shahadat, 1984 would apply. Here I would like to reproduce the Article 100 of Qanun-e-Shahadat, 1984 for correct perception of the matter, which reads as under:- "100. Presumption as to documents- thirty years old.--- Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is that person's; handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
10. ' Explanation.---For the purpose of this Article and Article 92, documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable."
11. ' It is crystal clear from the bare reading of above provision of law that presumption of genuineness and authenticity attached to the documents Exh.P.A. And Exh.P.B. Because those documents are more than thirty years old, which were produced from proper custody in evidence. In this case, which is in hand, the Article 100 of Qanun-eShahadat would apply.
12. ' It was held in case titled Muhammad Durwaish v. Haji Muhammad Hussain alias Haji Gui and 7 others reported in 1999 CLC 106 Capt. (a), which reads as under:-- "(a) Qanun-e-Shahadat (10 of 1984)--- ----Arts. 100 & 79---Presumption as to document---Presumption to thirty years' old document under Art.100 of Qanun-eShahadat, 1984---Presumption of correctness was attached to signature and contents of a thirty years' old document produced from proper custody---When a document would fulfil requirements of Art.100 of Qanun-e-Shahadat, 1984, person relying upon such document was not required to prove its execution, unless presumption was rebutted---Provisions of Art.79 of Qanun-e-Shahadat, 1984 would not come into play if benefit of Art.100 of Qanun-e- Shahadat, 1984 was available to person having thirty years' old document."
13. ' The appellants are claiming their possession and ownership on the basis of documents Exh.P.A.
14. And Exh.P.B. Of disputed land, which have been produced by them in evidence in support of their claim. The said documents have been written on stamped papers in Dogra Regime contains no forgery upon their recitals. As the documents appeared to be genuine according to section 90 of Evidence Act, therefore, there is no hesitation for Court to presume the said documents as genuine documents being 30 years old.
15. ' It was further held in case titled Muhammad Hanif and 16 others v. Muhammad Latif Khan and 10 others reported in 2001 M LD 493 which reads as under:--- "(a) Evidence Act--- ----S. 90---Old document---Presumption of truth--Held: document appears perfectly genuine entitles the Court to presume it as genuine document being 30 years old."
16. ' Another aspect of the case, which goes in favour of appellants that the documents were produced from proper custody by the persons in whose favour these were executed and the said documents are 30 years old. The presumption of truth is attached with the said documents.
17. ' It was held in case titled Wazir Muhammad and 2 others v. Ali Muhammad and others reported in PLD 1982 SC (AJ&K) 37, which reads as under:--- "The reading of this section would show that it says only that a Court may presume and not that it must presume. In view of the danger of the blind acceptance of a document as genuine for all purposes merely because it purports to be more than thirty years old and is produced from proper custody, considerable .Care and caution should always be exercised in accepting documents of more than thirty years age. Such documents can always be prepared or forged and that is why it is always insisted upon that the Courts ought to be aware of the danger of treating old documents as established merely because they are thirty years old and come from proper custody. One has to take into consideration the surrounding circumstances. One of the important considerations, besides others, in my view, should be whether the document is acted upon or not and whether it was supported by possession or not."
18. 'Another aspect is available on the record, which goes in favour of appellants that documents Exh.P.A. And Exh.P.B. Are acted upon and supported by the possession. Due to this reason presumption can rightly be drawn in favour of genuineness of documents. It is pertinent to note that parties are in agreement that suit-land is in possession of appellants. It is settled principle of law that documentary evidence should prevail on oral evidence. The respondents have not produced any evidence regarding this matter that documents Exh.P.A. And Exh.P.B. Have not written and the said documents are fictitious. The learned counsel representing respondents Muhammad Boota and Saida did not cross-examine on one of the plaintiffs Muhammad Iqbal, who got recorded his statement before the Court on 23-9-2006 regarding the genuineness of these documents. Even the counsel of remaining respondents did not cross-examine on the said witness in proper way regarding genuineness of the said documents. The appellants have proved evidence, which cannot be rebutted from opposite side. The evidence produced by the respondents was not supporting their claim and it does not inspire confidence. Both the courts below have not passed the judgments and decrees in accordance with law and facts of the case.
19. Furthermore, the learned Courts below have committed error not to rely upon the documents Exh.
20. P. A. And Exh. P. B.
21. ' For the reasons listed above, I accept this appeal and the impugned judgment and decree passed by the learned Additional District Judge, Mirpur dated 26-11-2005 and judgment and decree passed by the Senior Civil Judge, Mirpur dated 11-2-2005 are set aside and decree in favour of appellants is granted as prayed for in original suit.