AMIN-UD-DIN KHAN, J. --- Through this civil revision the petitioners have challenged the judgment and decree dated 9.12.2011 passed by the learned Additional District Judge, Bahawalpur whereby the appeal filed by the petitioners was dismissed and the judgment and decree dated 31.5.2011 dismissing the suit, by the learned Civil Judge, Bahawalpur was upheld.
2. Brief facts of the case are that on 14.9.2007 the petitioners-plaintiffs filed a suit for declaration and challenged ,the sale-deed with regard to 16 kanals from the suit property registered on 7.4.1973 in favour of Ghulam Farid predecessor of respondents Nos. 2 and 3 and afterward they also with the permission of the Court amended suit and prayed for the possession of the suit property also. As per story narrated by the plaintiffs- petitioners in the plaint, that their father Khuda Bakhsh was owner of 23 kanals and 18 marlas suit land fully described in the head note of the plaint and defendant No. 1 divorced his wife who was mother of defendants No. 2 and 3, she contracted nikah with father of plaintiffs, therefore, plaintiffs and defendants Nos. 2 and 3 are uterine brothers. It is stated that by committing fraud defendant No. 1 father of defendants Nos. 2 and 3 got sale-deed registered about 16 kanals from the suit land in the year 1973 in his favour. Written statement was filed. All averments of the plaint were denied.
The learned Trial Court framed issues and invited the parties to produce their respective evidence.
The learned Trial Court vide judgment and decree dated 31.5.2011 dismissed the suit. An appeal was preferred which also met with the same fate vide judgment and decree dated 9.12.2011, hence this civil revision.
3. Learned counsel for the petitioners contends that original document has not been produced before the Court as the original one could have been in the possession of the defendants. Further that when the execution of the registered sale-deed was denied, it was duty of the defendants to prove the same. Further that no attesting witness was produced. Learned counsel for the petitioners while relying upon Abdul Ghafoor and others v. Mukhtar Ahmad Khan and others (2006 SCMR 1144)- and Muhammad Ashraf and others v. Mst. Sairan Bibi through L.Rs. And others (2008 SCMR 1442) states that the suit for declaration was competent. Further with regard to the 30 years' old document, learned counsel has relied upon Mst. Naseem Fatima v. Sh. Ala-ud-Din and others (PLD 2005 SC 455) and Jang Bahadar and others v. Toti Khan and another (2007 SCMR 497). Further on the point of limitation he has relied upon Ghulam Muhammad through Legal Heirs v. Abdul Rehman and others (PLD 2006 Lahore 233), and Bakhsha and others v. Chugatta (2002 SCMR 1353) and states that when the forgery and fraud is committed, there was no question of limitation and prayed that the judgment and decree of both the Courts below be set side and suit be decreed.
4. On the other hand, learned counsel for the respondents contends that there are concurrent findings of facts recorded by both the Courts below. Only mis-reading and non-reading of evidence can be looked into by this Court in revisional jurisdiction and states that there is no misreading or non-reading of evidence on the basis of which findings have been recorded by both the Courts below. Further states that original document was misplaced during the heavy rain and flood in the year 1973. Further that it is proved on the record that one of the witness of the document namely Ghulam Rasool expired before the institution of the suit. Further that father of the plaintiffs-petitioners was sole owner in the khata and consolidation proceedings were held in Mouza in the year 1974. Further that Khuda Bakhsh expired in the year 2005. He never challenged the sale-deed and predecessor of the defendants and then the defendants were in possession or the suit land in his life-time. Further Bandobasit was carried out by the Revenue Department in the year 1980 and no objection was raised with regard to the suit property in the names of the defendants. Further that at the time of transferring the suit property through Tamleek in the year 1992 the predecessor of plaintiffs was alive and he has not challenged the said Tamleek. Further transfer in favour of defendants Nos. 2 and 3 and then further transfer in favour of defendants No. 4 was not challenged. All the mutations were attested in the Jalsa-Aam. Learned counsel has stated that there was registered document under challenge before the Court and the maker of document after execution of the document remained alive for a period of more than 32 years, he never challenged the impugned sale-deed.
5. I have heard the arguments of the learned counsel for the parties and have perused the entire record with their able assistance.
6. So far as the non-production of the original document is concerned, the plaintiffs-petitioners have themselves produced the certified copies of the said . Document as Ex.P-1 and the explanation of non-production of said document advanced by the defendants is that it was misplaced during the displacement of the defendants due to heavy rain and flood in the year 1973.
Therefore, in the circumstances of the case, this non-production of the original document is not fatal. So far as the point of onus to prove the document is concerned, it was 30 years' old document. The non-production of original document cannot be lightly ignored till the time the plaintiffs, succeed in rebutting the document through reliable and cogent evidence, that a document registered under Registration Act was not in existence. As I have noted above the document in question was registered on 7.4.1973 and admittedly Khuda Bakh-sh the original owner died in the year 2005 and the case of the plaintiffs is that at the time of attestation of mutation of inheritance of their father, they came to know about the registered sale-deed in the year 2005 and admittedly in the year 2005 Ghulam Farid was not recorded owner in the revenue record of the suit property. Long before 2005 he has transferred the suit property in favour of defendants Nos. 2 and 3 and suit was filed in the year 2007 and the defendants Nos. 2 to 4 were not made party in the original suit but subsequently they were impleaded as defendants in year 2008 and one of the plaintiffs is admittedly Clerk of a Senior Advocate. All these circumstances are ,sufficient to negate I the version of the plaintiffs-petitioners. So far as the judgments of the august Supreme Court of Pakistan referred by the learned counsel for the petitioners are concerned, there is no cavil to the rule enunciated by the august Supreme Court of Pakistan but these are not applicable to the facts of the case in hand. The original party to the document i.e. Father of the plaintiffs-petitioners Khuda Bakhsh never challenged this document in his life-time and it is impossible that subsequent event of transfer of suit property in favour of defendants Nos. 2 and 3 and further in favour of defendant No. 4 was not in the knowledge of the said Khuda Bakhsh as it has been alleged in the plaint that both the parties are closely relative. Further that plaintiffs and defendants Nos. 2 and 3 are uterine brothers also. In this case petitioners-plaintiffs were not able to lead convincing evidence to believe their version; therefore, eventuality of shifting of onus of proof does not arise in this case.
When plaintiffs themselves produced certified copy of the alleged impugned sale-deed, the presumption is attached with the endorsements on the original Bahee, wherein abstract of the original document was saved and copy of that endorsement has been produced by the plaintiffs as Ex.P-1. Which is certified copy issued in accordance with law and certify copy of the registered document has presumption of truth, though the presumption is rebuttal but I have observed earlier the plaintiffs have failed to rebut the presumption attached to this document in accordance with law, therefore, in this view of the matter the findings recorded by both the Courts below being concurrent are not open for interference by this Court while exercising revisional jurisdiction under Section 115, C.P.C. In the light of what has been discussed above this civil revision having no merits is dismissed.
Civil revision .