' SYED IFTIKHAR HUSSAIN SHAH, J.--- Through this revision petition, the petitioners have called in question the legality of judgment and decree dated 16-6-2001 passed by the learned Additional District Judge Khanpur whereby appeal against the judgment and decree dated 18-12-2000 passed by the learned Civil Judge Khanpur dismissing the suit instituted by the respondents for seeking decree for declaration and permanent injunction, was allowed and the suit was decreed.
2. Succinctly, the facts of the case are that the respondents instituted a suit for seeking declaration to the effect that they being legal heirs of Mst. Kundan are owners in possession of the land measuring 11-Kanal and 3-Marlas and the mutation of inheritance is required to be sanctioned in their favour and the respondents should be permanently restrained from interfering in the ownership rights of the plaintiffs. Mst. Kundan, who was the real paternal grandmother of the plaintiffs/ respondents died in the year 1982. She was married with Paari Piya, who divorced her. She contracted second marriage with Rahim Bakhsh and father of the plaintiffs/respondents namely Karam Din was born out of the wedlock who also died in the year 1985.
3. The petitioners/defendants contested the suit and it was alleged that Mst. Kundan was a legally wedded wife of Paari Piya, who never divorced her. The plaintiffs/respondents have got no relationship with the aforesaid Mst. Kundan as she was never married with Rahim Bakhsh.
4. Learned trial Court out of the divergent pleadings of the parties framed the following issues:- "ISSUES ' No,1 Whether plaintiffs being legal heirs of Mst. Kundan are owners in possession of the disputed property and the entries in Revenue Record are liable to be corrected? OPP ' No,2 Whether plaintiffs have come to the Court with clean hands? OPP ' No,3 Whether suit has been properly valued for the purpose of court fee and jurisdiction? OPP ' No,4 Whether suit is maintainable in its present form? OPP ' No,5 Whether defendants are entitled to recover special costs from plaintiffs. If so, to what extent?
OPP ' No,6 Relief. "
5. 'Learned trial Court after recording of evidence of the parties and hearing them, dismissed the suit vide judgment and decree dated 18-12-2000. The respondents preferred an appeal against the said judgment and decree which was allowed and the learned Appellate Court decreed the suit of the respondents vide judgment and decree dated 16-62001. Hence, this revision petition.
6. Learned counsel for the petitioners has contended that the respondents are not the legal heirs of Mst. Kundan, who married with Paari Piya and remained his wife throughout; that she was never divorced by him and never contracted marriage with Rahim Bakhsh, the alleged grandfather of the respondents; that the alleged Nikahnama of Mst. Kundan with Rahim Bakhsh Exh.P-2 was placed on record under objection as it was not duly proved but the learned trial Court while deciding the case has not given any findings about its admissibility in evidence and the learned Appellate Court has blindly relied on it holding that it was a 30 years old document; that the respondents have failed to establish their relationship with Mst. Kundan, therefore, the findings of the learned Appellate Court are not in accordance with the provisions of law and are liable to be reversed.
7. On the other hand, learned counsel for the respondents has contended that the respondents have fully proved that Mst. Kundan was their paternal grandmother and they are entitled to inherit from her estate and the petitioners being step-brother have got no right of inheritance in the property left by her, therefore, the revision petition is liable to be dismissed.
8. I have heard the learned counsel for the parties and have perused the record.
9. The respondents have claimed that Mst. Kundan was their paternal-grandmother, who after seeking divorce from Paari Piya contracted marriage with Rahim Bakhsh and Karam Din, father of the respondents, was born out of the wedlock, therefore, they are entitled to inherit from the estate of their paternal grandmother. The petitioners have denied that Mst. Kundan had ever married with Rahim Bakhsh. Nikahnama Exh.P-2 was submitted before the learned trial Court by the respondents which was admitted in evidence under objection but the learned trial Court had not decided the said objection and dismissed the suit on the ground that the respondents failed to prove themselves to be the legal heirs of Mst. Kundan. On the other hand, learned Appellate Court has relied on the said document Exh.P-2 i,e, Nikahnama being 30 years old document. The presumption of correctness is attached to the signatures and contents of a thirty years old document, if produced from proper custody and the person relying need not prove its execution. Article 100 of the Qanun-e-Shahadat Order, 1984 provided as under:- "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 documents, which purports to be in the handwriting of any particular person, is in 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."
A perusal of Article 100 reveals that required presumption is rebutable. The principle under lined in Article 100 is that a document of 30 years old is produced before the Court from proper custody or from the face of it is free from suspicion, Court may presume its correctness. The age of document, its unsuspicious character, its custody and other circumstances provide foundation to raise presumption of its execution but if the genuineness of the document is in-dispute, it is the duty of the Court to decide the question of its genuineness and true character.
' Article 101 of the Qanun-e-Shahadat Order, 1984 is also relevant in this case which reads as under:--- "The provisions of Article 100 shall apply to such copy of document referred to in that Article as is certified in the manner provided in Article 87 and is not less than thirty years old; and such certified copy may be produced in proof of the contents of the document or part of the document of which it purports to be a copy."
' The age of document, its unsuspicious character, its custody and other circumstances are foundation to raise a presumption of its' execution and if a document is proved more than 30- years old, it is permissible in evidence without formal proof, but if the genuineness of such document is disputed, it is the duty of the Court to determine the question of its genuineness and true character. The Nikahnama Exh.P-2 was produced in evidence under objection and was disputed by the petitioners/ defendants but the learned trial Court has not given any findings about the admissibility of the said documents. Exh.P-2 is a photocopy of the B register of Nikah entries which bears only the stamp of the office of the Commissioner Bahawalapur Division but it does not bear any certificate as required under Article 87 of Qanun-e-Shahadat, 1984 that it is the certified copy of the original one. In these circumstances, it was incumbent upon the learned trial Court to decide the authenticity of the said document. The learned Appellate Court has also blindly relied upon the same without considering its authenticity and admissibility in evidence. Therefore, the remand of the case is inevitable.
' Resultantly, the revision petition in hand is accepted and both the impugned judgments and decrees dated 18-12-2000 and 16-6-2001 passed by the learned Civil Judge Khanpur as well as the learned Additional District Judge Khanpur are set aside and the case is remanded to the learned trial Court with the direction to decide it afresh after deciding the authenticity and admissibility of Exh.P-2 in evidence in accordance with law. The learned trial Court will decide the case within a period of two months positively from the date of receiving the certified copy of this judgment.