CH. MUHAMMAD IBRAHIM ZIA, J.--- This appeal is filed against the judgment and decree of the High Court dated 23-7-2008,. A whereby the judgments and decrees of the lower Courts have been set aside and suit of the respondents-plaintiffs, has been decreed.
2. The precise summary of the facts as depicts from the record is that the parties are co-owners of the inherited property in different villages.' The respondents-plaintiffs filed a Civil Suit No,233 of 1993 in the Court of Senior Civil Judge Mirpur on 25-7-1993, wherein they claimed that the inherited property in different villages has been privately partitioned among the co-sharers since long in the Dogra regime and the co-owners are in occupation of the property according the partitioned shares. It was further alleged that the co-owners, Abdul Karim and Barkatullah, in Dogra regime sold their shares to their uncles, Noor, Bagga and Qutba, hence their shares in the suit-land have transferred. The plaintiffs prayed for declaratory decree of land measuring 15 kanals, 6 marlas situated in village Rakhayal Tehsil and District Mirpur comprising Khewat No,1/43, old No, Khasra 368, 255 and 255 new No, Khasra 506, 382, 386 and Khiwat No,1/22 No, Khasra old 199, 215, 252, 243, 250, 327 New No, Khasra 245, 264, 293, 299, 301 and 453 and Khewat No, 1/146 old No, Khasra 410 & 466 new No, 528 and 605 on the basis of the claimed private partition.
3. The suit was contested by the defendants and after recording the evidence and completion of required proceeding, ultimately the suit was dismissed for want of proof vide judgment dated 11-2- 2005. The appeal filed by the respondents before the Additional District Judge, Mirpur was also failed and the judgment. Of the trial Court was affirmed by the first appellate Court through the judgment and decree dated 26-11-2005. The respondents-plaintiffs feeling aggrieved from the decision of the subordinate Courts filed second appeal in the High Court, which has been accepted by the learned single Judge in the following terms:--- "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 in the original suit."
4. The propriety of this judgment now has been challenged in the instant appeal by the appellants- defendants on the grounds that the learned High Court has passed an ambiguous order merely on the basis of two documents, Exhs.PA and PB without appreciating and considering their contents.
These documents even accepted correct, are mere agreements according to their nature and contents, whereas, the judgment of the trial Court and the first appellate Court are well reasoned and passed after proper appreciation and analysis of the record and the whole material.
5. Mr. Muhammad Reaz Alam, the learned counsel for the appellants, vehemently argued that the impugned judgment of the High Court is totally contrary to the settled principle of law and justice.
The learned single Judge of the High Court has failed to apply its judicial mind. The findings are recorded merely on the theory of thirty years old documents without appreciation of nature and contents of the documents. The judgment is nullity in the eyes of law because the conclusion drawn by the learned High Court is against facts and record of the case. He further argued that there is principle of law governing the admissibility of thirty years old documents in evidence; but it doesn't mean that without appreciation of contents of such documents, merely on the basis of thirty years old documents, a decree can be granted. He further argued that a relief in civil suit can only be granted if the prayed relief is admissible according to law, and the plaintiff proves his case by production of legal evidence. Whereas, in the instant case the cumulative appreciation of evidence reveals that the respondents-plaintiffs have failed to prove their suit, thus, the trial Court has rightly dismissed the suit for want of proof. The judgment of the trial Court has been affirmed in the first appeal.
6. Messrs Abdul Qayyum Ansari and Abdul Latif Dutt, the learned counsel for the respondents, while controverting the arguments of the learned counsel for the appellants, forcefully defended the impugned judgment on the ground that the judgment of the High Court is consistent with the principle of law laid down in the codal provisions of Qanun-eShahadat Order, 1984. They further argued that the documentary evidence Exhs.PA and PB, which are admittedly thirty years old documents have got preference over the oral evidence and this piece of evidence clearly proves the version of the respondents-plaintiffs, thus the High Court has rightly decreed the suit.
7. We have dispassionately considered the respective arguments of the learned counsel for the parties and also gone through the record. The perusal of judgment of the trial Court as well as the first appellate Court reveals that both the Courts have discussed the evidence produced by the parties in detail and recorded findings issue-wise after ,due appreciation of the record. The document Exhs.PA and PB have also been considered by the trial Court as well as the first appellate Court.
8. The document PA is, in fact, not a partition deed, it is an agreement. Be that as it may, however, in this document all the shareholders are not party. The perusal of the document reveals that it has been agreed among some of the co-sharers according to which a partial arrangement has been agreed but even in this document it has been categorically incorporated that:- {{URDU TEXT}} ' Thus, from the contents of this document it is crystal clear that it is neither a partition deed nor it operates among all the co-sharers or their total holdings in the different villages. If for the sake of argument the deed is treated a private partition, even then it doesn't attain finality or creates any right because under the section 147 of the Land Revenue Act, all the partitions privately effected are subject to affirmation by the competent Revenue Officer according to prescribed procedure.
9. So far the question of document PB is concerned, according to its contents, it appears to be agreement to sell. According to law mere agreement to sell doesn't create any right unless in furtherance of it, further agreed and required, steps are taken and completed by the concerned parties. Being a 30 years old document the only status recognized under section 100 of the Qanun- e-Shahadat is that it has been executed and signed by the person by whom it purports to be executed.
10. While discussing the scope of Article 100 of Qanun-e-Shahadat Article, in Ghulam Muhammad's case (PLD 2002 Lahore 48) the learned Judge High Court in paragraph 15 of the judgment held as following:--- "The next submission of the learned counsel for the petitioner that the dahlia agreement being 30 years old document is per se admissible in evidence and must be relied upon is not correct. Before any presumption of truth can be attached to such a document, it has to be satisfactorily demonstrated that such a document has-been acted upon and is supported by possession. It should also be shown that the document has been produced from proper custody where it should have been and that it was in consequence of this document that possession was given. From the evidence on the record these conditions have not been fulfilled and as such no presumption can be drawn in favour of the document in question."
' The apex Court of Pakistan in Allah Dad's case 2005 SCMR 564 enunciated the principle of law that there is difference between admissibility of document and its evidentiary value. A thirty years old document under the provisions of Article 100 of Qanun-e-Shahadat Order is admissible without production of the marginal witnesses or the executers but the Court under this provision not required to presume contents of such documents to be true. The Court may call parties to produce evidence. The para 10 of the judgment speaks as following:-- "The principle underlined in Article 100 is that if a document 30 years old or more is produced from proper custody and on its face, it is free from suspicion, the Court may presume that it has been signed or written by the person whose signatures appear on it and that it was duly executed and attested by the executants. 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 thirty years old, it is admissible in evidence without formal proof but if the genuineness of such a document is disputed, it is the duty of the Court to determine the question of its genuineness and true character. Therefore, the rule is that Court- may raise a presumption of existence and execution of a- document which is more than 30 years old but it is not necessary that by raising such presumption Court must presume the contents of the document to be true and in such a case, Court may call the parties to produce the evidence. However, the presumption of genuineness of a document is rebuttable and the question whether such a presumption can be raised or not is a question of law which can be raised at any stage."
' It can be safely concluded that mere 30 years age doesn't make a document un-rebuttable or absolute proof. Such a. Document according to the facts and circumstances of the case is subject to rebuttle. In the present case, the nature and contents of the document despite presumption of correctness are not sufficient to grant the prayed decree. This aspect of the case has been over sighted by the learned High Court.
11. It is also transpired from the perusal of the impugned judgment and decree that the learned High Court has not passed a clear and unambiguous order or decree. It has been merely ordered that a decree as prayed in the original suit is granted. There is no mention of the subject-matter or the nature and type of the decree granted. According to the codal provisions such ambiguous judgment and decree do not fulfill the legal requirement, hence cannot sustain.
12. The learned Judge High Court in the impugned judgment except the documents Exhs.PA and PB has not discussed the other evidence available on the record, whereas, the trial Court as well as the first appellate Court have recorded their findings after cumulative appreciation of all the available material. The judgments are well-reasoned and consistent with the principle of law.
Therefore; it is not deemed necessary to repeat the appreciation of the other evidence..
13. Thus in the light of the above stated facts and reasons, we do not feel any hesitation to accept this appeal and set aside, the impugned judgment of the High Court. Consequently, the judgment of the trial Court stands restored. The parties shall bear their own costs.