This petition for leave to appeal is directed against the judgment and decree passed by a learned Single Judge of the High Court on 13.5-1981. By this order the learned Judge in disallowing the appeal of the petitioners declined to disturb the finding of the learned District Judge recorded on 4-11-1980.
2. The petitioners claimed to have acquired occupancy rights of the suit land measuring 41 kanals I1 marlas, "comprising survey No. 1265 situate in the area of village Seher Mandi, Tehsil Sehnsa, District Kotli, from one Fajoo Khan son of Karam Ullah by virtue of an agreement to sell, executed on 24th Poh 1977 BK. For a consideration of Rs.
85. They also alleged that their father and after his death they remained in conti--nuous possession of the suit land. Respondents-defendants to this petition, however, repudiated their claim.
3. The learned Sub-Judge concluded the controversy in favour of the petitioners-plaintiffs. But the learned District Judge on first appeal vide judgment and decree, dated 4-11-1980, discharged the finding of the learned Sub-Judge resulting in the dismissal of the suit of the petitioners. This finding of the District Judge, as said earlier, was also maintained by the High-Court.
4. Qazi Abdul Ghafoor, the learned counsel for the petitioners during the course of his arguments has taken pains to satisfy me that agreement to sell being an ancient document of more than thirty years carries presumption of truth and the learned Judge in the High Court has misdirected himself not to raise a presumption of truth in respect of this document. As against this Raja Muhammad Siddique Khan, the learned counsel for the respondents, contended that in the circumstances of the case no presumption of truth can be attached to the document or its con-- tents and the learned single Judge of the High Court has rightly refused to raise a presumption of truth regarding its execution or contents.
5. After hearing the learned counsel for both the sides and examin--ing the relevant judgment I am not prepared to hold that the petitioners are entitled to succeed in their contention in establishing a case for leave to appeal. My reasons are :-
(i) One of the fundamental requirements of natural justice is that a party whose rights may be affected by an adjudication must know well be--forehand to meet it. For that reason when presumption, under section 90 of the Evidence Act, is being raised against a party it is imperative for the Court to intimate the party about it to enable it lead evidence in rebuttal of the proposition.
As in this case this settled law seems to have been violated no presumption of truth can be attached to the document (Exh. PH). Or its contents;
(ii) before a presumption can be raised about a document alleged to be of thirty years of age it is necessary to show that primary or secondary evidence about its contents is not available. No case for dispensing with the primary or secondary evidence has been made out, i.e. It, is not shown that primary or secondary evidence is not available; (i.e) in this case the document (Exh. PH.) alleged to be of thirty years' age stands rebutted by the entries made in the copies of the `Khasra Girdawaris, Exhs. PA, PB and PC which show the possession of the petitioners. The entries in the documents thus shake the correctness of the entries made in. The document;
(iv) even if the document is admitted to be correct it does not create any title for the petitioners in the suit land. The copies of the Record of Rights Exhs. PA, PB and PC when read together create strong preponderance of probability that the petitioners were holding the and as tenants of mortgagee. This position runs counter to their claim; and
(v) to me challenge to the validity of the order 'of the High Court in fact turns clearly on the propriety and correctness of the reasoning advanced by the High Court in refusing to interfere with the judgment of the District Judge. It clearly amounts to the appre--ciation of the evidence which hardly furnishes a ground for leave to appeal.
6. Identical question came up for consideration before this Court in case /Wazir Muhammad and 2 others v. Ali Muhammad and 14 others PLD .1982SC(AJ& K)37. The proposition was thoroughly discussed and repelled with the following observations :- "After giving my considered thought to the arguments advanced at the bar, I am of the view that the points agitated are without sub--stance and merit no consideration. My reasons are:-
(a) section 90 of the Evidence Act, which relates to presumption attached to documents of thirty years age, reads :- `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 signature and every other part of such document, which purports to be in the hand--writing, 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.'
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 Court 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. Too much importance cannot be attached to resemblance or even to opinion of experts about them. Besides a presumption under section 90, Evidence Act, only extends to the genuineness of the document and it does not go further to the extent of holding that the document was, in fact, executed by a person possessed of requisite authority. Therefore, the mere production of the ancient docu--ment, unless supported by some corroborative evidence of acting under it, is not entitled to any weight.
I may here refer to some of the authorities having bearing on the issue "The presumption contained in section 90 has always got to be applied with a good deal of caution. Regardless of the question as to whether the document in question forms the foundation of the party's right or whether it was sought to be used as a piece of evidence the Court may, in a proper case, rely upon the presumption contained in section 90.'
'A presumption under section 90, Evidence Act, only extends to the genuineness of the document but does not go further in the extent of holding that the document was in fact executed by a person posses--sed of the requisite authority. The Courts should be very careful about raising any presumption under section 90 in favour of deeds which are produced practically for the first time during the trial of suits in which proprietary rights are set up on the basis of these deeds. The mere production of an ancient document unless suppor--ted by some corroborative evidence of acting under it is not entitled to any weight. An ancient deed must be corroborated by evidence of ancient or modern corresponding enjoyment or by other equiva--lent or explanatory proof; it is then presumed to have constituted part of the actual transfer of the property mentioned, and the Court may then make presumption under section 90 of the Act.'
Same view prevailed in 'Mst. Shamsha v. Sherdil Khan and others PLD 1954 Pesh. 106.It has been observed in that case :- 'It is open to the Court, although not imperative to raise a presumption that the signature and every other part of such document, which purports to be in the handwriting of any particular person is in that person's handwriting, and that it was duly executed and attested by the persons by whom it purports to be executed and attested, under section 90 of the Evidence Act. But then this presumption must be applied with considerable care and caution, because forgery and fraud cannot reasonably be said to be of rare occurrence.'
(b) The rule of presumption under section 90 of the Evidence Act as to the genuineness of a document, it may be stated, is a matter which is eminently within the discretion of the trial Court and it is not compulsory upon any Court to draw, a presumption that a docu--ment of thirty years old is genuine. My view finds support in Surendra Nath Dobey and others v. Sambhu Nath Dobey and others AIR 1927 Cal. 870. It has been observed in that case :- 'Now, as regards this contention it is sufficient to say that upon the plain language of section 90 the presumption that is referred to in that section is not one which it is obligatory on a Court to raise in favour of a person who desires to prove a document more than 30 years old, but that it is discretionary with the Court either to rely on that presumption or not.'
Again in Sardara v. Akbar and others AIR 1937 Lab. 17, it has been observed :-- , 'The rule of presumption laid down in section 90 must be applied with great caution and ancient documents which are unsupported by any evidence that might free them from the suspicion of being fabricated should not be acted upon; and if the lower Courts have exercised their discretion after considering all the circumstances, the High Court will not lightly interfere with it.'
Raja Jaleshwazi Partap Narain Singh v. Peteshwari Bakbsh Singh and others AIR 1938 All 345. Also owns the view enunciated above. It has been observed in that case :- A presumption under section 90 is not one, which a Court must draw. The Court has a discretion in the matter.'
6. It would thus appear that regarding ancient documents practically all the superior Courts are in agreement that if there are circumstances, both internal and external, which throw doubt upon its genuineness, the Court has the discretion under section 90 of the Evidence Act not to admit the document without formal proof and an appellate Court would always be extremely slow to overrule the discretion exercised by the lower Court. The rule of presumption, as said earlier, must be applied with great caution and where circumstances throw suspicion on the genuineness of a document, no presumption under section 90 of the Evidence Act can be drawn. The suspicion may be due to erasures or over writings in the document itself, or to circumstances which tend to raise doubts as to its authenticity.
7. The authorities being examined, this brings me now to the merits of the case. In this case the following circumstances were rightly taken into account by the Courts below in refusing to raise presumption of truth about the document :-
(i) The possession, on the basis of this document, is not reflected in the revenue record. This fact shows that the document was not acted upon;
(ii) The suit is at variance with the proof ; (i.e) The document relates to survey No. 24 while in suit survey No. 44 is claimed by the petitioners;
(iv) All the Courts below have concurrently concluded that the document stands unproved. There appears no reason to differ with this concurrent finding. It is settled that the Supreme Court cannot be a Court of error in disregard to the treatment of such evidence in the trial Court; and
(v) The petitioners declined to place reliance on this document in the High Court and now they cannot be allowed to build up their case on a point abandoned in the High Court.
8. As the document, for the above-stated reasons stands unproved, the protection to petitioners' possession under section 53-A of the Transfer of Property Act does not arise and loses all importance.
It would thus appear that the observation made in the above sited case completely answers the argument advanced by the petitioners in this case.
For the above-stated reasons the proposition regarding presumption of truth attached to an ancient document is well settled and I see no reason to re-open: the same. This petition, therefore, fails with costs.