' 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 11 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 continuous 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 contents 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 examining 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 beforehand 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 to 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 nct 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 ;
(iii) 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 land 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 appreciation 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 (1). The proposition was thoroughly discussed and repelled with the following observations :- "After giving my considered thought to the arguments advanced at (1) PLD 1982 SC (A J & K) 37 the bar, I am of the view that the points agitated are without substance 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 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.'
' 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 ha's 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 document, 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. In Gobinda Chandra Pal and others v. Pulin Behari Bannerjee and others (1) while dealing with this aspect of the matter it has been observed:- "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.'
' In Special Manager, Court of Wards, Balrampur v. Lal Bahadur Sing (2) adverting to the issue, it has been stated :- ' 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 possessed of the requisite authority. The. Courts should be very careful about raising any presumption under section 90 in favour of deeds
(1) AIR 1927 Cal. 102 (2) A 1 R 1937 Oudh 353 ' 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 supported 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 equivalent 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 (1). 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 document of thirty years old is genuine. My view finds support in Surendra Nath Dobey and others v. Sambhu Nath Dobey and others (2). 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 (3), 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 Par tap Narain Singh v. Peteshwari Bakhsh Singh and others (4) 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
(1) PLD 1954 Mesh. 106 (2) AIR 1927 Cal. 870
(3) AIR 1937 Lah. 17 (4) AIR 1938 All 345 ' 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 overwritings 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 ;
(iii) 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 cited 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 1 see no reason to re-open: the same. This petition, therefore, fails with costs.
' Petition dismissed.
1982 CLC.1717 [Karachi] before Nasir Aslam Zahid, J MUHAMMAD SULEMAN-Appellant versus ABDUL GHAFFAR-Respondent Second Appeal No, 255 of 1974, decided on 13th DeceMber, 1981. (a)
Evidence Act (I of 1872)- ---S. 137-Omission to cross-examine-Inference-Tenants examined by landlord stating landlord having been issuing receipts for rent paid-No cross-examination on point by respondent-tenantLandlord's issuing receipts to othertenants,.Heid; uncontroverted. [p.
1720JA
(b) Evidence Act (I of 1872)- --S. 114-Presumption-Landlord not producing counterfoils of receipts and stating he did not keep them-Held, from such fact alone no adverse inference could be drawn of landlord having not been issuing receipts. [p. 1720]8 M. Zahiruddin Khan for Appellant. S. Inayat All for Respondent.
Date of bearing : 13th December, 1981.
' Rent Case No, 289/71 was filed by the appellant/landlord before the Rent Controller on 14.10-1971 on the ground of default in the payment of rent by the respondent/tenant for the period from November, 1969 to October, 1971 and on certain other grounds. The Rent Application was granted by order dated 23-10-1973 on the ground of default only and the respondent was ordered to be ejected. As far as other grounds are concerned, both learned counsel agree that they are not relevant and the only point which is involved here is the question of default. Against the order of ejectment dated 23-10.1973 of the Rent Controller the tenant/respondent filed a First Appeal No, 246/73 which was allowed by order dated 28.9-1974 of the learned III Additional District Judge, Hyderabad, who set aside the order dated 23-10-1973 of the Rent Controller and dismissed the Rent Application. Against this order dated 28-9-1974 passed in First Appeal, the present Second Appeal has been filed by the appellant/landlord.
2. I have heard Mr. M. Zahiruddin Khan, learned counsel for the appellant, and Mr. S, lnayat Ali, learned counsel for the respondent. According to. Mr. M. Zahiruddin Khan, the First Appellate Authority has based his order on two pieces of evidence and these are a "Faisala" by the Sarrafa Bazar Association Hyderabad dated 22-12-1971, and secondly the defence of the respondent/tenant had been accepted by the First Appellate Authority that the rent had been paid upto July, 1971 by the respondent on the basis that rent receipts were not issued by the appellant and that it had been proved that the appellant was also not issuing rent receipts to other tenants in the premises. It may be mentioned that a money order dated 28-8-1971 was sent by the respondent/tenant to the appellant being the rent for August, 1971 but the same was refused by the appellant.
3. As regards the "Faisala" (Exh. 44), learned counsel for the appellant has attacked the same on the ground that this decision of the Sarrafa Bazar Association was not proved and that it was a concocted document. A perusal of the Exh. 44 shows that it is dated 22-12-1971, that is, after more than two months of the filing of the Rent Application on 14-10-1971 by the appellant. Then its title shows that a case was filed by the appellant against the respondent which appears to be unbelieveable as the appellant had already filed a Rent Application {{URDU TEXT}} ' before the Rent Controller and there was no earthly reason for the appellant to file an application before the Hyderabad Sarrafa Bazar Association for a decision. It is then mentioned in Exh.
44. That after making inquiries it was found that the rent had been regularly paid by the respondent to the appellant upto July, 1971 and that a sum of Rs, 600 was offered to the appellant as the rent from August, 1971 to November, 1971 but he refused to accept Rs, 600 on the ground that be wanted vacant possession of the shop as otherwise his case was already pending in the Court.
As observed earlier, after having filed the Rent case, there was no reason for the appellant to move the Hyderabad Sarrafa Bazar Association for a decision. Even otherwise there is no admission on the part of the appellant in the said Exh. 44 that he had received rent upto July, 1971. In the judgment of the First Appellate Authority it is observed that respondent's witness Abdur Rehman, who had written Exh. 44, had stated in his evidence before the Rent Controller that the appellant had admitted in, the meeting of the Sarrafa Association that he had received rent for the period ending July, 1971. However, after this observation the learned First Appellate Authority adds-"no such question was put to P. W. Suleman Exh. 30 (appellant) and hence whatever statement he is alleged to have made was not admissible in evidence". In the circumstances the First Appellate Authority was of the view, and it may be stated correctly, that as such question was not put to the appellant in cross-examination, his admission about receipt of rent upto July, 1971 according to witness Abdur Rehman is inadmissible in evidence. Further it is strange that in Exh. 44 it is nowhere mentioned that appellant Suleman had admitted that he had received rent upto July, 1971 but in his statement before the Rent Controller witness Abdur Rehman had stated that in the meeting of the Association the appellant had admitted that he had received rent upto July, 1971. If that were so, this fact should have been mentioned in Exh.
44. Further according to Exh, 44, on the basis of the statements of the parties and witnesses of the respondent (and not the witnesses of the appellant) it was found that the rent had been paid till July, 1971 by the respondent. In the circumstances, no reliance could be placed on Exh. 44 for proving that rent had been paid up to July, 1971 by the respondent or that the appellant had agreed to the decision of the Hyderabad Sarrafa Association as far as this dispute with the respondent was concerned. It may again be mentioned that having filed the Rent Case for ejectment it would be a conduct which would be unnatural for the appellant to approach the Sarrafa Bazar Association for a decision. Further Exh. 44 does not state that it was admitted by the appellant that rent had been paid upto July, 1971 by the respondent. In the circumstances Exh. 44 cannot be used against the appellant for establishing that rent had been paid upto July, 1971 by the respondent.
4. As regards the rent receipts not being issued, the First Appellate Authority has found that as the appellant was not issuing receipts to the other tenants of the premises, there was nothing extraordinary as far as the non-issuance of receipts to the respondent and if the respondent could not produce receipts it did not affect his defence. Further it was found by the First Appellate Authority that counter-foils of the rent receipts were not produced by the appellant. Firstly it may be mentioned that the Rent Controller came to the wrong finding that there was no evidence that rent receipts were not being issued by the appellant to other tenants. Two witnesses examined on behalf of the appellant namely P. W. Muhammad Iqbal and P. W. Zahoor Ahmad have stated that they were tenants of the same building of the appellant and that on rent being paid by them, the appellant has been issuing receipts to them. Admittedly no cross-examination of these witnesses on this point was done on behalf of the respondent and, therefore, this fact goes uncontroverted that as far as two other tenants were concerned, the appellant was issuing receipts to them. As regards the production of counterfoils, the appellant had stated that he did not keep any counterfoils. From this fact alone no adverse inference could be drawn that the appellant did not issue any receipts.
5. The plea of the respondent before the Rent Controller was that he was paying rent and that in fact he had paid the rent upto July, 1971 but receipts were not issued by the appellant. In Exh. 34, which is reply of the respondent dated 17-8-1971 of the two notices dated 11-8-1971 and 13-8-1971 (Exhs. 32 and 33) issued by the appellant to the respondent, the respondent had referred to disputes between the parties over several matters. If there were disputes between the appellant/landlord and respondent/tenant, there was all the more reason that the respondent should have been on guard as a reasonable tenant to obtain receipts or alse he should have sent the rent through money orders or deposited the rent with the Rent Controller. In the circumstances, on the basis of the evidence on record, in my view, the Rent Controller had come to the correct conclusion that the ejectment application should have been allowed on the ground of default and the order dated 28-9-1974 of the First Appellate Authority cannot be maintained and is liable to be set aside.
6. As a result this II Appeal No, 255/74 is allowed, the order dated 28-9-1974 in First Appeal No, 246 of 1973 is set aside and the order dated 23-10-1973 of the Rent Controller in Rent Case No, 289/71 is