MUHAMMAD KHALID MEHMOOD KHAN, J.---The Civil Revision has been directed against the judgment and decree dated 20.12.2003 passed by the learned appellate court whereby the learned appellate court has set aside the judgment and decree dated 26.4.2003 of the learned trial court.
2. The petitioner filed a suit for declaration to the effect that he is owner in possession of plot of land measuring 2 Kanals 10 Marlas situated in Square No,3 Killa No,5-min Factory Area, Pir Mahal Tehsil Kamalia more particularly detailed in the plaint, (hereinafter referred to as the suit property), on the basis of a Transfer Order dated 20.4.1974, (hereinafter referred to as the T. 0), the respondents are trying to dispossess the petitioner and are claiming that the suit property belongs to them, hence a decree for declaration with perpetual injunction as consequential relief restraining the respondents to interfere in the .Petitioner's ownership and possession is prayed. The respondents opposed the suit and claimed that the suit property, belongs to Provincial Government and was not an evacuee one, hence the Settlement and Rehabilitation Department has no authority to transfer the suit property to the petitioner. The learned trial court, out of divergent pleadings of the parties, framed the following issues:-- "ISSUES:
1. Whether the plaintiff is owner in possession of the suit property detailed in the headnote of the plaint and the defendants have no concern what so ever with it? OPP
2. Whether the plaintiff has got no cause of action and locus standi to file the suit? OPD
3. Whether this court has got no jurisdiction to try the suit? OPD
4. Whether the order dated 30.5.1961 of DSC allotment order and PTO are bogus, fraudulent documents? OPD
5. Whether the value of the suit for the purpose of court fee is incorrect, if so, what is its correct valuation and its effect?OPD
6. Whether the suit property is owned by the Provincial Government and is not an evacuee property? OPD.2.
7. What is the effect of P.O. No,4 of the written statement? OPD.2.
8. Relief."
3. Both the parties adduced their respective evidence both verbal and documentary and the learned trial court vide judgment and decree dated 26.4.2003 decreed the suit. The respondents filed appeals against the judgment and decree dated 26.4.2003, the learned appeal court on 20.12.2003 allowed the appeals and dismissed the suit.
4. Learned counsel for petitioner submits that the petitioner is owner of suit property on the basis of a Transfer Order issued by the Deputy Settlement Commissioner on 20.4.1974 who alone was competent to transfer the evacuee property. Learned Appellate Court has fallen in error while declaring that Karam Chand.s/o Raam Lal no doubt purchased the property measuring 17 Kanals 16 Marlas in Square No,3 Killa Nos.5-6 against consideration of Rs,10,000/- in an open auction held in 1944 and deposited the auctioned money but Karam Chand deposited auctioned money on expiry of six weeks and such Karam Chand failed to fulfill the condition of auction, in this way Karam Chand defaulted in the payment of auction money, consequently auction was not confirmed in his name, hence the suit property was not an evacuee property. Learned counsel submits that to declare the auction confirmed in favour of Karam Chand or is not the domain of learned Civil Court nor this was the issue before the Civil Court, the issue before the Civil Court is whether the petitioner is the owner in possession of the suit property or not? Learned counsel has referred letter Mark-A and B dated 08.6.1951 and 11.3.1952 of Provincial Government which confirm that property abandoned by the evacuees in colony areas in the Punjab which have been resumed by Government for breach of conditions applicable to those areas, should be treated as an evacuee property for the purpose of resettlement of refugees and will be allotted to them under the Rehabilitation Settlement Scheme. Learned counsel submits that if for the sake of arguments it is assumed that balance amount of Rs,8000/- was not deposited within the prescribed period, the sale was not confirmed, even then the property will be deemed to be evacuee property. Learned counsel submits that the T.O. Is a final document of transfer of Evacuee Property and remain operative unless set aside by the competent Court of Law. The T.O. Even could not be cancelled and withdrawn by its issuer except after establishment of fraud that too before a competent court of law. Reliance is placed on Syed Ahmad Nusrat Ullah and others v. Member, Board of Revenue and others (2002 CLC 384), Pakistan Transport Company Ltd. v, Walayat Khan through Legal Heirs (2002 SCMR 1470); Province of Punjab and others v. Sub. Divisional Forest Officers and others (1991 SCMR 1426), Masooda Begum through Legal Heirs v. Government of Punjab (PLD 2003 SC 90). The petitioner's Transfer Order is still intact and has not been cancelled or set aside by the competent court of law and as such the learned appellate court has wrongly dismissed the suit. D.W-3, Head Clerk of Settlement Department, respondents' own witness while appearing in witness box has admitted in cross-examination that the document of T.O. And all others documents including P.T.O issued in favour of petitioner and in favour of Karam Chand are not forged and all these documents are available with the Settlement and Rehabilitation Department's file. Learned counsel adds that the impugned judgment is bad in law and is liable to set aside.
5. Learned Additional Advocate General Punjab submits that the suit property belongs to Provincial Government, it was never been declared the evacuee property. The document as to T.O., P.T.O. And all other documents are fake and forged. The petitioner has not deposited the price of land in his possession with the Settlement Department and as such the learned Appellate Court has rightly set aside the judgment of learned trial court. The learned Law Officer further submits that the learned Appellate Court was having the jurisdiction to examine the title of evacuee owner and has rightly held that the evacuee owner has failed to fulfill the terms and conditions of the auction Karam Chand no doubt paid the auction money of Rs,10,000/- but after the expiry of six weeks.
Learned Law Officer relied on Muhammad Saddiq (deceased) through L.Rs, v. Mushtaq and others (2011 SCMR 239).
6. Learned Counsel for petitioner submits that he has filed an application C.M. No:1-C/2008 for adducing additional evidence although it is not necessary to produce the additional evidence as the learned Appeal Court has travelled beyond its jurisdiction while holding that auction in favour of Karam Chand evacuee was not finalized but for establishing the fact that suit land was evacuee land, the certified copy of the Deputy Custodian Evacuee Property, Lyallpur, in a petition "State v.
Rehabilitation Authority and Fateh Muhammad son of Umar Din and Inayat Ali son of Nizam Din caste Arain resident of Pir Mahal District Layallpur" dated 27.3 1962 is required to be produced or this honourable Court may take the judicial notice of the certified copy of the judgment of Deputy Custodian, The judgment of Deputy Custodian confirms that the State filed a petition against Rehabilitation Authority and others including the petitioner praying that the land measuring 17 Kanals 16 Marlas in Square No,3, Khasra No,5-6-min and Khasra No,18-min measuring one Kanal 16-Marlas Khasra No, 113-min measuring 30-Kanals 16-Marlas situated in Chak No,779/GB, Factory Block Pir . Mahal Toba Tek Singh District Lyallpur, is non-evacuee property. The learned Deputy Custodian vide judgment dated 27.3.1962 dismissed the Provincial Government complaint declaring that property is evacuee one, hence square No,3 out of which the petitioner is allotted land measuring 2-Kanals 10-Marlas is a declared evacuee property. Learned Counsel submits that the order dated 27.3.1962 is the certified copy of the order and this Court can take the judicial notice of the same instead of remanding the case to learned Trial Court for recording the evidence.
Learned law Officer opposed the petitioner's application and submits that why the petitioner has failed to produce the same at time of recording his evidence, the petitioner's learned counsel submits that the onus to prove that suit property was not an evacuee was on the respondent and it was the duty of the respondent to produce the said document. Learned Law Officer however is unable to deny that order dated 27.3.1962 is a certified copy.
7. Heard, record perused
8. The petitioner filed a suit praying as under; ' "It be declared that petitioner is in possession of suit land as owner of the same and the respondent be restrained to interfere in his possession."
9. The respondent No.1 Province of Punjab claimed that petitioner has not deposited the price of land in Government Treasury nor the petitioner is in possession of the suit property, the respondent No,2 claimed that suit property is not evacuee property and the T.O. In favour of the petitioner is fraudulent one. In these circumstances the petitioner has to establish that he is the valid transferee of the suit land and the respondent No,2 has to prove that suit property is not evacuee property nor it was transferred to the petitioner. The learned trial court decreed the suit but the learned appeal court dismissed the suit declaring that suit property is not the evacuee property assuming that auction held in 1944 in favour of Karam Chand was not finalized. The petitioner has filed an application under Order XLVII, Rule 27, C.P.C. For producing certified copy of the order dated 27.3.1962 of the Deputy Custodian Lyallpur which shows that the issue of evacuee or non-evacuee property was finally settled by the competent court of law. The order shows that State (Province of Punjab.) filed complaint against Rehabilitation authority, Fateh Muhammad son of Umer Din and Inayat Ali son of Nizam Din (Petitioner) claiming that property measuring 17 Kanal 16 Marla in square No, 3, Khasra No, 5, 6 min, and Khasra No, 18 measuring 1 Kanal 6 marla, Khasra No, 113 min, measuring 30 Kanal 16 marla in village Chak No, 729/GB Factory Block Peer Mehal Toba Tek Singh District Lyallpur is non-evacuee property. The Deputy Custodian on 27.3.1962 decided the issue as under and also held; "In continuation Punjab Government corrigendum No,5021-C, dated the 12.11.1951 and Punjab Government Memorandum No,1231-C, dated the 4th March, 1952, the Governor of the Punjab is pleased to order that all grants respective of whether payment has been made or not for acquisition or proprietary or occupancy rights, should be treated as evacuee property for the purposes of Rehabilitation Settlement Scheme."
10. The petitioner intends to produce the certified copy of the order dated 27.3.1962 of the Deputy Custodian Lyallpur establishing that suit property is not evacuee property, the onus of issue No,6 is on respondent No,2 and the respondent No,2 has failed to produce any document showing that suit property is not evacuee property but even in the absence of any document the appeal court has held that suit property is not an evacuee one holding that auction in favour of Karam Chand was not confirmed. The argument of learned Law Officer is that as the document was not formally tendered in evidence, this court cannot take the judicial notice of the certified copy of the order.
11. The objection of respondent is not sustainable as the onus to prove issue No,6 is on respondent No,2, the respondent No,2 was party in the proceedings before Deputy Custodian but they withheld the said document knowingly that suit property is an evacuee property, the petitioner respondent is claiming ownership on the basis of Exh. P-11 T.O. Dated 20.4.1974 which is still admittedly an operative document and in the absence of onus to prove that suit property is not evacuee petitioner has rightly not produced the document, when the learned Appeal Court has held that suit property is not the evacuee property then to produce the said document become necessary for the consideration of court. The legal issue which requires consideration is the admissibility and production of the certified copy of the order of the Deputy Custodian. The said document proves that issue of evacuee or non-evacuee property was resolved long before the filing of instant suit. In order to appreciate the legal proposition it will be advantageous to reproduce and examine following articles of Qanun-e-Shahadat Order, 1984:-- "Article 47. Relevance of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated. Evidence given by a witness in a judicial proceedings or before any person authorized by law to take it is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable.
Provided that:--- the proceeding was between the same parties or their representatives-in-interest; the adverse party, in the first proceeding had the right and opportunity to cross-examine; the questions in issue were substantially the same in the first as in the second proceeding.
Explanation. A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this Article.
Article 85 of the Qanun-e-Shahadat Order 1984 reads as follows:--
85. Public documents. The following documents are public documents;
(1) documents forming the acts or records of the acts.
(i) of the sovereign authority;
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative judicial and executive, of any part of Pakistan, or of a foreign country;
(2) public records kept in Pakistan of private documents;
(3) documents forming part of the records of judicial proceedings;
(4) documents required to be maintained by a public servant under any law; and
(5) registered documents the execution whereof is not disputed.
(6) Certificates deposited in a repository pursuant to the provisions of the Electronic Transactions Ordinance, 2002].
Article 87 of the Qanun-e-Shahadat Order, 1984 reads as follows:--
87. Certified copies of public documents.---(1) Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefore, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.
Explanation.---Any officer, who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this Article."
12. The case of the petitioner is deriving title to suit property on the basis of T.O. a document issued by the Deputy Settlement Commissioner Lyallpur, who admittedly alone is having the jurisdiction and authority to transfer the evacuee property, It is the respondents who are claiming that the suit property is not an evacuee property and onus to prove this fact was on respondent No,2, respondent No,2 has failed to produce a single document to this effect and intentionally withheld the order which declares the property evacuee on the complaint of respondents, the Civil Court decreed the suit but the appellate court set aside the decree and held that suit property is not evacuee as the auction in favour of Karam Chand was not finalized, the status of the suit property was finally laid to rest by the orders of the Deputy Custodian dated 27.3.1962 who was having the jurisdiction under the law to declare the status of the suit, the respondent was aware of the decision of the Deputy Custodian but they have not intentionally produced the document dated 27.3.1962, the learned appeal court has dismissed the suit on the ground that suit property is not evacuee, hence the petitioner is justified to produce the said document for the consideration of this Court, the document is a certified copy of the order of Deputy Custodian and has been issued by the Deputy Settlement Commissioner the respondent No,1 and there is no apprehension that the document is forge and fake as it is available in .Respondent's file. It is settled principle of law that certified copy of a public document is a proof of the contents of the public document and a presumption of genuineness is attached to the certified copy of public document if not rebutted otherwise.
13. In Khan Bahadur and 2 others through his Legal Heirs v. Ahmad Khan and others (1992 SCMR 1362), the Hon'ble Supreme Court of Pakistan held as under: --- "It is well settled that certified copy of a registered deed evidenced in private transaction is admissible in evidence. It is designed for the purpose of proving the contents of original and shall be admissible without any further proof, as public documents are acts of public functionaries.
Section 51 of the Registration Act provides that, all Registration Officers to keep certified books in which all documents that have been registered are to be entered. According to section 57(5) of the Registration Act, and copies given under this section shall be signed and sealed by the Registering Officer and shall be admissible for the purpose of proving the contents of the original documents'.
A registered copy is really a copy of an entry in the Register which is itself a copy of the original document. There is no evidence to controvert the genuineness........"
14. In Mahmood Akhtar Kiani v. Azad Jammu and Kashmir Government (1998 SCR 310), the Hon'ble Supreme Court of AJK held that question of admissibility of a document being a question of law can be considered by the Court in appeal.
15. In Pribhadinomal Melhumal v. Mt. Chitti (AIR 1933 Sindh 379) it was observed as under: "a document produced by a party, referred to in the arguments and made use in the judgments of the Courts below, cannot be held to be inadmissible in evidence merely because the same was not exhibited- the non-exhibiting the document is merely an irregularity which is not incurable."
16. In view of the above discussion, I am of the firm view that this Court can take judicial notice of order dated 27.3.1962 of Deputy Custodian Lyallpur while deciding the revision petition.
17. Even if the document dated 27.3.1962 is not considered, the Appellate Court has wrongly held that auction in favour of Karam Chand was not finalized as it was not the domain of the appellate court after accepting that Karam Chand deposited the entire auction money but it was after the expiry of six weeks, the relevant authorities who accepted the balance amount even after the expiry of six weeks condoned the delay if any and the Appeal Court could not reopen the said matter. The B case of the petitioner is that he is owner of suit property on the basis of Exh. P-10 the T.
O. The respondents' stance is that property in dispute is not evacuee, hence the Settlement and Rehabilitation has no authority to transfer the suit property to petitioner. The petitioner produces Exh. P-1 which shows Provincial Government on 15.4.1942 auctioned land measuring 17- Kanal 10- Marla against consideration of Rs,10,000/- to one Karam Chand son of Ram Lal Arrora of Peer Mahal T.T.Singh District Lyallpur. Exh. P.2 is a Challan Form showing that Karam Chand deposited Rs,2,000/- in Government Treasury as per terms of the auction, Exh. P-3 the condition of sale Exh: P- 4 is challan of payment of Rs,8,000/- in Government treasurey, all these documents confirm that the respondent Government auctioned the property measuring 17-Kanaal 10-Marla out of square No,3, Killa Nos.5 and 6 and it is admitted fact the suit land is the part of land transferred to Karam Chand. Ex.P-5 is the petitioner's application for transfer of evacuee land, his application was accepted on 31.5.1961, Exh. P-6 is allotment letter, Exh. P-7 is Provisional Transfer Letter dated 18.9.1961 showing that Settlement department allotted land measuring 2-Kanal 10-Marla out of square No,3 Killa No,5-min, Factory Area Peer Mahal, Exh.P-8 is application for verification of the T.O, the Settlement Department verified the T.O on 21.11.193(sic), Exh.P-9 is order for fixation of price of the suit land, Exh.P-10 is the T.O, Exh.P-11 is the copy of Register showing the deposit of amount Rs,19,350/- of the suit land. The respondents produced DW-3 Muhammad Sharif Head Clerk of Settlement Branch Toba Tek Singh, he admits in his cross-examination that the original record is before him and in the record not a single document or report is available which shows . That transfer document issued to petitioner are fake. It is correct that suit land was allotted to non Muslim but he has not taken proprietary rights, It is correct that property which was not finally transferred to Non-Muslims were declared the evacuee properties, these were allotted to evacuees and himself explained that with the permission of Custodian, Exs. P-1, 2, 3, 4, 5 and are true copies of the original and all originals are available in the record, Exh. P-7 is the PTO issued to petitioner, It is correct that Exh. P-8 is as per record, Exh.P-10 is also correct as per record. The file is in his possession shows that no inquiry was conducted against the transfer of property in favour of the petitioner. DW-3 in reply to cross-examination of the counsel of respondent No,2 no doubt stated that record of deposit of transfer price is not available in the record but in reply to cross examination of petitioner counsel he admitted that Exh.P-11 is available in the record and department has issued the certified copy Exh.P-11, the original is available in the record, Exh.P-11 is the copy of register which shows Inayat Ali son of Nizam Dim has deposited Rs, 19,350/- being the price of land measuring 2 Kanal 10 marla, the availability of original Register in the record is sufficient to establish that Dw-3 is telling lie, the document Exh-P 11 establish that petitioner has deposited the price of land and after that T.O. Was issued. The D-W2 Patwari admits that petitioner has stored his wood on the land, he is not aware whether the respondents have filed any suit for cancellation of T.O., it is admitted fact on record that respondents have not filed any suit for the cancellation of T.O. before any competent court c of law. After the repeal of Evacuee Property and Displacement Persons Laws (Repeal) Act (XIV) of 1975 the Settlement Authorities have no jurisdiction to cancel the T.O., reliance can be placed on Dr. Muhammad Iqbal and 9 other's case (supra) (PLD 2010 Lahore 249).
18. The above said facts establishes that suit property is an evacuee property, it was transferred to petitioner and final transfer order T.O. Has been issued against the receipt of price and the T.O. In favour of petitioner still holds field and has not been cancelled or set aside by any competent court of law. The learned appeal court has wrongly held that Karam Chand has not paid the auction money as per terms of the auction, on the basis of two notification mark A and B issued by the Provincial Government the suit property is evacuee further the Deputy Custodian on the complaint of Provincial Government on 27.3.1962 declared the suit property evacuee, hence the learned trial court has wrongly declared that suit property is not evacuee property.
19. From the above said records and evidence it is fully established that suit property is an evacuee property and was rightly transferred to petitioner, the T.O was issued against payment of price of land. The ' petitioner is in possession of the property as owner of the same. In view of the above the petition is allowed, the impugned judgment and decree is set aside and the judgment of learned Civil Court dated 26.4.2003 is restored.