MUHAMMAD NAEEM ANW AR, J. This civil revision under section 115 of Civil Procedure Code, 1908, has been preferred against the judgment and decree of learned Additional District Judge -IV, Mardan, dated 13.01.2014, whereby the appeal filed by the petitioners was dismissed, resultantly , the judgment and decree of learned Civil Judge-IX, Mardan, dated 03.04.2012, was upheld.
2. Facts, in brief, necessary for the decision of this petition are that the petitioners/plaintif fs have filed a suit for declaration to the effect that they are owners in possession of property bearing Khasra Nos. 1012, 1008, 1011, 1009 &1010, situated in the estate of Chak Shahbaz Ghari of Tehsil and District Mardan to the extent of 01 kanal 07 marlas, vide sale deeds dated 27.09.1962, thus, the respondents/defendants have got no connection with its ownership. Entries in revenue papers in their favour are against the facts and wrong, therefore, are inoperative upon their rights. Recovery of possessio n, if not found to be in possession or dispossessed during pendency of suit, perpetual injunction to the extent that respondents/ defendants be restrained from alienation of the suit property to anyone else was also prayed.
3. Respondents/defendants while appe aring through summon have contested the suit through their written statement on various legal and factual objections. Besides others, they have outrightly denied from deeds dated 27.9.1962 and have alleged that the same are forged and fabricated. It is pertinent to mention that joint written statement was filed by all the respondents/ defendants No. 1 to 7 on 08.12.2004, however , later on, respondent/defendant No. 1 has submitted cognovit on 17.10.201 1. After framing of issues, both the parties were directed to adduce their respective evide nce, in response to which they have produced their evidence and, at the end, the learned trial court through its judgment and decree dated 03.04.2012 has dismissed the suit of the plaintif fs/petitioners. Being aggrieved from the judgment and decree, an appeal was filed before District Judge, Mardan, which was entrusted to learned Additional District Judge-IV , Mardan, which also met the same fate. Still considering themselves discontented, the petitioners/ plaintif fs filed this revision petition.
4. Learned counsel for the petitioners while referring to the alleged sale deeds, i.e., Exh.PW 2/1 to Exh.PW 2/5, have contended that the predecessor in interest of the respondents/defendants, namely , Hussain Khan have sold his property in favour of Sultan Mehmood, predecessor in interest of plaintif fs/ petitioners, received sale consideration and possession was transferred to the vendee. According to him, the petitioners/plaintif fs have produced son of the petition writer , namely , Jamil Ahmad Khan, who has testified the signatures of his father Qudratullah. In the same way, statement of Ghulam Bahadar (PW-5) was recorded wherein he deposed that his father Minjowar became the witness of deeds mentioned above and testified the signatures of his father as witness on all the deeds. Likewise, statement of Sultan Said as PW-4 was recorded, who was the plaintif f No.2 and attorney of rest of the plaintif fs/petitioners, but despite of this cogent and direct evidence, the petitioners were non- suited by the learned courts below . According to him, the deeds were written prior to promulgation of Qanun-e- Shahadat Order , 1984, thus, only one witness was required to be produced which they did and as the possession has already been transferred to them since 1962, i.e., at the time of execution of the deeds, therefore, form of the suit being declaratory in nature was also correct but the courts below have discar ded their evidence, as such, the judgments and decree of the courts below are the result of misreading and non-reading of evidence, which deserve reversal. It was also contended by him that in the light of cognovit submitte d by one of the respondents/ defendants, their stance for the payment of sale consideration has been admitted, therefore, in accordance with Order XII rule 6 C.P.C, it was obligatory upon the trial court to have decreed their suit. Lastly , he submitted that thirty (30) years old documents have got strong presumption of truth but nothing was taken into account by the courts below , which resulted in grave miscarriage of justice. He relied on 2010 CLC 407, 2015 YLR 456, PLD 2006 SC 66 , 1997 SCMR 837 , 2004 MLD 827 , 2003 CLC 78 , PLD 2006 SC 318 and 2017 SCMR 98 .
5. As against that, learned counsel for the respondents/defendants contended that the sale deeds as alleged by the petitioners are forged and that their predecessor has never sold the disputed property to Sultan Mehmood.
According to him, Hussain Khan remained alive till 31.05.1986, but the petitioners never claimed their ownership regarding the suit property nor they have instituted suit till 1998. The petitioners could not prove the authenticity , correctness and genuineness of the alleged deeds nor the payment of sale consideration was proved, thus, they were rightly non- suited by the learned courts below .
6. Arguments heard and record perused.
7. As per record, the deeds Exh.PW 2/1 to Exh.PW 2/5, were scribed on 27.09.1 962, therefore, they were to be scanned in the light of section 68 of the Evidence Act, 1872, and not Article 79 of the Qanun-e-Shahadat Order , 1984. There were two marginal witnesses, namely , Minjowar son of Said Afzal and Rehan Shah son of Noor Ahmad Shah. At the time of recording of evidence, one of the marginal witness Minjowar , was stated to be dead whereas as per the evidence of petitioners, Rehan Shah son of Noor Ahmad Shah was alive and was residing in Shahbaz Ghari, who was also not relative of the petitioners, therefore, could be the best available evidence for the petitioners but for the reasons best known to them was not produced. In accordance with section 68 of the Evidence Act, 1872, only one witness was sufficient to prove the execution of the deeds Exh.PW 2/1 to Exh.PW 2/5. In these circumstances, inference can be drawn that had he been produced by the petitioners, he would not have deposed in their favour . The petitioners alleged that they have purchased the disputed property from one Hussain Khan in lieu of sale consideration, which, as per the contents of the deeds, has been received by Hussain Khan. The respondents have clearly denied not only the execution of deeds but also receipt of the sale consideration by their predecessor , so, burden to prove the payment of sale consideration was on the petitioners/plaintif fs but they have not brought on record even an iota of evidence in order to discharge their onus.
The other witness, namely , Ghulam Bahadar , who happened to be the son of Minjowar , has shown his ignorance even about the contents of the documents/sale deeds by specifically deposing that he being illiterate could not read the contents thereof. Likewise, he (PW-5) has not uttered even a word about the sale consideration. More significant aspect of the case was that special attorney for the petitioner (PW-4) in his examination in chief has deposed nothing in respect of the payment of sale consideration. By mere producing a single witness in accordance with section 68 of the Evidence Act, 1872, would not absolve the petitioners from proving the execution of deeds, especially , when it pertains to purchase of property . Nothing is available on record that when, where and in whose presence the sale consideration was paid to Husssain Khan. In absence of solid and tangible evidence, mere exhibition of Exh.PW 2/1 to Exh.PW 2/5 no weight could be given to the contention of the petitioners. To this extent, the petitioners have miserably failed to substantiate their claim. When the execution of the documents was denied then the petitioners were required to prove not only the contents of the documents/deeds to be true but in addition to that payment of sale consideration which was lacking on the part of the petitioners/plaintif fs, so, they were rightly non-suited. Reliance can be made to case law titled Abdul Khaliq vs. Muhammad Asghar Khan and two others( 1996 Lahore 367 ), wherein it has been held that:- "9. The argument that the possession of the appellant is protected in view of the provisions of section 53-A of the Transfer of, Property Act is devoid of merit for the reasons:--
(a) Payment of sale consideration has not been proved
(b) delivery under agreement to sell has not been proved; and
(c) agreement to sell itself remained legally unproved Therefore, equitable principle of section 53-A is not attracted in this case."
8. An equal important aspect of the case is thirty (30) years old document. As in the instant case, the execution of the documents could not be proved by the petitioners as per the standard of evide nce, therefore, mere thirty year age of the documents as per Article 100 of the Qanun-e-Shahadat Order , 1984, or section 90 of Evidence Act, 1872, does not make a document un-rebuttable or absolute proof. Such a document, according to the facts and circumstances of the case, is subject to proof. In the present case, the nature and contents of Exh.PW 2/1 to Exh.PW 2/5 despite presumption are not sufficient to grant the prayer of the petitioners. Reference can be made to the case law titled Jan Bahadar and others vs. Toti Khan and another (2007 SCMR 497) wherein it was observed that:-.
"It is not essential for a Court to attach the presumption of execution of a document more than 30 years old in all the cases without attending to the other relevant facts and circumstances of the case before raising such presumption and not merely because any such presumption was claimed, to be attached to such document. It was essential for the appellants/plaintif fs to have produced the original document and in case of failure to so do, plausible explanation for the non-production of the document or the same having been lost, destroyed or in the possession of any other person not capable to be produced should have been provided by applying or satisfying the Court at least for production of the c secondary evidence in the shape of copy thereof, which has not been done in the instant case, hence; attachment of presumption of the execution of the document was a matter of great care, caution to have been undertaken in the case involving rights of the parties to the property . The fact of' presumption may be weakened which tend to raise suspicion about the genuineness of the document."
In similar circumstances, this court in a case titled Mst. Zakia Begum vs. Mian Abdullah Shah (2014 YLR 1378 ) has held that:- "Mere the age of document is not the only yardstick. It should also be establishe d that it came out from proper custody and the same was signed or written by the person whose signature appear on it. Such presumption is always rebuttable and would not be extended to such like disputed document.
Such type of document could not be seen within the parameters of Article 100 of Qanun-e-Shahadat and the contents therein certainly would require evidence for proof."
9. The cognovit submitted by one of the respondents/defendants would not be helpful for the petitioners because the execution of document was straightaway denied by the defendants/respondents, so, when one of the defendant has made the statement in support of his cognovit and the petitioners intends to get any premium from such statement then he should have made (PV) as against respondents and would have been subject to cross examination even then his statement could be considered as corroborative piece of evidence and not conclusive.
Similarly , the contention of the learned counsel to the extent of Order XII rule 6 C.P.C is concerned, suffice it to say that the defendant, who admitted the claim of the petitioners could have alienate his own share in the property in favour of the petitioners and in such circumstances there was no need of decree in term of Order XII Rule 6 C.P .C.
10. As regard to the possession of the petitioners of the disputed property , it is evident from the record that no possession as per alleged deeds have been proved to have been transferred to the petitioners, however , as they were in possession being tenant of Hussain Khan, therefore, this could not be considered within the meaning of Section 53-A of the Transfer of Property Act, 1882.
11. The case law relied upon by the petitioners is not applicable to the facts and circumstances of the case as discussed above.
12. As there are concurrent findings of the learned courts below with respect to factual aspect of the case and within the meaning of Section 115 of the Civil Procedure Code, 1908, High Court could only interfere with concurrent findings when the case falls within exceptional clauses. Under sectio n 115 C.P.C jurisdiction of High Court is limited and restricted to the cases where two courts below have misread the evidence or excluded from consideration material piece of evidence having bearing on the facts of the case. Wisdom is drawn from the precedents reported as Altaf Hussain vs. Abdul Hameed (2000 SCMR 314) and Aziz Ullah vs. Gul Muhammad Khan (2000 SCMR 1647 ). Parameters of section 115 C.P.C have also been settled by the Supreme Court in case titled Abdul Mateen vs. Mst. Mustakhia 2006 SCMR 50 , wherein it was held that:- "There is no cavil to the proposition that the concurrent finding on a question of fact or mixed question of law and facts, if is found suffering from misreading or non-reading of evidence or based on no evidence or. inadmissible evidence, the High Court in exercise of the revisional jurisdiction should correct the error committed by the subordinate Courts but in absence of any defect of misreading or non-reading of evidence in the concurrent finding of two Courts on such question, the interference of the High Court in the civil revision would amount to improper exercise of revisional jurisdiction. This is settled law that re-examination and reappraisal of evidence is not permissible in revisional jurisdiction even if conclusion drawn by the subordinate Courts on a question of fact was erroneous. The revisional power of High Court is exercised for correcting an error committed by the subordinate Courts in exercise of their jurisdiction and mere erroneous decision would not call for interference unless it is established that the decision was based on no evidence or the evidence relied upon was inadmissible or the decision was perverse so as to cause grave injustice. This is settled law that the High Court in revisional jurisdiction cannot upset the concurrent findings of fact by means of re-examination of evidence and in the present case, the perusal of record would not show any misreading or non-reading of evidence brought on the record by the parties or suggest that the Court of first instance and the Appellate Court had drawn wron g conclusion from the evidence calling for interference of the High Court in its revisional jurisdiction."
14. I have not been able to find out any illegality or material irregularity or any misreading/non-reading of evidence or any jurisdictional error or defect in the impugned concurrent findings of the learned courts below . Resultantly , this revision petition is dismissed with no order as to costs.