MUHAMMAD NAEEM ANW AR, J.----The petitioners have challenged the judgment and decree of the learned District Judge, Nowshera dated 21.05.2009, by which, the appeal, filed by the respondents, was accepted and the suit was decreed.
2. Brief facts of the case are that Mst. Nishat Begum / respondent No.1 has filed a suit by claiming therein that she is the owner in possession of 1/4th share in the disputed property bearing Khasra(s) No.1978, 1979 and 1980, measuring 158-Kanals 04-Marlas of the estate of Behram Kaley District, Nowshera, by holding that Haji Nabi Ameen (father in law of respondent No.1), has given her 1/4th share in the disputed property , in lieu of dower , for which, the proper entries were made in Nikah Nama, when she and respondent No.2 (Fazam Amin) were entered into the contract of marriage on 04.03.1969. In columns Nos.15 and 16, the particulars of the disputed property were described, however , as no mutation was attested in her favour , therefore, she intends to get mutate of the property in her favour . The suit was conte sted by the petitioners on various legal and factual objections. One of the defendant/respondent No.2 has given the cognovit in her favour . After recording of evidence, the learned Trial Court has dismissed the suit, filed by the respondent No.2, however , on appeal, the findings of the learned Trial Court, was reversed and the suit was decreed, hence, the instant petition.
3. The learned counsel for the petitioners contended that Haji Nabi Amin has never given the disputed property to respondent No.2/plaintif f in lieu of dowe r and he never remained signatory of Nikah Nama (Ex-PW -5/1) dated 04.03.1969, regarding which, when the respondent No.2/plaintif f produced PW-5 namely Muhammad Ishfaq Ahmad who has categorically deposed in his examination in chief that Haji Nabi Amin has never given / transferred the disputed property and he has stated that he would never do it, he went upon to say that the alleged Nikah Nama (Ex-PW -5/1) was not placed on file through proper custody , Nikah Khwan and Nikah Registrar were not produced, as such, for the purpose of transfer of property on the strength of Nikah Nama in favour of respondents, no concrete, solid and reliable evidence was produced on the basis of which she could be held entitled for the decree.
He also added that the husband of plaintif f/respondent No.1, namely Haji Fazal Nabi has also not opted to enter into the witness box in order to depose in favour of respondent No.1, for which he had submitted his cognovit.
4. Conversely , the learned counsel for petitioner No.1 in support of the decree contended that the Nikah between the respondent No.1 and Haji Fazal Amin/respondent No.2, was solemnized and registered in accordance with the provisions of Muslim Family Laws Ordinance, 1961, as such, the Nikah Nama which was properly exhibited would be treated as registered deed and that the same being 30-year-old document, shall be presumed to be correct in accordance with the provisions of Qanune-Shahadat Order , 1984. The authenticit y and correctness attached to it could not be brushed aside on the touch stone of Article 103 of the Qanun-e-Sha hadat Order , 1984 and that the presence of Haji Nabi Amin in the Nikah ceremony was not only proved from the statement of the witnesses produced by respondent No.1 but also Haji Nabi Amin was signatory to Ex-PW -5/1, for which, he referred to application/CM No.879-P/2020 and contended that at the foot of Nikah Nama, Haji Nabi Amin had signed the Nikah Nama. To fortify his arguments, he relied upon the judgment, rendered in an un-reported Civil Revision No.699- P/2013 dated 12.05.2017 of this Court, 2017 SCMR 1476 , 2014 SCMR 630, 2015 SCMR 21, 2004 SCMR 1059 , 2014 SCMR 1217 , 2017 SCMR 1217, PLD 2010 Lah. 119, 2008 CLC 803,.2020 CLC 952, 2004 SCMR 1591 , 2015 SCMR 1, 2020 SCMR 202, 2020 SCMR 1391, 2007 SCMR 996, 2000 SCMR 1574 , PLD 1996 Peshawar 64 and PLD 1986 Peshawar 1 .
5. Arguments heard and record perused.
6. Perusal of record reveals that the suit of the respondent No.1 was based upon two deeds i.e. Ex-PW -7/1 and Ex- PW-5/1. Admittedly , Ex-PW -7/1 was discarded by both the learned Courts below and respondent No.1 has not challenged the findings of the learned appellate Court which has attained finalit y, therefore, only document i.e. Nikah Nama (Ex.PW -5/1) would be relevant for decision of this revision petition. The marriage of respondent No.1 and Haji Fazal Amin is undisputed fact, however , the fixation of dower amount and the transfer of property in lieu thereof has mentioned in columns Nos.13, 15 and 16 of Nikah Nama, were required to be proved by the respondent No. 1. Respondent No.1 produced 10 witnesses including her special attorney from whom, PW-1, PW- 2, PW-4, PW-6, PW-7, PW-8 and PW-9, who were the witnesses of Ex-PW -7/1, which has already been decided against plaintif f/respondent and being not challenged requires no discussion.
7. Now the remaining evidence pertaining to EX-PW -5/1, as relied upon by the respondent No.1, shall be evaluated. Though, PW-2 has deposed in respect of Ex-PW -7/1, however , in cross-examination he has categorically admitted that Haji Nabi Amin, his father has not signed the Nikah Nama, similarly , the PW-5 in his cross-examination deposed that the father of Fazal Amin namely Haji Nabi Amin has stated in his presence that he has not given the disputed property to respondent No.1. PW-6 has deposed that he was witness to Ex-PW -5/1, however , he does not remember that the disputed property was mentioned in Nikah Nama, to have been given in lieu of dower . The statement of Farman as an attorney for respondent No.1 was recorded, who deposed that Haji Nabi Amin had died somewhere in 1994/1995, who in his cross-examination has stated that he is the friend of Fazal Amin (respondent No.2), who has requested him to depose in favour of respondent No.1. On the strength of aforementioned evidence, respondent No.1 claims to be owner of the disputed property . Record further reveals that as per Jamabandi for the 1952/1953 of the estate of Behram Kaley , Nabi Amin and Muhammad Amin were the owners of half of the disputed property while the remaining half share was the owne rship of Fazal Qadir , calculation of which depicts that Haji Nabi Amin was the owner to the extent of 38-K. It is not disputed that Haji Nabi Amin has left behind Hazrat Amin, Fazal Amin (sons), Mst. Mukhtar Kareem, Mst. Naseem , and Mst. Nusrat Bibi and Mst.
Shamim Bibi as daughters, from whom, Fazal Amin happens to be the husband of respondent No. 1.
8. It is pertinent to mention here that the joint properties of the legal heirs of Haji Nabi Amin, situated in the estate of Behram Kaley , were remained the subjec t matter of partition proceedings through application No.64/9, instituted on 17.07.2003, for which, Fazal Amin, the husband of respondent No.1 was a party , wherein, Fazal Amin, in his written reply , has categorically stated that the disputed property was given to her wife Mst. Nishat Begum (respondent No.1) in lieu of dower , however , the contention of Fazal Amin was not accepted and ultimately , the partition was allowed on 07.06.2004. Though the suit was filed on 05.05.2004 and the disputed property along with other properties of the estate of Behram Kaley , were ordered to be partitioned, however , neither the partition proceedings nor the entries in the revenue papers were challenged through the instant suit. The main reliance of respondent No.1 was on the entries of Nikah Nama and that the same being 30-year-old document would be presumed to be correct as per provisions of Article 100 of the Qanun-e-Shahadat Order , 1984. Mere fact that a document is 30 year old is not sufficient to hold about the correctness and genuineness of the documen t for the reason that whenever , a 30 year old document is challenged then the party who is beneficiary of the same document is required to prove the same, when the witnesses of respondent No.1 has negated her version then, the said document could hardly be considered to be proved one. Admittedly , in the life time of Haji Nabi Amin, the suit was not instituted. The scribe of document being abroad was also not produced. No tangible. concrete and solid evidence is available on record to substantiate and corroborate the version of respondent No.1, especially in the circumstances that when the signature of Haji Nabi Amin on Ex-PW -5/1 was also disputed. It is pertinent to mention that Haji Nabi Amin was no- where cited as a witness of Nikah Nama (Ex.PW -5/1). The last part of Nikah Nama allegedly to be signed by Haji Nabi Amin is also doubtful, especially , when one of the witnesses of respondent No.1 has categorically stated that his father has not signed the Ex-PW -5/1/Nikah Nama. Mere age of the document would not be considered to be a gospel truth, when the genuineness of the document is disputed, it the duty of the Court to determine the question of its genuineness and correctness becau se age of the document alone would not amount to be a proof about the correct contents of such document. If genuineness of a document was susceptible to suspicion the Court could refuse to raise presumption and could ask for the proof of its contents. Findings of the learned lower Courts in this regard were not based on proper appraisal of law on the subject. Basic presumption of correctness was attached to Nikah Nama (Ex.PW -5/1) but when execution of the same was questioned, the beneficiary of Nikah Nama was legally bound not only to prove the exec ution of same but also the contents of it. In case titled "Ch. Muhammad Shafi v . Shamim Khanum" (2007 SCMR 838 ), wherein it was held: "It is settled law that 'presumption qua thirty years old document under Article 100 of Qanun-e-Shahadat Order , 1984 is permissive and not imperative. The Court must consider the evidence of the documents, in order to enable it to decide whether in any specific case it should or should not presume prope r signature and execution. It is settled law that the Court should be very careful about raising any presumption under Article 100 in favour of old documents specially when the same are produced during the trial of suits in which under proprietary rights are set up on the basis of such documents/deeds. It is also settled law that the Court may refuse to apply the presumption where evidence in proof the document is available, or where the evidence has produced and disbelieved" .
9. The Hon'ble Supreme Court in Mst. Naseem Fatima's case (PLD 2005 Supreme Court 455) has held that: "12. The third one is the privilege, claimed by the petitioner to the effect that it was a thirty years old document, to which certain presumptions are attached under Article 100 of Qanun-e-Shahadat, 1984. It would be convenient to reproduce Article 100 as follows:- "100. Presumption as to documents thirty years old.---Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers papers, the Court may presume that the signature and every other part of such documents, which purports to be in the handwriting of any particular person is in that person's handwriting and in the case of a document execute d or attested. That it was duly executed and attested by the person by whom it purports to be executed and attested.
Explanation.............."
13. A perusal of the above section would indicate that the required presumption at the first place is completely rebuttable. Secondly the presumption is attached only to a document which purports to or is proved to be thirty years old. Thirdly it must come from proper custody . Fourthly the Court has a discretion to presume that the signature and every other part of such document, which purports to be in the hand-writing of any person, is in that person's hand writing and further that it was duly executed by the person by whom it purports to be executed"
10. Adverting to the case in hand neither the document was produced from proper custody nor the witnesses thereof appeared before the Court, especially when the plaintif f's own witness has not deposed confidently in her favour , then mere age of a document would not be sufficient for entitling respondent No.1 as owner of the property .
On the basis of aforementioned principle of law as held by the Supreme Court for application of law of 30 year old document I am not convinced that plaintif f respondent No.1 has proved her case, therefore, the unreported judgment of this Court relied upon by respondent No.1 could not favour him, being distinguished from facts and circumstances of the case.
11. Thus, for the reasons discussed above, the instant revision petition is allowed, the judgment and decree of the learned Appellate Court is hereby set aside and that of learned Trial Court is restored with no order as to costs.