ZAFFAR HUSSAIN MIRZA, J.--The dispute in this appeal relates to the occupancy tenancy in agricultural land measuring 72 Kanals is Marlas, situated in village Nawan Shahpur, District Gujrat.
Admittedly this land was held by one Fazal Beg as an occupancy tenant. Ha died issueless in 1928 and in accordance with the customary law the land devolved on his widow Mst. Qasim Bibi as a life estate. However, she also died in the year 1949.
2. Mehtab Beg and others, respondents herein, claiming to be the colla--terals of Fazal Beg filed a suit against the present appellants and some others for a declaration to the effect that they alongwith Akbar Beg and Sarwar Beg also collaterals of the said Fazal Beg, were in possession of the land in dispute as occupancy tenants by virtue of their inheritance from Fazal Beg, the last male-holder who died issueless. The appellants who are the landlords of the land resisted the suit and repudiated the claim of the respondents on the plea that Mst. Qasim Bibi having died, leaving her surviving no heirs, the occupancy rights in the land had become extinct. This suit was dismissed by the Senior Civil Judge, Gujrat on 20-7-1955. The respondents challenged the decree dismissing their suit, in an appal, but their appeal was dismissed by the Additional District Judge, Gujrat, on 8-2-1972. However, in Second Appeal, the respondents succeeded in obtaining the reversal of the judgment and decree passed by two Courts below and the suit to the extent of 5/6 share of the land in dispute was decreed, while to the extent of the remaining I '/6th share in the land, which was possessed by Chiragh A.I one of the joint landlords remained unaffected, since he had died during the pendency of the First Appeal and his legal representatives were not impleaded as respondents in the Second Appeal, with the result that the suit remained dismissed in respect of 1 /6th share.th
3. Respondents and Fazal Beg the last male-holder were descendants of the common ancestor by the name Shamser Beg 'the latter had two sons. Noor Beg and Jewan Beg alias Jawaya.
Respondents Mehtab Beg and others are the direct descendants of Noor Beg who was their great grandfather, In the trial Court on the documentary evidence produced by the respondents in support of their case, it was admittedly established that Jewan Beg son of Shamser Beg was in occupation of the holding in question in the year 1857. But the contention of the appellants (landlords) was that the evidence thus produced did. Not show that the common ancestor Shamser Beg ever occupied the land. The respondents relied upon the presumption of jaw followed in Gunda Singh and others v. Jawand Singh and others (AIR 1939 Lah. 171). In this case Abdul Rashid, J. Reiterated the rule laid down in an old case Sobha Singh v. Nand Singh ((1906) 56 P R 1906), in which it was held "that there was a strong presumption that the land held by a tenant at the time of regular settlement and of which he was recorded Morousi was inherited by him from his father". However, on the basis of document Exh. D-19 being the copy of Chita Muzarian of 1837 which indicated a statement given by the landlords to the effect that Jawaya had been cultivating the land by its reclamation for the last 25 years, the trial Court came to the conclusion that "this indicates that Jawaya himself reclaimed the land and rebuts the presumption that his father occupied it". The High Court on a fresh and careful scrutiny of the documentary evidence disagreed with the view that prevailed in the Courts below. Learned Judges in the High Court referred to document Exh. P-1 which was a family settlement made by the two brothers, Noor Beg and Jewan Beg, whereby, in lieu of 6 Beghas of Banjar land, from 24 Beghas of the total area of the land, were relinquished by Noor Beg in favour of Jewan Beg and the latter surrendered his half portion of the house in favour of the other brother. The conclusion of the High Court was as under :- ''In the present case the possession of the parties over the land in dispute is very old and the area held by them was equal but for the compromise vide Exh. P-1. Since before 1858 the two brothers namely Jawaya and Noor Beg holding the property jointly in equal shares and mentioned as occupancy tenants, the presumption would be that they had inherited the rights from their father, meaning that their father had actually held the land in dispute."
4. Having reached this conclusion a learned Single Judge of the Lahore High Court, as earlier stated, accepted the appeal, setting aside the judg--ment and decree passed by the Courts below and decreed the suit to the extent already mentioned, by his judgment dated 16-7-1976.
5. Leave was granted by this Court by order dated 15-5-1979, to, examine the correctness of the conclusion reached by the High Court, by applying the rule of presumption, referred to above in the facts of this case, as it was contended on behalf of the present appellants that "there was absolutely no evidence to show that half portion of the house relinquished' by Jewan Beg in lieu of 6 Beghas of the Banjar land was ancestral qua him"
The other points considered fit for further examination were the interpretation and effect of the compromise Exh. P-1 on the rights of the parties, and whether) this document being a copy of the original, was at all admissible in evidence.
6. The crucial document on which the decision in the High Court has turned is the family settlement incorporated in the compromise deed Exh. P-1 dated 4-10-1845. The perusal of this document shows that Jewan Beg and Noor Beg sons of Shamser Beg were owners in equal shares of a house, and Jewan Beg relinquished his share in the house in favour of his brother, in lieu of 6 Beghas of Banjar land out of his share from 24 Beghas of land. As a result of the adjustment made by means of this document, naturally Jewan Beg came to occupy more area than his brother Noor Beg. The entire area of the land held by the two brothers jointly was 24 Beghas which converted into Kanals comes to 96 Kanals, so that each brother owned 48 Kanals. As a result of the family settlement incorporated in Exh. P-1, Noor's share was reduced to 24 Kanals and Jewan Beg's share was correspondingly increased from 48 Kanals .To 72 Kanals. Exh. P-1, therefore, contains intrinsic evidence that the two brothers, namely, Jewan and Noor sons of Shamser, jointly held 24 Beghas of land and a house, which was subjected to family settlement in the said document. The - first document prepared at the time of the settlement in the year 1857 is Exh. P-2, which truly reflects the consequential result of the family settlement, but for which the two brothers would have had equal share in the occupancy holding. Exh. P-1 shows that the total area of the holding jointly held by the two brothers was 24 Beghas which means 96 Kanals. 6 Beghas having been given to Jewan in the family settle--ment, Exh. P-2 shows an area 22 Kanals 8 Marlas in his name, whereas in the name of Jewan the area mentioned is 72 Kanals 13 Marlas. Learned counsel for the appellants referred to document D-19 which is a copy of the Chita Muzarian and argued that Jewan is shown to have broken the ground and cultivated the land himself, which leads to the inference that he did not inherit the tenancy rights from his father. Additionally reference was also made to the column of tenant in which the name of Jewan alone was mentioned and not that of Noor Beg. The reason as shown by the High Court is that after the settlement as evidenced by Exh. P-1, the two brothers did not hold the land jointly in equal shares any more, and apparently they started cultivating it separately after dividing the land. Learned counsel also referred to document Exh. D-23 which is the Khewat of the year 1857 but it may be pointed out that this is not the whole document but only a truncated version of the original entry contained in the record which was produced in the trial Court. Exh. P-3 examined from the original record of the trial Court shows that entries were made in the name of Jewan son of Shamser Beg, and Hattu and his brother Husna both sons of Noor. The latter stepped into the shoes of their father and were shown as holding 22 Kanals 8 Marlas. The grand total of the area of entire holding comes to 95 Kanals 1 Marla. The minor discrepancy seems to have arisen on the actual measurement by Karams on the field. A perusal of the aforesaid documentary evidence, in our view, supports the findings of the learned High Court that the two brothers jointly inherited the property from their father and, therefore, the presumption of law does arise from this evidence that the common ancestor of the parties Shamser Beg was the person who had acquired the occupancy tenancy in the first place.
7. Learned counsel for the appellants has sought to challenge the aforesaid finding by arguing that the disparity- of the area entered in the names of the two brothers militates against the presumption of law relied upon, that no part of the land is shown to have been held jointly by the two parties, that nowhere in revenue record there is any claim by Jawaya or Noor Beg that the property came from their father Shamser, that the period of cultivation of the two brothers has been shown to be different, one for 25 years and the other for 4 years and lastly that if the tenancy was ancestral, then the revenue record would not have shown separate Khatas. All these submissions lose their force if the family settlement incorporated in the document Exh. P-1 between the two brothers is taken into account. Naturally after the settlement the area coming to the shares of two brothers was different and as found by the High Court, after having lost the status of equal co-sharers, the brothers may have cultivated separate portions of the land. Further in document Exh P-2 the period of cultivation as 4 years has no reference to Noor but to his son Hattu. The High Court rightly held that Exh. P-2 is of a much later date than the settlement Exh. P-1 between the two brothers. Mere absence of any entry in the record that the property devolved on the two brothers by succession from their father is not conclusive, for, the decision has proceeded on the basis of presumption of law already mentioned. Learned counsel referred us' to the case's of Ranbir Chand v. Mangal Singh and another (AIR 1929 Lah. 198). Bhagwan Das and others v. Shamsher Singh (44 1 C 433) and Bahadur and another v. Ram Singh ((1921) 60 I C 456) on the question of burden of proof which lies on the collaterals asserting that the occupancy has devolved through the common ancestor. However, that question has no significance, since the decision in this case proceeds on the basis of the documentary evidence produced by the respondents. He has further referred to Tara Singh v. Hazar Singh (AIR 1955 N U C 1005) and Khushi Rain and others v. Jagdip Singh and another (AIR 1952 Ph. 307) but the decision in these cases proceeds on their peculiar facts which are clearly distinguishable from the facts of the case in hand. No exception can, there- - fore, be taken to the finding in question.
8. Learned counsel has, however, contended that compromise deed Exh. P-1 cannot be looked into as evidence as the contents thereof have not been proved according to law. The submission is that the presumption of genuineness and proof of execution of a document under section 90 of the Evidence Act, does not arise in this case, as the original document was not produced before the Court but only a certified copy was tendered in evidence. We have been referred to the case of Basant Singh and others v. Brij kaj Saran Singh and others (AIR 1935 P C 132) in which it was laid down that "the section clearly requires the production to the Court of the particular document, in regard to which the Court may make the statutory presumption". This judgment has been analysed in the light of the prior as well as subsequent decisions in India as well as by the Privy Council, in Mst. Ghulam Maryam v. Malkanai Jannat (PL D 1967 Lah. 90) and an opinion has been expressed that, "if for some valid reason the ancient document is not produced and it is not possible to produce direct evidence of its due execution, it would be permissible for reasons of justice, equity and good conscience, to invoke every legitimate presumption which can reasonably be raised upon the facts and circumstances of the particular case, in favour of the execution of the original".
In this view the learned Judges held that "it would be incorrect to lay down as an inflexible rule that in no case, in which an ancient document is not produced in original, the salutary provisions of section 90 of the Evidence Act would apply". However, in our opinion it is not necessary to go into the question of law raised by the learned counsel, as the appellants ,are not entitled to raise this objection at this stage. We have not found in the record nor has the learned counsel pointed out to us, any objection taken at the trial to the admission in evidence of this document. Indeed from the copy placed on the printed record of this appeal it appears that the document was exhibited as Exh. P-1 on the record of the trial Court. There is nothing in the judgment of the trial Court indicating that any objection was taken as regards the proof of this document, on the contrary, the trial Court has referred to it as a proof in support of the fact that Noor Beg and Jewan Beg were the sons of Shamser Beg. It will, therefore, be fair to presume that the document was admitted in evidence without any objection from the appellants on the ground now being urged. Similarly no reference to any such objection appears in the judgment of the learned Additional District Judge, Gujrat, in First Appeal. The objection was taken for the first time in the memo. Of appeal before the High Court in Second Appeal. There is nothing, however, to show that the objection was pressed at the hearing. It further appears from the copy of Exh. P-1 placed on the printed record of this appeal that certified copy from the record of Collector, Gujrat, in some revenue appeal disposed of on 21-2- 1952 between the parties has been obtained. The purpose for men--tioning this fact is that if a certified copy of the original document which was available on the revenue record was produced before the trial Court and if an objection now raised had been taken at that stage, the respondents could have obtained the original and produced in Court or would have had an oppor--tunity to produce other proof of the execution of the document. The objection that the copy of an original document produced by way of secondary evidence does not satisfy the requirements of section 90, is in fact an objection as to the proof of a document, for the reason that section 90 of the Evidence Act raises a presumption inter alia, that the document was duly executed by the person by whom it purports to be executed. On fulfilling the prescribed conditions, a party producing such a document is relieved of the obligation of proving the document. But where the objection taken is not that the document is in itself inadmissible but that the mode of proof put forward irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof. Gopal Das v. Sri Thakurji (AIR 1943PC83) and Malik Din and another v. Muhammad Aslam (PLD1969SC136). In Abdullah and others v. Abdul Karim and others (PLD 1968 SC 140) this Court had pointed out that the Code of Civil Procedure provides for the admission of documents and it is now well-settled that if objection for a formal proof of a document had not been taken at the earliest point of time, it cannot be taken subsequently and certainly not in appeal. We have no hesitation, therefore, to hold that the appellants were not entitled to raise this objection before the high Courts or before this Court.
9. It was lastly urged on behalf of the appellants that the appeal before the High Court not being properly constituted, inasmuch as necessary parties were not impleaded as respondents, the appeal as against the present appellants (who were respondents before the High Court) was not maintainable and was liable to be dismissed on that legal ground. In this regard it may be mentioned that one Chiragh A.I who was one of the landlords of the suit land and was arrayed as a defendant alongwith the present appellants in the trial Court, died during the pendency of the First Appeal and his legal represen--tatives were substituted in his place before the first appellate Court. However, these legal representatives were not impleaded as respondents in the Second Appeal before the High Court, which according to the respondents herein was due to the mistake of the typist who prepared the memo of appeal for being presented to the High Court. However, subsequently the respondents (who were appellants before the High Court) submitted an application for the legal representatives to be joined in the appeal as respondents, in the exercise of the inherit powers of the Court and the power under Order XLI, rule 20 of the Code of Civil Procedure. This application was dismissed on contest by the High Court by an order dated 11-1- 1974. This order was sought to be challenged by a petition for special leave to appeal before this Court (C.P.S.L.A. No. 70 of 1974) but the petition was dismissed. In support of his argument learned counsel for the appellants placed reliance on the cases of Ghafur A.I and others v. Mi. Kaman (A 1. R 1930 Lab. 352) and Shah Muhammad v. Muhammad Bakhsh (PLD 1972 SC 321). Both these cases relate to the non-substitution of the legal representatives of a deceased party during the pendency of the proceedings, to which situation the provisions of Order XXII of the Code of Civil Procedure are attracted. The question before us is not of' the abatement of the appeal before the High Court on the failure of the appellants to substitute and bring on record the legal representatives of a deceased respondent. The essential question is whether the appeal was had in form and not properly constituted when some of the defendants were not arrayed as respondents in appeal. In other words it has to be shown that the non parties were necessary parties in whose absence no effective decree could be passed, for, as held by this Court in Sarshar A.I v. Roberts Cotton Association Ltd. (PLD1963SC244) a party who is not a necessary party or against whom no relief is asked. For, his non-joinder does not render the appeal incompetent. In the present case the High Court passed a decree holding that the respon--dents were entitled to inherit the right of occupancy tenancy to the extent of 5/6th share, excluding the share of deceased Chiragh A.I. Since the deceased had a defined share the failure to implead his legal representatives, as already held by the High Court, has resulted in the right of occupancy tenancy having come to an end in regard to his share. However we have not been shown how he was a necessary party in the appeal. The cases cited deal with suits of different nature and facts are distinguishable. In both cases the question was of the recovery of possession jointly held by the deceased party and others. We find no substance in this objection also.
10. In the result the appeal is dismissed with costs.