' This second appeal is directed against the judgment and decree of the District Judge, Mirpur, dated 29th of November, 1982, whereby the appeal filed by the present appellant was rejected and the order of the trial Court resulting in dismissal of the suit of the plaintiff-appellant, dated 31st of October, 1977, was maintained.
2. Jalal Din son of Saida, Jalal and Lal sons of Alam brought a suit for declaration by seeking cancellation of gift-deed, dated 24th of May, 1962, registered on 25th of May, executed by Mst.
Shafia Bibi and Mst. Resham Bibi, daughters of Shera, defendant-respondent, in favour of Kaloo deceased, concerning their share in the suit land. The cancellation of gift was sought on the grounds :-
(i) That the share of plaintiffs and co-defendants was to the extent of 604/676 in the suit land ;
(ii) that the suit land was in possession of plaintiffs and co-defendants, the donors not being in possession, were incompetent to gift the property ;
(iii) that the gift was detrimental to the proprietary and possessory title of the plaintiffs and co- defendants ; and
(iv) that the share of the donors was less than 7 Kanals 14 Marlas in the suit land, as such the gift was invalid.
' The suit was resisted by the defendant-respondents on all scores. The trial Court dismissed the suit for want of proof. On appeal, the learned District Judge felt persuaded to accord agreement with the finding of the trial Court. As such dismissed the appeal.
3. Qazi Abdul Ghafoor, the learned counsel for the appellant, sought interference of this Court by pointing out that issue No, 5 (entered in the judgment), whereby gift was alleged as fraudulent and fake, as such inoperative on the rights of the plaintiffs, was fatal to the finding of the subordinate Court as it was not framed at proper stage of the proceedings and in consequence no evidence was adduced by parties. It was suggested that the issue being contrary to the pleadings of the parties and not having been framed at the time of framing of other issues, was fatal to the judgment of the subordinate Court. The learned counsel urged that the case may be remanded so that fresh decision may be recorded exclusively on the issues arising out of the pleadings. In the alternative, it was suggested that the issue may be allowed to remain intact but the parties be allowed to lead evidence to discharge the onus of proof. Agba Ashiq Hussain, the learned counsel for the respondents, opposed the contention by suggesting that the finding on the issue may be ignored and the decision may be deemed confined to the issues arising out of the pleadings. Our attention was also invited to the proposition that where the trial Court ignored to frame an issue arising out of the pleadings and parties also failed to press for framing of an issue, but parties being alive to the averments, led their evidence, such party was not vested with a right to object to an omission of framing of issue. Reference was made to PLD 1978 SC (A J & K) 73 and PLD 1979 SC (A J & K) 15.
4. A study of the pleadings of the plaintiff appellant indicates that the cancellation of gift was primarily sought on the plea of absence of possession of the donors. The ground of fraudulent execution of the gift was not averred expressly in the plaint. May be that such an objection was raised during the arguments which influenced the trial Court to record an issue in the light of the objection and gave finding in that respect. It is well accepted that the issues arise from the material propositions of fact or law, affirmed by one party and denied by the other. The object of framing of A issues is to ascertain the real dispute between the parties by narrowing down the sphere of controversy. As there was no allegation of fraud or fake character of the gift, it was unnecessary for the trial Court to frame an issue and thereby record its finding in that respect. The error of framing of wrong issue and recording finding on it, is not considered necessarily fatal to the impugned orders. The issue in question being foreign to the pleadings of the parties, was erroneous. As the issue is held erroneous the finding on such issue is equally erroneous. We have not to give' effect of an erroneous finding to ultimate decision on merits of the case unless it is satisfactorily shown that such erroneous finding of the issue has materially affected the result on merits. The learned counsel for the appellant was unable to disclose as to how the decision of erroneous issue caused prejudice to the actual case. The fact of the matter is that the appellant challenged the gift primarily on the basis of absence of possession of the donors. The trial Court as well as the learned District Judge held that the possession of plaintiffs and co-defendants being their possession as co-sharer, was not fatal to the gift. Unless we are satisfied that the finding on the aforesaid issue has materially prejudiced the decision on merits, we are not prepared to entertain the objection so as to discharge the finding of the subordinate Courts, and remand the case for fresh decision.
5. As stated earlier, the object of framing of issues is to ascertain the real controversy and to narrow down its sphere so as to keep the parties straight and alive so that they are not prejudiced by any mistake or misapprehension of the actual point of dispute. In the present case, we are not made to believe that the framing of issue of fraud, in any manner, misdirected or misled the plaintiffs to prove the primary ground for cancellation of the gift. The contention is negated by the evidence of plaintiffs and objection raised in both the subordinate Courts as well as this Court, as it was shown that the plaintiffs were fully alive to the main stream of E objection to the execution of gift. Therefore, it is not permissible to set aside the decision of the subordinate Courts unless we are satisfied that the framing of improper issue has actually misled and misdirected the plaintiffs or that the plaintiffs were taken by surprise. We are not even told that by framing of the issue, plaintiffs, in any manner, were prevented or stopped from leading evidence, relevant to the actual controversy. The fact of the matter is that the controverted issue was introduced at the time of the judgment, as such it was not a cause for failure of plaintiffs to prove their real case. The trial Court as well as the learned District Judge recorded detailed decision on other issues and arrived at their independent conclusion and held that the plaintiffs tailed to prove their case. Thus, despite introduction of the issue in question in the judgment, no prejudice or detriment is found to have been caused to the plaintiffs. The objection is, therefore, not considered sustainable.
6. The other objection raised before us pertains to adverse possession. It was argued that the plaintiffs successfully proved the adverse possession of the suit land and in presence of adverse possession, the gift was likely t be cancelled. A close study of the pleadings shows that plaintiffs failed to raise averment of adverse possession. The proposition of adverse possession was not averred expressly. It is not even conceivable by implication. In para. 1 of the plaint, plaintiffs averred that their share, including the share of the co-defendants, in the suit land, was 604/676. In para. 5, it was stated that the share of the donors (defendants 5 and 6), in the suit land was less than 7 kanais 14 marlas. These pleadings, obviously, lead to the conclusion that the plaintiffs did admit the title of the donors (defendants 5 and 6) in the suit land but denied the extent of their share as claimed by donors in the gift-deed, as well as by absence of physical possession of donors. The pivot of the claim of the plaintiffs is the absence of physical possession of the donors of the suit land. As the objection of adverse possession is not found to have been raised in the pleadings, the trial Court, therefore, rightly framed no issue on such point. In absence of pleadings and issue relating to adverse possession, this Court is not persuaded to exercise on such objection.
7. Lastly, it was argued that the execution of the gift was not proved. The objection is equally unfounded as the gift-deed was registered at the instance of the donors. Mst. Resham Bibi one of the donors, appeared as a witness to support the claim of the plaintiffs. She failed to deny the execution of the gift. In reply to a question in cross-examination, shelf admitted her thumb- impression on the gift-deed, Exh. D. A. But explained that the thumb-impression was impressed by her in the house of one Fate Muhammad, Patwari. The defendant-respondents produced Allah Ditta, a marginal witness of the deed and Abdul Rashid who identified the donor before the Sub- Registrar. It is a settled rule that due registration of a document is itself an evidence of its execution.
In the case of a registered document, the initial presumption is in favour of its proper execution. The presumption was, of course, rebuttable. The authority in support of the view is i943 P C 83. The other aspect of the proposition is that where a document is required, by law, to be attested and its execution is challenged, the document shall not be admitted in evidence unless its execution was proved by, at least, one of the attesting witnesses. In the present case, besides registration of the document, Allah Ditta, an attesting witness of the document, proved its execution. The testimony of Allah Ditta was further supported by Abdul Rashid who identified the donors before the Sub- Registrar. This evidence was of course, in addition to admission of execution, of Mst. Resham Bibi, the donor.
8. As no other objection was raised before us, we feel satisfied to dispose of the objections in the aforesaid fashion. The appeal is, therefore, dismissed with costs.