1. ' This is a revision application which has arisen from the facts and circumstances briefly narrated as follows. The dispute between the parties relates to a residential house bearing Custodian No.A- 311, in Mirpurkhas Town. The house in dispute originally belonged to one Naroomal whose half property was declared non-evacuee vide the Custodian's order dated 30-5-1956. On the basis of this order, Naroomal moved the custodian for partitioning of his property separating non-evacuee part from the evacuee one. The Deputy Settlement Commissioner to whom the job of partitioning the property was entrusted, by his order dated 29-5-1962 partitioned the same, and included the disputed house in the non-evacuee portion of the property. Some of those who were affected by the order challenged it at higher forums and in this way lot of of litigation took place which was concluded with the order of the Additional District Judge and Settlement Commissioner who upheld the partition of the property. However, the respondent No.2, Mehraj Din who was not party to the aforesaid litigation at any stage, had the disputed house transferred in his favour by the Settlement authorities. On the basis of the P.T.D issued in his name, he instituted ejectment proceedings seeking ejectment of one Lutif Ali Dal who happened to be in possession of the disputed house. His ejectment application was allowed and the tenant in occupation of the disputed house was ordered to be ejected. However, the order of ejectment was called in question in appeal by the affected tenant (i.e Lutif Ali Dal). Meanwhile Naroomal expired leaving a will by which he had bequeathed his non-evacuee property including the disputed house to the applicant Ishwardas. On coming to know about the transfer of the disputed house to the respondent Mehrajuddin, the applicant moved the appellate Court for joining him as a party. Accordingly he was joined as party in the appeal filed by Lutif AU Dal against Mehrajuddin. The appeal was accepted and the case was remanded to the Rent Controller to determine afresh as to who was the landlord of the disputed house. After allowing the parties opportunity of hearing including leading evidence, the learned Rent Controller held the applicant to be landlord. Once again his decision was assailed in appeal but this time the parties entered into compromise whereby the applicant was given three months period for filing suit to establish his title over the disputed house and in the mean time the respondent Mehrajuddin was prohibited from withdrawing the rent deposited by the tenant in respect of the said house. Accordingly the applicant filed a suit for declaration that he is owner of the disputed house and that the transfer of the said house in favour of the respondent No.2 was without jurisdiction and hence void. The suit was dismissed and the appeal preferred by the applicant against the order of the dismissal passed by the lower Court also failed. Hence the applicant has come to this Court in revision.
2. ' I have heard Mr. Muhammad Ali Sayeed, the learned counsel for the applicant at great length and no one turned up to argue the case on behalf of the respondents.
3. ' At the outset it may be pointed that the house in dispute having remained a subject matter of long drawn litigation, there should be no doubt about its physical identification. The views of the Courts below on difference in number of the house are not of much consequence. It is clearly stated in the plaint that No.A-311 attaching to the House is a Custodian number which cannot be the same as mentioned in the City Survey record, and hence is the difference. The material point to be determined is whether the disputed house was originally the property of undivided Hindu family of Naroomal and if so whether the applicant became the owner of the said house by virtue of the will executed by Naroomal in his favour. Obviously the burden was on the applicant to prove this point. In this connection reference may first be made to the plaint which is the foundation of the applicant/plaintiff's case. It is stated in the plaint that Naroomal owned several properties beside the disputed house. The custodian by his order dated 30-5-1956, the plaint further shows, declared half of the Naroomal's entire property as evacuee and other half as non-evacuee. It further appears from the plaint that the disputed house, in consequence of the partition of the property made, on motion of Naroomal, by Deputy Settlement Commissioner, separating the evacuee part of the property from the non-evacuee part, fell to the latter part of the property. It is further stated in the plaint that on his death on 13-1.2-1962 Naroomal left a will under which he had bequeathed his entire non-evacuee share of property which included the disputed house to the applicant Ishwardas. This is how the applicant became owner of the disputed house as per pleadings contained in the plaint. The written statement filed by the respondent Mehrajuddin however reveals that he has denied that the disputed house originally belonged to Naroomal and that on partition of the latter's property in evacuee and non-evacuee parts the disputed house fell to the non- evacuee part of the property. It is also denied by him that Naroomal ever executed a will or that the applicant Ishawardas became the owner of the disputed house in pursuance of such will. The respondent No.2 has also challenged the partition of the property to be without lawful authority and hence void.
4. ' It appears that in support of their respective stands stated above, the parties have neither examined themselves nor have they examined any witness. So far the applicant/plaintiff is concerned he filed a statement in writing submitting therein that the documents produced by him in suit be exhibited. By the same statement he closed his side subject to rebuttal. Similar statement was made on behalf of the respondent No.2 closing his side without leading any evidence. , ' The learned counsel for the applicant submitted that since the documents produced by the applicant were allowed by the trial Court to be exhibited, the same were to be used as evidence. In support of his argument he placed reliance on two authorities: namely Abdullah v. Abdul Karim PLD 1968 SC 140 and Malik Din /and another v. Muhammad Aslam PLD 1969 SC 136.
5. ' In the first case of Abdullah, the learned counsel for the vendees, after closing his oral evidence on 11th March, 1954 filed several documents stating that he would produce one more document later on which he actually produced on 9th April, 1954 and it was marked as Exh.D-27. The trial Court, however was of the view that either Patwari or Ghulam Abbas, the vendor, should have been called to produce the last mentioned document for without such formal proof it could not be considered to be properly on the record. It W83 held: "The question is whether the trial Court was right in so holding, particularly, since this document had been admitted without objection. The Code of Civil Procedure provides for the admission of documents and it is well-settled that if objection to the formal proof of a document has not been taken at the earliest point of time, it cannot be taken subsequently and certainly not in appeal."
6. ' In the above reported case, reference was also made to the case of Gopaldas v. Shri Thakurji AIR 1945 P C 83 wherein the Judicial Committee of the Privy Council observed: "Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is 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. A strictly formal proof might not have been forthcoming had it been insisted on at the trial."
7. ' In the above case of Abdullah the Supreme Court was further pleased to observe: "The record in the present case does not also disclose that any objection was taken by the pre- emptors to the proof of this document when it was produced in Court by the counsel for the vendees and marked as an exhibit. The document not having been objected to must be deemed to have been admitted and as such, the trial Court was clearly wrong in excluding it from consideration on the ground that it had not been formally proved. This document having been marked as an exhibit without objection became admissible in evidence and was rightly taken into consideration by the High Court."
8. ' In the second case of Malik Din, it was held by the Supreme Court: "With regard to the first contention, it will be sufficient to state that the objection regarding the defect, if any, in the method of proof of the document, cannot be raised at this stage. For, the document was admitted into evidence, without any objection, in the trial Court. It is now well- settled that an objection, as to the formality of proof, must be taken at the earliest stage and if it has not been taken then, it cannot be allowed to be taken at the appellate stage."
9. ' The guideline that above authorities have provided is that if no objection is raised as to the mode of proof of the document at the A stage when it is introduced in evidence by marking it with an exhibit, the same cannot be permitted to be raised at the advanced stage of the litigation, particularly at the stage of appeal.
10. ' In the instant case although no witness has been examined in support of the applicants case, yet a number of documents were produced alongwith the statement on behalf of the applicant that the said documents be exhibited vide Exh. 32 of the trial Court's record. Obviously the intention underlying the statement was that the documents should be allowed to be used as evidence. The order of the Court on the said statement was to the following effect: "Let these documents be exhibited"
11. ' Both the statement and the order thereon are dated 5-5-1969. It appears from the Court's diary of this date that "'parties' Advocates were present" on the said date and yet no objection was raised to receiving of the documents in evidence and exhibiting thereof. In view of the above Supreme Court authorities, no objection could be raised to the mode of proving or bringing the document on record at any later stage. As such the documents produced by the applicant and exhibited by the Court have to be considered in evidence whatever be their worth.
12. ' As to whether the house in dispute belongs to Naroomal, the applicant has first relied upon extract from city survey record (Exh. 42). In the view of the trial Court, the entries in the city survey record are not accepted as proof of ownership. According to the learned Judge they only raise a presumption of possession in favour of the person in whose name the entries stand. Even if the above view of the trial Court is held as correct, no evidence has been led to rebut the said presumption. There being no evidence to the effect that the disputed house belongs to a person other than Naroomal, even the latter's posses sion is enough to raise a presumption of his ownership of the house. In addition to this, the disputed house is shown in the record of Custodian as well as Settlement Authorities as property of Naroomal. Accordingly there is no difficulty in holding that the disputed house is part of Naroomal's property as a whole.
13. ' The next point for consideration is whether Naroomal executed a will in favour of the applicant Ishwardas, bequeathing the disputed house alongwith some other properties to him. No doubt like other documents, the will purported to have been executed by Naroomal in favour of the applicant was produced by the latter in Court and the same has been marked as Exh.
41. However, its execution by Naroomal has been challenged by the respondent Mehrajuddin. This being so, the burden lay heavily on the applicant to prove the execution of the will. Excepting that the document purporting to be the will has been produced alongwith other documents the applicant has led no evidence to prove that it was executed by Naroomal in his favour. As required by clause (c) of section 63 of the Succession Act, the will is to be attested by two or more witnesses. According to section 68, Evidence Act, if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. If no such attesting witness can be found, then under section 69, Evidence Act it must be proved that the attestation of one attesting witness atleast is in his handwriting and the signature of the person executing the document is in the hand writing of that person. It is obvious that no such evidence has been brought on record to prove the execution of the will. The learned counsel for the applicant however attempted to argue that once the document of the will was allowed to be exhibited by the Court, no further proof was required in support of its execution. I regret my inability to share this view. The proving of the document in evidence is one thing and the proving of the executing thereof is quite a different thing. Therefore, if the will by the order of the trial Court was marked with an exhibit and proved in evidence, that would not mean that it was proved also to have been executed by the executant Naroomal. Accordingly I cannot differ from the findings of the lower Courts that the execution of the will has not been proved in accordance with the law. As such it cannot be used as evidence to show that it was executed by Naroomal, bequeathing his property including the disputed house to the applicant.
14. ' Assuming that the will under consideration was actually executed by Naroomal, still it cannot be termed as valid document conferring any right on the legatee. This is because the testator, Naroomal was not the exclusive owner of the property, purported to have been bequeathed by him by the said will. It is the applicant's own case that half of Naroomal's property was evacuee and the other half was non-evacuee. It is also his case that with a view to have the non-evacuee part of the property separated from the evacuee part Naroomal had applied for partition of the property.
15. Though he made such application to Assistant Custodian, the same was referred to the Deputy Settlement Commissioner for doing the needful. By his order dated 29-5-1962, the Deputy Settlement Commissioner partitioned the said property but in appeal his order was set aside by the Additional Settlement Commissioner vide the latter's order dated 30-1-1963. The case was however remanded back to the Deputy Settlement Commissioner who after giving notice to the affected transferrees, passed a fresh order dated 12-7-1963, once again allowing the partition of the property. This order was also challenged in appeal before the Additional Settlement Commissioner who by his order dated 26-11-1963 while accepting the appeal set aside the said order. This time the order passed by the Additional Settlement Commissioner was impugned in revision before the Additional District Judge and Ex-officio Settlement Commissioner who by his order dated 19-12-1964 allowed the revision petition and restored the order of partition made by the Deputy Settlement Commissioner. In the suit filed subse quently one of the pleas raised by the respondent No.2, Mehrajuddin was that the order of partition was without jurisdiction and hence unlawful.
16. 'The order dated 30-5-1956 which is Exh. 34 on the record of the trial Court, clearly shows that the Custodian of evacuee property had declared half of the property of Naroomal's undivided Hindu family as evacuee and the other half as non-evacuee. On motion of Naroomal the non-evacuee part of his property was separated from the evacuee part for the first time by order of Deputy Settlement Commissioner dated 29-5-1962. However, it has been held by the lower Courts that the order of partition passed by the Settlement Authorities was without jurisdiction. No doubt when the first order of partition was passed by the Deputy Settlement Commissioner, even the evacuee part of the property had already been acquired by the Government and had, therefore, gone out of compensation pool. Accordingly the custodian had ceased to have any jurisdiction in respect of such property. Therefore, even the power of partitioning of the evacuee property vested in the Custodian under section 15, Pakistan (Administration of Evacuee Property) Act, 1957 had come to an end. Consequently such power delegated to the Settlement Authorities under section 25(2)(w) read with section 58(2) of the said Act could not be validly exercised by the said authorities in respect of said evacuee property. Thus, the order of partition of the property in question being without jurisdiction was obviously void and inoperative.
17. ' In view of above legal position, the disputed house continued to remain a part of joint property which was both evacuee as well as non-evacuee. Therefore, the house in question could not be validly bequeathed by Naroomal by will in favour of the applicant. The will was accordingly not valid also on that account. In view of this finding it is needless to go into the question whether the legatee Ishwardas was required to obtain probate and if so whether he had obtained the same or not.
18. 'The last point that needs to be considered is whether the transfer of the disputed house in favour of the respondent No.2 Mehrajuddin was in order. It is not disputed that P.T.D has been issued in favour of the said respondent in respect of the disputed house. Normally that document is the proof of valid transfer in favour of the transferree. The only argument that could possibly be advanced against the transfer is that the house in question was declared as non-evacuee and had thereby gone out of compensation pool and therefore the Settlement authorities had lost jurisdiction in respect thereof. The transfer of the house being without jurisdiction was therefore void. As there was no such evidence on record, this argument was clearly no available to the learned counsel for the applicant. Moreover, when the respondent Mehrajuddin asserted his right over the disputed house by filing eject ment application in the Court of Rent Controller, the matter ultimately came up in appeal before the District Judge, where even the applicant was party to the litigation. The parties including the applicant entered into compromise. The compromise application has been produced as Exh.
33. It would appear from the application that the applicant Ishwardas had accepted the ownership of the respondent Mehrajuddin over the disputed house subject of course to the condition that the former would within three months from the date of application file suit to clear his title over disputed premises. In pursuance of that agreement between the parties he actually filed the suit but failed to establish his title both in the trial Court as well as in the appellate Court. Even in this Court he has not succeeded in his efforts to prove that he is the owner of the disputed house. Since Ishwardas has no locus standi, as he has failed to prove his ownership in respect of the disputed house, he is nobody to challenge the transfer of the house in favour of the respondent Mehrajuddin.
19. ' For above reasons, I see no merit in the revision application which is accordingly dismissed with no order as to costs.