' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, by way of leave of the Court, is directed against the judgment and decree passed by the High Court on 23-10-1997, announced on 26-11-1997, whereby the appeal filed by the appellants, herein, was dismissed.
2. The precise facts, culminating into the present appeal, are that a suit for possession of land comprising survey No,506, measuring 36 Kanals and 18 Marlas, situate in village Kharick, Tehsil Rawalakot was filed by appellant No,1 in the Court of Sub-Judge Rawalakot against respondents Muhammad Hussain, Gul Hussain and Ali Bahadur on 30-7-1965. It was averred in the plaint that the suit land fell in the share of plaintiff and pro forma-defendants by way of family partition and that the defendants were in the possession of land in dispute as tenants-at-will. It was also claimed that the entries in the Revenue Record showing one Mst. Gul Begum, widow of Kala Khan, as vendor and Muhammad Hussain, Gul Hussain and one All Bahadur, as vendees, are fictitious and ineffective upon the rights of the plaintiff-appellants as Gul Begum has never executed any such sale-deed. It was further stated that Mst. Gul Begum inherited the land on the death of her husband Kala Khan as a limited owner, till her death or remarriage and had no right whatsoever to transfer the land to any other person. The original plaint filed by the appellant was later on amended in 1985.
3. The defendants-respondents resisted the suit on various grounds in their written statement. It was claimed in the written statement that land in dispute was in the sole ownership of Kala Khan by way of family partition who transferred it through sale-deed, dated 8-3-1986 Bk. For a consideration of Rs,666 to defendants Muhammad Hussain, Gul Hussain, and Ali Bahadur. It was further contended that it was lawful for a co-owner to transfer land in his possession with the consent of other co-sharers which fell to his share by family partition. According to the defendants the other co-owners had given their consent to the said sale in favour of Muhammad Hussain Gul Hussain and Ali Bahadur. An objection was also raised regarding the non-payment of court-fee on built up property and that the suit was barred by limitation. In the alternative the defendants also raised the plea of adverse possession on the ground that their possession in the suit land as owners for being more than 12 years had ripened into ownership on the basis of adverse possession. The defendants also claimed the improvements worth Rs,80,000 in the shape of houses and gardens etc.
4. The trial Court framed as many as eleven issues. After necessary proceedings and providing the parties the opportunity to produce their evidence the trial Court vide its judgment, dated 29-2- 1988, passed a decree for possession of the suit land in favour of appellant, holding therein that the sale-deed, dated 8-3-1986 Bk. Being fictitious is cancelled and all transactions made under it in respect of suit land also stand cancelled. It was further held that entries regarding Gul Begum in Revenue Record as vendor are also declared as ineffective and inoperative upon the rights of appellant.
5. An appeal filed by respondents before the District Judge Rawalakot was accepted vide his judgment, dated 16-12-1993. Against the judgment and decree of the learned District Judge the appellants filed an appeal before the High Court wherein a learned Single Judge vide his order, dated 23-10-1997, announced on 26-11-1997, dismissed the appeal and the judgment and decree passed by the District Judge were, thus, maintained. The aforesaid judgment and decree passed by the High Court are the subject of present appeal.
6. We have heard the arguments addressed at the Bar and perused the relevant record. It was contended by Sardar Muhammad Sayab Khalid, the learned counsel for the appellants, that the sale-deed, dated 8-3-1986 Bk. Had no legal sanctity behind it as according to the law, prevalent at that time, it was not counter-signed by Maharajah Bahadur in absence of which no rights could have been conferred by the said sale-deed. The learned counsel contended that unless the sale- deed had the counter-signatures it could not be termed to be a public document nor the same was admissible in evidence. The learned counsel pressed into service the submission that in the Revenue Record at some places there is entry of Mst. Gul Begum as vendor whereas at other places the entry of Kala Khan appears as a vendor. The learned counsel submitted that the Trial Court in its wisdom rightly decreed the suit filed by the plaintiff-appellants. On the point of adverse possession the learned counsel for the appellants strongly opposed the findings recorded by the learned District Judge and the High Court. With regard to improvements it was contended that there were no such improvements existing on the ground as is claimed by the respondents.
However, if some improvements have been made the same were made after the issuance of stay order by the Court. Even otherwise, according to the learned counsel, the costs of improvements could not be granted unless the same have been determined by a cogent evidence. The learned counsel in support of his contentions relied upon reported cases titled Noor Muhammad Khan v.
Muhammad Zaman Khan (PLD 1983 Azad J&K 34), Sarwar Khan and 2 others v. Noor Alam and another (1985 CLC 1082) and Abid Hussain v. Mrs. Afsar Jehan Siddiqui and another (PLD 1976 Kar.
836).
7. On the other hand Mr. Abdul Rashid Abbasi, the learned counsel for the respondents, submitted that the sale-deed was duly registered by the Sub-Registrar and the same is placed on record.
This sale-deed was not challenged within time as such the suit filed by the plaintiff-appellants was barred by limitation. In the alternative the learned counsel contended that on the basis said sale- deed the respondents entered in the possession of suit land as owners and their possession from the date of sale-deed till to date remained open, hostile and undisturbed which has ripened into ownership. The learned counsel contended that the counter-signature of Maharajah Bahadur on the sale-deed was a mere formality and even if there be no counter-signature the execution of the document could not be denied and through the said sale-deed the rights have been conferred in favour of respondents. The learned counsel submitted that the suit land was in the exclusive possession of Kala Khan who transferred his share in favour of respondents, the entry of which is found in the sale-deed. According to the learned counsel the respondents are in possession of suit land since 1986 Bk. And their version finds support even from the statement of plaintiff's witnesses.
The learned counsel in support of his contentions relied on reported cases titled Muhammad Ayub Khan v. Abdul Aziz Khan (PLD 1981 Azad J&K 118), Ghulam Muhammad and another v. Muhammad Ashraf and 2 others (PLD 1981 SC (AJ&K) 118), Wazir Muhammad and 2 others v. Ali Muhammad and 14 others (PLD 1982 SC (AJ&K) 37) and an unreported case of this Court titled Gulzar Shaikh v.
Bashirullah and 3 others (Civil Appeal No,37 of 1987 decided on 21-3-1989).
8. After hearing the respective contentions of the learned counsel for the parties and perusing the record made available, the first point that needs resolution is as to what is the legal position of sale-deed, dated 8-3-1986 Bk. The sale-deed Exh. 'DA', dated 8-3-1986 Bk. Was registered by the Registration Officer. It is also entered in the sale-deed that Kala Khan was identified by Sardar Tabu Khan, who affixed his signatures along with the signatures of Kala Khan. Sardar Tabu Khan stated therein that Kala Khan is known to him who is serving in Custom Department. Though Sardar Tabu Khan later on resiled from his statement in the Court but at the same time he stated that he, being of old age and blind as well, could not see or identify his signatures but the fact remains that the sale-deed is a registered document to which the presumption of truth is attached unless the same is rebutted by a congent evidence. As the sale-deed was registered and executed in 1986 Bk, therefore, its validity is to be seen in accordance with the law prevalent at that time. In 1986 Bk. In the State of Jammu and Kashmir for transfer of immovable property the Registration Act, 1977 Bk.
(hereinafter, to be referred as the Act) was in force. In accordance with section 17 of the Act such documents which were to create some rights such as gift-deed and sale-deed were to be registered compulsorily. In accordance with the provisions of sections 59 and 60 of the Act when any such document was registered by the Registration Officer by affixing his signatures he was to issue a certificate on the said document and then it was submitted to Maharajah Bahadur for his counter-signatures. Subsections (1) and (2) of section 61 of the Act are reproduced below:--- "(1) The endorsements and certificate referred to and mentioned in sections 50 and 60 shall thereupon be copied into the margin of the Registrar Book, and the copy of the map or plan (if any) mentioned in section 21 shall be filed in book No, 1.
(2) If a document falls under clause (a) or (b) of subsection (i) of section 17, the registering officer shall, after its registration in his office, submit it in the manner prescribed in this behalf for his Highness' sanection."
' The above provisions show that these are to be read alongwith sections 59 and 60 and the same cannot be read into isolation to each other. To have a correct perception of the matter sections 59 and 60 of the Act are reproduced below:--- "(59) The registering officer shall affix the date and his signature to all endorsements made under sections 52 and 58, relating to the same document and made in his presence on the same day.
60.(1) After such of the provisions of sections 34, 35, 58 and 59 as apply to any document presented for registration have been complied with, the registering officer shall endorse thereon a certificate containing the word ' registered' together with the number and page of the book in which the document has been copied.
(2) Such certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act and that facts mentioned in the endorsements referred to in section 59 have occurred as therein mentioned."
9. The above provisions positively suggest that the Registration Officer has to register the document and then he has to sign it and put a date on it. After this process is over a certificate is endorsed on the document containing the word "registered" then the document is a sufficient proof that it was registered in accordance with law. After this process, in accordance with subsection (2) of section 61 of the Act the document is sent to Maharajah Bahadur for his sanction.
10. After examining the document from above angle and in the light of the provisions, it is obvious that Sub-Registrar after receiving the document in his office shall put his signatures on it and date on the document and he has to make an endorsement that the document has been "registered".
After completion of formalities of sections 59 and 60 a definite conclusion can be reached that under subsection (2) of section 60, the document Exh. ' DA' was admissible in evidence and it is a proof of the fact that the document after writing and its completion was registered.
11. As regards the objection that the document should have been sent to Maharajah Bahadur for his sanction as is provided in section 61(2) of the Act but at the same time it has not been provided in the said provision that without the sanction of Maharajah Bahadur the document was not admissible in evidence.
12. We have carefully perused the authority cited by the learned counsel for the appellants titled Noor Muhammad Khan v. Muhammad Zaman Khan (PLD 1983 Azad J&K 34), on the basis of which it was argued that the document without the counter-signatures of Maharaja Bahadur has no legal validity and on the basis of it no rights could be accrued to the vendees. It appears that provisions of sections 59 and 60 particularly the provisions of section 60(2) of the Act were not brought to the notice of the learned Judge wherein it is provided that after the document is registered it becomes admissible in evidence and it is proof of the fact that the document after its writing and completion was registered.
13. If the contention of the learned counsel for the appellants is accepted to be true that without the sanction or counter-signatures of Maharajah Bahadur the document could not be considered complete then, in our view the provisions contained in sections 59 and 60 of the Act become redundant which is not the requirement of law. Therefore, the findings recorded by the learned Sub-Judge that without the counter-signatures of Maharajah Bahadur the document remained of no practical use and similarly by the District Judge that the document became invalid are not sustainable. Thus, it follows for the foregoing analysis that it could not have been said that the sale-deed was not registered and the same was not admissible in evidence.
14. The contention raised by the learned counsel for the appellant that the sale-deed does not fall within the definition of public document is also not tenable. On the basis or this registered document the respondents entered into possession of suit land and in Jamabandi 2001-Bk., Khasra Girdawari 1990 to 1993 Bk., the mutation which was sanctioned on the basis of Jamabandi 1999 Bk.
And another mutation, dated 17-11-1999 Bk. Their names appear as vendees, which continue up to the present date and the suit fired by the plaintiff-appellants is itself for seeking possession.
Although the plaintiff-appellants averred in the plaint that defendants-respondents were their tenants-at-will but they could not prove the same even by an iota of evidence. The learned Sub- Judge, the District Judge and the High Court reached the unanimous conclusion that plaintiff- appellants could not prove their assertion that the defendants were their tenantsat-will.
15. Assuming for the sake of arguments that the sale-deed in absence of counter-signatures of Maharajah Bahadur was an invalid document the fact remains that the defendant-respondents entered into the possession of land on the basis of invalid document of defective title. It is settled principle of law that possession under a claim of defective title would be deemed to be adverse from C its very inception. There is ring of authorities in support of the proposition that the possession under an oral sale or an unregistered sale-deed is always adverse against the owner. A reference may be made to Ahmed Khan v. Rasul Shah and others (PLD 1975 SC 311), wherein it has been held that it is well-established principle of law that a vendee who remains in possession after the sale which G goes off or is otherwise defective in law holds adversely to the vendor. Our this view is supported by an unreported case of this Court titled Gulzar Shaikh v. Bashirullah and 3 others (Civil Appeal No,37 of 1987, decided on 21-3-1989), wherein it was observed that the possession for being adverse should be hostile, I notorious, open and continuous. In the case in hand, the above conditions are fully satisfied.
16. Another factor which goes in favour of respondents is that the document was produced from the proper custody. It was produced by the person in whose favour it was executed and it is a thirty years old document and a presumption of truth is attached to it. In a case reported as Wazir Muhammad and 2 others v. Ali Muhammad and 14 others, (PLD 1982 SC (AJ&K) 37), it was observed at page 39 of the report in the following manner:--- "The reading of this section would show that it says only that a Court may presume and not that it must presume. In view of the danger of the blind acceptance of a document as genuine for all purposes merely because it purports to be more than thirty years old and is produced from proper custody, considerable care and caution should always be exercised in accepting documents of more than thirty years age. Such documents can always be prepared or forged and that is why it is always insisted upon that the Courts ought to be aware of the danger of treating old documents as established merely because they are thirty years old and come from proper custody. One has to take into consideration the surrounding circumstances. One of the important considerations, besides others, in my view, should be whether the document is acted upon or not and whether it was supported by possession or not,"
(Underlining is ours)
' The aforesaid principle clearly enunciates that if a thirty years old document is acted upon and is supported by the possession then the presumption can rightly be drawn in favour of genuineness of document. The sale-deed in question was produced from the proper custody where it should have been and in consequence of this document the possession of the suit land was taken over by the defendant-respondents. Thus, it was acted upon in all respects. Besides documentary evidence, there is a corroborative oral testimony of the witness to the effect that after purchasing the land since 1986 Bk. The respondents entered into the possession of the land as owners in their right of ownership and their possession remained uninterrupted uptil todate. Thus, we hold that the possession of respondents on the suit land had become adverse. The mere fact that in some of the documents Mst. Gul Begum is shown as vendor whereas in other documents her husband Kala Khan is shown as vendor does not help the case of the appellant as the vendees in both the situations are shown as Muhammad Hussain, Gul Hussain and Ali Bahadur.
17. Since we have reached the conclusion on the basis of above analysis that the appellants' suit is liable to be dismissed on account of the registered sale-deed executed by Kala Khan in 1986 Bk. In favour of respondents and in consequence of the said sale-deed the respondents entered into the possession of the suit land and their possession as owners remained open and hostile to the appellants, therefore, the question of giving any finding on improvements, claimed by the respondents, and non-payment of court-fee remain mere of, academic interest.
18. In the light of what has been stated above, finding no force in this, appeal, it is hereby dismissed and, consequently, the judgment and decree passed by the District Judge and the High Court are upheld. The suit filed by the plaintiff-appellants shall stand dismissed. No order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.