This appeal under sec!---ion 96, C.P.C. Has been directed against judgment and decree dated 25- 11-1997 passed by the District Judge, Nushki, in Civil Suit No.10 of 1996 whereby the suit filed by the appellants has been dismissed.
2. Briefly, stating the relevant facts of the case are that on 12-8-1996, the appellants instituted civil suit for declaration and permanent injunction against the respondents in the Court of District Judge, Nushki on the averments that tile appellants are Lathband Bazgars of the respondents in the settled and unsettled lands situate in Mouza Bolghani, Tehsil Nushki duly entered in the relevant revenue records under Khewat No.94, Khatooni Nos.209 to 223, bearing Khasra Nos.853, 855 to 857, 859, 768, 769, 767, 770, 771, 774, 783, 784, 788, 789, 836, 838 840, 841, 851, 860, 868, 775, 777, 884, 969, 780 to 782, 852, ,858, 790, 792 to 794, 796, 765, 766, 772, 773, 837, 839, 839/1, 843 to, 845, 849, 776, 759, 797, 790, 842, 846, 847 and 850 in all measuring 126 Acres 1 rod and 11 poles. According to the case of the appellants abovementioned lands were acquired by the predecessor-in-interest of the appellants vide "Sanad" dated 2nd of Rajab 1250 Hijra from the predecessor-in-interest of the respondents whereby these lands were given to predecessor-in-interest of the appellants as Lath- band Bazgars, with the further stipulation that at the time of partition of the property in dispute one half of the same shall vest in the appellants/plaintiffs/predecessor---in-interest and the remaining half shall accordingly, vest in the respondents and it is since then that the appellants are in possession of the property hereinabove mentioned as Lath-band Bazgars (since the time of their predecessors-in---interest). It is further the case of the appellants that the respondents many a times attempted to dispossess the appellants from the suit property by one or the other way, inasmuch as; the respondents resorted criminal proceedings in various Courts in order to pressurize the appellants to abandon their rights in the suit property, which ultimately failed and even the respondent No. l filed an application for seeking ejectment of the respondents under Baluchistan Tenancy Ordinance in the Court of Assistant Commissioner, Nushki and on 19-2-1994 this application was also dismissed.
The appellants have contended in the plaint that they have been cultivating the suit lands and have been giving the due share to the respondents but the respondents are creating problems for the appellants and had asked the appellants to partition the suit property to which they agreed and according to the case of the appellants the respondents are willing to give only 1/4th share of the suit lands to the appellants and are denying to the legitimate share of the appellants in the unmeasured lands. It is the claim of the appellants that they are also the Lath-band Bazgars of the unmeasured lands and have also cultivated the same from time to time and pursuant to their being Lath-band tenants they have raised Laths on the unsettled lands and even as per document "Sanad" the appellants are the Lath-band Bazgars of the entire property i.e. Settled and unsettled lands, which rights of the appellants are being denied by the respondents. It has been alleged in the plaint that the respondents are attempting to forcibly dispossess the appellants from the suit property and intend to usurp the share of the appellants in the unsettled lands and a few days back the respondents have deployed a bulldozer on the property in order to dismantle the entire Laths raised by the appellants on the suit property although, the appellants are Lath-band Bazgars over the entire property.
3. The respondents on 9-10-1996, through their attorney filed a joint written statement in the trial Court wherein they repudiated the claim of the appellants and contested the suit on various legal and factual planes, however, in the written statement it has been admitted that the appellants are their Lath-band Bazgars only in respect of settled lands situate in Mouza Bolghani, Tehsil Nushki and it has been specifically denied that the appellant are their Lath-band Bazgars in the unsettled lands and that the predecessor-in-interest of the respondents never agreed to give one half of the property in dispute to the predecessor-in-interest of the appellants nor any agreement or "Sanad" was executed as alleged in the plaint. Further it has been contended that the so-called "Sanad" is a forged and fake document which even does not contain the description of the,property in dispute, however, as per Riwaj and custom prevalent in the area the appellants are getting only 1/4th share of the produce of settled lands and they are not entitled to claim one-half share. It has been denied that the respondents attempted to attack on the appellants to pressurize them to withdraw from their rights in the suit land but conversely the appellants had done so and a criminal case was registered against the appellant which is pending adjudication in the Court of learned Additional Sessions Judge-I, Quetta and it has not been admitted that the ejectment application has been dismissed by the Revenue Court rather according tothe respondents during the pendency of such application notables of the area acted as arbitrators and a compromise was effected between the parties but the appellants backed out from decision of the arbitrators.
According to the case of the respondents the award was announced on 22-11-1995 by the arbitrators whereby it was declared that the appellants are entitled only to 1/4th share of the produce of the settled property wherein they are in possession, as Lath-band Bazgars and not entitled to one-half of the share. It has been categorically alleged in the written statement that the appellants are not in possession of the unsettled lands as Bazgars nor they have any concern with such lands. Moreover, it has been contended in the written statement that there is no Riwaj or custom or usage in the area whereby a Lath-band can claim to be entitled for one-half share in the property at the time of the partition, to which he .Happens to be a Lath-band Bazgar. It has been denied that the respondents forcibly .Tried or attempted to dispossess the appellants from the property in dispute nor they tried to demolish the Laths to which their own interests extend.
4. The learned trial Court out of the pleadings of the parties framed the following issues:-- "(1)Whether the suit is barred by time?
(2)Whether the Sanad dated 2nd Rajab 1250 Hijra was executed between the predecessor-in- interest of the defendants and is a valid document in the eye of law?
(3)Whether this Court has no jurisdiction to entertain the present matter?
(4)Whether the suit suffers from mixed causes of action if so to what effect?
(5)Whether the plaintiffs have no concern with the unsettled lands?
(6)Whether the plaintiffs are entitled for the relief claimed for?
(7)Relief. "
The appellants/plaintiffs in support of their case examined five witnesses namely Haji Ghami (P.W.1), Rehmat (P.W.2), Ghulam Sarwar (P.W.3), Muhammad Qasim (P.W.4) and Samal Khan (P.W.5). Appellant No.5 Din Muhammad for himself and as `attorney for the remaining appellants appeared as their own witness in support of the case. Whereas, the respondents/defendants produced three witnesses namely Mir Shabir Ahmed (D.W.1), Muhammad Karim (D.W.2) and Haji Noor Ahmed (D.W.3), Khudai Nazar respondent No. 11 for himself and as attorney for the remaining respondents gave statement in Court.
The learned trial Court finally vide impugned judgment and decree, dated 25-11-1997 dismissed the suit of the appellants on deciding the Issues Nos.2, 3 and 5 against the appellants as the result whereof Issue No.6 being the consequential was issue also decided against the appellants. It may be noted that Issues Nos. l, 3, 4 have been decided against the respondents and findings of the Court with regard thereto have not been challenged by the respondents by preferring cross-objections hence, the findings on such issues have attained finality.
5. Mr. Qahir Shah the learned counsel for t1R appellants contended that the trial Court erred in law and on facts by deciding Issue No.2 against the appellants because the certified copy of "Sanad" having been tendered in evidence by the plaintiffs' attorney, sufficiently proved the execution and existence of such document on the basis whereof the plaintiffs are entitled to one-half of the lands in dispute i.e. Settled lands and unsettled lands. According to the learned counsel as the "Sanad" in original was placed on record of a case earlier pending between the parties, as such; by way of secondary evidence the "Sanad" has been duly proved and the learned counsel on the strength of the tendered copies of the document submitted that the plaintiffs are not only Lath-band Bazgars of the settled lands, rather; enjoy such status even on the unsettled lands. He further contended that at the time of the settlement of the area only a part of the lands covered under the "Sanad" was brought under settlement operations, while the-remaining part of such lands were not measured nor any Revenue Record thereof was prepared; so such lands, remain as unsettled. He also argued that on the basis of "Sanad" the plaintiffs have been shown as Lath--band Bazgars of the settled lands. The learned counsel submitted that the findings of the trial Court are liable to be reversed on issue No. 2 which would consequently render the plaintiffs to be entitled to one-half of share in the unsettled lands as prayed for in the suit, and, submitted that concerning the settled lands described in para. No. l of the plaint there is no dispute between the parties.
6. Mr. Muhammad Aslam Chishti, the learned counsel for the respondents contended that the findings of the learned trial Court on the Issues resolved against the appellant and particularly on Issue No.2 are based on correct application of law and appraisal of evidence. The learned counsel argued that the pre-requisite to produce secondary evidence was wanting, and; in any case, the plaintiffs could have requested to summon the record of the case, provided; as argued, if it contained the "Sanad" in original and such being not a public document, in absence of required proof, merely tendering copy of the purported document would be inconsequential. Further the learned counsel on query by the Court submitted that though; the document as it purports to be thirty years old, would not create the legal presumption of its being a genuinely executed document in the circumstances of the case, and; the secondary evidence attempted to be led by tendering purported copy thereof is inadmissible in evidence. Secondly it' has been argued that the copy of the purported document also does not contain the description of property, as such; no reliance can be placed on such document. The learned counsel contended that the entire evidence has been appraised in its true perspective and referring to the evidence of the plaintiffs pointed out that their witnesses describe, the "disputed property" as the "settled lands" concerning whereof no dispute exists between the parties; also the learned counsel referring to the contents of plaint submitted that no description and measurement of the unsettled lands has been given.
7. The contentions put forth on behalf of the parties have been considered in the light of the record of the case, impugned judgment and the ,law. The evidence available on record and the impugned judgment has been perused carefully. It may be noted that the learned counsel for the appellants did not challenge the findings of the trial Court recorded on Issues Nos.5 and 6, and; contended that relief prayed for in the suit in respect of the disputed lands i.e. Unsettled lands rest on the findings on Issue No.2, which are liable to be reversed.
It is the case of the plaintiffs that on 2nd of Rajab 1250 Hijra the predecessor-in-interest of the respondents sold the lands (settled lands and unsettled lands) against the consideration amount of Rs.30 to the predecessor-in---interest ofthe appellants/plaintiffs. The attorney for the plaintiffs in his statement deposed that 1 /4th share of property was purchased by their predecessor-in- interest, whereas; 3/4th share of land was obtained as Lath-band Bazgars and on his own in the cross-examination part of his statement deposed that dispute pertains in respect of unsettled lands. Haji Ghani (P.W.1) and Rehmat (P.W.2) during cross-examination stated that the disputed lands are the settled lands, whereas; as per Ghulam Sarwar he is not aware if the disputed property is the settled lands. The plaintiffs have not produced the "Sanad" in original during trial and instead purported photo copy alongwith a written copy .Thereof was tendered in statement by the attorney for the appellant besides the photo copy of the document translated into Urdu, which were respectively brought on record as Mark P.1, Mark P.1/A and Mark P.1/B. The former two documents do not contain the signatures or thumb-impression or any other mark of the executants nor that of any witness, which contain the word "attested" below which signature of some attesting Officer appears with a stamp not legible except the word "Nushki" and is dated 1-10- 1968 which also contain the signature of District Magistrate, Nushki with such official stamp dated 15-5-1997 similarly Mark P.1/A appears to be unauthenticated translation of Mark P.1 and Mark P.1/A on which the official seal and signature of D. M., Nushki, dated 15-5-1997 has been affixed/appeared.
8. In view of the abovenoted aspects it cannot be presumed that such documents were issued by the District Magistrate, Nushki nor Mark P.1 or Mark P.1/A, are the certified copies of the original "Sanad". The documents only suggest that District Magistrate simply inscribed 'his signature on it on 15-5-1997 under the official seal which alone cannot be equated to that of a certified copy issued under section 87 of the Qanun-e-Shahadat Order, 1984. Moreover; the date so put under the signature of District Magistrate on the documents further indicate that such was done during the pendency of the trial of the suit.
There is nothing on record to suggest that the "Sanad" i.e. Original of Mark P.1 on Mark P.1/A was lost, or was not available with the plaintiff or that the same could not have been produced without inordinate delay or expense or even that the same was available on any record of the case with the District Magistrate, Nushki or any other Court. Mere production of copy of original document would not be enough to entitle any party to the suit to produce secondary evidence unless the conditions laid down for production of secondary evidence within the meaning of Article 76 of Qanun-e-Shahadat Order, 1984 stand satisfied; which are wanting in the instant case. The documents Mark P.1 and Mark P.1/B also being not the certified copies, as such; no reliance can be placed on these documents.
9.Although; a document purporting or proved to be thirty years old, if produced from the proper custody and is free from any suspicion, the Court may if considers proper, presume the signature and any other part of such document which purports to be in the handwriting of any particular person, is in that persons handwriting within the meaning of Article 100 of Qanune-e-Shahadat Order, 1984 and the provisions of this Article equally apply to the certified copies of documents thirty years old in terms of Article 101 of the said order.
As abovenoted the necessary conditions to raise presumption in favour of the plaintiffs on the basis of the copies of the original purported document to be 30 years old in terms of Article 100 of Qanun-e-Shahadat read with Article R 101 are completely 'lacking and; moreover; for want of any corroborative j evidence supporting such document; and mere production of uncertified copy of thirty years old purported document, would not be enough to draw the specified presumption within the purview of Article 100 of Qanun-e-Shahdat Order. As such, Mark P.1 and Mark P.1/A are inconsequential to the case of the plaintiffs.
10. Adverting to the contention of the appellants' counsel, it may be seen that no description and measurement of the land mentioned in the above-noted documents has been given and for such reasons as well, these documents are without any assistance to the case of the plaintiffs.
11. Even in view of oral evidence led by the plaintiffs, they have failed to substantiate that the disputed lands (unsettled lands) are vesting in the plaintiffs as owners or they enjoy the status of Lath-band Bazgars or some other right or interest in respect thereof. It is pertinent to note that in the plaint only the description of settled lands with reference to its Khasra numbers etc. Has been given, in respect whereof there is no dispute between the parties and to identify the disputed property i.e. Unsettled lands, no description has been even given in the plaint and in the copies of "Sanad" Mark P.1 and Mark P.1/A. Thus, the plaintiffs through evidence failed to idetitify the unsettled lands nor could prove that the copy of "Sanad" relates to the lands claimed to .Be the disputed lands. According to P.W.1.And P.W.2 the property in dispute is the "settled land" whereas; according to P.W. Ghulam Sarwar he is not aware if the dispute pertains to the settled lands and the solitary assertion of the plaintiffs attorney that the dispute relates to the unsettled lands in absence of required description and proof of such lands would not advance the case of the appellants.
The learned trial Court has recorded the findings on proper appraisal of entire evidence on sound reasons by' deciding the issues accordingly. The appellants' counsel failed to point out any misconstruing or misreading of evidence or any erroneous finding or misapplication of law in the impugned judgment which, therefore, is not open to any interference by this Court.
Thus, for the foregoing reasons, the appeal being devoid of any substance is dismissed, with no order as to costs.