1. ' Brief facts out of which the present revision petition arises are that the respondent No.1 Fazal Noor filed a suit for declaration with permanent mandatory injunction in Civil Court, Narowal on 15-2- 1992. Contents of the plaint reveal that the suit property measuring 360 Kanals of land situated in Village Ransiwal, Tehsil and District Narowal was owned by Maj. Rtd. Mansabdar the real brother of respondent No. I-plaintiff who had two wives namely Surryia Begum and Begum Jan. Begum Jan has since been died and Akhtar-un-Nisa respondent No.3 is the only daughter of Begum Jan.
2. Contents of the plaint further reveal that Kalsoom Akhtar petitioner No.1defendant was servant of Mansabdar and she remained in his house as servant till his death. After the death of Maj. Rtd.
3. Mansabdar petitioner No.1defendant claimed herself to be his widow which resulted in dispute to the family of respondent No.1 plaintiff and she suffered mental torture and that no entry of this Nikah with petitioner No.1/defendant is visible in the record of Union Council concerned. Petitioner No.1/respondent showing herself to be the widow of Mansabdar got sanctioned Mutation No.222 of his inheritance in her favour and also alienated some of the land out of the land in question which act of petitioner-respondent No.1 is illegal, void ab initio, collusive, based on fraud and is liable to he set aside. Contents of the plaint further reveal that before the death of Mansabdar he was living on his Dera Haveli and the respondent No.1-plaintiff rendered service for him and he executed Will to the extent of 1/3rd share of his ownership in favour of respondent-plaintiff on 11-11-1989. Respondent No.1-plaintiff after the death of Mansabdar produced the aforesaid will before the Tehsildar for attestation of mutation which was not accepted on the ground that it was not registered Will whereas according to Muslim Law it is not compulsory registrable and appeal against this order was also rejected which orders also illegal and not binding upon the respondent No.1-plaintiff.
4. Present petitioners and respondents Nos.1, 4 to 7 and respondent No.2-defendant No.3 filed separate written statements. In their written statements they controverted the allegations levelled in the plaint. Out of the pleadings of the parties, the trial Court framed the following issues:--
(i) Whether the suit is not maintainable in its present form? OPD
(ii) Whether the plaintiff has no cause of action and locus standi to file this suit? OPD
(iii) Whether the suit has been incorrectly valued for the purposes of court-fee and jurisdiction? If so, what is correct valuation and to what extent? OPD
(iv) Whether the defendants are entitled to special costs under section 35-A of C.P.C.? OPD
(v) Whether deceased Mansabdar Khan had made a Will, dated 11-1-1989 in favour of the plaintiff to the extent of 1/3rd of the suit land and as such the order passed by Revenue Department ignoring the Will are illegal, void, without authority and ineffective upon the rights of the plaintiff?
OPP
(vi) Relief.
5. ' The trial Court dismissed the suit vide judgment and decree, dated 17-4-1996. Respondent being aggrieved by the aforesaid judgment and decree of the trial Court filed an appeal before the District Judge, Narowal who entrusted the same to Additional District Judge, Narowal. Learned Additional District Judge reversed the finding of Issues Nos.2 and 5 and accepted the appeal partially to the extent that Fazal Noor respondent No.1 plaintiff is owner of 1/3rd share of the said Mansabdar Khan deceased and appeal to the rest of the prayer was dismissed vide judgment and decree, dated 9-7-1997. Hence the present revision petition. Learned counsel for the petitioners stated that the respondents-plaintiffs did not produce the original Will and subsequently, during the trial moved an application for permission to lead secondary evidence so as to prove the certified copy of the same. This application was rejected vide order, dated 12-12-1996. Thereafter, the respondent-plaintiff filed another application to summon record from the Revenue Record as the original will is produced before the Revenue Authority which was accepted vide order, dated 4- 1-1996. He further stated that the Revenue Authority sent the file to the trial Court which was received by the trial Court on 26-2-1996. Learned counsel for the petitioner further stated that at time of statement of P.W.1 respondent produced certified copy of the Will which was placed on record by the trial Court with the objection of the learned counsel for the petitioner. He further stated that respondent/plaintiff was debarred from producing any evidence so as to bring the copy of the said document on record. He further stated that both the Courts below have erred in law taking into consideration the aforesaid document. Consequently, evidence with regard to the said copy of the document i,e, Exh.P.1 is not validly brought on record. He further, stated that learned First Appellate Court reversed the finding on Issues Nos.2 and 5 without adverting to the reasoning of the Trial Court. He further stated that evidence of P.W.1 and P.W.2 did not inspire confidence as the statements of P.W.1 and P.W.2 are contradicting each other on material points. He further stated that respondents-plaintiffs failed to produce scriber of the will but the First Appellate Court did not consider this aspect of the case. He further stated that Maj. Rtd. Mansabdar has enmity with the son of respondent No.1, therefore, question of executing Will in favour of respondent No.1 is not believable. He further stated that the statements of P.W.1 and P.W.2 reveal that matter was patched up between Mansabdar and Muhammad Younis 15/20 days before the execution of the Will. He further stated that statement of the First Appellate Court is result of misreading or non-reading of the record. He further stated that statement of the First Appellate Court is based on surmises and conjectures. He further stated that judgment of the First Appellate Court is in violation of the principle laid down by the superior Courts. He relied upon 1997 M LD 2376, 1997 CLC 1957 and 1995 M LD 690.
2. Learned counsel for the respondent No.2 supported the case of the petitioner. Learned counsel for the respondent No.1 contended that learned counsel for the petitioners failed to point out any irregularity committed by the First Appellate Court or failed to point out any legal infirmity committed by the First Appellate Court. Therefore, findings of the First Appellate Court cannot be disturbed while exercising power under section 115 of Civil Procedure Code. He further stated that record was summoned by trial Court and in case the original Will was not available in the Revenue Record then it is the duty and obligation of the Trial Court to point out the same to the respondent/plaintiff. Therefore, respondents could not be penalised by the act of the Court. He further stated that judgment of the trial Court is result of misreading or non-reading of the record whereas the judgment of the First Appellate Court is based on reasoning and the First Appellate Court has given finding of fact after proper appreciation of the evidence on record. He further stated that the original Will was not available with the respondents-plaintiffs as the same was produced before the Revenue Authority for the purpose of attestation of the original mutation in favour of respondents-plaintiffs.
3. I have given my anxious consideration to the contention of the learned counsel for the parties. It is better and appropriate to reproduce the admitted facts to resolve the controversy between the parties in chronological order which are as follows:--
(i) Respondents alleged Maj. Rtd. Munsabdar Khan executed Will in favour of Fazal Noor on 11-11- 1989.
(ii) Mutation was sanctioned on 17-4-1990 in favour of the legal heirs of Munsabdar and did not accept the Will produced by the respondent No.l.
(iii) Respondent No.1 filed appeal before the Assistant Collector against the aforesaid mutation of inheritance. The same was also rejected by the Assistant Collector vide order, dated 13-6-1991.
(iv) Respondent No.1 filed a suit for declaration with permanent and mandatory injunction on 15-2- 1992. Respondent No.1-plaintiff filed an application before the trial Court that the original Will is with the Revenue Record which was filed for the attestation of mutation and the same be summoned.
6. Trial Court allowed the application vide order, dated 4-1-1996 subject to all just exceptions.
(v) Respondent-plaintiff submitted an application for permission to produce secondary evidence on 6-12-1995. Application was rejected vide order, dated 12-12-1995.
(vi) Revenue proceedings were received before the trial Court as is evident from the order, dated 26-2-1996.
7. ' Respondent No.1-plaintiff produced certified copy of Will Exh.P.1 at the time of recording the evidence of Ghulam Rasool P.W.1 which was objected by the learned counsel for the petitioner- defendant. Learned trial Court decided all the issues in favour of the petitioner except Issue No.1 which was not pressed by the learned counsel for the petitioner-defendant. Suit was dismissed on 17-4-1996. Respondent No.1 filed appeal which was accepted and reversed the finding of the trial Court on Issues Nos.2 and 5. It is pertinent to mention here that Exh.P.1 is certified copy of the Will.
8. Original Will was not produced before the trial Court. Record of the Revenue file also did not contain the certified original Will, dated 11-11-1989. Certified copy of the revenue proceedings were sent by the Revenue Officer to the trial Court meaning thereby that the original Will was not produced before the trial Court. The finding of the First Appellate Court in para.8 that the trial. Court allowed the application qua the summoning of the Record of the Revenue side but failed to procure the record is not based on true facts as is evident from the interim order of the trial Court dated 26-2- 1996 that the file of the Revenue has been received. This Court vide order, dated 17-9-1997 reveals that record of the learned trial Court be also requisitioned. I have perused the record. Finding of the First Appellate Court to this extent is based on misreading of the record. Order, dated 26-2-1996 of the trial Court reveals that the proceedings of the Revenue Record have been received. Certified copies of the Revenue Record are also appended with the record of the trial Court. Therefore, learned First Appellate Court did not examine the record and decided the case on surmises and conjectures. It is admitted fact that the original Will was not produced before the Court and attested copy placed on record with objection of the learned counsel for the petitioner-defendant.
9. Neither the learned trial Court nor the Appellate Court decided the objection of the petitioner- defendant qua the admissibility of the Exh.P.1 (will). It is also admitted fact according to respondent that the original Will is appended with the Revenue Record. The record of the revenue side have been requisitioned to prove the contents of the Will. Since primary evidence was available, therefore, its proof as required by Articles 78 and 79 of Qanun-e-Shahadat Order, 1984, should have been furnished. Since the same was not done, therefore, document stood not proved. Certified copy of Will placed on the file will be treated as secondary evidence as envisaged by Article 76(g) of the Qanun-e-Shahadat Order. Therefore, same cannot be considered as primary evidence. It is also settled proposition of law that production of documentary evidence in the form of primary evidence was essential for the just decision and for the success of the defendant. Oral statement of P.W.1 and P.W.2 cannot be of any value by not producing available documentary evidence. It is also settled proposition of law that when any transaction has been drawn and executed in the form of a document, no amount of oral evidence can be allowed to be produced to prove the same unless it is shown that original document has been lost or cannot be produced or procured and that too, after obtaining permission from the Court for production of secondary evidence. No such permission appears to have been obtained and that being so mere production of two witnesses could not be paid to have proved the Will itself. It is true by Article 87 of Qanun-e-Shahadat Order certified copy of public document is admissible per se and can be received in evidence but in case where certified copy of a private document forming part of public record is deemed to be produced in evidence and the execution as well as existence of the document is denied, then the secondary evidence by way of certified copy cannot be received unless existence of original is proved, loss and destruction of original allowed and established or the original being in possession of the other side has not been produced by the other side.
10. ' The Revenue Record does not indicate that the original was ever produced or retained and instead certified copy of the document existed there. This being so, the respondent will be required to fulfil the preconditions before the certified copy of Will can be entertained. I am conscious of the fact that the learned trial Court did not decide the objection as to admissibility of document Exh.P.1 (will). While the Appellate Court took the petitioner surprise by overruling the objection and decreed the suit. So the Appellate Court was of the view that the original document was produced and existed in the Revenue Record. If at this stage, the document is excluded it will create hardship to the respondent-plaintiff as the respondent will be denied of opportunity to bring on record necessary evidence to prove existence of original document or loss of the same. It is repeatedly observed that the original shall resolve the controversy as to admissibility of document at the time when the document was tendered. This is so, because the party can take up steps to ensure that the preconditions of admissibility of document are fulfilled. Since I have observed that the respondent did not produce to establish existence of original and without proving it, certified copy of the Will cannot be produced in evidence. Therefore, no option except to send the case back to the trial Court to allow opportunity to the respondent to either produce the original or in the alternative to prove the loss thereof.
11. ' In view of what has been discussed above, this revision petition is accepted with no order as to costs. Resultantly, the impugned judgment of the First Appellate Court is set aside. The case is remanded to the learned trial Court to decide afresh in the light of the aforesaid terms. Since the controversy between the parties is pending adjudication from 1992, therefore, the trial Court is directed to decide the same as expeditiously as possible. The parties are directed to appear before the trial Court on 23-6-1999.