' IFTIKHAR MUHAMMAD CHAUDHRY, J.---This appeal is by the leave of the Court against judgment/decree, dated 15th June, 1993 passed by Lahore High Court, Multan Bench in pursuance whereof Civil Revision No,527-D of 1989 filed by appellants has been dismissed.
2. In the plaint appellants have elaborately stated that initially respondents Nos.2 and 3 were holding rights of Malik Malguzar whereas the rights of Chakdar Qasoor Khori were vested in Nila Mal son of Lela Mal, Caste Ovara. Latter had mortgaged his rights with possession with Malik Rahim Bux.
However, by means of a registered Gift Deed No,254-1163, dated 17-6-1932 Rahim Bux transferred the rights of Chakdar Qasoor Khori in favour of precedessor-in-interest of respondents Nos.4 to 13 namely Noor Ahmad son of Abdullah but possession of the property remained with the predecessor-in-interest of appellants namely Rahim Bux and others. Subsequently Rahim Bux and others vide Registry No,227, 253, dated 8th July, 1932 got redeemed the rights of Chakdar Qasoor Khori in favour of Noor Ahmed son of Abdullah, as such Inteqal No,459, dated 20-5-1933 was attested in his favour but possession of the land remained with the predecessor-in-interest of appellants. As far as rights of Malik Malguzari are concerned they were sold to Noor Ahmed, predecessor-in-interest of respondents Nos.3 to 16 against consideration of Rs,5,630 but at that time mutation entry could not take place and in the Revenue Record respondents Nos.2 and 3 were shown as owners of these rights whereas appellants were indicated to be in possession of the property. Because Noor Ahmed had factually acquired both the rights i.e, Malik Malguzari and Chakdar Qasoor Khori, therefore, on 15th September, 1948 he sold both these rights in favour of the predecessor-in-interest of the appellant Rahim Bux against total consideration of Rs,30,000. To acknowledge the transaction Noor Ahmed executed an agreement in favour of predecessor-in- interest of appellants. In pursuance whereof on 17th April, 1948 Noor Ahmad filed an application before the Revenue officials for the transfer of these rights in favour of the predecessor-in-interest of appellant Rahim Bux. But due to the negligence of the Revenue Staff the rights of Malik Malguzari could not be attested in his favour. However, respondents Nos.4 to 16 manipulated and got transferred the rights of Malik Malguzari in their favour behind the back of appellants, therefore, following relief was claimed: ' "For declaration and injunction to the effect that in pursuance of an agreement, dated 15th August, 1948 and application, dated 17th August, 1948 they are in occupation of the suit property, description whereof was given in the plaint as owners because. They have acquired the rights of Malik Malguzari and Chakdar Qasoor Khori whereas the respondents (defendants) have no concern of whatsoever nature with this property. Therefore, entries into the Jamabandi relating to the property entered into Khewat No,50/34 written with black and red inks respectively Khatooni Nos.126 to 131 and Khewat Nos.53, 37 written with black and red inks, Khewat No,139, Mouza Ferozpur, Tehsil and District Multan recorded in the name of the respondents in 1974-75 are baseless and illegal and cannot adversely affect on the rights of the appellants (plaintiffs).
' Therefore by passing an injunction the respondents may be restrained permanently not to interfere in the rights of the appellants."
3. The suit was contested by the respondents vehemently denying the claim of appellants. The main stake of the contesting respondents was that predecessor-in-interest Noor Ahmad had never sold both the rights namely Malik Malguzari and Chakdar Qasoor Khori to Rahim Bukhsh nor he ever executed an agreement in his favour.
4. Learned trial Court settled issues arising out of pleadings of the parties and after recording evidence for and against vide judgment, dated 27th March, 1988 decreed the suit. The respondents preferred appeal before the District Judge, Multan who allowed the same on 20th May, 1989 as a result whereof the decree of the trial Court was reversed. Thus being aggrieved from the judgment/decree of the Appellate Court the appellants preferred a Civil Revision before learned Lahore High Court, Multan Bench, Multan which has also been dismissed vide impugned judgment.
5. Learned counsel for appellants contended that the appellate as well as revisional Courts neither read the evidence available on record properly nor appreciated the same in accordance with the recognized principles of law.
6. On the other hand learned counsel for the respondents supported the judgement and contended that appellants failed to substantiate on record that Noor Ahmed their predecessor-in- interest agreed to sell his rights i.e, Malik Malguzari and Chakdar Qasoor Khori against consideration of Rs,3,000 vide agreement, dated 15th August, 1948 and also filed an application, dated 17th August, 1948 through his son Muhammad Akram before Tehsildar Multan for attesting/transferring the rights in the property on the name of the predecessor-in-interest of the appellants. Inasmuch as oral evidence produced by the appellants was not trustworthy and irrelevant, therefore, it has been rightly discarded by the learned High Court.
7. We have heard the parties' counsel at length and have also carefully gone through the available record. At the outset it is important to note that in the instant case appellants have produced two types of evidence i.e, documentary and oral besides bringing on record such events which if believed then conclusion can be drawn about the genuineness of the sale of his rights by Noor Ahmed in favour of Rahim Bakhsh as far back as 1948.
8. First of all it would be appropriate to take into consideration the documentary evidence produced by appellants to substantiate their plea. In this behalf there are following documents which are required to be considered:--
(i) Exh. P.1, the agreement on the basis of which statedly Noor Ahmed sold his rights in favour of the predecessor-in-interest of appellant Rahim Bakhsh.
(ii) Exh.P.25 an application filed by Noor Ahmed before the Tehsildar through his son Muhammad Alum for attestation of the mutation entries in favour of predecessor-in-interest of the appellants.
(iii) Exh.P.26, mutation entry attested in the year 1953 in respect of rights of Chakdar Qasoor Khori in favour of Rahim Bakhsh, predecessor-in-interest of the appellants.
(iv) Exh.P.2 extract from the Register of Petition Writer proved the contents of the documents (original) mentioned at Serial No,1, Exh. P/1.
(v) Exh.P.3 copy of incomplete power of attorney.
(vi) Exh.P.4 copy of the report Rozenamcha Wakayati No,563, dated 18th August, 1948.
(vii) Exh.P.5 copy of Jama Bandi for 1975-76 indicating the possession of the appellants as Chakdar Qasoor Khori.
(viii)Exh.P.7 to Exh.P.23 copies Khasra Gardawari and extract from Jama Bandi to establish that appellant's predecessor-in-interest was in possession of the property.
(ix) Exh.P.24 copy of mutation about redemption of Chakdar Qasoor Khori rights.
' Before taking into consideration the contents of the above documents it may be noted that the respondents did not produce any documentary evidence to negate the stand of the appellants which they wanted to estabilsh/substantiate through above documents.
9. Learned High Court discarded the documents particularly .Exh.P.1 and P.25 by advancing illusionary reasons. As far example, the execution of Exh.P.1 was not accepted to be valid for the reasons that it did not bear signatures of P.W.2 Malik Ahmad Yar who appeared in witness-box to support its contents as marginal witness. It is noteworthy that during cross-examination of this witness not a single question was put to him that the documents did not bear either his thumb- impression or the signature although in his deposition he had submitted, in detail, about the events which took place before the completion of the transaction. In fact this witness has also furnished oral evidence which supported the contents of the documents as a consequence of the events after which this transaction took place. Perusal of Exh.P.1 indicates that it was not only signed by P.W.2 Malik Ahmad Yar but by another witness namely Makhdoom Pir Haji Muhammad, Sajjada Nasheen Darbar Khanpur Kazianwala Sharif. This witness appeared before the Tehsildar and during the process of attestation of Mutation No,1086 (Exh.P.26) dated 3-8-1951 from the name of Noor Ahmed in the name of Rahim Bakhsh, predecessor-in-interest of the appellants in respect of the rights of Chakdar Qasoor Khori. A careful consideration of the proceedings which took place at the time of attestation of his mutation indicates that not only the second marginal witness Makhdoom Pir Haji Muhammad supported the contents of the document Exh.P.1 but the sons of Noor Ahmed also did not deny that their father had executed the document Exh.P.1 in pursuance whereof he had sold his right in favour of Rahim Bakhsh. There is no doubt that Exh.P.26 Mutation No,1086 was attested after the death of Noor Ahmed but its genuineness cannot be doubted for this reason alone because as per contents of application Exh.P.25, dated 17th August, 1948 late Noor Ahmed himself made a request to Tehsildar Multan for transferring his both rights i.e, Malik Malguzari and Chakdar Qasoor Khori in favour of Rahim Bakhsh because he had sold his rights against a consideration of Rs,30,000. This application was duly received by one of the Revenue Officials and he entered the same into Exh.P.4 i.e, Roznamcha Wakayati at S.No,563, dated 18th August, 1948.
Learned counsel for the respondents contended that the appellants manipulated this document because it was found lying in an unbound register. The contention carries no weight because in the said register there was not only one document i.e, Exh.P.4 rather number of other reports were also entered. Learned counsel also stated that this document does not bear the signature of Patwari who entered the same at S.No,563. P.W. Muhammad Hussain Patwari produced this document from the original record. Objection raised by the learned counsel that Roznamcha had been kept loose instead of bound appears to be correct in view of cross-examination on the statement of witness.
But on basis-of it the witness cannot be disbelieved because it contained entries of other events commencing from S.Nos.563 to 573 and in our opinion after considerably long period even otherwise it was not possible to fictitiously manage insertion of one page in the register of Roznamcha Wakayati. Perusal of Exh.P.4 indicates that Muhammad Akram son of Noor Ahmed presented application signed by his father Noor Ahmed for attesting his right of Malik Malguzari and Chakdar Qasoor Khori in favour of Rahim Bakhsh and at the relevant time he was accompanied by Lumberdar Muhammad Amin, Sher Bakhsh son of Ahmad Yar alongwith applicant. He also produced agreement, dated 15th November, 1948, which was written between the predecessors-in-interest of both the parties. The document further reveals that Noor Ahmed had sold his rights for consideration of Rs,30,000 in favour of Rahim Bakhsh as per contents of agreement. This document also indicates that at that stage request was made only for transfer of the rights of Noor Ahmed of Chakdar Qasoor Khori because till then the rights of Malik Malguzari had not been entered in the name of the original owner, therefore, he made a comment before the Revenue Official that no sooner Noor Ahmed got substituted his name in respect of rights of Malik Malguzari then he would transfer the same in the name of Rahim Bakhsh. Admittedly Exh.P.4 Roznamcha Waqayati was entered on 18-5-1948 as per its contents; whereas Noor Ahmed died on 20th August, 1948. Though there is dispute between the parties in respect of date of his death as well but keeping in view the overwhelming evidence available on record we have to presume that he died on 29th August, 1948 on account of his illness, therefore, there is every possibility that two days before his death he had sent his son for attestation of his rights of Chakdar Qasoor Khori in favour of Rahim Bakhsh predecessor-in-interest of the appellants.
10. As it has been observed hereinabove that mutation could not be effected on the day when the application, dated 17th August, 1948 was filed by Muhammad Akram son of Noor Ahmad and in the meanwhile after death of predecessor-in-interest of the appellants insisted for completion of Revenue Record by showing him to be the holder of rights of Chakdar Qasoor Khori and ultimately vide Exh.P.24 the proceedings for transfer of the rights were completed. Through perusal of Exh.P.26 would indicate that successor-in-interest of the respondents were reluctant to honour the commitment of their predecessor Noor Ahmed for transfer of rights of Chakdar Qasoor Khori in favour of Rahitn Bakhsh, therefore, a detailed inquiry was undertaken during course whereof P.W.
Ahmed Yar was examined and the statement of second witness of the agreement namely Makhdoom Pir Haji Muhammad, Sajjada Nasheen Darbar Khanpur Kazianwala Sharif was also recorded besides issuing interrogators for the predecessor-in-interest of Noor Ahmed to ascertain the correctness of claim of the appellants. It is noteworthy that they were reluctant for one reason or the other to give reply inasmuch as in spite of service Muhammad Akram son of Noor Ahmed refused to give any statement before the Revenue Officer whereas his brother Muhammad Afzal expressed his ignorance about the transaction and handing over of possession to the predecessor-in-interest of appellants. As far as Muhammad Akram is concerned he was one of the most important witness but he declined to give statement in respect of execution of the agreement as well as application dated 17th August, 1948 (Exh.P.25), therefore, safely inference can be drawn that he intentionally withheld true statement from the Court. Besides these documents the appellants have also proved execution of agreement through P.W. Muhammad Amin son of Elahi Bakhsh (65) who has stated that Petition Writer Muhammad Bakhsh was his senior and he worked with him. He produced extract of register at S.No,7089, which according to him is in the handwriting of Muhammad Bakhsh. He had also identified handwriting of Muhammad Bakhsh on Exh.P./1. In cross-examination he deposed that he had worked with Petition Writer Muhammad Bakhsh with effect from 1945 to 1952, therefore, he was acquainted with his handwriting. In this sequel appellants also produced P.W. Abdul Rashid son of Haji Ahmed. Din, Stamp Vendor who has identified the handwriting on the back side of agreement P/1 of his father Ahmed Din who .Was stamp vendor meaning thereby that agreement was executed on the stamp paper which was sold by the father of the witness. On careful perusal of the contents of agreement Exh.P.1 one can conveniently draw inference that its contents support the oral testimony of Malik Ahmad Yar as well as Faqir Bakhsh son of Bahawal Bakhsh who have deposed about the sale of the rights of Chakdar Qasoor Khori and Malik Malguzari by Noor Ahmed to Rahim Bakhsh. Yet another important aspect of the case is that in the year 1953 vide mutation Exh.P.26 the right available to Noor Ahmed of Chakdar Qasoor Khori were transferred to Rahim Bakhsh the predecessor-in-interest of the appellants and the respondents' predecessor had the knowledge about it but despite that they did not file any proceedings for cancellation of mutation entry. A perusal of Khasra Gardawari Exh.P.7 to Exh.P.23 and extract from Jamabandi also indicates that the appellants through their predecessors-in-interest period remained in possession of this property throughout.
11. Learned counsel for the respondents contended that their possession was that of tenant but when they refused to give share of produce to them proceedings were initiated against them and as a counterblast appellants filed the suit. We are not inclined to agree with the learned counsel for the respondents because even if it is presumed that as per assertion of the respondents the appellants were tenants, the former were under obligation to establish their proprietary rights. We have thoroughly gone through the evidence on record and are of. The opinion that the appellants have successfully established their claim, therefore, they were entitled for a decree as prayed for.
' Thus for the foregoing reasons appeal is allowed as a result whereof judgment of Civil Judge, Multan First Class, dated 27th March, 1988 is restored and the judgment and decree of Additional District Judge, Multan dated 20-5-1989 and the impugned judgment, dated 15th June, 1993 are set aside. Parties are left to bear their own cost.