MUHAMMAD YUNUS SURAKHVI, J.---This appeal, by way of leave of the Court, has been directed against the judgment and decree of the High Court passed on 23-4-1999, whereby the findings of the Courts below were affirmed and the declaratory suit filed by the predecessor-in-interest of respondents was decreed while the suit for possession filed by the appellants, herein, was dismissed.
2. The brief facts of the case are that a declaratory suit was filed by Sardar Muhammad Yusuf, the predecessor-in-interest of respondents alleging that the suit land measuring 11. Kanals, comprising Survey No.29, situate in village Draik, Tehsil Rawalakot, was in the ownership of Qasim A.I and another, the predecessors-in-interest of appellants, who transferred the same vide agreement to sell, dated 6-3-1996 Bk, for a consideration of Rs.200 and since then first the father of respondents and thereafter respondents have been in possession of the suit land as owners. It was alleged that the aforesaid agreement is in fact a sale, thus, the plaintiff might be declared as owner of the same. In the alternative he sought a declaration to the effect that his possession over the suit land had ripened into ownership. A cross-suit for possession was filed by the predecessor-in-interest of appellant, herein, alleging therein that the predecessor-in-interest of respondents was in possession of the suit land as their tenant, and they denied the execution of the agreement to sell as was alleged by the predecessor-in-interest of respondents. The trial Court consolidated both the suits and after the conclusion of the trial decreed the suit filed by the respondents holding that their possession over the suit land had ripened into ownership while dismissed the suit for possession filed by the predecessor-in-interest of appellants. The appeals filed before the District Judge and the High Court also failed. Hence this appeal.
3. Arguing the case on behalf of appellants, Mr. Abdul Rashid Abbasi, the learned counsel, contended that the High Court has incorrectly held that there was concurrent findings of Courts below with regard to the execution of the said agreement to sell rather according to the learned counsel for the appellants the findings of the trial Court were that the agreement in question is not proved to have been executed. The learned counsel for the appellants contended that the District Judge erroneously reached the conclusion that -the agreement-to-sell was in fact a sale and it being -a 30 years old document the presumption of truth was attached to it. The District Judge in the alternative held the possession of respondents as adverse to the interests of the appellants and these findings have also been wrongly affirmed by the High Court. The learned counsel further contended that there is no mention of any "Iqrarnama" in the Revenue Record showing that the possession of the respondents was in pursuance of any such agreement. The learned counsel further argued that even if it be -assumed for the sake of arguments that the agreement-to-sell relied upon by the respondents was executed, that would not confer any title on the respondents because the possession of the respondents over' the suit land could not be regarded as adverse to the true owner. The learned counsel has argued that the High Court has observed in impugned judgment that the agreement-to--sell in question did not transfer any title to the respondents but all the same held that possession of respondents being under a defective title had ripened into ownership.
4. On the other hand Sardar Muhammad Hussain Khan, the learned counsel for respondents, by controverting the arguments raised by the learned counsel for the appellants, submitted that the document "agreement --to-sell" being produced from the proper custody, i.e. From respondents and it being 30 years old, the presumption of truth was attached to it. The learned counsel contended that the agreement to sell the suit land executed in.1996 Bk. Was challenged by the appellants in 1982 nearly after 42 years of its execution and the same appears to have been written on stamp paper of rupee one of Dogra Regime and from the date of execution of agreement-to- sell the possession of the suit land remained with the respondents as its owners. In the counter-suit it was claimed that respondents were the tenants-at-will of the appellants but during the course of evidence not a single receipt was produced to the effect that respondents had been paying any produce of the suit land to the appellants nor a sufficient material was brought on record showing that the possession of the respondents over the land was a tenants-at-will. The learned counsel further contended that at the time of production of document Exh.P.A., "the agreement-to-sell" no objection whatsoever was raised from the opposite side that the same was not admissible in, evidence. None of the Courts below as well as the High Court gave their finding to the effect that in fact the agreement-to-sell was a fake or a forged document. At the time of production of document Exh.P.A., Muhammad Yusuf, the predecessor-in-interest of respondents, was patient of paralysis and was of old age, hence he could not be produced as a witness for proving the execution of the document. However, both the marginal witnesses of the document were dead at the time when the document was tendered in evidence. In this, view of the matter it was not possible for the respondents to strictly prove the document Exh.PA. By producing Muhammad Yusuf in whose favour the document was executed and the marginal witnesses. The learned counsel emphasised that it has been concurrently observed by the Courts below as well as the High Court that the possession of the respondents over the suit land remained as owners from the date of the execution of the agreement-to-sell without any interruption or interference by its true owners. The appellants failed to- prove that respondents were their tenants-at-will. Therefore, the possession of the respondents over the suit land would be deemed to be adverse in nature. Even in the "Jamabandi" of 2001 Bk., the respondents are entered in possession of the suit land as "Basharah Aasami". "Aasanv" ordinarily means tenant but in Poonch ownership of even private lands was normally vested in the Maharaja, therefore, the term "Aasami" was used in respect of landowners. It shows beyond any doubt that the possession of the respondents over the suit land was adverse in nature. The learned counsel thus, submitted that the findings of Courts below as well as the High Court with regard to adverse possession being concurrent in nature, are normally not liable to be set aside by this Court.
5. After hearing the respective contentions of the learned counsel for the parties and perusing the record made available with care, it may be stated that the document Exh.'P.A.' on the basis of which respondents claim the possession and ownership of land in dispute is produced by them in evidence. This document under the normal course of events should have been in possession of the respondents in whose favour it was executed. The above document having been written on a stamped paper of rupee one of Dogra Regime contains no internal evidence of forgery. As the document appears to be perfectly genuine, therefore, section 90 of the Evidence Act entitles the Court to presume that it was a genuine document being 30 years old. Our aforesaid view finds support from the case reported as Tikamadas and another v. Abdul Wali and 7 others (PLD 1968 SC 241), wherein it was observed in a following manner:-- "Faced with these difficulties the learned counsel appearing in support of the appeal has endeavoured to get rid of these agreements by contending that they were forgeries and that they should not have been admitted in evidence merely upon the basis of the presumption under section 90 of the Evidence Act. We have carefully examined the original documents on the record.
They appear to have been executed on genuine stamp papers of the relevant period which were sold by a Hindu Stamp vendor to Dhanroopdas himself. They contain no internal evidence of forgery. They appear to be perfectly genuine documents. Section 90 of the Evidence Act did, therefore, entitled the Court to presume, once such a document more than 30 years old had been produced from proper custody, that it was a genuine document."
6. Similarly in a case reported as Khadim Hussain Khan and 9 others. Mst. Sarwar Jan and 27 others (1998 SCR 364), it was observed as follows:-- "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 witnesses to the effect that after purchasing the land since 1986 Bk., the respondents centered into the possession of the land as owners in their right of ownership and their possession remained uninterrupted uptill todate. Thus, we hold that the possession of respondents on the suit land had become adverse."
7. In the instant case the document was duly acted upon and the respondents entered into possession of the suit land in their own right as owners. Even in Jamabandi of 2001 Bk., the respondents are entered in possession of suit land as "Basharah Aasami". Similarly -in Jamabandi of 1954 and Khasra Girdawari of 1981, the respondents are shown in possession of the suit land and the above documentary evidence stood corroborated by the oral evidence to the effect that the respondents had been occupying the suit land as its owners for more than 40 years without any interruption or interference from the side of true owners and were not giving produce of the land to them. It is also significant to note that in Jamabandi 2001 B.k., the possession of respondents is entered in the column of possession and in the column of "Lagaan" they are shown as "Haq Aasamiwar". This also shows that respondents were in possession of the suit land as its owners and their possession remained uninterrupted for a period of more than 12 years to the exclusion of true owners. The appellants in their cross-suit alleged that respondents were their tenant-at-will but failed to substantiate their claim as such their suit was rightly- dismissed by the trial Court, the first appellate Court and the High Court note may also be taken of the fact that with regard to the adverse possession of the respondents on the suit land, there is concurrent finding of fact recorded by the trial Court as well as the first Appellate Court and the second appellate Court. This Court normally does not interfere with the concurrent findings of fact recorded by the Courts below unless there be a misreading or non-reading of evidence or misconstruing of a certain document which was not pointed out in the instant case. In this view of the matter too the possession of the respondents over the suit land, as concurrently held by all the Courts below to be adverse, had ripened into ownership.
8. From the perusal of the agreement to sell it also transpires that it is stated in the document itself that in pursuance of the said agreement the possession of the suit land was handed over to the respondents at the time of execution of agreement i.e. 6-3-1996 Bk. The document also recites that the entire consideration amount of land in dispute had been received by the executants Sher Muhammad and Qasim A.I Khan. It is not the case of the appellants that the alleged agreement to sell was prepared fictitiously or fraudulently. This aspect also lends support to the case of the respondents that in pursuance of the said document they took the possession of the suit land and retained the same uptill todate considering themselves as owners of the suit land to the exclusion of true owners.
9. Mr. Abdul Rashid Abbasi, the learned counsel for the appellants, vehemently contended that mere possession, howsoever, long would not be adverse against the true owners. So far as the above proposition is concerned, there is no cavil about that but for the reasons to be stated hereinbefore, we have reached the conclusion that although agreement to sell itself does not confer any title on the respondents regarding the suit land but the fact remains that if in pursuance of an agreement-to-sell or under a defective title the possession was handed over to the transferees and they remained in possession of the suit land considering themselves as owners to the exclusion of true owners, their possession becomes adverse. Our aforesaid view is supported by a case reported as Khadim Hussain Khan and 9 others v. Mst. Sarwar Jan and 27 others (1998 SCR 364), wherein it has been observed as under:-- "It is settled principle of law that possession under a claim of defective title would be deemed to' be adverse from its very inception. There is a 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 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 opined that the possession for being adverse should be hostile, notorious, open and continuous. In the case in hand, the above conditions are fully satisfied."
10. In the light of what has been stated above, finding no force in this appeal, the same stands dismissed with no order as to costs so far as this Court is concerned.