MAULVI ANWARUL HAQ, J--On 4-5-1992, the appellant filed a suit against the respondents. In the plaint, it was stated that the suit property was owned by Naik Muhammad. He was survived by the appellant, Fazal Muhammad (predecessor-ininterest of respondents Nos,1 to 7) Jan Muhammad (Predecessor-in-interest of respondents Nos,8 to 12 as sons) and Mst. Daulat Bibi (deceased respondent Nd.13, as daughter); that Naik Muhammad died in December, 1963; that he had appointed the said Fazal Muhammad as an attorney authorising him to pursue claim form regarding suit property and to pursue the matter of transfer. This power of attorney was registered on 23-2-1963; that the suit house was transferred to Naik Muhammad vide an order, dated 23-1- 1960 by D.S.C., Faisalabad; that the suit property formed part of a house and the other part was transferred to Rao Jamshed Ali Khan. Later; an appeal was filed against the order, dated 23-1-1960 which was dismissed in the year 1%2 while revision petition was dismissed in the year 1966. The P.T.D. was, however, issued after the dismissal of the said appeal in favour of the said Naik Muhammad on 26-6-1963. It was specifically stated in the plaint that Fazal Muhammad was never authorised to sell the suit property; that the' said Fazal Muhammad proceeded to transfer the suit property in favour of his sons i,e, respondents Nos,1 to 4 vide a registered sale-deed, dated 10-7- 1963. The sale was stated to be unauthorised; without consideration and as such illegal. It was further mentioned in the plaint that the said Rao Jamshed Ali had also filed a writ petition against Naik Muhammad and all his sons and daughter of their successors were impleaded as respondents; that Fazal Muhammad never gave out that the property had been sold by him rather he obtained power of attorney from the said L.Rs, This writ petition was dismissed in the year 1973. It was further stated that the proceedings were started by the enforcement staff regarding the said claim of the deceased Naik Muhammad and thereupon the appellant and the respondents filed a writ petition. The case was remanded back to the Settlement Commissioner who maintained the cancellation of the claim vide an order, dated 19-11-1975. Thereafter, one Mst. Bilqees Begum filed an application before the D.S.C. that the suit property be transferred to her. The matter was sent to the Chief Settlement Commissioner who vide an order, dated 15-11-1977 cancelled the transfer.
Thereupon, all the L.Rs, of Naik Muhammad filed a Writ Petition bearing No,1611/R of 1977 which was decided in their favour on 26-1-1980; that the appellant is a resident of Quetta and reposed trust in Fazal Muhammad who had been appointed as an attorney by him. After the death of the said Fazal Muhammad and the other brother, namely, Jan Muhammad, the appellant checked up the record when he found that PTD in favour of the L.Rs, had not been issued. An application was accordingly filed before the Notified Officer whereupon a notice was issued in the Newspaper. It was at this stage that the respondents Nos,1 to 4 declared that the property stands transferred to them and then on 22-3-1992 he obtained a copy of the impugned sale-deed. With these averments the appellant sought a declaration that the sale-deed be declared illegal and void and further sought a decree for a separate possession of his 2/7 share in the suit house. The suit was contested. The respondent No,1, on the one hand, while the remaining respondents, on the other, filed separate written statements. They objected that the suit is barred by time; that the respondent No,3 and 4 have gifted away their share in favour of respondent No,1 vide a registered gift deed, dated 3-6-1986 that the suit is bad for non-joinder of necessary parties. On merits, it was insisted that the said Fazal Muhammad was duly authorised to transfer the suit property and that the sale in favour of respondents Nos,1 to 4 is valid.
2. The respondent No,1 also filed a suit against the appellant. In this suit he claimed to be the owner in possession of the suit property as his grandfather Naik Muhammad had executed a power of attorney in favour of his father on 23-2-1960 who transferred the property in favour of respondent No,1 and his other brothers and the other vendees gifted away their share in favour of respondent No,1 vide a Gift Deed, dated 3-6-1986. He sought a decree for a declaration that he is lawful owner in possession of the suit property and the appellant be restrained from dispossessing him. This suit was resisted by the appellant with these please already stated above. Both the suits were consolidated and the learned trial Court framed the following issues:-- "(1) Whether the instant suit is time-barred? OPD
(2) Whether the plaintiff has got no cause of action and locus standi to file the instant suit? OPD
(3) Whether the plaintiff is estoped by his words and conduct from bringing the instant suit? OPD
(4) Whether this Court lacks jurisdiction to try the instant suit? OPD
(5) Whether the instant suit has not been properly valued for the purposes of court-fee and jurisdiction? OPD
(6) Whether the instant suit is bad of misjoinder and non-joinder of necessary parties? OPD
(7) Whether the instant suit is false and frivolous and as such the defendants are entitled to recover special costs under section 35-A, C.P.C.? OPD
(8) Whether the 'registered sale-deed No,2935, dated 10-8-1963 is illegal, without any authority, without any consideration, void, inoperative and ineffective qua the rights of the plaintiffs? OPD
(9) Whether the plaintiff is entitled to get a decree for possession through partition as prayed for?
OPD (9-A) Whether the defendant No,1 is entitled, to get a decree for permanent injunction as prayed for? OPD
(10) Relief."
Evidence of the parties was recorded. The learned trial Court took up Issues Nos,8, 9 and 9-A together and decided the same in favour of respondent No,
1. Under issue No,1, the said suit was held time-barred. The Issues Nos,2 and 3 were answered in affirmative for findings record on Issue No,9-A. Issues Nos,4 to 7 were found against the respondents. The suit filed by the appellant was dismissed while the suit filed by the respondent was decreed vide judgment and decree, dated 14- 6-1995.
3. We have heard the learned counsel for the parties and have perused the trial Court record with their assistance. For the order we propose to pass in this R.F.A. We do not feel the necessity to note the respective contentions of the learned counsel for the parties.
4. As would be apparent from the pleadings of the parties, referred to by above, the sale-deed (Exh.P/5 and Exh.D/4) was executed by Fazal Muhammad was authorised to sell the suit property of Naik Muhammad. Conversely the case of the respondents in their written statements and particularly of respondent No,1 in his plaint was that Naik Muhammad validly . authorisedFazal Muhammad to transfer the suit property. Otherwise the burden of Issue No,9-A lay squarely upon respondents, particularly respondent No,1 we find that the original power of attorney is not forthcoming on the record. A certified copy of the same was placed on the record by both the parties. The copy filed 'by the appellant is Exh.P/6. We find that this copy was issued on 10-7-1991. The copy filed by respondents is Exh.D/3 and this copy was issued on 2-4-1995. Article 85(5) of Qanun-e-Shahadat Order, 1984 excludes a registered document the execution whereof is disputed, from the ambit of public document. Now it is a certified copy only of a public document as defined in the said Article 85 which is admissible in evidence as proof of the contents of the documents. In this state of evidence on record the learned trial Court has dealt with the matter at page 8 of his impugned judgment in the following manner:- - "The above two documents i,e, the power of attorney, dated 23-2-1960 and registered Sale Deed, dated 10-7-1963 are 30 years old and as such the requirement of their formal proof is dispensed with."
We are constrained to observe that the learned trial Court has virtually decided the case without any evidence and - the reason is obvious i,e, the learned trial Court appears to, be oblivious of the relevant provisions of Qanun-e-Shahadat Order, 1984. The reference in the impugned judgment, of course, is to Article 100 of the said Order, 1984. But this provision of law deals with original document. Certified copies are the subject-matter of Article 101 of the said Order, 1984. Under this Article it is not the age of the original document but it is the age of the certified copy which is relevant for the purposes of the admissibility of the said document when produced. We have already given the respective dates of issue, of the copies above. None of the documents as such are 30 years old within the meaning of Article '101 of the Qanun-e-Shahadat Order, 1984.
5. We also find that Issue No,1 regarding the question of limitation has also been decided without any reference to the specific assertions contained in the plaint and also brought on record in the course of evidence to the effect that all the L.Rs, of Naik Muhammad had been litigating for this property in Courts several years after the alleged execution of the sale-deed by the said Fazal Muhammad in favour of his sons. The appellant had clearly stated that he acquired knowledge of the said sale in the year 1992. Findings of Issue Nos,2 and 3 also flow from the said erroneous findings that had been recorded without any reference at all to the pleadings and the evidence on record, we are not inclined to uphold the same.
6. Confronted with the said situation prevailing on the face of the record, the learned counsel for the respondents contends that his clients be given a chance to produce and to prove the original documents i,e, the said power of attorney stated to be executed by the said Naik Muhammad in favour of Fazal Muhammad or to prove the document in another manner prescribed by law. The learned counsel for the appellant does not object.
7. As a result of above discussion and in view of the said agreement between the learned counsel for the parties. This R.F.A. is allowed, the impugned judgment and decrees, dated 14-6-1995 (Consolidated) are set aside. The result would be that both the suits shall be deemed to be pending in the Court of the learned Senior Civil Judge, Faisalabad where the parties shall appear on 3-4-2002.
8. The record of the learned Trial Court immediately, be remitted to the learned Senior Civil Judge, Faisalabad. The learned trial Court shall give a chance to' the respondents to produce the original power of attorney, referred to in the pleadings stated to have been executed by late Naik Muhammad in favour of late Fazal Muhammad and to prove the same or to lead evidence to prove the same in accordance with the provisions of the Qanun-e-Shahadat Order, 1984. Thereafter, to give a chance to the appellant to rebut the evidence, if any, to be led by the respondents and then to decide the Issues Nos, 1, 8, 9 and 9-A afresh in accordance with law and in the light of the observations made above.
9. No order as to the costs.