SOHAJ KHAN Versus REGISTRAR, DISTRICT JHELUM

This second appeal by the plaintiffs from the judgment and decree dated 28‑1‑1967 of District Judge, Jhelum, arises out of a suit under section 77 of Registration Act, 1908.

2. Facts are:‑‑89 kanals of land with shamilat rights at Mauza Fatehpur Tehsil Jhelum (hereinafter referred to as the disputed property) belonged to one Hashim son of Karam Ali. By deed, dated. 7‑12‑1963 (Exh. P‑1) Hashim Ali gifted the disputed property to plaintiffs Sohaj Khan, Muhammad Wasawa, Muhammad Sultan sons of Fatehpur, his collaterals. Hashim died on 17‑12‑1963. On 20‑12‑1963, plaintiffs presented the gift deed for its registration before the Joint Registrar, Jhelum. By order dated 30‑1‑1964 (Exh. P‑4) Joint Registrar refused registration of the deed on the ground that though it was proved that Hashim intended to make gift of the disputed property to the plaintiffs and because of his death could not get the document registered, yet in default of his representative or attorney admitting the execution, document could not be registered. It was further observed that after the death of Hashim, gift was rendered void.

3. On 30‑1‑1964, plaintiffs instituted a civil suit for injuncting the Registrar, Jhelum to register the gift deed. Registrar was, then the sole defendant in the suit. Suit was resisted. It was stated that in absence of notice under section 80, Civil Procedure Code, suit was not maintainable and that it also suffered from non‑joinder of necessary parties. Trial Couit framed as many as 7 issues. These are:

(1) Whether West Pakistan Province is a necessary party?

(2) What is the effect of non‑issuance of notice under section 80 Civil Procedure Code to the defendant?

(3) Whether the suit is bad for non‑joinder of parties?

(4) Whether the suit is not maintainable in the present form?

(5) Whether the document dated 7‑12‑1963 was presented to the Joint Registrar and he refused registration?

(6) Whether the valuation of the suit for purposes of court‑fee and jurisdiction is correct, if not, what is correct valuation?

(7) Relief.

By judgment dated 16‑3‑.1965, suit was dismissed. It was held that Government was not a necessary party; that notice under section 80, Civil Procedure Code was not required to be served; that court‑fee paid on the plaint was adequate and that in absence of legal heirs of Hashim deceased suit could not proceed. On appeal, this decision was reversed, on 23‑9‑1965, by learned Additional District Judge, Jhelum and the suit was remanded for the plaintiffs to amend their plaint and implead the legal heirs of Hashim who were given an option to file their written statement. Concluding part of the remand order reads "in view of the above, I set aside the judgment and decree of the lower Court for failure to‑allow an opportunity to the plaintiffs to implead necessary parties and direct that the lower Court shall order the plaintiffs to implead the legal representatives of the deceased donor and to strike fresh issues in the light of their written statement submitted by the newly‑added party and proceed with the case in accordance with law". In post‑remand proceedings, Ladhu real brother, Mst. Hayat Nur real sister and Mst. Siftan allegedly divorced wife of Hashim deceased were impleaded as defendants in the suit. Defendant No. 1 submitted a separate written statement and resisted the suit. Defendants 2 and 3 submitted joint defence and consented to the claim of the plaintiffs. Defendant No.4 denied the divorce and pleaded that gift deed was a mere fabrication. She also asserted that dismissal of the earlier suit filed in respect of the same subject‑matter barred the present suit.

4. On 3‑1‑1966, trial Court added two more issues. These are:‑‑

(1) Whether Hashim deceased made a gift of the property in dispute in favour of the plaintiffs?

(2) Whether the deed of gift be registered under section 77 of Registration Act?

On 7‑3‑1966, plaintiffs chose to rely upon the evidence already on record and stated that they shall not produce further evidence. Defendants 1 to 3 made similar statements. However, defendant No. 4 requested for adjournment to record the statements of Ladhu and Mst. Hayat Nur. Trial Court by its order, dated 7‑3‑1966 declined adjournment, applied Order XVII, Rule 3, Civil Procedure Code and closed her defence. It may be noted here that though initially Mst. Hayat Nur had admitted the claim of the plaintiffs in her written statement yet she moved a petition for amendment of her written statement to repudiate her earlier stance. By order, dated 25‑4‑1966, learned Senior Civil Judge, on the aforenoted application observed" arguments have been heard. Mst. Hayat Nur has alleged in her application that the written statement filed on her behalf by M . M. Ramzan is quite unauthorised. It was prayed that she be allowed to amend her written statement. I do not think there is any ground for permitting Mst. Hayat Nur defendant No. 3 to amend her written statement. In written statement already filed, she very plainly admitted the plaintiff's claim. There is hardly any ground to allow her to file another written statement. The application is, therefore, dismissed. Be filed". On 25‑4‑1966, trial Court decreed the suit to the plaintiffs and directed Sub‑Registrar to register the gift deed, dated 7‑12‑1963. On issue No. 1, it was held that the deceased had executed Exh. D‑1. In regard to issue No. 2, it was held that since execution of gift deed was proved, plaintiffs were entitled to its registration. In regard to other issues already noted above, it was observed by trial Court, that those have already been decided by his predecessor and no fresh findings were given thereon.

5. Mst. Hayat Nur and Mst. Siftan appealed and put Ladhu in company of the respondents. Since Governments' interest were not involved in the litigation they chose to remain out of it. Records indicate that when the case was in the Court below, appellants (Mst. Hayat Nur, Mst. Siftan) had applied for the substitution of the legal heirs of Ladhu who was reported to have expired in the month of August, 1966 leaving him surviving heirs given in the application. Application is dated 7‑10‑1966. Despite death of Ladhu, and application for substitution of his legal heirs, no order was passed by the Court and Ladhu was continued to be shown as respondent in appeal. On 28‑1‑1967, learned District Judge accepted the appeal without indicating about the fate of the suit. Relevant observations made in the impugned decision are: "Learned counsel for the respondent on the other hand cited 1932 Cal. 588 to the effect that the trial Court had to frame only two issues regarding proper execution and presentation of the document and as such the other issues as urged by the appellants were unnecessary. I, however, do not agree with the learned counsel for the respondent. It was necessary for the learned Senior Civil Judge, to frame issues on the maintainability of the suit and court‑fee as well as on the allegations of document having been forged before he could consider the main issue regarding execution of the registered deed. He was also wrong in relying upon the issues framed and findings given by his predecessor because that judgment had been set aside in the order of remand. As it is, there is no evidence that an appeal had been filed before Registrar as required under section 72 of the Registration Act which could enable the plaintiffs to file a civil suit. Similarly the rejection of the request by Nlst. Hayat Nur for amendment of written statement without any enquiry on the subject was not justified. Considering the above facts, I accept the appeal and set aside the judgment and decree of the Court below. In the circumstances of the case, the parties are left to bear their own costs."

6. Aggrieved of the decision, plaintiffs preferred second appeal to this Court (R . S . A . 233 of 1967) on 25‑2‑1967. Appeal was accompanied by an application under Order XXII Rule 4 read with Rule 11, Civil Procedure Code for permission to implead 1‑1st. Munawar daughter of Ladhu deceased (C.M. 3‑C of 1967). This application was allowed on 19‑6‑1967 as "orders as prayed subject to all just exception". By a separate application (C.M. 3052‑C of 1970) appellants also prayed for substitution of legal heirs of Mst. Hayat Nur reported to have expired on 2‑11‑1969. She was survived by Fazal Hussain, Muhammad Hussain, Sabir Hussain, Noor Hussain and Mst. Ghulam Bi, her sons and daughter. This application came up for hearing on 7‑4‑1970. It was ordered that notices to the respondents as also the legal representatives of Mst. Hayat Nur be issued. Though the appeal was relisted for hearing on 14‑4‑1972, yet no order was passed on C.M. 3052‑C of 1970 till C.M. 728‑C of 1987 was moved by Muhammad Munir Peracha, learned counsel for the respondents praying for abatement of the appeal in its entirety.

7. Learned counsel for the parties have been heard and with their assistance, records have also been examined. At the out set, Muhammad Munir Peracha objected to the maintainability of appeal stating that it has already abated. It was submitted that Mst. Hayat Nur died on 2‑11‑1969. Her legal representatives were not substituted for her within time limited by law. Application for impleadment of legal heirs filed on 2‑4‑1970 was barred by time. Against this, it was argued on behalf of the appellants, that though the application was belated yet in the circumstances enumerated in the application (C.M. 3052‑C of 1970) of which there is no effective rebuttal, pleaded abatement cannot be given effect to and the appellants are entitled to bring the legal representatives on record and to have their appeal heard on merits. As far merits of the appeal, it was submitted by Malik Mukhtar Hussain, Advocate that the impugned judgments cannot be maintained because the lis has not been properly and satisfactorily disposed of. In this behalf, it was submitted by him that Ladhu respondent died on 2‑8‑1967 (correct date of his death is 18‑8‑1967) but his legal representatives were not brought on record within time limited by law. On these premises, it was argued that the appeal of Mst. Siftan and Mst. Hayat Nur stood abated. Muhammad Munir Peracha, in reply, submitted that the appellants had filed an application for substitution of legal heirs of Ladhu deceased in the Court below on 7‑10‑1967 and if the Court omitted to make a proper order thereon, it was no fault of the appellants and their appeal could not be dismissed as having abated. Learned counsel referred to unamended Order XXII, Rules 4, 11, Civil Procedure Code. First hurdle to be crossed before consideration of the merits of appeal is the question of abatement. It was stated in the application that the legal representatives of Mst. Hayat Nur had assured the appellants that they have already filed an application for bringing them on record and it was in this view of the clear assurance that the application was delayed. Factual averments in the application and the affidavit submitted in support thereof were not controverted by a counter‑reply or counter‑affidavit. In this state of records, there is no difficulty in accepting the factual version given in the application. Therefore, finding that the appellants had sufficient cause to offer, pleaded abatement is set aside and the legal representatives of Mst. Hayat Nur are brought on record. This brings me to the consideration of merits of the appeal. It raises following points:‑‑

(1) Absence of decision on the application for substitution of legal representatives of Ladhu deceased respondent and their non‑hearing; (2) Effect of the evidence recorded in absence of legal heirs of Hashim and its evidentiary value on their rights; (3) Effect of Order I, Rule 10(5), Civil Procedure Code and section 22 of Limitation Act, 1908 qua the impleadment of legal heirs of Ladhu;

(4) Whether Order XVII, Rule 3, Civil Procedure Code was correctly applied for closing defence of defendant No. 4 and whether Mst. Hayat Nur could be permitted to retract from her former written statement;

(5) Whether order of refusal was made by an Authorised Registrar and appeal there from was not competent:

(6) What is the effect of not recording separate findings on the issues framed in the pre‑remand and lastly whether partial registration of the deed when some admit and others deny its execution was possible under the law.

When the case is examined in the light of the points formulated above, it is clear that the controversy has not been properly and satisfactorily adjudicated upon by the learned Judges of .the Courts, below. I shall first advert to the contention that the appeal before the District Court had abated. Death of Ladhu in month of August 1967 is not denied. It is also not denied that application for substitution of his legal heirs was filed in time. Order XXII, Rule 4 read with Rule 11, Civil Procedure Code governs the dispute. In its unamended form, all that Rule 4 required was that an application should be made in time and the rest was left to the Court. In Abdul Samad and others v. Wasal and others A I R 1957 Rajasthan 302 it was observed that "an application must be made for bringing on record those persons who had the right in law to continue the suit filed by the deceased plaintiff that is who represent him for the purpose of prosecuting the suit. If 'heir names have been brought to the notice of the Court, it becomes the duty of the Court to array them as party, whether as plaintiffs or defendants. Order XXII, Rule 3(1) is purposely worded in sufficiently wide language. Once the Court is made aware of the persons who are in the position to prosecute the suit, it is left to it to make them a party". All that was required of the appellants had been done by them and if the Court omitted to make a proper order on their application, they are not to suffer. Additionally, Ladhu's heirs some of them were already on record were impleaded in second appeal by an order of this Court. Other question that arises, is about the effect of non‑hearing of Mst. Munawar Bi by the first Court of appeal. It has been observed in Allah Rakha and others , v. Noor Hussain and others P L D 1967 Lah. 594, Sohrab and 9 others v. Riasat Ali and 3 others P L D 1973 Note 92 at p. 138, Ch. Karam Rabbani and 11 others v. The Central Exchange Bank Ltd. Lahore (In Liquidation) through Official Liquidator, State Bank of Pakistan, Lahore and 3 others P L D 1973 Lah. 695 that a decree passed after the death of a party to a suit or appeal is not an absolute nullity. The mistake can be rectified if the Court sets aside the proceedings taken after the death of the deceased and directs that the case be retried in the presence of the legal representatives from the stage which it had reached immediately before the death. In this view, question of prejudice suffered in the result of non‑hearing gets prominence. Legal representatives take up the case from the stage at which it was when the death of the party whom they represent took place and carry on the defence already taken by their predecessor‑in -interest and cannot assert their own rights. In the instant case, Ladhu had conceded the claim of the plaintiffs. In this circumstance, there was nothing left for Mst. Munawar Bi to agitate against. In my view, therefore, she is not shown to have suffered any prejudice and it shall serve no useful purpose to remand the appeal to the learned District Judge for its hearing on merits in her presence. Gift deed is dated 7‑12‑1963. Its executant died on 17‑12‑1963. Beneficiaries under the deed presented it for registration before the Joint Registrar on 20‑12‑1963. Since the executant was dead and was not available to admit or deny the execution of the gift deed, suit filed to compel its registration could not proceed in the absence of the heirs of the alleged donor. These persons were clearly necessary parties to the correct constitution of the suit under section 77 of Registration Act 1908. Registrar was not a necessary party to the suit. See Wishwambhar Pandit alias Nana Maharaj v. Prabhakar Bhat Bin Janardan Bhat I L R VIII Bombay (1884) 269, Radhakissen Rowra Dakna v. Chooneeloll Dutt I L R V Cal. (1880) 445, Baikuntha Kumar Shil v. Sarat Chandra Nath and others A ,I R 1925 Cal. 1257, Parma Nand v. Ghulam Hussain Shah and others A I R 1929 Lah. 416. In a decision reported as A I R 1945 Madras 11, it has been ruled that ordinarily neither the Registering Officer nor the Government is a necessary party to a suit for compulsory registration of a document. Where, however, no one is opposing the registration but the Registering Officer not being satisfied with the genuineness of the document, of his own accord, refuses to register it, the Registering Officer is the proper defendant. In this view of the law, suit was remanded on 23‑9‑1965 with direction to implead the legal heirs of Hashim deceased. In terms of Order I, Rule 10(4)(5), Civil Procedure Code read with section 22 of Limitation Act 1908, proceedings against any person added as defendant shall be deemed to have begun only on the service of summons (emphasis supplied by me). Therefore, evidence recorded in absence of legal heirs of Hashim and before they were brought on record could not be held binding upon them and used as admissible evidence against them. Aforequoted rules of law are quite clear. They prohibit the use of material collected against the party in its absence. Analogy of the effects of setting aside of ex parte decree under Order IX Rule 13 is apt, where-under it has been ruled that the effect of an order setting aside an ex parte decree is that all proceedings from the stage of defendant's non‑appearance are set aside and do not bind him, that is, if the defendant's non‑appearance is condoned by setting aside of the ex parte decree, evidence recorded in his absence will not bind him. There are number of judgments to support this statement. See Selvarayan Samson v. S. Amalorpavanadam A I R 1928 Madras 969(2), Bhagwan Singh v. Ali A I R 1934 Lah. 45, Mst. Lakshmi Devi v. Roongta and Co. and others A I R 1962 Allah. 381. Therefore, unilateral expression of opinion by the plaintiffs that they relied upon the evidence already on record does not bind the defendants who were not party to this statement and are not shown to have consented to the reception of this evidence against: them. Evidence recorded in pre‑remand proceedings, therefore, cannot be made use of against the defendants. Section 77, Registration Act says that where the Registrar refuses to register the document to be registered under section 72 or 76, any person claiming under such document or his representative, assign or agent may within 30 days after the making of the order of refusal, institute in the civil Court within the local limits of whose original jurisdiction is situate the office in which the document is sought to be registered, a suit for a decree directing the document to be registered in such office if it be duly presented for registration within thirty days after the passing of such decree. Period of limitation prescribed for filing of a suit is thirty days. It commences from the date of refusal but if the order was made in absence of the concerned party, limitation shall commence from the date of communication of the order of refusal. The effect of impleadment of legal heirs of Hashim after the expiry of prescribed limitation also required to be examined that is whether the suit against them was barred by limitation. Another point which equally required consideration was whether the refusal was made by the Registrar (Joint Registrar) and from his refusal, suit could be competently filed in the civil Court under section 77 of the Registration Act. In default of proper evidence, finding on this issue cannot be recorded. Finally, action of the trial Court in applying Order XVII Rule 3 for closing evidence of defendant No. 4 cannot be endorsed. There is yet another point which may need the attention of the trial Court and that is whether partial registration of the deed in case some admit and others deny its execution could be competently ordered. For all these reasons, this appeal is allowed and the case is remanded to the trial Court for deciding of it afresh in accordance with law and the observations made above. It shall be open to the learned trial Judge to resettle issues keeping in view the scope of inquiry in suit under section 77 of the Registration Act and for the parties to lead fresh evidence for which purpose learned trial Judge shall allow them an adequate opportunity. Dispute relates to a large tract of, valuable property. Despatch, no doubt, is good but justice is still better. I am not unmindful that this litigation has been going on ever since 1964 but the remand was inevitable and was made with great reluctance. Costs of this appeal shall be borne by the parties as incurred. Records be returned to the trial Court where the parties shall appear on 20‑3‑1988. As the case has already suffered immense delay, learned trial Court shall endeavour to conclude the trial within nine months under intimation to Additional Registrar, Lahore High Court (Rawalpindi Bench).

A. A./S‑214/L Case remanded.