SAHIB NOOR Versus FEROZ KHAN

This revision petition arises from the judgment and decree of the learned Additional District Judge, Mardan dated 10‑11‑1986, affirming the judgment and decree of the learned Additional Civil Judge, Mardan, dated 6‑1‑1986, dismissing the suit of .the plaintiffs for joint possession of land measuring 53 Kanals and 14 Marlas fully described in the heading of the plaint and situate in the area of village Hathian, Tehsil and District Mardan.

2. The facts giving rise to this petition are that the plaintiffs, besides laying claim to the disputed land on the basis of its purchase from its owners Sher Wali and Mehr Wali by virtue of three registered sale deeds dated 23‑12‑1947, 11‑2‑1950 and 3‑7‑1950, had challenged the purchase thereof by defendant No. 1 on the strength of‑ Mutations Nos. 93, 2041 respectively attested on 5‑12‑1930 and 8‑10‑1956 and Mutation No. 2353 (wrongly described in the judgment of the learned trial Judge as Mutation No. 2853) as fictitious, forged, collusive and fraudulent.

3. The suit was vehemently contested by the defendant No. ‑1 on a number of factual and legal grounds. Besides denying the purchase of the suit land by the plaintiffs, the case of defendant No.1 as set up in the written statement and later substantiated by documentary as well as oral evidence was that the vendors of the plaintiffs were not possessed of any right in the land which they could sell to the plaintiffs and that in any case he had purchased the land in good faith with consideration and without notice of any sale in favour of the plaintiffs and, therefore, his rights stood protected under the law.

4. The pleadings of the parties were reduced into issues but for the purposes of this revision petition the following issues have survived for final determination:‑‑‑

(7) Whether the sale‑deeds are fictitious, forged, collusive, fraudulent which are void and ineffective, on the rights of the plaintiffs?

(8) Whether the plaintiffs are joint owners of the suit property vide registered deed dated 23‑12‑1947,11‑2‑1950 and 3‑7‑1950?

(9) Whether the rights of the defendants are protected under section 41 of the Transfer of Property Act?

(10) Whether the plaintiffs are entitled for the decree as prayed for?

The learned trial Judge took up issues Nos. 8 and 10 together and held that neither the original registered sale deeds photo copies Exh. PW.2/1 to Exh. PW.2/4 have been produced nor their execution was legally proved by examining the marginal witnesses and, therefore, the plaintiffs have not been able to prove that they had become owners of the suit land. As against this defendant No. 1 was held to have conclusively established his title by purchase through Mutations Nos. 93 and 2041 respectively attested on 5‑12‑1930 and 8‑10‑1956 while Mutation No. 2353 date of attestation whereof was not legible. He also held that the defendant having purchased the land in suit through the aforesaid mutations with consideration, in good faith and without any notice of the sales relied upon by the plaintiffs had become valid owner of the suit land. In consequence, issues Nos. 8 and 10 were decided against the plaintiffs while issue No. 9 was decided in favour of defendant No. 1. In view of these findings, the learned trial Judge, as stated earlier, virtually non‑suited the plaintiffs. Feeling aggrieved, the plaintiffs filed an appeal which was heard by the learned Additional District Judge, Mardan, who, while dismissing the appeal, held the view that claim qua the sale of the suit land in favour of the plaintiffs was not legally proved on the grounds; firstly; that plaintiff No.1 while appearing in the witness‑box produced only the photo copies of the sale‑deeds and the original deeds were not placed on the record; secondly, that notwithstanding unequivocal denial by defendant No.1 of the existence of any sale‑deeds, the marginal witnesses of the sale‑deeds, aforesaid were not examined in order to prove the execution thereof under the law and, thirdly, that the sale of the suit land had been completed in the years 1947 and 1950 but the transactions aforesaid were not incorporated in the revenue record for more than 30 years and affirmed the findings of the trial Court on issues Nos. 8 and 10. He further concurred in the finding of the learned trial Judge on issue No.9 and as a result thereof, he dismissed the appeal.

6. The plaintiffs‑petitioners, feeling still dissatisfied, have come up in revision to this Court.

7. Mr. Jalaluddin Khan; learned counsel for the petitioners, has questioned the findings of the two Courts below on the four issues reproduced in para. 4 of this judgment and urged that evidentiary value of sale deeds relied upon by the plaintiffs‑petitioners being registered was not at all adversely affected by their failure to produce the original deeds. He next submitted that the execution of the sale deeds being registered was itself proved without examining the marginal witnesses and in this context invoked the provisions of sections 52, 58 and 59 of the Registration Act, 1908. He also questioned the findings of the two Courts below on issue No .9 anal submitted that the Transfer of Property Act, 1882 was not applicable to N: W.F.P. and, secondly, that defendant‑respondent No.1. had failed to prove by any evidence that he had paid the consideration to the vendors or that he had diligently made enquiries about the genuineness of the title of the transferors.

Khan, learned counsel for defendant‑respondent No.1; had defended the judgments of the Courts below on the reasoning that prevailed with them.

9. The first contention urged on behalf of the petitioners that section 60 of the Registration Act (XVI of 1908) raises a presumption of valid execution of a document admitting its execution is not tenable. Section 60 of the Registration Act, does not help the petitioners inasmuch as it only provides that when a certificate containing the word `registered' is endorsed by the Registering Officer on the document, the document is admissible for the purpose of proving that it was duly registered in the manner provided by the Act and that the facts mentioned in the endorsement referred to in section 59 occurred as mentioned therein. Section 58 enumerates the particulars to be endorsed by the Registering Officer and these particulars do not include the factum of valid execution by the person purporting to have executed it. Section 52 of the Act only refers to the duties of the Registering Officer when the document is presented and has nothing to do with any endorsement regarding valid execution of the document. In this context I am fortified by the law laid down in Muhammad Jaffar Ali v. Muhammad Abdul h1ajid PLD 1968 Dacca 201 wherein a learned Single Judge observed as follows:‑‑

"This refers to presumption that all things done before the Registering Officer in his official capacity, and verified by his signature are done duly and in order. This has no reference to validity of execution of a document:"

It would be thus seen that there is no substance in the argument that there is a legal presumption arising from the registration of a document as regards validity of its execution.

10. In the instant case, as stated earlier, only photo copies of the alleged registered sale deeds were placed on the record by the petitioners and no further attempt was made to prove the authenticity of the transaction evidenced by them within the contemplation of Article 79 of Qanun‑e- Shahadat, 1984. Though the alleged registered deeds are shown to be thirty years old and, may, subject to Article 100 of Qanun‑e‑Shahadat, be presumed to have been properly executed and attested, still where direct evidence satisfying the requirements of Article 79 is available, the proof of the document should not be left to the presumption of Article 100. la the instant case neither the original registered sale deeds were filed nor two attesting witnesses thereof were brought into witness‑box to testify to the valid execution thereof as required under Article 79, nor it has been urged that the witnesses were either dead or were not available. There is also no prayer for proof of the said deeds through the secondary evidence as envisaged by Article 76. Thus the execution of the alleged sale deeds in favour of the petitioners which are the bed rock of. their case are of no evidentiary value arid have been rightly ignored by the two Courts below.

11. Much emphasis was laid by the learned counsel for the petitioners on the provisions of section 41 of the Transfer of Property Act (IV of 1882) to contend that the respondent was not bona fide transferee of the disputed land with consideration and without any notice of any rights of the answering respondent.

12. Section 41 of the Transfer of Property Act protects a transferee provided he acted in good faith and took reasonable care to ascertain that the transferor had power to make the transfer. In this exercise inquiry into valid title is involved. In the case before me, the respondent had been vigilant to rummage the older revenue record and presumably could not find any mutation evidencing the transfer of the land in favour of the petitioners as the alleged registered sale deeds did not find their way into the revenue record at all. The rights of the respondent were, therefore, rightly held to have been protected under section 41 of the Transfer of Property Act.

13. Thus looked from. any angle, the petitioners have not been able to convince that my interference under section 115, C.P.C. is called for in the instant case. Finding the petition without any force, I dismiss it with costs throughout.

AA./1403/P Revision dismissed.