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Regular Second Appeal No. 14 of 1965, decided on 1st October 1976.

S. 101-Burden of proof-Original deed not produced before Court on ground of its having been lost and instead a certified copy thereof produced-Witness proving loss of deed stating appellant having left deed with him when appellant informed that witness was not Patwari concerned and that same should be taken to another Patwari-Leaving such a valuable document with an unknown person in manner stated -Difficult to believe-Original deed being not produced before trial Court despite same having been relied upon by appellants earlier before Revenue Court and factum of sale of land in favour of respondent purchaser having been admitted by respondent vendor, trial Court, held, justified in placing onus of proof upon appellants.-[Burden of proof].

Ganga Moyi v. Troiluckhya A I R 1933 Cal. 537 ref.

--S. 60-Presumption-Certificate of registration-Shows mere execution of document-No presumption, however, drawn of a particular person having really executed same-Alleged seller of land clearly denying to have executed registered sale deed and brandishing it as forged-Trial Court, in circumstances, held, to find out fact as to who executed deed under challenge and open to parties to prove their allegations-Presumption attached to registered documents, held, could not be drawn in circumstances.-[Presumption].

Piara v. Fattu A I R 1929 Lah. 711 distinguished.

Gopal Day and others v. Sri Thakurji and others A I R 1943 P C 83 rel.

-- S. 101-Burden of proof-Appellants never objecting to burden of proof having been wrongly placed upon them-Held, not competent to raise any objection in relation thereto at a late stage in High Court.- [Burden of proof].

Peddi Reddi Jogi Raddi v. Patient Chinnabbi Reddi and others A I R 1929 P C 13 and Bishambar Das and others v. Telu Ram and others A I R 1934 Lah. 1019 ref.

-- S. 65 (c)-Secondary evidence-Admissibility-Deed in question never entrusted to witness deposing as to its loss but stated to have been left in office of witness by appellant-Document in question in circumstances, held. could not be said to have been in custody of witness and as such his evidence rightly disbelieved.-- [Evidence].

Appreciation of-Evidence equally capable of two interpretations- Lower Court, in circumstances, held, could not be deemed to have misdirected itself by adopting one of them.

Pathana v. Mst. Wasai P L D 1965 S C 134 ref.

Ch. Muhammad Sarfraz for Mian Shafi for Appellants.

Malik Ashiq Hussain for Respondents.

Date of hearing : 1st October 1976.

The facts of the case are that Mst. Mehran, respondent No. 2, was the owner of 2/3rd of land measuring 742 kanals situated at Roda, Tehsil Khushab, District Sargodha. She sold her entire share, measuring 494 kanals 15 marlas, in favour of respondent No. 1:, Muhammad Azim on 5-3-1961, ride mutation No. 1217 Exh. P. 3 for consideration of Rs. 24,000. This mutation was sanctioned by the Revenue Officer concerned on 12-3-1961, after the sale in favour of respondent No. 1 was admitted to be correct by respondent No. 2.

2. The record shows that on the following day when the mutation was sanctioned, the appellants made an application before the Revenue Officer for cancellation of the mutation, as referred to above, on the ground that they had already purchased land measuring 428 kanals from mst. Mehran on 12-9-1957 through a registered sale deed for a sum of Rs. 12,000. It is interesting to notice that the original sale deed alleged to have been executed by Mst. Mehran, was shown to the Revenue Officer on 16-3-1961, when their application was dealt with by him. The Revenue Officer concerned accordingly made a report to the Collector after seeing the original sale deed that the mutation so entered in favour of respondent No. 1, required review. He therefore. sought permission to do the needful in this behalf. The permission sought for was granted to the. Revenue Officer who held a detailed inquiry into the matter in question and ultimately found that Mst. Mehran had never executed the sale deed, relied upon by the appellants and the said sale deed was a forged document He, therefore, by his order dated 20-6-1961 re-sanctioned the mutation of sale in favour of respondent No. 1 in respect of the land in question. The appellants challenged the validity of his order in appeal before she learned Collector but the same was dismissed by him, vide his order dated 30-9-1961 (Exh. P. 4).

3. Respondent No. 1, Muhammad Azim, filed the present civil suit for declaration during the pendency of the review proceedings, to the effect, that he was the owner of the suit land having purchased the same for consideration of Rs. 24,000 and the 'appellants had nothing to do with the same. He alleged that the sale deed alleged to have been executed in favour of the appellants by Mst. Mehran was a forged document and had been got registered by producing some other woman before the Registrar and as such fraud had been played in this regard. He also prayed for perpetual injunction against the appellants restraining then from interfering with his possession over the land.

4. Respondent No. 2. Mst. Mehran, admitted the factum of sale of the suit land in favour of respondent No. 1, by her in her written statement. She also admitted to have received the amount of Rs. 24,000 considera tion money and having delivered possession of the suit land, in consequence thereof. she further stated that she never executed any sale deed or any such document in respect of the suit land in favour of the appellants. The suit was contested by the appellants who Inter alia asserted the genuineness of the sale deed executed in their favour. After the two preliminary issues with regard to possession of the plaintiff over the suit land and value of the suit fixed for purposes of court-fee and jurisdiction were decided in favour of the .plaintiff-respondent, the learned trial Court framed further two issues on merits ; as to whether the plaintiff-respondent was the owner of the land in question having purchased the same from respondent No. 1, ride mutation. as referred to above, and whether the appellants were valid transferees of the land in dispute from respondent No. 2 for consideration through a registered sale deed dated 12-9-1957.

5. The learned trial Court decided the case in favour of respondent No. 1 and against the appellants. The appeal filed against the judgment .and decree of the trial Court by the appellants has also been dismissed after having been found that the sale deed relied upon by the appellants, is a forged document and Mst. Mehran never, executed the same and further that the sale transaction of the suit land made in favour of the Muhammad Azim, is genuine one.

6. The learned counsel for the appellants argued while relying upon certain authorities that registration is a solemn act to be performed in the presence of a competent official who acts as Registrar, whose duty is to attend to parties during the registration proceedings and see that proper persons are present who are competent to act and are identified to his satisfaction and as such all things done under his signature, will be presumed to have been duly done. He further contended that in view of his submissions onus of issue No. 5 has been wrongly placed upon his clients. The main contention of the learned counsel for the appellants, as put forward, is that the presump tion of genuineness on account of the registration has not been relied upon by both the Courts bolo N. According to him since the sale deed in favour of the appellants was duly registered by the Joint Registrar concerned, therefore, it should be deemed to have been duly executed by respondent No. 2, Mst. Mehran.

7. It may be mentioned here that the original sale deed alleged to have been executed in favour of the appellants, was not produced before the civil Court and instead a certified copy thereof was produced. It was alleged by the appellants that since the said document had been lost, therefore, its certified copy was relied upon. ,as mentioned above, the said document, in original was produced before the Revenue Officer on 16-3-1961 when he made a reference to the Collector, for review of the mutation, entered in favour of Muhammad Azim, plaintiff-respondent, with regard, to sale of the property. After he found the document to be bogus the same was not produced by the appellants before the civil Court while submitting their written statement there. In order to prove loss of the original sale deed, the appellants produced D. W. 3, Muhammad Hassan who claims to be the Patwari of village Roda in the year 1958. He has stated that when Muhammad Sher one of the appellants came to him and produced the sale deed in question before him in 1958, he asked him to enter mutation of sale on that basis, in favour of the appellants. The witness has stated that he told Muhammad Sher that he was not Patwari concerned whereas one Ghulam Jilani Patwari was incharge of the register of mutations. According to the witness in spite of that Muhammad Sher appellant left the document with him, in the office, and when Muhammad Sher came after some days to the office and inquired about the document the same was found to have been lost. This statement has been disbelieved by both the Courts below so far as the loss of the document is concerned. I have examined the statement made by D. W. 3. It does not at all inspire- confidence. The reasons given by both the Courts below for disbelieving his statement are quite genuine. It is difficult to believe that such a valuable document can be left with an unknown person[ in such a manner. Since the original sale deed was not produced by the; appellants before the learned trial Court in spite of the fact that the same have been relied upon by them before the Revenue Court and further in view of the fact that the factum of sale of land in favour of respondent No.1 having been admitted by respondent No. 2, Mst. Mehran, the learned trial Court was justified in placing the onus upon the appellants to prove' issue No. 5. So far as the execution of the sale deed is concerned, the same: is not denied, but the fact, as to who executed the same, in view of Mst Mehran's clear denial was to be found out by the learned trial Court anal for that reason, in the given circumstances, presumption as attached to also registered document could not be drawn in the case of the sale deed in question. The arguments of the learned counsel for the appellants put forward above, are based upon a judgment reported as Piara v. Fattu A I R 1929 Lah. 711 It has been observed there by the learned Judges that it is the duty of the Registrar to attend to the parties during the registration and see that proper persons are present who are competent to act and are identified to his satisfac tion. It means that if proper persons appear before him who are compe tent to act under the law, then the document having been registered by the official concerned would also carry presumption of having been executed and under the law certificate endorsed on the sale deed by the Registering Officer under section 60 of the Registration Act would be a relevant piece of evidence for proving the execution thereof. The point before the learned Judges in A I R 1929 Lahore was as to what was the effect of certificate of the Registering Officer with regard to the execution of the document. In that case the learned District Judge had altogether excluded certificate of registration from consideration on the ground that it was no evidence for the execution of the document. The Lahore High Court while relying upon Ganga Moyi v. Trolluckhya A I R 1933 Cal. 537 has held that certificate of registration cannot. be ignored. However, in view of the contentions raised by the respondent in that case that said certificate could not be relied upon having not been executed by the real persons the learned Judges held, that question whether such certificate would be sufficient to establish execution will naturally depend upon the circumstances of each and every case. For that purpose the case was remanded to the learned District Judge for the purpose of giving. opportunity to the appellant before the High Court to prove the identity of the thumb-impression of the executants on the deed with that, taken before: the Sub-Registrar.

In the present case, as mentioned above, original sale deed has not been placed upon the file by the appellants. Their version with regard to loss of the same has been disbelieved. Though in second appeal it is difficult to re-appraise the evidence produced by them in this behalf, however, it can be observed without any hesitation that the conclusion arrived at, in this regard, by both the Courts below, is quite reasonable. The learned counsel has also relied upon M. Ihtisham Ali and another v. Jamna Prasad and others AIR 1922 P C 56 to the effect that the evidence of a witness, who deposes to the loss of a document which should be fn his custody. is sufficient to allow secondary evidence. So far as the principle of law as laid down in that case is concerned there can be no dispute. The observations made in that case are to the effect that there is no doubt that such a document can be lost but in an ordinary case if a witness in whose custody such document should be, deposes to its loss, unless there is some motive suggested for his being untruthful. his evidence would be accepted as sufficient to let in secondary evidence of the document.

8. There is no doubt that the certificate of registration shows the execution of the document but no such presumption can be drawn there from that such and such person has really executed the same. In the given circumstances of the case it will be open to the parties to prove that the d document in question was not really executed by the person shown to have executed the same. according to the certificate of registration. It is exactly what the learned Judges in A I R 1929 Lahore have held. The certificate of registration is only to show the execution of the document, and presumption beyond that cannot be drawn therefrom. This view gains strength from Gopal Das and others v. Sri Thakurji and others AIR 1943 P C 83 holding that where the Registrar's endorsements made under section 60 of the Registration Act showed that in 1881 a person claiming to be Parahotam Das and to have become son of Harish Chandra by adoption made by his widow presented the receipt for registration and admitted its execution and was identified by two persons one of them was scribe of the document and was known to the Registrar, what remained to be shown was that the person admitting execution before the Registrar was Parshotam Das and no imposter. According to their Lordships of the Privy Council the question as to whether executant was Parshotam Das or any imposter was one of fact. However. the only presumption which could be drawn from the certificate of endorsement was that registration proceedings were regular and honestly carried out. It is clear that if in the given circumstances of a case genuineness or bona fide with regard to the execution of a document are in doubt then inquiry can be held in this behalf and no presumption to the effect that such and such document has actually been executed by a genuine person in all circumstances, can be drawn.

9. It has been argued with reference to Peddi Reddi Jogi Reddi v. Panem Chinnabbi Reddi and others AIR 1929 P C 13 that in a case where burden has been wrongly placed up on a party finding of fact arrived at by both the Courts below would not be binding and it will be necessary for the Court to see as to what is the true position. I have already observed that in the given circum stances burden was not wrongly placed upon the appellants so far as issue No. 5 is concerned. Even otherwise according to law as held in Bishambar Das and others v. Telu Ram and others A I R 1934 Lah. 1019 when a party accepts the burden of proof laid on him by the Courts below and undertakes to discharge it but fails to do so, he cannot in appeal turn round and say that he has not been fairly treated in the matter of burden of proof.

In the present case the appellants never objected to the burden having been wrongly placed upon them so far as issue No. 5 is concerned and as such at this late stage they are not competent to raise any objection in relations -thereto.

10. As discussed above, D. W. 3 Muhammad Hassan Patwari was never# entrusted with the sale deed in question which was just according to his statement, left in the office by the appellant Muhammad Sher. In the circum stances explained by this witness, it cannot be said that the document was ins his custody and as such his evidence has been rightly disbelieved.' In the: absence of any proof for loss of document certified copy of the sale deed, should not have been exhibited.

11. Both the learned Courts below have also discussed various circumstances for concluding that the sale deed alleged to have been executed in favour of the appellants, is forged one. The consideration amount shown. . to have been paid to the vendor was never paid before the Sub-Registrar. The sale deed was written by Abdur Rehman, Petition-writer but he was not .examined as a witness. He was summoned to the Court by the appellants only for the purpose of producing his register. He was never asked at whose instance be executed the document and whether the attesting witness thumb marked the document in his presence. He was never examined on the point whether respondent No. 2, Mst. Mehran, was present at the time of the execution of the deed and whether contents thereof were read over to her and she accepted them to be correct. Another attesting witness, Muhammad Nawaz has also not been produced. Copy of the sale deed placed on the file, shows that parties thereto were identified by Ch. Din Muhammad Pleader, Sargodha. According to the observations made by the learned District Judge, Ch. Din Muhammad was a practising lawyer even at the time when the appeal was decided by the learned lower appellate Court but he was never summoned by the appellants to prove the identity of respondent No. 2, Mst. Mehran, that she actually appeared before the Sub-Registrar and affirmed the contents of the document. The only witness who was produced .was Muhammad Hassan Patwari. According to his statement he was a chance witness. On the day when the sale deed was registered he had come to Sargodha in connection with some personal matter. He has admitted in cross-examination that he lives in a village at a distance of 9/10 miles from ;the village where Mst. Mehran resides and where the land in question is situated. He has further admitted that Mst. Mehran did not thumb-mark the sale deed in his presence nor did she thumb-mark the register of deeds in his presence. According to him the sale deed in question had already been completed before he reached the spot and he signed the document as attesting witness thereafter. In the given circumstances, as discussed above, both the Courts below have disbelieved his testimony and have held that the document in question has probably been manufactured through his efforts.

12. The statement of Mr. Sajjad Haider D. W. 1, Finger Print Expert produced by the appellants has also not been believed after having been ,compared with the version as given by an Expert of the Finger Print Bureau, Lahore examined on Commission, who has testified that the thumb-impressions on the register of the Petition-writer and on the receipt were not that of Mst. Mehran and did not tally with the sample thumb-impressions of her ,right as well as left band, taken in the Court. Several other factors have also .,been taken into consideration. The sale deed is alleged to have been executed in 1957 while mutation in this behalf was never got entered by the appellants till the land was sold away by Mst. Mehran to respondent No. 1. The origi nal sale deed was shown to the Revenue Officer on 16-3-1961 while the same was not produced before the civil Court in order to avoid the examination of the thumb-impression alleged to have been made by respondent No. 2. The land in question Is situated in Tehsil Khushab and the parties also reside there. Formally the sale deed should have been got registered at Khushab by the Sub-Registrar there, while it was presented at Sargodha for registration purposes. Both the Courts below have inferred from such conduct of the appellants that by this way they wanted to keep respondent No. 2 in dark, about the sale deed in question.

13. All the salient aspects of the case have been fully examined by both the Courts below and after appraising the evidence they have concluded that respondent No. 2 never executed any sale deed in favour of the appel lants while she sold the property to respondent No. 1. A9 held in Pathana v. Mst. Wasai P L D 1965 S C 134 even when evidence is equally capable of two interpreta tions the lower appellate Court cannot be deemed to have misdirected itself by adopting one of them.

In the present case I am of the view that both the Courts below have rightly appraised the evidence produced by the parties. According to Keramat Ali and another v. Muhammad Yunus Haji and others P L D 1963 S C 191 High Court has no jurisdiction to reverse concurrent finding of fact by Courts below and it cannot be upset by going into question of weight to be attached to a particular item of evidence.

14. The conclusion arrived at by both the Courts below in the present .case being a concurrent finding of fact with regard to genuineness or other wise of the sale deed in question, does not call for any interference by this Court. The appeal having no farce is hereby dismissed with costs.

S. A. H. Appeal dismissed.

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