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Rent Appeal No. 186 of 1986,decided on 3rd August, 1986.
‑‑S. 115‑‑Transfer of Property Act (IV of 1882), Ss.58 & 59‑‑Mortgage deed, execution of‑‑Proof‑‑Concurrent finding of Courts below‑ Revisional jurisdiction, exercise of‑‑Plaintiff totally denying execution of mortgage deed of his house in favour of corporation and receipt of consideration through cheque‑‑Burden being on petitioner to prove that disputed cheque was credited into particular account of plaintiff the same was not discharged by corporation as banker in whose banks cheque was alleged to have been credited not produced in evidence‑‑Mortgage deed was executed by plaintiff's son by committing forgery and amount was also misappropriated by him‑‑Concurrent finding of two Courts below that alleged mortgage deed was forgery and that amount of cheque was misappropriated by plaintiff's son was upheld by High Court in exercise of revisional jurisdiction.
Khalilur Rehman for Applicant.
The applicant, House Building Finance Corporation, has filed this revision to challenge the two judgments and decrees of the Civil Judge and the Appellate Judge.
The respondent Syed Siraj Ahmed's suit for declaration that the mortgage deed which is alleged to have been executed by him in favour of the applicant was a forgery and that he has not received any consideration for the same.
The applicants took up the position that they had paid a sum of Rs.10,000 before the Sub‑Registrar at the time of the execution of the mortgage deed. It, however, appears that it was the son of the applicant who had forged the signature of his father and had got the amount of Rs.10,000.
The finding of the Civil Judge is that the mortgage deed was a forgery and that the amount of cheque had been misappropriated by Muhammad Qasim, the son of the respondent. Further fact which is important to note is that Qasim has been actually convicted on this account at the instance of the applicant.
Mr. Khalil's main contention was that after all a payee's account cheque which had been issued by the applicant, and since it had proved that its own account had been debited to that extent, therefore, it had the right to recover the sum from Siraj Ahmed who must be presumed to have received the amount of that cheque. So far as presumption goes Mr. Khalil would be right but the matter has gone to A the Court and it has been found as a fact that the amount has been misappropriated by Qasim. The least that the applicant could do was to summon that banker in whose bank the disputed cheque was credited. The defendant /applicant did not do so it merely contented itself to rely upon a presumption.
In view of the definite statement made by Siraj Ahmed that he had not received that cheque the burden was upon the applicant to prove that in actual fact the cheque had been credited into that particular account of Syed Siraj Ahmed which the present respondent Siraj Ahmed had in a particular bank but that has not been done and, therefore this revision is not found to be justified. Accordingly, it is dismissed in limine.
H . B . T . / 5187 / K Revision petition dismissed
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