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Second Appeal No. 396 of 1979, decided on 30th August, 1986.

‑‑‑S. 54‑‑Registration Act (XVI of 1908), Ss. 60 & 75(3)‑‑Sale of property‑‑Execution of sale‑deed‑‑Genuineness of‑‑Proof‑‑Where execution of sale‑deed, duly registered under law was proved by vendor and one of its attesting witness, presumption of genuineness, held, would attach to such document.

‑‑‑S. 54‑‑Registration Act (XVI of 1908), Ss. 71, 72 & 75‑‑Sale‑deed, execution of‑‑Proof‑‑Sale‑deed in respect of property in dispute was duly presented before Sub‑Registrar for registration, but registration was refused‑‑Appeal was filed against decision of Sub‑Registrar before Registrar‑‑‑ Registrar accepting appeal directed Sub‑Registrar to register sale‑deed‑‑Sub‑Registrar, issued notice to vendor, but on his failure to appear before him, document was registered‑‑Execution of sale‑deed and sale consideration thereof, held, proved in circumstances.

‑‑‑S. 54‑‑Registration Act (XVI of 1908), S. 60‑‑Sale‑deed‑‑Execution of‑‑Proof‑‑Where registration of sale‑deed once was proved and admitted, presumption, held, would attach to genuineness of such document unless rebutted by convincing and cogent evidence.

‑‑‑S. 54‑‑Sale‑deed, execution of‑‑Minority of vendor‑‑Proof‑‑Court of competent jurisdiction in determining matter of age of vendor in previous suit found that vendor was not minor‑‑Appellant failed to prove that vendor was minor at time of executing alleged sale‑deed. Findings of Courts in previous suits, held, would be binding against vendor and his legal heirs.

A I R 1941 Cal. 4 ref.

‑‑S. 54‑‑Sindh Incumbered Estates Act (XX of 1896), Ss. 12, 14 15‑‑Property subject‑matter of sale‑deed executed before taking over of same under Incumbered Estate Act, held, would not fall within purview of that Act, especially when constructive possession of such property was delivered to vendee.

Abdul Qadir Halepota for Appellant.

Muhammad Sharif for Respondent.

Date of hearing: 25th August, 1986.

The respondent Abdul Razzak brought a suit in the Civil Court for declaration and injunction stating that he had purchased a shop situated at Dhota Naro from one Ali Gohar by registered sale‑deed on 22‑8‑1956. The shop was in possession of a tenant Ali Bux who started paying rent to the plaintiff /respondent at the rate of Rs.80 per month. After the sale in 1968 Ali Gohar went under the protection of incumbered Estate. He died about 5 or 6 years before the filing of the suit of the respondent. After his death, on the representation of a relation of the deceased the Manager Incumbered Estate asked the Mukhtiarkar Umerkot for holding enquiry and report. The respondent appeared before the Mukhtiarkar and produced his evidence and the Mukhtiarkar made his report to the Manager Incumbered Estate that the representation had no substance. Before the filing of the suit the respondent received a notice from the Manager Incumbered Estate to stop realising rent from Ali Bux and also to deposit the rent realised by him till then. The respondent appeared before the Manager and made a representation in writing but did not succeed. Thereafter, he filed suit for declaration that he is rightful owner of the shop in question, and that the Manager had no power or jurisdiction to question the title of the respondent, and that his order calling upon the respondent to deposit the rent realised and not to realise the same in future is illegal.

The suit was filed against the Deputy Commissioner and Manager Incumbered Estate. In the written statement it was denied that the respondent had purchased the shop in dispute. It was, however, stated that Ali Gohar was minor at the time of alleged sale and was not sole owner of the property in question. The property was under his superintendence and, therefore, action was justified. The tenant of the shop namely, Ali Bux had paid rent to the plaintiff /respondent for some time under fraud and misrepresentation of facts. The pleadings of the parties gave rise to the following issues:‑‑--

(1) Whether the suit is barred by section 42 of the Specific Relief Act

(2) Whether the suit is insufficiently stamped

(3) Whether the sale alleged to have been made by Ali Gohar is illegal, ultra vires and void

(4) Whether the suit is not maintainable

(5) Whether the plaintiff is owner of shop in question

(6) Whether the plaintiff got possession of shop in question on 22‑8‑1956

(7) Whether the order of the respondent asking Ali Bux not to pay rent to the plaintiff and calling upon the plaintiff to deposit the rent realised from Ali Bux are mala fide void, and illegal

(8) What should the decree be

The learned trial Judge decided issues Nos. 1, 2, 3 and 4 in the affirmative and issues 5, 6 and 7 in the negative and consequently dismissed the suit.

2. The Respondent /plaintiff being aggrieved filed appeal against the judgment and decree of the trial Court. The appeal was accepted by the learned District Judge on 24‑5‑1979. It was observed by the learned District Judge that the Manager of the Incumbered Estate had no jurisdiction as he had failed to comply with the provisions of section 12 of the Incumbered Estate Act (hereinafter referred to as the Act), and, therefore, the order of the Manager calling upon the respondent to deposit rent was void, so also the action of the Manager in dismissing the claim of the respondent was illegal and void. The learned District Judge set aside the finding of the learned Civil Judge on issues 1, 2, 3, 4, 5 and 6 and consequently granted the declaration prayed for by the plaintiff /respondent.

3. I have heard the learned counsel for the parties. Learned counsel for the appellant has submitted that the plaintiff has failed to prove the execution of the sale‑deed, and even otherwise the sale was without consideration. In this context it is contended that the execution of the document was not admitted by the appellant. The scribe of the document has not been examined. According to the document Khair Muhammad is the scribe but according to the plaintiff Feroa Khan is the scribe but these witnesses have not been examined. The document has been produced through the attesting witness Muhammad Yaqoob which is admissible under section 68 of the Evidence Act. It is not necessary to examine the scribe of the document. The vendor and one of the attesting witness had been examined and they have proved the execution of document. The document was presented for registration and it was duly registered and thus presumption of its genuineness attaches under the provisions of sections 60 and 75(3) of the Registration Act. It is contended by the learned counsel for the appellant that the vendor had not appeared before the Sub‑Registrar and it is, therefore, presumed that the document had not been executed. After the refusal of the registration of the document by the Sub‑Registrar appeal under the law was filed before the Registrar and the Registrar had directed the Sub‑Registrar to register the document. Sub‑Registrar had issued notice to the vendor but as he failed to appear therefore, the document was registered. Thus, the document not only proved its execution but also sale consideration.

As regards the lack of consideration, apart from the recital of the document, the vendee and the attesting witness have proved the consideration. It has not been denied by the appellant that the sale‑deed does not bear the signature of its execution. Once registration is proved and admitted presumption attaches to the genuineness of such document unless it is rebutted by convincing and cogent evidence. Learned counsel has relied upon the case of Gagamoyi Debi v. Troilockhya Nath Chowdhry and another Volume XXXIII Indian Appeals page 60. The additional facts which support the case of the respondent are: (1) the document was executed in 1956, (2) the vendor Ali Gohar had died somewhere in 1962, (3) the Manager had taken action in 1966. The suit was filed in 1967. The property of Ali Gohar was taken under the Act in 1958. Learned counsel for the respondent has stated that upto 1966 the title of the respondent was not challenged. He used to get the rent of the shop in question from Ali Bux who was occupying the stop at the time of sale. Learned counsel for the appellant has submitted that Ali Bux has not been examined, therefore, it cannot be said that the rent was ever paid by tenant to the respondent. This contention has no force. It is even admitted in the written statement that the respondent had received the rent from Ali Bux though it is stated that he had received the rent on mis‑representation or fraud but the appellant or the Manager have failed to show that the rent was received by the respondent on misrepresentation of fraud. The respondent was clothed with a document and on the basis of a registered document he was receiving rent from Ali Bux. Non‑examination of Ali Bux would not non‑suit the plaintiff/ respondent.

The next objection raised by the learned counsel for the appellant is about the age of Ali Gohar. He was minor at the time of alleged sale therefore the document is nullity in law. Learned counsel has placed reliance on the school register which shows the age of Ali Gohar at the time of execution of document to be 16 years. According to the school register he was born in the year 1940. The learned trial Judge has discarded the statement of Khan Muhammad but accepted the statement of Muhammad Idrees who produced the General Register of the School. The learned District Judge has observed that entries are not free from doubt as it was made on the next page after the entries on the previous page were closed with entry No. 72. The Assistant D.E.I. had observed that the age certificate from Nos. 68 to 72 were not complete and they should be prepared again. The page on which this entry appears is written in fresh ink and contains only three entries. It is neither in conjunction with the entries on the preceding page nor in conjunction with the entries on the succeeding page. The learned District Judge has also taken notice of the inspection notes of D.E. 1, which reads as under:‑‑

"The General Register is checked. Headmaster has acted in most irresponsible manner. He has to initial the same which he has not done. He has not complied with the previous directions. The Headmaster was warned strictly not to issue certain Certificates from this register and so on."

Learned counsel for the appellant has shown this Register to me but it is not possible for me to give any finding contrary to what the learned District Judge has said as certain entries are missing. Learned District Judge has relied upon A I R 1941 Cal. 4, wherein it has been observed that statement in School Register about the case of a person in absence of evidence as to show on what material entry was made has no such evidentiary value. The mother of Ali Gohar had given his age 26 or 27 years at the time of transaction in question. Even if we exclude this statement the other material on record would show that said Ali Gohar was major at the time of execution of sale document. Ali Gohar did not raise any objection after the execution of document. According to the respondent he used to receive the rent from the tenant after the execution of sale‑deed. The said Ali Gohar died after about 6 years of the execution of the document but he did not raise any objection or challenge the title of the respondent. Exhs. 20 and 21 are the two judgments in which minority of Ali Gohar was considered. Suit No. 2 of 1954 was between Abdul Ghafoor and Muhammad Hashim through his legal representative Ali Gohar and Suit No. 36 of 1954 was between Abdul Rashid and Muhammad Hashim through his legal representative Ali Gohar. In Suit No. 24 issue No. 3 was framed whether the defendant is minor" and it was observed by the Court that the defendant Ali Gohar failed to discharge his burden. In Suit No. 36 issue No. 4 was about the minority of Ali Gohar and this issue was also decided against him. These suits were filed in 1954. Learned counsel for the appellant has stated that these suits were not between the same parties and, therefore, the finding in these judgments would not be considered in the present suit. This contention has no force, because a Court of competent jurisdiction had determined en issue which is subject‑matter of the present suit also. It had been determined that Ali Gohar was not minor. The minority of Ali Gohar had been determined in those suits, therefore, the finding in those suits are relevant in the present proceedings also. Those findings are binding against Ali Gohar and his legal heirs.

In the suit the plaintiff had made the prayer that the plaintiff is rightful owner of the property and the defendant that is the Manager Incumbered Estate has no power to question the title of the plaintiff. Under section 15 of the Act the Manager shall inquire into the history and merits of every claim received under sections 12 and 14. In the instant case the plaintiff had not made any claim under the Act but his case was that he was absolute owner of the disputed shop after he had purchased it from Ali Gohar. The constructive possession of the shop was delivered to him. The document was executed before the property was taken over by Manager under the Act. In this context A I R 1927 Sind 225 and A I R 1948 Sind 14 are relevant and apply to the facts of the present case.

It is also to be noted that Gazette, dated 27‑6‑1985 shows the description of the property taken over by the Manager under the Act but the Shop in question has not been mentioned. Learned counsel for the appellant stated that the survey number of the property has not been mentioned as there is no survey number. This may be so but even the village of the description of the shop has not been mentioned in this notification.

For all the aforesaid‑ reasons this appeal has no force. It is hereby dismissed with no order as to costs. The appeal was dismissed by a short order, dated 25‑8‑1986. The above are the reasons in support of the same.

H. B. T. /5191/K Second appeal dismissed.

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