' One Jamdad Khan son of Umar Khan resident of Village Yaqoobi, Tehsil Swabi, District Mardan (now deceased) was the owner of agricultural land comprising Khasra Nos. 1438 etc. (fully described in the heading of the plaint) measuring 133 kanals 5 marlas, situate in Village Yaqoobi, Tehsil Swabi, District Mardan. This Jamdad Khan migrated to Thailand sometimes during 1930s and settled therein. He had a wife by the name of Mst. Halima, two sons Mir Ghawas and Karimdad and two daughters Mst. Salima and Mst. Bakhto, who were with the exception of Mir Ghawas Khan residing with him in Thailand as the Nationals of that country. Karimdad predeceased his father. It has been contended that the said Jamdad Khan returned to Pakistan leaving behind his wife and children in Thailand sometimes in 1958 and died at his village Yaqoobi in 1960. The appellant Aziz Khan son of Samundar Khan of the same village is sister's son of said Jamdad Khan, who had been attending to his property during his absence and was entered in the record of rights as tenant at will in the said land under his maternal uncle the said Jamdad Khan. Sometimes after the demise of Jamdad Khan one Faiz Muhammad (defendant No, 5) son of Rasool Khan of the village Kalu Khan, Tehsil Swabi, District Mardan, who had an uncle in Thailand, on receiving the news of the death of his uncle in that country went to Thailand for taking into possession the estate of his deceased uncle. This Faiz Muhammad on his return to Pakistan on the basis of a power of attorney alleged to have been executed by the heirs of Jamdad Khan deceased executed a sale deed in respect of the whole of the agricultural land of Jamdad Khan mentioned above in favour of his two brothers, Faiz Mohammad and Wall Mohammad and Wisal Muhammad his minor son (hereinafter called the plaintiffs), against a consideration of Rs, 1,30,000, which was received by him before the Registrar on 15-2-1966. This sale was given effect into the revenue record by attestation of mutation No, 5631 on 16-3-1966. Prior to attestation of the said mutation the aforementioned Aziz Khan, defendant No, 1 and now appellant before this Court, got a mutation entered on the basis of a gift deed purported to have been executed in his favour by Jamad deceased of the said land.
This mutation was entered at serial No, 5628. The Revenue Officer concerned on 16-3-1966, while attesting the former mutation in favour of the plaintiffs rejected the latter one. Being aggrieved of the rejection of the mutation in his favour and of the attestation of the sale mutation in favour of the plaintiffs the defendant No, 1 instituted two separate appeals before the Collector on 20-3-1966.
These appeals were dismissed. After the attestation of mutation No, 5631 above, the Deputy Commissioner, Mardan vide his letter dated 20-9-1966, directed that the said mutation be rejected, as he had received an intimation from the Embassy of Pakistan at Tailand to the effect that the power of attorney attested by them in favour of Faiz Mohammad was a bogus document which was not executed by the widow and daughters of the deceased Jamdad Khan. With the rejection of the sale mutation the plaintiffs were directed to seek their remedy in the Civil Court. Later on proceedings on revision and review etc. Before the Revenue Authorities against the aforesaid order failed.
2. It was in consequence of the direction of the Revenue Officer that the plaintiffs, on 11-2-1970, instituted the suit, being 85/1 of 1970, in the Court of the learned Civil Judge, Mardan for obtaining a declaration that the plaintiffs had acquired the lands belonging to Jamdad Khan hereinafter called the suit land) vide valid sale deed executed on 15-2-1966 and that defendants Nos. 2 to 4 the heirs of Jamdad Khan deceased, were left with no right of ownership or possession in the suit land and that the rejection of the sale mutation vide order of the Collector, Mardan dated 20-9-1966. Was ineffective and void on their rights and that the plaintiffs were not bound by the same rejection of mutation, who have become full owners of the suit land by the above-mentioned transaction and that the attorney of the heirs of the deceased, namely Faiz Mohammad was a lawfully constituted attorney of the heirs of deceased Jamdad Khan, who had validly transferred the land in their favour and thus the said sale deed was valid and effective in their favour. In the alternative the possession of the suit land was asked for as a consequential relief in case the plaintiffs were not found in possession of the suit land. In this suit Aziz Khan son of Samundar was arrayed as defendant No, 1, while the heirs of deceased Jamdad Khan, excepting the other daughter, Mst.
Bakhto, and the attorney, Faiz Mohammad were arrayed as defendants 2 to 5 in the suit. Faiz Mohammad Khan confessed judgment while Aziz Khan defendant No, 1 hotly contested the suit and placed his own title in the suit land as donee from the owner Jamdad in defence of the suit. The heirs of Jamdad Khan i,e, defendant 2 to 4 were not served directly and substituted service by publication of the notice in the daily Mashriq of Peshawar was ordered against them. On the publication of the notice in the said Newspaper, defendant No, 5 Faiz Mohammad accepted service on their behalf as their general attorney.
3. The learned Civil Judge, Mardan after framing the issues on the points of controversy between the parties and after recording evidence, his judgment, dated 27-2-1971, dismissed the suit, as according to him both the contesting parties could not prove their respective claims and counter- claims as raised in the case. They were left to bear their own costs. The plaintiffs took an appeal to the learned District Judge, Mardan against the judgment and decree of the trial Court and so did defendant No, 1, Aziz Khan, who preferred a separate appeal against the said judgment and decree, in which once again the defendants-respondents 2 to 4, were not directly served but a substituted service was effected on them by publication in daily Mashriq Peshawar. In consequence whereof they were proceeded against ex parte in the hearing of the appeals. The learned District Judge on 17-3-1973, accepted the appeal of the plaintiffs and decreed their suit for the declaration and for possession as prayed for by them against the defendants. The learned District Judge dismissed the appeal of respondent No, 1, Aziz Khan Fide the same judgment and left the parties to bear their own costs.
4. There are two Regular Second Appeals filed by defendant No, 1, Aziz Khan (1) against the acceptance of the appeal of the plaintiffs and (2) against the dismissal of his appeal in the first appellate Court. One of the heirs of deceased Jamdad Khan, namely Mir Ghawas his son for the first time appeared in these proceedings by filing the Cross-Objections on 7-5-1979, wherein he alleged his unawareness of the proceedings before the lower Courts as well as of the filing of the appeals in this Court till then. The objector claims in the Cross Objections that he came to Pakistan a few months prior to filing of the Cross-Objections and that Faiz Muhammad (defendant No, 5) was not attorney of the objector. The power of attorney in his favour was alleged as being fictitious and forged and therefore, the sale transaction by him as their agent to the plaintiffs was a void and fraudulent transaction. It was further alleged in the Cross-Objections that defendant- respondent No, 5 had further practised fraud in transferring the property of his alleged principals to his own minor son. The appellant Abdul Aziz Khan was represented in this Court by Khawaja Mushtaq Ahmad, Advocate of Lahore while the plaintiffs were represented by Qazi Abdur Rashid, Advocate. Mr. Abdul Samad Khan, Mr. Fazal Elahi Khan, Advocates represented Mir Ghawas Khan objector.
5, 1 have heard the learned counsel for the parties at great length and have also perused the record. The learned counsel for the plaintiffs-respondents raised the following preliminary objections to the competency of the appeals in this Court :-
(i) That the value of the suit being less than Rs, 2,000 a Second appeal under section 100 of the Code of Civil Procedure was not available to the appellant by virtue of section 102 of the said Code.
(ii) That the decision of the learned Courts below on Issue No, 5 i,e, the claim of ownership of the appellant on the basis of the gift was a concurrent finding on a question of fact, which was not amenable to the jurisdiction of this Court under section 100, C. P. C.
' The first preliminary objection of the learned counsel for the plaintiffs-respondents is based on the applicability of section 102 of the Code of Civil Procedure as substituted for the original section by Item 3 of the Schedule relating to the Code of Civil Procedure to the Law Reforms Ordinance, 1972, which reads as under :-
102. No second appeal in certain cases:- No second appeal shall lie-
(a) in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed five thousand rupees; and
(b) in any other suit, when the amount or value of the subject-matter of the original suit does not exceed two thousand rupees."
' The above-quoted Ordinance came into force on 14-4-1972 and has not been given retrospective effect. As the right of appeal is a substantive right and was available to the parties at the beginning of the action it would only be taken away by the express intendment in the subsequent amendment of law. The plaintiffs as stated above instituted the suit on 11-2-197 when right of second appeal was available to the parties under section 100, C. P. C. This being a substantive right remained intact by virtue of section 6 of the General Clauses Act, 1897. In this view of the matter, I find no force in the contention of the learned counsel for the respondents and hold the instant appeals competent under section 100, C. P. C. In spite of the curtailment of the right of second appeal by section 102 ibid.
6. As regards second preliminary objection the learned counsel has placed reliance on a number of decisions of the superior Courts. The first of these being Supreme Court of Pakistan in Malik Muhammad Hayat Khan v. Sub. Yar Muhammad Khan (1), in which their Lordships distinguished a question of fact from that of law and held :- "(1) The proper legal effect of a proved fact is essentially a question of law, but the question whether a fact has been proved when evidence for and against has been properly admitted is necessarily a pure question of fact.
(2) Where the question to be decided is one of fact, it does not involve an issue of law merely because documents which were not instruments of title or otherwise the direct foundations of rights, but were really historical materials, have to be construed for the purpose of deciding the question."
' It was argued before the learned Judges on behalf of the respondents in that case that the compromise effected only a family settlement, was a finding of fact, as even though it depended upon the construction of a document, namely, the terms of the compromise, that construction had been made on the basis of the surrounding circumstances. Their Lordships relying on an earlier decision of the Privy Council (45 I A 183/187) resolved the question as under :- "We see no reason to depart from this enunciation of law and applying the tests in the present case we find the question that fell for consideration was as to what was the true intent of the parties to be gathered from the terms of the compromise. In order to ascertain this true intent the surrounding facts and circumstances could legitimately be looked into but this did not, in our view, make it a question of fact, for, the question nevertheless remained as to what was the legal effect of the said compromise decree."
' It does not need any further elaboration to state that this authority rather goes against the respondents in that in the instant case the question which remained for decision is the legal effect of the deed of the gift, which is alleged to have been executed in favour of the appellant by the original owner of the suit land and the legality of the gift itself in the attending circumstances thereof. I need not enter into further discussion on this point by referring to the other authorities cited at the Bar by the learned counsel for the respondents as a careful perusal of them all takes one to the (1) PLD 1966 SC 612 same conclusion that wherever the legal effect of the document in the context of the attending circumstances are to be applied, the question essentially remained of law and would always be amenable to the jurisdiction of this Court under section 100 of the Code of Civil Procedure.
7. The learned counsel for the respondents has also objected to the competency of the Cross- Objection filed on behalf of Mir Ghawas defendant respondent on the ground that the said respondent had not filed an appeal, against the decree. He, therefore, cannot be allowed to challenge the same in Cross-Objection. The Cross-Objections have also been objected to on the ground that the photostats of the judgment annexed to the Memorandum of Cross Objections are of the certified copies obtained by the appellant Aziz Khan, which shows that the Cross-Objections have been filed in collusion with the appellant,
8. It may be taken into consideration at this stage that after the decision of the suit Record Room of the District Mardan was burnt out and all the records stored therein were destroyed. The case-file before the Court at this moment is one which is reconstructed with the help of the parties to the suit. It has been explained on behalf of the Objector that at the time when Cross-Objections were filed the records having been destroyed the certified copies of the judgments could not be obtained. Even on the reconstructed file, the copies of the judgments placed were those which were supplied by the parties to the Court. The photostats appended to the Cross-Objections are the photo copies of those documents and therefore, bear the same particulars of the certified copies as are given on the copies supplied to Aziz Khan appellant. This explanation clears any doubt of collusion, which might have been caused due to these photostats. As regards the competency of the Cross-Objections the learned counsel for the plaintiff-respondent relied on a passage from the "Commentary on Civil Procedure in British India" By Sir Johan George Woodroffe, Kt. M. A. B. C. L. And Frank James Mathew, edition of 1916 on Rule 22 of Order 41 of the Code of Civil Procedure relating to the Cross-Objections. It reads "A respondent, when the decree is against him, cannot (unless he has filed a cross-appeal) be heard except to support the decree, and can only alter it by means of a cross-appeal."
' This passage is based upon Casperz v. Kishori Lal Roy Chowdhury (1). Order XLI, rule 22 of the Code of Civil Procedure is as follows: "(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court see fit to allow.
(1) (1896) 23 Cal. 923 ' In Ramasray Singh and others v. Bibhison Sinha and others (1) wherein a similar objection was taken, it was held :- "This right to file a cross objection is not limited in the way suggested by the respondent. If an appeal is filed the respondent to the appeal without filing any appeal can take cross objection to the decree on any ground on which he could have filed an appeal."
' Relying on the above-noted case a Single Bench of this Court in Khawar All Shah and 2 others v.
Syed Murtaza Shah, Sub-Inspector, Police and others (2) had held :- "Under Order XLI, rule 22, C. P. C. Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the appellate Court within one month from the date of the service on him or his pleader of notice of the day fixed for hearing the appeal or within such further time as the Appellate Court may see fit to allow."
' While dealing with an almost similar question in Khawaja Muhammad Naeem and others v.
Tasleem Jan and others Civil Revision No, 368 of 1974, decided on 15-10-1979, 1, respectfully agreeing with the dictum of law laid down in the above-cited authorities, stated :---:- "I am of the opinion, that the petitioners had a statutory right to challenge the whole of the decree before learned Appellate Court by way of cross objection even on the expiry of the period of limitation for filing an appeal, when other side of the defence did file an appeal before the learned Appellate Court."
The above-cited authorities would clearly show that the law on the subject has undergone a substantial change since the decision mentioned by the above learned commentators was cited.
The objection taken to the competency of the Cross-Objections on behalf of the respondent, therefore, being of no force has to be overruled.
9. Now coming to the merits of the case the plaintiffs-petitioners have striven to get the sale of the suit property effected in their favour by defendant No, 5, Faiz Muhammad validated by obtaining declaration from the Court. On the other hand, respondent No, 1, the present appellant claims that by virtue of the gift deed (Exh. D. W. 1/1) Jamdad Khan, the original owner, on 9-4-1960, while he was alive, had gifted away the suit land to him and delivered its ownership possession also on the same date to him and as a donee he is still in possession of the land. The plaintiffs claim that the transaction effected in their favour was by way of a registered sale deed (Exh. P. W. 2/3) and because the alleged gift was made under an unregistered deed the deed in their favour would have preference over the latter. In this regard, sections 48 and 50 of Registration Act, 1908 have been pressed into service and reliance has been placed on Messrs Rehman Cotton Factory v.
Messrs Nichimen Co. (3) and Pordil Khan v. Sufaid Gul (4), in support of the contention that an unregistered deed cannot have preference over a deed which is registered. Now by virtue of section 17 of the Registration or (1) A 1 R 1950 Cal. 372 (2) PLD 1969 Pesh. 203 (3) PLD 1976 SC 781
(4) PLD 1965 Pesh. 259 Act, a gift deed ir-regarding the value of the property gifted, is compulsorily registrable. The effect of the non-registration of the gift deed as per section 49 of the Act, would be that it shall not operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or in the suit land and under section 50 of the Act, a registered document would take effect against sale deed. The position in the instant case is that an unregistered gift deed has been entered into evidence by defendant No, 1 for the collateral purpose of proving the nature of his possession on the suit land, the document in question is admissible in evidence for this purpose and it would be perfectly legal and valid for defendant No, 1 to show in defence as to in what capacity he was holding the possession of the land. In the Supreme Court's decision relied on by the learned counsel for the respondents their Lordships of the Supreme Court after reiterating the legal position that unregistered instrument requiring compulsory registration but not registered does not create right, title etc. In the immovable property have clearly declared that such instrument can be received in evidence for collateral purposes. Similarly in the Peshawar case quoted on behalf of the respondents, which was of an unregistered deed which was prior in time to the registered one but was without possession it was held that unregistered deed cannot have precedence over subsequent registered deed. In this case, section 53-A of the Transfer of Property Act was taken into consideration. In the instant case, admittedly the possession of the suit land is with defendant No, 1 and has never passed on to the plaintiff-respondents. In case the. Said defendant is not in a position to establish the legality of the donation in his favour section 53-A of the Transfer of Property Act, even if applicable, as alleged, would not come to his aid.
10. The plaintiff-respondents have claimed protection for the transaction in their favour under section 41 of the Transfer of Property Act, on the plea that although the possession of land was with respondent No, 1 but because it had commenced as a tenant at will and had not shown to have changed its character of being as of an owner by Hiba, the respondents could not be held to be aware of the change. This argument would have been available to the plaintiffs-respondents had transaction in their favour been free of the stigma of doubt on its genuineness.
11. Faiz Muhammad, defendant-respondent No, 5, purported to have acted under a power of attorney given to him on behalf of the heirs of Jamdad Khan deceased. This power of attorney a copy of which has been placed on record as Exh. D. W. 2/1 was admittedly scribed at Peshawar in Urdu language on which according to the said Faiz Muhammad, defendant the heirs of Jamdad Khan put their signatures in Bangkok and got it attested from the Official concerned of the Pakistan Embassy in Thailand. The date of execution is given as 24-12-1965, when the execution were admittedly in Peshawar. It was presented to the Embassay for attestation at Bangkok allegedly by Mir Ghawas defendant, one of the heirs of Jamadad Khan for attestation. At the time of attestation no other heir of Jamdad Khan was present. It was attested by the Embassy on 18-1-1%6 and Faiz Muhammad got it registered with the Sub-Registrar, Swabi on the basis of the said attestation on 12-2-1966. It is also in evidence that the said Faiz Muhammad got another power of attorney drawn and attested by a lawyer at Bangkok and English translation whereof has been placed on record. 1 his power of attorney was also got attested by an Officer of the Pakistan Embassy at Thailand. Thus armed with two powers of attorney Faiz Muhammad respondent on his return to Pakistan acted upon that which is exhibited as Exh. P. W. 2/1. This power of attorney purports to have been executed by Mir Ghawas son, Mst. Halima widow and Mst. Salima daughter of Jamdad Khan deceased. The existence of the second daughter of the deceased namely Mst. Bakhto as alleged by her mother Mst. Halima has neither been denied nor admitted by the contesting parties to the suit. It is also admitted that a little after the attestation of the power of attorney the Embassy of Pakistan at Bangkok in Thailand had addressed a communication marking it as most immediate and sent by Diplomatic Bag under their No, P. C. 3/5/63 dated 4-3-1966 to the Deputy Commissioner, Mardan, informing the latter that power of attorney in Urdu, a copy whereof was enclosed with the letter, was got attested by one Faiz Muhammad from the Embassy on the plea that it was executed on behalf of Mir Ghawas son, Mst. Halima, widow and Mst. Salima, daughter of Jamdad Khan and that a person by name of Mir Ghawas had presented the same to the Embassy for attestation. The power of attorney was returned to the said Mir Ghawas after having been attested. The Embassy added that :- "After a few days of the departure of Mr. Faiz Muhammad Khan the mother of Mir Ghawas Khan alongwith her two daughters (Mrs. Saleema and Mrs. Bakhto) turned up to this Embassy and stated that her thumb-impression and that of Mrs. Saleema were not genuine. The thumb-impressions, she alleged were those of the wife and daughter of Mir Ghawas. Mir Ghawas Khan did not also consult his other sister Mrs. Bakhto in the matter at all, who is also among the heirs of the property and visited this Embassy alongwith Mrs. Saleema."
' The Embassy further stated that on receipt of this information from the widow of the deceased the Embassy called upon Mir Ghawas several times to come to the Embassy for settling the dispute but he had not till the date of the communication appeared before the Embassy. This absence of Mir Ghawas was taken by the Embassy as a proof of the truthfulness of the allegations of Mst. Halima.
In view of the above, it was requested by the Embassy that no action on the said power of attorney should be taken. The District Magistrate was also informed through said communication that another power of attorney in English dated 6-1-1966, a copy of which was also sent to the Deputy Commissioner was also got prepared by the said Faiz Muhammad in Bangkok and got attested from the Embassy was also not to be acted upon. It was on the receipt of this communication that the Deputy Commissioner, Mardan issued orders that no action should be taken on these powers of attorney. In the meanwhile as earlier stated Faiz Muhammad, having got it registered on 12-2- 1966 from the Sub-Registrar, Swabi, executed the sale deed of the suit land in favour of his two brothers and minor son against an alleged consideration of Rs, 1,30,000, which he received from the said vendees before the Sub-Registrar. Whether this consideration received by the attorney reached the hands of his principals is also shrouded in mystery. Faiz Muhammad defendant in his statement contends that he had paid in advance a sum of Rs, 1,20,000 to the heirs of Jamdad Khan as consideration of this land before returning to Pakistan. If that was so what was in his way to obtain a proper legal conveyance of the property from the heirs of the deceased in Bangkok or, if he could not do so there, as he alleges in the statement because of the local laws, he could have easily obtained a proper power of attorney in favour of any another person in order to get the suit land conveyed in his own name. The act of the attorney which is wholly in his own favour by conveying the property of his principals to his own kith and kin, goes a long way to establish that the whole transaction from obtaining the power of attorney till the conveyance of the property by registered sale deed to his brother and son was a bogus and fictitious transaction. This state of the matter does not leave any necessity for examining the legal position vis-a-vis the preference of one deed to the other.
12. The gift deed alleged to have been obtained from the deceased Jamdad Khan during his lifetime by the son of his sister, Aziz Khan appellant also requires to be proved without any shadow of doubt in view of the circumstances attending the case in that it is alleged that during the last two years of his life the said Jamdad Khan had returned to Pakistan and was staying with respondent No, 1, who might have been exercising some undue influence on him. Validity of the gift could only be determined when the party, who as heirs of deceased, having right and interest in his estate were in a position to defend themselves. The learned trial Court has acted on the alleged power of attorney in allowing defendant. No, 5 to act in the case on behalf of defendants 2 to 4. The record of the case reveals even those heirs of Jamdad Khan who were arrayed as defendants and which did not include his daughter, Mst. Bakhto were not legally served in the trial of the suit. No attempt was made for serving the process on them through registered post acknowledgement due either directly on the addresses of the said defendants furnished to the Court by the plaintiffs or by despatching summons by registered post to the defendants through the Embassy of Pakistan in Thailand. Instead the resort was taken to publishing of a notice in a local daily of Peshawar which has a limited circulation within the confines of this particular region. The said Newspaper could by no stretch of imagination be considered to have ever reached the country wherein defendants in question lived. Rule 25 of Order V of the Code of Civil Procedure enjoins on the Court that wherever defendants reside out of Pakistan and have no agent in Pakistan empowered to accept service on their behalf the summons be addressed to the defendants at the place where they are residing and be sent to them by post. The recourse to the substituted service by publication in the Newspaper would have only been available to the Court in case the notices were at the first instance sent by post to the country of their democile and were not responded to. The direct service became more so essential as the defendant No, 1, at the very outset took the plea that the alleged power of attorney and the sale deed were both bogus and fictitious. When the said objection was raised before the Court on behalf of one of the defendants, it became incumbent upon the Court to have at least once attempted to send the summons by registered post to the defendants in question. It is noted with regret that the learned lower Court did not pay any attention to the said objection of defendant No, 1 and accepted the position of defendant No, 5 as a legally constituted attorney of defendants 2 to 4. This omission on the part of the trial Court vitiate the whole proceedings of the trial vis-a-vis the said defendants. Similarly the learned District Judge Mardan fell into the same error in hearing the appeals on 23-9-1972, after having placed respondents 4, 5 and 6 ex part on the ground of publication of an advertisement in the Newspaper, as prior to this order, on 12-2-1972. The same learned Judge on the report of the process-server to the effect that respondents 4, 5 and 6 were residents of a foreign country, had passed an order to the effect that the service on the respondents be effected by advertisement in daily Mashriq, Peshawar an also directly by registered post acknowledgement due through the Embass of Pakistan in Thailand for 23-9-1972. The record reveals that no notice was addressed to the said respondents by post through the Embassy and the order in question to that extent remained uncomplied with. It was only after an advertisement was published in daily Mashriq Peshawar, issue of 18-7-1972, that the said ex parte proceedings were taken against them. Thus there is ample force in the contention that the defendants who were the real successors of the interest of Jamdad Khan in the suit land were purposely and intentionally kept out of the proceedings by defendant No, 5 in the original Court. They were also not property served for the appearance in the appeals in view of the foregoing reasons.
13. In view of what has been stated above on the question of the genuineness of the power of attorney as well as on the transaction of sale of the suit land in favour of the plaintiffs-petitioners, there seems great force in the reasoning of the learned trial Court in holding the documents in question bogus and fictitious and not conferring any right or interest on the plaintiffs in the suit land. As the decision of the learned trial Court did not result in any manner whatsoever affecting the rights and interests of the defendants 2 to 4 even the non-service of the said defendants in the trial of the suit did not result in damaging their interest and as that decision is, for the reasons which would follow, to be maintained, the reopening of the case on remand for want of service on the said defendants would not be warranted.
14. The learned District Judge in reversing the findings of trial Court on the sale in question has been influenced with the registration of power of attorney with the Sub-Registrar, Swabi and has built up the argument that the Collector was not competent to reject the power of attorney on the basis of a letter from the Embassy as it was a registered document and also that the Collector could not assume the powers of a Civil Court in not acting thereon. The argument might seem attractive, but it has no substance. The registration of a document does not import into it something which is not there. Its efficacy is not enhanced or increased by the registration. In the instant case the power of attorney was registered on the basis of its supposed authentication by the Pakistan Embassy. None from the allege executors of the instrument was before the Registrar. But as presumption of correctness was attached to it under section 85 of the Evidence Act because of its attestation by a foreign Mission of the Government of Pakistan, it was registered on the said presumption. This presumption is always rebuttable. The attestation of a document as such by an officer of the Embassy at the face of it did not leave any doubt for the Sub-Registrar t not to presume that it was not so attested. When on the discovery of fraud the Embassy itself rescinded the attestation then the very basis of the presumption of correctness attached to it was shattered. The learned District Judge has overlooked the fact that the document in question was not rendered so sacrosanct by its registration, that even the rebuttals of its genuineness by the at testator himself would not leave it unaffected. The registration was the consequence of attestation. With the withdrawal of attestation the registration automatically fell to the ground. The power of attorney was, therefore, not a valid document ir-regard of its registration, after the receipt of intimation of forgery in its execution from the attesting Authority.
15. As far as the action by the Collector on the receipt of this information is concerned, it was the only possible and just thing which could be done under the circumstances. He cancelled the mutation and asked the persons claiming title under the said questionable document to establish their rights in a civil Court. Thus the revenue authorities did not assume the functions of a civil Court, rather compelled the party concerned to take recourse to the adjudication of the dispute by the civil Court which could only be a competent forum available in such matters as was in hand.
16. Consequently, no exception could be taken to the impugned orders of the Revenue Authorities.
17. As far as the case of the gift of suit land in favour of Aziz Khan is concerned, the evidence brought by him on the records does not substantiate his claim. The conduct of the appellant during six long years i. e. From 1960, the alleged year of the demise of Jamdad Khan and 1966, when his inheritance mutation was entered, in not asserting his title as a done; rather not allowing the alleged gift deed to see the light of the day, either during the life of donor or after his demise, goes a long way in casting doubt on the authenticity of the gift document. It is also not proved from any evidence that the donor ever delivered possession of the gifted land to the appellant in consequence of the gift to complete the gift and make the transaction valid. In the absence of delivery of possession to a donee, gift does not become valid under Muhammadan Law. Indeed even the return of Jamdad Khan to Pakistan and his death in his village at the stated time has not been proved. Both these facts, had these been actual facts, could have been very easily proved by the appellant by production of the passport of the deceased as he was alleged to have died after return from Thai land when the appellant was his only relation residing there who might have come into possession of the effects of the deceased after his demise. The death should have been entered with the village Chaukidar. In the ordinary circumstances the appellant would have been the first person to report the death of his uncle to Revenue Authorities and while getting the mutation of inheritance of the deceased entered in Roznamcha would have asked the Revenue Authorities to mutate the land in his name as a donee from the deceased.
18. From the evidence on record it can be reasonably presumed that it was only after Faiz Muhammad (defendant 5) returned from Bangkok with the above-mentioned forged power of Attorney that the appellant felt the need to assert his own title in the land in order to save himself from the possible dispossession of the eviction from the suit lands by his hands. I, therefore, find much force in the findings of the Courts below on Issue No, 5 and have no reason to interfere with the same.
19. For the foregoing reasons, one of the appeals, the one which is against the decreeing of the suit of the plaintiff-respondents by the District Judge, Mardan on 17-3-1973, is accepted and the judgment under appeal is reversed. The second appeal from the dismissal of the appeal of Abdul Aziz Khan appellant by the said Court is dismissed. Consequently, the suit of the plaintiff- respondents stands dismissed. The Cross-Objections also succeed in these terms. Parties to bear their respective costs.