MUSHIR ALAM, J.--- Through this revision the applicant has impugned concurrent findings recorded by two courts below.
2. Briefly stating the facts as may be relevant for the purpose of disposal of this revision are that suit land was granted to Abdul Ghafoor and Tayyab Hussain father and son and cited as defendants No, 1 and 2 respectively in F.C. Suit No, 185/1990 filed by one Muhammad Bashir Warraich, plaintiff. Said land was granted on Harap Condition by the Derange Authorities in 1964- 65 respectively followed by Ijazat Namas dated 17.12.1966 and 9.3.1967', respectively. It was claimed by the plaintiff in suit that the Defendants Nos, 1 & 2 had executed General Power of Attorney in favour of one Bisharat Ali the defendant No, 4 in the suit who in turn sold out the subject land to the plaintiff for a consideration of Rs, 50,000/-. Such statement was recorded by the Mukhiarkar and mutation was effected on 13.11.1989 and since then the plaintiff claims to be in possession of the subject land. However, on application of one Khursheed Alam the defendant No, 3 in the suit acting as a Registered Attorney for the defendants Nos, 1 and 2 said mutation/Khata in favour of the plaintiff was reversed and entry in the name of original Khatadar was restored by Assistant Commissioner Badin vide order dated 6.12.1990, whereby directions were given to get the title decided by the Civil Court.
3. Consequently the plaintiff filed a suit seeking following relief:---
(a) That this Hon'ble Court may be pleased to declare that the General Powers of Attorney by the defendants Nos, 1 and 2, in favour of defendant No, 3, is false, forged, fabricated and manipulated one and the same is not binding on the suit land as well as on the plaintiff.
(b) That this Hon'ble Court may further be pleased to declare that the order dated 6.12.1990, passed by the Defendant No, 6, regarding cancellation of mutation in the Record of Rights, regarding the suit land in the name of plaintiff, is illegal, mala fide, void, ab initio, without lawful authority and the same is liable to be set-aside and the land in suit be restored in the Khata of plaintiff without fail.
(c) That this Hon'ble Court may be pleased to grant a permanent injunction against the defendants, restraining them from mortgaging, transferring, selling, the suit ;and or interfering, selling, the suit land or interfering into the peaceful, cultivating possession of the plaintiff over the suit land, directly or indirectly, through their agents, servants etc.
(d) Costs of the suit be borne by the defendants.
(e) Any other relief this Hon'ble Court deems to be fit and proper.
4. Defendants Nos, 1 and 2 denied the claim in suit and maintained that the alleged Power of Attorney in favour of defendant No, 4 is forged. There is only one General Power of Attorney for them i,e, defendant No, 3 who is also related to them. On the pleadings of the parties following issues were framed:---
(1) Whether the General Power of Attorney executed by defendants Nos, 1 and 2 in favour of defendant No, 3 is false, forged and fabricated and not binding on the suit land as well as plaintiff?
(2) Whether the order dated 6.12.1990 passed by the defendant No, 6 is illegal, male fide and mala fide and without lawful authority?
(3) Whether the suit is not maintainable?
(4) Whether the plaintiff is entitled for relief claim?
(5) What should the decree be?
5. In support of his claim, Bisharat Ali examined himself and one Muhammad Zahoor whereas, the defendant No, 1 Abdul Ghafoor examined himself, Khursheed Alam and one Muhammad Sardar.
Learned Trial Court in appreciation of the evidence held and decided the issue No, 1 in favor of the plaintiff and held that the Power of Attorney purportedly in favour of the defendant No, 4 was real Attorney and the Power of Attorney executed in favour of the defendant No, 3 has got no legal effect, and the finding of issue Nos, 2 and 3 were also recorded in favour of the plaintiff. Such findings were maintained by the 1st Appellate Court.
6. Learned counsel for the Applicant contended that the suit is merely for a negative declaration without seeking declaration as to title was not maintainable, same ought to have been dismissed.
It was further contended that the case setup in the plaint was in fact contradicted in the evidence and new case was setup and such consideration prevailed upon the learned Court below. As against this learned Counsel for the respondent Mr. Jhemat Jethanand contended that the concurrent findings of facts recorded by two Courts below cannot be upset in revision as the finding are based on appreciation of evidence.
7. I have heard the arguments and perused the record.
8. Originally the case setup by the plaintiff in suit was that he purchased the said property through Mr. Bisharat Ali alleged Attorney of defendants Nos, 1 and 2 who was appellant before this Court on the basis of sale evidenced by a statement of sale before the Mukhtiarkar Golarchi, on 13.11.1989, vide entry Nos, 13 and 14 of the same date. The plaintiff deposed that the defendants Nos, 1 and 2 had disposed of the subject promptly and had executed a declaration/lqrarnama (dated 4.9.1977).
Same was produced as Exhs. 84 & 85 wherein, it is recorded that all the expenses in respect to subject land are received by them respectively. Such declaration is allegedly dated 4.9.1977 and allegedly bears signature of the defendants Nos, 1 & 2 in (Urdu) receipt in respect of the subject land as a sale consideration purported to have been signed by the Defendants Nos, 1 & 2 in Urdu.
Both dated 23.10.1973 have been produced as Exhs. 86 & 87. It is pertinent to point out that such facts were not pleaded in the suit. It was pleaded in the suit that the plaintiff had purchased the subject land against the sale consideration of Rs, 50,000/- paid to the defendant No, 4 as stated in para. 9 of the plaint. Whereas in evidence the case setup by the plaintiff was that the sale consideration was paid to the defendants Nos, 1 & 2 as far back on 23.10.1973 vide Exhs. 86 & 87 respectively. There is no explanation or plausible reason as to when the sale consideration was already paid. What necessitated further sale consideration as it is no body's case that subsequently the balance sale consideration was paid through defendant No, 4, what make such documents Exhs. 84 to 86 and 87 the alleged declaration and acknowledgments respectively doubtful. Firstly same were not referred to in the pleadings nor said documents were confronted to the defendant No,1 who appeared in the witness box.
9. The defendant in written statement had specifically taken up the plea that he cannot read and write Urdu and always endorses his signature in English whereas the documents including Ex. 84 to 87 purportedly bears his signature in Urdu. No efforts were made by the plaintiff/respondent to show same are the signatures of the defendants No, 1 & 2. The signature purportedly on other documents allegedly issued by. the Barrage Authority bearing signature of the appellants in Urdu were categorically denied by the defendant No,
1. He has also denied signature on said Exhibits of the defendant No, 2 which happens to be his son. The thumb impression was also denied in examination-in-Chief. The defendant No, I had categorically stated "I see Exhs. 78, 80, 79, 81, 84, 85, 82 & 83 and say that signature appended over it of mine or of my son in Urdu are forged and I have not signed over it. Defendant No, 1 also produced Power of Attorney executed by him and his son the defendant No, 2 as Exhs. 101 & 103 respectively in favour of the defendant No, 3 and so also an affidavit to above effect executed by his son as E.
104. The defendant No, 1 disowned the. Power of Attorney relied upon, by the plaintiff alleged to have been executed in favour of the defendant No, 4 from whom he claims to have purchased the subject land. The plaintiff setup the case in the plaint that the sale transaction was carried but in his favour by the alleged attorney defendant No, 4 by recording a statement but in evidence he had stated that the defendants Nos, 1 & 2 had executed Power of Attorney in favour of Bisharat Ali, original are lying in the office of Sub Registrar Badin. It was further stated that the said attorney had executed registered sale-deed in favour of the plaintiff. Perusal of the alleged Power of Attorney Exhs. 82 & 83 show that same are not. registered. Secondly no registered sale-deed alleged to have been executed in his favour by the defendant No, 4 was. produced nor the original of said Power of Attorney was produced. No sale consideration as alleged by the plaintiff was paid to the defendant regarding alleged sale whether by way of statement recorded before the Mukhtierkar nor, any consideration was alleged to have been paid by respondent No, 4 to the defendants Nos, 1 & 2 on behalf of the plaintiff. The learned Court below while holding that the power of attorney purportedly executed by defendants Nos, 1 & 2 in favour of defendant No, 4 as proper and legal had nothing, before it to substantiate and corroborate such stand when executant of a document appeared in witness-box and states that suchdocuments are not signed by him and no exercise. was carried out to ascertain the veracity of the signature on Ex. 82 to Ex.
87. It cannot be safely concluded that the same have been signed by the executant. Executant Abdul Ghafoor appeared and owned his signature and signature of his son Tayyab Hussain on the power of attorney executed in favour of the defendant No, 3 Exhs. 101, 103, & 102 which bears their signature in English. It would have been very easy and convenient for the learned Trial Court to have had obtained the specimen signature of the Defendants both in Urdu and English for the purpose of comparison or for referring the same to the hand-writing expert. In a case reported as Mrs. -Tahira Dilawar and 6 others v. Ghulam Samdani and others (1995 SCM R 246) the Apex Court as laid down following five criteria to examine disputed signature.
It was held at page No, 250.
10.A writing may be proved in any of the following ways:---
(i) by calling and examining the writer himself,
(ii) by the evidence of a person who saw the document being written;
(iii) by the evidence of a person acquainted with the handwriting of the writer;
(iv) by comparison of the disputed writing with the admitted writing of the writer; and
(v) by expert evidence.
11. In this case admittedly the executant had acknowledge his signature and signature of his son on the Power of Attorney Ex. 101 & Ex. 103 respectively, executed in favour of the defendant No, 3 that was the only admitted signature, available, in absence of any signature that could have been obtained by the Court itself. There was nothing on record to show that the defendants used to sign in Urdu. Even original Power of Attorney, purported to have been executed in favour of the defendant No, 4 was not produced, whereas, the power of attorney executed in favour of defendant No, 3 was duly registered. Presumption as to correctness of signature of executants are attached.
In cases of registered instrument as registered instruments are presumed to have been properly executed in terms of Section 129 of the Qanun-e-Shahadat Order, 1984 and to have undergone all formalities, including signature and thumb-impression by the executant thereof. A party, in whose favour statutory presumption is raised, such party' need not prove the fact on which it is based.
Burden to rebut such presumption lies on a party alleging a state of fact contrary to the presumption unless proved otherwise. In the instant case such presumption was not dispelled by the plaintiff. The entries in the revenue record were reversed on the basis of spot inquiry carried by the defendant No, 6 yet the plaintiff whose very title and the foundation to claim entitlement to the suit land on the basis of alleged sale, was challenged, yet declaration as to his title or validity of sale transaction was sought from the Court.
12. In my humble opinion the negative declaration is not ordinarily and generally granted Section 42 of the Specific. Relief Act, provides that any person entitled to any legal character or to any right as to any property may institute a suit against any person denying or interested to deny his title to such character or right. In this case admittedly despite serious challenge as to right and title of the plaintiff viz-a-viz suit property inasmuch as entry in revenue record in his favour Was reversed.
Merely challenging revenue entry without seeking declaration as to title or validity of alleged sale by the purported attorney the respondent No,
4. In may humble opinion is not sufficient without principally seeking a declaration as to his title or right to subject property as against the defendant Nos, 1 & 2. Where the very foundation of mutation entry in record of right is challenged than. The entry in the mutation record could only be challenged as a consequential relief resting on main relief as to right and title to the property based on validity of transaction in favour of plaintiff under circumstances. Plaintiff was obliged to seek declaration as to his. Title or entitlement to the property based on sale by validly constituted attorney and so also required to establish the same by leading evidence. In view of the foregoing discussion plaintiff having failed to seek such declaration suit simplicetor for cancellation of mutation entry was not maintainable 13.Needless to say that the entry in the records of rights does not create any right or title in the property. It is merely an evidence of title and a person challenging reversal of such entry is required to prove his right or title to the property which plaintiff has failed to seek and so also to prove.
14. Concurrent findings in revision are not readily interfered with, however where ,such findings are based on misreading of evidence, finding are perverse, fanciful and or based on inadmissible evidence then same could be corrected in exercise of Revisional Jurisdiction Such view finds supports from the cases escorted are Sheikh Muhammad v. Mst. Hasmat Sultana (1989 SCM R 34), Haji Muhammad Din v. Malik Muhammad Abdullah (PLD 1991 SCMR 291) and Mst. Shumal Begum v.
Mst. Gulzar Begum and 3 others (1994 SCM R 818).
15. For the foregoing reason this revision is allowed. Impugned judgment and decree dated 5.1.1.1998 passed by learned 1st Additional District Judge, Badin in C.A No, 3/1995 and judgment and decree dated 21.12.1994 and 4.1.1995 passed by the learned Civil Judge, Badin in F.C. Suit No, 185/1990 are set aside.