AMIN-UD-DIN KHAN, J.---Through this appeal appellants, who are plaintiffs of a suit for specific performance, have challenged the judgment and decree dated 12.6.2004 passed by learned Additional District Judge, Kehror Pacca District Lodhran, whereby appeal filed by the respondents- defendants was accepted and the judgment and decree dated 20.2.2001 passed by learned Civil Judge 1st Class, Kehror Pacca decreeing the suit was set aside.
2. Brief facts of the case are that on 7.2.1996 plaintiffs-appellants filed a suit for specific performance on the basis of registered agreement to sell document No, 119 registered on 19.1.1995 for a land measuring 40 kanals 18 marlas in accordance with Register Haqdaran Zameen for the year 1992-1993, fully described in the head-note of the plaint. Written statement was filed, suit was contested, agreement was denied and it was stated that same is forged and fictitious one and it was also pleaded that when defendants came to know about the forged and fictitious registered agreement to sell on their behalf in favour of plaintiffs-appellants they filed a suit for cancellation of the said document. Subsequently both the suits were consolidated in a suit for specific performance filed by the appellants-plaintiffs, as the same was prior in time. Record shows that defendants-respondents filed a suit for declaration and cancellation of document on 12.2.1996. The learned trial court framed the consolidated issues, invited the parties to produce their respective evidence. Plaintiffs-appellants produced their oral as well as documentary .evidence. Despite availing sufficient opportunities defendants-respondents failed to produce evidence, therefore, their right to produce evidence was closed. Learned trial court decreed the suit for specific performance whereas after closing the right to produce evidence of defendants, who were also plaintiffs in a suit for declaration and cancellation of documents, their suit was dismissed on 20.2.2001. Two appeals were filed by the respondents of the instant appeal; one against grant of decree for specific performance and the second against the consolidated judgment whereby their suit was dismissed. Learned first appellate court accepted the appeal against the judgment and decree whereby suit for specific performance was decreed and dismissed the appeal against the consolidated judgment and decree whereby suit for declaration and cancellation of document was dismissed on the ground that appeal is barred by time. Respondents have not challenged before this Court the judgment and decree whereby their appeal was dismissed. The instant appeal has been filed by the plaintiffs of a suit for specific performance.
3. Learned counsel for the appellants argues that when agreement to sell is registered one and five witnesses have been produced by the plaintiffs and further the circumstances of this case are very peculiar when respondents have also filed a suit for declaration and cancellation of documents and their suit was dismissed and appeal was also dismissed and they have not challenged the same before any higher forum, therefore, prays for acceptance of the appeal and restoration of the judgment and decree passed by the learned trial court whereby their suit for specific performance was decreed.
4. Learned counsel for the respondents argues that findings recorded by the learned first appellate court are very exhaustive and well-reasoned. Further argues that though their suit for declaration and cancellation of document has been dismissed and dismissal decree is intact, states that it makes no difference. Prays for dismissal of the appeal.
5. I have heard learned counsel for the parties at length, gone through the record appended with this appeal and findings recorded by both the courts below.
6. Agreement to sell is registered one. Plaintiffs have produced PW-1 Registry Moharrir, PW-2 Qamar Ahmad Petition Writer, PW-3 marginal witness and it is stated that the other marginal witness Abdul Hameed is near relative of Vendors-defendants, which fact has not been denied by the other side. Alamgir, Lumberdar has been produced as PW-4 and Khan Muhammad plaintiff appeared as PW-5. When it is stated that the other marginal witness of the document i,e, Abdul Hameed son of Fakhar-ud-Din is near relative of the vendors-defendants as stated by PW-3 who is son of the plaintiff and defendants have stopped him from appearance as a witness, this fact has not been denied by the other side, therefore, same is presumed to be admitted. It is admitted that under the law when a portion of the statement which remains unchallenged or the other side fails A to rebut that fact that evidence or statement is presumed to be admitted one. The fact that Abdul Hameed signed this document, who is near relative of the vendors-defendants but if as per the vendors-defendants this is a forged and fictitious document what was the fun to mention near relative of the vendors as a witness upon this document and getting his signatures as a witness upon this document, furthermore, respondents have not produced Abdul Hameed as defendants witness. Reference can be made to the judgments of this Court reported as 2015 YLR 500 "Munir Alam and 2 others v. Mehboob Alam" and 2014 YLR 767 "Muhammad Ashiq Khan v. Muhammad Sharif and 5 others".
7. Another important fact is that a registered document carries presumptions attached to it under sections 35, 47 and 60 of the Registration Act, 1908 and under Article 90 of the Qanun-e-Shahadat Order, 1984 and the Court will presume correctness of the registered document in accordance with the presumption attached unless it is disputed. Though the vendors-defendants disputed the document Exh.P.1 (Registered agreement to sell) by filing a suit for cancellation of document, certainly a suit for cancellation of document is filed under section 39 of the Specific Relief Act, 1877 and if a document is' void or voidable the cancellation can be ordered and in case of registered document, a copy of the decree is sent to the officer in whose office the instrument has been registered so that he may contain copy of the decree in his book. I am of the considered view that a suit for cancellation of documents is filed by a party when it is admitted that document has been got prepared/executed by the party who is challenging the same and praying that document be declared voidable. The vendors-defendants filed a suit for cancellation of the documents which was dismissed and appeal thereof also stood dismissed by the learned first appellate court and they have not challenged concurrent dismissal judgments and decrees before this Court, therefore, their stance that document is forged and fictitious one vanishes and presumptions of existence attached to the document are available in favour of the document. Light can be taken from the judgment reported as AIR 1926 Madras 744 "(Kalakantharam) Rukmani Ammal v. Ka Ki Ankama Naidu and others". I quote relevant observation which reads as follows:-- "In cases where a document has been executed and registered and the question arises as to the date it bears there can be little doubt that the presumption is that the document was executed on the date it bears, and the onus is on the contesting party to show that it was not. In all such cases lapse of time does strengthen the onus cast.
8. It was a case of shifting of onus of proof when registered document was challenged by the vendors in their written statement submitted in a suit for specific performance filed by appellants and they opted to file a suit for declaration and cancellation of document. Both the suits were consolidated and proceedings were ordered in suit for specific performance filed by appellants.
Appellants produced their evidence and right to produce evidence of respondents was closed after applying penal provisions of Order XVII, Rule 3 of the C.P.C. Suit of respondents for cancellation of document (agreement to sell) stood dismissed and appeal was also dismissed as barred by time and same has attained finality. Now comes the second limb of litigation i,e, suit for specific performance. As noted supra when plaintiffs of a suit for specific performance produced their voluminous evidence, in rebuttal nothing is available on the file as right to produce evidence of respondents was closed and they have not tried to get the same set aside from the superior forum.
In my considered view when registered agreement to sell was having presumptions attached to it under the Registration Act, 1908 as well as Qanun-e-Shahadat Order, 1984 mentioned supra, it was a case where initial onus was upon the defendants-vendors who challenged the execution and registration of the document and thereafter it was a case of shifting of onus upon the beneficiaries of the document. When defendants have not produced an iota of evidence and furthermore they never appeared before any forum in person right from learned trial court up to this Court when they opted to appoint their attorney for pursuing the matter, in these circumstances, by no stretch of imagination the validity and execution of registered agreement to sell Exh. P.1 can be thrown out of consideration on the ground that second witness of the agreement has not been produced by the plaintiffs-appellants though the plaintiffs-appellants have explained that the said witness is near relative of the vendors-defendants, which part has not been denied by defendants. I am of the view that an agreement to sell is not a document whereby the plaintiff of a suit is the beneficiary because it is reciprocal it may be that in an agreement to sell the vendor be a beneficiary of the document because both the parties are required to fulfill their part of contract agreed by them.
9. Further very important factor is that vendor never appeared before the learned trial court, learned first appellate court or this Court in person to defend the suit for specific performance and to pursue their own suit. Record shows that the alleged vendors appointed one Abdul Rehman son of Ghulam Rasool as their general attorney through an unregistered power of attorney dated 17.10.1996 same is on stamp paper and attested by the Notary Public, for pursuing their case before the learned trial court. Even during the first appeal they did not bother to come to the court personally to file appeals. First appeal was filed before this Court as R.F.A.No,190 of 2001 subsequently when the jurisdictional value of learned District Judges was enhanced the appeal was transmitted to the court of learned District Judge, Lodhran and finally heard and decided by the learned Additional District Judge, Lodhran. Appeal was filed through another attorney namely Abdul Latif Ghauri son of Fakhar-ud-Din. This special power of attorney is dated 2.3.2001. The signatures of all the three vendors are available on both these power of attorneys which can be compared with the signatures of the vendors available on the registered agreement to sell. I am conscious of the fact that if court wants to compare signatures the powers are with the court under Article 84 of the Qanun-e-Shahadat Order, 1984 but under the law interpreted by this Court and the august Supreme Court the comparison must be made in the Court in the presence of the parties. I am not relying upon this comparison but noting that by naked eye signatures of the vendors upon these three documents seems to be similar.
10.In this view of the matter, I am of the considered view that findings recorded by the learned first appellate court are not sustainable under the law and court travelled on the wrong side and unnecessary lengthy findings have been recorded.
11. The upshot of the above discussion is that this appeal is accepted, judgment and decree passed by the learned first appellate court is set aside and that of learned trial court is restored.