AMIN-UD-DIN KHAN, J.---Through this civil revision, the petitioners, who are defendants in a suit for declaration, have challenged the judgment and decree dated 22.02.2010, passed by the learned Additional District Judge, Nankana Sahib, whereby the appeal filed by the petitioners was dismissed and the judgment and decree dated 15.06.2004, passed by the learned Civil Judge Class-II, Nankana Sahib, whereby the suit filed by the plaintiff/respondent was decreed.
2. The respondents were proceeded against ex parte vide order dated 04.02.2016. Thereafter, the respondents moved an application (C.M.No,01/2016) for setting aside the ex parte proceedings.
Notice was issued on that application to the other side. After that neither the applicants nor their learned counsel appeared before this Court, therefore, again they were proceeded against ex parte vide order dated 23.10.2017. Even, today, no one is present on behalf of the respondents; therefore, ex parte arguments of learned counsel for the petitioners have been heard.
3. Brief facts arc that the plaintiff/predecessor-in-interest of the respondents, on 08.07.2000, filed a suit for declaration to the effect that he be declared owner of the suit property seeking declaration that General Power of Attorney, registered on 27.06.1995 at Serial No,162, on behalf of the plaintiff in favour of defendant No,1 and registered Exchange Deed No,725, registered on 17.10.1995, on behalf of defendant No,1 in favour of defendant No,2 as well as mutation No,933, attested on 26.12.1995 on the basis of Exchange Deed and the entries in the revenue record in favour of defendant No,1 be declared illegal, fictitious, against the law and facts, based on fraud and cheating and are liable to be cancelled being without jurisdiction, without authority and being collusive.
Written statement was filed by the petitioners/defendants and contested the suit. Learned trial court framed the issues and invited the parties to produce their evidence. Both the parties produced their respective oral as well as documentary evidence. The learned trial court decreed the suit filed by the plaintiff vide judgment and decree dated 15.06.2004. The appeal thereagainst preferred by the petitioners was dismissed by the learned first appellate court vide judgment and decree dated 22.02.2010. Hence, this civil revision.
4. I have heard the learned counsel for the petitioners at length and gone through the available record with the able assistance of learned counsel for the petitioners as well as the case law referred to by the learned counsel for the petitioners.
5. The plaintiff/predecessor-in-interest of the respondents produced General Power of Attorney as Exh.P-1, registered Exchange Deed as Exh.P-2, copies of Jamabandi as Exh.P-3 and Exh.P-4 as well as Ichasragirdawri as Exh.P-5 and Exh.P-6 and the plaintiff himself appeared as his own witness as PW-1. When Ajmal, plaintiff appeared as PW-1, original Power of Attorney was put to him and it was exhibited as Exh.P-1 and original Exchange Deed was also put to him and it was exhibited as Exh.P-
2. The plaintiff in his statement stated that he is ready to get his signatures comparison with the disputed documents but he never moved for comparison of his alleged thumb impressions and signatures. Light in this regard can be taken from the case of Syed Hussain Naqvi and others v. Mst.
Begum Zakara Chatha through LRs and others (2015 SCMR 1081).
6. In the suit, the plaintiff has alleged that both registered documents are the result of connivance of the defendants and are forged, fictitious, result of misrepresentation and fraud. In that eventuality, I am clear in my mind that it was the duty of the plaintiff to specifically plead the fraud in accordance with Order VI, Rule 4 of the C.P.C. In this regard, reliance can be placed upon the case of Messrs Lanvin Traders, Karachi v. Presiding Officer, Banking Court No,2, Karachi and others (2013 SCMR 1419).
7. Further, when the documents which have been challenged on the basis of connivance, fraud, forgery and misrepresentation and in this regard all the persons, who participated in the preparation of those documents whether these are fictitious, forged or valid documents, were necessary party in the suit, viz. the Sub-Registrar, the witnesses to the documents, Scribe, maker or the identifier.
8. Moreover, the plaintiff/respondent avoided to produce his Identity Card on the ground that the same has been misplaced and no new Card was applied. When a person challenges the validity of a registered document, he is duty bound to discharge his onus to prove the case pleaded by him. If he fails to prove the case pleaded, no question of shifting of onus to the other party, in my considered view, because regarding the registration of the document some presumptions are attached with the document. Reliance is placed upon the case of Mehr Muhammad Hayat and others v. Tahir Hanif and others (2015 YLR 789).
9. The presumption that the public functionaries, who registered a document is registered in accordance with law, unless it is proved otherwise. In the case in hand, the basic document challenged through a suit by the plaintiff/respondents is a registered General Power of Attorney (Exh.P-1). As I have discussed supra that in the case in hand, Province of Punjab was necessary party and thereafter the officials of the Province discharging the duty as Sub-Registrar while registering the document(s) and the others relevant, who have not been impleaded as defendants. Therefore, no question of connivance with the defendants can be proved without impleading the officials as well as the witnesses and the identifier of the maker of the document at the time of registration of the document.
10.Further when the prayer of the plaint or the head note of the suit is minutely scrutinized, all grounds of attack upon the documents challenged through the suit are self-contradictory. Both the learned courts below have absolutely not considered the legal aspect of the case simply on the ground that the plaintiff appeared in the Court and made statement which discharges the onus, this is a wrong view being against the law, therefore, both the learned courts below reached to a wrong conclusion. The evidence of defendant in shape of witnesses, scribe and identifier, who is attorney appeared as DW-4 proves the stance of defendant. In these circumstances, the findings recorded by the learned courts below are absolutely wrong.
11.I am of the considered view that burden of proof is always upon the party who claims, therefore, if a party makes a claim and does not produce evidence to support its claim, such claim would fail.
If the party challenging the validity of a document is able to discharge part of his onus, only then the burden to prove the validity of document shifts upon the beneficiary. In this regard, light can be taken from the judgment in the case of Liaqat All and another v. Col. (Retd.) Akhtar Sultan (PLD 2014 Sindh 78).
12.In this view of the matter, this civil revision is allowed; the judgment and decree dated 15.06.2004, passed by the learned Civil Judge Class-II, Nankana Sahib and the judgment and decree dated 22.02.2010, passed by the learned Additional District Judge, Nankana Sahib, respectively, are set aside and as a result, the suit filed by the plaintiff stands dismissed, with costs throughout.