AMIN-UD-DIN KHAN, J.
Civil Petition No. 2559-L of 2018 Through this Civil Petition for Leave to Appeal, filed under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973, leave has been sought against the judgment dated 16.11.2018, of the learned Lahore High Court, Lahore, whereby a Civil Revision bearing No.164810 of 2018, filed by the Petitioner , was dismissed.
2. The brief facts of the case are that Plaintif f-Respondent No.1, on 27.08.2013, filed a Suit for Declaration and pleaded therein that he purchased a plot bearing No.250, measuring 10 Marlas, situated at Jinnah Colony No.2, Toba Tek Singh. The Colony was established by the Tehsil Municipal Administration, Toba Tek Singh (for brevity in the later part of judgment it will be referred TMA, TT Singh). Plaintif f is the exclusive owner of the said plot and all dues and installments have been deposited by him in favour of the TMA, TT Singh. He challenged the General Power of Attorney No.445/4, registered on 18.07.1998, on his behalf in favour of respondent No.2, along with the subsequent agreement to sell dated 16.07.2004, executed by Respondent No.2 as attorney of Plaintif f in favour of the Petitioner . A declaration was sought that the Power of Attorney is illegal, forged, fictitious, a result of cheating, nullity in the eyes of law and against the facts. Consequently , the transfer of plot in favour of Petitioner/Defendant No.2 by TMA, TT Singh, which was base d on the impugned Power of Attorney , was also without authority , against the law and result of fraud.
The learned Trial Court was pleased to dismiss the Suit vide judgment and decree dated 22.03.2017. The Plaintif f/Respondent No.1 preferred an appeal, which was accepted by learned Additional District Judge, Toba Tek Singh, vide judgment and decree dated 25.01.2018. Defendant No.2 challenged the said judgment and decree before the learned Lahore High Court by filing Civil Revision No.164810 of 2018, which was dismissed vide judgment dated 16.1 1.2018. Hence, the instant Civil Petition for Leave to Appeal.
3. We have heard the learned counsel for the parties at great length. All the private parties to the suit are real brothers. Case of the Petitioner was that at the time of auction of plot by the TMA, TT Singh, the Petitioner did not have his CNIC, therefore, Plaintif f/Respondent No.1 participated in the auction proceedings in the year 1998 as Benamidar on behalf of the Petitioner . Therefore, for getting the plot transferred in the name of the Petitioner , the real purchaser , Plaintif f/Respondent No.1, got a Power of Attorney registered in favour of Respondent No.2/Defendant No.1 with his consent and free will, which was used for the stated purpose. Subsequently , on the basis of Power of Attorney the agreement to sell was executed in favour of the Petitioner .
4. After hearing the arguments, the learned counsel for the Plaintif f/Respondent No.1 was confronted with the fact, that as per his 'case there was no Power of Attorney on his behalf and he sought a declaration from the Court that the Power of Attorney be declared non-existent, against the law, forged, fictitious, result of cheating and against the facts. These prayers, if considered, seem to be self-contradictory . To clarify these contradictions, it was questioned what the case of the Plaintif f/Respondent No.1 was; whether a Power of Attorney was prepared and registered as a result of cheating, or whether he never appeared before the Sub-Registrar and it was alleged to be a forged and fictitious document? Adopting the latter argument, learned counsel has stated that it was a forged and fictitious document. Learned counsel for the Plaint iff/Respondent No.1 was further confronted as to why the allegedly forged Power of Attorney was got cancelled through "Abtal Nama" (Ex. P-9) dated 03.12.2013 by the plaintif fs; especially , when the said document had already been challenged through the Suit, which was filed on 27.08.2013. The learned counsel for the Plaintif f admitted that the Power of Attorney was actually a document registered with the Sub-Registrar .
5. We have noticed that the matter of thumb impression of the Plaintif f upon the impugned Power of Attorney was sent to the Finger Print Bureau, Punjab by the learned Trial Court and DW-3 also appeared from the Finger Print Bureau and produced the Report of the Finger Print Expert as Ex.D-1. He has stated that as per the Report, the questioned document bears thumb impression of the Plaintif f. We have further perused Ex.P-9 (Abtal Nama ), which bears the following words: {{URDU TEXT}}
6. In paragraph No.2 of the plaint, it is pleaded that Plaintif f neither got prepared the Power of Attorney nor he affixed thumb mark; someone else must have been produced before the Sub-Registrar to get the Power of Attorney registered. When Plaintif f appeared as PW-1, he did not utter a single word about the Power of Attorney , its genuineness or otherwise. Needless to observe that the pleadings cannot be considered as evidence in the Suit on behalf of the party when not a single word has been uttered on the subject; such is the case here where A the Plaintif f, at the time of appearing as his own witness, did not say a word about the impugned Power of Attorney .
Therefore, the Plaintif f has miserably failed to prove his case, as pleaded, with respect to the impugned Power of Attorney .
7. In this eventuality , in our view, the Province of the Punjab as well as the Sub-Registrar , who registered the Power of Attorney , the attesting witnesses and the identifier were necessary party , when a registered document was challenged through a Suit by the Plaintif f/Respondent No. 1. Admittedly , neither the Province of the Punjab nor the Sub-Registrar , who registered the said document or the attesting witnesses and identifier , were arrayed as Defendants in the Suit, B the suit was defective one and admittedly a decree cannot be passed against a person who is not a party in the lis before the Court.
8. Furthermore, the registered document has some presumptions attached to it under section 60 of the Registration Act, 1908. Although, the same are rebuttable; but for rebuttal of the said presumptions, the law is clear that the party must produce evidence on the basis of standard as set forth by this Court. Even the Report of the Finger Print Expert is against the stance of the Plaintif f/Respondent No.1.
9. We have noticed that all the documentary evidence from Ex.P-1 to Ex.P-8 relating to proceedings of auction, the Fard Nelaam, notices of payment and receipts of paym ent are the certified copies of record from the Chief Officer
(HQ) of the TMA, TT Singh. All these copies were issued on 17.12.2014, whereas all these documents relate to the year 1998; meaning thereby , that not a single original document was in the custody of the Plaintif f/Respondent No.1 nor was the same produced before the Court.
10. The suit was filed on 27.08.2013, the impugned Power of Attorney is a registered document, registered on 18.07.1998. The impugned agreement to sell on the basis of Power of Attorney is dated 16.07.2004, therefore, the suit was clearly barred by time as time provided for filing a suit under Article 120 of first schedule of the Limitation Act, 1908 is six years, the suit should have been filed within six years from the date of registration of Power of Attorney when plaintif f failed to prove his case as pleaded by him.
11. We have also noticed that the learned High Court mainly concentrated upon the defence of the Defendant, ignoring the fact that if the Plaintif f failed to make out the case pleaded by him through evidence, then the result will be that his Suit will be dismissed. No decree has been sought by the Defendants, therefore, scrutiny of defence or their evidence, oral/documentary come only in the way for consideration if the Plaintif f was able to discharge onus of proof upon him. However , when his pleadings are contradictory , as is the case, he has failed to make out a case while producing evidence to substantiate his pleadings especially with respect to the Power of Attorney and his stance with regard to the Power of Attorney is absolutely false. Therefore, there was no occasion to decree the Suit, filed by Plaintif f/ Respondent No. 1.
12. We are clear in our mind that through the Suit filed under section 42 of the Specific Relief Act, 1877 a declaration can be granted with regard to legal character or to right as to any property. However , no new right can be created in favour of Plaintif f, by grant of a declaratory decree. In these circumstances, the learned Trial Court was justified in dismissing the Suit, filed by Plaintif f/Respondent No. 1. Learned Appellate Court erred in law, while ignoring all these facts and points of law noted above and set aside the well reasoned judgment passed by the learned Trial Court: thereby reversing the same and decreeing the Suit, against which Petitioner/Defendant No.1 preferred the Civil Revision before the learned Lahore High Court, which too was wrongly dismissed.
13. Consequently , the instant Civil Petition for Leave to Appeal is converted into appeal and allowed, the judgments and decrees passed learned High Court as well as first Appellate Court are set aside.
Civil Petition No.2560-L of 2018
14. This Civil Petition for Leave to Appeal is disposed of in the terms noted above in Civil Petition for Leave to Appeal No.2559-L of 2018.