ZAFAR AHMED RAJPUT , J.--This suit has been filed by the plaintif fs seeking declaration, injunction, cancellation and damages, averring therein that the plaintif f No.1, the father of the plaintif f No.2, on 23.04.2002 made an oral gift by way of Hiba in favour of plaintif f No.2 in respect of a plot bearing No. RB-12, Survey No.2, measuring 542 sq. yds., situated in Rambagh Quarter s, M.A. Jinnah Road, Karachi (hereinafter referred to as "the suit property ") and later the said oral gift was confirmed through a declaration, registered before the Sub-Registrar , T Division XV, Karachi and duly incorporated in the record of rights maintained by the City District Government Karachi and in the property registers retained by the Mukhtiarkar concerned. It is further averred that the suit property is a commercial property and in the past some persons tried to grab it by fabricating sale documents; therefore, the plaintif f No.1 filed Suit No. 222 of 2001 in this Court which was decreed. It is also averred that in the last week of September , 2004, plaintif f No.1 received a phone call from one Ashfaq ue claiming to be the consultant of the defendant No.4/Bank, asking hint to repay the amount borrowed by him from defendant No.4; on that, the plaintif f No.1 informed him that he never borrowed any amount from any bank. Subsequently , one Khalid who runs a shop of auto parts in the name and style of Khalid Autos adjacent to the shop of plaintif f No.1 showed an Irrevocable General Power of Attorney (GPA) allegedly executed by the plaintif f No.1, ordaining defendant No.1 as his general attorney to do everything in respect of the suit property . It is case of the plaintif fs that the plaintif f No.1 never executed the alleged GPA in favour of defendant No.1, which is a forged document, nor they obtained any loan from defendant No.4 or got any flat booked in Junaid Arcade. It is further case of the plaintif fs that the plaintif f No.2 is the owner of the suit property and the original title documents thereof are also lying in his possession. It is also case of the plaintif fs that the alleged mortgage in favour of defendant No.4 was created by defendant No.6, who purportedly derived his title to the suit property through a Conveyance Deed, executed by the defendant No.1 on 04.09.2000, bearing Registration No. 3739, Book No.1, registered with the Sub-Registrar "T" Division 1-B, Karachi and the defendants Nos.1 and 3 have acted in connivance with the defendant No.6 and thus the alleged Conveyance Deed is a fraudulent document. Hence, the plaintif fs filed this suit with the following prayer:
(a) Adjudge the purported Power' of Attorney bearing Registration No. 878, Book No. IV dated 08.08.2000, Sub- Registrar "T" Division XIV Karachi M.F. Roll No.24080/21 1 dated 15.08.2000. Photo Registrar Karachi as void and direct the defendant No.1 to deliver up the same to this Hon'ble Court for cancellation:
(b) Direct the defendant No.2 that wherever in his record, reference is made to the aforesaid Power of Attorney , he should add a notation that the said Power of Attorney has been adjudged void:
(c) Declare that acts done by the defenda nt No.1 or any one acting under him, in pursuance of the aforesaid Power of Attorney purporting to bind the plaintiff Na I or purporting to create a charge on the said property , are void as against the plaintiffs: (c-i) Adjudge the purported Conveyance Deed having Registration No. 3739, Book No.1 registered with the Sub- Registrar "T" Division I-B, Karachi as void and direct the defendant No.6 to deliver the same up to the Hon'ble Court; (c-ii) Direct the defendant No.7 that, wherever in his record, reference is made to aforesaid Conveyance Deed, he should add a notation that the said Conveyance Deed has been adjudged void; (c-iii) Declare that the plaintiff is the owner of the property bearing No. RB-12, Survey No. 2, Rambagh Quarters, M.A. Jinnah Road, Karachi measuring 542 Sq. Yards and the defendant No.6 has no right, title or interest thereto and that any acts of the defendant No.6 in pursuance of the aforesaid Conveyance Deed purporting to create any right, or interest in the said property are void as against the plaintiffs;
(d) Declare that the plaintiff No.2 is the owner of property bearing No. RB-12, Survey No.2, Rambagh Quarters, MA. Jinnah Road, Karachi measuring 542 Sq. Yards and the defendant No.4 has no right, title or interest therein.
(e) Permanently restrain the defendants or any one acting through or under them from claiming any right, title or interest to the said properly;
(1) Grant damages against the defendants Nos. I and 3 in the sum of Rs.50,00,000/-;
(g) Grant cost of the suit; and
(h) Grant such other relief as may be appropriate in the circumstances.
3. Defendant No. 4 contested the suit by filing written statement, wherein preliminary legal objections have been raised that the defendant No.4 has no privitiy of contract with the plaintif fs, thus, the suit is not maintainable against it; that the defendant No.4 is a financial institution who had provided finance facility to M/s. Competitive Business Network international ("CBN ") under a Musharika Agreement and as security thereof, Mazhar Hussain Shah, one of the partners of CBN , created a mortgage in respect of suit property; as such, the suit is bad in law for non- joinder of necessary party i.e. Mazhar Hussain Shah, and that the plaintif fs have not come to this Court with clean hands and they have been careless, redundant and negligent with respect to safeguarding and publicizing their rights in the subject property and are not entitled to equitable reliefs. It is stated that the defendant No.4 had sanctioned a finance facility of Rs.2.500 Million to CBN on 06.04.2000, under a finance agreement, for a period of one year; later, in August 2000, the defendant No.4 converted the term financing structure to a Micro Venture Capital Arrangement with CBN on profit sharing basis and then on 15.08.2000 a Musharika Finance Agreemen t was executed between the defendant No.4 and CBN for commodity trading and the security of the finance under said agreement was the mortgage of suit property by the mortgagor Mazhar Hussain Shah. It is further stated that said Mazhar Hussain Shah obtained title of the suit property in his name through a Conveyance Deed, executed on 04.09.2000, having Registration No.3739 Book No.1 registered with Sub-Registrar "T" Division I-B, which was executed in his favour by the defendant No. 1, who was the attorney of plaintif f No.1 and the Irrevocable GPA was executed by the plaintif f No.1 in favour of defendant No.1 on 28.06.2000, which was registered on 08.08.2000. It is also stated that the alleged oral gift by the plaintif f No.1 to his son/plaintif f No.2 was executed after disbursing of the finance by the defendant No.4 on the strength of the mortgage created through Memorandum of Deposit of Title Deeds. It is contended that Suit No.222 of 2001 pertains to appointment of another attorney by plaintif f No.1 much after the appointment of first attorney i.e. defendant No.1 the authenticity of which has once again been challenged through this suit. It is further contended that the defendant No.4 acted with due diligence and in bona fide manner in providing financial facilities in due course of business and it had no knowledge or any reason to believe or suspect that the GP A was forged one.
4. Rest of the defendants failed to make their appearance before this Court; hence they were declared ex parte.
5. Out of pleadings of the parties, following Issues were framed by this Court.
(1) Whether the suit is not maintainable against the defendant No.4?
(2) Whether the suit is bad for non joinder of necessary parties?
(3) Whether the plaintiff No.2 is the lawful owner of the suit property namely Plot No. RB-12, Survey No.2, Rambagh Quarters, M.A. Jinnah Road, Karachi, measuring approximately 542 Sq. Yards?
(4) Whether . the Power of Attorney dated 28.06.2000 bearing Registration No. 878 Book No. IV dated 08.08.2000, Sub-Registrar "T" Division XV Karachi. M.F. Roll No. 24080/21 1 dated 15.08.2000, Photo Registrar , Karachi is forged and does not bind the plaintiff No.1? If so, to what effect?
(5) Whether the aforesaid Power of Attorney was forged by the defendants Nos.1 and 3 and whether the plaintiff is entitled to damages against the defendants Nos. 1 and 3 as claimed?
(6) Whether all subsequent transactions in relation to the suit property based upon the aforesaid Power of Attorney are also void and of no legal consequences? If so, to what effect?
(7) Whether the defendant No.4 has any right or interest in the suit property? If so, to what effect?
(8) Whether the plaintiffs were aware about the mortgage created in favour of the defendant No.4 and despite the knowledge failed to take appropriate action? If so, its effect?
(9) What should the decree be?
6. Plaintif f No.1 examined himself as P.W-1 at Exh. P/1; he produced his Affidavit-in-Evidence at Exh. P/2, certified copy of plaint, judgment and decree in Suit No.222 of 2001 at Exh. P/2/1 to P/2/3, photocopy of Irrevocable GPA, dated 15.08.2000,, purportedly executed by him in favour of defendant No.1 at Exh.P-2/4, photocopy of his N.I.C. at Exh. P-2/5, photocopy of his C.N.I.C. at Exh. P-2/6 and his last photograph as Exh. P-2/7.
Plaintif f No. 2 examined himself as P.W-2 at Exh. P/3; he produced his Affidavit-in-Evidence at Exh. P/3-A, photostat copy of Declaration and Confirm ation of Oral Gift at Exh. P-3/1, certified copy of extract from the record of Municipal Land Register at Exh. P-3/2, photocopy of mutation letter , dated 02.07.2002, at Exh. P-3/3, certified copy of Extract of Mukhtiarkar Karachi at Exh. P-3/4, photocopy of renewal of lease dated 29.12.1993 at Exh. P- 3/5, photocopy of extract from K.M.C. at Exh. P-3/6, original extract from Mukhtiarkar Saddar Town at Exh. P-3/7, photocopy of Sale Deed dated 03.03.1979 at Exh. P-3/8 and original newspaper cuttings at Exh. P-3/9 and P-3/10.
Defendant No.4 examined Matiullah Khan, Assistant General Manager , Orix Investment Bank Pakistan Limited as D.W.-1 at Exh.D, who produced original GPA as Exh. D/1, photostat copy of Conveyance Deed as Exh. D/2 and photostat copy of Memorandum of Deposit of Title Deed dated 30.10.2000 as Exh. D/3.
7. I have heard at length the arguments of learned counsel for the parties and perused the material available on record. My findings on the above Issues are as under:
8. ISSUE NO.1 : This issue has been framed on the pleadings of the defendant No.4, who has pleaded that the suit is not maintainable as there is no privity of contract between the plaintif f and the defendant No.4, a financial institution' within the meanings given in the Financial Institutions (Recovery of Finances) Ordinance, 2001 ("the Ordinance "). It may be observed that the plaintif fs have filed the suit for the protection of their proprietary rights, whereby declaration has been sought in respect of their title, interest and legal character in respect of suit property and for the cancellation of instruments on the ground that the same were executed fraudulently and on the basis thereof the defendant No.4 extended finance limits to defendant No.6. There is no denial to the fact that the plaintif fs are not customer of the defendant No. 4 within the meaning of Section 2(c) of the Ordinance; therefore, the jurisdiction of Banking Court under Section 9 of the Ordinance does not attract. The reliefs sought by the plaintif fs in this suit come within the ambit of Sections 42, 39 and 54 of the Specific Relief Act, 1877; therefore, the question of privity of contract between the plaintif fs and defendant No.4 has got no relevancy and the plaintif fs' suit is maintainable in law before this Court. My answer to this issue is; therefore, in "af firmative".
9. ISSUE NO. 2: This issue has also been framed on the basis of pleadings of defendant No.4. Initially the defendant No. 6 was not impleaded in the suit; however , subsequently he was added as defendant No. 6 on 17.11.2006. Therefore, this issue has become redundant; as such, it is answered accordingly .
10. ISSUE No. 3: This issue has been framed on the pleadings of the plaintif fs. In support of their claim the plaintif fs have filed their Affidavits-in-Evidence. In his examination-in-chief, the plaintif f No.2 has produced original title documents of the suit property as Exh. P-3/I to P-3/9 and their authenticity has not been challenged by the defendant No.4, who even did not dispute the original ownership of plaintif f No.1 . Against the ownership of the plaintif fs, it is case of defendant No.4 that the plaintif f No.1 appointed defendant No.1 as his Attorney in respect of suit property vide GPA registered on 08.08.2000, who subsequently sold out the suit property to defendant No.6 through conveyance deed on 04.09.2000 and later on the defendant No. 6 mortgaged the same with defendant No.4 on 30.10.2000, while it is case of the plaintif fs that plaintif f No.1 gifted out the suit property to plaintif f No.2 on 27.04.2002 and such mutation entry was recorded in Municipal Land Register on 02.07.2002 in the name of plaintif f No. 2 (Exh.P-3/2), so also the record of Mukhtiarkar concerned was mutated as per certified copy dated 19.06.2002 (Exh.P-3/4). Hence, sufficient documentary evidence is available on record to establish the title of the suit property in favour of plaintif f No. 2. It is claim of the defendant No. 4 that the defendant No.6 mortgaged the suit property by executing Memorandum of Deposit of Title Deed against finance facility , whereunder the Conveyance Deed executed by defendant No.1 being the Attorney of plaintif f No.1 was deposited. However , it is not the case of defendant No. 4 that any extract from property card or mutation entry in the record of rights was produced by the defendant No. 6 along with Conveyance Deed to create any mortgage; hence, on the basis of documentary evidence produced by the plaintif fs I have no hesitation to hold that the plaintif f No.1 was the original owner of the suit property , who subsequently transferred the title of the suit property through declaration of gift to plaintif f No. 2 on 27.04.2002. So far the claim of defendant No.6 with regard to the title of the suit property on the basis of Conveyance Deed executed by defendant No.1 in his favour on the basis of GM is concerned, it will be discussed in Issue No. 4. Hence, my answer to this issue is in "af firmative".
11. ISSUES NOS. 4 and 8: Issue No.4 has been framed on the pleadings of the plaintif fs while Issue No.8 on the pleadings of the defendant No.4. Since both the issues are intermingled, they are being discussed and answered together . Plaintif f No.1 in his Affidavit-in-Evidence (Exh. P/2) has/deposed that he never resided at Korangi and his N.I.C. number was 517-39-044142 and his C.N.I.C. number is 42201-621 166-5 (Exh. PW-2/5 and PW-2/6). He has further deposed that he does not know any person by the name of Shamim Ahmed, Advocate (defendant No.3) and he was never allotted any flat in Junaid Arcade, Korangi. He has also denied photo on GPA as of his photo and produced his photo as Exh.PW -2/7. He has also denied execution of any GPA in favour of defendant No.1 and claimed that he neither signed it nor put his thump impression thereon and that the same is a forged document.
Plaintif f No. 1 was cross-examined by the learned counsel for the defendant No.4 but no specific question was put to him denying/challenging the assertion and claim of the said plaintif f; hence, his evidence went unchallenged.
Perusal of GPA shows that the address of the plaintif f No.1 is mentioned on it as House No. 203, 2nd Floor , Junaid Centre, Korangi No. 1 and N.I.C. No. as 517-59- 044142, which address and N.I.C . number could not be proved as of the plaintif f No. 1, as against his denial no evidence has been brought on record by the defendant No. 4 showing that at any relevant time the plaintif f No. 1 was residing at the afore-mentioned address and holding the said N.I.C.
It also appears from the perusal of the photocopy of the N.I.C. annexed with the GPA that the photo appearing on the said N.I.C. is quite different from that of the N.I.C. of the plaintif f No. 1. It may be observed that the beneficiaries of this GPA, Suhail Zaman (defendant No. 1) and Mazhar Hussain Shah (defendant No. 6) did not contest the suit by filing their written statement and appearing in witness box. Besides, the defendant No. 4 has also not produced witnesses of the GPA to prove its execution, as after denial of its execution by the plaintif f No.1, the burden lies upon the said defendants to prove the execution thereof. It also appears that vide order , dated 05.11.2004, this Court directed the A.I.G. Criminalistics Division, Government of Sindh, Finger Print Bureau to compare the signature and thumb impression of the plaintif f No.1 with his so-called signature and thumb-impression affixed in the record of the Registrar "T" Division-XV at the time of execution of GPA and present a report accordingly . The report is available at page 19 of Part II of the case file, which reflects that the thumb impressions are "different" and the signatures are also "dissimilar". The said report was exhibited as Exh. PW-1/1 by the DSP Fingerprints, Taj Almani, who was examined by the Court with the consent of the learned counsel for the parties on 24.01.2006 and his examination-in-chief and cross-examination are available at page 217 of the evidence file, in his examination-in- chief has categorically stated that the thumb impression of the plaintif f No.1 differs from those maintained on the record of the Registrar "T" Division-XV . It is pertinent to note that learned counsel for the defendant No.4/Bank did not question the conclusions of the forensic expert during his cross-examination.
12. Learned counsel for the defendant No.4 has argued that the plaintif fs during their cross-examination have categorically admitted that they were aware of the publication in the newspapers in connection with the suit property; however , they failed to contact the defendant/bank or take any legal recourse in connection with the same. He has also argued that the said newspaper publications were published by the defendant No.4 in the year 2000, whereas the present suit was filed in the year 2004 after a delay of almost 4 years having come to the knowledge of the plaintif fs that the defendant No. 4 or someone else has a claim over the suit property . The timespan of almost 4 years of the plain tiffs' sleeping over their purported rights is evident in itself that they acquiesced to the acts of the defendants Nos. 1 and 6 and now the plaintif fs are legally estopped from taking any action in terms of their lost right, if any. While placing his reliance in the cases of B.L Sreedhar and others v. KM Munireddv (Dead) and others (AIR 2003 Supreme Court 578) and Sailala v. Smt. Ngurtaiveli (AIR 1980 Gauhati 70), the learned counsel has added that estoppel is though described as a mere rule of evidence, it may have the effect of creating substantive right as against the person estopped, whereas the acquiescence is not a question of fact but of legal inference from facts found. The doctrine of acquiescence may be stated thus: "if a person having a right and seeing another person about to commit, or in the course of committing, an act infringing upon that right, stands by in such a manner as really to induce the person committing the act, and who might otherwise have abstained from it, to believe that he assents to its being committed, he cannot afterwards be heard to complain of the act. He has also argued that from the facts and evidence already placed on record, it is abundantly clear that the plaintif fs had complete knowledge of the act being carried out and acquiesced to it by not initiating any legal proceedings for 4 years and are now estopped from complaining of the act. He has contended that it is settled law that presumption of truth is attached to a registered document and contents of such documents cannot be controverted through oral evidence; as such, in presence of a registered GPA and conveyance deed, presumption of truth should be attached with the same and in favour of the defendant No. 4 rather than the oral assertions of the plaintif fs. He has further contended that the GPA was executed before and authenticated by the Sub-Registrar , therefore, this Court, as envisaged by the provisions of Article 95 of the Qanun-e-Shahadat Order , 1984 ("the Order ") is bound to presume that the same had been executed by the plaintif f No.1 in favour of his attorney , the defendant No.1.
13. On the other hand, learned counsel for the plaintif f has maintained that the plaintiff's suit is within time in terms of limitation; therefore, doctrine of estopple by acquiescence or estopple by latche s is not applicable in this case.
He has further maintained that the defendant No.1 managed fraudulently and maliciously a fake GPA and on the basis thereof he transferred the property of the plaintif fs to defendant No.6 through registered conveyance deed.
He added that since the plaintif f. No.1 has denied the execution of GPA, the defendants/beneficiaries are bound to prove execution thereof. He ha; also maintained that the provisions contained in Article 95 of the Order are not of exhaustive character as other modes of proving and disproving power-of- attorney are not excluded; as such the presumption as to execution thereof is rebuttable.
14. It may be observed that in law, acquiescence occurs when a person knowingly stands by without raising any objection to the infringement of his rights, while someone else unknowingly and without malice aforethought acts in a manner inconsistence with his rights. As a result of acquiescence, the person whose rights are infringed may lose the ability to make a legal claim against the infringer . The doctrine infers a form of "permission" that results from silence or passiveness over an extended period of time. Nevertheless, as observed in the case of Talha Sarfraz v.
Azad Government of the State of Jammu and Kashmir through Chief Secretary and 16 others (2013 YLR 652) there can be no acquiescence unless two ingredients are present. Firstly , there should be express or implied abandonment of a right or failure to enforce it. Secondly , the act by which acqu iescence is inferred should be inconsistence, with the right. However , acquiescence after a fait accompli , if not prolonged beyond the verge of limitation, is no bar to a right of suit alrea dy accrued. The plea of acquiescence is applicable to suits for which a period of limitation is prescribed by the law, but mere delay in asserting right does not constitute acquiescence.
Reliance in this regard may be placed on the case of (Uda Begam v. Imam-ud-Din and others (I.L.R. 1 All 82).
In the case of Ramsden v. Dyson (1866 L.R., 1 HL 129) it was held that if a stranger build, on the land of another supposing it to be his own, and the owner does not interfere, but leaves him to go on, equity considers it dishonest in the owner to remain passive and afterw ards to interfere and take the profit. But if a stranger builds on the land of another knowingly , there is no principle of equity which prevents the owner from insisting on having back his land, with all the additional value which the occupier has imprudently added to it The case of the plaintif fs is however , on different footings i.e. fraud. It is too well known that fraud vitiate all actions and no Court can uphold a right on fraud. Even for considering a claim of estopple, the law is not different. Much emphasis has been given by the learned counsel for the defendant No.4 that the Court under Article 95 of the Order is bound to presume that the GPA was executed by the plaintif f No.1 in favour of his attorney , the defendant No. 1. In this regards suffice it to say that where a document is repudiated by its executant or any other claiming under him as a forged document, the party claiming under said document must prove that the document was/is genuine. Onus is on the beneficiaries. Presumption of truth attached to a registered document is rebuttable which stands rebutted when a document is repudiated by its executant, In the case in hand, the plaintif f No.1 has denied the execution of GPA claiming it a forged document, with the supportive evidence of forensic expert, therefore, the burden to prove its execution shifted on the defendants Nos.1 and 6 who have got benefit out of the said GPA, but they as well as defendant Bank failed to prove execution of the same by producing persons in whose presence the same was executed, identifier of executant (the defendant No.3) and Sub-Registrar; hence, the Court is not bound to presume its execution in favour of attorney with the effect that no authenticity can be attac hed to it being obtained by him fraudulently . The plaintif fs by filing instan t suit on being aware about the fraudulent acts and mortgage created in favour of defendant No.4 have taken proper action by filing instant suit. My answer to Issue No. 4 is; therefore, in "affirmative" and to Issue No. 8 is in "negative".
15. ISSUE NO. 5: This issue has also been framed on the pleadings of the plaintif fs. Plaintif fs have claimed Rs.50,00,000/- towards damages against the defendants Nos.1 and 3. It is by now a well-established principle that the person claiming general damages relating to mental torture, anguish, distress and defamation; those are to be assessed D following the Rule of Thumb and the said exercise falls in the discretionary jurisdiction of the court which has to decide it in the facts and circumstances of the case. Reliance in this regard is placed on the case of Abdul Majid Khan v. Towseen Abdul Haleem and others (2012 CLD 06) and Malik Gul Muhammad Awan v.
Federation of Pakistan through Secretary Ministry of Finance and others (2013 SCMR 507). I have already answered Issue No.4 in affirmative by discussing the evidence on record with regard to holding the GPA a forged document; I do not need to reproduce the said evidence here. The defendants Nos.1 and 3 (the defendant No. 3 had identified the executant of GRA personating plaintiff No.] for fraudulent purpose before the Sub-Registrar , T Division-XV) have jointly conspired to forge GPA; hence, they severally or jointly are liable to pay general damages to the plaintif f No.1 to the tune of Rs.50,00,000/- (Rupees Fifty Lacs Only) with mark-up at the rate of 10% per annum from the date of decree of the suit till the recovery of the entire amount for the alleged illegal, mala fide and unwarranted action, which resulted the plaintif f No.1 to suffer mental torture, anguish, distress and the injury . My answer to this issue is in "af firmative".
16. ISSUE NO. 6: This issue has also been framed on the pleadings of the plaintif fs. It is by now well-settled principle of law that fraud vitiates the most solemn of proceedings and whenever such transaction is declared null and void then the whole series of such order along with superstructure built upon it is bound to collapse like a house of cards. Reliance in this regard may be placed on the case of Al-Meezan Investment Management Company Ltd and 2 others v. WAPDA First Sukuk Company Limited Lahore and others (PLD 2017 SC 01)
Baja through L.Rs. and others v. Mst. Bakhan and others (2015 SCMR 1704 ), Lal and another v. Muhammad Ibrahim (1993 SCMR 710), Government of Sindh through Chief Secretary and others v. Khalil Ahmad and others (1994 SCMR 782), John Paul v. lrshad Ali and others (PLD 1997 Karachi 267), Ghias-ud-Din v. lqbal Ahmed and 5 others (PLD 1975 Lahore 780), and Mst. Sarwari Begum v. Atta ur Rehman 1997 CLC 1500 .
Since the alleged GPA is a forged document obtained by the defendant No.1 fraudulently , the entire superstructure built upon it was also without any lawful foundation. This issue is, therefore, answered in "af firmative".
17. ISSUE NO 7: This issue has also been framed on the pleadings of the defendant No.4/Bank. It claims interest in suit property on the basis of mortgage through a Memorandum of Deposit of Title Deed (Exh.D/3) executed by the defendant No.6 in its favour . Mortgage by depositing title deed is one of the forms of mortgages provided by section 58 of the Transfer of Property Act, 1882 and it is equivalent to simple mortgage and known in English law as equitable mortgage. By its definition, it is transfer of an interest in specific immovable property as security for repayment of a debt. It is an admitted position that only the original conveyance deed (Exh.D-2) purportedly executed by plaintif f No.1 through his so-called attorney (the defendant No.1) in favour of defendant No.6 was deposited with the defendant Bank by the defendant No.6 along with GPA under said memorandum to avail finance facility . The alleged GPA has already been held as forged/fraudulent document; as such, the superstructure built upon it is of no legal consequences. Admittedly , the plaintif fs are not the beneficiaries of the finance facility availed by the defendant No.6 from defendant Bank and thus they are not legally bound to repay the same. The defendant Bank appears to have acted carelessly while sanctioning finance facility in favour of defendant No.6, as nothing has been produced in evidence by it that any physical inspection was made in order to ascertain the possession over the subject property and even the chain of title documents was not demanded from the defendant No.6 before sanctioning the finance facility . Since the alleged conveyance deed was havin g no legal consequences, the equitable mortagage has also no legal ef fects. Hence, this issue is answered in "negative".
18. ISSUE NO. 9: In view of my findings on issues Nos.1 to 8, the suit of the plaintif fs is decreed as prayed with costs to be paid by the defendants Nos.1, 3 and 6 jointly .
19. Above are the reasons of my short order , dated 29.08.2019, whereby instant suit was decreed as prayed with costs.