1. ' This first appeal under section 96 of C. P. C. Has been filed against the judgment and decree dated 23-1-1979 of the Senior Civil Judge, Nawabshah in First Class Suit No, 93 of 1975, decreeing the suit for declaration, injunction and possession.
2. ' The facts of the case are as under :- ' Karamat Ali son of Kifayat Afi was owner of agricultural land comprising survey Nos. 187, 588/4, 599/1 and 630/2-A, 631/2, 631/1, 617/2, 619/1, 298/8-A, 189, 584/2, 586/4, 199, 206 and 207, measuring 85.16 acres in Deh Bakhtyar Khan, Taluka Sakrand, District Nawabshah. The respondents, who are the legal heirs and successors of deceased Karamat Ali son of the Kifayat Ali, on whom.The aforesaid property devolved after the death of said Karamat Ali in specific shares under the Mahomedan Law, filed the suit in the Court of Senior Civil Judge at Nawabshah for declaration, injunction and possession in respect of the aforementioned agricultural land which at the time of death of deceased Karamat Ali was in possession of Din Mohammad, who was mentioned as defendant No, 3 in the plaint. It was the case of the respondents Nos. 1 to 6 that after the death of Karamat Ali, Din Muhammad in collusion with certain other persons sought to deprive respondents Nos. 1 to 6 of their property and with that view a power-of-attorney purporting to have been executed by the aforesaid respondents in favour of respondent No, 7, Arshad Khan was forged and a sale-deed in respect of the property in favour of the appellant executed by the fake attorney Arshad Khan, was presented before the Sub-Registrar, Shahdadpur and got registered. It was further the case of respondents Nos. 1 to 6 that in pursuance of the aforesaid forged sale-deed, Din Muhammad transferred possession of the suit land to the appellant without any legal authority or sanction from respondents Nos. 1 to 6, collusively and dishonestly.
3. ' Respondent Nos. 1 to 6 (who were the plaintiffs in the suit) stated that they were absolutely unaware of the sale transaction as they had never executed any power-of-attorney in favour of Arshad Khan (respondent No 7 herein) nor had they received any consideration for the alleged sale. In fact it was their case that no person by name Arshad Khan was ever known to them and that in all probability he was a fictitious person, whose name had been used for perpetuating the fraud. It was only when in the proceedings of Suit No, 867/70, filed by Mrs. Noor Jahan v. Kifayat Ali and others against them in the Court of XVIII Civil Judge Second Class, Karachi, an affidavit was filed wherein there were allegations of the sale of the disputed property in favour of the appellant that the respondents Nos. 1 to 6 came to know about commission of the fraud. They then served notice on appellant, Allah Dino and Arshad Khan through their Advocate but no reply was received by them.
4. ' It was, therefore, pleaded by respondents Nos. 1 to 6 before the Senior Civil Judge, Nawabshah in their plaint that the alleged power-of-attorney in favour of Arshad Khan as well as the sale-deed in favour of the appellant were void and ineffiective and, therefore, they prayed for declaring that they had not executed the power-of-attorney in favour of Arshad Khan (respondent No, 7 herein) and the sale-deed dated 16-9-1971 had been forged and was void and ineffective. They further prayed for issuing injunction restraining the defendants from, selling, mortgaging or otherwise alienating and for possession of the land by ejecting the appellant therefrom.
5. ' Appellant, Allah Dino filed written statement admitting that respondents Nos. 1 to 6 are the heirs and successors of deceased Karamat Ali son of Kifayat Ali who was the owner of agriculture land in question and also admitting that the property had devolved on respondefits Nos. 1 to 6 in accordance with their specific shares under the Mahomedan Law. However, the appellant further stated that before the sale of the land in his favour, the same had remained on lease with him and for some time it was on lease with Din Muhammad, who had been shown in the plaint as defendant No,
3. It was further his case that the respondents Nos. 1 to 6 (plaintiffs in the suit) had not 'personally executed the lease-deed but it had been executed by their attorney Arshad Khan, who had been shown as defendant No, 1 and who had executed also the lease-deed in favour of Din Muhammad.
6. ' It was the case of the appellant that Arshad Khan was the attorney of respondents Nos. 1 to 6, who had executed the sale-deed and got it registered in accordance with the law in September, 1971.
7. The amount of sale price had been paid by him to Arshad Khan as stated in the document. It was further his case that the aforesaid transaction was known to respondents Nos. 1 to 6 although, he admitted that, the fact about purchase by him of the and might have been brought out in the proceedings of Civil Suit at Karachi as stated in the plaint.
8. ' The appellant in his written statement denied that he had received legal notice and he took the plea that whether or not respondents Nos. 1 to 6 had given their consent for the sale since their attorney had sold the land, the sale was legal and further that he had purchased the property in good faith and had given money to the attorney. It was his case that he was in possession of the land as transferee. On the aforesaid pleadings of the parties the learned Senior Civil Judge, Nawabshah, settled the following issues : - "(1) Whether defendant No, 2 is in possession of the suit land since 16-9-1971, if so what is its effect?
(2) Whether the plaintiff executed any power of attorney in favour of defendant No, 1, if so what is its effect?
(3) Whether the plaintiff had sold the land in dispute to defendant No, 2 through their attorney defendant No, 1, if so, whether it is forged one?
(4) Whether the suit is in proper form?
(5) Whether the suit is insufficiently stamped ?
(6) What should the decree be?
9. ' No other issues nor amendment sought, no commission notified. List of witnesses and documents, if any, within a week. Final hearing. . . . 8-7-1975."
10. ' In the impugned judgment, the learned Senior Civil Judge, Nawabshah decided issue No, 2 in the negative holding that the plaintiffs in the suit had not executed any power-of-attorney in favour of Arshad Khan, defendant No, 1 and consequently with regard to issue No, 3, he held that the plaintiffs had not sold the land in dispute to the appellant. He accordingly decreed the suit in favour of respondents Nos. 1 to 6 holding that the appellant did not have any right or title in respect of the suit land and as such his possession of it was unauthorised. It is against such judgment and decree of the learned Senior Civil Judge, Nawabshah that the instant appeal has been bled.
11. ' At the very outset it may be stated that the instant appeal was presented on 16-4-1979 but an application under Order XLI, rule 27 of C. P. C. For production of additional evidence in this Court was made on 6-5-1982.
12. ' It is essential requirement in allowing additional evidence at appellate stage that the requirement should be genuine and the need for additional evidence must be felt by the appellate Court after examining evidence o record and after coming to the conclusion that some apparent inherent defect hinders due administration of justice. It was, therefore, considered appropriate to consider Miscellaneous Application No, 777/82, alongwith the main appeal and to hear the arguments of the learned counsel on the appeal.
13. I have heard the arguments of the learned counsel for the parties and considered the matter with regard to the application for additional evidence at this stage with utmost care. The application contained the prayer that appel lant may be allowed to produced the evidence of Shah Muhammad Shaikh Notary Public, Nawabshala and Sub-Registrars, Shahdadpur and Sanghar.
14. ' The application is a very belated effort on the part of the appellant, as the suit, in which the impugned judgment and decree was passed was instituted on 16-4-1979, incidentally long after the coming into force of the Law Reforms Ordinance (XII of 1972). The amended provisions of Order XVI of C. P. C. Read as under :- "(1) Summons to attend to give' evidenceor produce document.
(I) Not later than seven days after the settlement of issues, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents.
15. (2)A party shall not be permitted to call witnesses other than those contained in the said list, except with the permission of the Court and after showing good cause for the omission of the said witnesses from the list and if the Court grants such permission, it shall record reasons for so doing.
16. (3)On application to the Court or such offer as it appoints in this behalf, the parties may obtain summons for persons whose attendance is required in Court: ' Provided that no summons shall be issued for service on a person under rule 8 unless an application in that behalf is made not later than fourteen days prior to the date fixed for the hearing of the suit and the necessary expenses for the summoning of such person are deposited."
17. ' The issues were settled on 16-4-1975 and have been reproduced above. It is expressly stated in the order of the learned Senior Civil Judge, Nawabshah, as required by the law that list of witnesses and documents, if any, be filed within a week. In the same order which regard to settlement of issues, it was mentioned that final hearing was fixed for 8-7-1975. There is nothing on the record of the suit to show that the list of witnesses and documents were filed within the time indicated. The Advocate for the plaintiffs made an application under Order XVI, rule 1 of C. P. C. On 26-11-1975 praying that the Sub-Registrar, Shahdadpur be summoned, "to bring with him the registered documents alongwith concerned register concerning the suit land, alongwith registered deed, registered on Book No, 1 page 1007, pages No, 112 the 121, dated 22-9-1971 alongwith the original general power-of-attorney". The application was granted on payment of costs on the very day it was made. However, the learned Senior Civil Judge did not record the reasons for granting the same probably considering the fact that there was no opposition by the other side. Similar application was made by the Advocate for defendant No, 2 (herein the appellant) on 25-11-1978, praying that the Court summon Mr. Shah Muhammad Shaikh, Notary Public, Nawabshah to give evidence in the case and to produce any document or register in relation to power-of-attorney executed by plaintiffs in favour of Arshad Khan son of Rahim Bux, resident of Khokhrapar Colony, Karachi in August, 1971. On this application also the orders were passed the same day for issuing necessary summons on depositing costs. The suit was adjourned for further evidence to 5-12-1978.
18. On the adjourned date Shah Muhammad Shaikh, Notary Public submitted application that he may be r given another date as he was suffering from kidney pain and the suit was adjourned to 7-12- 1978. Again on 7-12-1978 the Advocate for the defendant (appellant herein) made application for adjournment on the ground that the witnesses had not come. The application was, however, rejected and the side of the defendant No, 2 (herein appellant) was closed.
19. ' As already indicated above, the suit was filed on 9-8-1973, the issues were settled on 16-4-1975 and there was order of the learned Senior Civil Judge that list of witnesses and documents be filed within a week. It is, therefore, too late in the day for the appellant to make the request for additional evidence after all these years specially when he had all the opportunity to produce before the Court or get summoned the witness. It is only when costs are deposited by the party that summons are issued to a witness B for attending the Court and as is apparent from the application for adjournment filed on behalf of the appellant on that particulars hearing no costs have been deposited since in the application for adjournment dated 7-12-1978, it was stated that the witnesses had not been able to come that day. On behalf of respondents Nos. 1 to 6, Mst. Sabira Begum filed counter-affidavit in this Court indicating that the application for additional evidence had been made in order to protract the proceedings which had already consumed considerable time due to repeated applications for adjournment on behalf of the appellant, in spite of the fact that orders have been passed for early hearing of the appeal. It was further pointed out that the suit proceedings had taken a very long time in the lower Court for several years and even if the date of closing the side by the plaintiffs in the suit is considered, more than 8 months were taken by the appellant to adduce his evidence. It is, therefore, apparent that it would be putting premium on the dilatory tactics adopted by a party in possession of the property to have allowed the application specially when as I shall hereafter discuss, it is not considered necessary for arriving at a decision that the evidence of Notary Public must be on the record. I, therefore, dismiss the miscellaneous application.
20. ' The only point of substance in the instant appeal is with regard to the burden of proof as to the genuineness or otherwise of the power-of-attorney alleged to have been executed by respondents Nos. 1 to 6 in favour of Arshad Khan and the decision with regard to the competency of the aforesaid Arshad Khan to execute the sale-deed on behalf of respondents Nos. 1 to 6, would also depend on the aforesaid finding.
21. ' It is apparent from the record that at the stage of filing of the suit, respondents Nos. 1 to 6, who were plaintiffs, had made it clear that the very existence of Arshad Khan was not known to them and it is apparent that such a person never was served or put in any appearance before the Court.
22. It was the case of the appellant -that Arshad Khan was the person, who had in the first instance executed the lease-deed in his favour due to which he was in possession of the land at the time of the institution of the suit. The perusal of the record would show that no effort, however, was made by the appellant to give notice for production of the power-of-attorney or to get Arshad Khan summoned as his witness to appear in support of his case. Where the plaintiffs (herein respondents Nos. 1 to 6) are concerned, since there was denial on their part with regard to execution of the power-ofattorney and respondent No, 1 had stated so on oath, non-execution of the power,of-attorney being a negative fact, the statement on oath with regard to it is sufficient to discharge the burden that lay on the plaintiffs and the onus shifted to the appellant to prove affirmatively that the power-of-attorney in favour of Arshad Khan had been executed by the plaintiffs. In Mst. Qaisar Khatoon and 10 others v. Maulvi Abdul Khaliq and others (1), it was inter alia observed as under :- "The question of the burden of proof becomes material only where the Court finds the evidence so evenly balanced that it can come to no {{FOOT NOTE}}
(1) PLD 1971 SC 334 {{FOOT NOTE}} definite conclusion (vide PLD 1978 P C 171). In such an event the rule is that the party on whom the onus lay must fail."
23. Applying the principle to the facts of this case it is clear that while th plaintiffs (respondents Nos. 1 to 6 herein) asserted that they had not executed the power-of-attorney rid did not know about the very existence of Arshad Khan, the "onus had shifted to the appellant to prove the execution of the power-of-attorney. Just his own word to the effect was rightly not considered sufficient by the learned Senior Civil Judge, Nawabshah.
24. ' For the reasons already given it is apparent that the appellant did not make any serious attempt for getting the evidence of Shah Muhammad Shaikh, the Notary Public on record, although more than 8 months were taken by him to adduce his evidence and there was a long interval before the judgment was delivered in the case. It is also significant to note that the application for adducing additional evidence at appeal stage was also D filed after inordinate delay of more than 3 years.
25. ' For the reasons given above, no case has been made out for interference with the impugned judgment' and decree of the learned Senior Civil Judge, Nawabshah and, therefore, the appeal is dismissed, however, with no order as to costs.