' This second appeal is directed against the concurrent judgments and decree of the First Class Civil Judge, Larkana in Suit No, 9/66, dated 30-1-1969 and that of Additional District Judge, Larkana in Civil Appeal No, 11 of 1969, dated 31-3-1970.
2. The appellants had claimed in their plaint for declaration that the appellants and defendant No, 1 had agreed to take land from the barrage department. The land was to be taken in the name of Chattanmal but it was to be owned by appellants in the share of 10.8 annas and Chattanmal 5.4 annas and in pursuance of this oral agreement survey No, 392 measuring 8.17 Acres and survey No, 336 measuring 3.22 Acres in Deh Khairwah was obtained in the name of Chattanmal. On 12-7-1945 Exh. 64 was executed between the parties specifying the shares. First installment was to be paid by Chattanmal and other installments were to be paid by appellants out of the produce. It is alleged that on 24-1-1946 Chattanmal made statement before Mukhtiarkar, Dokri, Exh. 65, requesting for mutation of land in the names of the appellants and Chattanmal in the shares of 10.8 annas and 5.4 annas respectively. The mutation was effected in the revenue records. On 26-3-1946 and 16-1- 1947 two installments were paid to the Government for the land in question by Chattanmal. In 1948- 49, 3 installments were paid for the land by the appellants in order to avoid the cancellation of the grant.
3. Later on 5.4 annas shares of Chattanmal was declared as evacuee property and it was allotted to certain claimants from which the appellants purchased their shares of the said land on 30th August, 1965 by a registered sale-deed. There is no dispute at all that the appellants are the owners of 5.4 annas shares in the said lands as transferees from the allottee of the Settlement Department.
4. On 6-2-1965 the Deputy Collector directed by Exh. 82 the cancellation of the mutation which had been effected in the name of the appellants to the extent of 10.8 annas shares in the said land on the ground that statement on the basis of which the mutation was recorded had been forged in open space with forged signatures and that entry in village form VII old had been rubbed off with chemical substance except the signatures of the officers and serial numbers and thereafter another entry had been made in place of the original entry. On 3-1-1966 the Deputy Commissioner, Larkana had dismissed the appeal of Sultan, appellant, by Exh. 83, and agreed with the findings of the Deputy Collector in respect of the mutation of record of the Revenue Department and further held that the agreement of 1945 Exh. 64 was unregistered, forged and illegal. Since Chattanmal had not paid up all the installments of the Survey No, 392 to the Barrage Department, he had no right or title over the land and could not dispose it of in any manner.
5. Thereafter the appellants filed their suit. Chattanmal was not served and the suit was resisted by the official defendants who made the same claim as was contained in their ordeRS,
6. Seventeen issues were framed by the Civil Judge. The Civil Judge came to the conclusion that Exh. 64 was forged and that the non-judicial paper was originally purchased by some one else and for some other purpose, as it contained some writing in respect of the deposit of some amount, which were tried to be artistically removed but can be read. He considered the same quite suspicious and did not believe the evidence that it was executed by Chattanmal. In respect of alleged statement of Chattanmal given before Mukhtiarkar namely Exh. 86 recorded on 24-1-1946 in favour of Sultan and, one in favour of Ibrahim Exh. 88 recorded on 10-10-1946, he came to the conclusion that a misstatement had been made in the statement of Chattanmal recorded before Mukhtiarkar where it had been stated that they had paid full installments of the land, but in fact, the Civil Judge found that the last instilment was paid in the year 1949 and, therefore, the grant was not fully paid up in 1946 and, therefore, Chattanmal had no right to dispose of the land by giving such statements before Mukhtiarkar. He further found that statements are written in such a congested form that the thumb-mark of Chattanmal on these statements has been obtained not below the alleged statement, but on 3-4 lines of the alleged statements itself. He further found that no order of Mukhtiarkar who mutated the Khata on the basis of these statements had been produced and, therefore, these alleged statements were not beyond suspicion. He further found that no body had proved that it was Chattanmal who was the person who had given these statements before Mukhtiarkar as the plaintiffs/appellants had failed to examine any witness on this point. Of course he did not believe the statement of the appellant. He further held that the statements of Haji Ali Bux and Tekumal merely amounted to hearsay and the evidence of Ibrahim was disbelieved. In respect of the 3 receipts Exhs. 66, 67 and 68 showing that Sultan had paid 3 installments on behalf of Chattanmal in the years 1947, 48 and 49, the Civil Judge held that these receipts do not confer any right or title over the appellant. The Civil Judge further held in respect of issue No, 5 that the appellant had purchased 5.4 annas shares of the land from Mr. Iqtadar Ahmed and Mohammad Abdul Qadir, the claimants and, therefore, it was their land. He further held that although the appellants were in possession of the land but the property had vested in Custodian in 1947 and, therefore, the appellant could not claim the adverse possession. In respect of issue No, 9 he held that the appellants have not taken the land in partnership of Chattanmal as alleged by Chattanmal but subsequently Chattanmal was alleged to have sold the said land to the appellant as deposed by Chandoomal but the transaction of 1945 has not been by registered instrument and the same being quite suspicious it did not confer any right. It was, therefore, held that Chattanmal had not validly sold the land to the appellant. Eventually it was held those 10.8 annas shares of Chattanwal evacuee property and the action of the Revenue Authorities in cancelling the mutation and treating the property as evacuee property was justified. On the legal issues it was held that the suit was not barred.
7. In appeal the learned A.D.J. Came to the conclusion that the grant of the land was in the name of Chattanmal and admitted position was that two installments were paid by Chattanmal to the Barrage Authorities. He further found that Exh. 64 was suspicious as the name of the person who had purchased the non-judicial stamp paper had been deliberately burnt and that this agreement pertains to the deposit of some amount and an attempt had been made to remove those words from this agreement. He, therefore, came to the conclusion that it was not genuine document. Even in respect of the statements made by Chattanmal before Mukhtiarkar Exhs. 68 and 88, he found it strange that there was 10 months' difference between the two statements and that statement of the Mukhtiarkar had been forged. He further found inconsistency in these statements in respect of the total payment of land to the Barrage Authorities having been made before 1946 while in fact the last instilment was paid in 'the year 1949. He, therefore, held that Chattanmal had no right to transfer the land to the appellant. He further agreed that the statement in Exh. 86 was in a congested form and that no order of Mukhtiarkar had been proved and that the evidence of Mukhtiarkar, who had recorded this statement, had not been adduced nor evidence of any persons from Revenue Authorities had been adduced to prove the statements. He, therefore, came to the conclusion that these statements were not genuine. He disbelieved the statements of Haji Alibux, Takoomal and Ibrahim to the extent that Sultan and Ibrahim had contributed in payment of two installments of the land which had been made by Chattanmal. He agreed with the other findings of the Civil Judge and dismissed the suit.
8. Mr. G.H. Abbasi, learned counsel for the appellant submitted that the judgments in question are merely based on suspicion and, therefore, they are not judgments in law. He relied upon PLD 1968, Kar. 320, where it was observed that as genuineness of documents depends upon, whether it was signed or issued by a person by whom it is purported to have been signed or issued and inference as to forgery cannot be raised simply because its terms were not fulfilled by party concerned. He also referred to PLD 1972, Lah'. 709, where it was observed that cheating is a cognizable offence and the officers or the officials concerned should be brought to book. He also relied upon PLD 1983 Kar. 339, where it was held that entry in Record-of-Rights and certified entry in Register of Mutations is presumed to be true until contrary is proved or new entry is lawfully substituted therefor. However, I find that findings about the documents in question are not merely based on suspicion but cogent reasons have been given in treatin the agreement Exhs. 64 as a suspicious document and also treating the entries in the Revenue Record 'Exh. 86 and 88 as doubtful entries.
Moreover, there are four findings namely that of the Deputy Collector, of the Deputy Commissioner, of the Civil Judge as well as of the learned A.D.J. To the effect that the agreement in question as well as the Revenue Entries were suspicious and forged and the same is based upon visual examination of the said documents by the Revenue Authorities A as well as by the judges of the lower Courts and, therefore, the same are findings of facts and should not be disturbed in second appeal. The entries in the Record-of-Rights have been proved to be unreliable and, therefore, presumption in respect of their correctness cannot continue after the findings. The appellant's counsel further submitted that the agreement of 1945 namely Exh. 64 was mere recital of an old pre-existent position of 1944 where the parties had agreed to obtain the grant of land in the name of Chattanmal but they had agreed to share the same in the share of 10.8 and 5.4 annas and, therefore, there was no transfer or any interest made in 1945 by Chattanmal and hence it did not require registration. He relied upon PLD 1957 Kar. 643, where the test was laid down to determine whether the document requires registration and the test was "Did the document, constitute the bargain between the parties or was it merely the record of an already completed transaction. It was held in that case that the document in question contained a recital that a person hold equal share with the executant in certain land from the beginning and, therefore, the document was not inadmissible for want of registration. However, the cited case is not the authority for the facts involved before me in this appeal because the land involved in the cited case appears to b land for which the installments appear to have been already paid while the land before me is one for which the installments had not been paid fully till 1949 and, therefore, Chattanmal, being the grantee of the B land from the Government, had no right to acknowledge the share anyone in the said land until and unless he had become full owner the same after payment of all installments.
9. In any case Mr. Abbas Farooqui, learned counsel for the respondent had submitted that Chattanmal could not transfer the land in question to the respondents nor even acknowledges the existence of any right of the appellants in the said land without permission from the Deputy Commissioner as the land had been granted solely. In the name of Chattanmal and in fact, the arrangement, if any, that the land was to be taken for the benefit of the appellants in certain shares, could not be held to be correct as it was against the Government policy. The same appears to be a correct submission. In any case the appellants' counsel has not been able to show me any law which could authorize any person, who had taken the land from the Government in his own name and had not paid full installment for the same, that he could acknowledge the existence of the right of any person in the said land without permission from the granting authority.
10.Moreover, since the agreement in favour of the appellants as well as the mutations made in their favour of the land in question have been found to be forged and suspicious, therefore, the appellants have no right in respect of the said land to the extent of 10.8 annas.
11.The appellants' counsel further submitted that the judgment and decree of the A.D.J. Was not in accordance with Order XLI, rule 31 C.P.C. Which requires the appellate Court to state the points for determination, the decision thereon and the reasons for the decision. Counsel relied upon 1968 SC M It 464 where it was observed that, no doubt, non compliance wit the strict provisions of rule 31 of Order XLI of C.P.C. 1908 may vitiate the judgment and make it nullity and irregularity may be ignored if there have been substantial compliance with it. But when important points of law are involved in the case, the appellate Court must indicate the points raised and the reasons for its decisions.
12.In the light of the above principle I find that the appellate Court has of course not strictly complied with the terms of rule 31 of Order XLI, C.P.C., but the lower appellate Court has in fact taken into consideration the main issues involved in the case and has further taken into consideration the main documents which were the basis of the contentions of the appellants and after considering the various aspects of the same the lower appellate Court has come to the conclusion that Exh.64, and Exhs. 86 and 88 were not reliable and that the land receipts issued in 1947, 1948 and 1949 do not confer any right upon E the appellants. The appellate Court has given its correct reasons for those findings and I am, therefore, of the view that the irregularity committed by the appellate Court in not reproducing the issues could be ignored in this case and the same has in fact, caused no prejudice to the appellant. The ease of the appellant has been dealt with at four levels and has been found to be without merit. Consequently, this appeal is hereby dismissed with costs.