This regular second appeal is directed against the judgment and decree learned District Judge, Faisalabad dated 5th of May, 1982 reversing the decree A judgment of the trial Court dated 4th of April, 1981.
2. The appeal arises out of a suit filed by the respondent on 16th of May, 1971 under section 77 of the Registration Act, 1908. According to the case of the respondent/plaintiff, Zahoor Ahmad, the predecessor of the appellants was a partner in a partnership firm, Zahoor Weaving Factory. On 17th of November, 1969, he alienated his 1/4th share in the Factory to the respondent for a consideration of Rs. 60,000 by executing a deed of sale. The sale-deed was presented for registration before the Sub-Registrar, who refused to register the same on 1-5-1970 on account of non-appearance of the executant. An application under section 73 of the Registration Act, 1908 was filed by the respondent before he Registrar which was accepted on 20th of November, 1970 and the matter was remanded to the Sub-Registrar for holding an inquiry. The Sub-Registrar hereupon issued notice to Zahoor Ahmad who failed to appear before him and instead, his counsel informed the Sub-Registrar that the document had never been executed by Zahoor Ahmad. The Sub-Registrar, therefore refused the registration on 22-4-1971. The application filed by the respondent under section 3 of the Act before the Registrar, Faisalabad also failed oh 28th of April, 1972 which led him to the filing of suit referred to above.
The suit was contested by Zahoor Ahmad by filing a written statement in which he denied having executed the sale-deed. The learned trial Court framed x issues in the suit on which parties produced their evidence. This suit was dismissed by the trial Court on 4-4-1981 on the finding that the consideration of Rs. 60,000 had not been paid by the respondent to Zahoor Ahmad who had not executed the sale-deed.
On an appeal filed by the respondent, this decision of the trial Court was reversed by the learned District Jude, Faisalabad on 5th of May, 1982. It was the learned lower appellate Court that the dispute regarding payment of consideration was outside the purview of suit under section 77 of the Registration Act, 1908 and as such the trial Court was not justified in entering into this controversy.
The learned District Judge after appraising the evidence on the record held that the sale-deed had been executed by Zahoor Ahmad deceased.
3. The learned counsel appearing in support of this appeal has contended that the first appeal filed by the respondent before the learned District Judge, Faisalabad was not competent. According to the learned counsel, the suit of the respondent had been filed under a special law namely, section 77 of the Registration Act, 1908, which did not provide for any appeal against the decision of the Civil Court and as such the respondent had no right of appeal. He has relied upon Shah Muhammad v. Inayat Ullah and others (PLD 1953 Lah. 87) to show that the suit under Section 77 of the Registration Act. 1908 was in the nature of a special remedy provided by the Statute and no such suit can be filed independent of the provision of section 77. The learned counsel has also placed Muhammad Hussain (PLD 1975 SC 457) in support of his contention that the right of appeal has to be specifically conferred by law and cannot be claimed by implication.
4. There is no force in the contention of the learned counsel. The authorities relied upon by him have absolutely no applicability to the present case. There is no cavil with the proposition that the right of appeal is a substantive right which is not inherent but must be specifically conferred by law. In the present case, however, it will be seen that section 77 of the Registration Act confers a right on an aggrieved person to file a suit before the Civil Court in the exercise of its ordinary civil jurisdiction. Section 77 contemplates the filing of a suit before a Civil Court in an ordinary manner and the filing of such a suit attracts the applicability of the Code of Civil Procedure. Consequently all rights flowing from the filing of the suit enumerated in the Code would become available to a person filing the suit including section 96 of the C.P.C. Which confers a right on the aggrieved party to file an appeal. There was as such no necessity for separately making a provision for filing an appeal in a suit under section 77 of the Registration Act, 1908. In R.M.R.A. Adaikappa Chettiar and another v. Chandrasekhara Thevar (AIR 1948 PC 12), the Privy Council while considering, a similar question regarding right of appeal in proceedings under section 19 of Madras Agriculturists `Relief Act, 1938 was pleased to observe that:- ---. . The true rule is that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute, the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special Statute which does not in terms confer a right of appeal. .--- The judgment in Hem Singh and others v. Basant Das and another (AIR 1936 PC 93) also supports this view.
5. Similar provision exists in other Statutes like section 56 of the Punjab Land Revenue Act, 1967, sections 39 and 42 of the Specific Relief Act and section 14 of the Religious Endowments Act (XX of 1863), which provide for filing of the civil suit by the parties for determination of their rights. It has never been doubted that against the decision of Civil Court under those provisions, the appeals are competent before the higher forum. The learned counsel for the appellants, however, contends that the suit under section 77 is in the nature of a summary proceedings, therefore, such proceedings were not amenable to appeals. This argument of the learned counsel has not impressed me. Section 77 provides for filing of a suit in an ordinary manner before the Civil Court in the exercise of original civil jurisdiction and therefore, it cannot be said that the suit though limited in its scope, is to be tried in a summary manner. On the other hand, if the provisions of section 77 are compared with section 9 of the Specific Relief Act, 1877, it will be seen that the later provision specifically ordains that no appeal shall lie from any decree or order passed in any suit under it. No such embargo, however, appears in section 77 of the Registration Act so as to take away the right of filing of appeal conferred by section 96 of the C.P.C.
6. Section 77 of the Registration Act, 1908 is couched in the same language as section 77 of the Old Indian Registration Act (III of 1877) which was repealed by the Act of 1908. While interpreting section 77, it was held by the Bombay High Court in Wishwamhar Pandit alias Na'na M'aharaj v. Prabha `Kar Bhat and Jana'rdan Bhat (I.L.R. 1884 Bom. 269) and also by the Punjab Chief Court in Devi Ditta v: Ahmad Khan (1896 Punjab Record No. 43) that an appeal lies from a decree in a suit under section 77 of the Act. The observation in Ramasuba Naicker v. Dorai Raj alias Muniandi Naicker (1924 Law Weekly 966) also supports this view.
The learned counsel for the appellants had tried to distinguish these cases by pointing out that section 77 of the Registration Act, 1908 contains a proviso which was not there in the Indian Registration Act, 1887. The proviso, however, is in the nature of enabling provision inserted by an amendment to remove any doubt that the decision in a suit under section 77 shall not debar the aggrieved person of his other remedies available under the law. This proviso, does C not, in any manner 'curtail the right of appeal nor can the proviso construe as overriding the provisions contained in the Code of Civil Procedure regarding filing of appeals. The contention of the learned counsel that no appeal lies against the decree of the trial Court in a suit filed under section 77 of the Registration Act, cannot be accepted.
7. The learned counsel has next challenged the finding of the learned District Judge on the question of execution of the document Exh. P-1 by Zahoor Ahmad. The learned District Judge, while reversing the finding on these issues has recorded a finding of fact substantiated by evidence on record and has come to the conclusion for valid reasons that the document was in fact executed by Zahoor Ahmad deceased. According to the learned counsel for the appellants, the witnesses produced by the respondent, were not worthy of any reliance and the learned District Judge erred in giving weight to their testimony. I am afraid, such a plea is not available to the appellants in this appeal under section 100 of the C.P.C. I have not been able to find any misreading of evidence or non--- consideration of any material. The learned District Judge has duly taken notice of the reasons advanced by the learned trial Court and has rejected them on valid grounds.
According to the findings of the trial Court itself, the notice Ex. P-2 was issued by the learned counsel for Zahoor Ahmad the predecessor of the appellants. A reading of this-notice would show that the appellants had no where denied having executed the document Ex. P-1. On the other hand, if the notice is reads as a whole it gives a clear impression that the execution is not being denied by Zahoor Ahmad but non-payment of consideration was being alleged so as to prevent the registration of the document. The learned counsel, who issued the notice, appeared as P.W. 2 and stated that he has- issued the same under instructions from Zahoor Ahmad. The fact that Sh.
Abdul Aziz, Advocate, had been instructed to issue notice was admitted by the defendant himself while he appeared as D.W.
3. He, however, stated that the notice was contrary to the instructions given to the learned counsel. But when Sh. Abdul Aziz, Advocate, was examined as a witness, he was not cross-examined at all. Muhammad Yahya, Petition-writer (P.W. 1), stated that he was the scribe of the deed. Ex. P-1, which was signed by Zahoor Ahmad deceased in his presence and he had entered the sale-deed in his Register. Muhammad Gulzar and Muhammad Yousuf P.Ws are the marginal witnesses to the deed. They appeared before the Court and testified having signed the deed as marginal witnesses. The learned District Judge relying upon their testimony has held that the document Exh. P-2 has been proved to have been executed by Zahoor Ahmad. The finding recorded by the learned District Judge is in accord with the evidence on the record and is not liable to be interfered with in this second appeal.
8. The learned counsel for the appellant has also contended that the stand taken by the respondent in the present proceedings was contrary to that taken by him in the earlier litigation between the parties and, similarly, the statement of Muhammad Yousuf, P.W. 3 was also contradictory to the earlier statement made by him. It is, however, admitted by the learned counsel that the earlier statements made by the respondent and Muhammad Yousuf were not put to them when they appeared as witnesses nor were they confronted with the previous statements and asked to explain the alleged contradictions. In Sikandar Hayat and 4 others v. Master Fazal Karim (PLD 1971 .SC 730) and Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others (PLD 1973 SC 160) it was held that without following such a procedure, the previous statements cannot be used as legal evidence.
9. Even otherwise I have not been able to find any contradiction in the previous statement of Muhammad Yousuf with that of the statement as P.W. 3 and the statement of the respondent in the present proceedings with that of the reply to the application for receiver filed by the respondent in the earlier suit, Exh. D-5. The learned counsel for the appellants submitted that since there was bad blood between the parties and also between Zahoor Ahmad deceased and Muhammad Yousuf P.W. 3, Zahoor Ahmad would not have gone to the office of Muhammad Yousuf nor could the respondent pay the consideration except in the presence of the Sub-Registrar. The learned District Judge has duly adverted to this aspect of the matter and rejected the plea raised in this behalf.
Admittedly, Zahoor Ahmad, predecessor of the appellants, was maternal-uncle of respondent Muhammad Saleem. Muhammad Yousuf P.W. Is also a close relative to both the parties. According to the case of the respondent duly supported by evidence on the record, the parties had settled their dispute and differences pursuant to which the sale-deed was executed. The document, Exh.
P-1, itself acknowledges the receipt of entire amount of consideration which was, in terms of the document in itself, to be paid at the time of execution and not before the Sub-Registrar. There was, as such nothing unusual on the part of the respondent to have paid the amount at the time of execution of the document. The findings of the learned District Judge are unexceptionable and not liable to be interfered with in this second appeal.
For all these reasons, this appeal has no force. It is dismissed with no order as to costs.