' ZAFFAR HUSSAIN MIRZA, J.---This is a petition for leave to appeal seeking to call in question the judgment of a learned Single Judge of the Sindh High Court dated 30th August, 1986, whereby the second appeal filed by the petitioners against the judgment of the learned District Judge, Tharparkar, was dismissed.
2. The facts briefly are that Abdul Razzak respondent herein, filed a suit in the Court of Civil Judge, Umerkot, for declaration and injunction against the Deputy Commissioner, Tharparkar/Ex-officio Manager, Incumbered Estates, Mirpurkhas, on the plea that one Ali Gohar, since deceased, the predecessor-ininterest of the petitioners had sold a shop situated at Dhoro Naro, to the respondent by means of a registered sale-deed dated 22nd August, 1956, in pursuance of which constructive possession was delivered to him by attornment by the tenant of the shop. However, in 1958, the management of All Gohar's property was taken over under the provisions of the Sindh Incumbered Estates Act, 1896 and the Deputy Commissioner in his capacity as Manager of the said property had directed the respondent to deposit the rent realized by him from the tenant of the shop in question. Hence the suit.
3. The Deputy Commissioner resisted the suit and in his written statement denied the claim of the respondent. He further pleaded that Ali Gohar was a minor at the time of the alleged sale transaction and was not the sole owner of the property in question as his mother was also a co- sharer with him, with the result that Ali Gohar did not have exclusive power of disposal over the entire property in suit. On these pleas he justified his action. He also took up some legal pleas regarding the maintainability of the suit etc. Both parties produced their evidence on the issues framed by the Court and it is only necessary to point out that the respondent examined Muhammad Yaqub who was the attesting witness of the sale-deed. This witness supported the respondent's case and stated that Ali Gohar had sold the shop to the respondent and executed the document which bears his signature and also the signature of the witness as attesting witness. He also deposed that consideration of Rs, 5,400 was paid to Ali Gohar in his presence at the time of the execution of the deed. He further stated that the contents of the document were read over and explained to Ali Gohar. This witness was not cross-examined. The learned Civil Judge, however, dismissed the suit holding that the same was barred by section 42 of the Specific Relief Act, that it was insufficiently stamped, that the alleged sale was illegal and that the suit was not maintainable.
As a result of these findings the Court further held that the respondent was not the owner of the shop in question and that the order of the Manager demanding the payment of rent was according to law.
4. Being aggrieved, the respondent filed an appeal in the Court of District Judge, Tharparkar. During the pendency of this appeal the management of the property of Ali Gohar was terminated and his estate was discharged by the Manager, Incumbered Estates. As Ali Gohar had since died, the estate was restored to the petitioners as his heirs alongwith Mst. Soomri, the mother of the deceased, who were then substituted on the record in place of the Deputy Commissioner in the said appeal. The learned District Judge by his judgment and decree dated 24th May, 1979, allowed the appeal of the respondent holding that the order of the Manager, Incumbered Estates directing the respondent to deposit rent realized by him was void and that the finding of the trial Court that deceased Ali Gohar was a minor at the time of the sale was unsustainable. It was further held that the sale-deed was a valid and binding document but it operated only to the extent of the share of deceased Ali Gohar, because at the relevant time his mother Mst. Soomri had a share in the subject property which was not affected by the sale-deed. The other findings recorded by the trial Court against he respondent were also reversed and the suit was held to be maintainable.
5. The petitioners being dissatisfied challenged the judgment and decree passed by the District Judge in a second appeal before the High Court of Sindh which was dismissed by the impugned judgment by the learned Single Judge. Learned counsel appearing in support of the petition first contended that deceased Ali Gohar was a minor at the time of the transaction in question and, therefore, the sale if any was void on that account. He submitted that on the question of age school register entry was produced which ought to have been accepted by the High Court. We find no substance in this contention. Firstly this is a question of fact on which the two Courts below have held concurrently against the petitioners. The High Court has found the entry relied upon as suspicious and we do not agree with the learned counsel that the Court was not justified to look at the other entries preceding or following the entry in question. The correctness of the entry relied upon, depended upon the manner in which it appeared on the original register and we do not think that the Courts below exceeded their authority in examining the original register. Be that as it may the testimony of Mst. Soomri, the mother of deceased Ali Gohar, who appeared as a witness for the petitioners went against their case as she stated that her husband the father of Ali Gohar died in 1952, and at that time the latter was aged 20 to 23 years. This statement coming from the mother of the deceased is not liable to be cast away easily. Therefore, the finding that Ali Gohar was major at the time of the transaction is supportable by evidence on record. It was next contended than there was no evidence of execution of the sale-deed and, therefore, it could not be held that Ali Gohar had sold the disputed property to the respondent. In this connection learned counsel referred to the fact that Ali Gohar did not appear before the Sub-Registrar to admit execution of the deed and that the registration was, therefore, refused. It was only on the direction of the Registrar on an application of the respondent that the document was registered. On the basis of these facts it was contended that the registration of such a document did not raise a presumption of its correctness or proved its due execution. The argument is devoid of force for the simple reason that section 68 of the Evidence Act, permits the proof of the execution of a document by examining one attesting witness to prove execution. As already pointed out attesting witness Muhammad Yaqub was examined and fully supported the case of the respondent. This is sufficient also to dispose of the argument of the learned counsel that registration of a document in a case where the executant does not appear before the Sub-Registrar does not amount to proof of execution.
6. Learned counsel also contended that the document purporting to be the registered sale-deed also shows that requirements of the Registration Act were not complied with and, therefore, the registration was invalid. In this behalf the only submission was that the order passed by the Registrar was under section 72 and not under section 74 of the Registration Act. However, the order of the Registrar has not been placed on record and we cannot, therefore, evaluate the contention of the learned counsel. In any case the fact remains that the document was directed to be registered by the Registrar and this power he amply.1 possessed under section 74. Registration in consequence of such an order would amount to proper registration. It may further be pointed out that this question was not raised specifically before the trial Court as it does not form the subject- matter of any issue framed by the Court. Nevertheless the learned Single Judge expressed the same difficulty at the time of arguments, that he cannot examine the propriety of the order of the Registrar as copy of the same was not produced before him.
7. Finally a grievance was made that although the first appellate Court had upheld the sale-deed only to the extent of the share of deceased Ali Gohar, yet the High Court made no reference to this aspect in the impugned judgment and decreed the suit of the respondent in its entirety, with the result that the share of Mst. Soomri, the mother of deceased Ali Gohar in the property in dispute was also illegally included in the sale transaction. This apprehension is misconceived. The finding of the first appellate Court that the sale-deed is valid to the extent of Ali Gohar's share has not been reversed by the High Court as no appeal was filed by the respondent against that part of the judgment and decree, nor any cross-objection filed for that purpose. The impugned judgment in its operative part has only stated that the appeal filed by the petitioners was dismissed. The result obviously is that the judgment and decree passed by the first appellate Court finally stands operative. Thus there can be no genuine cause for grievance as expressed on behalf of the petitioners.
8. For all the aforesaid reasons the judgment of the High Court is unexceptionable and this petition is, therefore, dismissed.