SYED NAJAM-UL-HASSAN KAZMI, J.- A suit for cancellation of sale deed, dated 15-8-1974, in regard to House No. 856 (Committee No. L681 1-B), was filed by the respondent, wherein the document was challenged on the ground of being a result of fraud, misrepresentation. The petitioner claimed that he had never sold the house in favour of respondent and that the sale deed was void ab initio and in-operative against his rights.
2. After issues and evidence, the leamed trial Court dismissed the suit on 18-11-1981.
3. The appeal filed by respondent was accepted on 23-10-1985 by the leamed Additional District Judge Okara who reversed the findings of the Court below and decreed the suit of die respondent.
4. In this revision petition, the judgment of the leamed Appellate Court has been called in question.
5. Leamed counsel for the petitioner argued, that die respondent had failed to prove fraud and mis-representation in the execution of the document and that the leamed Additional District Judge misread the record while observing that DW-l Muhammad Ali was not a marginal witness in the deed and that no marginal witness was produced. He submitted, that DW-l was a marginal witness, shown in Exh. D.I. It was argued, that the sale deed was a registered document, therefore, its genuine execution should be presumed. Reliance was placed on PLD 1976 Lahore 6. According to the leamed counsel, simple statement of respondent uncorroborated by any other evidence was not sufficient to prove allegation of fraud and that the onus of proof was wrongly changed in appeal by the leamed Appellate Court. Lastly, it was argued, that direction for sending a criminal complaint against the petitioner was unlawful and without jurisdiction.
6. Conversely, leamed counsel for respondent argued, that the petitioner was guilty of committing forger as in the original deed of sale Muhammad Ali was not shown as marginal witness and his name was fraudulently inserted at the fag- end of the document. He referred to Exh. P-l, a certified copy from the record of the sub-Register, to contend that in the record of Sub-Registrar, the entry of Muhammad Ali at the bottom of document as witness was not existing which was inserted in the deed later, in conspiracy with the Deed Writer. He argued, that no presumption would attach to a forged document and that the petitioner could not prove execution of the sale deed.
7. From the review of the facts, it is evident, that the respondent denied execution of sale deed while petitioner was making positive assertion as to the execution of the deed. The respondent appeared as PW-4 and deposed, that the petitioner had required him for a power of attorney and that the sale deed was fabricated by fraud and also that he had never sold the house in favour of the petitioner nor he ever executed the deed or appeared before the concerned authority for attestation or registration of the sale deed. As against this statement, the respondent produced DW-t Muhammad Ali. He claimed to be marginal witness of the sale deed. Before the commencement of the evidence of the petitioner, the respondent had already filed certificated copy of the sale deed Exh. P-l, wherein Syed .Maratab Ali Shah and Abdul Sattar were shown to be the marginal witnesses and Syed Muzammal Hussain Shah Advocate was shown to have identified the executant. From the record of Sub-Registrar, therefore, it was evident, that Muhammad Ali was not shown to be a witness in the sale deed. The document Exh. D.I gives clear indication of forgery.
Form the sale deed Exh. D.I. It is evident, that on both the pages, the names of the marginal witnesses are given. At page one. Syed Maratab Ali Shah was shown as marginal witness while on page two Abdul Saner son of Ghulam Qadir was shown to be the marginal witness, In Exh. D.I. At the bottom, the word along with the name of Muhammad Ali is inserted which gives clear impressions of forgery as the deed stood concluded much above the place where the name of this man has been inserted. Muhammad Ali. Does not figure as a witness on the margin of the two pages. There was no place for mentioning a witness down below the document where writing had already concluded and the marginal witnesses were already appearing on the two pages. This insertion, is positively intentional to fabricate evidence. If Muhammad Ali's name had been in the deed as a witness, then it must have been carried in the record of Sub-Registrar where the deed were copied verbatim. Exh. P-1 is the certified copy issued by the Copying Agency which shows that there were tw o witnesses of the deed, namely, Abdul Sattar and S8. The marginal witnesses. Abdul Sattar and Syed Maratab Ali Shah, as shown in the sale deed, were never produced by the petitioner in support of his case. Their non-appearance has neither been explained nor any attempt was ever made to produce them. The non-appearance of these two witnesses will obviously result in adverse inference against the petitioner.
9. The deed writer, who appeared as PW-2, admitted, that no payment w as made in his presence and that he did not know if the document was not prepared from him by Abdul Aziz respondent.
This being so. His statement was of no help to the petitioner. In these circumstances, the petitioner could not prove execution of the sale deed.
10. The plea thai since the document was a registered document, therefore, tt should be presumed to have been executed by the respondent, is without any merits. Reliance was placed on Pilar etc. v.
Noora etc. (PLD 1976 Lahore 6). In the said case, it was observed, that admission of receipt of consideration in full or in pan, made in the presence of the Registering Officer, inscribed in the certificate are fats which are to be presumed Ws 60 to have occurred as mentioned in the certificate and the certificate was admissible for proving the said event. There is no cavil with the proposition, that the facts stated in the certificate of the Registrar, are presumed to have happen, but the presumption attached to the certificate is rebuttable. IF the alleged executant, on oath, denies the execution of the document, then the presumption is deemed to have been sufficiently rebutted and onus lies upon the person, who alleges execution, to prove that the document was executed and the transaction did take place. Presumption in favour of registered instrument does not dispense with necessity of showing that person admitting execution before the Registrar was not an imposter but the same person who was mentioned in document as executant. It will be, therefore, for the person relying on the document to show that it was in fact executed by the proper person and that he had in fact appeared before the Sub-Registrar. Reference can be made to Muhammad Alt etc. v. Sher Muhammad etc. (1989 Law Notes 330). Muhammad Sher and 2 others v.
Muhammad Azim and others (PLD 1977 LHR 729), wherein it was observed as follows:- "Leamed counsel for the petitioners has however, contended that since the document was a registered instrument, a presumption in favour of its execution by Gahna arose Ws 60 of Registration Act of 1908. This argument of leamed counsel has no merits. As observed by the Privy- Council in Gopal Das and others v. Sri Thakuiji and others (AIR 1943 v PC 83) section 60 of the Registration Act does not dispense with the necessity of showing that the person admitting execution before the Registrar was not an imposter but the same person who was mentioned in the document as the executant."
11. In this case, the respondent appeared as PW-4 and denied the transaction and execution of sale deed, w which was sufficient to shift the onus upon the petitioner to prove execution. The petitioner, could not prove execution, as marginal witnesses were not produced. Syed Muzammal Hussain Shah. Advocate, who was counsel for the petitioner and shown to have identified the deed, was also not produced as a witness while the deed writer had admitted his ignorance about the person who instructed him to prepare the document, It is view of the matter, the argument, that the onus of proof was wrongly changed is without any merit. Even otherwise, the onus was upon the petitioner to establish execution of the sale deed w which he had failed to prove. The leamed Appellate Court did not commit any error in concluding that the execution of document could not be established- The findings so recorded do not suffer form any misreading of the record.
12. As regard the argument to the lodging of the criminal complaint against the petitioner u/Ss. 46S and 466 of PPC, the argument advanced is without any legal substance. The leamed Appellate Court, after taking into consideration the entire documentary evidence, concluded, that forgery was made in Exh. D.I and that DW-1 made a false statement and that the execution of the document could not be established, therefore, in view of these findings, there was no legal bar in sending a complaint against he petitioner, Muhammad Ali DW-1 and Jan Muhammad petition writer. The appellate Court could either the aforesaid persons itself or send a complaint for their prosecution in accordance with law. In view of the findings of forgery and false statement, the direction of the leamed Appellate Court for sending a complaint against the petitioner could not be said to be unjustified or without authority.
13. For the reasons above, there is no merit in this revision petition, which is dismissed with costs.