' A suit for cancellation of sale-deed, dated 15-8-1974, in regard to House No,856 (Committee No,1681-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 learned trial Court dismissed the suit on 18-11-1981.
3. The appeal filed by respondent was accepted on 23-10-1985 by the learned Additional District Judge, Okara who reversed the findings of the Court below and decreed the suit of the respondent.
4. In this revision petition, the judgment of the learned appellate Court has been called in question.
5. Learned counsel for the petitioner argued, that the respondent had failed to prove fraud and misrepresentation in the execution of the document and that the learned Additional District Judge misread the record while observing that D.W.1 Muhammad Ali was not a marginal witness in the deed and that no marginal witness was produced. He submitted, that D.W.1 was marginal witness, shown in Exh.D-1. 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 learned 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 learned appellate Court. Lastly, it was argued, that direction for sending a criminal complaint against the petitioner was unlawful and without jurisdiction.
6. Conversely, learned counsel for respondent argued, that the petitioner was guilty of committing forgery 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-1, a certified copy from the record of the Sub-Registrar, 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 P.W.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 D.W.1 Muhammad Ali. He claimed to be a marginal witness of the sale-deed. Before the commencement of the evidence of the petitioner, the respondent had already filed certified copy of the sale-deed Exh.P-1, 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-1 gives clear indication of forgery.
From the sale-deed Exh.D-1, 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 Sattar son of Ghulam Qadir was shown to be the marginal witness. In Exh.D-1, at the bottom, the word alongwith the name of Muhammad Ali is inserted which gives clear impression 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 reason or 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 two witnesses of the deed, namely, Abdul Sattar and Syed Maratab Ali Shah.
It is not the case of the petitioner that the certified copy does not reflect the true record of Sub- Registrar. It is also not the case of the petitioner nor argued that in the original record, of Sub- Registrar, the name of Muhammad Ali exists as a witness. This being so, the petitioner, taking benefit of the original deed being in his possession, conspired with the deed writer and made an unauthorised insertion at the fag-end of the document which was not at all a place for showing any witness as the executant of the document was not shown to have signed either over the said entry or alongwith the said entry. The learned Additional District Judge, therefore, rightly observed that D.W.1 was not a marginal witness of the document in the inception and if he had been an attesting witness of the document his name would have appeared in the certified copy.
8. 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 P.W.2, admitted, that no payment was made in his presence and that he did not know if the document was got 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 that since the document was a registered document, therefore, it should be presumed to have been executed by the respondent, is without any merits. Reliance was placed on Pirla 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 part, made in the presence of the Registering Officer, inscribed in the certificate are facts which are to be presumed under section 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 Ali etc. v. Sher Muhammad etc. (1989 M LD 135), Muhammad Sher and 2 others v. Muhammad Azim and others (PLD 1977 Lah. 729), wherein it was observed as follows:-- "Learned counsel for the petitioners has, however, contended that since the document was registered instrument, a presumption in favour of its execution by Gahna arose under section 60 of Registration Act of 1908. This argument of learned counsel has no merits. As observed by the Privy Council in Gopal Das and others v. Sri Thakurji and others (AIR 1943 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 P.W.4 and denied the transaction and execution of sale-deed, 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. In this 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 which he had failed to prove. The learned 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 from any misreading of the record.
12. As regards the argument to the lodging of the criminal complaint against the petitioner under sections 465 and 466 of P.P.C., the argument advanced is without any legal substance. The learned appellate Court, after taking into consideration the entire documentary evidence, concluded, that forgery was made in Exh.D-1 and that D.W.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 the petitioner, Muhammad Ali D.W.1, and Jan Muhammad petition writer. The appellate Court could either try 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 learned 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.