' This revision petition is directed against the judgment dated 21-12-1986 passed by Khan Talib Hussain Baloch, the then learned Additional District Judge, Sialkot, whereby, he accepted the appeal filed by Ghulam Haider, etc. Respondents against the judgment dated 24-1-1985 passed by Mr. Shabbir Hussain Chaudhry, the then learned Civil Judge, Pasrur, whereby, he dismissed the declaratory suit filed by the present respondents/plaintiffs against the petitioners! Defendants. In the appeal, the findings of the learned Civil Judge were reversed and the suit filed by the present respondents/plaintiffs was decreed.
2. The brief facts are that the land measuring 53 Kanals, 16 Marlas bearing Khewat Nos.6, 7, 8 to 10 situated in Khasra Nos.1630, 384, 385, 386, 387. 388, 389, 417 and 420 recorded in Jamabandi for the year 1973-74 within the area of Mauza Ghatialian, Tehsil Pasrur was owned by Rehmat Ali i,e, the predecessor-in-interest of the present respondents. He executed a general power of attorney in favour of Muhammad Boota in respect of the disputed land on 31-1-1981. According to that power of attorney, the aforesaid Muhammad Boota was given full authority to sell or alienate the disputed 'and in any manner specified therein.
3. In. Pursuance of the aforesaid power of attorney, the aforesaid Muhammad Boota mortgaged the disputed land vide a mortgage deed dated 3-2-1981 in favour of his real brother i,e, petitioner No,2. Subsequent to that, the aforesaid attorney further executed the registered sale-deed in favour of petitioners Nos.2 and 3 namely Mukhtar Ahmad and Mushtaq Ahmad. Both the aforesaid alienees were his real brothers.
4. The aforesaid Rehmat Ali filed a suit for declaration that defendant No,1 i,e, Boota had fraudulently and under undue influence obtained the power of attorney in his favour and thereafter, executed the mortgage deed and the sale-deed aforementioned in favour of his brothers without consideration and necessity. In this regard, it was contended that the plaintiff was an old person of 80 to 85 years of age and had poor eyesight and apart from that, he was constitutionally weak and was short of hearing. It was also contended in the plaint that he was issueless and had no other member of the family but was living with Ghulam Qadir and Khuda Baldish i,e, the present respondents who were related to him. They were looking after him since long being his collaterals. About one year prior to the institution of the suit, the aforesaid Ghulam Qadir, etc. Neglected him, whereupon, he got angry and left their house and shifted to the house of the present petitioners/defendants who were also his collaterals in a distant degree. They accepted him with great love and affection and started showing him sympathy. They allegedly earned his full confidence. However, about five months prior to the institution of the suit, the petitioners/defendants advised the deceased plaintiff to constitute power of attorney in favour of petitioner/defendant No,1 namely Boota so that his landed property in dispute may be properly looked after and the income accruing therefrom be collected and handed over to him. The deceased plaintiff was allegedly trapped by the aforesaid Boota who got power of attorney in his favour by giving understanding to him that it was for the limited purpose of looking after his lands and collecting the produce therefrom. However, in the aforesaid registered power of attorney, the attorney was never delegated any power to sell, mortgage or to alienate the land in question in any manner. Surprisingly the aforesaid attorney executed the mortgage deed in favour of his - real brother i,e, petitioner/defendant No,2 and thereafter registered sale-deed in favour of his brothers i,e, petitioners Nos.2 and 3 as pointed out above of which he had allegedly no authority. Hence it was contended that the plaintiff being an old and weak person was cheated and defrauded by preparing an unwarranted power of attorney showing that the attorney was authorized to deal with the property in any manner including its sale, mortgage and alienation. The aforesaid mortgage and sale were without consideration as nothing was ever paid to the deceased plaintiff.
5. The suit was resisted in the Court below on the ground that the plaintiff had entered into a valid power of attorney, whereby, he had legally authorized the petitioner/defendant namely Boota to sell, mortgage or alienate the suit property in any manner. It was in pursuance of that deed that the property in question was mortgaged and subsequently sold to the other co- petitioners/defendants for which a consideration was paid as stated in the registered documents relating to the aforesaid transactions. It was, therefore, submitted that the allegation in respect of fraud was without any substance and that the plaintiff had filed the suit with ulterior motive upon the instigation from some interested quarter.
6. The learned trial Court after framing the issues on controversial points recorded evidence and came to the conclusion that transactions in dispute were rightly entered tor consideration without any fraud or misrepresentation as alleged in the plaint. The suit was accordingly dismissed against which an appeal was filed. During the pendency of the appeal, the original plaintiff/appellant Rehmat Ali died, whereupon, the present respondents were substituted in his place as appellants being his legal heirs for which the learned Appellate Court recorded an elaborate order dated 26- 10-1986 after holding an enquiry on the issue whether the petitioner Ghulam Haider and Ghulam Qadir were the legal heirs of Rehmat Ali deceased. Since-then the present respondents/appellants were pursuing the matter on behalf of their predecessor-in-interest i,e, Rehmat Ali.
7. I have heard the learned counsel for the parties on the points raised in this revision petition.
Learned counsel for the petitioners has submitted that the present respondents are in no way legal heirs of the deceased and that the question about impleading them as legal heirs has wrongly been determined by the learned lower Appellate Court without any enquiry. In this respect, it was further submitted that even if the legal representatives were brought on record despite of the fact that they were not connected with the deceased according to the pedigree-table but that implement was merely a formality to continue to proceedings and would in no way show that they were the lawful or bona fide claimant of the land in question being impleaded as heirs of the deceased owner. Reliance was placed on AIR 1919 Madras 510 (Paramaswami Ayyangar v. Alamu Nachiar Ammad and another), 1923 Rangoon 114 (Maung Po Mya v. Ma Gyan Bon by her Legal Representative Ma Tin), AIR 1941 Lahore 142. (Daulat Ram v. Mt. Meero and others) and PLD 1966 Supreme Court 182 (Muhammad Azim and others v. Sh. Muhammad Nawaz and others) to show that the provisions of Order XXII, rule 5, C.P.C. Were not properly invoked or applied by the learned lower Court to bring the legal Representatives of the deceased plaintiff/appellant on record. In this connection, it was reiterated that the determination of the legal heirs ought to have been done after holding an enquiry in the matter as to who were the lawful legal heirs of the deceased plaintiff.
8. Learned counsel for the respondents, however, opposed this point on the ground that it was a matter finally closed after it was decided by the learned Appellate Court below vide its detailed order dated 26-10-1986. It was never allegedly challenged nor it could be allowed to be challenged in this revision petition.
9. I have given my careful consideration to this fact and find that this question was raised before the learned Appellate Court which framed the following issue to settle the controversy:-- ' Whether the petitioners Ghulam Haider and Ghulam Qadir are the legal heirs of Rehmat Ali deceased? OPP
10. The respondents (legal heirs) produced documentary evidence consisting of a pedigree-table (Exh.A.1) and another pedigree-table for the year 1973-74 (Exh.A.2) and memo. Of appeal in the appeal titled Muhammad Boota v. Ghulam Rasul, etc. Pending in the aforesaid Court. However, no rebuttal was produced by the present revision petitioners/defendants in the learned Appellate Court to dislodge that evidence. Hence the learned Appellate Court had come to the conclusion that though the present respondents/appellants were not connected through common ancestor according to the pedigree-table produced on the aforesaid issue but it would follow from the perusal of the aforesaid pedigree-table that the respondents were nearer in the degree to the deceased as compared to the present petitioners and in this respect, a reference was also made to the memo. Of appeal in which the aforesaid respondents namely Ghulam Haider and Ghulam Qadir were shown as legal representatives of Rehmat Ali deceased in another appeal relating to the property in question. It was in the light of these facts that the aforesaid Ghulam Haider and Ghulam Qadir sons of Nawab Din being near collateral were allowed to be impleaded as legal heirs of the deceased plaintiff Rehmat Ali for the purpose of present dispute.
11. In view of the above situation, it clearly follows that an enquiry was held by the learned Appellate Court before impleading the present respondents as legal representatives of the deceased.
Appellant Rehmat Ali. I have also pointed out that an issue was framed in this regard and the evidence was also called which was produced by the legal representatives aforementioned but nothing was produced in rebuttal. In such a situation, it does not lie in the mouth of the present petitioners to impugn the order, whereby, the respondents were allowed to be substituted for the deceased appellant in the Appellate Court below. The plea in respect of the impleadment of the legal heirs of the deceased Rehmat Ali does not appear to have any force and the same is rejected.
12. Now coming to the merits of the revision petition, it will be necessary to examine the evidence brought on record which has been taken into consideration by , both the Courts below and has been' interpreted differently by each Court. The learned trial Court came to the conclusion, on the evidence recorded before it, that the suit was meritless as it was found that the power of attorney in favour of Boota was rightly executed and the subsequent transactions were also in accordance with law. This view was taken on the basis of the evidence of the marginal witnesses of those documents who clearly stated that the documents in question were duly executed and got registered by the deceased Rehmat Ali with his free will and without any fraud or misrepresentation. The learned Appellate Court came to the conclusion that though the marginal witnesses were produced in support of execution of the documents but the attending circumstances would reveal that there was something fishy in respect of the transactions which were executed by the attorney on the basis of general power of attorney in his favour. In this regard, it was contended that there was no reason for the deceased and owner to execute any general power of attorney in favour of one of the present petitioners because he was admittedly living with them and prior to that, he was living with the other party i,e, respondents' side. Secondly, there was no bona fide proof that in fact the subsequent transactions were for the benefit of the deceased land owner as there was nothing to show that the latter had received any type of consideration. In this connection, it was contended that there could be no direct evidence for the commission of fraud or misrepresentation which could only be inferred from the attending circumstances. If one asks for a clear cut and crystal proof regarding a fraud, it would be impossible to procure any such proof because a clever and dexterous knave would easily escape from the charge of fraud and collusion. Reliance was placed on 1923 Privy Council 73 (Satish Chandra Chatterji, since dead v. Kumar Satish Kantha Roy and others) to support this proposition. It was ultimately contended by the learned counsel for the respondents that the petitioners had chosen a constitutionally weak person in his dotage being aged about 80/85 years to deprive him of his land without paying him anything and by trapping him into the fraudulent transactions of mortgage and sale on the basis of power of attorney which was obtained through misrepresentation by posing its object as to manage the lands belonging to him. However, later on the document was differently executed and got registered with an authority to deal with the property in question in any manner such as mortgate, sale or gift, etc. It was allegedly a clever contrivance to actually rob an old person of his lifelong possession i,e, land in question. It was, therefore, contended that the conduct of the present petitioners was tainted with fraud and misrepresentation to deprive the deceased landowner of his belonging through deceitful manner.
Hence, it was contended that the transactions in question could not be solemnly recognized being lawful conveyance in favour of the present petitioners. It was particularly so when the beneficiaries of the transactions were the real brothers of the attorney namely Boota and that too without any proof of payment of consideration to the deceased landowner. Finally, it was contended that it was the betrayal and abuse of confidence flowing from the fiduciary relationship by misusing the same to get undue advantage which would constitute fraud of gravest nature. It was, therefore, alleged that the learned Appellate Court had rightly set aside the decision of the learned trial Judge for the reasons advanced in its judgment. On the contrary, learned counsel for the petitioners has submitted in rejoinder that the power of attorney was registered and the deceased landowner had appeared before the Registrar to affix his thumb-impression in token of its correctness. The witnesses examined at the trial were the marginal witnesses of the aforesaid document who had clearly stated that the document was read over to the deceased landowner by the Sub-Registrar for 2/3 times and after believing it to have been correctly executed, he had put his thumb- impression in presence of the witnesses who had identified the executant before the Registrar. It was, therefore, contended that the plea of fraud or misrepresentation would crumble to the ground being an afterthought and concoction after taking advantage of the subsequent transactions which were entered into for a lawful consideration. The mere fact that the beneficiaries were the real brothers of the attorney would in no way tarnish the solemnity of the registered deeds which were executed in due course of law and proved through the marginal witnesses during the trial. It was, therefore, contended that the learned Appellate Court had delivered a wrong verdict in setting aside the judgment of the learned trial Court which was based on direct evidence in respect of the execution of the documents aforementioned.
13. I have taken into consideration the-foregoing arguments addressed in respect of merits of the case. It is to be seen whether the predecessor-in-interest of the present respondents was actually made a victim of fraud or the transactions in question were truly executed. It is a question to be decided with regard to the facts brought on record. The burden of proving the allegation of fraud is always on a party who alleges it The Courts have to be careful in coming to a finding of fraud and should normally satisfy themselves when the conclusion is based on reliable evidence, much so, if the documents have been got registered which becomes a notice to the public-at-large being the documents in rem. The pleas such as misrepresentation and fraud should be examined with utmost rigour as those are not the pleas that an honest man would make save in the most exception at circumstances. It must be proved that the pleas regarding fraud and mis- representation were false to the knowledge of the party making them, or were such, that the party could have no reasonable belief that they were true; that they were made for the purpose of being acted upon and that they were believed and acted upon and caused the actual damage so alleged. As such, a plea of fraud cannot be recognized on some speculations or surmises nor it can be presumed or inferred lightly particularly when the document regarding which a plea of fraud has been raised is a registered document. For such type of documents. The presumption in the ordinary course of nature would be that of honesty and fair-deal till it is dislodged by equally good and trustworthy evidence to prove fraud and misrepresentation.
14. Keeping in view the above test, the facts of the present case ought to be analysed. First document to be taken into consideration is the general power of attorney, the certified copy of which has been placed on record as Exh.P.3 and the original has been brought on record as Exh.D.I.
Looking at the original, it becomes very clear that- the deceased landowner had clearly stated that he was unable to manage his property, and therefore, had constituted. Muhammad Boota as his attorney and had specifically authorised him not only to manage the property in question but also to deal with the tenants and receive produce and earning from them. It also specifically authorized the attorney to Mortgage, sell, gift or enter into exchange transaction in respect thereof and that any document so executed would be as good as executed by the original owner i,e, the executant Rehmat Ali. It also authorized the attorney to receive the consideration in respect of the aforesaid transactions. The concluding portion of the document shows that its execution was unconditional, without any fraud or misrepresentation and out of his freewill. The document was attested by Muhammad Ashraf, Mastay Khan and one Mushtaq Ahmad, but latter's signatures do not appear on it. The thumb-impression of Rehtnat Ali, the executant was also appended thereon. The aforesaid document was presented for registration before the Sub-Registrar, Pasrur who satisfied himself that it was executed by Rehmat Ali while appearing in person before him and the Sub- Registrar read it out to him to which he admitted as correct and put his thumb-impression in presence of the aforesaid witnesses. It is, thus, obvious that the document was got registered in presence of the witnesses and its contents were read over to the executant by the Sub-Registrar to which he believed to be correct. Likewise, the mortgage deed Exh.D.2 (Exh.P.4) was also executed on behalf of the deceased landowner by duly constituted attorney Muhammad Boota in which the payment of consideration was acknowledged to have been made. This was also got registered and executed in the presence of Muhammad Shafi Lambardar and Ghulam Haider son of Allah Rakha. Likewise, the sale-deed for Rs,70,000 was executed by the deceased landowner through Muhammad Boota, his duly constituted attorney vide deed (Exh.D.3) which too was got registered and executed in the presence of Allah Rakha Lambardar and Zafar Ahmad P, W. The payment of consideration was also admitted in the aforesaid document in respect of the alleged sale.
15. Now coming to the evidence brought on record, it will be clear enough that the marginal witnesses of the aforesaid documents were examined at the trial by the present petitioners/defendants in order to Prove them in accordance with law. On the contrary. ' the deceased plaintiff examined Muhammad Ahmad (P.W.1), a school teacher who contended that Rehmat Ali was 85 to 90 years of age and was quite weak on account of old age and was also short of hearing besides having poor eye-sight. The aforesaid executant plaintiff never married nor he had any relationship with defendant No,1 but admittedly the latter was from the brother hood of the deceased landowner like the respondents/plaintiffs. He contended that the deceased landowner had authorized Boota attorney at his persuasion to look after his lands for which it was agreed that a deed be prepared. However, there was no authority to convey the ownership of the land in any manner but the same was deceitfully done. The aforesaid witness is only a witness who had acquired the knowledge of the facts from the deceased plaintiff Rehmat Ali and had no direct knowledge of the facts in respect of execution of the documents in question. As such this witness has no direct knowledge as to what had actually transpired between the two sides before the Sub- Registrar. The similar is the position of Faiz Ahmad (P.W.2) who deposed in the same manner as was done by Muhammad Ahmad (P.W.1). Sarwar (P.W.3) claimed himself to be a tenant under Rehmat Ali deceased plaintiff and deposed that the petitioners/defendants had acquired the possession of the land in question through police. He also contended that Ghulam Muhammad son of Ghulam Hassan was also co-tenant with him and that they used to give produce to the owner Rehmat All deceased. He further contended that the deceased plaintiff was in possession of the land in question and that he and Ghulam Muhammad aforementioned were tenant under him.
However, during the cross-examination, the witness admitted that the present petitioners/defendants had taken possession of the land in question during 'Saawani' crops and that by then, the hearing of the present suit had not started. He also added that the present suit was filed after the aforesaid dispute. He also admitted that he could not take possession as the suit had started. He again admitted that the petitioners/defendants were retaining possession since then. However, he was unable to say that he could produce any receipt regarding the payment of share of produce as those receipts were never asked for due to the confidence between the two sides. Lastly, he deposed that the plaintiff had filed the suit before taking the possession of the land in question. The deceased plaintiff Rehmat Ali was examined as P.W.4. He supported his version in the plaint and contended that his land was cultivated by Ghulam Qadir, Ali Muhammad, Hussain and Ghulam Muhammad. However, he did not say that Sarwar was cultivating the land under him.
This shows that the aforesaid Sarwar (P.W.4) had wrongly claimed to be a tenant under the deceased plaintiff. His evidence, therefore, is not trustworthy and the evidence of Rehmat Ali on this point would also become shaky as no other tenant, as claimed by him was put in the witness-box.
He also admitted that the petitioners/. Defendants were in possession of the land but added that they had acquired the possession forcibly. He also stated that he refused to live with Ghulam Qadir and Khuda Bakhsh who used to serve him better but due to some differences with them, he had left their house and went to the petitioners/defendants. He added that the petitioners/defendants had given him an understanding that they would give him the share of the produce but later on cheated him. He also deposed that he did not authorize the attorney namely Boota to sell or mortgage the land in question or to sell the same in favour of his brothers. He also stated that he was not paid any amount in respect of the aforesaid sale. During cross-examination, he added that the petitioners/defendants were not related to him although he claimed that the present respondents/appellants namely Ghulam Qadir, Khuda Bakhsh and Ghulam Haider were nearer to him in relationship. He admitted that one Ghulam Rasul son-in-law of Khuda Bakhsh aforementioned had filed a suit against him as he (Rehmat) had received an earnest money of Rs,10,000 or Rs,20,000 in respect of 'a sale transaction at. The rate of Rs,3,000 per acre for the land in question for which he had executed a document but had not affixed his thumb-impression and as such, the aforesaid Ghulam Rasul had to file the suit. He admitted that he had given power of attorney in writing in favour of Boota which the latter had written himself 3-1/2 years prior to the date of its execution. He denied that he ever appeared before the deed writer. However, he admitted that he had appeared before the Tehsildar (Registrar) and that Muhammad Ashraf Lambardar had also appeared along with him. He denied that the Tehsildar had read out the document to him. He further admitted that he had remained with Boota at his house for two or three months after the execution of power of attorney. However, he added that he came to know about the fraud that the attorney had assumed all the powers to convey the land through the aforesaid power of attorney after about ten days of the execution of the deed itself. He admitted that he never tried to get the power of attorney cancelled. He also stated that at that time, all concerned used to look after him on account of greed; that he had no other source of income and even used to live by begging alms. He had admitted that he was accompanied by Ghulam Qadir, Ghulam Haider and Sarwar on the day of hearing when his evidence was recorded. He, however, admitted ultimately that he had given power of attorney to Boota i,e, one of the present petitioners/defendants but added that the deed of attorney was given in respect of share of produce. It is clear from the above evidence that the deceased plaintiff i,e, the executant of the document was examined in the Court below who admitted its execution but denied that he had empowered the attorney to convey the ownership of the land in question in any manner. On the contrary, he contended that he had only executed power of attorney in order to enable the attorney to collect the share of produce from the tenants which he used to collect himself in the past without difficulty or dispute. If it is so then how it can be said that there being no difficulty in collection of share of the produce, he would authorize the attorney only for the collection of share of the produce. The fact, however, remains that the document is to be taken as a whole as it was solemnly executed and got registered before a Sub-Registrar in presence of the witnesses.
Muhammad Ashraf (D.W.1) was also one of the witnesses of the aforesaid document whose presence was even admitted by the deceased plaintiff before the Sub-Registrar alongwith him. The aforesaid witness clearly stated that he along with Maseetay Khan was the marginal witness of the deed in question (Exh.D.1) which was read out two or three times to the executant which was admitted to have been correctly executed by its executant namely Rehmat Ali deceased plaintiff before the Tehsildar. In this respect, the witness further added that the Tehsildar had also read out the contents of the power of attorney which were admitted to be correct by the deceased plaintiff and thereafter, its executant i,e, Rehmat. Put his thumb-impression. According to him, the 'deceased plaintiff was having good health and eyesight. This witness appears to be truthful because even the plaintiff had admitted during cross-examination that he had been collecting the share of produce from the tenants himself before he had authorized Boota i,e, his attorney. If he was himself collecting the produce, it would follow that he was healthy enough to do so and as such, statement of Muhammad Ashraf (D.W.1) in this respect can be safely taken into consideration to come to the conclusion that in fact the plaintiff Rehmat Ali did not suffer from bad health as claimed by him. The witness added that the executant Rehmat Ali was 70 or 75 years of age and not 80 or 90 years as alleged. There is no reason as to why this witness who is a marginal witness of the document should be disbelieved. The other marginal witness of the mortgage deed (Exh.D.2)
Ghulam Haider was put in witness-box as D.W.2. He also contended that the deceased plaintiff was in good health when he executed the deed of attorney, which was written with his active consent.
Though the witness said that on the day of execution of the mortgage deed, the plaintiff had come to the 'Ahata' of Tehsil Pasrur but had not appeared in the Court, would not dislodge his evidence as the presence of the executant was not necessary because the latter had already constituted an attorney to appear on his behalf before the Registrar. It is, however, clear that this witness was a marginal witness of the deed, executed by the attorney of Rehmat Ali namely Boota. There is nothing on record to show that in fact anybody was cheated through this document. Likewise, sale-deed (Exh.D.3) was proved by its marginal witness Allah Rakha (D.W.3) who contended that the sale-deed was executed and got registered by duly constituted attorney of the deceased plaintiff. He also proved that the said document was executed with the willingness of the plaintiff Rehmat Ali who had full knowledge of the sale in question. He also added that during the execution of sale-deed, the plaintiff was having good health. He was unable to say, whether or not the deceased plaintiff Rehmat Ali had come to the Court at the time of the disputed sale. He, however, admitted that the attorney had conveyed the land to his brother after receiving consideration on behalf of his principal i,e, Rehmat Ali plaintiff. Muhammad Boota also appeared as D.W.4 and stated that after getting the consideration i,e, mortgage money and the sale proceeds, he had paid the same to the plaintiff. The aforesaid amount was paid by plaintiff to Ghulam Haider respondent for the reasons best known to him and thereafter, possession of land was delivered to petitioners/defendants Nos.2 and 3 after the aforesaid sale. He denied that he had entered into any secret deal with his real brothers to cheat the plaintiff i,e, the real owner of the property in question.
He also admitted during the cross-examination that he had got executed the mortgage deed two or three days after the power of attorney was executed in his favour and after two months of its execution, the sale-deed was got registered for a consideration of Rs,70,000.
16. The evidence discussed above would show that the plaintiff had examined the witnesses who had no direct knowledge nor they were present when the alleged fraud was committed. As earlier observed, the question of fraud is to be examined strictly particularly when the registered deed is prepared to eliminate every possibility of any type of foul play. The marginal witnesses to the document i,e, deed of power of attorney had appeared before the Registrar to vouch for its genuineness and faithful execution, because its contents were repeatedly read out to its executant by the marginal witnesses as well as by the Sub-Registrar. Though it was denied by the executant i,e, the deceased plaintiff that the document was ever read out to him but his contention could not he accepted on the famous principle that a person may tell a lie but document will never. The document itself shows that it was read out to the executant by an official in the performance and execution of his official duty. The plaintiff/appellant, therefore, cannot be believed that the document was not read out to him_ or that its contents were beyond his knowledge or were based on misrepresentation or fraud.. It, therefore, follows that the document in question i,e, power of attorney in favour of Boota was rightly held to be a genuine document, whereby, the attorney was authorized not only to manage the property in question but also to sell, mortgage, gift or convey it in any other manner. Once such an omnibus document is executed by a person and the same is got registered, it will be a notice to the general public regarding its execution and genuineness till it is strongly rebutted through an unimpeachable evidence which is not available in this case. Hence, the document in question being representative of the freewill of its executant i,e, the deceased plaintiff Rehmat Ali, the latter could not be allowed to wriggle out of it or to lend any benefit to a third party who have now become his legal representative being distantly related to him as compared to the present petitioners/ defendants. Similarly, the execution of the mortgage deed and the sale-deed have been proved through direct evidence of the marginal witnesses and the payment of consideration has also been shown to be made therein. The mere fact that those documents were executed in favour of real brothers of the attorney would not be very much material particularly when those were executed for bona fide consideration. Though receipt of consideration is denied by the deceased plaintiff but the attending circumstances such as- delivery of possession which has been admitted even by the deceased plaintiff during his own statement would show that the mortgage and sale-deed had been truly acted upon in good faith.
The fact that the petitioners/defendants were in possession throughout after the aforesaid transactions would go' in their favour that they had acquired title in the land in question on account of the documents Jain be said. Even the deceased plaintiff resided with his attorney after the execution of those documents till has again went over to the opposite side i,e, the. Present respondents/plaintiffs and changed his colours to challenge those documents unsuccessfully on the ground of misrepresentation and fraud. Perhaps he was in habit of wriggling out of solemn deeds as he had done so previously with Ghulam Rasul who had to file a suit against him as mentioned above. The petitioners being conscious of the previous conduct of the deceased plaintiff, would have thought it proper to be more secure and safe by getting the mortgage and sale-deed registered through a duly constituted attorney lest the deceased plaintiff could once again back out of his commitments.
17. In view of the above discussion it clearly follows that the judgment of the learned trial Court was based on first hand evidence, whereas, the judgment of the learned Appellate Court was delivered on the basis of presumptions of the witnesses who were admittedly not present at the time of the disputed transactions. The impugned judgment of the learned lower Appellate Court is, therefore, not sustainable in the eyes of law being based on indirect evidence as compared to the direct evidence relied upon by the learned trial Judge. The revision petition is accordingly accepted. The impugned judgment delivered by the learned Additional District Judge is set aside and the judgment of the learned trial Court is restored. The suit of the present respondents/plaintiffs shall remain dismissed as held by the learned trial Court. The\ cost shall follow the event.