' This judgment will decide two connected Revision Petitions bearing Nos.843 of 1986 and 844 of 1986.
2. These two Civil Revisions under section 115, C.P.C., have been filed by Manzoor Ahmad petitioner to call in question the consolidated judgment and decree passed by Additional District Judge, Lahore, dated 8-2-1986 dismissing the appeals of the petitioner, whereby, the judgment and decree, dated 21-4-1985 dismissing the suit for cancellation of documents by the petitioner and decreeing the suit for possession filed by Hashmat Ali etc., was upheld.
3. The facts giving rise to the revision petitions are that Manzoor Ahmad, plaintiff/petitioner (herein) instituted a suit for cancellation of registered sale-deed No,10300, dated 13-7-1982 registered with the Sub-Registrar Lahore Cantt: alleging therein that he was owner of residential property measuring 4 Marlas, 99 sq.Ft. Bearing Khasra No,239 commonly known as Property No,S.E.3-R 61-A situated at Shalimar Link Road, Mujahid Abad, Mughalpura, Lahore, against Hashmat Ali etc., respondents. The plaintiff averred in the plaint that the respondent Hashmat Ali was running a Tractor Workshop in his neighbourhood. Some time before the institution of the suit, he had engaged the petitioner for his private service in Workshop. After about 1-1/2 years rendering service the petitioner left the job. Thereafter, he came to know that the respondent had got executed a forged document registered sale-deed in respect of a portion of his plot measuring about 2 Marlas, and that he had never made any bargain of sale of the property with the respondents, nor is received any consideration amount for the alleged sale-deed, and it was result of fraud and forgery. The plaintiff did not appear before the Sub-Registrar or any Local Commissioner for the execution and completion of the document of sale, nor he ever executed the document or put his signatures or thumb-impression on the alleged document, and that the sale-deed was a nullity in the eyes of law as the sale-deed was not executed with consent of the petitioner. He prayed that the sale-deed in question be cancelled and the respondents be permanently restrained from interfering in the lawful possession of the plaintiff/petitioner.
4. On the other hand, Hashmat Ali etc., respondents instituted a suit for possession of the property on the basis of ownership vides registered sale-deed, dated 12-7-1982 against the petitioner. The parties contested both the suits, filed their written statements. The Court consolidated both the suits.
5. The factual controversy appearing on the pleadings of the parties led to settle the following consolidated issues:--
(1) Whether the suit is vexatious and liable to be dismissed with costs? OPD.
(2) Whether the suit is not maintainable? OPD
(3) Whether the plaintiff has not come to the Court with clean hands, if so, its effect? OPD.
(4) Whether the plaintiff has no cause of action? OPD.
(5) Whether the suit has not been correctly valued for the purposes of court-fee and jurisdiction, if so, then what was the correct valuation of the suit? OP Parties.
(6) Whether the registered sale-deed, dated 13-7-1982 is illegal, fraudulent, without jurisdiction, is based upon fraud and misrepresentation and without the free consent of the plaintiff and is liable to be cancelled? OPP.
(7) Whether the defendants are entitled to the possession of the property mentioned in para.1 of the plaint? OPD.
(8) Relief.
' After recording and appreciating the evidence pro and contra adduced by the parties the Court vide judgment and decree, dated 21-4-1985 dismissed the suit for cancellation of document filed by the petitioner and decreed the suit for possession filed by the respondent.
6. Feeling aggrieved the petitioner preferred two separate appeals and the learned Additional District Judge vide consolidated judgment and decree, dated 8-2-1986 dismissed the same.
7. Learned counsel for the petitioner contended that the suit for possession under section 8 of the Specific Relief Act, instituted by the respondents, in the Civil Court, was not maintainable and the application under section 13 of Urban Rent Restriction Ordinance, 1959 was the only remedy for the respondents. He further contended that the sale-deed was the result of fraud and forgery as the petitioner did not appear before the Sub-Registrar or Local Commission; and neither Local Commission was appointed on his application nor any consideration of sale was paid to the petitioner. He continued that the execution of the document was denied by the petitioner, then under the law onus was on respondents to prove the document. The Courts below misread/non- read the evidence produced by the parties, that the presumption attached to the certificate of the Registrar is rebuttable, where alleged executant had denied execution of the document. Relied on the case of Muhammad Tufail v. A. Aziz 1988 CLC 137.
8. On the other hand, learned counsel for the respondents vehemently opposed the arguments of the learned counsel for the petitioner. He contended that the registered sale-deed in question was proved by the respondents by cogent evidence and that endorsement of the Registering Authority on the sale-deed was unrebutable. Relied on Pirala v. Noora PLD 1976 Lah.
6.
9. I have heard the arguments of the learned counsel for the parties anxiously and studied the record.
10. As to the argument of the learned counsel for the petitioner to the non-maintainability of the suit, suffice it to observe; that section 8 of the Specific Relief Act, 1877 contemplated that a person entitled to the possession of the specific immovable property may recover it in the manner prescribed by the Code of Civil Procedure. The respondents instituted their suit for possession on the basis of the sale-deed registered in their favour by the petitioner, while section 13 of the Urban Rent Restriction Ordinance, 1959, deals with the disputes between the landlord and the tenant. The provisions of subsections (1) and (2) of section 13 of the Ordinance provides as under:---
13. Eviction of tenant.--- (1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Ordinance, or otherwise, and whether before or after the termination of the tenancy, except in accordance with the provision of this section.
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that--
(i) the tenant has not paid or tendered rent due by him in respect of the building or rented land, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement, (within sixty days from the period) for which the rent is payable; or
(ii) the tenant has, without written consent of the landlord.
(a) transferred his right under the lease or sublet entire building or rented land or any portion thereof, or used the building or rented land for a purpose other than that for which it was leased (or has infringed any condition of the tenure on which the building or rented land is held by the landlord); or
(iii) the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land; or
(iv) the tenant has been guilty of such acts and conduct as are a nuisance to the occupants of buildings in the neighbourhood; or
(v) where the building situated in a place other than a hill station, the tenant has ceased to occupy the building for a continuous period of four months without reasonable cause; or
(vi) the building or rented land is reasonably and in good faith required by the landlord for the reconstruction or erection of a building on the site, and the landlord has obtained the necessary sanction for the said reconstruction or erection from the Town Improvement Trust, Municipal Corporation, Municipal Committee or Town Committee for the area where such building or rented land is situated); the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application."
11. The provisions of subsections (1) and (2) of section 13 make it clear that the application under section 13 can only be filed, when there is a dispute between the landlord and a tenant of a building raised on the ground mentioned in subsection (2) of section 13 and there is no such dispute in the present suit between the landlord and the tenant, it was dispute between the vendor and the vendee, so the suit was competently instituted, by the respondents for the recovery of the possession of the suit property.
12. Chapter VI of Registration Act of 1908 relates to the presentation of the documents for registration. In this Chapter first comes section 32 which provides that except in cases mentioned in section 89 every document needing registration is to be presented by its executant or any person claiming under him, it further states that in case of copy of decree or order, the person claiming under the decree, or order, or by the representative or assign of such person, or by the agent of such person, representative or assign, duly authorised by power of attorney executed and authenticated in manner prescribed in the Act.
13. This section deals with matter and specifies the person who alone can validly present a document for registration, meaning thereby that unless, therefore; a document presented for registration, is so presented by one of the person aforementioned, the presentation does not give to the Registering Officer unfettered authority to register it and the presentation if made by a person other than the prescribed in the section and registered, it would be invalid. Presentation by an incompetent person is not a mere defect of procedure curable under section 87, in other words the jurisdiction of the Registering Officer would come into force only if and when the document is presented before him in accordance with law.
14. The next section which is important is section 34 which provides that no document shall be registered unless Executant or representative, assign or agent of the Executant appears before the officer and verifies the execution of the document. Subsection (3) of section 34 further shows that the Registration Officer shall enquire, whether, such document was executed by him or not and satisfy himself about the identity of the person appearing before him as to whether he is the same person who has executed the document and also satisfy himself of the right of representative, assign or agent.
15. From the aforesaid provision of the Registration Act, it is, thus, clear that it is the mandatory duty, of the Registering Officer to make inquiry about the execution of the document and identity of the person appearing before him for registration of the documents. Then comes sections 36 and 37 which provide the procedure' for appearance of a witness of the Executant and empower the Registration Officer to issue process for appearance.
16. Section 38 explains to the exempted persons, it lays down that Registration Officer may exempt the appearance of following persons in the registering office:- "(1)(a) A person who by reason of bodily infirmity is unable without risk or serious inconvenience to appear at the registration office, or
(b) a person in jail under civil or criminal process, or,
(c) persons exempt by law from personal appearance in Court, and who would but for the provisions next hereinafter, contained be, required to appear in person at the Registration Officer, shall not be required so to appear.
' Subsection (2) of section 38 contemplates that in case of every abovementioned persons, Registration Officer may examine him at his residence or issue a commission to examine him.
' Simple example is that a person who is bodily infirm cannot move or reach to the registration office, he shall be examined by the Registration Officer or Local Commission who would examine him at his residence. The law incorporated exemptions is to be construed very strictly."
17. It is manifestly clear that the Registering Officer cannot issue commission for inquiry into the genuineness of the document. The Executant who desires exemption falling in the exemption mentioned above, will apply to the Registration Officer for the appointment of a Local Commission to examine him at his residence.
18. In the instant case no application, whatsoever, was made by the Executant to exempt him from appearance and for issuance of the commission. The defendant Manzur Ahmad appeared in the Court as P.W.3 never stated that he had applied to the registration officer to exempt him and appoint a Local Commission to record his statement. So much so no order for the issuance of Commission was produced on the record. The Registering Officer should have passed a speaking order for the issuance of Commission, had a separate application would have been filed. If actually due to bodily infirmity the executant plaintiff was not in a position to appear in person in the Registration Office or he was in Jail under Civil or Criminal process, then it was incumbent on the vendee/respondent to bring the circumstances due to which the executant did not appear personally to the knowledge of the Court. The respondent/vendee Hashmat Ali while appearing as D.W.5 did not depose a single word as to why the executant did not appear in person.
19. There is one interesting characteristic of the whole episode that the Local Commissioner was a professional Local Commission. He stated in his statement as D. W.1 that as Local Commission he used to register the documents. He further stated in his examination-in-chief that he did not know Ch. Manzur Ahmad and he asked him to arrange his identification. In the cross-examination he stated that he was engaged by Manzoor Ahmad, if he did not know Manzoor Ahmad then how he engaged him as Local Commission and furthermore if the executant was not in a position to move or to appear in person due to the reason mentioned in section 38 of the Act, how, he approached the said D.W.1. Moreover, it is flowing from the record that the sale-deed was executed on 15-3- 1982. The plaintiff/vendor was examined by the Local Commission on 12-7-1982 and the deed was registered on 13-7-1982, after about four months of the execution of document. No reasons for the delay have been assigned nor was any explanation putforth by the vendee.
20. Evaluation of all these aspects create reasonable doubts in the authentication of sale-deed.
From the above discussion it is, thus, clear;--
(1) that presentation for registration of a document by a person other than the mentioned in section 32 of the Registration Act, makes the registration invalid, and admission of the executant does not make the registration valid, if it was not presented in the manner prescribed in section 32.
(2) the registering officer shall make inquiry about the execution of document and identity of the person appearing before him.
(3) the registering officer has the power to adopt the procedure for issuance of process to executant or the witness if any, so required for the purpose of registration of a document.
(4) the Registration Officer shall issue Commission to examine a person who is exempted under section 38 of the Registration Act on the application of the executant.
21. It is scarcely reasonable to suppose that it was the intention of the legislature that every registration of a deed should be null and void by reason of non-compliance of the provisions of the Act. It is the duty of the Courts not to allow the perative provisions of the Act to be defeated.
22. In case of Muhammad Ewaz v. Birj Lal (77) 1 All 465 it was observed by the Honourable Judges that; "It is rather to be inferred that the Legislature intended that such errors or defects should be classed under the general words 'defects in procedure' in section 88 of the Act, so that innocent and ignorant persons should not be deprived of their property through any error or inadvertence of a public officer, on whom they would naturally place reliance."
23. In case of Jambu Prasad v. Muhammad Nawab Aftab AIR 1914 PC 16, it was also observed that one object of sections 32, 33, 34 and 35 of the Registration Act was to make it difficult for person to commit fraud by means of registration. The same view was adopted in case of Chottey Lal v. The Collector of Moradaabad AIR 1922 PC 279. In this case their lordships of Privy Council observed as under:- "The Registration Act has imposed several conditions regulating the presentation of documents for registration, and it is of great importance that those conditions, framed with a view to meet local circumstances, should not be weakened or strained on the ground that they may appear to be exacting and strict."
' It was further observed that:--- "there are many mischiefs against which the statute was designed to afford protection in requiring obedience to the provisions for presentation in the first instance."
24. In the light of the principle enunciated in the aforequoted judicial precedents, it can be concluded that the provisions of Chapter VI (sections 32 to 38) are mandatory in nature and not directory and non-compliance of these provisions will make the document null and void. In the considered analysis of the facts of the instant case and applying the dictum laid down in the cases noted (supra) I am constrained to hold that the whole proceedings of registration of sale-deed in question from execution to the final endorsement of the Registration Officer was not backed by the legal authority and the sale deed was not validly registered in accordance with law and the deed was "Suppressioveri Exprossio False".
25. Now I take up the objection raised by the learned counsel for the respondent that the endorsement of the registering authority is unrebuttable.
26. Sale as defined under section 54 of Transfer of Property Act, "sale" is transfer of ownership of immovable property in exchange for a price paid or promised or partly paid or partly promised. In order that a transaction may be a sale, the payment of some money or consideration must be contemplated. It must be followed by payment of price and delivery of possession. Where there is neither possession of the property alleged to have been sold nor any proof of payment of the consideration money, mere registration of sale-deed would not operate to pass title to the vendee.
The essential elements of a sale laid down in Ali Muhammad and others v. Chief Settlement and Rehabilitation Commission 1984 SCM R 94 are:--
(i) The parties;
(ii) The subject-matter;
(iii) Transfer of conveyance; and
(iv) Price or consideration.
' The question that boils down for determination in this case is whether the property in dispute was sold by the vendor Manzoor Ahmad/plaintiff through a valid registered sale-deed; and the consideration (sale price) was passed to him. The respondents/vendees in order to prove the execution and registration of the sale-deed produced. D.W.1 Muhammad Saeed Butt, Local Commissioner, who deposed that he was appointed as Local Commission by the Registrar. He examined the executant/vendor on 12-7-1982 at his house who was identified by Muhammad Iqbal D.W.3. The plaintiff/executant denied the execution of the sale-deed, his appearance before the Sub-Registrar and the Local Commissioner. This portion of his statement was not cross-examined, nor any order for the issuance of a Local Commission was produced on the record. In cross- examination D.W.1 admitted categorically that the price was not paid to the vendor in his presence.
Muhammad Iqbal D.W.3 who was attesting witness of the document Exh.P.1 and identified the executant before the Local Commission also deposed that the price was not paid in his presence.
D.W.4 Muhammad Saeed who is also other marginal attesting witness of the sale-deed Exh.P.1 stated that at the time of payment of price/execution of document Muhammad Iqbal D.W,3 was present meaning thereby consideration was passed in presence of D.W.2 Syed Sattar Ali, scribe of the document, Muhammad Iqbal and Muhammad Saeed attesting witnesses of the document.
D.W.3, Muhammad Iqbal, contradicted the statements of D.W .2 and D.W.4 and made the passing of the consideration amount doubtful. Taking an overall view of all attending circumstances of transaction of sale relied upon by the respondents, it is held that no price was paid and sale was without consideration. Reliance can be placed on the case of Qazi Altaf Hussain v. Ashfaq Hussain 1986 SCM R 1427.
27. The price was not paid before the Sub-Registrar, Local Commissioner and the attesting/identifying witness, Muhammad Iqbal. There is material contradiction in the statements of D.W.2 to D.W.4. The issuance of Local Commission by the Registering Officer has not been proved by the respondents as the execution of the document was denied by the executant/ vendor and in such circumstances the onus to prove the registered sale-deed without any shadow of doubt shifted to the vendees/beneficiaries of the sale-deed and they were under obligation to prove the bargain and payment of money of the property by producing sufficient evidence. It has been held in case of Manzoor Hussain Khan v. Mst. Asia Begum and 21 others (1990 CLC 1014) that in case of denial of document party relying on it must prove its execution in accordance with the modes of proof as laid down in the law of Evidence. In such a case Article 78 of Qanoon-e-Shahadat Order shall apply. The vendees/respondents could not establish the circumstances for registration of the document after four months of the execution. Thus, considering commutative effect on evidence of record and ratio decidendi in the above quoted cases, I am constrained to hold that the execution and authentication of sale-deed in question had not been conclusively established.
28. Learned counsel for the respondents argued that the petitioner had failed to prove the fraud and misrepresentation in the execution of the document, and that the sale-deed was a registered document; therefore, its genuineness should be presumed. Reliance was placed on Pirala v. Noora PLD 1976 Lah.
6. In this case it had been observed by the Court that under section 60 of the Registration Act presumption is attached to the certificate endorsed on the sale-deed by the Registering Officer and such certificate is admissible for the purposes of proving that the document had been admittedly registered in the manner provided by law and the facts in the endorsement have occurred as therein mentioned, and in this case vendor has received Rs,2,500 in advance and the balance of the amount of Rs,26,500 was to be received by Pirala appellant in the presence of the Registrar and at the back of the document it was endorsed that Rs,26,500 had been paid in the presence of the Sub-Registrar and acknowledged the remaining to have received earlier; but in the present case the price as a whole or a portion has not been paid in the presence of the Local Commissioner or the Sub-Registrar. The sale-deed recites that the vendor had received sale price of Rs,18,000 prior to the execution/writing of the sale-deed. Endorsement on the sale-deed relates, therefore, only to an admission apparently made by the vendor before the Local Commissioner that he had received the sale price. It is, however, only a presumption of correctness and the question will remain whether in facts and circumstances of this case a presumption arises out of this admission of the vendor, stands rebutted.
29. Reliance can be placed in this respect on case of Gopal Das and others v. Siri Thakir This AIR 1943 PC 83. In this case it was held, the Registrar's endorsement under section 60 of the Registration Act showed that in 1881 a person claimed to be Pharshotam Das to have become son of Harish Chandra by adoption, made by his widow Manke Bahu, presented the receipt for registration admitted on execution. He was identified by two persons one Shesho Parshat and the other Jirja Parshat, who was scribe of the document and was known to the Registrar, would remain to be showing, is that the person admitted the execution before the Registrar was this Parshotam Das and not imposter. The question is one of fact exists, in so far as there was no matter of law. The presumption is that the registration proceedings were regular and honestly carried out. The above view was followed in (1) Muhammad Chiragh v. Daulay Khan PLD 1954 Dacca 134, (2) National Bank of Pakistan v. Fine Arts Textile Industries 1991 CLC Note 75 at page 79, (3) Muhammad Sher v.
Muhammad Azim PLD 1977 Lah.
729. In Dacca case it was held that "a person relying on the document is bound to prove its execution, the fact that it is a registered, makes no difference. It is true that no document is registered unless the Registrar is satisfied on such inquiry as Registration Act authorised that it was executed by the alleged executant, but he is not a Court and has no judicial function, the object of his inquiry is to enable him to do his Departmental duty and the opinion formed in such inquiry though good for his Departmental purposes, has no value in judicial inquiry as evidence of its execution. In case of Muhammad Sher (supra) it was held that certificate of Registrar/endorsement is only to show the execution of the document and presumption beyond that cannot be drawn therefrom. In case of Muhammad Tufail (supra) it was held by a Single Judge of Lahore High Court (Mr. Justice Syed Najmul Hassan Kazmi that "there is no cavil with the proposition that the facts stated in the certificate of the Registrar are presumed to have happened 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 being 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 the necessity of showing that the person admitted execution before the Registrar was not an imposter but the same person. Lastly this view was affirmed by a Division Bench of Lahore High Court consisting of Mr. Justice Mian Allah Nawaz and Mr. Justice Muhammad Islam Bhatti, in Siraj Din v. Mst. Jamila and another PLD 1997 Lah.
633. The Honourable Judges, observed as under:--- "There is no doubt that the certificate of registration shows the execution of the document but no such presumption can be drawn therefrom that such and such person has really executed the same. In the given circumstances of the case, it will be open to the parties to prove that the document in question was not really executed by the person shown to have executed the same, according to the certificate of registration. It is exactly what the learned Judges in AIR 1929 Lahore held. The certificate of Registrar is only to show the execution of the document and presumption beyond that cannot be drawn therefrom.
' This view again strengthened from Gopal Das v. Siri Thakir Gee and others AIR 1943 PC 83."
' It has been held that where the Registrar's endorsement, made under section 60 of the Registration Act, showed that in 1881 claimed to be Pharshotam Das to have become son of Harish Chandra by adoption made by his widow Manke Bahu, presented the receipt for registration admitted on execution. He was identified by two persons, one Shesho Parshat and the other Jirja Parshat, who was scribe of the document and was known to the Registrar, would remain to be showing, is that the person admitted the execution before the Registrar was this Parshotam Das and not imposter. According to Lordship of Privy Council the question as to whether executant was Pharshotam Das or any other imposter, was one of fact. However, the only presumption which can be drawn from the certificate/endorsement was that registration proceeding was regularly and honestly carried out. It is clear that if in the given circumstances of the case, genuineness or bona fide, with regard to execution of document, are in doubt then an inquiry can be held in this behalf and no presumption to the fact that such and such document has been actually executed by a genuine person in all circumstances, can be drawn".
30. I am in respectful agreement of the above view and find no reason to differ with it. Accordingly I have no hesitation to say that the endorsement made by the Registrar on questioned document does not prove it, that it was executed by Manzoor Ahmad petitioner in favour of respondents Hashmat Ali etc., and that the price/consideration was paid to the plaintiff/vendor.
31. It is also pertinent to mention here that the sale-deed was registered on 13-7-1982 but under the sale delivery of possession of the suit property was not made by the vendor and the respondents/vendees failed to establish their view point in respect of non-delivery of the possession of the property by producing a sufficient evidence. This view is supported by case of Sana Ullah and another v. Muhammad Manzodr and another PLD 1996 SC 256. In this case it was observed that "they, however, admitted in their evidence that they were not given possession of the suit land. It is highly improbable that the respondents having paid the full consideration would not have insisted for delivery of the possession of the suit land. The respondents also failed to give any reason for non-delivery of the possession of the suit land when they had paid the full sale consideration. This circumstance strongly reacted against their claim that the appellant No,1 agreed to sell the suit property under Exhs.P.1 and P.3 and received full consideration. Unless there were some very special circumstances, the respondents having paid the full consideration would have been put in possession of the suit land by appellant No,1".
32. All the facts and circumstances discussed above were not adverted to by the lower Courts and the judgments of the Courts below suffered from non-examination of material documentary as well as oral evidence and the findings of the two Courts below, thus, based on misreading/non- reading of evidence. In such circumstances the High Court in its revisional jurisdiction would legally set at naught the concurrent findings of facts of two Courts below if it was satisfied that the findings were based on misreading or non-reading of evidence. It, therefore, flows that concurrent findings do not always stand in the way of High Court to set aside them in appropriate cases.
Therefore, the judgments and decrees of both the Courts below in favour of the respondents shall not be sustainable.
33. For the foregoing reasons both the revision petitions are accepted, the judgments and decrees passed by both the lower Courts in suit instituted by the petitioner for 'cancellation of documents and in suit for possession instituted by the respondents are set aside. Suit for cancellation of documents filed by the petitioner, is decreed and the suit for possession instituted by the respondents is dismissed. There shall be no order as to costs.