MAULVI ANWARUL HAQUE, J. -- Niaz Din, appellant was admittedly the owner of the suit plot. The respondent alleged that the appellant sold the suit plot to him and executed a sale-deed on 19.12.1973. The appellant denied the execution of sale-deed when it was put up before the Sub- Registrar. The respondent tiled an application under Section 74 of the Registration Act, 1908 before the Registrar seeking compulsory registration of the sale-deed. This application was allowed by the Registrar vide order dated 2.7.1974 and he directed the registration of the sale-deed in accordance with Section 75 (1) of the said Act. Feeling aggrieved the appellant filed a suit on 10.7.1974 seeking a declaration that the order dated 2.7.1974 is illegal and void and that the alleged sale-deed dated 19.12.1973 is the result of fraud, inadequacy of consideration and gross-misconduct. Initially the Provincial Government was impleaded as defendant No. 2 in the suit and an injunction was claimed against the said defendant that it is restrained from registering the said sale-deed. It appears that on the very next day i.e. 11.7.1974 the name of the said defendant was deleted. It was averred in the plaint that there had been a long, litigation both on civil and criminal sides going on between the parties and there was no occasion for the appellant to have executed the sale-deed in question in favour of the respondent. He .Reiterated his denial that he had executed the said sale-deed dated 19.12.1973. Details of the litigation were also stated in the plaint.
The respondent appeared in response to notice and tiled his written statement wherein he asserted that the appellant had executed the sale-deed and that on his own request the thumb impression was sent to an expert for his opinion as to whether the sale-deed hears his thumb impression or not.. It. Was upon receipt of the said report that the Registrar- passed the .: impugned order.
2. The learned Trial Court framed issues. Evidence was led by the parties for and against the issues so framed. The learned Trial Court decreed the suit of the appellant. The respondent tiled an appeal which was heard by a learned Additional District Judge, Faisalabad who allowed the same and consequently dismissed the suit of the appellant vide judgment and .Decree dated 19.4.1980.
3. I have gone through the record of the learned Trial Court with the assistance of the learned counsel for the parties. The question involved in this R.S.A: is a short one as the learned Additional District Judge has opted not to go into evidence on record and to non-suit the appellant on the ground that the matter of execution could not have been gone into by the Trial Court before actual registration of the sale-deed. In other words in the opinion of the learned Additional District Judge the suit was pre-mature.
4. Ch. Mushtaq Masood, learned counsel for the appellant contended that the impugned judgment is had in law as the question of execution was the crux of the matter to uphold or otherwise the impugned order of the Registrar. Ch. Muhammad Yaqoob, Advocate and Ch. Muhammad Nasim Arshad learned counsel for the respondent have asserted that the suit was premature and the learned Additional District Judge had rightly closed his eyes to the evidence on record.
5. A hare look at Section 75 (I) of Registration. Act, 1908 would show that the Registrar has to "find" that the document was executed. It is this finding which enabled the Registrar to make an -order for the registration of the document execution whereof is denied by the executant. I have gone through the order passed by the Registrar on 2.7.1974. The only piece of evidence, if it can he so- called, relied upon by the Registerar is an alleged report by some D.S.P./Finger Print Bureau to the effect that the sale-deed dated 19.12.1973 hears thumb impressions of the appellant. This order does not disclose as to whether the parties had the notice of the report and whether any opportunity was given to the parties, particularly the appellant to tile any objections or to examine the alleged expert who had given the said report. Record of the Trial Court had been summoned for-hearing of the R.S.A. And this document does not appear on the record. The respondent did not produce any copy of the said report or the alleged expert who had given the same. Learned counsel for the respondent relied upon the case of Dii Muhammad and another Vs. Sain Das and others (AIR 1927 Lahore 396) for the proposition that where a report is filed in the Court and a party despite opportunity does not object to it or calls for the examination of the expert, then the report can be read without examining the expert.
6. I am afraid the proposition laid down in the aforesaid judgment is not correct. The law on the other hand, is that a report is an opinion of the expert and an opinion cannot be proved unless and untill the maker of the opinion enters the witness-box and supports his opinion and subject himself to cross-examination. Particularly with reference to the opinions of experts it is now a settled law that a report is not admissible in evidence without examining the maker. Reference may be made to the case of Allah Dino and 2 others Vs. Muhammad Umar and 2 others (1974 SCM R 411). No other evidence was produced or is referred to in the impugned order dated 2.7.1974. In view of this there is nothing on the record to support the findings of the Registrar that the document dated 19.12.1973 was executed by the appellant. Learned counsel for the respondents have tried to argue that since the Registrar was not conducting the judicial inquiry the rigours of Qanun-e-Shahadat Order, 1984 (corresponding to Evidence Act, 1872) would not be applicable. This contention of the learned counsel for the respondent is also without any force as per Article 1 (2) of the said Order (corresponding to Section 1 of Evidence Act, 1872) the Order/Act applies to all judicial proceedings in or before any Court including the. Court Martial, a Tribunal or other authority exercising judicial or quasi-judicial powers or jurisdiction. The proceedings before the Registrar if not strictly judicial cannot be said to be even not quasi-judicial. The finding of fact was to be recorded as to the execution of the document by the person who had denied its execution. Needless to add that the inquiry referred to is to resolve the question within the meaning of Section 75 of the Registration Act, 1908. A piece of evidence which is inadmissible could not be made the basis of the said findings. The order is, therefore, without jurisdiction and is declared to be so.
7. The matter, however, does not end here. I find that the evidence was produced by the parties in support of their respective pleas after assertion of the respondent that the sale-deed was executed and denial by the appellant that it was not. The learned Trial Court had recorded its findings with reference to the said evidence on the record. I also find that during the pendency of the present R.S.A. According to the learned counsel for the respondent, the document had been registered. This registration will have no effect on the rights of appellant in case judgment and decree of Trial Court is upheld. That is to say the Registration will be subject to the result of appeal which is to be dealt with by the first Appellate Court with reference to factum of execution of sale- deed.
8. Resultantly this R.S.A. Is allowed. The order dated 2.7.1974 of the Registrar is declared to be without lawful authority and without jurisdiction being illegal and void inasmuch as it holds that the appellant had executed document dated 19.12.1973. It will be deemed that the appeal filed by the respondent is pending. It will be decided on its merits by the learned first Appellate Court after considering the evidence on the record and the pros and cons of the judgment of the learned Trial Court impugned in the appeal. The record of the case he immediately remitted to the Court of learned District Judge, Faisalabad who will himself take up the appeal and decide the same on its merits in the light of the above observations. The parties are directed to appear before the learned District Judge, Faisalabad on 20.7.1999.