On, 19-3-1988, the petitioner filed a suit. It was contended that he is the owner of the suit property described in para. No. l of the plaint which was being cultivated by respondent No.2 as a tenant on payment of share in produce; that the petitioner went to Azad Kashmir to look after his affairs as he had confidence in respondent No.2 who was his cousin; that respondent No. l is also a cousin who in collusion with respondent No.s prepared a scheme to grab the suit land; and agreement to sell was fabricated on 25-3-1974 alongwith a receipt, dated 13-4-1974; on the basis of the said agreement, respondent No. 1 filed a suit for specific performance but the summons were suppressed and wrong address was given and it was reported that he is not residing there.
Thereafter, a power of attorney was fabricated on 3-6-1974 and got registered in favour of respondent No. 3. The petitioner denied that he ever executed any power of attorney or the agreement. The said suit was sought to be got disposed of on the basis of a compromise filed by respondent No.3 but the learned Court did not grant the prayer. However, the stay order granted in the suit was vacated and the suit was dismissed. Then a Mutation No.443 was got attested on 20- 7-1974 evidencing sale of suit land by petitioner through respondent No.3 in favour of the respondents 1 and 2 for a consideration of Rs.68,000. All these transactions are denied by the petitioner in the plaint. With these averments he sought a declaration that the said documents be declared to be illegal and void and that the petitioner is the owner of the suit property. The respondents 1, 2 and 4 on the one hand while respondent No.3 on the other, filed written statements positively asserting that the agreement and power of attorney were executed by the petitioner and that he did agree to sell the suit land to the respondents 1 and 2. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit of the petitioner vide a judgment and decree, dated 23-5-1992. Respondents Nos. l and 2 filed an appeal which was heard by a learned Additional District Judge, Arifwala who allowed the same and dismissed the suit of the petitioner vide a judgment and decree, dated 25-1-1996.
2. Mr. Muhammad Naveed Hashmi, learned counsel for the petitioner contends that the learned Additional District Judge has grossly misread the evidence on record. Further argues that the respondents miserably failed to prove execution of the power of attorney as also the transaction and validity of the mutation evidencing the same and so was the case with the agreement. Syed Kabeer Mehmood, Advocate, learned counsel for the respondents 1 and 2, on the other hand supports the impugned judgment and decree with the contention that his clients were able to prove a valid transfer of suit land in their favour
3. I have gone through the certified copies of the records appended with the Civil Revision, with the assistance of the learned counsel for the parties.
After examination of the record, I tend to agree with the learned counsel for petitioner. I find that what to speak of the proof of the general power of attorney which was the pivotal document, the original document was not even produced by the respondents. There is no explanation forthcoming on record as to why the said omission has taken place. Learned counsel for the respondents refers to a portion of the statement of D.W.10 wherein he states that the Tehsildar had taken the power of atsorney from him. This explanation is meaningless and even if it be accepted, no attempt appears to have been made to procure the production of the said all important documents in Court. This leads to drawing of an adverse inference against the respondents as was held in the case of Muhammad Ibrahim through Legal Heirs and others v. Mst. Basri through Legal Heirs and others 1988 SCMR 96.
4. Learned counsel for the respondents contends that the power of attorney being registered was a public document and as such its certified copy was admissible in evidence. I am afraid, the argument is without any basis. Under Article 85(5) of the Qanun-e-Shahadat Order, 1984 (corresponding to section 74 of Evidence Act, 1872), only such registered document is a public document, the execution whereof is not disputed. In the present case, the petitioner had denied the execution of the said power of attorney and as such mere fact that it was registered did not make it a public document. Needless to state that under the law, certified copy of only a public document is admissible in evidence. In this view of the matter, the production of certified copy of the power of attorney would be of no avail to the petitioner.
5. So far as the mutations produced are concerned, the statement of Muhammad Sharif respondent No.4 (D.W.10) makes an interesting reading. This witness who claimed to be a general attorney of the petitioner claims that the petitioner himself appeared alongwith him before the Tehsildar. Reiterates in the course of cross-examination that the petitioner accompanied him when he went for reporting the transaction to the Patwari and also when the mutation was attested. This statement makes one wonder as to what was the need of power of attorney when the petitioner was so compliant that he accompanied the D.W.10 to the Patwari as also before the Revenue Officer. Be that as it may, I find that no evidence whatsoever has been led to prove the proceedings of mutation as also the transaction evidenced by it. Learned Additional District Judge has tried to wriggle out of the said situation by observing that since the mutation stands incorporated in the Revenue Record, it enjoys a presumption of correctness and needs not to be proved. I am afraid the learned Additional District Judge has acted in gross violation of law declared by this Court in the case of Muhammad and others v. Sardul PLD 1963 Lah. (W.P.) 472 wherein the requisite standards for proving a transaction embodied in a mutation have been laid down. The Supreme Court of Pakistan in the case of Abdul Majeed and 6 others v. M. Subhan and 2 others 1999 SCM R 1245 has declared that even in the case of a mutation incorporated in the Revenue Record, a person claiming benefit thereunder is not absolved of his obligation to prove the same as a fact.
6. So far as the agreement, dated 25-3-1974 is concerned, the learned Additional District Judge seems to be impressed by a report of some expert opinion that the genuine thumb-impressions of petitioner bore similarity to those on the agreement. Here again the learned Additional District Judge simply has forgotten that he could not have even looked into the said report for the reason that such a report is not admissible without the examination of the maker thereof as a witness.
Reference be made to the case of Allah Dino and 2 others v. Muhammad Umar etc. 1974 SCM R 411.
7. In the light of the above, I find that this was practically a case of no evidence and the learned Additional District Judge has proceeded to set aside the Judgment and decree of the learned trial Court on premises which have no basis either in fact or in law.
The impugned judgment and decree of learned Additional District Judge, therefore, squarely falls within the mischief of section 115, C.P.C. Being result of exercise of a jurisdiction not vesting in the learned Additional District Judge and cannot be sustained. This Civil Revision is accordingly allowed. The judgment and decree dated, 25-1-1996 of the learned Additional District Judge, Arifwala is set aside while that, dated 23-5-1992 of learned trial Court is restored with costs throughout.