' This R. S. A. Is directed against the Judgment and decree, dated 16-9-1968 of District Judge, Hazara, whereby he dismissed the plaintiffs' suit on the ground that the registered deeds (copies Exh. P. W. 2/1 and Exb. P. W. 2/2) which required to be proved through an attesting witness under section 68 of the Evidence Act, had not been so proved.
2. Brief facts of the case are that the land, bearing Klima Nos, 279 and 117, to the extent of 50/17 shares, measuring 1 kanal, was transferred by Mir Sadullah to the, present appellants through a written sale deed, dated 22-124966, which was attested on the same date Le., 22.12-1966, with the Sub-Registrar, Abbottabad. By another deed also of the same date, Mir Sadullah sold 50 kanals and 7 marlas out of the total area of 51 kanals and 7 marlas in Khasra Nos, 117 and 279 in question to the said vendees and that sale deed was also registered with the SubRegistrar at Abbottabad on the same date i,e, on 22-12-1966.
3. As Raja' (defendant) was in possession of the same, the vendees preferred to institute a Regular Civil suit in a civil Court against him for the possession of that land. His case was contested by the defendant, who claimed that the suit land belongs to him and is in his possession and that this land was never sold in favour of the plaintiffs and that the factum of transfer was also with a view to save the vendee' from pre-emption suit. It was further alleged by the defendant in his written statement that the defendant had purchased this land but on account of mistake the factum of sale was not attested in his favour and this is why he was entered as in possession 'BM Lagan' on account of sale.
4. The learned Senior Civil Judge, Hazara, on whose file the case was pending framed the following issues
(1) Whether the suit is bad for the non-joinder of necessary parties ?
(2) Whether this Court has no jurisdiction ?
(3) Whether form of the suit is not competent ?
(4) Whether the plaintiff has a cause of action ?
(5) Whether the plaintiffs are the owners of the suit land, if so, whether they are entitled to the relief prayed for ?
Relief?
' At the conclusion of the trial, Issues Nos, 1, 2 and 3 were not pressed before him by the counsel for the defendant and these were left undiscussed. Only two issues were contested i.e , Issues 4 and 5 which the learned trial Judge decided in favour of the plaintiffs and consequently decreed the suit for possession as prayed for.
5. Aggrieved defendant went on appeal to the District Court at Abbottabad, wherein he specifically challenged the decision of the lower Court on Issues Nos, 4 and 5, stating therein that the documents, Exh. P. W. 2/1 and Us. P. W. 2/2 were not got proved, according to law, and that the attetation of mutations in favour of the plaintiffs had also not been proved. After hearing the arguments, addressed before him, by the learned counsel for the parties, the learned District Judge decided Issues Nos, 4 and 5 against the plaintiffs and decided the case against them i,e, the appeal was accepted. The learned District Judge was of the view that under section 68 of the Evidence Act, a document which has to be attested under the Law could he proved only by calling at least one of the attesting witnesses and that the proviso to that section lays down only an exception to this general rule. Further discussing as to whether the proviso to section 68 would be applicable where the exeoutant of these deeds is not one of the parties, the learned lower Appellate Court held that this proviso can be applied only when the exocutant is a party and he does not deny the execution specifically. In cases where the exocutant is not a party, the question of admitting or denying the execution, of documents does not arise. He consequently placed his reliance on a Lihore Authority, reported as PLD 1956 Lab. 354 and also an earlier authority of the same Court, reported as AIR 1934 Lab.
288.
6. The plaintiffs have now come up on second appeal to this Court wherein the finding of the learned lower Appellate Court has been assailed.
7. I have heard the arguments, addressed before me by the learned counsel for the plaintiffs- appellants and those of the learned counsel for Raja (defendant-respondent).
8. Learned counsel for the appellants maintains that Mutation No, 554 for the transfer of this land on the basis of a registered sale deed was entered with the Patwari on 27-12-1966 and the mutation was attested in their favour on 27-1-1967. He has produced a photostat copy of that mutation. This suit was instituted on 15th May 1967. In evidence the plaintiffs produced the local Patwari as their witness and Mir Hussain (plaintiff) also entered in the witness-box to prove his case. On the other side Raja (defendant) alone appeared. He produced no other witness. In evidence the local Patwari who was examined in the witness-box on 14-9-1967, has stated that according to the 'Jamabandi' of 1963-64, Mir Sadullah is entered as the owner and possession is that of Raja son of Sher Zeman as non-occupancy tenant. He further stated that by virtue of Mutation No, 552 exchange of an area of 4 marlas of land in favour of Mir Hussain, Samar and Aurangzeb (present appellants) had been sanctioned and through Mutation No, 554 Mir Sadullah sold 10 kanals 12 nutrias out of Khasra No, 117 by a registered sale deed to the said persona. He further stated that there are no orders of the Revenue Officer on Mutation Nos, 552 and 554 and that he could not say whether the same had been accepted or rejected, but added that these mutations were drawn up on the basis of a registered deed, dated 27-10-1965, and be stated with firmness that no sale mutation in respect of Khasra No, 117 had been drawn up in favour of the defendant so far. But Mutation No, 554 (copy now placed on record) does show that the same was attested by the Revenue Officer on 274-1967, and, therefore, the statement of the Patwari would not be correct when be says that that mutation had not been attested. Next to him appeared Mir Hussain (plaintiff). He produced the original documents in Court, copies of which are Exh. P. W. 2/1 and Exn. P. W. 2/2. He stated that the plaintiffs had purchased the said land from Mir Sadullah owner. He further stated thst Raja (defendant) had never purchased this land from any one. He was cross.Examined at length but not a single question about these deeds was asked from him which means that the statement of Mir Hussain, relating to the sale deeds in question was never disputed. Even the local Patwari was never cross-examined on that score. On the other side Raja alone appeared in the witness-box and stated that the suit land had been purchased by him from Mir Sadullah and that he took the possession of the same at the time of its sale. Here again he did not say anything about the contested documents (copies Exh. P. W. 2/1 and Exh. P. W. 2/2). It may be of interest to note that the plaintiffs' main suit is regarding Khasra No, 117 and the bulk of the area coveted by Khasra No, 279 has not been included in this suit which had been purchased from Mix Sadullah, alongwith the land, bearing Kbasra No,
117. It means that so far the exchange and sale deeds in question are concerned, the defendant has never seriously contested and this was probably the reason why no specific issue had been framed in that regard. Raja in his written statement has stated as follows :- {{URDU TEXT}} ' The replication of the plaintiffs to the said para. Of the written statement is as follows :- {{URDU TEXT}}
9. Section 68 of the Evidence Act provides that if a document required by law to be attested is cited in evidence, it must be proved by at least one attesting witness, if alive and capable of giving evidence, but a proviso has been added thereto which reads that :- "Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document which has been registered in accordance with the provision of the Indian Registration Act, 1908 unless its execution by the person by whom it purports to have been executed has specifically denied."
' Learned counsel for the contesting respondent says and in support of his arguments, he places reliance on an Allababad Authority, reported as AIR 1932 All. 320 and another authority of the Lahore High Court, reported as AIR 1934 Lab. 282, that it is not for the executant to deny the execution of a deed and that any person can deny the same and, therefore, the defendant, having denied the execution, it was necessary for the plaintiffs to have produced at least one attesting witness for proof of these deeds. Both these authorities related to the cases of mortgage. On the other side, learned counsel for the plaintiffs-appellants has placed his reliance on a Peshawar Authority, reported as A 1 R 1942 Pesh.
83. It has been observed therein that in the N.-W. P. P. The conveyance of property does not require to be attested and therefore section 68 has no application. Referring to section 60 of the Registration Act, their Lordships observed that : - "Registration is a solemn act to be performed in the presence of a competent official appointed to act as Registrar whose duty it is to attend the parties during the registration and see that the proper persons are present, are competent to act and are identified to his satisfaction and all these things done before him in his official capacity and verified by his signature will be presumed to be done duly and in order."
' Learned counsel for the appellants maintains that under section 59 of the Transfer of Property Act, only a mortgage deed (in case money secured is Rs, 100 or more) is compulsorily registrable but not the sale deed and that in the instant case even the two deeds (copies Exh. P. W. 2/1 and Exh, P.
W. 2/2; were not to be compulsorily registered and that the transaction could be completed through attestation of mutation which in the instant case be has produced and which has been placed on the file.
10. Perusal of Exh. P. W. 2/1 and Exh. P. W. 2/2 would show that these were properly presented at the proper place. Tne mete fact that a document is registered dots not necessarily make a transaction valid or operative. If otherwise it is invalid or inoperative. At the same time the mere fact that a document is not registered is no ground for discrediting a document which need not be registered.
Section 60 of the Registration Act provides that when a certificate, containing the word registered endorsed by the Registering Officer on the document, the document admissible for the purposes of proving that it was duly registered in the manner provided by the Act and that the tic's mentioned in the endorse. Ment, referred to under section 59 have occurred as mentioned therein. Perusal of Exh. P. W. 2/1 and Exh. P. W. 2/2 would show that Mir Sadullah and Mir Hussain had presented those deeds. Mir Sadullah gave his tatement before the Sub-Registrar, He was identified by Samandar Khan and Mohammad Alam and they all duly thumb-impressed the same udorsement of the Sub- Registrar is there and both these documents were uly registered in his office.
11. In the instant case there is nothing on record to indicate that it Sadullah executant has ever disputed the correctness of these documents. n the Lahore case on which reliance has been placed by the learned district Judge, reported as PLD 1956 Lab. 354, his Lordship ha bserved that "the provisions of section 68 apply to those cues only which the dispute regarding the execution of a document is between aster of the document and the person in whose favour it purports to been executed". Accordingly to the proviso to this section if the execution of a rogistered deed is denied by its maker, then it is necessary prove it by the evidence of one of the attesting witnesses, otherwise ch a dccument is exempt from the scope of main section. It follows than learned District Judge has inappropriately played his reliance on this uthority.
12. It has already been indicated in the foregoing lines that the execution of these deeds had not been specifically denied by the defendant-respondent during the course of trial. All along the defendant insisted that he had purchased the land In Kharsa No, 117 but he failed to produce any evidence in that regard. I am, therefore, of the view that the learned District Judge had come to a wrong conclusion .
13. The finding of the learned trial Court on issues 4 and 5 is consequently confirmed. This appeal is, therefore accepted and judgment and decree of the learned District Judge are set aside and those of the trial Court are maintained.
14. In the peculiar circumstances of the case, I do not propose to make any order as to costs.