' IJAZ-UL-HASSAN, J.---Dr. Muhammad Ehtesham Nasirul Haq and Dr. Khalid Nasirul Haq, sons of Late M.S. Haq appellants herein, through their attorney Sayed Rizwan Haider, have filed instant appeal seeking reversal of the judgment and decree dated 10-4-1996 passed by Civil Judge, Abbottabad whereby Suit No,1353/1 of 1990 instituted by the appellants against Sajid Latif Sethi and others respondents was dismissed.
2. Facts relevant for the purpose of the disposal of this appeal are that late M.S. Haq, purchased a plot of land measuring approximately 6 Kanals and 6 Marlas, situated in Habibullah Colony Abbotabad. The purchaser expired on 15-10-1988 leaving behind the appellants as his only surviving legal heirs. The appellants were in England at the time of the demise of their father late M.S. Haq. On return to Pakistan they applied for succession certificate which was accordingly granted to them. The appellants also appointed an Advocate from Karachi to inquire about the plot in question and to have it mutated in their names. The Advocate came to Abbottabad and learnt that major portion of land from the plot under consideration, is shown in the Revenue Record to be in the possession and ownership of Sajid Latif Sethi and his brothers. Faced with this situation the appellants instituted a suit against respondents Nos.1 to 3 and the Collector Abbottabad respondent No,4 for declaration, possession, correction of revenue entries and for damages, concerning the above described plot of land. The respondents Nos.1 to 3 filed their written statement and claimed therein that they had purchased the land out of the said plot from one Abdur Rashid son of Ali Akbar of Abbottabad in whose favour late M.S. Haq had executed a registered power of attorney in Karachi authorizing him to sell the land from the said plot. These respondents further stated that they had sold the land to Dr. Azhar Mehmood. The appellants, therefore, applied for grant of permission to implead Abdur Rashid, Dr. Azhar Mehmood and the subsequent vendees of suit land. An application was also moved for permission to amend the plaint to include the prayer for declaration to the effect that the power of attorney purportedly to have been executed by late M.S. Haq is a forged document and for its cancellation and for setting aside the sale made on the basis of this document and for setting aside all subsequent sales. The applications were allowed and Abdur Rashid, Dr. Azhar Mehmood and all subsequent vendees were impleaded and an amended plaint was filed. As Abdur Rashid impleaded as defendant No,5 was reported to have expired, his legal heirs, respondents Nos.5 to 10 were impleaded. The Collector and legal heirs of Abdur Rashid did not join the proceedings and they were proceeded against ex parte. The contesting defendants, in their written statements contended, inter alia, that the power of attorney purported to have been executed by M.S. Haq was not a forged document and sales made on the basis of this power of attorney were valid sales and were not liable to be set aside. The parties were put to trial on as many as 13 issues. For the purpose of this appeal we are concerned with Issues Nos.1, 6, 12 and 13 which read:--
(1) Whether the plaintiffs have got a cause of action?
(6) Whether the rights of defendants are protected under section 41 of the Transfer Property Act?
(12) Whether the plaintiffs are entitled to the decree as prayed for?
(13) Relief.
3. Upon consideration of the evidence adduced by the parties, the learned trial Judge while discussing Issues Nos.1 and 12 came to the conclusion that "solitary statement of the plaintiff is not, in the eyes of law, enough to shatter the presumption of truth attached to the registered general power of attorney ... The plaintiffs have miserably failed to prove that the general power of attorney (Exh.P.W.1/6) is fraudulent and fictitious." Having held so he dismissed the suit per the impugned, judgment and decree as noted above.
4. We have heard Mr. Sajjad Abbasi, Advocate for the appellants, Qazi Muhammad Shehryar, Advocate for respondent No,11 and Mr. Tariq Khan Tanoli, Advocate for respondents Nos.12 to 18 in the light of the material on the file and the case law cited at the bar.
5. The pivotal question for determination in the dispute between the parties is the genuineness or otherwise of the power of attorney (Copy Exh.P.W.1/6) purportedly to have been executed by late M.S. Haq in favour of Abdur Rashid:
6. It has been vehemently contended by learned counsel for the appellants that the impugned judgment and decree suffers from gross misreading and non-reading of evidence produced on behalf of the appellants which has materially prejudiced the rights of the appellants and the same cannot be allowed to remain intact. We find force in the submission of the learned counsel. The learned trial Judge has failed to realize that sufficient documentary evidence was brought on record to rebut the presumption of truth attached to the registered power of attorney stated to have been executed by late M.S. Haq in favour of Abdur Rashid. It was satisfactorily proved that father's name of late M.S. Haq was not Muhammad Inam, by profession he was a doctor having no business, he did not reside in North Karichi and that his age was not 35 years at the time of the execution of the power of attorney attributed to him. These facts lend strength to the contention of the learned counsel for the appellants that late M.S. Haq has never executed any power of attorney in favour of Abdur Rashid authorizing him to sell the land and go a long way to show that the alleged power of attorney was procured through deceitful means by Abdur Rashid with sole object to deprive Dr. M.S. Haq of his validly purchased suit land. It is not denied that the onus as to the genuineness of a document is on the person who claims that the document is genuine. In the instant case the onus was on the shoulder of the respondents but they have failed to discharge the same. The appellants have been wrongly burdened with the onus to prove the genuineness or otherwise of the general power of attorney. There can be no two opinions that where a document is repudiated by its executant or any one claiming under him as to be a forged document, the party claiming under the document must prove that the document was not forged. The plea that since the power of attorney was a registered document, therefore, it should be presumed to have been executed by late M.S. Haq; is without any merit. The presumption is rebutable. Onus lies upon the person, who alleged execution to prove that the document was executed. Presumption in favour of a registered instrument does not dispense with necessity of showing that person admitting execution before the Registrar was not an imposter but the same person mentioned in the instrument as executant. It will be, therefore, for the person relying on the document to show that it was in fact executed by the proper person and that he had in fact appeared before the Sub- Registrar. PLD 1977 Lah. 729 and PLD 1968 Dacca 201, ' So far as the question regarding protection available to the subsequent vendees under section 41 of the Transfer of Property Act, 1882 is concerned, we find that the reasoning returned on Issue No,6 embracing the controversy involved, is not sustainable and cannot be allowed to remain intact.
8. The following considerations are held necessary for the application of section 41 (ibid) (a) that the transferor is the ostensible owner; (b) he is so by the consent, express or implied, of the real owner;
(c) the transfer is for consideration; (d) the transferee had act in good faith; taking reasonable care to ascertain that the transferor had power to transfer.
' It would be noticed that none of these conditions. Excepting Condition No,3, had been satisfied in the instant case. There is nothing on the file to show that subsequent purchasers had made an inquiry regarding title of the transferor and thus, they were entitled to the protection under section 41 of the Transfer of Property, Act, 1882. The decision given on Issue No,6 is fallacious and the same is hereby set aside.
9. Consequently, we hold that power of attorney purportedly executed by Late M.S. Haq in favour of Abdur Rashid son of Ali Akbar resident of Abbottabad and registered at No,747 before Sub- Registrar, T-Division Karachi on 23-5-1987, is false, forged and fictitious document and Abdur Rashid had no lawful authority to sell the land to defendants Nos.1 to 3 and the said defendants are not competent to alienate it to subsequent purchasers. All subsequent sales are null and void and the benefit of section 41 of the Transfer of Property Act, 1882 cannot be extended to the subsequent purchasers.
10. Finding substance in the appeal, we accept the same, set aside the judgment and decree, impugned herein and decree the suit, with no order as to costs.