JUDGMENT TANVIR BASHIR ANSARI, J.- This judgment will dispose of Civil Revision No. 149-D of 1983/BWP and Civil Revision No. 150-D of 1983/BWP as both of them arise from the same judgment.
2. The facts of the case are that Sultan son of Umar/respondent filed a suit for declaration bearing No. 58 of 1973 against Abdul Khalid petitioner to the effect that he is the owner of the land measuring 48 kanals described in the detail in the heading of the plaint and that the general power- of-attorney alleged to be executed by him in favour of one Habib Ullah is fictitious, collusive and ineffective upon the rights of the plaintiff and that1 mutation of oral sale No. 712, dated 7.4.1973 attested on the basis of the said general power-of-attorney is also illegal. As a consequential relief, decree for permanent injunction was also prayed.
3. The suit was resisted by the petitioner/defendant who contended that the suit was not competent in its present form; that the valuation of the suit land for the purposes of Court-fee had not been correctly fixed; that the plaintiff had challenged the general power-of-attorney dated 29.10.1968 hence the suit was time-barred; that the genera! Attorney of the plaintiff acting within his right, had sold the suit land to defendant No. 1 against consideration of Rs.9,000/- and the necessary mutation of the sale No. 712 was also get attested by the said general attorney in favour of the petitioner/defendant.
4. Abdul *Khaiiq petitioner filed a separate suit for declaration that he was the owner of the land in question having purchased the same from Sultan through his general attorney for a consideration of Rs.9,000/- with consequential relief for permanent injunction that the defendant in his suit be restrained from interfering in his possession. The said suit bears No. 57 of 1973. Both the suits were consolidated vide order dated 19.1.1974 and the following issues were framed:- ISSUES:
(1) Whether the power-of-attorney from the plaintiff in favour of the defendant No. 2 is forged and fictitious and as such inoperative against the rights of the plaintiff? OPP., (2) Whether the mutation of sale of the suit land No. 712, dated 22.3.1973 is illegal, ineffective against the rights of the plaintiff for being fictitious, forged, without consideration and authority? OPP.
(3) Whether the Impugned sale is hit by the provisions of Section 54 of Transfer of Property Act and Section 17 of the Registration Act? OPP (4) Whether the suit is not maintainable in its present form?
OPD ' (5) Whether the plaint is deficiently stamped for Court- fee? OPD (6) Whether the plaintiff has come to this Court with clean hands? If so with what effect? OPD (7) Whether the suit is time- barred? OPD (8) Whether the plaintiff is estopped to institute this suit by his words and conduct?
OPD (9) Whether the impugned sale is protected by the provisions of Section 53-A of Transfer of Property Act? OPD (10) Whether the defendant is entitled to recover special costs? OPD.
(11) Relief.
5. The learned Trial Court on the basis of the evidence produced before it found issue No. 1 against the plaintiff/respondent and held that the plaintiff/respondent had failed to discharge the onus of proof on this issue and that the general power-of-attorney executed in favour of defendant No. 2 Habib Ullah was a genuine document. As a corollary of its findings on issue No. 1, the learned Trial Court on issue No. 2 proceeded to held that mutation of sale No. 712, dated 22.3.1973 in favour of the petitioner, based upon the general power-of-attorney was lawful. Under issue No. 3 it was hojd that Section 54 of the Transfer of Property Act and Section 17 of Registration Act did not invalidate the sale. The findings on issue No. 4 was that the suit of the respondent without seeking possession was maintainable. Issue No. 5 regarding valuation of the suit for purposes of Court-fee and jurisdiction was decided in favour of petitioner while issue No. 6 was decided by the learned Trial Court in view of its findings on issue No. I. Upon issue No. 7, the suit was held to be time-barred. Findings on issue No. 8, followed the findings upon issue No. 1, Issue No. 9 regarding protection of Section 53-A of the Transfer of Property Act was decided against the petitioner and so was the findings on issue No. 10.
6. The learned Trial Court on the basis of the aforesaid findings dismissed the suit No. 58 of 1973 filed by Sultan while Suit No. 57 of 1973 filed by Abdul Khaliq was decreed on 10.6.1980. Against the said judgment and decree the respondent/plaintiff filed two civil appeals bearing Nos. 19 and 20 of 1982. Vide judgment and decree dated 4.4.1983, the learned Addl. District Judge, Bahawalnagar accepted both the appeals with the result that suit No. 58 of 1973 of the respondent was decreed while suit No. 57 of 1973 filed by the petitioner was dismissed.
7. In this Civil Revision, the following grounds were taken:-
(i) that the learned Addl. District Judge, has misread the evidence of PW.3, PW.4 and PW.5. These witnesses, were not examined on Oath, and therefore, the petitioner could not cross-examine any of these witnesses. Whatever was deposed by these witnesses was of no help to the respondent;
(ii) that the learned Addl. District Judge,- has mostly relied on the evidence of the expert but the sample paper which contained the thumb impression of the respondent does not contain a certificate that these thumb impressions were obtained in presence of the Court. Also it did not have any clarification as to who identified the respondent is the Court before * his thumb impression was taken. Therefore, this cannot be said with certainty that these thumb impressions on the sample paper were undisputed thumb impressions of the respondent; (i.e) that the documents produced by respondent (Register Petition Writer, Register Stamp Vendor and Registrar Al-abdaat) were tampered with because there is clear cut observation of the Court that these registers seem to be tampered with and for these reasons these registers were retained by the Court on the day when the evidence of PW-3, PW.4 and PW.5 were being recorded. Under the attending circumstances when the documents were tampered with the expert should have discussed of the points of controversy in detail but the same has not been done by the expert and cannot be relied upon; and(iv) that the learned Addl. District Judge, has also misread the evidence of DW-3 marginal witness of general power-of-attorney and DW-2 the registration Clerk at the time of execution of General Attorney and has failed to note their deposition that they personally know the respondent and that he had thumb marked the original power-of-attorney at the time of registration in their presence. Therefore, the deposition of these two witnesses sufficiently proved the execution of original general power-of-attorney of the respondent.
8. On the other hand, the learned counsel for the respondent forcefully contended that the Appellate Court had minutely examined the evidence produced by the respondent, both documentary and oral in juxta position with the evidence produced by the petitioner and arrived at the conclusion that the general power-of-attorney from the respondent in favour of Habib Ullah was a fictitious document; that the subsequent mutation favouring the petitioner on the basis of the said power-of-attorney was thus void; that oral sale, even otherwise was ineffective upon the rights of the respondent, in view of Section 54 of Transfer of Property Act, 1882; that the samples of thumb impressioiT were obtained by the Trial Court itself and that the objection regarding the absence of certificate that their thumb impressions were obtained by the Trial Court was frivolous and inconsequential and that PW.3, PW.4 and PW.5 had only appeared to produce documents and were not required to be cross-examined.
9. The arguments of the learned counsel for the parties have been heard and record perused with their assistance.
10. The piaintiff/respondent has produced six witnesses in support of his contention besides recording his on statement. Wali Muhammad PW.1 state that the plaintiff Sultan had not executed any power-of-attorney in favour of any person nor did he sell the suit landN*to the petitioner/defendant. He also stated that the suit property was in the cultivating possession of one Abdul Shakoor as a tenant who used to pay the share of Batai to the piaintiff/respondent.
Muhammad Siddique PW.2 also corroborated the statement of PW.1 stating that the land in question was cultivated by Shakoor as a tenant under Sultan and the petitioner/defendant never obtained possession of the land in question. According to him, the petitioner/defendant had got transferred the suit land in his favour through fraud. It may be mentioned here that Habib Ullah the alleged general attorney was arrayed as defendant No. 2. However, he was proceeded against ex parte. The original power-of-attorney was not produced on the record. As the original power-of- attorney was not available, the plaintiff was allowed to adduce secondary evidence for that purpose. PW.3 Allah Din, Petition Writter produced the Petition Writer's Register pertaining to the year 1968. The thumb impression of Sultan, however, was found to be tampered with. PW.4 produced the stamp Vendor Register, although the Stamp paper was sold in favour of the plaintiff/respondent but again the thumb impression was found tampered with. PW.5 is Muhammad Sabir, Registration Clerk of the office of Registrar, Bahawalnagar. He produced register of Alabdaat. PW.6 was Ch. Muhammad Yaqoob, DSP Finger Print Bureau, Lahore who deposed that the thumb impression on the Petition Writer's register, on the Stamp Vendor's register and in the register of the Sub-Registrar's Office were different from the right and left thumb impressions of the respondent Sultan from the sample of thumb impressions sent by the Court for comparison. The report of the Finger Print Expert is Ex.P.1. The enlarged photographs are Ex.P.2. The ihumb impressions of the plaintiff/respondent sent for comparison are Ex.P.3.
11. On the other hand, the petitioner produced Syed Ghulam Farid, Moharrir Mali Tehsil Bahawalnagar as DW-1, Fayyaz Khan, Registration Clerk as DW.2 who stated that the respondent/plaintiff had produced the general power-of- attorney for registration before the Registrar. This witness also deposed that the plaintiff was identified by Elahi Bakhsh and Sheikh Ammu Jan, Member Union Committee "C", Bahawalnagar. He stated that the original power-of- attorney was handed over to Habib Ullah. Muhammad Din had appeared as DW-3 and deposed that he was the marginal witness of the general power-of-attorney. DW-4 Muhammad Khan is the Lumberdar who had identified the parties at the time of attestation of mutation of sale on behalf of Habib Ullah, general attorney of the plaintiff in favour of the petitioner. DW-5 is a witness to the said mutation of sale while the petitioner himself appeared as DW-6 and supported the written statement.
12. The contention of the learned counsel for the petitioner that the evidence of PW.3, PW.4 and PW.5 was not recorded on Oath, therefore, their statements have no evidentiary value is without force. A perusal of the record shows that PW.3 Allah Din Petition Writer produced his register, Aziz Ikram from Excise and Taxation Office produced a register of the Stamp Vendor as PW.4, while Muhammad Sabir Registration Clerk of the Office of Registrar Tehsil Bahawalnagar appeared as PW.5 and produced register of Alabdant. It is, thus, clear that the said three witnesses only produced documents before the Trial Court and under Article 134 of the Qanun-e-Shahadat Order, 1984, a person summoned to produce document does not become a witness by the mere fact that he produces it and cannot be cross- examined. The said three witnesses did not make any statement on oath and were thus not required to be cross- examined. The second contention of the learned counsel for the petitioner that paper upon which the sample thumb impression of the respondents were obtained by the Trial Court was not accompanied by a certificate that those thumb impressions were obtained in the presence of the Court is also devoid of merit. The paper upon which the samples thumb impression of the respondents were obtained was duly signed by the Trial Judge. The contention that the sample should also have been accompanied by a certificate of Trial Judge is hyper-technical and would not advance the case of the petitioner.
13. PW.1 Wali Muhammad and Muhammad Siddiq PW.2 made statements on oath that the respondents has not sold his land to the petitioner nor has he executed any power- of-attorney in favour of any person, it was also in evidence that the suit property was cultivated by Shakoor as a tenant who used to pay the share of the Batai to the respondent Sultan. This Is also corroborated by the report of Mr. Imtiaz Ahmed Samar, Advocate, who was appointed as Local Commissioner by the Trial Court. According to his report dated 15.2.1979 the suit property was cultivated by Abdul Shakoor as a tenant under respondent Sultan. The Local Commissioner also recorded the statement of the said Abdul Shakoor. Nothing has been brought out against the veracity of these witnesses in cross-examination. As stated the remaining PW.3, PW.4 and.PW.5 appeared in the Court and produced their respective registers. Choudhary Muhammad Yaqoob, DSP Finger Print Bureau, Lahore appeared as PW.6 and specifically stated that the thumb impression as Mark "E" in the Stamp Vendor's register, the thumb impression Mark "F" in the Petition Writer's register and thumb impression Mark "G" in the register of Sub-Registrar's Office were different from the right and left thumb impressions to Sultan respondent of his sample thumb impressions which were sent by the Court for comparison to him. The report of PW.6 is exhibited as Ex.Pl and the enlarged photographs of the thumb impressions are Marked as Ex.P.2. The thumb impressions of respondent Sultan sent for comparison is Ex.PJ. The petitioner in defence produced Ghulam Farid who deposed that respondent Sultan had produced the General power-of- attorney for registration before the Registrar on 29.10.1968; that the petitioner produced DW-1, DW-2 and DW-3 to prove the execution of the General power-of-attorney. The statements of these witnesses including their cross- examination has been perused. Whereas, the Trial Court placed reliance upon the statements of DW-1, DW-2 and DW-3 in coming to the conclusion that the General power-of-attorney was proved by them, it is apparent that the learned Trial Court did not elaborate the evidentiary value of these witnesses. The treatment of the evidence by the learned Appellate Court is found to be a correct appreciation of the statements made by these witnesses particularly in cross-examination. For cogent and justifiable reasons, as recorded in the judgment of the Appellate Court, their evidence was not believed as compared with the evidence produced by the respondents. The first Appellate Court also noticed the non-production of material witnesses such as Illahi Bakhsh and Ammu jan, Member Union Committee "C" Bahawalnagar. These were the person who had statedly identified the respondents for execution of the general power-of-attorney. To the contrary it is on the record that the statement of this Ammu ]an was record through Local Commissioner according to which he had stated that he did not rememfeer whether he had identified any person at the time of Registration of the General power-of- attorney. Another important aspect pf the case is that Habib Ullah the alleged attorney 'of the respondent who was arrayed as a defendant did not appear in the Court. The original general power-of-attorney was also not produced in the Court. It is thus held that the judgment of the Appellate Court holding that the respondents did not execute any general power-of-attorney and that the sale mutation No. 712, dated 22.3.1973 made on the basis of the said general power-of- attorney was illegal and void is a correct appreciation of evidence on the record.
14. One aspect of the case which has escaped the notice of the first Appellate Court and which was wrongly decided by the learned Trial Court was the effect of Section 54 of the Transfer of Property Act, 1882 upon the impugned mutation of sale. It is by now a settled principle of law that Section 54 of the Transfer of Property Act applies to the area comprising of the former State of Bahawalpur and was applicable with full force on 22.3.1973 when the mutation of sale No. 712 was sanctioned. As the sale was not effected through a registered instrument, it is ineffective on the rights of the respondents Sultan. Reliance in this respect is placed upon the following judgments:-
(i) Jangi v. Jhanda and others (PLD 1961 B.J. 34);
(ii) Haji Noor Muhammad v. Ghiilam Masih Gill (1965 (W.P.) B.J. 1); (i.e) Muhammad Bakhsh v. Zia Ullah and others (PLD 1971 BJ. 42);
(iv) Muhammad Bakhsh v. Zia Ullah and others (1983 SGMR 988);
(v) Muhammad Khan and another v. Fazal Muhammad and another (1994 SCM R 281);
(vi) Pir Bakhsh v. Budhoo (NLR 1978 Civil 249);
(vii) Muhammad Fazal v. Kaura (1999 SC) 142).
16. In view of the foregoing none of the contentions raised by the learned counsel for the petitioner is sustainable. The learned first Appellate Court had exercised its jurisdiction legally, fairly and in a just and proper manner. No interference is warranted. The Revision Petition is dismissed. Parties to bear their on costs.