RANA BHAGWANDAS, J.---Leave to appeal against the judgment of reversal passed by Lahore High Court against the decrees of the two Courts below in a suit for declaration and injunction was granted to consider the question whether the parties had entered into a compromise in Suit No,90 of 196i in consequence whereof a compromise decree was passed in favour of the appellant and the two Courts having rendered concurrent findings on this question, after thorough appraisal of evidence on the record; whether the findings to the contrary were not open to interference by the High Court in the second appeal?
2. This case has a chequered history. The facts in a nutshell leading to this appeal are that Abdul Haq deceased father of the respondent owned about 408 Kanals of land. It appears that on his death, a controversy arose as to whether said Abdul Haq was a Sunni or "Shia by faith. Stance of the respondent-daughter was that he died as Shia, therefore, according to Shia law of inheritance, she was entitled to inherit whole of the estate to the exclusion of the appellant, who happened to be consanguine brother of the deceased. As she started claiming that Abdul Haq had died as Shia and she was the sole owner of the entire land, appellant feeling aggrieved, filed Suit No,57 of 1960 for declaration that as Abdul Haq died after the enforcement of Muslim Personal Law (Shariat)
Application Act, 1948 and he was follower of Hanfi religion, respondent may be restrained permanently from claiming that he did not follow Hanfi sect. This suit was contested by the respondent and was dismissed on merits vide judgment and decree dated 5-1-1961. It may be observed that no appeal or any other proceedings were filed against the said judgment and decree with the result that it attained finality. On the strength of this decree, Mutations Nos.212 and 213 regarding the land in suit were sanctioned in favour of the respondent mutating entire land of Abdul Haq in her favour. Respondent tiled an ejectment petition against Ghulam Nabi and Saeed Ahmed from the land in dispute being tenants before the Naib Tehsildar and Assistant Collector-II, Sargodha, which was accepted and the said tenants were ordered to be evicted through order dated 10-2-1966. After dismissal of the earlier suit regarding the faith professed by deceased- Abdul Haq, appellant filed Suit No,90 of 1961 seeking declaration of title in respect of 112 Kanals of land on the basis of his inheritance as consanguine brother. Initially the suit was contested by the respondent but eventually it resulted in a consent decree dated 11-5-1961. It appears that as a result of consolidation proceedings of Khasra No,229 was transferred to a third person but after the reversal of the said proceedings with regard to this Khasra number, mutation was opposed in favour of the appellant. In this view of the matter and threat to his title, he was obliged to file Suit No,464 of 1965 on 28-9-1965 against the respondent and her husband-Munir Ahmad, who had purportedly acted as attorney for the respondent in Suit No,90 of 1961, culminating in a consent decree. In the latest suit, appellant, founded his claim on the consent decree passed by Civil Judge, Sargodha. The suit was contested by both the defendants on merits as well as question of law. In the first instance, following preliminary issues were struck by the Court:--
(1) Whether the suit in its present form is maintainable? If not what is the proper from? O.P. Parties.
(2) Whether the valuation of the suit for the purposes of Court fee and jurisdiction is correct? If not, what is the correct value? O.P. Parties.
(3) Whether the property in dispute is properly described? If not, what is the correct description?
O.P. Parties.
(4) Whether the suit is properly verified? If not, what is the correct description?"
3. Both the parties adduced oral as well as documentary evidence on said issues. The trial Court, on appraisal of evidence held that suit for declaration in the circumstances was maintainable as some of the land was in possession of third party as tenant and that there was no defect in the form of the suit. On Issues Nos.3 and 4, it was concluded that the description of the property was correctly given in the plaint, which was properly verified and was correctly valued for the purpose of Court fee and jurisdiction. After disposal of the above said preliminary issues, trial Court framed the following two issues for determination on merits:-- "(1) Whether the plaintiff is owner in possession of the disputed property on the basic of the decree of civil Court dated 11-5-1961?
(2) Relief."
4. It may be pertinent to observe that findings on the preliminary issues were not challenged by any of the parties. In support of his case, appellant, examined-Munir Ahmad-husband of the respondent as P.W.1, Muhammad Akbar Cheema, advocate Sargodha P.W.2 and Inayatullah P.W.3.
He examined himself as P.W.4. The respondent, did not adduce any evidence despite being afforded a number of opportunities. Upon assessment of the evidence, trial Court decreed the suit vide judgment dated 22-1-1970. Appeal against the judgment and decree was dismissed by learned Additional District Judge, Sargodha on 6-1-1971. Both the judgments and decrees were impugned in Regular Second Appeal No,350 of 1971, before the Lahore High Court and allowed vide judgment dated 24-11-1994 leading to this appeal. Learned Judge in the High Court, on examination of the record, concluded that from the Jamabandi for the year 1958-59 Exh.P.3, it appeared that the appellant was cultivating the land as tenant under Abdul Haq deceased, his brother, therefore, even it he was for sometime in possession thereof the same could not be related to his ownership right. In the/opinion of the learned Judge, judgments of the two Courts below suffered from acute misreading and misconstruction of documentary and oral evidence.
Furthermore, they had kept out of consideration material aspects of the evidence discussed by him, therefore, the case aptly tell within the ambit of section 100 of C.P.C., as such both the judgments suffered from illegality and were not sustainable.
5. We have heard Mian Saeedur Rehman Farrukh, learned Advocate Supreme Court for the appellant and Khawaja Mushtaq Ahmed, learned Advocate-on-Record for the respondent and scanned the record with somecare and caution. Learned counsel for the appellant raised the following contentions before us:-- "(i) That the learned Judge in Chambers of the High Court completely ignored to consider the material evidence as regards proof of general power of attorney in favour of Munir Ahmed P.W.1 and that the appellant having been permitted by the trial Court to adduce secondary evidence to prove the power of attorney, certified copy of the power of attorney produced in evidence being duly registered in terms of section 60(2) of the Registration Act, 1908, by itself, was sufficient proof of execution thereof.
(ii) That in Regular Second Appeal, High Court could not lawfully set aside concurrent findings of fact even if they suffered from an error of judgment.
6. Conversely, learned counsel for the respondent fully supported the impugned judgment and submitted that the trial Court as well as the Appellate Court having appraised the evidence wrongly and having deduced absolutely untenable conclusions, misconstruction of evidence tantamounts to interference on a question of law, which was rightly disturbed and rectified by the High Court.
7. Adverting to the first submission of the learned counsel for the appellant, it may be observed that decree in the suit for declaration regarding the faith professed by deceased-Abdul Haq having attained finality, there was no occasion for the institution of Suit No,90 of 1961 by the appellant, claiming inheritance to the estate of deceased-Abdul Haq. Admittedly, under Shia law of inheritance, appellant being a consanguine brother, was not entitled to claim any share in property of the deceased. It may also be pertinent to note that, in the first instance, the suit was hotly contested by respondent, who had even raised the plea of bar of res judicata in view of the judgment and decree in the earlier suit decided on 5-1-1961. She claimed to be exclusive owner of the land left by the deceased to the exclusion of the appellant being his consanguine brother.
Interestingly, the appellant in the memo of the plaint, apart from claiming right to inheritance, had also claimed gift. Of the property by the deceased in his favour which can hardly be conceived.
This fact was, however, expressly denied and disputed by the respondent as well as her husband in the joint written statement. Appellant had prayed for relief of permanent injunction by restraining the respondent and her husband from interfering with his possession, which aspect of the case was also disputed. This suit, however, ended in a compromise. Applications for decreeing the suit in terms of compromise purportedly signed by attorney of the respondent and the appellant in person were made.On 8-5-1961 with a request to ante date the hearing of the suit, otherwise fixed on 21-6-1961. Learned Civil Judge, Sargodha, accepted the prayer and decreed the suit in terms of the compromise vide order dated 11-5-1961.The effect of the consent decree appeared to be that appellant was granted decree in respect of Khasra numbers in all measuring 112 Kanals in Chak No,114-Shumali, Tehsil Sargodha. In the latest suit, from which this appeal has arisen, respondent denied the consent decree in the earlier suit and contested it on merits on the premises that she did not appear in any Court nor did she appoint any Advocate to defend the suit. She denied the grant of any piece of land form the estate of deceased-Abdul Haq in favour of the appellant.
Confronted with this situation and the onus probandi of the issue in the suit being on his shoulders, appellant examined Munir Ahmad-husband and attorney of the respondent as P.W.1, who, however, did not support his cause and stated point blank that neither acted as attorney for his wife nor did he sign any compromise application. He denied his appearance before any Court of law. The witness was sought to be declared hostile but the trial Court did not accord necessary permission to do so. The witness denied his written statement, engagement of Chudhary Ghulam Rasul, Advocate and signing his Vakalatnama. Simultaneously, he denied having made any statement before Court. In his statement, Chaudhry Muhammad Akbar Cheema, Advocate for the appellant in the suit resulting in consent decree, stated that the suit was compromised and original application for acceptance of compromise was submitted before the Court on 8-5-1961: that the said application was drafted by Petition Writer-Ghulam Rasul (since dead). He identified the writing of said petition writer and produced certified copies of the applications for compromise Exh.P.W.2/1 & 2/2. According to this witness, statements of Chaudhry Ghulam Rasul, Advocate for the defendant and defendant-Munir Ahmed were recorded in his presence, which is found to be incorrect in the face of the original record and proceedings. 'He was unaware of the fact whether Munir Ahmed was appointed as general attorney by Mst.Rasul Bibi. He did not verify power of attorney in latter's favour because he did not represent him. The witness conceded that applications for compromise as well as antedating the suit containing terms and conditions of compromise Exh P.W.2/1 and 2/2 were neither signed by him nor written in his presence. Likewise, Inayatullah P.W.3, introduced as marginal witness of the power of attorney, denied the execution of any power of attorney by Mst.Rasul Bibi in favour of Munir Ahmed or his signature thereon as attesting witness. Appellant himself appeared as P.W.4 and attempted to establish his case but miserably failed to substantiate it.
8. Learned counsel vehemently contended that the appellant having been permitted by the trial Court, adduced secondary evidence in order to prove the power of attorney in favour of Munir Ahmad, produced a certified copy Exh.P//13, which being registered document, must be accepted as correct, conclusive and true in the face of the provisions contained in section 60 of the Registration Act, 1908. Section 60 reads as under:-- "60. (1) After such of the provisions of sections 34, 35, 58 and 59 as apply to any document presented for registration have been complied with, the Registering Officer shall endorse thereon a certificate containing the word "registered", together with the number and page of the book in which the document has been copied.
(2) Such certificate shall be signed, sealed and dated by the Registering Officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsement referred to in section 59 have occurred as therein mentioned."
9. Learned counsel was at pains to persuade us that certificate of registration recorded by Sub- Registrar on the document renders the document admissible for the purpose of proving that the document was duly executed in the manner recited in it and the facts mentioned in it were actually correct and true. There may be no cavil with the presumption of correctness as regards the certificate of registration on a document presented for registration and its due registration under the provisions of the Act. Endorsements made on the document by the Sub-Registrar may also be not disputed, execution of the document itself by Mst.Rasul Bibi in favour of Munir Ahmed, however, requires independent proof, which the appellant attempted to establish but, as concluded by the High Court, he miserably failed to establish due executionof the power of attorney by the executant in favour of the named attorney. Learned counsel relied upon Gangamoyi Debi v. Troiluckhya Nath Chowdhry (ILR XXXIII Calcutta 537 (Privy Council) and Pirla v. Noora (PLD 1976 Lahore 6) in order to re-enforce his submission.
10. In the Privy Council case (supra), presumption attached to official acts as duly performed was drawn in the backdrop of evidence as to due execution and registration of a Will. Without disputing the correctness of the principle of law laid down in the case, suffice it to say that in the absence of adequate and strong evidence, presumption in favour of execution of the power of attorney could not be lawfully drawn and the learned Judge in the High Court was perfectly justified in holding otherwise.
11. In the Lahore case (supra), reference was made to the certificate at the back of the document duly signed by Sub-Registrar as well as the vendor and vendee, categorically stating that a sum of Rs,26,500 had been paid in the presence of officer and a sum of Rs,2500 was acknowledged by the vendor to have been received earlier. In the background of payment and acknowledgment of the consideration for the transaction within the contemplation of section 60(2) of the Registration Act, 1908 and section 79 of the Evidence Act, 1872, it was observed that statement as to the receipt of the amount in advance as part of the consideration was proof of the payment having been so made. The Court observed that all that was required was that the provisions of section 60 should have been complied with and the facts sought to be proved should be such as were mentioned in sections 52 and 58. High Court felt fully supported in its opinion by the circumstance that nobody had ever said that there was rebuttal of it worth the name.
Learned counsel also cited Jaikarandas v. Protapsing (AIR 1940 Calcutta 189) observing in the context of sections 71 and 68 of the Evidence Act, 1872 that execution not only means signing by the executant but it means and includes attestation as well, which is last of the series, of acts necessary to give completeness and formal validity to a deed. Therefore, under section 68, it is necessary to call attesting witness not merely to prove the signature of the executant but to prove attestation as well and, if said witness turns hostile or refuses to prove execution or attestation, other witnesses may be called for the same purpose. The decided case does not advance the submission of the learned counsel and rather supports the impugned judgment.
12. The issue of presumption of correctness and authenticity of a registered document in the context of certificate of registration under section 60 of Registration Act was considered by Lahore High Court in Muhammad Sher v. Muhammad Azim (PLD 1977 Lahore 729). After distinguishing earlier judgment in Piara v. Fattu (AIR 1929 Lahore 711), it was held that certificate of registration is only to show the execution of the document and presumption beyond that cannot be drawn there from. High Court found support for its view from Gopal Das v. Sri Thakurji (AIR 1943 Privy Council 83), holding that where the Registrar's endorsements made under section 60 of the Registration Act showed that in 1881 a person, claiming to be Parshotam Das and to have become son of Harish Chandra by adoption made by his widow, presented the receipt of registration and admitted its execution and was identified by two persons one of whom was scribe of the document and was known to the Registrar, what remained to be shown was that the person admitting execution before the Registrar was Parshotam Das and no imposter. We have carefully perused the above said Privy Council Judgment, which tends to hold that question for determination remained whether the person who executed the document was Parshotam Das and not an imposter was one-of fact. However, the only presumption, which could be drawn from the certificate of endorsement was that registration proceedings were regular and honestly carried out. It was held that it was clear that if in the given circumstances of a case genuineness or bona tides with regard to the execution of a document were in doubt then the inquiry could be held in this behalf and no presumption to the effect that such and such document had actually been executed by a genuine person in all circumstances, could be drawn. Similar question arose for interpretation before the Peshawar High Court in Sahib Noor v. Feroz Khan (1992 MLD 2563) Muhammad Bashir Khan Jehangiri, J (as His Lordships then was), after an elaborate discussion of, sections 52, 58, 59 and 60 of Registration Act, 1908 and Articles 76, 79 & 100 of Qanun-e-Shahadat Order, 1984 authoritatively laid down that no legal presumption would arise from the registration of a document as regards validity of its execution. It was ruled that section 60 only provides that when a certificate containing the words "registered" was endorsed by the Registering Officer on the document, document was admissible for the purpose of proving that it was duly registered in the manner provided by the Act and the facts mentioned in the endorsement referred to in section 59 occurred as mentioned therein. Learned Judge, who subsequently rose to the office of Chief Justice of Pakistan, was fortified by Muhammad Jaffar Ali v. Muhammad Abdul Majid (PLD 1968 Dacca 201). Similar view was taken in Manzoor Ahmad v. Hashmat Ali (2000 CLC 419) by Lahore High Court. In Muhammad Lal v.
Ghaus Muhammad (NLR 1991 Civil 375) = 1991 CLC Note 74 P.59), a learned Judge of the Lahore High Court, after great deal and discussion of the case law from Privy Council as well as Pakistan jurisdiction, concluded that execution of a registered. Or unregistered document should be proved in case of specific denial of execution of document. Certificate endorsed on a document by Registering Officer is a relevant piece of evidence for proving execution of document but it would not be decisive as to execution in case of a specific denial and dispute about the execution of document.
13. The rule of law emerging from the precedents appears to be that registration of a document in case of dispute about its execution is neither decisive on the identity of the executant nor precludes inquiry by the Court on this point and the fact in issue has got to be proved like any other fact in dispute. In Sanaullah v. Muhammad Manzoor (PLD 1996 SC 256), it was observed that ordinary rule for proving signature of any person on document would be to call that person in evidence. Where person who was alleged to have executed document had denied his signatures, his signatures could be proved by calling that person in whose presence such document was executed. Signatures of executant could be proved by calling two attesting witnesses in whose presence, person concerned had signed the document. Where both attesting witnesses of document in question were alive and were available but were not produced, in such case, Courts below could not hold on basis of evidence on record that execution of document in question was proved.
14. Adverting to the facts of the case in hand, it would appear that the respondent, who allegedly authorized Munir Ahmad P.W.1 to act as attorney on her behalf and to compromise the suit was neither summoned for evidence nor called upon to produce the original power of attorney. She was statedly identified to the Sub-Registrar by Hafiz Sher Muhammad, Sarbrah Lumberdar of Chak No,107 Shaumali, who was known to the Registrar bast no attempt was made to examine this person. The Sub-Registrar namelyG.M. Inayat was also not produced at the trial to prove execution of the document whereas the scribe of the document i,e, Umer Din, though summoned, was not produced M the witness box. As noticed earlier, marginal witness-Inayatullah P.W.3, though examined at the trial of the suit, denied his signature on any power of attorney or the execution of such document in his presence. It would, thus, be legitimate to infer that the appellant was fully conscious of the fact that he was legally obliged to prove the execution of power of attorney in favour of Munir Ahmed, irrespective of its registration but he miserably failed to establish this fact.
In the absence of execution of a power of attorney by the respondent, signatures on compromise application culminating in a consent decree would appear to be a farce. Learned Judge in the High Court was, thus, perfectly justified in drawing an inference that the respondent was illegally deprived of valuable right to property by wrongful means, which could not be permitted at law.
Indeed, the conclusion arrived at that the judgments of the two Courts below suffered from gross misreading and misconstruction of documentary and oral evidence is perfectly right and justified by the material on record, which does not warrant any interference by this Court.
15. Learned counsel also relied upon Malik Din v. Muhammad Aslam (PLD 1969 SC 136) laying down the rule of law that a previous judgment is admissible also to prove a statement of admission or an acknowledgement made by a party or the predecessor-in-interest of a party in his pleading in a previous litigation. Simultaneously, a judgment narrating the substance of the pleadings of the parties to a litigation is admissible to establish the allegations made by them on that occasion.
Without any cavil with the proposition of law, we feel, the precedent does not advance the cause of the appellant, which in fact stands on a weaker footing.
16. Lastly, learned counsel was seriously critical of the fact that inadequacy of evidence would not be a ground for disturbing concurrent findings of fact and the learned Judge in Chambers exceeded his authority in the matter of re-appraisal of evidence while sitting in second appeal against the judgments of the Courts below. He cited Fazal Rahman v. Amir Haider (1986 SCMR 1814), expressing the view that High Court will not interfere with concurrent findings arrived at by two Courts below even if it disagrees with that finding on its own view of evidence. It was held that, in law High Court could not disturb findings of fact even if erroneous, however, gross and inexcusable the error may be except on strong legal ground which may be held to tantamount to interference on a question of law. There can be no cavil with the proposition laid down by this Court in the aforesaid case, it will depend on the facts of each case as to whether the two Courts below recording concurrent findings of fact had lawfully arrived at the conclusion and whether the judgment did not suffer from misreading of evidence or exclusion of material piece of evidence on record or perverse or contrary to the record. This rule was also laid down in Muhammad Anwar v.
Muhammad Siddiq Hashim (PLD 1992 SC 838) and reiterated in Sultan Ahmad v. Naeem Raza (1996 SCMR 1729) as well as Sirbland v. Allah Loke (1996 SCMR 575), in the minority judgment of Ajmal Mian, J (as His Lordships then was). The ratio of the precedents emerging in the facts and circumstances appears to be that ordinarily concurrent findings recorded by the Courts below could not be interfered with by the High Court while exercising jurisdiction in the second appeal however erroneous that finding may be, unless such finding has been arrived at by the Courts below either by misreading of evidence on record, by ignoring a material piece of evidence on record or through perverse appreciation of evidence. The case in hand squarely falls within the exception clause, inasmuch as, the High Court interfered with concurrent findings, after noticing that the judgments of the Courts below suffered from acute misreading of evidence and exclusion of material available on the record, resulting in gross miscarriage of justice.
17. Judging the case of the appellant from every angle, we are firmly of the view that the impugned judgment does not warrant any interference by this Court and is sustainable at law. For the aforesaid facts, circumstances and reasons, this appeal is dismissed with no orders as to cost.