1999 PLP 1245 (SCMR)

ABDUR REHMAN KHAN, J‑‑‑This appeal filed as of right under Article 185(2)(d)(e) of the Constitution, impugns the legality of the judgment passed on 29‑6‑1993 in R. F. A. No. 133 of 1987, by a learned Division Bench of Lahore High Court whereby, while accepting the appeal instituted by the plaintiff/respondent, the judgment and decree of the learned trial Court dated 30‑7‑1987, dismissing the suit of the plaintiff, was reversed and consequently, his suit was decreed.

2. Muhammad Subhan, respondent No.l sued the appellants/defendants for possession of land measuring 957 Kanal, 12 Marla detailed in the plaint, on the allegation that he was confirmed allottee of this land and in capacity of full owner remained in its possession till Kharif 1965. During that period Abdul Majid defendant No. 1, who was posted as Patwari of the area and had sufficient influence in revenue and Police Departments, fraudulently in a clandestine manner got attested Mutation No. 133 on 21‑3‑1964, in favour of Abdul Ghafoor Saline, defendant No.2, and then in the same deceitful manner managed to get Mutation No. 13.7 sanctioned in favour of Chiragh Muhammad his father‑in‑law through Habib Ullah defendant No.3, who is his brother‑in‑law. .It was described as very unique that on the same date inheritance Mutation No.139 of Chiragh Muhammad was attested in favour of his daughter and widow defendants Nos. 4 and 5, out of whom the former is wife of defendant No.

1. Then on the same date mutation was got attested in favour of defendant No.4 and, thus, through all these manipulations and fraud defendant No.l was able to make his wife the sole owner of the disputed land. Initially, defendant No. l made bogus entries in the Khasra Girdawari to show possession of his wife and then forcibly dispossessed the plaintiff at the time when his crop of 1965 was still standing in the fields. The plaintiff after his dispossession checked the revenue record and it was then that he came to know about this fake and false mutations. He filed an appeal before the Collector to undo the mutations but that was dismissed as time‑barred. It was clarified in the plaint that Mutation No. 133 dated 21‑3‑1964, initially entered on the basis of a collusive and fraudulent registered deed but then realising the bogus nature of this deed it was attested as oral sale and the presence of the plaintiff at the time of its attestation was collusively marked. It was stated that the registered sale‑deed dated 10‑1‑1962, on behalf of the plaintiff in favour of defendant No.2, was also fraudulently got executed by defendant No.l in favour of defendant No.2. This sale deed was described as false and fraudulent. It was further averred in the plaint that later on the plaintiff came to know that defendant No.l managed to institute a suit on behalf of the plaintiff against themselves and produced some other person identifying him to be the plaintiff and then on the basis of false and dishonest compromise got the suit dismissed so as to strengthen their claim to the suit land. It was in this background that the relief for possession of the suit land was prayed for after the cancellation of the said mutations, registered deed and compromise.

3. Defendants Nos. l and 3 to 6 submitted a joint written statement and stated therein that the suit was barred for misjoinder of a cause of action, and was also barred by time and principle of res judicata and they claimed protection under section 53 of the Transfer of Property Act. As for merits, it was averred that all those described in the plaint as fraudulent and collusive, were rather genuine and were the outcome of the voluntary action and free consent of the plaintiff. In the written statement allegedly filed on behalf of defendant No.2 as available on record, it was stated that he had neither purchased the suit property from the plaintiff nor had paid any sale consideration to him and that the sale deed showing the plaintiff as vendor and he as a vendee, were collusive and fraudulent. It appears that defendant No.2 had sent an application to the trial Court stating therein that the "Written statement was manoeuvred by Mian Abdul Khaliq, Advocate as well as Ghulam Hussain, Clerk Food Department who allegedly visited him at Karachi, misguided him and fabricated the written statement. Reply to this application was invited by my learned predecessor who restrained Abdul Rashid and Abdul Rashid Karimi, Advocate from pleading the case of defendant No.2, but dismissed the application of defendant No.2 in respect of his prayer for the cancellation of his earlier written statement dated 22‑9‑1976. It is worth mentioning that neither the defendant No.2 himself later on appeared in support of his case nor any attorney on his behalf appeared before the Court".

4. The learned trial Court dismissed the suit on 30‑7‑1987, and its finding on the relevant issues, concisely, are that the disputed Mutation No. 133 attested on 21‑3‑1964, and the registered sale‑deed dated 10‑1‑1962, and the subsequent various types of mutations based on the above two basic documents were genuine, free from fraud and it was attested/executed at the behest of the plaintiff. It was held that it was the plaintiff who had moved the Collector in appeal against the impugned mutations. It was also concluded that it was the plaintiff who had filed Suit No.68 instituted on 24‑10‑1966, decided on 5‑4‑1966, captioned as 'Muhammad Subhan v. Abdul Ghafoor etc., and, therefore, he is to face the legal consequences arising from its dismissal in default and also from dismissal of‑ application submitted by him for restoration of the sit. The suit was held beyond time, barred by the principle of res judicata and the defendant/vendee were declared entitled to protection under section 53 of the Limitation Act. The learned Division Bench of the High Court in first appeal by the impugned judgment while reversing the judgment of the Trial Court held as under:‑‑ (i) The property covered by disputed registered sale‑deed dated 10‑1‑1962 is in a village of District Bahawalnagar while the sale deed was registered at Lahore, therefore, this amounted to violation of the mandatory provision of the Registration Act and on this count alone the sale‑deed was invalid and void. (ii) The execution of the registered sale‑deed dated 10‑1‑1962 on behalf of the plaintiff in favour of defendant No.2 could not be proved as required under section 78 of Qanun‑e‑Shahadat. (iii) Presence of the plaintiff at the time of attestation of Mutation No.133 sanctioned on 21‑3‑1964, could not be established. (iv) All the subsequent mutations based on and arising from Mutation No.133 and the registered deed referred to above are void documents and are without any legal consequences. (v) Suit No.68 titled Muhammad Subhan v. Abdul Ghafoor etc. 'dismissed on 5‑4‑1966 under Order IX, Rule 3, C.P.C., had not been instituted by Muhammad Subhan (plaintiff), and the present suit was neither barred under section 11, C.P.C. nor under Order IX, Rule 9, C.P.C. or under Order XXXIII, C.P.C. (vi) Suit was also not time‑barred as it fell under Article 142 of the Limitation Act and the dispossession of the plaintiff having happened in 1966, the suit instituted on 11‑3‑1976 was well within time.

5. The learned counsel for the appellant when began his arguments and attempted to critize the finding of the High Court to the effect that the disputed sale‑deed could not be registered in the office of the Registrar at Lahore as it related to the land located in a village of District Bahawalnagar and on this count the sale‑deed was invalid and void, then at that time Mr. Gulzarin Kiam, Advocate appearing for the respondent stood up and conceded that the sale‑deed could be registered at Lahore and that the finding of the High Court on this point is not correct. He, however, stressed that the copy of the sale‑deed should have been sent to the Registrar of the District where the property was situated as in absence of that it could not satisfy the requirement of a valid notice which is basic purpose of registration of document. We have noted that the learned Judge in the High Court made sufficient efforts to resolve this controversy as they have referred extensively to the case‑law on this point and have elaborately discussed it at sufficient length. This labour could have been avoided if they had been properly assisted and this point had been conceded before them, if it could not be legally disputed. In any case, we are not required to go into the validity of this argument as it was not disputed before us from the respondent's side. However, we agreed with Mr. Kiani, that it could not form valid notice to the public as it had not been sent to the office of the Registrar/Sub‑Registrar of the District where the property covered by the sale deed, was situated.

6. Learned counsel next argued that the suit was time‑barred and the learned trial Court had rightly held it so and, therefore, the contrary finding of the High Court on this issue is bad in law. He was of the view that section of Limitation Act applicable in the circumstances of the present case would be Article 120 and not Articles 142 and

144. He criticised the finding of the High Court applying Article 142 and holding the suit as within time. It was clarified that unless the impugned registered sale‑deed and the sale mutations operating against the plaintiff are set aside, he could not be granted decree for possession and for setting aside the said document the period provided under Article 120 of the Limitation Act is 6 years. It has been held by the High Court with which we concur for the reasons to be enumerated in this judgment, that the execution of sale‑deed dated 10‑1‑1962, by the plaintiff in favour of defendant No.2, could not be proved and it could also not be established that the plaintiff had appeared before the Registrar at the time of registration and payment of sale consideration to the plaintiff could also not be substantiated. The sale‑deed was, therefore, a void document and the plaintiff was not bound to ask for its cancellation as it could not constitute a hindrance or impediment in his way to seek possession under Article 142 from the date he was dispossessed. This legal position has been extensively discussed in Muhammad Akbar Shah v. Muhammad Yusuf Shah and others (PLD 1964 SC 329) which has been relied upon by the High Court in the impugned order. It has been laid down in the said judgment: "The principle which is applicable cannot be disputed either on authority or in reason. The principle is that if the transaction which is sought to be set aside was a voidable one, it is essential that the transaction be set aside. If it be not voidable, but void, the question of setting it aside would not arise. As to whether a transaction is voidable or void there is a simple criterion: did the transaction create any legal effects, that is, did the transaction transfer, create or terminate or otherwise affect any rights? In a void transaction no legal effects are produced. In a voidable transaction legal effects are produced but some person has the right to avoid the transaction and if he exercises that option the process by which rights were affected is reversed and the original situation as it existed before the transaction is restored (subject to adjustment of equities). If the Court which is dealing with the question of limitation reaches the conclusion after considering the evidence before it that the transaction in dispute by its own force produced legal effects it would be necessary that the transaction be set aside and limitation will be governed by the Article applicable to the setting aside of the transaction. If it comes to the conclusion that by itself the transaction produced no effects no need for setting it aside will arise. It is necessary to state here that a voidable transaction should not be confused with a transaction which prima facie looks valid and in relation to which the burden of proof will be on the party alleging its invalidity. There may be a document in existence a registered deed of sale or mortgage or some other transaction, which is by presumption genuine and the person who purports to be its executant may have the burden on him to show that it is a forgery. Still it is not a voidable transaction because ultimately when the Court comes to the conclusion that it is a forgery it will be found that in fact the document never affected any right. This is the criterion for determining whether a document is void or voidable. Its apparent validity or the question of burden of proof is in this respect irrelevant. No person is bound to sue for setting aside a document just because it is raising a presumption against him. There is no need for the person who is shown to be the execuant of the forged document to sue for its cancellation or for setting it aside though he may be taking a risk in allowing the document stand for proof of forgery may become difficult as time passes. A transaction which is not genuine may have been incorporated even in the revenue records which have a presumption of, correctness. Still there is no need to have the transaction set aside for Revenue Records are only evidence of it and do not affect title. If the Court finds that there is no true basis for the entry in the record‑or‑rights its conclusion would be that there never did exist any transaction which affected any rights. "Setting aside" is wholly inappropriate for a document which has produced no legal effects though the expression is sometimes loosely used in respect of a declaration of invalidity of a document". The conclusion of the High Court that the suit would be covered by Article 142 and not Article 120 is, therefore, correct. It is borne out from the record that the suit under Article 142 was within time as Jan Muhammad P.W.10, who appeared as attorney of the plaintiff, stated in his statement that the plaintiff was dispossessed from the suit land in Rabi 1966, but it is curious to note that in cross‑examination he was not put a single question to discredit his statement on this count. The suit having been filed on 11‑3‑1976 was within time from the date of dispossession of the plaintiff. In this context it was also stressed that the defendants having continued in hostile possession which was adverse to the claim of ownership of the plaintiff, therefore, they had matured title through efflux of prescribed period of limitation. This argument is misconceived and does not take into consideration that all along the case of the appellants was that they had purchased the suit land through registered sale‑deed dated 10‑1‑1962 and Mutation No.133 attested on 21‑3‑1964, therefore, they could not set up the plea of adverse possession over the property of which they had claimed to be the owners through purchase. To say that one is owner by purchase and at the same time through adverse possession rather sounds ridiculous and in any case these are contradictory pleas irreconcilable with each other. It is now well‑settled that person who asserts ownership over a certain property by purchase would not be legally justified at the same time to say that his occupation of the property was hostile or adverse as against the real owner. The logic behind is that a person cannot claim hostile and adverse possession over a property which he holds in his own right and such a possession lacks the essentials of adverse possession so far recognized for maturity of ownership on this count. It has been so held in Mirza Ghulam Hussain and another v. Ch. Iqbal Ahmad (PLD 1991 SC 290), the relevant paras. of which are reproduced:‑‑

"The possession' is not to be considered adverse if its origin can be referred to a lawful title, whenever that is possible; because, a person who claims to have entered into possession as a trespasser will be presumed not to have done so if at the time he so entered he had some lawful title of possession. This in reality is based on the historical and jurisprudential aspect of adverse possession". And again: "A 'defendant entering into possession or being in possession on the assumption of lawful title could not divest himself of that title 'by pretending that he had no title at all'. The possession, thus held, was never to be adverse if it can be referred to a lawful title." 'Possession is not adverse if it could be referred to a lawful title. It has to be kept in view that one of the most important elements in deciding whether the possession is or is not adverse, is the intention and knowledge of both sides. They have a decisive determining effect. It always depends upon the intention at the start. If the origin of possession is treated by the person subsequently claiming to be in adverse possession, as lawful no adverse possession begins until the denial to the knowledge of the owner. "

8. The main stress of the argument of the learned counsel was that the plaintiff had not denied the execution of the disputed sale‑deed, therefore, his clients were not required to prove its execution and registration. This argument appears to be misconceived as it overlooks the allegations in the plaint and the evidence recorded in the case. Perusal of the plaint shown that the execution of the sale‑deed has repeatedly been denied and it has been described as fake, fraudulent and collusive. It has been averred in para No.5 of the amended plaint." The same assertion appears in some of the other parts of the plaint. This factual position has been repeated in the statement of some of the witnesses. P.W.10 appeared as attorney of the plaintiff and stated":

10. It is very amazing to note that the Sale Mutation No. 133 attested on 21‑3‑1964 in respect of the disputed property, which was allegedly purchased by the registered sale‑deed dated 10‑1‑1962, is neither based on this deed nor there is any mention of the deed. It is also very unique feature of this case that neither the original sale‑deed was produced in Court nor permission was obtained for production of secondary evidence nor the vendee/defendant No.2 appeared in Court nor any of the marginal witnesses was examined, still it was boldly asserted that the execution of the deed has been proved. The same is the position of Sale Mutation No. 133 as its genuineness could not be proved as rightly concluded by the High Court. The finding of the High Court is that Abdul Majid respondent No.l was Patwari of the area where the suit land is situated and he collusively manoeuvred the attestation of the impugned mutations fraudulently and fabricated the fake registered sale‑deed as he and his wife were the ultimate beneficiaries of all these transactions. This finding relates to factual appreciation of the controversy which need not be gone into as no substantial defect in reading oral or documentary evidence could be pointed out.

11. The learned counsel further argued that the registered sale‑deed, mutation and Revenue Record are admissible in evidence and as the plea of the appellant finds support from all these documents, therefore, the High Court was not correct in discarding them. He referred to several cases to support his view point. This is a sweeping and very wide argument and it is not so that every thing which finds mention in the registered deed or Revenue Record must invariably be accepted without proof of their execution, genuineness and authenticity. It is axiomatic principle of law that a registered deed by itself, without proof of the execution and the genuineness of the transaction covered by it, would not confer any right. Similarly, a mutation although acted upon in Revenue Record, would not by its own force be sufficient to prove the genuineness of the transaction to which it purports unless the genuineness of the transaction is proved. There is no cavil with the proposition that these documents being part of public record are admissible in evidence but they by their own force would not prove the genuineness and execution of that to which they relate unless the transaction covered by them is substantiated from independent and reliable source. Admissibility is to be distinguished from proof required by law for determining the execution and genuineness of document. The plea of res judicata and estoppel were also raised against the plaintiff on account of, the earlier litigation. But we find that they have been satisfactorily resolved by the High Court as it has been said that the documents relied upon by the defendants were fake and fraudulent and, thus, could not form basis for declaring the present suit as barred by res judicata or for applying the principle of estoppel against the plaintiff, This ,appeal is found without merit and is, accordingly, dismissed with costs. M.B.A./A-150/S Appeal dismissed.