2007 PLP 339 (CLC)

MUHAMMAD AKHTAR SHABBIR, J.

Briefly stated the facts of the case are that the plaintiff-appellant (herein) had filed a suit for declaration, possession through partition, mesne profits, permanent injunctions, and damages regarding two houses in sector F-7/4, Islamabad, agricultural land in Tehsil Dina District Jhelum, business and agencies at Attock and other properties which were not in her knowledge, averring in the plaint that the disputed properties were owned by deceased Rustam Ali Bakhshi, father of the appellant, defendants Nos.1 and 2 and maternal-grandfather of respondents Nos.3 to 7 and father-in-law of defendant No.8. She further asserted in the plaint that at the time of death of her father, his wife (who was mother of the appellant and defendants Nos.1 and 2) inherited 1/8th share from the property of the deceased and she also passed away on 11-8-1988; that defendant No.1 sold the business of the deceased at Attock and from sale proceeds, he purchased House No.10, Street No.27, Sector F/6-2, Islamabad, in the name of his wife Mst. Azra, as such that property also belongs to the legal heirs of the deceased and the said Mst. Azra is a Benami owner. The plaintiff further alleged that she was entitled to 1/5th share of the property of her father, but defendant No.1 had got transferred in his favour the whole estate of her deceased father. Along with the suit, the plaintiff has filed an application for grant of temporary injunction. The suit as well as the said application were contested by defendants Nos. 1 to 8, who filed their written statements and reply to the application, contending that the plaintiff-appellant was not entitled to discretionary relief as she has approached this Court with un-cleaned hands, deliberately and purposely concealing the material facts of the case. Some other preliminary objections were raised by the said respondents. After hearing the arguments of learned counsel for the parties, learned trial Court vide order, dated 9-9-2006 dismissed the application for grant of temporary injunction.

2. Learned counsel for the appellant has vehemently and forcefully objected the order of trial Court, contending that the gift deed in respect of House No.3, Street No.58, Sector F/7-4, Islamabad, on behalf of plaintiff-appellant and other executants-respondents, is a result of fraud and fabrication as it was neither identified nor testified by the witnesses. Learned counsel has also challenged the transfer of agricultural land through mutations, in favour of defendant-respondent No.1. He further argued that the plaintiff-appellant being co-sharer and co-owner of the property is entitled for grant of temporary injunction.

3. On the other hand, learned counsel appearing on behalf of contesting respondents have vehemently opposed the arguments of learned counsel for the appellant, contending that presumption of truth is attached to registered gift deed which was executed in October, 1980 and the appellant is stopped to challenge the validity of said gift deed and the mutations of transfer of property in favour of respondent No.1. Further argued that no case for grant of temporary injunction has been made out in favour of the appellant. Further added that the appeal is liable to the dismissed for non-compliance of Order XLIII, rule 3, C.P.C.

4. I have heard the learned counsel for the parties and perused the record.

5. The House No.3 built in Plot No.3 measuring 2,000 sq. yards situated in Street No.58, Shalimar 7, Islamabad, the description of which has been narrated in the gift deed, had been gifted out in favour of respondent No.1 on behalf of Mst. Sultana Rustam, Mst. Parween, Mst. Gulfareen and the appellant Mst. Khalida. The said gift deed had been registered by Sub-Registrar, Islamabad on 29th day of October, 1980 which bears the endorsement/certificate of registration Sub-Registrar.

6. Section 60 of the Registration Act, 1908, enshrines that (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 documents have been copied. (2) Such certificate shall be signed, sealed and dated by the Registering Officer, and shall then be admissible for the purposes of proving that the documents has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsements referred to in section 59 have occurred as therein mentioned.

7. A certificate of registration endorsed on a document is `prima facie' evidence that the requirements of the Act have been complied with and it is for the party who challenges the registration to prove any act or omission which would invalidate the registration. While it is true that the mere registration of a document is not itself proof of its due execution, the certificate endorsed by the Registration Officer on the document is admissible to prove the execution of the document.

8. The registered document has sanctity attached to it and stronger evidence is required to cast aspersion on its genuineness. Reliance in this context can be made to the cases of Muhammad Aslam v. Rehmat Ali 2000 MLD 1459; Mirza Muhammad Sharif v. Mst. Nawab Bibi 1993 SCMR 462 and Lt. Muhammad Sohail Anjum Khan v. Abdur Rashid Khan 2003 MLD 1095 and PLD 2003 SC 676.

9. The gift deed executed in the year 1980 denotes the signatures of donors including the appellant. To rebut the authenticity/genuineness of a registered document (gift deed) the appellant has to produce sufficient and convincing evidence and to challenge the validity of gift for its non-performance there are three necessary attributes i.e. offer, acceptance and delivery of possession.

10. So far as transfer of agricultural land situated in District Jhelum in favour of respondent No. t through mutation is concerned, the same has not been challenged which was attested or sanctioned in the year 1973. The appellant has not objected to these transactions prior to the filing of present suit. She had slept over her rights and remained in state of dormancy for such a long time.

11. On mere bald statement of allegation of in-genuineness of said transaction of the appellant, it is not sufficient to prove a prima facie case. The three ingredients i.e. prima facie case, balance of convenience in favour of the plaintiff and irreparable loss must exist for grant of temporary injunction in favour of the appellant. In this context, reference can be made to the cases of Century Link Development Corporation (Pvt.) Ltd. v. Habib Bank PLD 2000 Kar. 269 and Muhammad Abid v. Nisar Ahmad 2000 SCMR 780.

12. Respondent No.1 is owner of the property through gift-deed and through mutations and by issuing of any injunction against him, a clog cannot be placed on his right of ownership, if subsequently the plaintiff-appellant succeeded and the-property in dispute is alienated during the pendency of the litigation, the transaction would be hit by doctrine of lis pendens as laid down in case Muhammad Ali v. Ahmad Bakhsh 2000 MLD 1147.

13. The plaintiff-appellant has failed to make out a prima facie case in her favour. Since the date of transfer of the property, respondent No.1 is in possession over the property in dispute which is sufficient to presume his title and ownership over it and thus, the balance of convenience also leans in favour of respondent No.1. The appellant has not been able to establish the three requirements of law for grant of injunction in her favour, therefore, the learned trial Court has rightly declined her prayer for temporary injunction. Learned counsel for the appellant has miserably failed to point out any illegality in the impugned order passed by the trial Court. Resultantly, this appeal being devoid of merit is dismissed. F.B./K-67/L Appeal dismissed.