1995CLC531 (PLP)

5. The pleadings of the parties thus raised gave rise to the following issues:‑‑ (1) Whether the plaintiff has got a‑cause of action? (2) Whether the plaintiff is estopped by his own conduct to bring the present suit? (3) Whether the suit is bad due to non‑joinder of necessary parties? (4) Whether the suit is incompetent in its present form? (5) Whether the suit is liable to dismissal due to non‑affixing of court‑fee? (6) Whether this Court has got the jurisdiction to entertain the present suit? (7) Whether the plaintiff is owner in possession of the suit house and defendant No. 1 is his tenant? (8) Whether the registered dower deed executed on 3‑1‑1987 by defendant No. 1 in favour of defendant No. 2 is wrong, illegal and against the facts and hence inoperative upon the rights of the plaintiff? (9) Whether the loan of Rs.60,000 extended to defendant No. 2 by defendants Nos. 3 to 5 for the purpose of construction of the suit house is illegal, collusive and based on fraud and the house in dispute is free from any sort of encumbrance? (10) Whether the plaintiff has become the owner in possession of the suit house by its purchase from defendant No. 1 on payment of Rs.60,000 vide two agreement deeds dated 1‑5‑1985 and 14‑7‑1985? (11) Whether the defendants Nos. 6 and 7 have wrongly represented the suit house as the ownership of defendant No. 1 before defendant No. 8 at the time of registration of the dower deed, if so, its effect? (12) Whether the amount of Rs.60,000 paid by the plaintiff to defendant No. 1 in the form of Rs.40,000 in cash and Rs.20,000 in the shape of gold made ornaments was extended by the plaintiff to defendant No. 1 at the rate of Rs.300 p.m. as interest on the said amount and as security of recovery of the said debt the disputed house was placed under the mortgage of the plaintiff,. if so, its effect? (13) Whether the defendant No. 1 has returned the total amount of Rs.34,000 out of Rs.60,000 and only an amount of Rs.25,600 is outstanding against defendant No. 1? (14) Whether in case of decree of the suit, defendants Nos. 3 to 5 would be entitled to recover Rs.60,000 from. the defendants Nos. 1 and 2 alongwith its interest? (15) Whether the plaintiff is entitled to the compensatory costs of Rs.15,000 in case of decree of the suit? (16) Whether the plaintiff is entitled to the decree of declaration and perpetual injunction as prayed for? (17) Relief. Issues Nos. 2, 3 and 4 were neither proved through any cogent evidence nor were pressed at the Bar before the learned trial Judge. The learned trial Judge held that since "several Government 'functionaries have been arrayed" as defendants and "their acts within official capacities have been challenged" he was seized of the jurisdiction to try the suit and decided Issue No. 6 against the answering defendants. He then took up Issues Nos. 10, 12 and 13 and observed that once receipt of Rs.60,000 had been acknowledged from the plaintiff by defendant No. 1, the onus shifted to him to prove that it represented as a loan and not the sale consideration for the disputed house. Conversely, it .was held that the plaintiff had substantiated his claim of purchase of the disputed house by virtue of deeds photo copies Exh. P.W. 1/1, Exh. P.W. 1/3 and Exh. P.W. 1/4 by adducing evidence of Hazrat Muhammad (P.W. 2), the marginal witness to the two last mentioned deeds and that of Badshah Sherin (P.W. 3) who claimed to be the scribe of the first mentioned deed. On this reasoning, the learned trial Judge reached the conclusion that on Issue No. 10, the plaintiff had proved to be the owner in possession of the disputed house by way of purchase for a sum of Rs.60,000 on the strength of "two agreement deeds dated 1‑5‑1985 and 14‑7‑1985". In consequence, Issues Nos. 10, 12 and 13 representing the plea of defendants Nos. 1 and 2 that the amount was paid by the plaintiff to defendant No. 1 as a loan on payment of interest Rs.300 per mensem or that defendant No. 1 had made part payment amounting to Rs.34,400 to the plaintiff reduced into Issue No. 13 was decided against the defendants. Again Issues Nos. 8 and 11 were jointly discussed and were also found against the plaintiff. Similarly, Issues Nos. 9 and 14 were discussed together and it was held that defendant No. 2 had "dishonestly secured loan through misrepresentation not for the construction of the house" and further that "if the suit is decreed, the HBFC would be entitled to recover its loan with interest from defendants Nos. 1 and 2" and lastly that "the disputed house does not belong to defendants Nos. 1 and 2". In consequence, Issue No. 7 was answered in the affirmative holding that "the plaintiff has purchased the suit house and he, being the owner, has given it to defendant No.1 as his tenant." Issue No. 15 was also answered in the affirmative by holding" that defendant No. 1 was liable to pay to the plaintiff damages to the tune of Rs.15,000 on account of mental and physical torture". On Issue No. 5 the plaintiff was directed to affix court‑fee at Rs.75,000 which, it appears, had since been made good. As a sequel to the aforesaid findings, Issues Nos. 1 and 16 were also "answered in the affirmative". In consequence, while decreeing the suit, defendants Nos. 3 to 5 were also directed "to pay the court‑fee at Rs.60,000 and the interest thereon" within sixty days of the judgment and decree dated 22‑10‑1992.

6. Feeling aggrieved, the HBFC has filed the instant Regular First Appeal (No. 21 of 1993) while Fazal‑e‑Mehmood and Mst. Sherin Taj have filed Regular First Appeal No. 41/1993. Since both these appeals have arisen out of one and the same judgment and also involve identical legal and factual controversy, we propose to dispose of the same by this single judgment.

7. Before proceeding to consider the contentions raised at the Bar "on behalf of the parties, it seems appropriate to dispose of the preliminary objection raised by Mr. Muhammad Waris Khan, learned counsel for respondent No. 1 Ali Rehman, in both the appeals that R.F.A.. No. 41/1993 was barred by time having been filed on 29‑3‑1993 and not on 2‑3‑1993 as it purported to have been done. In this context, two‑fold arguments were advanced; firstly, that figure `9' has been elongated downward to make it look like a starting line and, secondly, that on 29‑3‑1993 Syed Asif Shah, the learned counsel for the appellants in R.F.A. No. 41/1993 had no power of attorney to file appeal under Order XLI, rule 1, C.P.C., which fact is confirmed in the order sheet dated 30‑3‑1993 in R.FA. No. 21/1993. What the learned counsel for the answering respondent precisely emphasized was that the office had manipulated the dates to bring the appeal within limitation. Thirdly, that the office could not have extended the time for affixing the court‑fee as has been done in the order sheets dated 2‑3‑1993 and 10‑3‑1993. His similar objection qua R.FA. No. 21/1993 is that the court‑fee therein having been made up on 16‑9‑1993 the appeal would be deemed to have been filed on the aforesaid date and hence barred by limitation. The learned counsel for the answering respondent, in support of his first contention, has cited: (i) Shahadat and others v. Hukam Singh (AIR 1924 Lahore 401) and (ii) Mst. Saddiqunnisa v. Khan Sahib Agha MuhammM Sultan Mirza and others (PLD 1972 Karachi 103). The ratio in both the authorities is that having regard to sections 4 and 28 of the Court Fees Act (VII of 1870) there is no legal appeal filed if the order appealed against is not properly stamped.

8. As against this, in the precedent case of Nur Ahmad v. Muhammad Jan Khan and others (PLD 1972 Peshawar 164) a similar preliminary objection was repelled holding that the deficiency in the court‑fee can be remedied under section 28 of the Court Fees Act. Respectfully following the dictum of this Court in the case cited above, we are also inclined to hold that the deficiency of court‑fee stands remedied under section 28 of the Court Fees Act and, therefore, R.FA. No. 21/1993 cannot be held to be barred by time on this score.

9. The assertion that R.FA. No. 41/1993 was filed on 29‑3‑1993 and not on 2‑3‑1993 as per record and that the office had `manipulated' it to bring the appeal within limitation, is not supported by an affidavit, notwithstanding our direction at the Bar to the learned counsel for the answering respondent. The presumption of truth is attached to the official record unless it is proved to the contrary. Nonetheless, we have minutely examined the aforesaid entries and have come to the conclusion that there is no substance in this wild allegation. The figures 2‑3‑1993" are in one line whereas the figure `9' like 9 figure is much higher than the other digits `2‑3‑1993'. We regret to observe that this objection raised on behalf of the answering respondent is a sheer wild allegation having no foundation at all.

10. The objection on account of failure to file power of attorney on behalf of Mst. Sherin Taj or by Fazal‑e‑Mehmood, appellant No. 1 in R.F.A. No.41/1993 is also not of any consequence. In Messrs Nabi Bakhsh and Sons v. Pakistan through the Secretary, Ministry of Industries and Natural Resources (PLD 1969 Karachi 210) it was held that where an application is signed and presented by a pleader to whom authority has not been given in the manner prescribed under rule 4 of Order III, C.P.C. it was mere irregularity which could be cured at a subsequent stage. The instant appeal had been duly signed by Syed Asif Shah, Advocate, and he had subsequently filed his power of attorney executed by Fazal‑e‑Mehmood, appellant, in person and as attorney of his wife Mst. Sherin Taj. The irregularity, if any, stood thereby cured. See also Ghulam Qadir and others v. Abdul Sattar and another (PLD 1984 SC 12).

11. On merits, it may be observed that the answering respondent having realised the legal lacuna had described the sale deed Exh. P.W. 1/1 as an agreement to sell although a bare reading thereof would make it abundantly clear that it was also a sale deed like the sale deed dated 14‑7‑1985 photo copy Exh. P.W. 1/4. Both of them or at least the one dated 14‑7‑1985 photo copy Exh. P.W. 1/4 being of immovable property, the transaction having been reduced into writing and the value thereof being more than Rs.100, it was compulsorily registrable under section 49 of the Registration Act (XVI of 1908). The said deed, therefore, did not create any valid title in favour of Ali Rehman, respondent. Then the dower deed attested copy Exh. P.W. 1/D.1 executed by Fazal‑e‑Mehmood, appellant No. 1 in R.F.A. No. 41/93 in favour of Mst. Sherin Taj, appellant No. 2 therein no doubt was subsequent in time but being registered would take precedence over the earlier unregistered sale deed allegedly executed by the latter in favour of the plaintiff‑respondent. The learned counsel for the answering respondent, when faced with the situation, attempted to take advantage of the provisions of section 53‑A of the Transfer of Property Act (IV of 1882) as a shield within the ratio of Inayatullah and others v. Shah Muhammad and others (PLD 1961 Lahore 372) subsequently followed in Umar Din v. Muhammad Boota (1983 CLC 156). The learned counsel could not, however, satisfy us that the provisions of Transfer of Property Act (IV of 1882) have been duly extended to the PATA in accordance with Article 247 of the Constitution of Islamic Republic of Pakistan, 1973.

12. The next proposition as to whether an equitable doctrine, such as the one contained in section 53‑A of the Transfer of Property Act, can override the specific provisions of section 49 of the Registration Act and that, in consequence, an unregistered document even though it requires registration, becomes operative and has the effect of nullifying the provisions of the Registration Act, was answered in the negative in the case of Mst. Shankri and others v. Milkha Singh (AIR 1941 Lahore 407). The ratio deducible from this precedent was later approved by the Supreme Court of Pakistan in Habibur Rehman and another v. Mst. Wahdania and others (PLD 1984 SC 424). While respectfully agreeing with the view taken up in the case of Habibur Rehman cited above, we are also inclined to hold that no equitable doctrine including the one contained in section 53‑A of the Transfer of Property Act can override the specific provision of section 49 of the Registration Act, so as to make an unregistered document create title, if it requires compulsory registration.

13. The next question is as to whether the documents photo copies Exh. P.W. 1/1 and Exh.P.W.l/4 have been legally proved. Closely linked therewith is the question whether the Evidence Act, 1872, has been made applicable to the PATA. The answer would be in the affirmative with reference to paragraph 2 of the Tribal Areas (Application of Laws) Regulation (No. I of 1976). We have, therefore, no hesitation to hold that the Evidence Act, 1872, has been made applicable to the area wherefrom the dispute in hand has emerged. In the instant case only one marginal witness and scribe had been examined but Fazal‑e‑Mehmood, appellant, had not been confronted with his signatures on both the aforesaid documents. The definition of the word `proved' in section 3 of the Evidence Act must, when applied to documents, be read in conjunction with section 67 of the Act. A document cannot, therefore, be held to be proved, as required by the Evidence Act, where there is no evidence that the signature purporting to be that of the executant is in the handwriting of the executant, even if the Court considers, as in the instant case it did, the execution so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that there had been execution. In the case of a document required by law to be attested, proof of execution in addition to proof of attestation is necessary. We are, therefore, of the considered opinion that, besides the evidence of an attesting witness and that of the scribe of the two aforesaid questioned documents, the signatures of the executant, namely, Fazal‑e‑Mehmood, appellant, ought to have been proved first by confronting him and if he disowned it then the provisions of the Evidence Act would be attracted and one or more of modes of proof of signature of Fazal‑e‑Mehmood, appellant, shall be pursued.

14. The following are modes of proving a signature or handwriting recognized by‑the Evidence Act:‑‑ "(i) By calling the person who signed or wrote the document. (ii) By calling a person in whose presence the document was signed or written. (iii) By calling a handwriting expert. (iv) By calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written. (v) By comparing in Court the disputed signature or writing with some admitted signature or writing. (vi) By proof of an admission by the person who is alleged to have signed or written the document that he signed or wrote it. (vii) By the statement of a deceased professional scribe, made in the ordinary course of business, that the signature on the document is that of a particular person. (viii) A signature is proved to have been made if it is shown to have been made at the request of a person by some other person, e.g., by the scribe who signed on behalf of the executant. (ix) By other circumstantial evidence."

15. Now reverting to the contention of the learned counsel for Ali Rehman, respondent No. 1 in both the appeals, suffice it to say that excepting some slight irregularity the claim of HBFC qua the house in dispute is fully substantiated. The appellants/defendants Nos. 3 to 5 had advanced the loan after obtaining `No‑Objection Certificate' photo copy Exh. P.W. 7/3; the registered dower deed attested copy Exh. P.W. 1/D.1, the acknowledgement deed Exh. D.W. 7/5, Deed of Assignment copy Exh. D.W. 8/1 and Letter of Acceptance Exh. D.W. 7/1. merely because the house in dispute had not been rebuilt or it was not entirely built in accordance with the approved site plan as per report of the local commissioner would not be enough to cast shadow of doubt on the rights of the appellants in R.F.A. No. 21/1993. The disputed house shall continue to remain encumbered till the loan amount alongwith all due charges and share in the rents etc. have not been satisfied.

16. In the circumstances, we are satisfied that the learned trial Judge had erred to decide Issues Nos. 7, 8, 9, 10, 11, 12 and 16 in favour of Ali Rehman, respondent No. 1 in both the appeals. We would, therefore, set aside the findings aforesaid given by the learned trial Judge. Nontheless, we consider that if Ali Rehman, respondent, is so advised to sue Fazal‑e‑Mehmood, and is able to prove the execution of the deeds photo copies Exh. P.W. 1/1 and Exh. P.W.1/4 he may do so in a separate suit solely against him and/or Mst. Sherin Taj for the amount advanced to Fazal‑e‑Mehmood and other claims against him of sale etc., under the aforesaid deeds under the mistaken belief.that the transaction was complete whereas in fact it was incomplete for want of registration of the deed purporting to effect the transfer which had yet to be completed. Consequently, Ali Rehman, respondent, cannot claim, in these circumstances, any title as an owner in the disputed house, whether as a legal or as an equitable owner but subject to all just and valid exceptions he would perhaps have a second charge on the disputed house for the amount paid by him towards the purchase thereof with any other equitable relief the Court may be legally competent to grant him. The respondent, Ali Rehman, may if so advised, bring an independent suit against the defendants/respondents Nos. 1 and 2 in the light of our above observations which would not be hit by either doctrine of res judicata or the bar of Order II, rule 2, C.P.C. Resultantly, both the appeals are accepted and the suit filed by Ali Rehman, respondent, stands dismissed leaving the parties to bear their own costs. AA./1662/P Appeal accepted.