1986 PLP 161 (MLD)

(c) Civil Procedure Code (V of 1908)‑‑ ‑‑‑ S.115‑‑Concurrent findings of Courts below‑‑Authenticity‑ Concurrent findings of facts of Courts below that disputed sale‑deed was obtained by fraud and special power of attorney was not executed by respondent had not been assailed except on ground which were considered untenable in law‑‑Concurrent findings of Courts below, upheld in circumstances. Niazi Abdul Khaliq for Applicant. M. Rafiq Khanzada for Respondents. Date of hearing: 23rd September, 1985. One Rora Khan the predecessor‑in‑interest of the respondents Nos. 1 to 4 filed a suit against the applicant and the respondents Nos. 5 and 6 for declaration, injunction and cancellation of the sale‑deed in respect of Survey No.378‑11/1, 11/2 and 5 Tando Allah Yar executed by Allah Yar as attorney of Rora Khan in favour of the applicant. Allah Yar acting as Special Attorney of Rora Khan executed a sale‑deed in favour of the applicant on 7‑10‑1971 for consideration of Rs.3,000., Rora Khan claimed that he had never appointed Allah Yar as his attorney, and the applicant has obtained the sale‑deed by fraud. The applicant relied on the registered sale‑deed and pleaded that Rora Khan had through his attorney transferred the property in his favour for consideration. The trial Court came to the conclusion that Rora Khan had not executed any power of attorney in favour of Allah Yar, and therefore, the sale‑deed was obtained by fraud. The suit was decreed and sale‑deed was cancelled. The applicant Med an appeal against the judgment and decree passed by the learned trial Court which was dismissed by the impugned judgment. Mr. Niazi Abdul Khaliq the learned counsel for the applicant contended that the sale‑deed was a registered document, and in view of section (87) subsection (2) any defect in the authority of the attorney would not invalidate the registered document, nor it will effect the transaction. Section (87) subsection (2) provides that any defect or want of authority of a person to present a document shall not by itself render invalid the registration of document, nor the transaction will be effected by it. The protection has been given only in cases where the authority of a person who has been authorised to present a document is defective. The presentation of document is completely different from the execution of document. A document can be presented by any authorised person, but such document is executed by the executant himself or his attorney. The person authorised to present document is only authorised to present it, admit the signature of the executant and not to execute it himself. In these circumstances, section 87 cannot has applied executed claiming to be an attorney of Rora Khan has executed the sale-deed. The learned counsel for the applicant then contended that before a document is registered, the Registering Officer is required to make proper inquiry and after being satisfied about the authority of the attorney he would register the document and as the sale‑deed has been registered, it should be presumed that Allah Yar Khan had proper authority and power of attorney from Rora Khan. In this regard the learned counsel has relied on section 34, subsection (3)(c) of the Registration Act. The learned counsel further referred to Rule 137 of the Sind Registration Manual which provides that "Special Powers of Attorney for registration purpose are to be produced before the Registering Officer and are to be retained and filed in original. If General Powers be so produced copies of such to be retained and filed on Court‑fee stamp of one rupee". Relying on this Rules, the learned counsel contended that the original power of attorney would b available with the Registering Officer, and it was therefore, necessary for the Rora Khan to summon and produce the special power of attorney to establish that it was not executed by him. The burden is on the applicant to show that power of attorney was executed by Rora Khan. It was his duty to have summoned this document from the Office of the Registrar. Mr. Rafiq Khanzada, the learned counsel for the respondents Nos.1 to 4 has invited my attention to Exh.67 the evidence of Abdul Rahim D.W.1 who is a Clerk of Sub‑Registrar Office, Mehar. He has produced registered sale‑deed and confirmed that it was registered in his office. He also stated that it was executed by Allah Yar attorney of Rora Khan. In cross‑examination he has stated that the power of attorney is inspected at the time of registration, and only a reference of the power of attorney is mentioned on the record and copy of original power of attorney is not retained on record. It has been established that no power of attorney was retained on record by the Registrar, and therefore, one cannot conclude that the non‑production of the power of attorney should lead to the conclusion that the applicant has established the fact that it was executed by Rora Khan. Mr. Khanzada has rightly contended that the Courts below have given a concurrent finding of fact that the sale‑deed has been obtained by fraud and the special power of attorney was not executed by Rora Khan. This concurrent finding of fact has not been assailed except on the aforestated grounds which are not tenable in law. For these reasons by a short order the Revision Application was dismissed with cost. H . B . T . Revision application dismissed.