P L D 1957 (W (PLP)

CONSTANIINE, J.

This is a first appeal against the judgment of the First Class Sub-Judge, Hyderabad Mr. A. C. Mohammadally, decreeing a suit for possession of land. The main issue and the only issue argued by Mr. Jamiatrai on behalf of the defendant-respondent was whether the sale deed, alleged to have been executed by the defendants, had in fact been executed by him in favour of the deceased whose heirs are the plaintiffs. The sale-deed produced purports to have been executed by the defendant in favour of Sodho whose death (the defendant was tried and acquitted of his murder) occurred before the suit was filed and whose evidence was therefore not available at the hearing of the suit. The plaintiffs, on whom the burden of proof lay, led the evidence of the attesting witness and produced the statement of the scribe. The date of the document is 15th February 1945, and by the time the suit was heard, the scribe, a Hindu, had migrated to India and on behalf of the plaintiff the witness Mewo stated that his whereabouts were not known, as is in accordance with the ordinary course of events. The defendant did not appear before the Sub-Registrar, and the Sub-Registrar referred the question of registration to the Additional District Registrar who issued notice which admittedly was received by the defendant for the purpose of deciding whether registration should be ordered or not. The scribe's statement was taken by the Registrar. Sections 74 and 75 empower the Registrar to make an enquiry whether the document has been executed and for this purpose, to summon and enforce the attendance of witnesses and to compel them to give evidence as if he were a civil Court. The Registrar therefore, was a person authorised by law to take evidence. Proceedings were between the same parties or their representative-in-interest. The defendant had the right and the opportunity to cross-examine and the question in issue, namely, the execution of the document was the same in that enquiry as in the suit. The condition precedent, that the witness cannot be found or obtained without an amount of delay or expense which under the circumstances of the case the Court considers unnecessary has been fulfilled. We, therefore, agree with the learned Subordinate Judge that this statement was admissible under section 33 of the Evidence Act. The document was executed according to the plaintiff's case at Gagumal's shop at Math. The only criticism of the attesting witness Habib is that he has stated that at the time Mewo the brother of the deceased was present, but Mewo himself has not claimed that he was present. That the parties did meet at the shop is also the case of the defendant. His case, however, is that he had to pay the deceased Sodho a balance of Rs. 1,000 due for land purchased from Sodho, and for this purpose Sodho obtained 2 signatures from him on blank papers. The evidence of the defendant does not make it clear why his signatures on blank papers were required, but in the written statement a reason had been given, namely, that he had no interest in the 4&fendant's property. The defendant examined two witnesses, one Kaisar and the other Imambux. Imambux has supported the story of the defendant that Rs. 3,810 had been received by Sodho towards the sale alleged by the defendant of Sodho's land. The learned Sub judge considered that this story is false and we agree with his reasoning that the defendant has not explained why he has taken no steps to attempt to recover this amount. The evidence of Kaisar was criticised on the ground that he was a chance witness. In appeal it is to be remembered that the trial Court had the advantage of hearing and seeing the witnesses except Gagumal and the appellate will give much weight to the trials Court's appreciation of the oral evidence. The circumstances of the case indicate nothing which would cause us to differ from the appreciation of the evidence now before us. The result is that the appeal is dismissed with costs. A. H.??????????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.