For challenging a document we are clear in our mind that there must be specific pleadings. In the instant case as the plaintiff has stated that he never appointed anyone as his attorney, meaning thereby that he is denying whole of the document i.e. attorney on his behalf in favour of defendant No. 2 which includes that he never signed or thumb marked the document, he never appeared before the Registrar for registration of the said document. In that eventuality his case is that no such registered document exists on his behalf in the registration book kept under the Registration Act whereas we have noticed that as PW-1 a Record Keeper from Sub-Registrar office i.e. Registry Moharrir was produced by the plaintiff-respondent himself who brought the record of registration of document No. 1984 dated 28.4.2007 a power of attorney by plaintiff in favour of defendant No.2 and a true and correct copy of said document got exhibited as Exh.PWl/1. This witness was cross-examined by the learned counsel for defendant No.l to 3 and in the cross-examination he has stated that it contains the signatures of executor of document as well as witnesses which are correct and further stated that one of the witnesses is Rizwan Dawood whose father’s name is Dawood Khan. Further stated that nothing of the sort that power of attorney was subsequently cancelled or any application was moved for cancellation of the same had been produced before the Court.
When questioned to the learned counsel for plaintiff/respondent No.l that when the said witness was produced by the plaintiff himself and he got exhibited the Photostat copy of the said document as Exh.PW-1/1 being a registered document when original record was also before the Court, the presumptions attached to the said document were fully attached to the said document and further that when the plaintiff himself got exhibited the copy of the registered power of attorney as Exh.PW-1/1 and further that when the learned counsel for defendant Nos.l to 3 cross-examined the said witness and no objection was raised by the plaintiff upon crossexamination of the said witness and further no request was made by the learned counsel for the plaintiff to permit him to cross-examine the witness, refers Article 134 of the Qanun-e- Shahadat Order, 1984 that the person who produced the record cannot be cross-examined. We are afraid that in the instant case the plaintiff has produced this witness as to produce the record as well as got exhibited in his statement copy of the said power of attorney as Exh.PW-1/1 and further not raised any objection that learned counsel for respondent Nos.l to 3 cross-examined the said witness. It is admitted that the document, power of attorney which was challenged through the suit, the record of registration was got summoned by the plaintiff himself and the copy thereof was got exhibited as Exh.PW-1/1by the plaintiff himself. In these circumstances, one of the witnesses who is real brother of the plaintiff, non-production of the said witness is not defective in the light of Article 79 of the Qanun-e-Shahadat Order, 1984.
In the instant case we are clear in our mind that plaintiffrespondent who has not specifically challenged the execution and registration of power of attorney in his pleadings when his case is that he has seen said document in the office of City Development and Municipal Department, further he himself produced the copy of said document as Exh.PW-1/1 and failed to discharge initial onus of negation of the registration of the document, it was very easy and simple for the plaintiff to get his signatures and thumb impression upon the impugned document compared with his sample signatures and thumb impressions but he has not opted to initiate this legal process. In these circumstances, when plaintiff failed to discharge initial onus, no question of shifting of onus upon the vendee/defendant or Attorney who has fully supported that he being validly constituted attorney of the plaintiff, sold the plot to defendant No. 3 who was initially not made party to the suit and was subsequently made party and further defendant No. 3 sold the plot to defendant No. 1 the petitioner before this Court. When plaintiff-respondent failed to prove that he did not appoint defendant No. 2 failed as his general attorney and to rebut the presumptions attached with the document Exh.PWl/1 rather he himself proved the existence of registered power of attorney by him in favour of defendant No. 2, no question of any illegality in the transfer of the suit plot by his attorney in favour of defendant No.3 and then transfer of suit plot through another registered sale deed in favour of defendant No. 1/the petitioner arises. Plaintiff failed to plead and produce evidence that why he has not raised any objection with regard construction of house upon the suit plot by the petitioner/defendant No.l
We are further of the view that when registered power of attorney by plaintiff in favour of defendant No. 2 proved, plaintiff was if at all having the right to challenge the suit document through filing a suit for cancellation of document under section 39 of the Specific Relief Act, 1877 and not a suit for declaration filed under section 42 of the Act.
In these circumstances, the findings recorded by the learned trial court dismissing the suit are in accordance with the record. Resultantly, we allow this petition, convert it into an appeal and accept the same while setting aside the judgment and decree of the learned revisional court as well as first appellate court and that of learned trial court dismissing the suit will hold the field.
C.P.L.A.3877/2023
Shah Madar Khan v. Tariq Daud and others Mr. Justice Amin-Ud-Din Khan 09-05-2024
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