Saeed-uz-Zaman etc Vs Adil Shah etc

PESHAIIIAR HIGH COURT, PESHAUIAR

(JUDICIAL DEPARTMENT)

CR No. 355-P/2017

Saeed-uz -Zaman and another.

.....Petitioners.

V/s

Adil Shah and 03 others

Respondents

For the Petitioners: Mr. Gul Sadbar, Advocate For the Respondents: Sahibzada Ahmad Yar, Advocate.

Date of hearing: 03.06.2024

SYED ARSHAD ALI. J:- This Civil Revision is directed against the concurrent findings of two courts below whereby suit of the plaintifflrespondent No.l was decreed by the learned trial Court vide judgment/decree dated 08.03.2017, which deoree was affirmed by the leamed Appeal Court vide judgmenUdecree dated 22.05.2017 .

2.Brief facts of the case are that the plaintifflrespondent No.l had filed a suit before the leamed Civil Court at Charsadda seeking a decree for declaration along with permanent mandatory prohibitory injunction to the effect that he is owner in possession of property measuring 04 kanals bearing khasra No. 1165 situated at Tangi Batazai, Charsadda on the basis of sale deed bearing No. 1300 dated 15.01 .2007 ,t1 followed by registered sale deed bearing No. 35 attested on << 1 1 .01 .2010 and the petitioners have no right to cancel the said sale deeds, therefore, the orders of cancellation of sale deed by defendants/respondents No. 3 & 4 dated 23.06-2010 and 18.10.2010 are against law, facts and thus; liable to cancellation. He also sought direction to the defendants for cancellation of mutation bearing No. 12055 dated 10.10.2011 and order dated 23.06.2010 and coffection of revenue record in his favour on the basis of registered sale deed bearing No'

35 dated 1 1.01 .2010. In alternative, the plaintiff seeks \J recovery of possession of disputed property if during pendency of suit he is dispossessed by the defendants.

3.On being noticed, the petitioners/defendants contested the suit by filing written statement; denying the contention of plaintiff on various legal and factual grounds. From divergent pleadings of the parties, eight (08) issues were framed and accordingly both the parties were directed to adduce their respective evidence, which they did. At the conclusion of trial, suit of the plaintifflrespondent was decreed vide judgment/decree dated 08.03.2017.The said finding was also affirmed by the learned Appeal Court vide impugned judgment/decree dated 22.05.2017 .

4.Arguments heard and record perused.

5.It is evident from record that the entire claim of the plaintifflrespondent rests on the registered instrument/deed bearing No. 35 attested on 1 1.01 .2010 (Ex.PW.3/1). According to this deed, Muhammad Azam Khan had transferred land measuring 04 kanal, fully described in the deed, to Adil Shah son of Noor Ali Shah against sale consideration of Rs. 100,000/-: Later on the purported request of Muhamm ad Azam Khan/the seller, the said deed was cancelled by DDOR/Sub-Registrar Tangi vide order dated 23.06.2010. Thus, the first essential question for adjudication before the Court was the jurisdiction of the Registrar to cancel the deed. I have perused the Registration Act, 1908 ("Act, 1908") and could not come across any provision in the Act, 4=z- 1908 empowering the Registrar to recall a registered deed. Similarly, learned counsel representing the petitioners when asked could not refer to any provision of the Act, 1908 empowering the Registrar to cancel/recall any registered deed. Indeed, it is settled law that once a sale deed has been registered, the Registering Authority has no power or authority under the Registration Act, 1908 to cancel the registration, even if the atleged allegation of impersonation or fraud is

alleged. Park Via,v Enterprises vs. State qf Tamil Nadu (AIR v 1990 Madras 251).

In the matter of Satva Pal Anand vs. State of Madhya Pradesh (2016) l0 SCC 761, the question that arose for adjudication before the Apex Court of lndia was "whether Sub-Registrar (Registration) has authority to cancel the registration of any document? " Taking note of the scheme of the enactment (The Registration Act, 1908) it was observed that:

"i4. The role of the Sub-Registrar (Registration) stands discharged, once the document is registered... Section 17 of the Act of 1908 deals with documents which require compulsory regtstration. Extinguishment Deed is one such document referred to in Section 17 (I) (b). Section 18 of the same Act deals with documents, registration whereof is optional. Section 20 of the Act deals with documents containing interlineations, blanks, erasures or alterations. Section 2l provides for description.of property and maps or plans and Section 22 deals with the description of houses and land by reference to Government maps and surveys. There is no express provision in the Act of 1908 which empowers the Registrar to recall such regtstration. The fact whether the document was properbt presented .for registration cannot be reopened bv the Registrar after its registration. The power to cancel the resistration is a substantive matter. In absence of aryt exp!'ess provision in that behal.f, it is not open to assume that the Sub-Registrar (Reoistrationlwould be competent to cancel the registration of the documents in question. Similarllt. the power of the Inspector General is limited to do supertntendence o.f registration ofrces and make rules in that behalf, Even the Inspector General has no power to cancel the registration of anlt document which has alreadJt been registered. (emphasis added)

Therefore, the impugned order of DDOR dated 23.06.20L0 was obviously illegal and without lawful authority.

6.Regarding the execution of sale deed dated 11.01 .2010 (Ex.PW.3/1), the ptaintiff has produced Javed Khan (PW-06), the marginal witness of the said deed, however, the most pivotal witness was Fazal Dayan Girdawar Circle, who was appointed as a commission for recording the statement of vendor on the said deed. The said Fazal Dayan appeared

before the Court as PW-04 and has stated that the registered deed was signed by the vendor at his house. He has fuither stated that the statement of vendor was recorded on the disputed document on I1.01.2010 and on the same day, he had also recorded statement of the said vendor on other mutations bearing No. 11869 and 11870, where too he was appointed as a commission, whereby Muhammad Azam Khan had transferred certain property to Mst. Mukhtiar Kausar & Mst. Saima. However, the interested fact of the case is that Muhammad Azam Khan had later transferred the same property to Saeed-uz -Zaman, the defendant/petitioner. However, neither Saeed-uz -Zaman nor Muhammad Azam Khan personally appeared before the Court in support of their defence. The petitioners were represented by Waheed-uz- Zaman who is the real brother of Saeed-vz-Zaman before the Court being attorney of both. The said Waheed-uz-Zamanhas only produced in his evidence the perth patwar of subsequent mutation bearing No. 12055 and the original mutation was never produced before the Court whereby the properly was subsequently purchased by Saeed-uz -Zaman.

7.The close perusal of the entire evidence would show that the preponderance of the evidence tilts in favour of the plaintiff. Both the Courts below have concurrently upheld the execution of the registered sale deed (Ex.PW.3/l) which is otherwise corroborated and established by the evidence available on record. Thus, the concurrent findings of both the courts below based on coffect appreciation of evidence, do not call for any interference.

8.Resultantly, this petition having no merit is4ccordingly dismissed.

=F

Judee Date of hearing and announcement ofjudgment. 03.06.2024

Date of preparation and signing ofjudgment. ...05.06.2024

Nawab Shah CS (SB) Justice Syed Arshad Ali