2007 PLP 1867 (SCMR)

SYED JAMSHED ALI, J.

This appeal, by leave of the Court, by the plaintiffs in the .suit is directed against -the judgment dated 8-4-2003 of the learned Lahore High Court passed in Civil Revision No.341-D of 1997, impugned herein.

2. Their case was that Barkat Ali, predecessor-in-interest appellants Nos.1 to 4, Inayat Ullah, predecessor-in-interest of appellants Nos.5 and 6, Hidayat Ullah, appellant No.7, Muhammad Sharif respondent No.1, and Akbar Ali deceased, now represented by respondents Nos.2 to 7 were the real brothers. The appellants collectively owned land measuring 65 Kanals, 5 Marlas in Chak No.136-RB, Faisalabad, while. Muhammad Sharif respondent No. 1 owned land measuring 162 Kanals and 9 Marlas in Chak No.55-P, Tehsil Rahim Yar Khan in a joint holding' with the appellants. On 27-12-1967, Muhammad Sharif appointed Akbar Ali deceased as his general attorney, through a registered instrument which was, however, revoked on 29-8-1978. The plaintiff averred that by way of "Khangi Taqseem' they had exchanged-their land in Chak No.136-RB, Faisalabad, with the land of Muhammad Sharif in Chak No.55-P, Tehsil Rahim Yar Khan. Initially, it was an oral transaction, which was, however, affirmed by an unregistered deed of exchange executed on 11-2-1969, it was also their case that the parties were put into possession of the exchanged areas. However, on 26-11-1985, Muhammad Sharif, respondent No.1, filed an application for partition of land in joint Khata in Chak No.55-P, Tehsil Rahim Yar Khan, with the averment that he was a co-sharer along with his brothers to the extent of 162 Kanals and 10 Marlas. As a reaction thereto, on 22-2-1986, the appellants filed a suit for specific performance of the agreement dated 11-2-1969 and in the alternative claimed title by prescription. The suit was contested. A number of objections were taken. As far as the power of attorney is concerned, it was specifically averred that Muhammad Sharif, respondent No.1, had not authorized Akbar Ali to sell, mortgage or exchange the land in question. An objection as to the genuineness of the copy of the power of attorney produced by the plaintiffs-appellants was also taken. It was further averred that the property had never been partitioned, it continues to be joinf and the so-called exchange was totally baseless.

3. After necessary issues were framed, the parties led evidence, oral as well as the documentary, in support of their contentions. The learned trial Court was of the view that plaintiffs had been able to prove their case i.e. the agreement of exchange. Accordingly, the suit was decreed on 2-10-1996. On appeal of the defendants-respondents the learned First Appellate Court found that the power of attorney, was not proved and that the document dated 11-2-1969 (exchange deed) was a forged document. This was vide judgment, dated 16-7-1997 of the learned First Appellate Court. The revision petition taken by the plaintiffs before the learned High Court failed -vide judgment, dated 8-4-2003 impugned in the present appeal.

4. The learned counsel for the appellants has relied on the reasoning of the .learned trial Court to contend that the suit of the plaintiffs was rightly decreed because the agreement to exchange was duly proved by the scribe, F.W.1, and both the marginal witnesses i.e. P.W.3 and P.W.S. It is next contended that the learned First Appellate Court had received additional evidence which was rightly excluded by the learned High Court and, therefore, the case should have been remanded. He submits that since 1962-63, the plaintiffs are in possession of the land which by itself was a strong circumstance establishing factum of exchange. It is, however, maintained that Muhammad Sharif, who had appeared as defendant No. 1 had admitted the family settlement of the entire property. He further contends that in fact the learned two Courts below misread the evidence in dismissing the suit of the plaintiffs-appellants.

5. Mr. Gul Zarin Kiani, Advocate Supreme Court represents the respondents. He contends that after excluding the additional evidence by the learned High Court there was sufficient evidence on the record to decide the case finally. Reliance was placed on Dandapani Das v. Mohan Nayak and others AIR 1954 Orissa 67 to contend that exclusion of additional evidence by the learned High Court would hardly be a ground to remand the case. The so-called oral exchange was never reelected in the Revenue Record, merely because the co-sharers are in possession of their respective shares does riot amount to partition, execution of power of attorney, particularly the power, to inter alia, exchange the property was specifically questioned, the original power of attorney was neither proved nor permission to produce secondary evidence was obtained. He maintains that in case contents of the power of attorney are disputed these were required to be formally proved. Reliance was placed on Syed Mansoor Ahmad v. Mst. Magbool Begum and others 1990 SCMR 1259, Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245 and Ch. Muneer Hussain v. Mst. Wazeeran Mai alias Mst. Wazir Mai PLD 2005 SC 658. 1t was next contended that the so-called agreement to exchange lacked mutuality as Muhammad Sharif was not signatory thereto and therefore, it was not enforceable. It was also maintained that the .alleged agreement was dated 11-2-1969 while the suit having been filed on 22-12-1986, after 17 years, suffered from gross laches and it was, therefore, unjust and inequitable to grant specific performance. This, according to him, is without prejudice to the submission that it was not proved on record that Muhammad Sharif had authorized exchange of his property with the property which was obtained in exchange.

6. We have considered the .submissions of the learned counsel for the parties. Muhammad Sharif had not only denied the agreement dated 11-2-1969 but had categorically stated that the certifiers copy of the power of attorney produced on the record was not the correct copy of the original and also that he had not authorized Akbar Ali to exchange his land in Rahim Yar Khan. In fact the fate of the case depended on the answer to the question whether the agreement of exchange dated 11-2-1969 was executed by a duly constituted attorney? As far as the deed of attorney is concerned, it is a registered document, Akbar Ali owns it and he was the only witness thereto but since Muhammad Sharif had categorically denied having empowered Akbar Ali to alienate or exchange his land, this covenant was specifically required to be proved. Akbar Ali (as P.W.1) stated that after revocation of the deed of attorney the original power of attorney was given to Muhammad Sharif. The plaintiffs should have endeavoured to bring on record the original power of attorney through notice to produce and in the alternative secondary evidence led to prove that Muhammad Sharif had duly authorized Akbar Ali to exchange his land.

7. The scribe appeared, as P.W.2, but his statement was not recorded because he did not have the register in which the general power of attorney was entered P.W.3 and P.W.5 were produced as marginal witness to prove the agreement, dated 11-2-1969. The learned First Appellate Court took notice of their testimony in the context of the averments of the plaint. Paragraph 4 thereto was, specifically referred to, a bare reading of which shows than the plaintiffs had claimed execution of two documents one by Akbar Ali (11-2-1969) of the land of Muhammad Sharif' and the other by the three brothers in respect of their land in Faisalabad. However, perused of the agreement, dated 11-2-1969 shows that it contained both the transactions which was the basis for the learned First Appellate Court to hold that the agreement dated 11-2-1969 was a forged document. As far as P.W.3 is concerned, he was disbelieved for the reason that on the date of execution of this Iqrarnama (11-2-1969), he was a boy of 13/14 years of age and later on 21-2-1971 was married to Mst. Shamim, appellant No.4. It was further noted that while the agreement was executed in Chak No.72-NP, P.W.3 was resident of Chak No.83 which was at a distance of 25 miles from Chak No.72-NP. As far as P. W. 5 is concerned, he was resident of Chak No.107-P which was at a distance of 15/16 miles from Chak No.72-NP. Hidayat Ullah, one of the plaintiffs was "Behnoi" of his witness. Other discrepancies in the matter of execution of Iqrarnama were also noted. It was also observed that Muhammad Sharif had spent every penny of his earning to purchase property in Rahim Yar Khan and he wanted to settle in Rahim Yar Khan. Therefore, it was not probable that he would exchange his property. As far as Akbar Ali, attorney is concerned, it was observed that he was in league with the plaintiffs-appellants.

8. As far as the so-called oral exchange or "Khangi Tagseem" is concerned, there was no evidence nor it was reelected in the Revenue Record. It may also be observed that mere possession of co-sharers on their respective "Wandas" does not amount to "Khangi Taqseem" either. The learned High Court concurred with the conclusion of the learned First. Appellate Court that the agreement, dated 11-2-1969 was not proved and the question whether the evidence of execution of this agreement should or should not have been believed is plainly outside the scope of the present proceedings.

9. We have also noticed that the so-called exchange was allegedly executed on 11-2-1969 but the suit for specific performance was filed on 22-12-1986, after more than 17 years. Relief of specific performance being otherwise discretionary this delay of 17 years by itself was a ground to refuse specific performance.

10. As far as the contention of the learned counsel for the appellants that after the order of the learned First Appellate Court allowing additional evidence was set aside, the learned High Court should have remanded the case, has no merit. This Court has, on a number of occasions, reiterated that if evidence on record is sufficient, the Court of appeal should finally decide the matter rather than remanding it to the subordinate forum. Such a course is not only permissible under rule 24 of Order XLI of the Code of Civil Procedure but is desirable as well because by avoiding remand the parties are saved of the torture of another round of litigation.

11. For what has been stated above, we see no merit in this appeal which is dismissed with no order as to cost. M.H./M-52/SC Appeal dismissed.