2006 PLP 1053 (SCMR)

FAQIR MUHAMMAD KHOKHAR, J.

The petitioners seek leave to appeal against judgment dated 8-5-2000, passed by a learned Single Judge, Lahore High Court, Lahore in R.S.A. No.1010 of 1978. (2). Late Aziz Muhammad, the respondent No.l, was allotted evacuee land measuring 712 Kanals and 5 Marlas situated in Mauza Jhok Mahar, Tehsil Jampur, District Dera Ghazi Khan, against his verified claim. The same was sold to Ghulam Muhammad predecessor-in-interest of the petitioners, for consideration of Rs.39,100 vide Mutation No.828, dated 30-3-1962, by Muhammad Ahmed who was nephew, son-in-law and general attorney of late Aziz Muhammad. Out of the said land, a suit for possession through pre-emption filed by one Nazir Muhammad, the respondent No.12, against the petitioners in respect of 212 Kanals and 5 Marlas was decreed. On the application of the respondent Aziz Muhammad, the District Collector granted permission for review of Mutation No.1828. The revision petition filed by the petitioners thereagainst was also dismissed by the Additional Commissioner. Therefore, the petitioners filed a suit for declaration in respect of the suit-land measuring 590 Kanals and 6 Marlas. The respondents Aziz Muhammad also filed a civil suit against Mutation No.1828 which was withdrawn by him. The civil suit of the petitioners was dismissed by the Civil Judge, Jampur, by judgment and decree dated 22-6-1977. The appeal filed by the petitioners was accepted by the Additional District Judge, Dera Ghazi Khan, by judgment and decree dated 8-11-1978. However, R.S.A. No.1010 of 1978 of the respondents was allowed by a learned Single Judge of the Lahbre High Court, Multan Bench, by the impugned judgment dated 8-5-2000. Consequently, the civil suit of the petitioners stood dismissed. Hence this petition for leave to appeal. (3). The learned counsel for the petitioners argued that the execution of general power-of-attorney (Exh.D.13) by the respondent Aziz Muhammad in favour of his nephew and son-in-law Muhammad Ahmed was admitted whereby the general attorney was empowered to alienate the land allotted and confirmed against Claim No.2143 equal to 857 P.I. Units. The respondent Aziz Muhammad was allotted and confirmed the land in Mouza Jhok Mahar, Tehsil Jampur, District Dera Ghazi Khan vide (Exh.D.12) against his claims including Claim No.2143. Therefore, the said general attorney had duly sold out the land measuring 712 Kanals and 5 Marlas of Mouza Jhok Mahar in favour of the petitioners through Mutation No.1828, dated 30-3-1962. It was lastly submitted that the trial Court as well as the High Court had misread the material evidence on record in arriving at a different conclusion by dismissing the civil suit of the petitioners. (4). On the other hand, the learned counsel for the respondents argued that Claim No.2143 equal to 857 P.I. Units of late Aziz Muhammad respondent had already been satisfied in other villages Nawan Chak, Patni, Sakhoon Basti and Sowaha, vide Exhs.D,8, D.9, D.10 and D.11. Therefore, nothing was left out of the said claim to be allotted in village Jhok Mahar. The learned counsel vehemently contended that it was Claim No.4029 and not the Claim No.2143 of the respondent which had been adjusted in Mouza Jhok Mahar. Therefore, the sale of the suit-land situated in village Jhok Mahar by Muhammad Ahmed general attorney in respect of Claim No.2143 equal to 857 P.I. Units was illegal, void and inoperative against the rights and title of the respondents even if the general power-of-attorney was considered to be a valid document. The learned counsel lastly submitted that out of the remaining suit-land the respondents were already in lawful possession of 22 acres of land in Mouza Jhok Mahar. (5). We have heard the learned counsel for the parties at length and have also perused the available record. We find that general power of attorney dated 4-7-1961 (Exh.D.13) was produced by the respondents themselves. Therefore, it was no longer open to the respondents to challenge the validity of the same. In the general power-of-attorney (Exh.D.13), the respondent late Aziz Muhammad had empowered his nephew and son-in-law Muhammad Ahmed to get the allotment and confirmation of land against Claim No.2143 equal to 857 P.I. Units and to alienate the same thereafter, the document (Exh.D.12) produced by the respondents also shows that land measuring 712 Kanals and 5 Marlas situated in Mouza Jhok Mahar, Tehsil Jampur was confirmed by Assistant Rehabilitation Commissioner (Land) on 20-8-1961 in favour of late Aziz Muhammad against his Claim Form Nos.2143 and 4029 etc. The documents Exhs.D.9 and D.11 show that the respondent Aziz Muhammad was allotted and confirmed land in villages Patni and Sowaha, Tehsil Jampur, District Dera Ghazi Khan on 30-8-1961 and 27-9-1993 against Claim No.2143 subsequent to the confirmation of land at village Jhok Mahar. Therefore, the sale of land by the general attorney Muhammad in favour of the petitioner through Mutation No.1828, dated 30-3-1962 seems to have been duly made. The trial Court as well as the High Court had misread material evidence on record. The impugned judgment by the High Court is not sustainable at law. (6). For the foregoing reasons, this petition is converted into an appeal and the same is allowed. Consequently, the judgments of the High Court and of the trial Court are set aside and that of the First Appellate Court is restored. There shall be no order as to. costs. M.H./G-44/SC Appeal allowed.