2007 PLP 2865 (YLR)

JAWWAD S. KHAWAJA, J.

Mst. Bhagoo petitioner-plaintiff impugns the concurrent decrees of the learned trial Court dated 17-5-2004 and of the learned Appellate Court dated 7-2-2006 whereby a declaratory suit filed by her claiming title to the suit land measuring 7 Kanals 3 Marlas and also praying for cancellation of documents (Exh.P.1 and Exh.P.2), has been dismissed.

2. The facts of this case are straightforward. The petitioner, admittedly, was the owner of the suit land. The respondents are the legal heirs of Fateh Muhammad who was the brother of Mst. Bhagoo. They claim that Mst. Bhagoo had executed and registered a power-of-attorney (Exh.P.1) dated 13-10-1975 in favour of her husband Muhammad Arshad, inter alia, authorizing him to sell her property. According to the respondents-defendants Muhammad Arshad, in exercise of powers vested in him under Exh.P.1 executed and registered a sale-deed (Exh.P.2) on 24-5-1976 in favour of Fateh Muhammad.

3. The case set up by the petitioner-plaintiff was that Fateh Muhammad, who was here brother, was cultivating the land and was regularly giving her share of the produce to her. She expressly denied having executed the power-of-attorney (Exh.P.1). She appeared in Court as P.W.1 and testified that she had never constituted her husband Muhammad Arshad as her general attorney.

4. Fateh Muhammad defendant (now represented by his L.Rs.) disputed the contentions of the petitioner. Both parties led evidence on issues which were framed by the learned trial Court.

5. The learned Courts below have non-suited the petitioner on the ground that she has not been able to produce any witness or documentary evidence to corroborate her testimony. Learned counsel for the petitioner contends that once the petitioner had entered the witness-box and denied having executed the power-of?-attorney (Exh.P.1) the onus of proving that the document had been executed and registered by her, shifted onto the respondents-defendants, but they have failed to discharge this onus. Additionally, it has been pointed out that the two marginal witnesses to the power-of-attorney (Exh.P.1), namely, Noor Ali Khan and Muhammad Younus Sindhu were not examined by the respondent-plaintiff. There is no explanation on the record for not producing these witnesses. It is further pointed out that the alleged marginal witnesses are not even related to the petitioner.

6. Learned counsel further argued that out of the three defence witnesses, produced by the respondent, Mukhtar (D.W.1) and Mashooq (D.W.3) are not related to the petitioner while the third Muhammad Afzal (D.W.2) is son of Fateh Muhammad who was the beneficiary of the sale-deed (Exh.P.2).

7. It was also pointed out that Fateh Muhammad was not a stranger or third party but was the full brother of the petitioner and there was, therefore, no necessity for a conveyance through an attorney because Mst. Bhagoo herself could have executed a sale deed in favour of her brother.

8. The above contentions could not be controverted by learned counsel appearing for the respondents. He merely .stated that differences cropped up between Mst. Bhagoo and her brother Fateh Muhammad which led to the filing of the petitioner's suit. This explanation cannot be taken as nullifying the submissions made on behalf of the petitioner, as noted above. Learned counsel for the respondents conceded that Mukhtar (D-1) was not, in any manner, related to Mst. Bhagoo. As to Mashooq (D.W.3) he stated that he was the cousin (Khalazad) of the petitioner, but this circumstance has little bearing on the case as Mashooq was not a witness to the transaction of sale or the power-of-attorney (Exh.P.1).

9. Unfortunately, the learned Courts below have not considered the material aspects of the case, discussed above. The impugned decrees, as such are a result of non-reading of the record and material irregularity in the exercise of jurisdiction by the learned Courts below. In the circumstances, the impugned decrees are set aside and the suit filed by the petitioner-plaintiff is decreed. She shall also be entitled to her costs throughout. H.B.T./B-10/L???????????????????????????????????????????????????????????????????????????????????? Revision allowed.