2006 PLP 1489 (YLR)

SARDAR MUHAMMAD ASLAM, J.

Respondent No.1, Mst. Khurshid Bibi filed a suit seeking declaration and perpetual injunction to the effect that the registered Sale-deed No.871 dated 24-8-1986, pertaining to an agricultural land measuring 5-1/2 Kanals falling in Khatas Nos.175 to 182 situated at Chak No.881S.B Sargodha, in favour of the petitioner/defendant No.1 was an outcome of fraud, misrepresentation, without consideration, illegal and ineffective qua the rights of the plaintiff. Further alleged in the plaint that the plaintiff had inherited the property described above from her real father Sardar Khan. She was in a joint possession as an owner along with other co-sharers while her brother Subey Khan had sold his land measuring 4-1/2 Kanals in favour, of Muhammad Yahya. The petitioner asked her to lease out her land and under this pretext he got executed a General Power of Attorney in favour of defendant No.2 and thereafter got mutated the land in his own name by way of fraud. The petitioner entered appearance and filed written statement. Controversy gave rise to framing of issues. The learned trial Court vide its judgment and decree dated 18-12-1993 decreed the suit in her favour. An appeal was preferred, which came up for hearing before the learned Additional District Judge, who dismissed the same vide his judgment and decree dated 16-12-1996. This civil revision assails both the judgment and decrees recorded by the learned Courts below.

2. The learned counsel for the petitioner contends that the deed of General Power of Attorney was executed by the respondent with her free-will and consent, which was attested by her husband as marginal witness; the sale-deed has been executed during the subsistence of the power granted to be attorney; the total consideration amount has been paid and received by the attorney before the Registrar; and that the judgments of both the learned Courts below suffer from misreading and non-reading of evidence.

3. Conversely, the learned counsel for the respondent argued that the respondent Mst. Khurshid Bibi is Pardanasheen illiterate woman; no independent advice was available to her; the sale-deed was the result of fraud; the consideration amount was not paid to her; and, that the findings of fact has been recorded against the petitioner which is immune from interference in exercise of revisional jurisdiction of this Court.

4. Heard. Record perused.

5. Admittedly, the General Power of Attorney was executed by Mst. Khurshid Bibi and the same was attested by her husband. Its cancellation was not secured. During subsistence of the power of attorney the land in dispute was transferred by the attorney through registered sale-deed. Consideration amount was paid to the attorney before the Registrar. Independent advice was available to Mst. Khurshid Bibi as her husband is the marginal witness to the power of attorney. She did not appear in the witness-box to support her case in spite of her presence in the Court premises on the day when evidence was recorded on her behalf. Legitimate inference can be drawn against her.

6. The respondent-plaintiff pleaded in her plaint that respondent No.2 in order to secure her land on lease obtained power of attorney deceitfully. Subay Khan, her real brother appeared as P.W. He stated that the respondent-plaintiff had not transferred her share in land through respondent No.2 attorney. Nazar Muhammad appeared as P.W.2. He stated that he is not aware of as to whether the respondent No.1 plaintiff transferred her share in favour of the defendant by way of sale. He stated that in his presence no amount was paid to the plaintiff. He is not aware of execution of general power of attorney in favour of respondent No.2. Ihsan Ullah son of Mst. Khurshid Bibi appeared as her attorney. He stated that the respondent No.1-plaintiff had not transferred the suit-land by way of sale. However, he stated that the plaintiff had leased out the suit property to respondent No.2. In cross-examination, he deposed that he was not present at the time of execution of alleged lease deed. He is unaware of about details of lease deed. He as well as her mother are unaware of about the duration of lease deed. He was informed by the plaintiff 3/4 months after execution of lease deed. Terms of lease deed were not settled down in view of the confidence between the parties. He claims knowledge of sale instead of lease through Subay Khan, P.W.1.

7. Muhammad Malik, petitioner appeared as D.W.1. He deposed that the respondent No.1-plaintiff appointed Niaz Ahmad, D.W.2 one of the defendants as her attorney. He transferred the suit property in his favour against a consideration of Rs.2,00,

000. The sale-deed was executed before the Sub-Registrar. Possession was delivered at the spot. Total consideration amount was paid before the Registrar. The sale-deed was executed on the strength of power of attorney. Niaz Ahmad appeared as D.W.2 and stated that Mst. Khurshid Bibi had appointed him as her attorney. The power of attorney was signed by her husband Muhammad Tufail. Muhammad Qamar-uz-Zaman appeared as D.W.3. He stated that he is the marginal witness of power of attorney. Mst. Khurshid Bibi executed the same in presence of her husband. Documentary' evidence was produced by both the sides. Amongst them the relevant documents are copy of power of attorney Exh.D.4, copy of sale-deed Exh.D.5 and copy of judgment dated 12-11-1989 of the Civil Court Exh.D.11.

8. Both the learned Courts below have misread the evidence and misconstrued the law. It was found that independent advice was not available to Mst. Khurshid Bibi. Factually this finding runs contrary to the document Exh.D.4. The General Power of Attorney evidences thumb-mark of Mst. Khurshid Bibi along with the thumb-mark of her husband Muhammad Tufail. Para.4 of the power of attorney do authorize the attorney to enter into the agreement of sale, mortgage, gift or, exchange and receive the earnest money. Para 5 grant power to the attorney to execute and sign the sale-deed, mortgage deed, gift deed, exchange deed etc., Qamar-uz-Zaman, one of the marginal witness supported the execution of the general power of attorney by Mst. Khurshid Bibi in presence of her husband Muhammad Tufail.

9. Exh.D.11 is the copy of judgment in a suit for declaration and perpetual injunction filed by Muhammad Yahya against Mst. Khurshid Bibi and Muhammad Malik. Findings on Issue No.8 is relevant, wherein it was held that the plaintiff (Muhammad Yahya) and defendant No.1 (Muhammad Malik) present petitioner) purchased the land from respondent No.3 (The Province of the Punjab and Mst. Khurshid Bibi). This finding recorded in the judgment dated 12-11-1989 has attained finality.

10. The learned Courts below have given undue importance and weightage to the contradictions as to whether the amount was paid in full before the Registrar at the time of execution of the sale-deed or otherwise. Once the execution of the sale-deed is proved through attorney, part payment or non-payment of the consideration amount will not invalidate the sale itself. The respondent No.1-plaintiff can sue her attorney for the recovery of the sale proceeds. The execution of power of attorney is not denied but a plea has been taken that the same was obtained for lease. No evidence of fraud has been produced by the plaintiff-respondent No.1. The petitioner-defendant cannot be made to suffer on account of any dispute, amongst the Principal and the attorney. The Principal may sue his attorney for damages if it is proved that he acted against the instructions or interest of his principal.

11. In view of what has been said above, this civil revision is allowed. The impugned judgments and decrees of both the learned Courts below are set aside. Resultantly, the suit of the respondent No.1-plaintiff is hereby dismissed. M.H.M-1266/L Revision allowed.