2011 CLC 1479 (PLP)

NASIR SAEED SHEIKH J.

The petitioner is the real sister of the respondent. Both the parties are permanently settled in United Kingdom. The respondents Nos.1 and 2 who are the real brothers of the petitioner as well as those of the respondents Nos.3 to 5 claimed a Mutation No.1868 dated 31-1-2006 in respect of land situated in Khata No.263 Khatoni Nos.418 and 419, Khata No.266 Khatoni No.427, Khata. No.303 Khatoni Nos.497 and 498, Khata No.321 Khatoni No.524 and Khata No.434 Khatoni Nos.721 and 722 of land measuring 8 kanals, 4 marlas situated in village Kala Dev Tehsil and District Jhelum in their favour to have been got incorporated by the petitioner through her attorney Mr. Mehmood Ahmed, Advocate.

2. The petitioner instituted a civil suit for declaration and permanent injunction on 23-2-2008 before the learned Senior Civil Judge, Jhelum. The petitioner prayed in the plaint that the alleged mutation of Gift No.1868 dated 19-1-2007 claimed b the respondents Nos.1 and 2 in their favour as incorporated in the Revenue Record in respect of the land measuring 8 kanals, 4 marlas described above is fraudulent, illegal and fabricated one having no legal effect upon the rights as owner with possession of the same. The petitioner also prayed in the plaint that the alleged mutation be cancelled and the respondents Nos. 1 and 2 be permanently restrained from interfering in any manner into the possession of the petitioner in respect of the suit-land. The petitioner further contended in the plaint that she never executed power of attorney in favour of anybody nor appointed as attorney nor did she got incorporated the impugned mutation of gift. It was further contended by her that even no valid gift can be said to be made by the petitioner in respect of the subject land as no delivery of the possession of the subject land was effected in favour of the respondents Nos. l and 2 by the petitioner. Additionally the petitioner sought a permanent injunction restraining the respondents Nos.1 and 2 from claiming ownership of the suit property on the basis of the alleged mutation of gift assailed in the suit.

3. The respondents Nos. 1 to 5 submitted joint written statement dated 24-5-2008. The respondents contended in the written statement that a validly executed General Power of Attorney was executed by the petitioner along with the respondents Nos.3 to 5 in England whereby Mr. Mehmood Ahmed, Advocate was appointed a General Attorney by all the executants of the Power of Attorney and on the basis of the said General Power of Attorney Mr. Mehmood Ahmed, Advocate got incorporated a mutation of Gift No.1868 dated 31-1-2006 in respect of the subject land in favour of the respondents Nos.1 and 2 and that on the basis of the said mutation the respondents Nos.1 and 2 are in possession of the subject land since December, 2006. It was further contended in paragraph No.8 of preliminary objections by the respondents that respondents Nos. 1 and 2 are settled in England therefore in their absence in March, 2008 the petitioner forcibly took over the possession of a portion of the subject land with the help of Qabza Group and for which dispossession of the respondents Nos.1 and 2, the right was reserved by the said respondents of taking some legal actions against the petitioner.

4. The plaint was amended subsequently by changing incorrect mention of date of mutation in the original suit which later on was corrected as 31-1-2006. The respondents also amended the written statement in which the claim with respect to the delivery of possession to them as stated in paragraph No.6 of the preliminary objections to be from December, 2006, was corrected to be since January, 2006. The learned Civil Judge, Jhelum framed the following issues out of the pleadings of the parties:

ISSUES (1) Whether the plaintiff is entitled for decree of declaration and regarding this fact the plaintiff did not transfer her property in favour of defendants Nos.1 and 2? OPP (2) Whether gift mutation in favour of defendant Nos.1 and 2 from plaintiff and defendants Nos.3 to 5 is result of fraud, misrepresentation, forgery and has no effect towards the rights of the plaintiff? OPP (3) Whether the plaintiff did not come in the court with clean hands and plaintiff with her free-will and consent transferred her property in favour of defendants No.1 and 2 and now plaintiff has no right to file this suit? OPD (4) Whether gift mutation was attested in favour of defendants Nos.1 and 2 after fulfilling legal formalities and now this mutation cannot be challenged by the plaintiff? OPD (5) Whether defendants are owners in possession of disputed properly and plaintiff has no concern with disputed property? OPD (6) Relief.

5. The parties produced their respective evidence. The learned Civil Judge 1st Class, Jhelum dismissed the suit of the petitioner vide judgment and decree dated 21-4-2009. The petitioner preferred an appeal against the judgment and decree passed by the learned Civil Judge dated 21-4-2009 which appeal came up for hearing before a learned Additional District Judge, Jhelum and the appeal also failed as it was dismissed vide judgment and decree dated 20-1-2010 by the learned Additional District Judge, Jhelum, hence this Civil Revision.

6. It is contended by the learned counsel for the petitioner that the petitioner is permanently settled in UK and she categorically took up the plea in her plaint that she never appointed any person her attorney nor did she execute the General Power of Attorney Exp.D5, therefore, the appointment of Mr. Mehmood Ahmed, Advocate as her attorney as claimed by the respondents Nos. 1 and 2 was absolutely incorrect and was result of fraud and fabrication. It was further contended by the learned counsel that notwithstanding the above, a valid gift cannot be said to have been made by the petitioner as admittedly the petitioner continues to be in possession of the subject property therefore the learned courts below completely overlooked the facts proved by the petitioner and wrongly dismissed the suit of the petitioner.

7. The learned counsel for the petitioner further contended that the evidence produced by the petitioner was not disbelieved by the two courts below and in any case upon the production of positive evidence by the petitioner denying the execution of the General Power of Attorney by her in favour of Mr. Mehmood Ahmed, Advocate or of making of gift in favour of the respondents Nos. 1 and 2, burden of proof shifted towards the respondents Nos. 1 and 2 to prove not only the execution of the General Power of Attorney Exh.D5 by the petitioner but also the making of a valid gift with all its 'ingredients. The learned counsel for the petitioner argued that this burden of proof was not discharged by the respondents Nos. 1 and 2 and the learned two courts below did not advert to this aspect of the matter and dismissed the suit of the petitioner illegally.

8. The learned counsel for the respondents Nos.1 and 2 has controverted the arguments of the learned counsel for the petitioner. It has been argued by him that the General Power of Attorney Exh.D5 was executed by the petitioner and her three sisters, the respondents Nos.3 to 5, who have admitted the execution of the General Power of Attorney not only by themselves but by the petitioner as well therefore the General Power of Attorney Exh.D5 stood proved by the above mentioned facts and circumstances. It is further argued by the learned counsel for the respondents Nos.1 and 2 that the phraseology used in the Exh.D5, General Power of Attorney itself constitutes an intention and declaration by the petitioner of making of gift in favour of the respondents Nos. 1 and 2 and that since the property in question was a joint property therefore there was no necessity of the specific recording of facts about the actual physical delivery of possession of the subject land to the respondents Nos. 1 and 2.

9. It is further contended that the petitioner took forcible possession of a portion of the subject land which fact does not negate the making of a valid gift by the petitioner. The learned counsel for the respondents Nos.1 and 2 thus argued that although the three sisters, respondents Nos.3 to 5 were originally impleaded as pro forma defendants by the petitioner in her suit but having come to know of the stance of the said respondents Nos.3 to 5 of supporting the case of the respondents Nos.1 and 2, the petitioner never opted to implead the respondents Nos.3 to 5 as actual defendants along with the respondents Nos.1 and 2 in the suit.

10. The learned counsel for the respondents Nos.1 and 2 has contended that the two courts below have rightly come to the conclusion that the petitioner has failed to prove her contention as raised in the plaint and therefore the suit has been rightly dismissed by the two courts below. The learned counsel for the respondents has relied upon the judgments reported as MUHAMMAD JALIL and 4 others v. MUHAMMAD SAMI and 8 others (PLD 2006 Lah. 619), MUHAMMAD SAEED v. MUHAMMAD SIDDIQUE and 10 others (2010 MLD 855) and Mst. NASEEM v. Mst. SHEHLA DURRANI and 2 others (2010 CLC 1861), to contend that concurrent findings of facts recorded by the two courts below cannot be interfered with by this Court in exercise of its revisional jurisdiction.

11. I have considered the arguments of the learned counsel for the parties and have perused the record with their assistance.

12. The learned Civil Judge while recording his vital findings on Issues Nos.1 and 2 came to the conclusion that there was some contradiction in .the statement of Javed Sikander, attorney of the petitioner who appeared as P.W. wherein he stated that he came to know of the mutation in question in August, 2008 whereas the suit was instituted on 23-2-2008 by the said attorney which therefore according to the learned Civil Judge negates the claim of the petitioner. The learned Civil Judge further came to the conclusion that the two Havelies constructed over the subject property as claimed by the petitioner were in possession of the tenants who appeared as P.W.2 and P.W.3 respectively but the petitioner/plaintiff has not mentioned this fact in her plaint, therefore, her plea as raised in the plaint is not worth credence. The learned Civil Judge has also stated that since the petitioner has not assailed the making of the General Power of Attorney by her specifically by not impleading the Attorney Mr. Mehmood Ahmed, Advocate in the suit, therefore, the conduct of the plaintiff/petitioner is very doubtful. The learned Civil Judge also took note of the fact that the other three sisters did not support the contention of the petitioner/plaintiff therefore by that circumstance also the making of General Power of Attorney and the making of gift mutation is not rendered doubtful and thus the plaintiff/petitioner failed to discharge her onus about the Issues Nos.1 and

2. The grounds mentioned by the learned Civil Judge in dismissing the suit were upheld by the learned first Appellate Court through appellate judgment dated 20-1-2010.

13. After perusal of the findings recorded by the two courts below it is observed that both the learned Civil Judge as well as the Additional District Judge did not apply their judicial mind to the important facts and circumstances available on the record. It is an admitted fact that both the parties are permanently settled in UK. The contents of General Power of Attorney Exh.D5 indicate that it was prepared in UK but it has not been attested by the Consulate/Embassy of Pakistan. Although it bears the stamp of Consulate of Pakistan Manchester but no signatures of any officer upon that stamp are available on the General Power of Attorney Exh.D5 nor any certificate of any officer of the Consulate is found. Although there is another stamp on the last page of the General Power of Attorney Exh.D5 but this stamp reads as follows:

"The seal and signatures on the documents are attested. The Mission, however is not responsible for the veracity of the contents.'

14. The description of the property in respect of which the General Power of Attorney is statedly created is not specifically given in the contents of the General Power of Attorney. In the section where the description of the property is given is covered under the head Schedule of Property which description is reproduced below:

"Schedule of property:

1. Agricultural Land situated in Tehsil and District Jhelum.

2. A house situated in Village Deo Tehsil and District Jhelum, With our 2 brothers Naeem Ijaz (Choudhry) of 187 Hamilton Road, Longsight, Manchester and Salim Ejaz (Choudhry) of 17 Rosewood Avenue, Stockport we INHERITED a house in Kala Deo Tehsil and District Jhelum and agricultural land in Tehsil and District Jhelum, Pakistan". There is no mention of the fact in the General Power of Attorney Exh.D5 that any declaration of the alleged gift was made by the petitioner in England in favour of the respondents Nos. I and

2. Although the document Exh.D5 narrate specifically the authorization in the following words:

"To gift our shares in the house and the above said land to our brothers Naeem Ijaz (Chaudhry) and Saleem Ijaz (Chaudhry) unquoted.

15. I do not find any evidence to the fact that Mr. Mehmood Ahmed, Advocate ever made any declaration of making of gift on behalf of the petitioner in favour of the respondents Nos. 1 and

2. The executant of the General Power of Attorney i.e. petitioner/plaintiff has denied the making of the General Power of Attorney specifically and also the making of the gift in favour of the respondents Nos.1 and 2, therefore, the onus shifted upon the respondents Nos.1 and 2 to prove through positive evidence the execution of the General Power of Attorney as well as the making of gift in favour of the respondents Nos.1 and

2. It is to be noted that even none of the respondents appeared in person before the court during the trial. The Attorney Mr. Mehmood Akhtar, Advocate did not appear to support the contentions of the respondents Nos. 1 and

2. There is no proof of the fact as to on which date and year and at which place the gift was created by the petitioner.

16. The perusal of the mutation of Gift No.1868 which is produced as Exh.P2 does not record any declaration having been made by the Attorney of making a gift in favour of the respondents Nos. 1 and 2 in exercise of his powers as conferred upon him, through the General Power of Attorney Exh.D

5. It is also noted that in the mutation Exh.P2 there is no acceptance of the gift by the respondents Nos.1 and 2 nor is there any mention of the delivery of the possession to the respondents Nos.1 and 2 as a result of the alleged mutation of gift. Even for the sake of arguments it can be assumed that the General Power of Attorney Exh.D5 was executed by the petitioner but it was again obligatory for the respondents Nos.1 and 2 to have proved the making of a valid gift for which three mandatory conditions are; i. Declaration of gift by the donor. ii. Acceptance of gift by the donee; and iii. Delivery of actual physical possession to the donee.

17. The two courts below thus while recoding their findings on Issue No.5 which involved the declaration of the ownership of respondents Nos.1 and 2 did not specifically deal with this aspect of the matter and therefore the impugned judgments and decrees passed by the two courts below suffer from material irregularity and are illegal on the face of them. In the plaint the petitioner/plaintiff took a specific plea that she has constructed two Havelies over the subject property and her Attorney who appeared as P.W. categorically proved the existence of Havelies over the suit-land. The petitioner/plaintiff produced two witnesses as P.W.2 and P.W.3 who are in possession of the Havelies as tenants of the petitioner and the respondents Nos.1 to 5 in their written statement have also admitted that they are not in possession of the subject property which has been forcibly taken away by the petitioner. The respondents only produced one DWI who is the Attorney of the respondent No.1 but no witness of the mutation Exh.P2 has been produced by the respondents Nos.1 and

2. The Attorney Mr. Mehmood Ahmed, Advocate has not been produced by the respondents in their evidence to prove the making of gift by the petitioner through the said Attorney.

18. Thus the respondents have failed to discharge the onus which shifted upon their shoulders after positive evidence having been produced by the petitioner of denying the execution of General Power of Attorney a.; well as of the making of the gift by her in favour of the respondents Nos. 1 and

2. The honourable Supreme Court of Pakistan in a reported' judgment ABDUL SATTAR and others v. MUHAMMAD ASHRAF and others (2008 SCMR 1318) at page 1319 has laid down the law in the following words:

"Gift

Gift through mutation

Suit by alleged donor calling in question validity of such gift and mutation by denying to have made gift

Burden of proof

Donee would discharge onus of validity of gift and mutation in his favour

Witnesses mentioned in gift mutation were not produced in evidence by donee

Donor produced in evidence one witness recorded in mutation, who stated that donor had not given any land to donee nor did he identify him at relevant time; and that donee had got mutation sanctioned in a fraudulent manner

Donee did not produce any Revenue Official/Officer concerned with sanction of mutation to prove same

Suit filed by donor was decreed in circumstances." A similar view was expressed by the honourable Supreme Court of Pakistan in the judgments reported as BAQAR v. ALLAH DITTA and others (2003 SCMR 780), MUHAMMAD BOOTA v. Mst. RASHIDAN BIBI and others (2008 SCMR 343) and ABDUL RAHIM and others v. MUHAMMAD HAYAT and others (2004 SCMR 1723). Needless to say that a General Power of Attorney has to be interpreted strictly in accordance with law; reliance is placed on FIDA MUHAMMAD v. Pir MUHAMMAD . KHAN (DECEASED) THROUGH LEGAL HEIRS AND OTHERS (PLD 1985 SC 341). Merely because the two courts below have recorded concurrent findings does not make the judgments and decrees sacrosanct and the legal requirements of proving the making of a valid gift and the discharge of onus of even proving the execution of a valid General Power of Attorney in the instant case shifted towards the respondents Nos.1 and 2 which they failed to discharge. Therefore, the concurrent findings of facts which are contrary to law and are also not in accordance with the correct appreciation of the evidence as well as circumstances of the case are not-sustainable.

19. In view of the above, the instant Civil Revision is accepted and the judgments and decrees passed by the two court's below are set aside and the suit instituted by the petitioner/plaintiff is decreed as prayed for. The parties to bear their own costs. M.H./N-34/L Revision allowed.