1986 PLP 306 (MLD)

4. Several issues were framed. Meanwhile Sohrab died and his legal representatives were brought on record and amended plaint and amended written statement were filed. Respondent Jam in his first written state ment had admitted the allegations of plaintiff Muhammad Jaffer but in the amended written statement he stated that he did not know anything about the suit. A large number of witnesses were examined on behalf of plaintiff Jaffer. They are Muhammad Jaffer who reiterated the allega tions made in the plaint. Ramzan, Qaim Din and Ali proved that the construction over the plot had been made by Muhammad Umar the uncle of Jaffer. Nasrullah and Abdur Rahman proved that Sohrab had put his L.T.I. on the sale‑deed and power of attorney. Abdul Hadi who is sub‑Registrar proved that he had gone to house of Sohrab who was identified by Nasrullah and he had registered power of attorney which was executed by Sohrab in favour of Jam, Exh.33‑D. He did not make any statement about the Exh.35a‑A. Muhammad Bux and Saeed who were the attesting witnesses of sale‑deed and power of attorney denied that they had put their signatures on the same. But the plaintiff got the signature of Muhammad Bux on the power of attorney and the sale‑deed compared with his admitted signature through Asim Baig, P.W. who is handwriting, expert and he proved that the signatures of Muhammad Bux were to same as the disputed signatures of Muhammad Bux over the two disputed documents. Muhammad Bux who is nephew of Sohrab had admitted in his statement that Sohrab had agreed to transfer the plot to Muhammad Jaffer. D.W. Mst. Khairan, who is wife of Sohrab, had denied in her deposition that Sohrab had executed any sale deed in favour of Jaffer anal she stated that Sohrab used to sign his name. D.W. Azizullah, Surveyor, proved that the plot in question was granted to Sohrab by the Government but the mutation had not been made in his favour because Jaffer was in unauthorised occupation of the said plot. D.W. Abdur Rehman deposed that Sohrab had made Katcha construction over the plot and rented it out to him and Jaffer and that he had not sold it to Jaffer. This witness further admitted that there was criminal litigation between him and Jaffer. D.W. Muhammad Yaqoob made the same statement.

5. The Civil Judge dealt with issues Nos.1 to 7 comprehensively and came to the conclusion that the sale‑deed had been executed by Sohrab and that the power of attorney had also been executed by Sohrab which could not be registered for want of income‑tax clearance certificate and that the construction had been raised over the plot by the plaintiff and defendant No.2. Jam had been appointed as attorney of Sohrab. He did not find any collusion between Jam and Jaffer and held that Jaffer was not the tenant of Sohrab. He, therefore, decreed the suit but since the sale‑deed, as it was, could not be registered due to expiry of time, therefore, he ordered that the respondent should sign over a new sale‑deed and should get it registered.

6. The judgment of the Civil Judge was passed after close scrutiny of the statements made by different persons and appears to be a fairly correct judgment.

7. However, the learned A. D.J. on appeal from respondents upset the findings of the Civil Judge in respect of the execution of power of attorney and sale‑deed and held that they had not been executed by him. He also dealt with issues Nos.1 to 7 comprehensively. However, in one respect he agreed with the finding of the Civil Judge that Muhammad Umar, uncle of the plaintiff, was in possession of the plot in question and had got constructions raised over it and that Muhammad Jaffer lived with him.

8. The counsel, for the appellant had submitted that the learned A.D.J. has misconceived the whole position of the case and has placed un-necessary burden upon the appellants. His submission was that Sohrab had admitted in his written statement that Jam had got his L.T.I. on some document and thereafter, Sohrab had gone to Sub‑Registrar, Dadu, and got his power of attorney cancelled, then in these circumstances the execution of the power of attorney by Sohrab in favour of Jam should have been taken as clearly admitted by Sohrab. In that case the burden was clearly upon the respondents to' prove that any fraud had been perpetrated by Jaffer or that undue influence has been exercised by Jam upon Sohrab in taking the power of attorney 'from him. The submission appears to be correct. The written statement of Sohrab had clearly admitted that his L.T.I. had been taken during his sickness upon some document by Jam. But none of the respondents had explained as to under what circumstances Sohrab had been made to put his L.T.I. upon those documents. At least to the extent of L.T.I. of Sohrab being present upon the power of attorney in favour of Jam is concerned it is clearly admitted in the written statement. Then Sohrab Clad made a statement in the same para. of written statement that he had got the power of attorney cancelled. But the respondents have completely failed to prove any cancellation of power of attorney by Sohrab and further failed to prove that Jam, respondent No.2, who is a relation of Sohrab, was acting in any manner in collusion with the appellant.

9. The learned Civil Judge has placed burden of proof of execution of the sale‑deed, Exh.33‑A, and the power of attorney, Exh.33‑D, upon the appellant. In my view, at least the burden of execution of Exh.33‑D, power of attorney, was completely wrongly placed because its execution was admitted by Sohrab and, therefore, the burden should have been otherwise. It was Sohrab and his L. Rs whose duty it was to show that if had been executed without any consideration or by fraud or mis representation or under undue influence but nothing of that sort had been done. The said power of attorney had clearly contained an averment to the effect that Jam had been appointed attorney by Sohrab to present for registration the deed of conveyance, dated 7‑3‑1964 for Rs.600 regarding Plot No.1028/1, Dadu, executed in favour of Muhammad Jaffer and to admit the execution of the sale‑deed. In my mind this power of attorney is an important document and even if sale‑deed had not been in existence then too this power o attorney was sufficient to show that Sohrab had agreed to transfer the said plot in favour of Jaffer in consideration of Rs.600 and that he had executed a sale‑deed in favour of Jaffer which was to be got registered by his attorney Jam.

10. The learned A.D.J. committed a gross error in treating this power of attorney as a document which had not been executed by Sohrab. The learned A.D.J. merely relied for this purpose upon certain contradictions in the statements of the witnesses without realising that at least the execution of this power of attorney had been admitted by the person concerned, namely, Sohrab and that Sohrab had tried to wriggle out of this power of attorney by making an allegation that he was sick when he put his L.T.I. over the same. Clearly it was fore Sohrab and his L.Rs to demonstrate that the said power of attorney was executed during sickness or under influence of a fraud but nothing of that type was done and, therefore, the evidence of Jaffer and his witnesses was worth believed that it was a genuine transaction. The registration of this power of attorney had been clearly proved by Abdul Hadi and the statement of Abdul Hadi seen in the context of written statement of Sohrab makes this power of attorney as an unassailable document.

11. Even the sale‑deed, Exh.33‑A, had been proved by Jaffer and Nasrullah to have been executed by Sohrab and in view of the averment contained in the power of attorney the execution of the sale‑deed, Exh.33‑A, appears to be quite feasible and appropriate.

12. The learned A.D.J. has made a remarkable observation in respect of a document which was Exh.173, dated 19‑5‑1964 which had been produced by Mst. Khairan wife of Sohrab in the form of a true copy. This was allegedly an application filed by Jaffer, appellant, before Deputy Commissioner on 19‑5‑1964 seeking review of the allotment of the disputed land by the Government to Sohrab. The learned A.D.J. has argued that if Jaffer's stand that he had been correct then Jaffer would have mentioned this fact into the application which he made to Deputy Commissioner on 19‑5‑1964 in the above Exh.173. The learned A.D.J. has failed completely to notice that in fact Jaffer had made such allegation in para. 7 of that application where he had clearly stated that Sohrab had agreed to sell the plot to him for Rs.600 and that he had executed the sale‑deed in his favour in respect of the said plot. This being the position, the learned A . D . J . has not only overlooked a relevant and important material contained in this application but has passed his judgment: upon the omission of the said statement, which in fact is found in the said application, and therefore, his judgment is completely vitiated.

13. The learned Judge has also failed to give correct weight to his own finding that it was Muhammad Jaffer, appellant, and his uncle Muhammad mar who had raised constructions over the plot. The learned Judge also failed to notice that even Muhammad Bux, who was a nephew of Sohrab and who had denied his signature on the alleged sale‑deed and the power of attorney, had admitted that Sohrab had agreed to transfer the said plot in favour of Muhammad Jaffer and in view of the statement the claim of the appellant appears to be much more convincing more particularly so when the handwriting expert had proved that in fact Muhammad Bux had attested the sale‑deed as well as the power of attorney.

14. In view of the discussion above I have no option but to interfere with the judgment and decree of the learned Additional District Judge.

15. The learned A.D.J. was further of the view that since the appellant had not amended his plaint which had merely sought the registration of the existing sale‑deed, which could not be registered in law at the time of decree, therefore, the suit was incompetent. I can only say that the learned A.D.J. has taken too technical view of the whole thing. If the claim of the appellant in respect of the sale having been agreed upon was genuine but sale‑deed could not be got registered because more than 8 months had expired, then in these, circumstances, it was apt and proper to give decree for specific performance with a direction that the respondents will execute a fresh sale‑deed which should be got prepared by the appellant over a proper stamp paper. The judgment of the Civil Judge was, therefore, correct and is maintained.

16. The result is that this appeal is allowed and the judgment and decree of the original Court is restored. A . A Appeal allowed .