P L D 1997 Lahore 122 (PLP)

ISHAN-UL-HAQ CHAUDHRY, J.--The facts relevant for the decision of this R.F.A. are that Sultan Ali owned land measuring 10 Kanals 7 Marlas comprising of Killa Nos.23/2; 24/2 and Suqare No.16 of Chak No.213/RB within Municipal Limits of Faisalabad, which was sold by respondent No.3 as his General Attorney vide sale-deeds Exhs.P4 to P

15. The respondent filed a suit for possession and declaration to the effect that General Power of Attorney in favour of Rana Muhammad Tahir defendants Nos.3 and 12 sale deeds Exhs.P4 to P15 executed by him in favour of defendants Nos.4 to 20 are illegal, fraudulent and void for failure of consideration. The appellants resisted the suit on legal as well as factual plane. The learned trial Court accordingly framed following issues:-- "(1) Whether the plaintiffs have no locus standi and cause of action? OPD. (2) Whether the suit is not maintainable in its present form? OPD. (3) Whether the suit is bad for misjoinder of causes of action? OPD. (4) Whether the suit cannot proceed in view of preliminary objection No.5? OPD. (5) Whether the suit has not been properly valued for the purposes of court fee and jurisdiction, if so, what is the correct valuation? OPD. (6) Whether the defendants are entitled for special costs, if so,, to what amount? OPD. (7) Whether the plaintiffs are entitled to the possession of the suit land and the impugned general power of attorney dated 10-11-1982 and the subsequent sales in favour of the defendants are illegal, void and without jurisdiction and based on fraud? OPP. (8) Relief."

2. The plaintiffs examined Muhammad Akhlaque Anwar as P.W.1, I Ghulam Muhammad as P.W.2, Abdul Razzaq as P.W.3, Muzaffar Ahmed, I Advocate as P.W.4, Muhammad Younas as P.W.5, and Zulfiqar Ali, General' 113 Attorney of the plaintiff appeared as P.W.6, while Muhammad Akram, Special Attorney of Mst. Fazal Bibi as P.W.7. On the other hand, defendants Nos. l to 3 I examined Muhammad Siddique as D.W.1, Muhammad Arshad as D.W.2, Nazir I Ahmad as D.W.3, Irshad Ahmad as D.W.4, Faqir Muhammad as D.W.5, Rana Muhammad Tahir as defendant No.3, as D.W.6, Abdul Habib as D.W.7, Ijaz Hussain as D.W.8, Muhammad Latif as D..W.9 and Tanvir Akhtar, defendant No. l as D.W.10, while defendants Nos.4 to 20 examined Syed Ghulam Abbas as D.W.11, and closed their side. The trial Court after hearing arguments decreed the suit vide judgment and decree dated 3-5-1990. Hence present appeal, which was admitted to hearing and notices were issued to the respondent, who have appeared and contested the appeal.

3. The learned counsel for the appellants argued that the general power of attorney Exh.Dl (also Exh.P3) was Validly registered by the Sub-Registrar, Gojra as Sultan Ali was temporarily residing in Chak No.248/GB at the relevant time. The learned counsel in this behalf has referred to section 33 as well as sections 28, 29, 30 and 32 of the Registration Act, 1908 and in support of his arguments relied on the decisions reported as Sarat Chandra Basu v. Bijoy Chand Mahatab Maharaja Dhiraj Bahadur of Burdwan (AIR 1937 Privy Council 46), Totaram Krishna Patil v. Mt. Rahmat Bi and others (AIR 1937 Nagpur 227), (Seth) Kanhaya Lal since deceased (now represented by Seth Hanumen Parashad and another) v. The National Bank of India, Limited Delhi (AIR 1923 Privy Council 114) and Sri Sri Sri Kishore Chandra Singh Deo v. Babu Ganesh Prasad Bhagat and others (AIR 1954 SC 316). It is added that temporary residence of Sultan Ali was fully proved by the statement of D.W.2. It is argued that the trial, Court Totally ignored the cross-examination of both P.Ws and D.Ws while recording its findings. The third submission is that the plaintiffs have failed to make specific allegations as is clear from paras. 5, 6 and 7 of the plaint and no evidence was led to prove the same. The fourth submission is that there was no evidence whatsoever of collusion and misrepresentation. The fifth submission is that defendants Nos.4 to 20 were bona fide purchasers, for consideration. It is added that sale price was .paid by them to defendant No.3, who deposited the same in the account of the Sultan Ali, the owner. The sixth submission is that the power of attorney and sale-deeds were registered documents and presumption of truth is attached to the same. The plaintiffs miserably failed to rebut this presumption.

4. On the other hand. the learned counsel for the respondents argued that mere visit or going to a place would not make one resident of that place. It is explained with reference to Prem's Legal Dictionary that the word 'reside' implies something more than stay or visit while 'residence' does not mean where one spends only a day or two when he has got place of residence elsewhere. The learned counsel argued that he could not lay his hands on a precedent interpreting .word 'resides' used in section 33 of the Registration Act, 1908 but he has cases pertaining to law of pre-emption, Election Laws, Family Laws, Settlement and Border Area Committee. In this, behalf, the learned counsel relied on Elis Bibi v. George Mashih (PLD 1978 Lahore 1072), Mst. Balqis Begum v. Manzoor Hussain (PLD 1962 (W.P.) Lahore 929), Imdad Ali Malik v. The Settement Commissioner (Policy). Lahore and another (PLD 1962 (W.P.) Lahore 502), Syed Haider Shah v. Mukhtar Hussain Shah and others (PLD 1963 (W.P.) Lahore 548), Mst. Parveen v. Mst. Jamsheda Begum and another (PLD 1983 SC 227), Sikandar Shah and another v. Mst. Bibi Fatima (PLD 1964 (W.P.). Peshawar 140), Sardar Khan v, Regional Election Commissioner, Lahore and 2 others (PLD 1966 (W.P.). Lahore 390), Ch. Akhtar Hussain and 2 others v. Election Commissioner of Azad Jammu and Kashmir. Muzafarabad and 4 others (PLD 1990 Azad J&K 61), and Muhammad Qasim v. Bashir Ahmad and 12 others (PLD 1991 Azad J&K 1) and Muhammad Sharif v. Border Area Committee (1988 CLC 2247(2). The learned counsel argued that while interpreting or assigning meanings to the word 'reside' the main consideration should be that the purpose of law is not defeated. He submitted that the purpose of use of word 'reside' was to defeat fraud and in this behalf the learned counsel has referred to- Qurban Hussain and 2 others, v. Hukam Dad (PLD 1984 SC (AJ&K) 157). The next submission is that no presumption is attached to a document, which has not been registered in accordance with legal requirements. In this behalf, the learned counsel has referred to Atta Muhammad and others v. Mst. Mehtab Bibi and another (1985 SCMR 144), Qurban Hussain and 2 others (supra), Lal Baz and another v. Gulab represented by,Legal Heirs (1989 CLC 8), Muhammad Aslam v. Mst. Gulraj Begum (1989 SCMR 1) and Ziauddin Siddiqui v. Mrs. Rana Sultana and another (1990 CLC 645). It is argued with reference to sections 32(c) and 33 of the Registration Act that the general power of attorney EXh.DI in favour of defendant No.3 was not a legal and valid document, therefore, the sale-deeds executed on the force of it were void, ab initio and illegal. It is added that inference is legal evidence and Courts are well within their right to draw its inference from the facts on record. There is nothing wrong with the inference drawn by the learned trial Court until it is shown that there was nothing on record: to support . It is submitted that the land was to be sold with the. prior approval of Sultan Ali. It is added that the appellants were fully conscious of this face and for that reason D.W.6 deposed that the deals were struck by Sultan Ali himself but this plea is falsified by the statement of Sultan Ali under section 164, Cr.P.C. recorded on 12-12-1982, wherein he stated that he was still owner of the land, whereas according to the sale-deeds the entire land had been sold within two days on 20/22-11-1982. It is argued that the plea that the plaintiffs pestaced Sultan Ali, who was compelled to go to Gojra is falsified by Abtalnama Exh. P2 (cancellation of power of attorney) in favour of respondent No. 1, wherein it was written that respondent No. l is working against his interest and he apprehends mischief at his hands. The learned counsel added that there is chain of circumstances starting with cancellation deed dated 30-3-1978, the abduction of Sultan Ali resulted in filing of W.P. No.3273/83 for registration of case, the failure of the police to proceed with the matter due to influence of Zahid Sarfraz, the then Federal Minister, moving of Crl. Org.155-W/82; then registration of a criminal case on 12-12-1982, the filing of civil suit for injunction against the defendants Nos.l to 3 restraining them from depriving Sultan Ali of his property, production of Sultan Ali and recording of his statement under section. 164 of Cr.P.C., refusal of the Magistrate to get him medically examined and ultimately an application for the post-mortem of dead body because the plaintiffs alleged that Sultan Ali has been murdered and had not died natural death. It is added that right from beginning to the end Mr. Zahid Sarfraz, a local political leader, who at the relevant time was also a Federal Minister held a pivotal position and who also shared in the gains made by respondents Nos. l and 2 as is clear from the fact that he secured land in the name of his four children defendants No. 12 to 15 (minors. It is argued that the defendants Nos.4 to 20 are close associates of defendants Nos.', to 3 gild they are not bona fide purchasers for consideration and in any case they have failed to prove this plea.

5. The learned counsel for the appellants while summing up the arguments referred to C.M.1-C/94, according to which; the respondents Nos.3, 4, 6 to 8 conceded, the claim of the appellants and submitted that they have no objection to the appeal being accepted to' the extent of one-half share of Mst. Batool, their predecessor-in-interest.' It is submitted that this is an admission in terms of Order XII, Rule 6, C.P.C., therefore, the appeal is liable to be accepted at least partially. 6 On the other hand, the learned counsel for the respondents vehemently denied having made this application. Manzoor Ahmad-respondent No.3 is present in Court. He .also denied having moved this application. The learned counsel for the respondents submitted that this application was manoeuvred by the appellants to boost up their claims and respondents in their reply, which is supported by their affidavits, have categorically denied the same.

7. The applicants have also moved an application being C.M.560/90 for production of additional evidence. It is maintained that three documents mentioned in para. 7 of the application are certified, copies. It is added that presumption of truth is attached to the same and it would help this Court to come to a just conclusion. The learned counsel for the respondents submitted that the application is without justification because the appellants were provided with fullest opportunity to produce evidence whatsoever they wanted to adduce and in any case it is for this Court to determine whether these documents are required for complete and factual adjudication of the matter.

8. We have given our anxious consideration to the arguments of the learned counsel for the parties, gone through the record, relevant provisions of Registration Act, Civil Procedure Code and precedent cases. Issue No.7 is the main issue and it can conveniently be split up into two parts. The first pertains to legality of the General Power of Attorney dated 10-11-1982 available on the record as Exh.D.l and the other to the execution, registration of sale-deeds Exhs.PA to P.15 and payment of consideration. Before proceeding any further it is worthwhile to refer to section 33 of the Registration Act, 1908 (hereinafter to be referred as Act of 1908). The same reads as under:-- "33.--(1) For the purpose of section 32, the following Power-of-Attorney shall alone be recognized. namely:-- (a) If the principal at the time of executing the power-of-attorney resides in any part of Pakistan in which this Act is for the time being in force, a power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar within whose District or Sub-District the principal resides: (b) If the principal at the time aforesaid resides in any other part of Pakistan, a power-of-attorney executed before and authenticated by any Magistrate: (c) If the Principal at the time aforesaid does not reside in Pakistan a power-of-attorney executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, Pakistan Consul of Vice Consul or representative of the Federal Government: Provided that the following persons shall not be required to attend at any registration office or Court for the purpose of executing any such power-of-attorney, as is mentioned in clauses (a) and (b) of this section, namely:- (i) Persons who by reason of bodily infirmity are unable without risk or serious inconvenience so to attend; (ii) Persons who are in jail under civil or criminal process; and (iii) Persons exempt by law from personal appearance in Court. (2) In the case of very such person the Registrar or Sub-Registrar or Magistrate, as the case may be, if satisfied that the power-of-attorney has been voluntarily executed by the person purporting to be the principal, may attest the same without requiring his personal attendance at the office or Court aforesaid. (3) To obtain evidence as to the voluntary nature of the execution, the Registrar or Sub-Registrar or Magistrate may either himself go to the house of the person purporting to be the principal, or to the jail in which he is confined, and examine him, or issue a commission for his examination. (4) Any power-of-attorney mentioned in this section may be proved by the production of it without further proof when it purports on the face of it to have been executed before and authenticated by the person or Court hereinbefore mentioned in that behalf." The fate of this point depends on the interpretation of the word 'resides". The learned counsel for the appellants maintained that even temporary -evidence is sufficient for the purpose of registration of power of attorney. While he learned counsel for the respondents maintained that mere visit to a place or in somewhere would not bring such a place within the term "resides". 9 Now before proceeding any further with the discussion we may refer to he cases relied by the learned counsel for the parties on this point: (1) Sarat Chandra Basu: It was held that the word 'resides' does not exclude temporary residence and the Courts below including High Court Calcutta concluded that at the relevant time the appellant was residing at Hazaribagh; (2) Totaram Krishna Patil: It was a case where words ' at the time aforesaid' used in section 33(1)(c) of Registration Act, came for interpretation. The same is not relevant to the present controversy; (3) (Seth) Kanhava Lal: Again this case is not relevant because in the case it was only question of presumption of correctness; (4) Sri Sri Sri Kishore Chandra Singh Deo: In this case it was held that whether the stay of the executant was of casual nature or whether it amounted to residence must depend on all the circumstances proved and is essentially a question of fact; (5) Mst. Parveen: The word "residence" as used in N.-W.F.P. Pre emption Act came for interpretation. In this case, Imdad Ali Malik, Syed Haider Shah (supra) on, the Settlement side and Mst. Balqis Begum as well as Elis Bibi (supra) under the Family Laws while Sikandar Shah and another (supra) again a case under Pre-emption Laws, were considered and following rules for resolving controversy over meanings of words and phrases were formulated:-- (a) That no general rule can be laid down either on legal or jurisprudential basis which may be applicable in each and every case of such a controversy; (b) The context in which the relevant word or phrase is used is highly important. If it is in regard to procedural aspect, the meaning might have a shade different from its meaning in a provision dealing with a substantive right; (c) The words themselves as also the phraseology selected by the Legislature has been given considerable importance but ,he underlying intention was also given, if not more, at least equal importance; (d) It may normally be not possible to apply the meaning of residence given in a particular case to another, case under a different statute; (e) In each case of this type it would be necessary for the Court to determine the correct connotation subject to the aforenoted aspects and then to give a finding of fact whether residence so interpreted of an individual has been established on the material available in the case:" (6) Muhammad Oasim: It, was a case under Election Laws. The words/expression "ordinarily resides" came for interpretation. It was held that it signifies more than casual dwelling at a certain place; (7) Ch. Akhtar Hussain and 2 others: Similarly, in this case the words 'resident' and 'ordinary resident' came for interpretation and it was held that the resident means, who ordinarily resides in a particular area or was owner or in possession of a_ dwelling house or other immovable property in an electoral area; (8) Sardar Khan: This was again a case under Election Laws and the word 'resident' was interpreted; arid (9) Muhammad Sharif: This was a case under West Pakistan Border Area Registration, 1959 and the word 'reside' came for interpretation and it . was held that it would not be sufficient to bring allottee's case within purview of exception whereunder personal residence of allottee could be dispensed with as permission given to the allottee to reside and settle down abroad cannot be termed as exemption.

10. It is clear from the above cases that word 'reside' is capable of different meanings. It is also clear that the Court should try to find out the intention of the Legislature in framing a particular provision in which the word is used. The meanings which help to attain the object in view of the Legislature are to be assigned. The object of use of word resides is very obvious. The Legislature wanted to put a restraint and exclude the element of fraud and forgery, undue influence and duress in the alienation of immovable property. The moral fibre has gone so low that now a citizen, who is backed by a politician can make a bureaucrat to do whatever he likes. Therefore, if the interpretation put by the learned counsel for the appellants is accepted the same will defeat the object of the Legislature and facilitate fraudulent transactions because then it would not be difficult for anybody to find out a Faqir Muhammad in nook and corner of the country for illegal registration of a power of attorney. The purpose has been clearly discussed in the case reported as Qurban Hussain v. Hukam Dad PLD 1984 . SC (AJ&K) 157). The relevant portion of the judgment reads as under:-- "8 ... ... ...We are in respectful agreement with the majority view on the aforesaid point and venture to add further that object of provisions contained in sections 32(c) and 33 of the Registration Act is to exclude the element of fraud and forgery in transactions regarding alienation of the immovable property. Thus, in our view, there is hardly any logic that although an agent must possess power-of-attorney duly executed and authenticated and as envisaged under sections 32(c) and 33 of the Registration Act if he presents the document for registration, yet such an execution and authentication can be dispensed with in case when the person holding the power-of-attorney signs the document on behalf of the principal would not minimise the risk of fraud and .forgery which the Legislature intended to avoid by bringing sections 32. and 33 of the Registration Act on the statute book. Thus, we are of the view that when an agent presents a document for registration, irrespective of the fact whether he has signed the document on behalf of the principal or not, he must have a power-of-attorney executed, and authenticated as envisaged under section 33 of the Registration Act." Therefore, we conclude that if one claims to reside at Lahore he must either own immovable property or has business or industry or service or job or admission in an educational institution at Lahore. The mere visit, casual or for recreation or sight seeing or just going to place to visit a friend or relative would not be covered by the term "resides".

11. Now coming to the factual side of this issue. We are very clear in our minds that it was a mere concoction and our reasons are-- Firstly, that although the plaintiffs examined P.W.1, P.W.2, P.W.5 and P.W.6 to prove that Sultan Ali never resided in Chak No.248/GB, Tehsil Gojra but none of these witnesses was even suggested in the cross-examination that they are making incorrect statements and, in fact, the said Sultan Ali did stay with Ghulam Rasul father of D.W.8. It is clear from this that the story of stay with Ghulam Rasul was cooked up after the plaintiffs closed their side; and Secondly, P.W.8 did not give any details of the friendship of Sultan Ali with his father. This is besides the fact that he clearly stated that defendant No.3 D.W.6 came to their Chak before the execution of the power of attorney and he was contradicted on this point by him while appearing as D.W.6 The relevant portion of his statement reads as under:--

12. Now coming to the other important (fact that Sultan Ali was not identified or power of attorney was not witnessed by any 'of the locals. D.W.3 and D.W.9 have clearly stated that they were asked to do the needful in respect of the general power of attorney by Faqir Muhammad, Naib Tehsildar. Authentication of power of attorney is not merely an attention but implies that', person authenticating has to satisfy himself as to the identity of the execution and factum of execution. In this behalf, we can refer to the case of Qurban Hussain (supra) and Wali Muhammad Chaudhari and others v. Jamal-Uddin Chaudhari AIR 1950 Cal.

524. In view of all- these facts we hold that the general power of attorney Exh.D.I (P.3) was not legally registered and for that reason no presumption is attached to the same.

13. It is interesting to note that Faqir Muhammad D.W.5 categorically admitted that the identity of the executant should be clear. The relevant portion of his statement reads as under:-- But in spite of clear knowledge of law and procedure he registered the document when the executant was not resident of Gojra and he was not identified by any proper person. It is clear even from the defence evidence that in fact this was all being done by Faqir Muhammad.

14. Now the question is whether in the circumstances of the case the 1 general power of attorney was validly registered. The defects in the procedure followed by the Registrar and lack of jurisdiction are two different things. It would be a case of lack of jurisdiction if a person not entitled to do so presents a document for registration or where there is a lack of territorial jurisdiction or presentation is out of time then it would not be a case covered by section 33 of d the Registration Act. We are fortified in our view by the judgment in the case of Ma Pwa May v. Chettiar Firm AIR 1929 Privy Council

279. We accordingly hold that the general power of attorney Exh.D.I (Exh.P.3) 10-11-1982 was not legally registered document. ,

15. Now coming to the other part of the ,issue .e. the execution, registration of sale-deeds and payment of consideration. According to the authority as given in the alleged power of attorney, sales were to be subject to the concurrence of Sultan Ali. The relevant portion of the power of attorney reads as under:-- The appellants seem to be conscious of this fact. It was for this reason that appellant No.3 appearing as D.W.6 stated that the transactions were struck by Sultan Ali himself. But this statement is falsified by the statement of Sultan Ali under section 164, Cr.P.C. wherein he stated that he was still owner of the land. This is not all. If the owner has struck the deals then he was to receive at least earnest money whereas according to D.W.6 the consideration was received by him and thereafter he proceeded to open an account in his own branch of the Bank where he was working and deposit the amount in this account. The sale deeds were clearly in excess of the alleged authority given to appellant No.3, E therefore, liable to be struck down on this score alone. There is, also, failure or consideration.

16. Now coming to the argument that the general power of attorney and sale-deeds were all illegal and fraudulent documents introduced to deprive Sultan Ali and his heirs of valuable property. It is true that the plaintiffs in this behalf have proved the circumstances which, according to them, lead to irresistible conclusion that the whole matter from disappearance of Sultan Ali to his death was a fishy affair. On the other hand, the learned counsel for the appellants argued that there is no direct evidence but he failed. to point out what would have been the direct evidence to prove these allegations in the circumstances. The inferences which arise from the sequence of the facts can furnish basis for deciding an issue in civil suit.

17. The learned counsel for the appellants laid much emphasis on the fact that the suit for permanent injunction was filed by the plaintiffs but Sultan Ali was not impleaded as a party. In our view, this is a fact which goes against appellants Nos.l to 3 because it is clear from this that the plaintiffs had no grievance if the land was sold or disposed of by Sultan Ali. Conversely speaking their grievance only was that respondents Nos. l to 3 should not deprive the said Sultan Ali- of his property legally or fraudulently, therefore, Sultan Ali was not necessary party to that suit.

18. This is not all. The admitted position is that earlier appellant No. l was appointed as General Attorney vide power of attorney dated 3-7-1977, but the same was subsequently cancelled through cancellation deed dated 30-3-1978 Exh.P.2. ,It was clearly stated in this document that appellant No.2 was proceeding in a manner prejudicial to his interest. This is admitted by the learned counsel for the appellants that appellant No.3 was not directly related to Sultan Ali and his sister is married to appellant No.l. Now if the deceased had no faith in his real nephew how he could appoint a third person, who was not related to him but a very close relation of appellant No. 1, whose general power of attorney he had already cancelled. It is also in evidence that even the so called sale consideration allegedly deposited by appellant No.3 in the Bank Account of Sultan Ali was disbursed amongst appellants Nos. l and 2 and their other two brothers. There is no document on the record to prove the deposit and disbursal of the amount. But this fact goes a long way to show that appellant No.3 played a key role in the whole fraud since he is an employee of a Bank.. Therefore, it is deemed proper that a copy of this judgment should be sent to the Head Office of Muslim Commercial Bank Limited.

19. Now coming to C.M. 1-C/94 dated 19-9-1994 Manzoor Ahmad, 'respondent, who allegedly moved this application has not only denied the same today but also earlier as is clear from the interim order dated 2-11-1994. This is not all. Respondents Nos.4 and 5 are minors and they implead through Manzoor F Ahmad. The alleged application is clearly derogatory to the interest of these minors, and Manzoor respondent No.3 could not bind them. This seems to be another attempt to keep intact gains of earlier illegal acts. Reference to Order XII, Rule 6, C.P.C. is irrelevant because the respondent has denied making application. Therefore, there is no question of taking the averments of the application as admission on their part.

20. It is clear from the foregoing ,paragraphs of this judgment that Faqir Muhammad is guilty of at least gross misconduct, therefore, let a copy of this judgment be sent to the Member (Revenue), Board of Revenue, Government of the Punjab, for initiating disciplinary proceedings against the said Faqir Muhammad. The proceedings should be finalised by the 31st December, 1995 and report submitted to the Registrar of this Court.

21. We would be failing in our duty if the' assistance rendered by the learned counsel for the parties in reaching the conclusion and the pains taken by Rao Sultan Ali Tahir, Civil Judge 1st Class, Faisalabad, in rendering a comprehensive judgment are not appreciated.

22. The upshot of the above discussion is that we do not find any merit in this appeal. The same is dismissed with costs. A.A./M-220/L Appeal dismissed.