2019 PLP 1548 (YLR)

CH. MUHAMMAD MASOOD JAHANGIR, J.

The dispute between the parties pertained to land measuring 264 Kanals 06 Marlas and the claim of the respondents/plaintiffs in their suit for 'declaration and in alternative specific performance of agreement to sell was that petitioner No.1 Fateh Muhammad and Mst. Hakim Bibi, the predecessor-in-interest of petitioners Nos. 2 to 5/ defendants were brother and sister inter se, who being occupancy tenants agreed to sell the land to respondents against a consideration of Rs.130000/- and after receiving it, not only agreement to sell (Exh.P1), receipt (Exh.P2) were executed rather possession was also delivered and in acknowledgement thereof, General Power of Attorney (Exh.P3) in favour of Ghulam Muhammad, father of plaintiff/ respondent No.1, was also attested on 17.07.1980 authorizing him to transfer the subject land after attestation of Conveyance Deed; that with the efforts of Agent, Conveyance Deed, (Exh.P5) was attested on 26.07.1984 and thereafter vide mutation No. 79 dated 31.03.1985 (Exh.P8), the subject land was transferred to the respondents/plaintiffs; that the petitioners / defendants subsequently approached the Revenue Hierarchy for the review of mutation (Exh.P8), which was accorded by the Collector and despite assail it was maintained by his Appellate Court, compelling the respondents/ plaintiffs to file the lis to save their mutation from its cancellation as well as to protect their purported sale. The suit was resisted by the petitioners/defendants with the firm stance that property had been allotted to them, who being illiterate and 'parda observing' persons appointed Ghulam Mohammad, father of respondent No.1 as their General Attorney while executing Deed of Attorney (Exh.P3) to acquire its proprietary rights in their favour, whereas neither transaction of sale was ever settled nor they received any consideration; that the contract (Exh.P1) and receipt' (Exh.P2) were forged and fictitious, which might have been procured during the course of execution as well as attestation of Exh.P

3. It was also pleaded in the written statement that the moment they noticed that the Agent/Ghulam Muhammad had become hostile to their interest, they revoked his powers through registered Cancellation Deed dated 07.02.1983 (Exh.P10), whereas Conveyance Deed (Exh.P5) was attested in their favour on 26.07.1984, as such subsequent attestation of mutation No.79 dated 31.03.1985 in favour of the respondents/plaintiffs was nothing, but result of collusion, fraud and misrepresentation. The learned Civil Court narrowed down the legal as well as factual controversy among the parties by settling following issues:-

1. Whether the suit is not maintain-able in its present form? OPD

2. Whether the plaintiffs have got no cause of action and locus standi to bring this suit? OPD

3. Whether the suit of the plaintiffs is within time? OPP

4. Whether the suit of the plaintiff is not competent in view of preliminary objection No. 4, if so with what effect? OPD

5. Whether the plaintiffs are estopped by their act and course of conduct to bring this suit? OPD

6. Whether the alleged agreement of sale is a forged document and is based upon fraud and the plaintiffs have come in the court with the unclean hands in view of preliminary objection No.6, if so with what effect? OPD

7. Whether the suit of the plaintiffs is false, vexatious and frivolous and the defendants are entitled to special costs under section 35-A of C.P.C., if so, to what amount? OPD

8. Whether the plaintiffs have become owners in possession of the suit property by way of transfer of proprietary rights in their favour through their general attorney Ghulam son of Hayat Khan vide mutation No.79 dated 9.3.1985?OPP 8-A. If issue No.2 is not answered in affirmative then whether the defendant No.1 Fateh Muhammad and Hakim Bibi predecessor of defendants Nos.2 to 5 entered into agreement to sell dated 17.7.1980 in respect of suit land measuring 264 Kanals 06 marla in favour of the plaintiffs against the sale consideration of Rs.1,30,000/-? OPP 8-B. Whether the defendant No.1 and Hakim Bibi predecessor of defendants Nos.2 to 5, received the entire sale consideration of Rs.1,30,000/- against the written receipt dated 17.7.1980 and delivered physical possession over the suit property in favour of plaintiffs? OPP 8-C. Whether the defendant No.1 and Mst. Hakim Bibi predecessor in interest of defendants Nos.2 to 5 executed general power of attorney in favour of Ghulam son of Hayat Khan (father of plaintiff No. 1) dated 17.7.1980? OPP 8-D. Whether the sale price of the land at Rs. 12,389.84 were subsequently deposited by the plaintiffs into government treasury and the defendants subsequently agreed to consider the said payment as an additional sale consideration in addition to previously paid amount of Rs.1,30,000/ in pursuance of agreement to sell?OPP

9. Relief.

2. After a trial spreading over more than 10 years, in earlier round of litigation, the suit of the respondents/ plaintiffs was dismissed on 07.09.2000, however, it was remanded by learned District Court and pursuant thereto in second phase, it was not only decreed by learned Civil Court, but Appeal of the petitioners also failed, hence, the concurrent judgments dated 20.05.2005 and 24.04.2010 are the subject of Petition in hand.

3. Mr. Muhammad Shahid Tassawar Rao, Advocate, learned counsel for the petitioners emphasized with great vehemence that the disputed agreement to sell was allegedly executed on 17.07.1980, but it was brought into light after about 10 years through the suit, which on the face of it, was time barred; that Article 113 of the Limitation Act, 1908 was to be applied, but the Courts below erroneously attracted Article 120 thereof; that contract of sale (Exh.P1) and receipt (Exh:P2) were forged and fictitious documents, which might have been procured during the course of execution of General Power of Attorney (Exh.P3), but both the Courts below failed to take notice that the executants of these documents were illiterate and 'parda observing' persons having no independent advice with them and in such situation, beneficiaries/respondents were under obligation to have proved that the vendors had such an advice to fully understand the nature of transaction couched therein, whereas they failed to prove this fact. The next forceful submission of Mr. Rao was that the Agent/Ghulam Muhammad played fraud to usurp the property of the infirm petitioners, whereas powers delegated to him having already been withdrawn, who otherwise was not competent to transfer the property by means of mutation and that too in favour of his kith and kin.

4. In contra, it was argued by Mr. Muhammad Ijaz Lashari, Advocate,. learned counsel for respondents that both the Courts below after appreciating the evidence in detail concurrently, decreed the suit, as such this Court cannot invoke its jurisdiction under section 115 of the Code, 1908 to disturb those. It was further pleaded that the Power of Attorney (Exh.P3) was executed against consideration, hence under the law, it could not be revoked and that it being a registered instrument had presumption of correctness. He further added that each and every signatory of documents executed among plaintiffs and defendants were examined to fulfil the requirements of Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984. It was also argued on his behalf that the moment sale consideration was paid, the possession of the property was also transferred to his clients and the declaratory suit was maintainable, as such both the Courts below were perfect to apply Article 120 of the Act, whereas the suit was instituted within prescribed limitation.

5. Arguments heard and record also perused through the able assistance of learned counsel for the parties.

6. The axis and admitted document among the parties was General Power of Attorney (Exh.P3) and its vital part would be advantageous to reproduce hereunder:- All it manifested that Principal being illiterate and 'parda observing' were not in position to acquire proprietary rights of the allotted land and for this purpose, the Attorney was appointed to proceed with the codal formalities and after having proprietary rights in favour of the executants, the property could only be transferred through Sale Deed by the Agent whereas the latter was not delegated any power to have it alienated through mutation. This principle had already been settled by the Superior Court by now that general words do not confer unfettered powers, but are restricted for the purpose only for which the authority was given. See Rana Nisar Ahmad v. Sher Bahadur Khan and others (2006 CLC 999), Noor Alam through L.Rs. and another v. Muhammad Bashir and another (2015 CLC 1675) and Imam Din and 4 others v. Bashir Ahmed and 10 others (PLD 2005 SC 418). In former case, the conclusion of the apex Court being relevant and in all four corners applicable as per facts of this case is reproduced hereunder:-- "The power of attorney is a written authorization by virtue of which the principal assigns to a person as his agent, and confers upon him the authority to perform specified acts on his behalf and thus primary purpose of instrument of this nature is to assign the authority of the principal to another person as his agent. The main object of such type of agency is that the agent has to act in the name of principal and the principal also purports to rectify all the acts and deeds of his agent done by him under the authority conferred though the instrument. In view of nature of authority, the power of attorney must be strictly construed and proved and further the object and scope of the power of attorney must be seen in the light of its recital to ascertain the manner of the exercise of the authority in relation to the terms and conditions specified in the instrument. The rule of construction of such a document is that special powers contained therein followed by general words are to be construed as limited to what is necessary for the proper exercise of special powers and where the authority is given to do a particular act followed by general words, the authority is deemed to be restricted to what is necessary for the purpose of doing the particular act. The general words do not confer general power but are limited for the purpose for which the authority is given and are construed for enlarging the special powers necessary for that purpose and must be construed so as to include the purpose necessary for effective execution. This is settled rule that before an act purported to be done under the power of attorney is challenged as being in excess of the powers, it is necessary to show on fair construction, that the authority was not exercised within the four corners of the instrument." As discussed supra, Ghulam Mohammad was confined in selling the land through attestation of Sale Deed after having it executed on non-judicial Stamp Papers and in the light of strict rule that Power of Attorney has to be strictly construed, the Agent was not competent to alienate it through sanction of oral sale mutation dated 31.03.1985, hence the authority for want of explicit delegated powers was invalid. To form such view, this Court again sought guidance from other part of Imam Din's case (supra), in the following terms:- Be that as it may, even if a presumption of existence of the power of attorney is raised, the transaction would still be not considered genuine and within authority of agent for want of explicit power of oral sale. The attorney was specifically authorized to sell the property through registered sale-deed and in the light of strict rule of construction of power of attorney, the implied authority of oral sale could not be presumed. The attorney was not given general authorization for disposal of property in any manner rather his authority of sale was restricted by registered deed and consequently, his failure to act in the manner as provided in the document would render the transaction, invalid. It was held in Fida Muhammad v. Muhammad Khan (PLD 1985 SC 341 as under:-- "It is wrong to assume that every "general" Power of Attorney on account of the said description means and includes the power to alienate/dispose of property of the principal! In order to achieve that object it must contain a clear separate clause devoted to the said object. The draftsman must pay particular attention to such a clause if attended to the included in the Power of Attorney with a view to avoid any uncertainty or vagueness. Implied authority to alienate property, would not be readily be deducible from words spoken or written which do not clearly convey the principal's knowledge, intention and consent about the same. The courts have to be vigilant particularly when the allegation by the principal is of fraud and/or misrepresen-tation." The perusal of attested copy of the power of attorney would show that various acts relating to the management of property, litigation and all other matters concerning the property, including the power of selling through registered sale deed were mentioned therein in explicit terms and the attorney was bound to act strictly in the manner as specified in the power of attorney to ensure that the transaction was transparent and free of fraud and misrepresentation. The property in respect of which the power of attorney was executed, was allotted to the vendor by the Rehabilitation Department and the powers given therein in the power of attorney were in respect of the litigation of property with the departments, including the power of filing of suits, written statements, appeal, revision in the Civil Court, High Court and Supreme Court, the management of the property, the ejectment of tenant, receipt produce and rent from the tenants to pursue litigation, civil and criminal to file affidavits and applications in the suits as well as in execution proceedings and let out property on lease. In addition, the attorney was also empowered to sell the property on receipt of the sale price through registered sale deed and appoint the Advocate for his assistance. The perusal of this document would show that the power of sale of land was given to the attorney specifically by means of a registered sale deed and probably the purpose of restricting the power of sale only by registered sale deed was to avoid any misuse of the said power and to ensure that the sale was with consent and knowledge of the principal, therefore, in the light of rule of strict construction of such instrument, it could be visualized that the oral sale was not within the authority of agent under the instrument." The other aspect of the case was that the Agency was terminated by the petitioners/defendants. through instrument (Exh.P10) on 07.02.1983 and thereafter alienation of land through sanction of mutation No.79 dated 31.03.1985 was neither justified nor valid. The recital of Deed of Attorney envisaged that mainly it was executed by languid persons for the conferment of proprietary rights upon them and other allied activities. The specific devoted clause for its further sale at a subsequent stage through a restricted mode might have been delegated to secure his land from any misuse. The Agent was well aware of the condition as well as withdrawal of his authority. In such situation, it was not possible for him to have transferred the property through a Sale Deed as required by the adoring clause for the reason that the Registering Officer prior to attestation of Sale Deed might have confirmed that Deed of Attorney was intact or not, therefore for ulterior motive an engineered mode was followed to usurp the subject land of feeble persons.

7. The emphasis of Muhammad Ijaz Lashari, Advocate for the respondents/ plaintiffs that Power of Attorney was scribed against consideration, therefore it could not be revoked by its Principal was not well founded. No doubt on the same day when Attorney Deed was executed, the contract of sale (Exh.P1) and Receipt (Exh.P2) against sale price of Rs.130000/- were also scribed, but admittedly both of these (Exhs.P1 and 2) were neither referred in the Agency Deed nor it was disclosed therein that property had been purchased against some consideration for such and such person, whereas the instrument of Deed of Attorney must have contained a clear clause devoted to the said object, which on the face of it was missing. It was correct that in the contract of sale (Exh.P1) there was a reference that Power of Attorney had already been executed in favour of father of one of the vendees, but execution of it as well as Receipt (Ex:P2) was specifically denied with certain allegations. It is to be remembered that infirmity of the purported vendors was not only a pleaded plea, on their behalf, rather it was particularly explained through the contents of Agency Deed, which was an admitted document among the contesting parties and in such situation besides that execution of the Agreement was to be proved, it was also sine qua non for the beneficiaries to have established that the vendors had independent advice from a reliable source of trust to fully understand the nature of the transaction couched therein. The statement of Rehmat Ali (PW4), alleged cousin of the vendors could not be treated a source of trust for them. He, no doubt, exposed in his statement that contract was read over to the executants for their understanding, but it was nowhere pleaded in written statement or deposed either by PW4 as well as Attorney of the plaintiffs (PW10) that Rehmat Ali being independent advice played any role to have understood the transaction to the illiterate and 'pardanashin' vendors. Rehmat Ali, admitted in his statement that plaintiffs were also known and related with him, so in such situation, he, if any, lost his status being independent advisor to the vendors. He being departure to contents of the plaint in his statement exposed that at the time of settlement of transaction, he besides his cousin as well as Lumberdar was present, which was struck in the village, 15/20 days prior to scribe of documents (Exhs.P1 to 3), but neither the cousin nor the Lumberdar, who purportedly witnessed the earlier transaction, was examined. Rana Gulzar Ahmad (PW5) the next signatory of Exhs.P1 to 3 although stated that consideration was paid before him, but admitted that sale was not struck before him. It was also a hard fact that he was neither resident of the Revenue Estate where the vendors were residing nor of the locality where the land situate. By wording that on the day of execution of these documents, he was called upon by Rehmat Ali, the impartiality of the latter was further doubted. It was also surprising that out of the vendees/ plaintiffs, none appeared in the witness box, rather on their behalf Ghulam Mohammad (PW9), being Special Attorney appeared. He is the same person, who being General Attorney was appointed by the petitioners/defendants and in his statement-in-chief, he explicitly stated that at the time of transaction of sale, the consideration was paid. He in cross-examination (at page 53) exposed that transaction was settled 15/10 days before the execution of transaction. If this part of his statement is taken as correct, then deposition of Rana Gulzar Ahmad (PW5) that consideration was paid before him, whereas he admittedly was not participant of the gathering where the transaction originally struck, becomes contrary to PW

9. Zulfiqar Ali, another attesting witness of the under discussion documents was not examined. No doubt, PWs.4 and 5, two out of three attesting witnesses were examined, but their testimony as discussed above was not of credence to prove the construction of questioned documents as well as sale reflected therein, whereas, Mr. Ijaz Lashari, Advocate on behalf of respondents failed to justify the withholding of his clients as well as Zulfiqar Ali, the third marginal witness of the contract and the receipt, as such hostile inference under Article 129(g) of the Order, 1984 was to be drawn that had they been examined they might have failed to prove the pleas and facts with regard to their purported documents as well as transaction, but both the Courts below also disregarded this aspect.

8. The statement of Zafar Iqbal, Oath Commission, who merely attested the Sale Agreement and Receipt was of no value, especially when he admitted that neither it was entered in his relevant Register nor the consideration was paid in his presence and the parties were also not known by him. Although Mohammad Islam (PW4) was also examined on behalf of the plaintiffs/respondents, but his deposition during cross-examination is not beneficial to them when he stated as under:- Among rest of the PWs, no one being direct witness to the documents or transaction referred therein was important to be discussed here. In the light of minute appreciation of available evidence on record, there left no doubt that Courts below failed to evaluate it as per its substance, hence their findings on issues Nos. 6, 8, 8(a), 8(b) being result of misreading and non-reading of evidence are reversed and answered against the plaintiffs/respondents.

9. The next focal issue would be the institution of suit within limitation or not. The entire case of the plaintiffs/ respondents hinges on contract of sale (Exh.P1) allegedly scribed on 17.07.1980. To resolve this issue, Court has to advert to provisions of Article 113 of the Limitation Act, which visualizes two conditions; one when the date for performance is fixed in the contract itself and the other when no such date is fixed. In the former case, the starting point would be the fixed date, but in the latter, the limitation would remain suspended and start to run only when the promisee is put under notice of its refusal. Admittedly, the first part of the Article is not attracted in the case in hand. It is only second part which would govern the case and Court has to make a search whether there was a refusal on the part of promisors in this case, if so, when it was refused. The General Power of Attorney was cancelled on 07.02.1983 through registered Revocation Deed, which being notice to public at large was also a refusal on the part of the promisors with regard to alleged transaction. The other notified denial was their move, whereby they approached the Collector for accord of review to cancel mutation No.79 attested in favour of the respondents/plaintiffs, which was granted on 09.06.1985. Both these acts on behalf of the petitioners were more than notice that performance of the purported sale was refused and at least these came in the knowledge of the promisees when they preferred Revision before Additional Commissioner (Revenue) on 08.11.1985. As such, period of limitation would start running from 08.11.1985 and the suit could be instituted till 07.11.1988, which having been filed on 08.04.1990 after four years and five months was clearly out of limitation. Admittedly, respondents had instituted suit for declaration mainly basing their claim upon Agreement to Sell or in alternate for specific performance thereof. The deed of contract being unregistered was neither a document of title nor it created right or interest in the subject property as envisaged under section 49 of the Registration Act, 1908 whereas declaratory suit under section 42 of the Specific Relief Act, 1877 on the basis of such document was not maintainable. So, there was no scope to attract the Article 120 of the Limitation Act, 1908 to bring the suit within time. The Courts below failed to decide issue No.3 as per law, which findings are reversed and also answered in favour of petitioners.

10. The argument of learned counsel for respondents that concurrent findings cannot be interfered with is fallacious. There is no quibble to the proposition that the revisional jurisdiction of this Court under section 115 of the Code, 1908 is invoked only in the cases wherein the lower Courts have exercised the jurisdiction not vested in them by law or they failed to exercise it so vested or it was exercised in an illegal manner or that some material irregularity was committed, but this is the established law that in case wherein it is found that the findings of the subordinate Courts were suffering from misreading and non-reading of evidence or that the conclusions drawn was in absolute disrespect to the law and facts of the case, this Court must interfere in the matter in its revisional jurisdiction and correct the illegality committed by the subordinate Courts. In this regard, I have sought guidelines from the case reported as Shumal Begum v. Gulzar Begum (1994 SCMR 818). The operative para for ready reference is reproduced as under:-- "The revisional jurisdiction under section 115, C.P.C. exercised by the High Court is attracted only in case where the lower Courts have exercised a jurisdiction not vested in it by law or it has failed to exercise jurisdiction so vested in it or while jurisdiction the Courts below have acted illegally or with material irregularity. It is, therefore, quite clear that the High Court while exercising revisional jurisdiction cannot disturb the finding of fact arrived at by the lower Court in proper exercise of the jurisdiction in the Court and upon consideration of the relevant evidence on record. The finding of fact by the lower Court could not be disturbed in revisional jurisdiction by the High Court. If it is found to be fanciful, perverse or it has been arrived at by a process which had rendered the exercise of the jurisdiction vested in the Court defective. In case of misreading of evidence of non-consideration of legal evidence on record, the exercise of jurisdiction and power possessed by the Court is rendered defective, justifying interference by the High Court in exercise of its revisional jurisdiction. The fact that the High Court on reappraisal of the evidence, find that the finding of fact recorded by the trial Court is preferable to the finding of fact recorded by the first appellate Court cannot justify interference with such finding in exercise of revisional jurisdiction by the High Court. The first appellate Court is the final Court in so far the findings of fact are concerned and such finding can only be distributed in revisional jurisdiction by the High Court if it is arrived at by the first appellate Court either by misreading the evidence or through perverse appreciation of evidence on record or due to non-consideration of legal evidence on record."

11. The impugned judgments of the Courts below, although are unanimous, but are tainted with material irregularity, illegality, infirmity, which not only failed to appreciate the material available on record in its true perspective, but also erred in application of correct law, hence cannot be approved. Consequently, this Civil Revision being forceful is allowed, judgments and decrees impugned herein are set aside and suit of the respondents/ plaintiffs is dismissed, with no order of cost. ZC/F-4/L Revision allowe