2014 PLP 1469 (SCMR)

DOST MUHAMMAD KHAN, J.

This single judgment shall also decide the connected Civil Appeal No.1182 of 2007, as the questions of law and facts are identical in both. Besides, both have arisen out of a common judgment of the Lahore High Court, Rawalpindi Bench dated 17-1-2007, deciding Civil Revisions Nos.33 and 34 of 2000.

2. Leave to appeal in both these cases was granted on 8-5-2007 to examine the genuineness or otherwise of the deed of Power of Attorney, on the strength of which, a sale transaction was effected through a registered sale deed.

3. The epitome of the controversy is that, the appellant instituted a suit for declaration and permanent injunction on 16-1-1985, alleging therein, that General Power of Attorney duly registered with Sub-Registrar dated 4-11-1984 was obtained from her by respondent/ defendant No.2 Muhammad Bashir, the brother of her husband through fraud and misrepresentation, as she was given an impression albeit false, that the deed of Power of Attorney was being obtained to institute a preemption suit about the sale of land by her brother. She being a "parda-nishin" lady was neither made to understand the true nature of the contents of the deed nor the same were read out to her and her thumb impression thereon was obtained in that manner. It is further alleged in the plaint that she was at the mercy of her husband at the relevant time, who too had joined hands with the agent to deprive her of the suit land. She also challenged the subsequent transaction dated 18-11-1984, i.e. the land sold out to respondent No.1 (a third party), having no ostensible connection or link with the agent or her husband, on the ground that it is based on a deed of Power of Attorney, obtained through fraud and misrepresentation, thus it was ineffective on her right. It was also alleged that the sale transaction was made in violation of MLR-115 and on that account too, it was void.

4. The purchaser i.e. respondent No.1 and the agent i.e. respondent No.2 filed separate written statements. They contested the suit on various grounds, both legal and factual. At the conclusion of the trial, the suit was decreed as prayed for. On appeal, the learned Additional District Judge, Chakwal set aside the judgment/decree of the Trial Court, dismissing suit of the appellant, after holding that neither misrepresentation was made nor any fraud was practiced upon the appellant; while, the appeal filed by Nazar Hussain-respondent No.1, the bona fide purchaser (third party) was allowed. The appellant preferred two Civil Revision Petitions, as mentioned above, before the Lahore High Court, Rawalpindi Bench and the learned Judge in Chamber, vide impugned judgment, endorsed and upheld the findings and judgment of the District Appellate Court and dismissed both the revision petitions.

5. During the trial, one Subedar Ikhlaq Ahmed from Pak Army was produced being batch mate of the husband of the appellant, who stated that the brother of the appellant submitted an application to the Commandant of the Unit that the appellant was confined in her house by her husband and nobody was allowed to meet her. He stated that on the direction of the Unit Commander, the appellant was allowed to go with her brother. However, he admitted that all these proceedings took place verbally. He also admitted that in Army Colony, no outsider was allowed to enter without prior permission. He also conceded that he has not been summoned by the Court but for giving evidence in favour of the plaintiff, he had obtained leave from his Unit. He further admitted that he was brought to the Court by Muhammad Arif i.e. the brother of the plaintiff for giving evidence and also stated that visitor's name and address and purpose of visit entered at the entry-gate by Subedar Incharge, however, no such record was available nor was produced in Court.

6. The appellant-plaintiff, in her statement before the Court, has admitted the execution of deed of Power of Attorney. However, her stance was that the same was obtained through misrepresentation, under false impression that she has given the power to the agent to institute a preemption suit against the land, sold by her brother namely Muhammad Arif, while in deed of Power of 'Attorney, complete authority was vested in the agent to sell etc., property of the appellant. She has also admitted the visiting of the office of the sub-Registrar, however, she has alleged that she was kept aside in a veranda and a person came to ask her whether she was executing the Power of Attorney or not, to which she consented. She also admitted that the deed of Power of Attorney was attested by her husband and one Muhammad Jamil, who too was from the same Unit of Pak Army and that she thumb-impressed the same but under misconception and due to misrepresentation.

7. It has come on record that the appellant was married in the year 1976. She gave birth to two children, who could not survive. There is no evidence on record that during the said period, extending up to almost ten years, the relation between the spouses remained strained, at any stage, rather they were cordially living together and were shifting from one place to another, when her husband was transferred from one Unit to another. After the undue interference of Muhammad Arif, brother of the appellant, the appellant was taken away by him to his own house and it appears rather there are strong indications on record that, it was at the instance of her brother that she instituted the suit. It is her brother, who out of greed was after the property and was pursuing the case throughout, up to the High Court, which is another circumstance, going against the appellant. Besides this fact, the dissolution of marriage through divorce, took place in the year 2000, i.e. fifteen years after the transaction was given effect. The accumulative and combined effects of these facts and circumstances would show that the appellant and her husband were living a cordial martial life, having good relations inter se but it was due to undue interference of the brother of the appellant that the relations went sour and ultimately culminated in permanent separation through divorce in the year 2000.

8. The original deed of Power of Attorney dated 4-11-1984, was tendered in evidence as Exb.D1, which was registered on the same day with the sub-Registrar, Chonian. The same admittedly bears the thumb impression of the appellant and also her NIC number has been mentioned on it by the Sub-Registrar. Proper certificate as required under the law was appended to the deed, after it was acknowledged by the appellant before the Sub-Registrar and it was read over to her.

9. The respondent produced Wajahat Ali, Stamp-Vendor (D.W.2), who testified that it was the appellant, who purchased the stamps papers for executing Power of Attorney. However, the register, in which it was entered, was deposited in the Deputy Commissioner's Office, therefore, the trial Court summoned the custodian of the same and one Amanat Ali Baig, Head-Clerk, Deputy Commissioner Office (D.W.3) appeared and produced the register, who also fully endorsed the fact that stamps were purchased by the appellant and besides her thumb impression, her NIC number was also mentioned therein.

10. Muhammad Nazir, husband of the appellant appeared as D.W.6, who too testified that the appellant duly executed the deed of Power of Attorney in favour of her agent Muhammad Bashir, with her free will and consent, in his presence and got registered it with the sub-Registrar. The land was sold to respondent No.1 for Rs.4,30,000 and the amount was received by the appellant. This portion of his statement was not seriously challenged by the appellant, in any manner, nor any suggestion was put to him that relation between the spouses were strained or he was otherwise not fair to her.

11. Moharrar Registry had also appeared, who too supported the due execution of the deed of Power of Attorney by the appellant in favour of her agent and that it was fully explained to her by the Sub-Registrar, as evident from the certificate appended thereto.

12. Besides above, Muhammad Bashir-respondent No.2, agent of the appellant, appeared as D.W.7, who squarely stated that deed of Power of Attorney was executed by the appellant with her consent, freewill and full understanding. It was fully explained to her, after reading out the contents of the same to the appellant. During cross-examination, not a single question was put to this witness, slightly suggesting that the deed of Power of Attorney was obtained through fraud or misrepresentation, or the same was not read over and explained to her.

13. After discharging the burden to prove, which is ordinarily placed in such transactions, on the person in whose favour, an illiterate lady executed such deed, nothing cogent or solid evidence was led in rebuttal. However, the most striking feature of the case is the application of the appellant, submitted to the sub-Registrar, dated 27-1-1985 (Exb.P4), wherein it is stated in no uncertain words as follows (urdu version):-- This application was submitted after the institution of the suit by the appellant. The stance taken in this application is entirely in conflict with her earlier consistent stance that the deed of Power of Attorney was obtained from her through misrepresentation and fraud and on the plea to institute a preemption suit against the land, sold by her brother Muhammad Arif.

14. True that the law since long, developed by the Superior Courts, provides maximum protection to illiterate ladies, to ensure that no one could practice fraud upon them and to deprive them of valuable property rights. However, under the garb of that protection or privilege, such ladies could not be given free licence to tell lie, by misusing such privilege or protection, allowed to them under the law. It is well embedded principle of law that "one who makes statements, mutually inconsistent statements in the same matter, at two occasions, with regard to the same issue, is not entitled to be listened to", because the credibility of the person, giving testimony on oath, is shaken to a great extent, once she is found indulging in jumping from one stance and catching on another stance, such eventuality would give rise to strong presumption that under the garb of protection given to illiterate lady, she is herself indulging in misrepresentation and attempting to mislead the Court to reach at a patently wrong conclusion. In any case, Courts are required to deal with each individual case according to facts and circumstances and evidence adduced therein and in no manner, to widen the scope of the protection/privilege, given to illiterate ladies in the matter of such transaction.

15. In this case, the sale transaction was effected through a registered sale deed and respondent No.2 has paid handsome sale consideration to agent of the appellant. If the appellant was having any grievance against her agent, about non-payment of sale consideration to her, then she was required to come with clean hands and clear stance to that effect, but that is not her case, set up in the plaint and during the course of evidence, albeit, subsequently, in the application dated 27-1-1985 (Exb.P4), she has given the same version that her agent is going to sell her property on throwaway price and he is likely to cause loss to her. She had by then already instituted the suit about the same transaction and had annexed copies of the Power of Attorney and the sale deed with her plaint. Despite having full prior knowledge of the transaction, she applied to the Sub-Registrar, giving entirely a different version, pretending that transaction by then had not been effected, which was not the case in hand.

16. The case-law produced by the learned counsel for the appellant i.e. Janat Bibi v. Sikandar Ali (PLD 1990 SC 642) and in the case of Muhammad Tufail v. Akbar Ali (2004 SCMR 1370) are distinguishable from the facts and circumstances of this case, both on factual and legal premises and are not attracted to it.

17. This Court in the case of Shabana Irfan v. Shafi Khan (2009 SCMR 40), has held as follows:-- "Application of the petitioner filed under section 12(2), C.P.C. was dismissed by the trial Court, against the judgment/decree earlier passed. The High Court in exercise of Revisional Jurisdiction remanded the application to the Trial Court for deciding the same, after framing of issues and recording of evidence of the parties.

It was, however, held that if any fraud was allegedly committed by attorney with owner of the property, it was the matter between agent and principal, for which agent could be prosecuted through criminal proceedings and to agitate her grievance therein....... Owner of the property having other separate remedies against his agent, she could not be allowed to affect the transaction of plaintiff, who had paid a huge sum to the agent of owner of the property

It was further held that there was no need to prolong the litigation, when the case ex-facie appeared to have been filed in a wrong jurisdiction and when fraud or misrepresentation was not involved in the case or in the transaction.

matter was dispute in between principal and agent could not affect the third party, as the third party (plaintiff) was not privy to the alleged fraud, misstatement, misrepresentation or wrong doing of the agent, if any committed by the agent with his principal. Thus this Court set aside the judgment/order passed by the High Court and restored that of trial Court resulting into dismissal of application under section 12(2), C.P.C. and appeal was allowed."

18. The ratio laid down in the above case is fully attracted to the facts and circumstances of the case in hand. However, it was, at no stage, the case of the appellant that her agent has not paid the sale consideration to her, while on the other hand overwhelming evidence has been furnished by the respondent side about payment of sale consideration to the appellant, through her agent in the presence of the witnesses.

19. After what has been discussed above, we are of the considered view that the learned Judge in Chamber of the High Court was fully justified in holding almost similar view by dismissing the two revision petitions of the appellant, after full reappraisal of evidence, adduced by the parties at the trial and also carefully considering the preponderance of the evidence. Thus, the conclusion drawn by the learned Judge of the High Court is not open to any exception.

20. Even otherwise, this Court in the case of Kanwal Nain v. Fateh Khan (PLD 1983 SC 53) has held that concurrent findings of two Courts below are not open to interference in limited revisional jurisdiction of the High Court, albeit, it may be, to some extent, erroneous on point of fact and on point of law, both.

21. Keeping in view the above principle, the principles of reappraisal of evidence by the Supreme Court are more stringent, unless and until, it is established that the two Courts below, including the High Court, have grossly misread or non-read the material evidence and the impugned judgments and decrees are perverse, causing serious miscarriage of justice, the Supreme Court would exercise extra-ordinary restraints, to interfere in it so lightly, as was suggested at bar.

22. In view of what has been held above, both these appeals are dismissed with no order as to costs. MWA/Z-3/SC Appeals dismissed.