2007 YLR 2662 (PLP)

JAWWAD S. KHAWAJA, J.

The petitioner No.1 Mst. Azra Parveen and petitioner No.2 Khalid Mehmood are wife and husband inter se, The respondent-plaintiff Muhammad Yousaf is the brother of Khalid Mahmood (petitioner No.2). The petitioners impugn the appellate judgment and decree dated 3-3-2005 whereby the decree of the learned trial Court dated 24-11-2004 was set aside and a suit filed by the respondent-plaintiff seeking declaration of title along with permanent injunction was decreed.

2. The facts of the case have been fully-set out in the judgment of the learned trial Court and. need not, therefore, be reproduced in extenso.

3. The case set by the respondent was that he had not executed the agreement (Exh.P.3) -dated 17-11-1996 and the power of attorney (Exh.P.3) dated 17-11-1996 in favour of Azra Parveen {petitioner No.1). On this basis he challenged the power-of? attorney and sale-deed (Exh.P.2) dated 29-1-2001 whereby Mst. Azra Parveen, in exercise of powers vested in her raider the power-of-attorney (Exh.P.3) executed the aforesaid sale-deed in favour of her husband (petitioner No.2). The two petitioners resisted the suit. Based on the pleadings, the learned trial Court framed as many as 12 issues. However, issues Nos.1 and 2 are dispositive of the present case. These were framed in the following terms:- (1) Whether the registered sale-deed dated 29-1-2001, executed by defendant No.1 in the name of defendant No.2 void, illegal and ineffective on the rights of the plaintiff? OPP (2) Whether the general power-of? attorney No.845 dated 17-11-1996 executed in favour of the defendant No.1 is void, illegal and ineffective on the rights of the plaintiff`? OPP.

4. The marginal witnesses of the power-of-attorney and the agreement (Exh.D.1) have appeared and proved the execution of the two documents by the respondent-plaintiff. The witnesses are consistent among themselves and are credible. The most important aspect of the case, however, is that the sum of Rs.6,50,000 mentioned in the agreement was through cheque which was received by the respondent/plaintiff through his bank f account in Islamabad. The receipt of the amount has also been admitted by the respondent in his testimony.

5. These circumstances were in themselves sufficient to prove execution of the agreement (Exh.D.1) and the power-of ?attorney (Exh.P.3) by the respondent-.plaintiff. It was, therefore, for the respondent. to prove affirmatively that the signatures and thumb-impressions appearing on the documents were not made by him. He did not take any steps to have his admitted thumb-impressions on the documents. As to the amount of Rs.6,50,000 admittedly received by him, the respondent stated that this was a loan .taken by him from his brother (petitioner No.2) for the purpose of his business. He conceded that since 1996 when the amount was received by him, he had neither repaid the amount not had he paid any return thereon to his brother. He also did not produce any document or any evidence such as tax returns etc. Relating to his business to substantiate his plea.

6. In the circumstances, the timing of the payment through cheque and the contemporaneous agreement (Exh.D.1) and power-of-attorney (Exh.P.3) were rightly considered by the learned trial Court as proving the defence put forth by the: petitioners and belying the case set up by the respondent-plaintiff. Unfortunately, the learned appellate Court has not dealt with these aspects of the case and nor has it met the reasoning of the learned trial Court. The testimony of the D.Ws. has also not been read by the learned appellate Court. As a result, the impugned appellate decree being a result of non-reading of the record, is set aside. Consequently, the decree of the learned trial Court dated 24-11-2004 stands restored. The petitioners shall also be entitled to their costs throughout. H.B.T./A-78/L???????????????????????????????????????????????????????????????????????????????????? Revision allowed.