1986 PLP 363 (CLC)

Date of hearing: 7th August, 1985. This second appeal and the connected revision filed by the two brothers are against a common judgment passed by the learned Additional District Judge, Sanghar affirming the Judgment and decree in two Civil Suits Nos. 21 of 1972 and 174 of 1972 filed by the brothers for declaration, cancellation of a registered sale‑deed and possession of the agricultural land bearing Survey Nos. 248/1 to 4 and 249/3 and 4, all measuring about 15 Acres.

2. These two brothers had acquired this land from the Settlement Authorities through the efforts of one Abdul Wahid, who is a respondent in the second Appeal as well as in the revision. The two brothers namely, Jalaluddin and Atta Muhammad being residents of Sahiwal, could not manage the lands personally. They leased out the same to applicant Haji Yousuf and his son Muhammad Akbar again through the intervention of Abdul Wahid. It appears that this Abdul Wahid was acting as attorney and enjoyed the confidence of the two brothers Jalaluddin and Atta Muhammad. The lease in favour of the appellants continued from 1958 to 1972 without any difficulty and the appellants continued to y pa the lease money to the respondent. But in 1972 when the respondents approached the appellants for lease money, they were informed that respondent Abdul Wahid acting as attorney of respondents Jalaluddin and Atta Muhammad , had sold away the lands to the Lessees Haji Yousuf and Muhammad Akbar son of Haji Yousuf and had executed two sale‑deeds on behalf of the owners/ respondents. This caused alarm in the minds of the owners/respondents and on checking from the records of the Sub‑Registrar, Sanghar, they came to know that the land stood transferred to the appellants, but without any authority or permission from the owners/respondents. The claim of the owners/ respondents for the yearly lease money was resisted by the appellants and this resulted in the filing of two First .Class Suits in the Court of the learned Senior Civil Judge, Sanghar. The relief claimed was "that this Hon'ble Court may adjudge that the sale‑deed in respect. of. the suit land executed by defendant No. 1 as attorney of plaintiff in favour of the defendant No. 2 and presented before the Sub‑Registrar, Sanghar on 16‑11‑1971 and registered in the office of the Sub‑Registrar, Sanghar under its No. 831 on 30‑11‑1971 is illegal, inoperative, void and nullity and not binding on the plaintiff and that the latter continues to be the rightful owner of the suit land and may also cancel the said sale‑deed and its registration". Ejectment of the defendant from the lands and restoration of its possession to the plaintiff was also prayed for. The relief of compensation for use and occupation and enjoyment of the suit land was also prayed for against the defendants. The suits were registered and summons were issued to the appellants as well as to Abdul Wahid, the alleged attorney. This attorney never turned up and remained absent throughout for obvious reasons. About seven issues were framed in each suit, but the main issues on which the facts, of the case turned were the following issues which were common in both the suits:‑ "(3) Whether the plaintiff executed the power‑of‑attorney in favour of defendant No. 1 empowering him to sell the suit land and receive consideration therefor on his behalf, and that the same is genuine document, and if so, what will be its effect on the suit? (4) Whether the power‑of‑attorney purported to have been executed by the plaintiff in favour of defendant No. 1, empowering him to sell the suit land is false and forged document and has never been executed by the plaintiff and whether the sale of the land by defendant No. 1 to defendant No. 2, on the strength of said power‑of‑attorney, is illegal, inoperative and nullity in law and is not binding on the plaintiff and whether they continue to be the rightful owners of the suit land?" As rightly held by the trial Court in the judgment that "the main controversy is sale‑deed in favour of defendant Haji Yousuf, on the basis of power‑of‑attorney. To resolve this controversy the question is 'whether the plaintiff has executed power‑of‑attorney in favour of the defendant Abdul Wahid who had executed the sale‑deed in favour of defendant Haji Yousuf. The proof lies on the defendants that plaintiff has executed power‑of‑attorney, on the basis of which the sale‑deed was effected. If the defendant discharge his burden by proving the execution of power‑of‑attorney in favour of Abdul Wahid, the sale‑deed in favour of defendant on the basis of such power‑of‑attorney will be valid, legal and binding on the plaintiff". The learned trial Judge came to the conclusion that this burden was not discharged by the defendant and consequently he decreed the suit of the plaintiff by two judgments, dated 15‑4‑1975.

4. Two Appeals, Civil Appeals No. 26 and 27 of 1975 were filed against these two judgments and decrees and both of these were consolidated for purposes of convenience and have been disposed of by a common judgment, dated 30‑9‑1978. The appeals have been dismissed and the judgment and decree of the trial Court have been confirmed by this judgment. The appellants have now come to question the validity of the judgment by filing the Second Appeal No. 222 of 1980 and Revision Application No. 144 of 1980 and I propose to dispose of both of them by this judgment as agreed by the two learned counsel.

5. Before proceeding I may state that except these two issues, no other issues were argued before the First Appellate Court, nor have they been argued before me and the whole controversy has now shrunk to the short question 'whether Abdul Wahid respondent was armed with the power‑of‑attorney and enjoyed the mandate to transfer the lands as he has done?'. It is admitted position that no power‑of‑attorney duly signed or executed by the respondents Jalaluddin and Atta Muhammad has been brought on the record. In this case the Sub -Registrar of District Sanghar was summoned by the respondents and he produced the sale‑deed as well as an "authenticated power‑of attorney".

6. Learned counsel for the appellants, in this miserable situation, tried to seek the aid of section 85 of the Evidence Act which runs as under:‑‑ "Section

85. The Court shall presume that every document purporting to be a power‑of‑attorney, and to have been executed before, and authenticated by a Notary Public, or any Court, Judge, Magistrate, Pakistan Consul or Vice‑Consul, or representative of the Central Government, was so executed and authenticated." Surely if the document Exh. 37‑A the so‑called authenticated power‑of -attorney turns out to be a "document purporting to be a power‑of -attorney, and to have been executed before, and authenticated by Notary Public, or any Court, Judge, Magistrate, Pakistan Consul or vice consul or representative of the Central Government", then the Court shall presume that it was so executed and authenticated and for purposes of this case the appellants would be out of the woods. But/ the question is whether in the present case does any such document exist. The document produced by the Sub‑Registrar is an authentic copy of some original which for purposes of this case has never seen the light of the day. In other words there is no power‑of‑attorney duly executed before and authenticated by any one of the officers mentioned in section

85. What has been produced before the Sub -Registrar at the time of registration is merely a copy /authenticated to be a copy of some original. Whether any such original ever existed and whether the document of which the existing authenticated copy is claimed to be a copy, was ever signed and executed by the owners respondent. concerned in favour of respondent Abdul Wahid, remains to be proved and which has not been proved. Nor indeed any such original, of which the copy was produced before the Sub‑Registrar, was produced before the Sub‑Registrar for comparison as is evident from the statement of the Sub‑Registrar, Sanghar (Exh. 37). The so‑called authenticated copy produced by the Sub‑Registrar is admittedly a copy, but the main question whether the original of which Exh. 37‑A is said to be a copy, was ever executed by the executants and it was ever authenticated by the Notary Public. Neither the Notary Public, nor the witnesses, who identified the executants at the time of execution, have been produced and it is open to question whether it is a copy of a copy or a copy of forged original. As such it cannot be relied upon. In view of the above discussion there is no escape from the position that the sale evidenced from the sale‑deeds relied upon by the appellants, was never made by owners/ respondents, nor on their behalf. It was in the eye of law a nullity and must be declared as such. The findings in the two Judgments are, therefore, justified and cannot be reversed or modified. The appellants have been duped and have parted with money without having the benefit of the lands and now join the rank of these for whom there is an old saying "Kharidar Hoshiar Bash", and the old doctrine 'caveat emptor' applies. The second appeal and the revision are dismissed with costs and the judgments of the two Courts below are affirmed. A. A. Appeal and Revision dismissed.