P L D 2009 Supreme Court (AJ&K) 13 (PLP)

MUHAMMAD REAZ AKHTER CHAUDHRY, C.J.

Through this appeal with leave of the Court the appellants have called in question the validity of judgment of the High Court dated 27-5-2006, whereby the appeal filed by the present appellants was dismissed.

2. The relevant and necessary facts for the disposal of instant appeal are that the plaintiffs/appellants brought a suit for declaration in the Court of Sub-Judge Sehnsa. It was averred by them that Gulab Khan son of Aziz Bakhsh was real brother of plaintiff No.1 and real uncle of plaintiffs Nos.2 to 4 and pro forma-defendants Nos.3 and

4. Sixty years ago he went to Pakistan. The said Gulab Khan was owner of land measuring 12 Kanals, 12 Marlas, comprising Khata Nos.292 to 323, Khewat No.101, situate in village Bandli, Sehnsa, as sharer owner. The plaintiffs, defendant No.2 and pro forma-defendants Nos.3 and 4 were legal heirs of Gulab Khan. The plaintiffs and pro forma-defendants tried their level best to trace Gulab Khan, but could not find him. A sale-deed was executed in favour of defendant No.1 After the execution of sale-deed, the plaintiffs came to know that it was executed by the attorney of Gulab Khan. After the perusal of power of attorney the plaintiffs and proforma defendants searched Gulab Khan on the address incorporated in the power of attorney and found that he had died twenty five years ago. Defendant No.2 obtained power of attorney by producing some other person instead of Gulab Khan before the Sub-Registrar,' Gujar Khan. Thus the power of attorney of Gulab Khan dated 11-8-1997 executed in favour of defendant No.2 was illegal, against the facts and forged one, which was liable to be set aside. On the basis of this power of attorney, the sale-deed dated 5-9-1997 executed in favour of defendant No.1, Arshad Hussain, was also illegal, against the facts and liable to be set aside.

3. Defendant No.2 during the pendency of suit executed a sale-deed of the same land in favour of defendant No.3. This sale-deed was also challenged by way of amendment in the plaint and it was craved that this sale-deed may also be declared illegal and against the facts, as both the sale-deeds are based on forged and fictitious power of attorney. It was alleged in the plaint that the land in dispute is under the possession of B plaintiffs and proforma-defendants, but the defendants want to forcibly occupy the land. Thus it was craved that a decree for perpetual injunction may be passed in favour of plaintiffs.

4. During the pendency of suit, plaintiff No.1 died and his legal heirs were impleaded as party. After the trial of suit, the learned Sub-Judge decreed the suit and declared the afore-said power of attorney as illegal, against the facts and forged one, therefore, the same was cancelled. The sale-deeds executed on the basis of said power of attorney were also cancelled. Feeling aggrieved from the judgment of the learned Sub-Judge Sehnsa, the respondents filed an appeal in the Court of learned District Judge Kotli, which was subsequently entrusted to learned Additional District Judge Sehnsa. The said Court accepted the appeal vide judgment dated 30-9-2004. Resultantly the suit filed by the plaintiffs was dismissed. Feeling aggrieved from the said judgment, the plaintiffs/appellants filed an appeal before the High Court of Azad Jammu and Kashmir, which was dismissed by a learned single Judge of the High Court vide judgment dated 27-5-2006. A petition for leave to appeal was filed before this Court. Leave was granted and arguments on the appeal have been heard.

5. Mr. Abdul Majeed Mallick, the learned counsel for the appellants, argued that the power of attorney was executed in favour of Muhammad Razzaq s/o Bostan and on the basis of this power of attorney he subsequently transferred the land to his son, therefore, he was the beneficiary of said power of attorney. The onus to prove that the power of attorney was rightly executed by Gulab Khan in favour of Muhammad Razzaq was on him. The learned counsel submitted that whosoever will be beneficiary of a document, has to prove it. The learned Judge of the High Court has wrongly held that fraud has been pleaded by the plaintiffs, therefore, onus to prove fraud was on them. The learned counsel further submitted that nowhere in the suit fraud was pleaded, therefore, the onus to prove execution of power of attorney was on Muhammad Razzaq, who has failed to prove it. In this respect the learned counsel submitted that although one marginal witness of the power of attorney, namely Allah Ditta, appeared as a witness, but he has failed to prove it because he neither identified the thumb impression of executant, nor stated that the executant affixed the thumb impression on power of attorney in his presence. Thus he has failed to prove the execution of power of attorney. In support of his contentions he referred the following authorities:-- 1995 CLC 1951, AIR 1953 Nag. 339, AIR 1953 Pat.240, AIR 1955 Raj. 39(b), PLD 1956 AJK 47, PLD 1979 AJK 53, PLD 1983 SC (AJK) 56.

6. It was next submitted by the learned counsel that a forged Identity Card was issued in the name of Gulab Khan from the Registration Office Kotli, while Gulab Khan never resided in Kotli. In this respect he referred the statement of Mushtaq Ahmed, Assistant Director of Registration Office Kotli and submitted that he has categorically stated that the Identity Card was obtained in supervision of Haji Muhammad Razzaq, in whose favour the power of attorney was executed. It was further submitted by the learned counsel that the power of attorney was registered at Gujar Khan, while Allah Ditta, marginal-witness, belongs to, Kotli. If Gulab Khan was residing in Gujar Khan, then why he has not obtained Identity Card from Gujar Khan. The learned counsel submitted that the judgment of the learned Sub-Judge was based on sound, cogent and. sagacious, reasoning, but the same was illegally set aside by both the lower courts.

7. While controverting the arguments of the learned counsel for the appellants, Mr. Muhammad Reaz Alam, the learned counsel for respondents Nos. 1 to 3, argued that in the instant case fraud was pleaded by the plaintiffs, therefore, it was the responsibility of the plaintiffs to prove fraud. The learned counsel was confronted to point out that in which para of plaint fraud was pleaded by the plaintiffs, upon which he submitted that although the word "fraud" has not been incorporated in the plaint, but the word "forgery" is written in the plaint, which comes within the definition of fraud. In this respect he referred section 463 of A.P.C. The learned counsel further submitted that Allah Ditta, marginal witness of the power of attorney, appeared before the Court and proved its execution, therefore, the power of attorney was proved beyond any doubt. In support of his contentions the learned counsel referred 1988 MLD 552 and 1996 CLC 1596.

8. We have heard the learned counsel for the parties, perused the relevant record and have given our utmost muse to the respective arguments advanced by the learned counsel for the parties.

9. In the instant case the main grievance of the plaintiffs/appellants was that the power of attorney in favour of Muhammad Razzaque, executed by Ghulab Khan, was forged one because Gulab Khan had died some 25 years ago and instead of him some other person was produced before the Sub-Registrar Gujar Khan for registration of power of attorney. The power of attorney was obtained by Muhammad Razzaque in his favour on 17-8-1997, when Gulab Khan had already died. The learned Judge of the High Court has held that fraud was pleaded by the plaintiffs/appellants, therefore, the onus to prove fraud was on the plaintiffs/appellants. Now the question emerges whether the onus to prove that the power of attorney was forged one was on the plaintiffs or defendants? We have gone through the plaint very minutely and did not find that fraud was pleaded by the plaintiffs/appellants. Nowhere in the plaint it was alleged that the power of attorney was obtained fraudulently but the plaint contains that when the power of attorney was obtained, at that time Gulab Khan was no more in this world. He had died 25 years ago, therefore, fraud was not pleaded in the instant case.

10. Now the next question emerges that when fraud was not pleaded, then who has to prove execution of power of attorney. It is well settled principle of law that onus to prove execution of document is always on the person, who is beneficiary of such document. This view finds support from a case reported as Muhammad Riaz v. Sandal Begum and others 2004 MLD 1885 wherein at page 1889 it has been observed as under:-- " it is settled principle of law that after denial of execution of some document, onus to prove it through positive evidence, shifts on the shoulders of the beneficiary. Under Article 17 of the Qanun-e-Shahadat Order, 1984, as agreement to sell creates financial and future obligations and when reduced to writing, was required to be attested by two men or one man and two women and in view of provisions of Article 79 of Qanun-e-Shahadat Order, 1984, such document could only be used as evidence if at least two attesting witnesses have been called for the purpose of proving its execution." The afore-said view finds support from Siraj Din v. Mst. Jamilan and another PLD 1997 Lah. 633 wherein at page 640 it has been held as under:-- " .proof of execution means the proof of writing/signatures/impressions of the author. The proof of execution, however, is not synonymous with the proof of the contents of documents. The burden to prove the contents of documents, in addition to proof of execution, is on the beneficiary of that document, who is to lead primary/secondary circumstantial internal evidence to prove the truth of that document." This view further finds support from Maj. Retd. Syed Baqar Hussain Shah v. Mst. Rashida Begum 1992 MLD 2515 wherein it has been held as under:-- "It is also settled law that burden of proof of the fact that the transaction was Benami, is on the person who alleges that he had purchased the property in the name of the ostensible owner."

11. In the instant case Muhammad Razzaque after obtaining the power of attorney executed the sale-deed in favour of his son, Arshad Hussain. During the pendency of suit, Arshad Hussain transferred the same land through a sale-deed in favour of Fazal Hussain s/o Ghulam Muhammad, in lieu of Rs:50,000, therefore, the actual beneficiary of the power of attorney was Muhammad Razzaque, who transferred the land in favour of his son. Thus in the light of Article 79 of Qanun-e-Shahadat Order, 1984 it was the duty of Muhammad Razzaque to prove that the power of attorney was executed in his favour by Oulab Khan. According to this provision of law it was necessary for proving execution of document to produce at least two attesting witnesses of the deed in whose presence the document was executed, but in the instant case only one witness was produced. This sole witness too has failed to prove execution of document. Thus it can safely be said that Muhammad Razzaque has failed to prove execution of power of attorney and on the basis of it, the two sale-deeds one executed by Muhammad Razzaque and the other executed by Arshad Hussain, are hereby declared null, void and inoperative on the rights of plaintiffs/appellants. Thus the learned Judge of the High Court has wrongly held that the onus to prove was on the plaintiffs who have alleged fraud. As stated above the plaintiffs have not alleged fraud, therefore, the .learned Judge of the High Court has wrongly placed onus to prove execution of power of attorney on the plaintiffs. The onus to prove this document was upon Muhammad Razzaque, the beneficiary of power of attorney.

12. Now the next question arises whether Muhammad Razzaque, has proved execution of power of attorney? The perusal of record shows that only Allah Ditta s/o Sanwa-1, marginal witness of power of attorney, appeared before the Court, but he has also failed to prove execution of document. We have gone through the statement of Allah Ditta. It was nowhere stated by him that Gulab Khan affixed his thumb impression or signed the power of attorney in his presence. He did not identify the thumb impression of Gulab Khan. Neither the executant affixed thumb impression in his presence nor the thumb impression was identified by him, therefore, it could not be said that he has proved its execution, rather he has failed to prove it. It is well settled principle of law that for proving the execution of any document, it is essential that two attesting witnesses should appear before the Court and state that the document was executed by the executant in their presence. The executant signed the document in their presence and they identify his signatures. This view finds support from a case reported as Muhammad Shafi v. Liaqat Hussain and 6 others 1999 CLC 1130 wherein it has been observed as under:-- "To prove the execution of the document it was necessary to lead the evidence to testify the fact that the executant (Mst. Saleema Bibi) put her thumb impression out of her free will and consent in presence of witnesses. The afore-said view further finds support from a case reported as Mst. Kulsoom Bibi and another v. Muhammad Arif and others 2005 SCMR 135 wherein it has been observed as under:-- "It may be clarified at this juncture that marginal witnesses of a document are produced not merely to identify the signatures of an executant but are examined to prove, in addition to the above fact, that the executant had put the signatures within their view. Both witnesses never uttered a single word to the effect that Muhammad Fazil had signed the document within their view." It further finds support from another case titled Mst. Ummatul Waheed and others v. Mst. Nasira Kausar and others 1985 SCMR 214 wherein it has been observed as under:-- "It has to be noted that the trial Court had implicitly relied on the statement of Shaukat Ali the attesting witness. His statement, however, is of little value because he admitted that he had not seen Asif Hussain signing the disputed document. If he had actually not seen him signing document, he could not prove the execution of the document by Asif Hussain."

13. It is also pertinent to note that according to power of attorney Gulab Khan was residing in Gujar Khan, while no witness from Gujar Khan appeared before the Court and deposed that Gulab Khan executed power of attorney in favour of Muhammad Razzaque. Although one Pervaiz Iqbal Mughal was cited as a witness in the power of attorney, but he neither appeared before the Court nor proved the execution of document. It would also not be out of place to mention here that according to power of attorney, Gulab Khan was resident of Gujar Khan, but the Identity Card was issued from Registration Office Kotli. The Assistant Director of Registration Office Kotli appeared as a witness and deposed that the Identity Card was prepared and handed over to Gulab Khan in supervision of Muhammad Razzaque. It clearly shows that Muhammad Razzaque obtained Identity Card from Kotli and then got executed the power of attorney in his favour from Gujar Khan.

14. It would be proper to mention here that Muhammad Razzaque after obtaining power of attorney transferred the land to his son, Arshad Hussain, while it is settled principle of law that an attorney before transferring the land to his own kith and kin has to obtain permission from the principal. This view finds support from a case reported as Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 1811 wherein at page 1816 it has been observed as under:-- "This being so the law propounded by this Court on the scope of the holder of a general power of attorney in alienating the property of his principal in favour of those who are so closely related to the agent that ultimate beneficiary would be the agent himself, he should in his own interest obtain the consent of the principal failing which the principal is at liberty repudiate the transaction." The afore-said view finds support from another case titled Khushi Muhammad and others v. Jannat Bibi 2004 CLC 1747 wherein at page 1752 it has been held as under:- "Though lawful execution of power of attorney in favour of petitioner No.1 is not proved and if it be assumed to have been executed and carrying a presumption of correctness attached to it under section 33 of the Registration Act and under the provision of Power of Attorney Act and Qanun-e-Shahadat Order, 1984, even then, the respondent was required to prove that before transferring property of the respondent in favour of his own sons (petitioners Nos.2 and 3), he consulted the respondent and made payment of the sale proceeds to her but no such evidence is available on the file. Law regarding transfer by the attorney in favour of his own kith and kin, without consulting his principal, is settled and it will be presumed that the sale in favour of attorney himself, thus remains void/ ." This view further finds support from a case reported as Asif Raees Ahmad v. Mst. Zubaida Bibi and another 2005 YLR 2761 wherein it has been held as under:-- "Even otherwise, I am of the opinion that in absence of specific delegation of power by Suraj Khan to Muhammad Yaqub (D.W.1) to transfer land to his real son and real nephews, Muhammad Yaqub was not competent and authorized to sell 'or transfer or alienate the suit land to Asif Raees Ahmad (his son) and Muhammad Sharif etc. (his nephews)." It further finds support from Mst. Shumal Begum v. Mst. Gulzar Begum and others 1994 SCMR 818 wherein at page 825 it has been observed as under: "In view of the above stated legal position we are of the view that the alienation of the property by respondent No.2 in favour of his wife Mst. Gulzar Begum on the basis of power of attorney executed by late Said Nawab in his favour was not sustainable in law."

15. The nub of above discussion is that this appeal is accepted. The judgments of the learned Judge of the High Court and learned District Judge are set aside. Resultantly the judgment passed by the learned Sub.-Judge on 25-7-2002 stands restored. H.B.T./8/SC(AJ&K) Appeal accepted.