2006 PLP 418 (MLD)

JAWWAD S. KHAWAJA, J.

Through this Regular Second Appeal Muhammad Shall, appellant/defendant impugns the concurrent decrees of the learned trial Court dated 31-3-1985 and of the learned Appellate Court dated 13-12-1987 whereby a suit filed by Muhammad Ashiq, respondent/plaintiff has been decreed.

2. The dispute between the parties relates to land measuring ten Marlas. The suit-land was originally owned by a Church. The case set up by the respondent/plaintiff was that he had purchased the land through a sale-deed executed in his favour by Gaman, respondent No.3. Gaman in turn based his title on a sale-deed purportedly executed in his favour A by an attorney of the Lahore Church Council of the United Church of Pakistan (respondent No.2). The defence set up by the appellant was that he was in possession since long and his title had matured on the basis of adverse possession.

3. The learned Courts below have proceeded on the premise that Muhammad Ashiq, respondent/plaintiff had established valid title to the land. They have also concluded that the period of limitation for filing the suit would start from the date on which the respondent/plaintiff acquired title.

4. Learned counsel for the respondent/plaintiff, at the very outset was asked to show from the record the alleged power-of-attorney on the basis of which a purported attorney of respondent No.2 had sold the land to Gaman, respondent No.3. He conceded that the power-of-attorney had not been produced on record. This is a serious flaw which goes to the root of the title asserted by respondent/plaintiff. In view of the admitted position that the Church was owner of the land originally and considering the defence set up by the appellant, it was incumbent upon the respondent to have proved every document in the chain of transactions leading from the Church (respondent No.2) upon his alleged tale. The respondent/plaintiff has failed to do so and, therefore, must fail. It is evident that without proving that the Church had lawfully constituted an attorney, I do not see how the learned Courts below could have decreed the suit of the respondent/plaintiff.

5. On this point it is also important to note that even if an attorney had been constituted by respondent No.2, it was necessary to see the power-of-attorney itself for the purposes of ascertaining if the attorney possessed any power to sell the Church's property. This again could only 13 have been determined if the respondent/plaintiff had brought on record the power-of-attorney in question.

6. The learned Courts below unfortunately have not given any consideration to the above aspects of this case which show a fatal deficiency in the case of the respondent/plaintiff.

7. In addition to the above, it is important to note that the appellant/defendant was, even according to learned counsel for the respondent/plaintiff, in possession of the " suit-land when the respondent/plaintiff purported to acquire title in the same. It appears strange that the respondent/plaintiff did not take possession of the suit-land at the time when he purportedly paid the entire consideration to his vendor, Gaman. This circumstance also detracts from the veracity of the case set up by the respondent/plaintiff.

8. In view of the foregoing discussion, I find that the learned Courts below have committed an error of law. The impugned decrees, therefore, are not sustainable and are, resultantly, set aside. This appeal is allowed and as a consequence the suit filed by the respondent/plaintiff is dismissed. H.B.T./M-1438/L Appeal allowed.