P L D 2003 Lahore 576 (PLP)

(2) Whether the suit is based on mala fide intention? OPD (3) Whether the plaintiffs have not come to this Court with clean hands? OPD (4) Whether the defendants are entitled to special costs? OPD (5) Whether the plaintiffs have no cause of action? OPD (6) Whether the plaintiffs have no locus standi? OPD (7) Whether the suit is incorrectly valued for the purposes of court-fee and jurisdiction? If so what is the correct valuation? OP Parties. (8) Whether the plaintiff No.5 had been negotiation also on behalf of the other plaintiffs with the defendant No.2 for selling their property in dispute? OPD (9) If Issue No.8 is answered in affirmative, whether the defendant No.2 paid Rs.4,00.000 or more as a consideration for the execution of general power of attorney which is in dispute so as to enable him to alienate the property owned by the plaintiffs including the property in dispute? OPD (10) Whether the general power of attorney in favour of defendant No.2 is a forged document? OPP (11) If Issue No.10 is answered in affirmative and Issue No.9 in negative, whether the defendant No. 1 is a bona fide purchaser with consideration and without notice. If so, its effect? OPD (12) Whether the plaintiffs have already received the sale price? OPD (13) Relief. The evidence was led by both the parties and on the conclusion of the trial, the learned Court by returning its findings in favour of the respondents on all the issues except Issues Nos. 5, 6 and 10, dismissed the suit. Aggrieved, the petitioners preferred an appeal, which has also been disallowed. It may be pointed out that the findings of the learned trial Court on Issue No. 10, have also been reversed by the learned Appellate Court on the cross-objections filed by the respondents.

4. I have heard learned counsel for the parties. Admitted fact, which emerges out of the above narration, is that the land in question was owned by the petitioners; notwithstanding if any agreement of sale was executed by them in favour of Amir Khan, for the sale of such land or enabling him to sell if further after making the plots; the real dispute is about the power of attorney dated 26-6-1989, on the basis of which, Muhammad Amir Khan, had sold the plots in favour of the other defendants is a forged and fabricated document or not. In order to discharge the burden about the forgery of this power of attorney, the petitioners have examined themselves and have denied if they had ever executed the document or appeared before the Sub-Registrar or Commissioner for the registration purpose. In order to prove the power of attorney as a genuine document, respondents have examined Moharrer from the office of Sub-Registrar, who has simply brought the record of the Sub -Registrar, to depose that it has been registered in the office. D.W.2 Habibi Ullah Amin is the local commission and was allegedly appointed by Sub Registrar for the registration purpose. In his cross-examination, he has admitted not knowing the executant of the power of attorney personally; he was taken to the office of Rana Iqbal Ahmed a property dealer, where some men and women were present, thus reposing confidence in Muhammad Amir Khan that the persons are genuine he got the thumb-impression of the executant on the power of attorney; he further states that he did not see the identity cards of all the executants, because all of them did not possess these cards, only three had the identity cards; he has conceded in the cross-examination that he did not personally know the executants and did not go to f their house for the purpose of getting their signatures and thumb impressions. From his statement, it is not proved if the power of attorney had been executed by the petitioner and their signatures and thumb impressions were affixed in the genuine proceeding by the Local Commission, Moreover, in order to prove this power of attorney, which is witnessed by the marginal witnesses, none has been produced. Even no witness has been produced, who had identified the petitioner at the time of proceedings before the local commission. Respondents even did not move any application before the Court for seeking comparison of the thumb impression or signature of the petitioner; through any Handwriting Expert/Finger Print Expert; thus on the basis of this evidence, the view of learned Appellate Court that the power of attorney has been duly proved is the result of sheer misreading and non-reading of the record, resultantly, same is set aside.

5. Now coming to the question, if the respondents/purchasers from Muhammad Amir Khan on the basis of power of attorney can be held to be the bona fide purchasers, suffice it to say that according to the provisions of section 41 of Transfer of property Act, the purchaser can set out the plea of bona fide, if the transfer in his favour has been made with the express or implied consent of a person interested in the immovable property by a person who is ostensible owner of such property and has transferred the same for consideration. In the instant case, Amir Khan, was not the ostensible owner of the property rather was acting as attorney for the petitioners and there was no express or implied consent given by the petitioners to him enabling to sell the property. The power of attorney on the basis of which, he had represented the seller as agent has already been determined to be forged document and therefore, having purchased the property on the basis of this power of attorney from an unauthorised person, the sales are absolutely void, resultantly the respondent/purchasers could not set out a plea of bona fide purchaser. The findings of both the Courts below on this issue are' invalid and based upon misreading and non-reading of the record and ignorance of law. Therefore, by allowing these petitions, the impugned judgments and decree are set aside with the result that the suit of the petitioners stands decreed. No order as to costs. M.B.A./A-791/L Petition allowed.