2006 PLP 937 (YLR)

JAWWAD S. KHAWAJA, J.

Learned counsel appearing for the respondents states that a long time back the respondents had taken away the brief and have not given any instructions. He the the accept this request. It was for the respondents to ensure their representation through some other counsel if they so desired. They have not done so. I have examined the record of the case myself with the assistance of learned counsel for the appellants and propose to decide the appeal as it is mature for final disposal.

2. The appellants/plaintiffs filed a suit seeking specific performance of an agreement dated 9-8-1977. The land in dispute measuring 12 acres was originally owned by Abdul Jabbar Khan, father of Haider Khan (respondent No.1) and his sister Mst. Daryai (respondent No.4). The suit-land devolved on the aforesaid respondents Nos.1 and 4 on the death of their father, as his only heirs. Mst. Daryai, vide general power-of-attorney (Exh.P.3), constituted her brother Haider Khan as her general attorney, inter alia, authorizing him to sell her share in the suit-land which was 1/3rd of the same.

3. The case set up by the appellants/ plaintiffs was that Haider Khan, in his own right and also as attorney of his sister Mst. Daryai (respondent No.4), had executed the agreement (Exh.P.1) in favour of the appellants and the respondents Nos.2 and 3 jointly. According to the contents of the plaint, the appellants and/or their predecessors-in-interest along with respondents Nos.2 and 3 were the tenants cultivating the land. The appellants claimed 3/4th of the land while the remaining 1/4th, according to them, was claimable by respondents Nos.2 and

3. However, Mutation No.631, dated 29-5-1991 showing alienation of 1/3rd of the suit-land belonging to Mst. Daryai (respondent No.4) in favour of Mst. Waziran Bibi (respondent No.5) wife of respondent No.2 namely, Muhammad Yar, was entered in the Revenue Record.

4. The appellants sought specific performance of the agreement (Exh.P.1) and also assailed Mutation No.631 on the basis that the same was fraudulent and inoperative against the rights of the plaintiffs. A written statement was filed on behalf of the respondents/defendants raising objections, inter alia, under section 19 of the Colonization of Government Lands Act. It was also alleged that Mst. Daryai was not a necessary party as she had not entered into the agreement (Exh.P.1).

5. As many as six issues were framed on which the parties led evidence. The agreement (Exh.P.I) has been proved through the testimony of four Witnesses produced by the appellants/plaintiffs and the documentary evidence to support their case. The fact that the agreement (Exh.P.I) was duly executed by Haider Khan, has been proved on record. On this score, the judgments of the Courts below are concurrent. The only issue in contention is as to whether Mst. Daryai was one of the vendors and was bound by the agreement (Exh.P.1). This question arose only because the agreement (Exh.P.1) does not specifically mention the name of Mst. Daryai as a vendor. The power-of-attorney (Exh.P.3), however, has been duly exhibited whereby Mst. Daryai has appointed her brother Haider Khan as her attorney and had authorized him to sell her share in the suit-land. The agreement relates to the entire suit-land. Furthermore, the testimony of witnesses coupled with the power-of-attorney (Exh.P.3) was sufficient to prove that the entire suit-land including the share of Mst. Daryai was covered in the agreement (Exh.P.1). Mst. Daryai and Haider Khan did not enter the witness-box to rebut the aforesaid testimony. The learned trial Court thus was fully justified in holding that the entire suit-land had been agreed to be sold by Haider Khan and Mst. Daryai in favour of the appellants and respondents Nos.2 and 3.

6. The learned Appellate Court has, however, held that since the name of Mst. Daryai has not been mentioned in the agreement (Exh.P.1), her 1/3rd share in the suit-land could not be conveyed to the appellants and respondents Nos.2 and 3 by way of specific performance. It is for this reason that the decree of the learned trial Court has been modified and the 1/3rd share of Mst. Daryai has been excluded from the decree passed in the. favour of the appellants.. The modification of the decree is not based on the available evidence and is not warranted. The learned appellate Court has not met the reasoning of the learned trial Court. In particular, oral and documentary evidence led by the appellants, has been ignored when there was no rebuttal on the part of Haider Khan and Mst. Daryai who, as noted above, had failed to appear as witnesses. It is obvious to me, considering the evidence on record, that want of a reference to Mst. Daryai in the agreement (Exh.P.1) was only an accidental omission. The agreement is in respect of the entire suit-land including the 1/3rd share therein of Mst. Daryai. It has been executed by Haider Khan who, admittedly, was the general attorney of Mst. Daryai and had the authority to sell her share also. The learned Appellate Court has acted in a manner which is mechanical and has lost sight of the fact that the witnesses who could have testified to rebut the case of the appellants, namely Haider Khan and Mst. Daryai had not taken the witness stand.

7. In the foregoing circumstances, the appellate decree dated 18-5-1999 modifying the decree of the learned trial Court dated 20-1-1995, is not legally sustainable. The said modification is, therefore, set aside. As a consequence, the decree of the learned trial Court dated 20-12-1995 stands restored. H.B.T./A-669/L?????????????????????????????????????????????????????????????????????????????????? Appeal accepted.