2011 PLP 1451 (YLR)

TARIQ JAVAID, J.

This civil revision assails the judgment and decree dated 6-12-1995 passed by learned Additional District Judge, Multan whereby judgment and decree passed by the learned trial Court was reversed.

2. Learned counsel for the petitioners has maintained that learned first appellate Court has merely adverted to Issue No.10 and decided the appeal whereas the consideration of remaining issues was imperative and had the remaining issues been considered by the learned first appellate Court, the outcome of the case would have certainly been otherwise. It was further argued that the payment of consideration for the sale of land is not established and in absence of consideration it cannot be said that the land was alienated to the respondent No.1 by the predecessor?-in-interest of the petitioners. It is maintained that the respondents Nos.1 and 6 are nephews of the respondent Nos.2, the widow of the deceased and in order to protect the interest of her nephews the respondent No.2 filed a consenting statement before the learned trial Court.

3. It is further argued that the evidence produced by the respondents was not reliable, hence the findings recorded by the learned first appellate Court merits to be reversed. According to the learned counsel for the petitioners the deceased Allah Yar was infirm person and was living at Chak No.4/KMR, who was under the influence of his wife, the respondent No.2. However, as soon as the alleged sale of the land came to the knowledge of Allah Yar, deceased, he revoked power of attorney and came to live with his brother Zulfiqar, one of the present petitioners, which shows that the sale in question was not with the free consent of Allah Yar, deceased, hence it merits to be set aside and the judgment and decree passed by the learned trial Court merits to be restored.

4. The learned counsel for the petitioner argued that the power of attorney was given to the respondent No.6 only to get the property transferred to Allah Yar deceased as he was not in a position to go to the offices due to his ailment. It was alleged that the power of attorney did not contain any term with regard to alienation of the suit property, therefore, under the dictum laid down by the Hon'ble Supreme Court in Fida Muhammad v. Pir Muhammad Khan (PLD 1985 SC 341 and Mst. Ghulam Fatima v. Muhammad Din (2004 SCMR 618), the sale was void. keliance was also placed on Hanif and 2 others v. Mst. Muradan and 2 others (1986 MLD 256), Dost Muhammad v. Member Board of Revenue (2001 MLD 2019) and Firdos Shah v. Mst. Memoona Bibi (2007 CLC 500).

5. On the other hand, learned counsel for the respondents has vehemently argued that the judgment and decree passed by the learned first appellate Court calls for no interference, which is based on record and that the findings recorded by the learned trial Court were erroneous which have lawfully been reversed and hence the petition merits to be dismissed.

6. The petitioners instituted a suit for declaration" and maintained therein that Allah Yar, deceased was allotted twelve and a half acres of land in Chak No.4/KMR bearing Khasra No.34 by the Provincial Government under Co-operative Farming Scheme in 1958. This land remained under his cultivating possession and on 26-1-1976 the land was transferred to him and the mutation was entered in his favour. It is maintained that said Allah Yar remained ill for a long time. However, he was admittedly living with his wife and two nephews of his wife. For the sake of managing his affairs he executed power of attorney dated 7-2-1976 in favour of Muhammad Shafi, the respondent No.6. Allegedly said attorney fraudulently and with mala fide intention and without Instructions of Allah Yar, deceased alienated the above said land in favour of his brother, Ashiq Hussain on 7-2-1976. The sale was registered on 9-2-1976 allegedly the consideration for the said sale was shown as Rs.33,

000. It is further maintained that Allah Yar, deceased never ever authorized his attorney to sell the suit land. On the basis of registered sale deed dated 9-2-1976 a Mutation No.9 dated 25-3-1976 was entered in favour of the respondent Nod. The petitioners maintained that Allah Yar, deceased was issueless, had a shop and a house and had no debts and as such he had no need to alienate the suit property, hence it was prayed for cancellation of the sale-deed and the mutation.

7. The suit was resisted by the respondents and all the allegations contained in the plaint were denied. It was maintained that the defendant No.3 being the wife of the deceased had neither claimed the suit property in inheritance as she was his legal heir nor raised any objection against the sale deed. As such sale was effected in her presence and at least the said sale was always well within her knowledge. It was maintained that the defendant No.1 was validly appointed attorney of Allah Yar, deceased, hence Allah Yar, deceased was bound by the acts of his attorney. It was further maintained that by reason of the power of attorney he had lawful authority to alienate the suit .land. Moreover, it was contended that the suit land was alienated with knowledge of Allah Yar; deceased, who received the consideration thereof. Respondent No.3 the wife of the deceased did not contest the suit rather filed a consenting written statement and admitted that the suit land had already been sold by Allah Yar, deceased, who received the consideration thereof.

8. The defendants also filed a suit for Permanent Injunction against the plaintiffs wherein it was prayed that the defendants were owner in possession of the disputed land on the basis of registered sale deed dated 9-2-1976 and Mutation No.9 dated 20-3-1976 was lawfully sanctioned in their favour. This suit was resisted by the present petitioners. Both of the suits were consolidated vide order dated 8-2-1987.

9. I have heard the arguments advanced by the learned counsel for the parties and have gone through the record.

10. Fateh Muhammad, DW-2 deposed that since Allah Yar, deceased remained ill for a long time the dues were cleared by Muhammad Shafi. DW-3, Muhammad Shafi deposed that Allah Yar, deceased had not cleared the dues. By reason of non-payment the allotment had been cancelled which was got restored by DW-3 after payment of dues. The said dues were paid by him, who was validly nominated attorney. He sold the land to Ashiq in consideration of Rs.33,000 with consent of Allah Yar, deceased. Out of Rs.33,000 a sum of Rs.10,000 was received, which was paid to clear the outstanding dues for the allotment of the land to Allah Yar, deceased. A sum of Rs.8,000 was spent on the treatment of Allah Yar, deceased and the remaining amount of Rs.15,000 was subsequently received from vendee and given to the vendor. All these transactions appear to have been effected before 7-2-1976, when the suit land was sold to Ashiq. Thereafter a mutation was entered in the name of respondent No.1 During cross-examination the testimony of this DW could not be shattered and it appears that he is a truthful witness.

11. The findings recorded by the learned first appellate Court are supported from the evidence on record. The testimony of DW-3 unequivocally establishes that Allah Yar, deceased was a sick and infirm person. He had received the consideration in three instalments out of which the outstanding instalments were paid and the allotment of the land, which had already been cancelled was got restored. Almost Rs.8,000 were spent on his treatment_ and the remaining outstanding amount has already been used against payment of debts. It appears that on receipt of the sale consideration the land was got transferred and mutation in the name of Allah Yar, deceased was effected and soon thereafter it was transferred in favour of the vendee. The testimony of the said DW is fully supported and corroborated by the testimony of remaining DWs.

12. Admittedly, Ashiq Hussain, respondent No.1 and Muhammad Shafi, respondent No.6 are nephews of Mst. Pathani, respondent Nos.2, since deceased and represented by respondents No.2-A and 2-B. It is also established on record that respondents Nos.1 and 6 were living with Allah Yar deceased, who appointed respondent No.6 as his attorney. Since the plaintiffs were not living in the same Chak where Allah Yar, deceased was living, therefore, the story as narrated by the defence witnesses appears to be plausible. The plaintiffs' witnesses were residing 45 miles away and it is not established, except from the testimony of Zulfiqar P.W., brother of Allah Yar, deceased that the remaining witnesses had any close contact with Allah Yar, deceased. It is also established on record that the allotment of suit land, at one stage was cancelled due to non-payment of instalments, which was subsequently 'got restored. It also appears that Allah Yar, deceased remained ill for quite some time and some of the money must have been spent on his treatment as well as upkeep. Therefore, I find no reason to disbelieve the. testimony of respondent No.6, who appeared as DW-3. No doubt the land was got transferred in favour of Allah Yar, deceased on 7-2-1976 and the power of attorney was also executed on the same day. It was further alienated to the respondent No.1 on 9-2-1976. The fact of cancellation/revocation of the power of attorney by Allah Yar, deceased can be explained as after alienation of the land in question, there was hardly any occasion to keep the power of attorney intact. It might also have been revoked for the reason being that Allah Yar, deceased had other properties including shop and the house which he might have not intended to alienate. However, it can be said that, if the suit land was alienated without consent of Allah Yar, deceased then he could have instituted suit for cancellation of the sale deed instead he opted to revoke the power of attorney. Another circumstance that goes against the petitioner is that the respondent No.2 was legal heir of Allah Yar, deceased. Had the property been sold by defrauding the vendor, then respondent No.2 would have assailed the same. Instead the said respondent filed a consenting written statement. Even if it is presumed that she was in collusion with the respondents Nos.1 and 6, even then, after her death, her legal-heirs who are respondents Nos.2-A and 2-B ought to have raised their objections, as their interest appears to be adverse to that of the respondents Nos.1 and

6. No such proceedings were initiated. In absence of any evidence it cannot be presumed that the respondent No.6 alienated the suit land without consent of Allah Yar, deceased.

13. Learned counsel for the petitioners laid too much stress on the contention that the said power of attorney was executed by Allah Yar, deceased only for transfer of property in his name, whereas the alleged sale was not covered by the power of attorney and has relied on Fida Muhammad v. Pir Muhammad Khan (PLD 1985 Supreme Court 341) and Mst. Ghulam Fatima v. Muhammad Din and others (2004 SCMR 618). In Fida Muhammad's case supra Muhammad Afzal Zullah, J observed as follow:-- "It is wrong to assume that every "general" Power-of-Attorney on account of the said description means and includes the power to alienate/dispose of property of the principal. In order to, achieve that object it must contain a clear separate clause devoted to the said object. The draftsman must pay particular attention to such a clause if intended to be included in the Power-of-Attorney with a view to avoid any uncertainty on vagueness. Implied authority to alienate property, would not be readily deduceable from words spoken or written which do not clearly convey the principal's knowledge, intention and consent about the same. The Courts have to be vigilant particularly when the allegation by the principal is of fraud and/or misrepresentation. The second aspect which needs caution on question of validity of acts under a Power-of-Attorney is that notwithstanding an authority to alienate principal's property, the Attorney is not absolved from his two essential obligations, amongst others: firstly in cases of difficulty (and it will be a case of difficulty if the Power-of-Attorney is susceptible to doubt about its interpretation) to use all reasonable diligence in communicating with the principal and seeking to obtain his instructions, and secondly, if the agent deals on his own account with the property under agency, e.g., if he purchases it himself or for his own benefit, he in his own interest should obtain the' consent of the principal in that behalf after acquainting him with all material circumstances on the subject, failing which the principal is at liberty to repudiate the transaction. The following two examples given under section 215 of the Contract Act are illustrative of the intention of the law:- (a) A directs B to sell A's estate. B buys the estate for himself in the name of. C. A, on discovering that B has bought the estate for himself, may repudiate the sale, if he can show that B has dishonestly concealed any material facts, or that the sale has been disadvantageous to him. (b) A directs B to sell A's estate. B, on looking over the estate before selling it, finds a mine on the estate which is unknown to A.B informs A that he wishes to buy the estate for himself, but conceals the discovery of the mine. A allows B to buy, in ignorance of the existence of the mine. A, on discovering that B knew of the mine at the time he bought the estate, may either repudiate or adopt the sale at his option."

14. However, the above judgment is of little help to the learned counsel for the petitioners for in the present case an express stipulation with regard to the attorney's authority to sell the suit land is expressly given. Therefore, it cannot be said that it was a question of construction of the power of attorney. It is an established principle of law that in presence of expressed stipulation no other inference can be drawn. Similarly, in Ghulam Fatima v. Muhammad Din and others (2004 SCMR 618) the Hon'ble Supreme Court held that where the land was sold by the attorney to his wife then under the law it constituted a sale in his own favour, therefore, as a rule of law attorney should ,have exercised power after consultation with the principal before doing so. In the present case it is amply shown that the sale deed was executed with consent of Allah Yar, deceased and the plaintiffs could not rebut this evidence also because Allah Yar, deceased at the time of sale was neither residing with the petitioners nor it is established through evidence that Allah Yar, deceased had any intention to assail the said transaction whereas respondent No.2 the wife of Allah Yar, deceased had filed consenting written statement before the learned trial Court.

15. The question of sale to a close relation has been dealt with by the Sindh High Court Karachi in Hanif and 2 others v. Mst. Muradan and 2 others (1986 MLD 256) the real question in controversy was whether the respondent had or had not authorized the appellant to sell the land belonging to him and whether the appellant in furtherance of authorization had honestly contracted to sell for the benefit of the respondents. Ibadat Yar Khan J came to the conclusion that in such a situation one has to examine the version of both of the parties not on the basis of -word against word but also through surrounding circumstances. If the above said dictum is applied to the circumstances of this case then I have no doubt in my mind that the' impugned sale was with consent of Allah Yar, deceased as his protracted illness is admitted on record and although he revoked the power of attorney he did not assail the transaction nor any evidence has been produced to show that he had any intention to assail the same. In this situation the surrounding circumstances suggest that the sale deed has been executed with consent of the deceased. Regarding reliance on Dost Muhammad v. Member, Board of Revenue and others (200.1 MLD 2019) it would suffice to say that the same has been, decided on the authority of Fida Muhammad supra and it lays down the same principle of law. Therefore, I do not think that the petitioners would be benefited from this judgment in any manner. In Firdos Shah v. Mst. Memoona Bibi (2007 CLC 500) Peshawar High Court held as under: "The execution of power of attorney neither amounts to be divesting the principal of the authority over the subject-matter nor does it amount to absolute right of the attorney over the property as its owner. The attorney has to act as an agent of the principal. He has to account for all the transactions. It was not sufficient to prove that the attorney had the authority to enter into a transaction but in addition thereto he was duty bound to explain that he has rendered true accounts of the transaction to the principal. If he enters into a bargain of sale, he receives the consideration on behalf of the principal which has to be refunded to him and in case of an exchange, he has to explain the true value of the property received and that given in exchange. Similarly, the transactions of lease and mortgage should also be for the benefit of the principal. That is why, there is a restriction that the attorney has to take the principal in confidence before converting the property of the principal on the force of he power of attorney into personal use or for the benefit of his nearer relatives."??

16. Since the sale proceeds have already been explained by the testimony of DWs and it is amply proved that the proceeds were applied for discharge of liabilities of Allah Yar, deceased, as well as those were spent an his treatment and upkeep. Therefore, above said judgment does not advance the case of the petitioners and is distinguishable.

17. It has been forcefully argued that the suit land was transferred to Allah Yar, deceased on 26-1-1976 and the power of attorney was executed on 7-2-1976, and quite surprisingly the land was sold the same day and the sale deed was registered on 9-2-1976. Ordinarily, the transactions could have not been effected with such an efficiency which has given rise to the doubts. The perusal of record does not reveal cross-examination of any of the defence witnesses on these lines. The only presumption that emanates from the swiftness of these transactions may be that Allah Yar, deceased was admittedly an ailing person. The respondents Nos. 1 and 16 along with their paternal aunt, respondent No.2 were looking him after. Respondent No.6 had paid the outstanding instalments. Certain amounts must also have been spent on his treatment. Therefore, the possibility of expected death of Allah Yar could have not been over looked by the said respondents. Therefore, in order to secure their own interest they must have acted with unprecedented swiftness. But the very fact that the deceased remained alive for almost two months from the date of impugned alienation and did not assail the transaction and rather cancelled the power of attorney, is sufficient to support the contention of the respondents that the impugned sale was executed with consent of Allah Yar deceased.

18. In view of his testimony and the documentary evidence produced on record it appears that the learned first appellate Court had rightly decided the suit and the impugned judgment does not call for any interference by this Court in revisional jurisdiction. As no illegality in the impugned judgment has been pointed out, this revision is dismissed with no order as to costs. M.U. Y./Z-55/L?????????????????????????????????????????????????????????????????????? ??????????? Revision dismissed.