1986 PLP 1721 (MLD)

Syed Muhammad lqbal for Petitioner. Muhammad Rafiqu Chaudhry for Respondents. Date of hearing: 21st June, 1986. This revision petition impugning the validity of the judgment and decree of the learned, Civil Judge, Lahore, dated the 11th April, 1985, dismissing the petitioner's suit for cancellation of the registered deed of sale whereby the petitioner's house No.3, situate in street No.13, Pakki Thathi, Lahore, had been transferred to respondents 2 to 4 and for possession of the ground floor of the house and of the learned Additional District Judge, Lahore, dated the 15th December, 1985, endorsing in appeal the decision of the learned trial "Court, arises out of the following circumstances. Muhammad Shafi, petitioner, was the owner of the house in question. Mst. Sardaran Bibi, respondent 1, is his sister. Mehraj Din, Muhammad Yousaf and Muhammad Younas, respondents 2, 3 and 4, respectively, are the sons of respondent

1. Whereas the petitioner lived in upper portion of the house, respondent 4 resided in the ground floor. The petitioner has not married and is in advanced stage of age. According to him he had litigation pertaining to his property with certain persons pending in Courts and as he was ailing respondent 1 asked him to execute a power of attorney in her favour to enable her to pursue the litigation on his behalf and consequently he executed the power‑of‑attorney, Exh. D‑1, on the 16th May, 1974, (it was registered on the 17th May, 1974). Claiming himself to be an illiterate person and ailing at the time of execution of the said power‑of‑attorney he blamed respondents 1 to have misused the confidence he reposed in her and inserted the power of sale of the property in question in her favour in the power of attorney without his knowledge and consent. He averred that respondent 4 occupied the ground floor of the house as a tenant under him and paid monthly rent of Rs.200. As he pleaded, on account of commission of default in payment of rent by respondent 4 he moved application for his eviction from the lower portion of the hose in his possession. He said that he was astonished when respondent 4 filed reply to his ejectment petition taking the stance that the house had been sold away to respondents 2 to 4 by their mother, respondent 1, on the basis of the power of attorney, Exh. D‑

1. Respondent 4 consequently denied the existence of the relationship of landlord and tenant with him and put forth his claim to the ownership of the house.

2. Exh. D‑2 is the copy of the sale‑deed executed by respondent 1 as attorney of the petitioner on the 24th June, 1982, conveying the house in dispute by sale in favour of her sons, respondents 2 to 4, for Rs.18,

000. The deed was registered on the 27th June, 1982. The deed mentioned that the entire sale consideration of Rs.18,000 had been paid in advance; nothing passed at the tithe of its registration. The petitioner contended that the authority he had given to respondent was limited to the pursuit of his cases in Courts, that he had not authorised her to dispose of the house and that she had fraudulently got inserted the power of sale of the property in the power of attorney and keeping him in dark about this power secured his signatures. He asserted that the respondents had acted in collusion with each other to deprive him of his property and that sale‑deed had been finalized by practising fraud upon him. He described ‑the power of attorney as also the sale to be without consideration and maintained that he had not been paid even a single penny. He took the sale‑deed to be a void document and stated that if it was left outstanding, it would cause him irreparable loss and serious injury. He asked for its cancellation and for the recovery of possession of the ground floor of the house in occupation of respondent

4. It may be mentioned that by means of the abtalnama, Exh. P‑1, executed on the 30th June, 1983, and registered the next day, the petitioner revoked the power of attorney, Exh. D‑1, he had earlier executed in respondent 1's favour.

3. The respondents contested the suit and asserted that the petitioner had executed the power of attorney of his own free will and consent after duly receiving consideration-conferring power of sale of the property upon respondent

1. They stated that on the pretext of meeting overhanging expenses of litigation pending in different Courts the petitioner had obtained considerable amount of money from respondent

1. They denied that the sale‑deed had been executed without consideration.

4. The petitioner appeared as P.W.1 in the witness‑box in support of his case. The respondents examined Muhammad Yousaf, respondent) 3, as D.W.1, who produced the power of attorney, Exh. D‑

1. The learned Civil Judge, without going deep into the matter, looking to the power of sale of the property contained in the power of attorney, Exh. D‑1, executed by the petitioner, formed the view that respondent was competent to transfer the house to respondents .2 to 4 and consequently dismissed the suit. The treatment given by the learned. Additional District Judge to the appeal was equally superficial. The learned Courts did not read the evidence in proper perspective and, ignored to take into consideration the important facts on the record, which could have altered their point of view.

6. The question relating to passing of consideration and its havin reached the petitioner was not given any attention by the learned B Courts. The sale‑deed, whose copy is Exh.P‑2, recited that the entire sale consideration of Rs.18,000 had been paid in advance. In the respondents' written statement and the deposition of Muhammad Yousaf, D.W.1, mention was made of the payment of litigious expenses to the petitioner by respondent

1. However, respondent 1 did not come to the witness‑box nor any documentary material was produced to establish the payment of consideration to the petitioner. The sale‑deed did not bear the petitioner's signature. It was executed without his knowledge and consent and no amount of consideration for sale of the house came to the hands of the petitioner. In the circumstances even if the authority to dispose of the property is spelled out from the power of attorney the sale of the house in dispute was brought about on behalf of the petitioner against his consent and without his having received any consideration. In this view of the matter the validity of the transaction is impaired and the sale‑deed rendered void. The decision to the contrary formulated by the learned Courts below being illegal cannot stand the test of scrutiny by this Court. Respondent 4's possession of the ground floor of the house is no longer lawful. The revision petition is accepted, the judgment and decrees of the learned Courts below are set aside and the petitioner's suit is decreed with costs throughout. M. Y. H. Petition accepted.