2013 PLP 59 (SCMR)

AMIR HANI MUSLIM, J.

Through this appeal, the appellant has impugned the judgment of the first appellate Court by which the judgment of the trial Court was set aside and the suit filed by the respondent No.1 through his next friend was decreed.

2. Facts relevant for the purpose of deciding this appeal are that Mirza Waseem Baig was the original owner of land measuring 717/1/4 kanals. It is claimed by the appellants that respondent No.2 Mirza Mumtaz Baig, on the basis of power of attorney dated 6-2-1973, purportedly executed by Mirza Waseem Baig the respondent No.1, had sold the aforesaid property in favour of the appellants 1 to 20 through oral sale attested on 11-12-1973, vide mutation No.606, for a total sale consideration of Rs.2,06,215.

3. On 14-12-1974, the grandmother and the next friend of the respondent No.1 filed a suit for a declaration and possession on his behalf against the appellants impleading the respondent No.2, as one of the defendant, pleading therein that the registered power of attorney and the sale made by respondent No.2 in favour of the appellants 1 to 20 was nullity as the same was based on a forged document. It was further pleaded that the respondent No.1 has never constituted the respondent No.2 as his general attorney and the respondent No.1 was an insane person and respondent No.2 fabricated the aforesaid power of attorney through forgery and fraud. The suit was contested by the appellants, however, the respondent No.2 was proceeded ex parte. It was averred by the appellants in the written statement that they have purchased the property in dispute from the respondent No.2, who was real brother of respondent No.1 and they could not imagine that the registered power of attorney was forged one. In regard to the plea of insanity of the respondent No.1, it was pleaded that the appellants have no knowledge that the respondent No.1 was of unsound mind. It was claimed that the appellants were bona fide purchasers for value.

4. The trial Court framed the following issues:- (1) Whether plaintiff is owner of the suit land? OPP (2) Whether the general power of attorney dated 6-2-1973 is illegal and void? OPP (3) Whether plaintiff sold the suit land in favour of the defendants? OPD (4) Whether mutation No.606 sanctioned dated 11-12-1973 is legal and valid? OPD (5) Whether the suit is not maintainable in its present form? OPD (6) Whether the suit has not been correctly valued for the purposes of court fee and jurisdiction. (7) Relief. Following two additional issues were also framed on 17-9-1975 and 9-7-1980 respectively:-- 1-A. Whether plaintiff appointed Mirza Mumtaz Beg as General Attorney? OPD 1-B. Whether the plaintiff is of unsound mind (lunatic) and is competent to sue through his next friend? OPP

5. The parties led evidence in support of their pleas raised in the pleadings. On 3-3-1983, the trial Court had dismissed the suit holding therein that the insanity of respondent No.1 was not proved. On the issue of power of attorney, the trial Court assumed that there was no dispute between the parties, as the general power of attorney was duly registered, therefore, it was a valid document. On appeal filed by the respondent No.1 before the learned District Judge, Khushab, the findings of the trial Court on issues Nos.1-B and 6 were reversed and the case was remanded. The respondent No.1 filed F.A.O. against the order of the District Judge before the learned High Court, which was allowed and the case was again remanded to the learned District Judge to decide the appeal afresh, who found that jurisdictional value of the suit was Rs.2,70,337.50, therefore, he has no jurisdiction to decide the appeal. Accordingly, the appeal was returned vide order dated 3-7-1992 against which the respondent No.1 filed C.R. No.453 of 1993, which was dismissed on 3-7-1993. The respondent No.1 filed F.A.O. on 7-3-1995 with an application for condoantion of delay which was allowed and the delay was condoned. The F.A.O was allowed, vide impugned judgment and the judgment and decree of the trial Court was set aside and the suit was decreed in favour of the respondent No.1. Feeling aggrieved, the appellants have assailed the judgment of the learned High Court in these proceedings.

6. It is contended by the learned counsel for the appellants that the original suit was filed by the respondent No.1 through his grandmother Mst. Alia Begum as next friend. Mst. Alia Begum died during pendency of the suit and from trial Court up to the High Court no order of appointment of next friend was made and the subsequent proceedings in the absence of order of appointment of next friend were nullity under the provisions of Order XXXII, C.P.C.

7. His next contention was that the reasons recorded for invalidating the registered power of attorney by the learned appellate Court were irrelevant. According to him, the learned appellate Court has allowed the appeal, inter alia, on the ground that the power of attorney was not registered with the concerned Registrar of the locality. Moreover the learned appellate Court has held that neither the original power of attorney nor even the certified copy of the same was produced by the appellants before the trial Court to prove the authority of respondent No.2, who has sold the land in question in favour of the appellants which reasons were erroneous as there was no dispute between the parties on the issue of its execution.

8. He submits that the provisions of sections 32, 33 and 87 of the Registration Act were overlooked by the learned High Court while holding that such power of attorney was not in conformity with law. In support of his contention, he has relied upon the cases of Qurban Hussain v. Hukam Dad (PLD 1984 SC AJ&K 157), Ma Pwa May and another v. S.R.M.M.A. Chttiar Firm (AIR 1929 PC 279), Bashir Ahmed Khan v. Shamas-ud-Din (2007 SCMR 1684), Muhammad Usman v. Muhammad Shahbaz (2007 MLD 1121) and Mirzada Khan v. Ahmad Noor (PLD 2003 SC 410).

9. He next contended that the appellate Court has held that the power of attorney in favour of the respondent No.2 was not a legally registered document, therefore, transfer and or sale of the property in dispute on the basis of such a document in favour of the appellants was nullity. He submits that after recording such finding, it was observed by the learned High Court that the issue of insanity of respondent No.1 was of little importance, but thereafter the learned High Court proceeded to decide the issue and after discussing the evidence has held that the respondent No.1 was of unsound mind.

10. The learned counsel for the appellants has further contended that recording finding on the issue of insanity was also contrary to the material brought on record, as the entire family of the respondent No.1 has sold their lands to the appellants through different transactions and the issue of insanity was never brought to the notice by any of the family members nor the appellants were in knowledge of the fact that the respondent No.1 was of an unsound mind. He submitted that the learned High Court had wrongly recorded findings on both the issues by misreading the evidence brought on record.

11. As against this, the learned counsel for the respondent No.1 has contended that the respondent No.1 was of unsound mind and this fact is established from the evidence produced by the next friend Mirza Naeem Baig. He submits that as many as four expert witnesses were produced to establish that the respondent No.1 was of unsound mind. In addition to this, he submits that P.W.4 Ghulam Naseer, who was scribe of the Exh.P.4 to P.7, was examined. Exh.P.4 produced by him clearly establishes that the respondent No.1 was not sane. Additionally, the grandfather of the respondent No.1 on 17-2-1955 had executed a will (Exh.P.7/1) which was registered on 18-2-1965, specifically mentions that the respondent No.1, was of unsound mind. Additionally, the appellant No.1 was confronted with his own document (Exh.P.4) in which the respondents Nos.1, 2 and their own sister Ishrat Begum executed sale agreement with the appellant No.1 in which the respondent No.1 has been mentioned to be of unsound mind. He submits that the finding on the issue that the respondent No.1 was insane was not rebutted by the appellants. According to him, neither the original power of attorney nor its certificated copy was produced at trial, therefore, it was rightly held by the appellate Court that the execution of the power of attorney was not proved. He, in support of his arguments has relied on the judgments reported as Jeewan Shah v. Muhammad Shah (PLD 2006 SC 202) and Imam Din v. Bashir Ahmed (PLD 2007 SC 418). He next contended that the property in dispute was situated in district Khushab whereas the power of attorney claims to have been executed by the respondent No.1 before the Assistant Registrar, Hyderabad, neither any reason nor plausible explanation has been offered by the appellants nor the respondent No. 2 to travel to Hyderabad to execute the power of attorney.

12. We have heard the learned counsel for the parties at length and have perused the record. It has come in evidence that four doctors appeared in the witness box to establish that the respondent No.1 was of unsound mind. Dr. Capt. Muhammad Rafique, who issued medical certificate (Exh.P.1) declaring the respondent No.1 to be of unsound mind, appeared in the witness box and substantiated the contents of the medical certificate. Dr. Muhammad Sadiq, who issued medical certificate Exhibit P.2, also appeared before the court and proved the contents of his medical certificate whereby the respondent No.1 was declared to be of unsound mind. P.W.3 Dr. Capt. Mumtaz Ahmed also appeared in the witness box and proved the contents of Exh.P.3 to be correct. Dr. Muhammad Rashid, King Edward Medical College, Lahore, also entered appearance before the trial Court to prove the contents of Exh.P.W.6/1 whereby he declared the respondent No.1 of unsound mind. Exh.P.7/1, which was a will executed by the grandfather of the respondent No.1, was also produced in Court through which it was proved that the respondent No.1 was of unsound mind much prior to the execution of power of attorney in favour of the respondent No.2. Exh.P.4 is a sale deed whereby the appellant No.1 along with his brother had purchased a dera from the respondents Nos.1 and 2 and their sister and it was clearly mentioned in this sale deed that respondent No.1 was of unsound mind. This document pertains to the year 1973 and the plea of the appellants that they were not in knowledge about the insanity of the respondent No.1 is belied by the document Exh.P.4. The appellant No.1 was confronted with this document Exh.P.4 during his cross-examination as D.W.1 and he could not offer any plausible explanation. Therefore, it was established on record beyond doubt that the respondent No.1 was of unsound mind.

13. The contention of the learned counsel for the appellants that after the death of Mst. Alia Begum, grandmother of respondent No.1 during pendency of the suit, Mirza Naeem Baig was appointed as next friend of the respondent No.1 in violation of Order XXXII, Rules 8, 9, 10 and 11, C.P.C. is misconceived, as the judgment of the trial Court clearly mentions that on the death of Mst. Alia Begum, she was substituted by Mirza Naeem Baig in her place as next friend of respondent No.

1. The record shows that Mst. Alia Begum died on 20-3-1976 and an application was made by Mirza Naeem Baig on 24-3-1976 for his appointment as next friend and the judgment of the trial Court dated 3-3-1983 clearly mentions about the death of the grandmother of respondent No.1 during pendency of the suit. Moreover, the appellants have not raised the objection to the competence of Mirza Naeem Baig as next friend of the respondent No.1 either before the trial Court or before the learned High Court. Therefore, the appellants could not agitate this issue before this Court, besides the fact that Mirza Naeem Baig has appeared in the witness box as plaintiff's own witness after the death of Mst. Alia Begum and was not suggested any question by the appellants about his competence as the next friend of respondent No.1.

14. The contention of the learned counsel for the appellants that the learned High Court was in error in holding that the power of attorney was not a valid instrument and the respondent No.2 was not competent, in law, to sell the subject property to the appellants on the strength of such power of attorney is also without force for more than one reason. In the first place, the principal, who is respondent No.1, under the Contract Act, was not competent to execute the power of attorney in respect of the subject property owned by him, as he was insane and enough material has been brought on record to prove his insanity. Alternatively, the respondent No.1 has proceeded ex parte. No efforts were made by the appellants to site him as their own witness to prove the power of attorney on the basis of which they have purchased the subject property. It also goes without saying that neither the original power of attorney nor its certified copy was produced in evidence by the appellants. No efforts were made to examine the Registrar or any other relevant person from the Registration Department to ascertain the genuineness of the power of attorney. We, therefore, are of the considered view that the appellants have failed to prove the contents of the power of attorney.

15. Under these circumstances, we are of the opinion that the impugned judgment of the learned High Court is in conformity with law and does not require any interference by this Court. Resultantly, this appeal is dismissed leaving the parties to bear their own costs. MWA/H-7/SC Appeal dismissed.