1998 PLP 1711 (MLD)

8. The respondent No.l examined himself and one Jan Muhammad, the attesting witness to the agreement of sale dated 19-1-1989. On behalf of the applicants the applicant No. 1 Saifal Khan and one Muhammad lqbal attorney for the applicants Nos.3 to 9 entered the witness-box. Certain documents were also produced by the respondent No.

1. After appraisement of the entire evidence the learned trial Court arrived at the following findings of fact. (i) That the agreement of sale dated 19-1-1989 was executed by the applicant No. 1 on behalf of himself, his brother and applicant No.2, his step-mother Rahima and his mother applicant No.9. (ii) That there was no fraud on the part of the respondent No. 1 in excluding the names of applicants Nos.3 to 8 (daughters of Ghulam Muhammad) or applicant No. 10 (his sisters) The names of these ladies were excluded from the record prepared in 1975 whereas the sale-agreement with the respondent No. 1 was made in 1989. (iii) That 50% of the sale consideration was paid by the respondent No. 1 to the applicant No.1 as stated in the sale agreement. The remaining consideration was paid at the time of signing the compromise in T.C. Suit No.32 of 1989 when the applicants Nos. l, 2, 9 and 3 (in their capacity as her of Mst. Rahima) appeared in Court and signed the compromise. (iv) That possession of the suit land by the respondent No.l was not un authorised.

9. As a consequence of the above the following operative decree was made in the two suits:-- "According to the findings on the foregoing issues plaintiff is entitled for specific performance of the contract of sale dated 19-1-1989 against the defendants Nos. l, 2, 3 (being successor in interest of Mst. Rahima) and defendant No.9, and they are directed to transfer their respective shares into 0-67 paisas of the suit land as owner by the deceased Ghulam Muhammad to the plaintiff by executing deed, and the defendant Saifal is directed to refund the excess payment received by him from the plaintiff. This suit is also decree for Injunction as prayed. Consequently the Suit No. 126 of 1992 filed by Saifal is decreed only for declaration and possession with regard to the respective share of land of the plaintiffs Nos. 5 to 10, parties to bear their own costs." 9-A. The applicants challenged the decree in both the suits by way of Civil Appeals Nos.54 and 55 of 1994 before the IIIrd Additional District Judge, Nawabshah. The learned appellate Court after careful analysis of the material on record sustained all the findings of fact recorded by the trial Court. Civil Appeal No.54 of 1994 arising from the suit filed by the respondent No.l was consequently dismissed. The judgment of the trial Court, however, was modified to the extent that while the latter had partly decreed the suit of the applicants granting them a decree for possession to the extent of the shares of the applicants Nos. 3 to 8 and applicant No. 10 (who were not privy to the sale agreement), the appellate Court dismissed their suit on the ground that the relief of possession for a hari could only be obtained through a tenancy tribunal and the Civil Court has no jurisdiction to grant such relief.

10. Assailing the findings of the Courts below Mr. Jhamat Jethanand, learned counsel for the applicant vehemently argued that the Courts below gravely erred in assuming that the applicant Saifal Khan was duly constituted attorney of the applicant No.2, Mst. Rahima and applicant No.9. He contended, attempting to bring his submission within the contours of section 115, C.P.C. that finding was based on evidence and burden to prove the existence of such authority was on respondent No.l. I regret, I am not at all impressed by this contention. Though the agreement of sale has not been placed on record by the applicants for reasons best known to them, it is evident from the record and has not been disputed that the same was purported to be executed by the applicant on his own behalf as well as on behalf of applicants Nos. 2, 9 and Mst. Rahima. Moreover, in the joint written statement filed on behalf of all the applicants, including donor and donees of such authority/power of attorney, not a word has been stated to the effect that the applicants Nos.2 and 9 had not authorised the applicant No. 1 to sell the land. All that has been stated is that Mst. Rahima (who was dead by the time the written statement was filed) had not given such power to applicant No. 1 Saiful Khan. There is a flat denial of the existence of the sale agreement, payment of reminder of sale consideration and the passing of compromise decree in T.C. Suit No.32 of 1989, on which there is a concurrent finding of fact against the applicant recorded by the Courts below. However no specific issue was framed or suggested in respect of the above question. I have also gone through the deposition of the witnesses and have found that not a word has been stated by Saiful Khan himself to the effect that he was not authorised by the applicants Nos.2, 9 or Mst. Rahima to sell the land The applicants Nos.2 and 9, the purported donors of the power of attorney have not even entered the witness-box. The successor in interest of Mst. Rahima, i.e. applicants Nos.2 and 3 have also not said anything. The only person deposing about the non-existence of such power of attorney/authority is Muhammad Iqbal, a son of the applicant No.10 who admittedly owned 33 % interest in the fund but her name was suppressed from the record. While I am not inclined to make any independent assessment of the evidence it may be observed that it is impossible to give any weight to his statement when the donor and the donees or persons affected by such authority have chosen to remain silent. On the other hand both the respondent No. 1 and his witness Jan Muhammad have clearly deposed that applicant No. 1 clearly stated that he had full authority to enter into the transaction on behalf of his co-sharer. The former has also stated that he requested the applicant No. 1 to give him a copy of the power of attorney but the letter declined to do so.

11. Mr. Nasir Ali Shah, learned counsel for the respondent also drew my attention to the deposition of applicant No. 1 Saiful Khan, wherein he has contended that he granted the oral lease of the property to the respondent No.

1. Indeed such has been the stand on behalf of the applicants in the written statement. This statement, therefore, tends to support the view that the applicant No. 1 had the power of disposition of the property on behalf of his co-sharer. It may be added that the law does not require that the authority to act as an agent for disposition of the property must be conferred through a written and unauthorised power of attorney. All that Article 95 of the Qanun-e-Shahadat Order. requires is that such a written and notarised instrument would create a presumption that the power was duly given. However, when the donor of the power have not seriously challenged the authority of the donee and have instead of making the grievance that the applicant No. 1 had deprived or attempted to deprive them of their lawful interest in the property without any authority, have chosen to support and pursue litigation alongwith applicant No. 1, no question of presumption or otherwise arises.

12. Moreover, the learned Court below have referred to the documentary evidence relating to compromise of T.C. Suit No.32 of 1989. The payment of remaining s ;le consideration was effected by the respondent No. 1 and after accepting the same the applicant's right to the suit land founded upon the agreement was acknowledged. The compromise appears to have been signed and recorded in the presence of some 1 ofa the applicants who ratified and acknowledged the same.

13. Mr. Jhamat Jethanand next contended that the learned Courts below acted with material irregularity in taking into consideration the proceedings relating to the consent decree-in T.C. Suit No.32 of 1989 despite the fact that such decree was subsequently set aside. I do not find any force in this contention either It is indeed correct that the decree as such no longer remained operative and enforceable after having been duly set aside. This however, does not mean that the conduct of the parties in Court and the certified copies of the documents executed (which are public documents) cannot be taken into consideration in a subsequent proceedings in so far as they are relevant to the issues involved therein. It may be mentioned that the conduct of the applicants appears to be clear and fairly consistent. The names of females i.e. respondent No. 10, who was the sister of Ghulam Muhammad and the respondent Nos.3 to 8 i.e. sisters of his son Saiful Khan seem to have been consciously omitted from the record of rights, ostensibly to ensure that property did not pass out of the hands of male lineal descendants of the original owner. Nevertheless when the male heirs decided to resile from their commitment relating to disposition of land and got involved in litigation the rights of the female heirs were brought up for establishing legal infirmity in the transaction made. It is interesting to note that while the consent decree was set aside on the plea that apparently Saiful Khan had played fraud by suppressing the factum of the interest of his aunt and sisters of the parties proceeded together with a joint stand in conducting litigation against the respondent No. 1.

14. Finally Mr. Jhamat Jethanand contended that while the trial Court had decreed the suit of the respondent No. 1 for specific performance only to the extent of the share of the applicants Nos. l, 2 and 9 and the heirs of Mst. Rahima i.e. applicants Nos. 2 and 3, it erred in holding that such share amounts to 67% of the suit property. Learned counsel appears to be right to this extent. Indeed the judgment in the case that the agreement dated 19-1-1989 was directed to be enforced to the extent that the shares of the persons mentioned in that agreement in the suit land. This did not cover the share of the applicants Nos.3 to 8 and applicant No.

10. It was established that the applicant No. 10 alone was owner of 33 % share. Apparently the figure 67 % was a result of an accidental slip and both counsel agree that the share of the person mentioned in the sale agreement works out to about 38% of the suit land. Accordingly the decree in Suit No. 124 of 1992 is modified to the above extent with a corresponding direction that the respondent No.l will refund 62% of the sale consideration to the respondent No. 1.

15. With respect to the decree in Suit No. 126 of 1992 Mr. Jhamat Jethanand has argued that while the above suit was partly decreed by the Trial Court, the first Appellate Court erroneously reversed the finding and dismissed the suit on the ground that the applicants could seek relief from the tenancy agreement established under the Sindh Tenancy Act. Mr. Nasir Ali Shah, learned counsel for the respondent frankly conceded that the respondent No. 1. was not a hari of the applicant and as such the matter does not fall within the jurisdiction of the tenancy tribunal. In view of the above I would set aside the finding of the appellate Court to the above extent and restore that of the trial Court. Mr. Jhamat Jethanand has further claimed that the applicants No.3 to 8 are, apart from the relief of possession also entitled to mesne profits. I am afraid I am not inclined to accept this plea. No mesne profits were awarded by the trial Court and there has been a concurrent finding of fact that the possession of respondent No.1 was not unlawful. Moreover, from the facts established above it is evident that applicant No.l had intended to dispose of the entire property and the persons mentioned in the sale agreement were shown to be only owners of the same in the record of rights. It, therefore, follows that the respondent No. 1 agreed to purchase the entire suit land for which the agreed consideration was paid. As discussed above the other co-sharer i.e. the sisters and aunt of the applicant No. 1 appeared on the scene only to help the applicant No. 1 resile from this commitment. Indeed under the law they were co-owners of the property and the applicant No. 1 had no power to dispose of their interest. As such the Courts below, in recognition of their legal right were required to restore possession to them to the extent of their interest. Nevertheless, apart from the legal rights their conduct shows that instead making grievance of the wrong done to them by their brother/nephew they have only attempted to shield him. There are no equities in their favour. Moreover, when no interest has been awarded to the respondent No. 1 for excess payment made it would be highly inequitable to award mesne profits to these respondents. In view of the above both these revision applications are dismissed subject to the above modifications. These are the reasons for the short order announced on 18-5-1998. A.A./S-161/K Revisions dismissed.