2017 PLP 36 (CLCN)

AMIN-UD-DIN KHAN, J.

Through this civil revision petitioners have challenged the judgment and decree dated 26.11.1998 passed by learned Additional District Judge, Burewala whereby appeal filed by the petitioners was dismissed and the judgment and decree dated 28.7.1996 whereby suit for declaration filed by the plaintiffs-petitioners was dismissed.

2. On the basis of report of the Process Server that respondents are not available on the given address, on 23.4.2015 the petitioners were directed to furnish their fresh address. The office report shows that no fresh address has been given, therefore, no notice could be issued. This civil revision can be dismissed for non-compliance of order of the Court. As Civil Revision is oldest one, therefore, I am hearing the same.

3. Brief facts of the case are that plaintiffs-petitioners filed a suit for declaration that registered general power of attorney dated 20.11.1965 on behalf of their father Gulab Khan in favour of Sarwar Khan and Ghulam Sarwar Khan is forged and fictitious one and on the basis of that power of attorney Mutation No.141 dated 6.6.1969 is also against the law and nullity. Written statement was filed, suit was contested. In the written statement it was pleaded that through registered agreement to sell dated 20.11.1965 the predecessor of the plaintiffs agreed to sell his property and for compliance of agreement to sell he has given registered power of attorney. Learned trial court framed the issues and invited the parties to produce their evidence. Both the parties produced their respective oral as well as documentary evidence. Learned trial court vide judgment and decree dated 28.7.1996 dismissed the suit. Appeal was preferred, which was also dismissed by the learned first appellate court vide judgment and decree dated 26.11.1998. Hence, this civil revision.

4. Learned counsel for the petitioners argues that defendants-respondents being beneficiaries were bound to prove valid transfer of the property in their favour. States that the alleged Attorney is father of the other respondents and he has transferred the property in their favour therefore, in the light of PLD 1985 SC 341 "Fida Muhammad v. Pir Muhammad Khan (deceased) through LRs and others" the transaction is nullity in the eye of law. Prays for acceptance of the civil revision, setting aside the judgments and decrees passed by both the courts below.

5. When confronted to the learned counsel that when defendants have pleaded in the written statement filed on 17.6.1992 that they have a registered agreement to sell in their favour dated 20.11.1965 despite that plaintiffs did not bother to challenge that agreement and same has been proved and produced as Exh.D.1 and receipt of payment of the consideration amount as Exh.D.2 and when for completion of the transaction of land through Exh.D.1 in series power of attorney Exh.D3 was given and in the power of attorney it has been mentioned that it is irrevocable and in the agreement it is mentioned that no interest of the seller remained in the property, subject matter of the agreement and the power of attorney then how the case law referred is applicable to the facts of this case, learned counsel states that at least in the power of attorney it should have been mentioned that the attorney can transfer the property in favour of his near relative or a specific permission was required, I do not agree with the learned counsel for the petitioners, in the circumstances of this case when the registered agreement to sell in favour of defendants by their father has not been challenged by the plaintiffs-petitioners despite the fact that same was mentioned in the written statement filed by the defendants and further the plaintiffs challenged the very existence of power of attorney Exh.D3 but the defendants proved the same as it is a registered document and presumption of law attached with this document as well as Exh.D.1 which is agreement to sell. The case law referred by learned counsel for the petitioners is not applicable to the facts of this case, therefore, not helpful for petitioners. In these circumstances, I am unable to disagree with the findings recorded by both the courts below.

6. When there are concurrent findings of fact recorded by both the courts below after complete and thorough examination of the evidence produced by both the parties, this Court cannot substitute the same unless there is some misreading and non-reading of evidence or some procedural defect fatal to the case on the part of the courts below but no such misreading, non-reading or procedural defect has been highlighted nor I find the same in the findings recorded by the Courts below, therefore, in the light of judgments reported as PLD 1994 SC 291 "Haji Muhammad Din v. Malik Muhammad Abdullah", PLD 1983 Lahore 687 "Mst. Rashida Hussain v. Qazi Aslam Hussain and 8 others" and 2002 CLC 295 "Ghulam Muhammad v. Malik Abdur Rashid and 2 others", I am unable to disagree with the concurrent findings recorded by both the courts below. No case for interference by this Court while exercising jurisdiction under section 115 of the C.P.C. has been made out. This revision petition having no merit is hereby dismissed. ZC/M-325/L Revision dismissed.