2001 PLP 1001 (CLC)

(4) Whether the suit is within time? (5) Whether the present suit is barred under the principle of res judicata? (6) Whether defendant No. 1 had instituted a suit in a Civil Court for the cancellation of Mutation No. 636, dated 21‑3‑1962? If so with what result and with what effect? (7) Whether the plaintiffs purchased the suit‑land from defendant No.l through an oral sale against a consideration of Rs.2,430 and made apart payment of the said price to defendant No.l and got the symbolic possession . of the said piece of land? If so with what effect? (8) Whether the suit, of the plaintiffs is a collusive one and for the benefit of defendant No. l? (9) Whether defendant No.3 had no authority to transfer the suit‑land to defendant No.2 through general power of attorney since executed by defendant No.l in favour of defendant No.2? (10) Whether Mutation No. 636, dated 21‑3‑1962 in favour of defendant No.2'by defendant No.3 is illegal, without lawful authority, void and ineffective qua the rights of the plaintiffs? (11) If issue No.7 is not proved, whether the plaintiffs have a locus standi and a cause of action to file the suit? (12) Relief.

3. In support of their stand plaintiffs‑petitioners examined Khair Muhammad P.W.1, Ghulam Qadir P.W.2, Lal Din P.W.3, Ghulam Qadir Petition Writer P.W.4, Noor Muhammad P.W.5, Muhammad Saleem Patwari P.W.6 and thereafter closed their evidence. In rebuttal defendants respondents examined Chand D.W.1, Jhanda D.W.2, Abdul Ghani D.W.3 and Muhammad Ibrahim D.W.4. After going through the evidence produced by the parties the suit was dismissed by the trial Court vide judgment, dated 2‑5‑1969. The plaintiffs‑petitioners filed an appeal and consequently the suit was remanded vide judgment dated 12‑3‑1970.

4. After remand of the suit by the learned District Judge, Rahimyar Khan, the same has again been dismissed vide judgment and decree, dated 20‑1‑1971. The plaintiffs‑petitioners felt aggrieved of the judgment and decree dated 20‑1‑1971 and filed an appeal which also met the same fate as is evident from the judgment and decree dated 28‑2:1917 passed by Additional District Judge, Rahimyar Khan, hence, the instant civil revision.

5. Arguments have been heard and record perused.

6. It is submitted by the learned counsel for the plaintiffs‑petitioners that defendant No.1 Lal Din had entered into an agreement with the plaintiffs7petitioners on 24‑2-1962 whereby he had agreed to sell land measuring 24 Kanals, 6 Marlas in their favour for a sum of Rs.24,030 and had also accepted a sum of Rs.2,100, that it was agreed between the parties that the vendor shall execute the sale‑died in favour of plaintiffs‑petitioners after accepting the remaining amount of Rs.330, that Lal Din (vendor) appointed his daughter Mst. Ramzan Bibi as his general attorney for alienating the land‑in favour of the plaintiffs‑petitioners, that instead of executing the sale‑deed or alienating the land by means of mutation she sold the suit‑land in favour of her husband Chandoo vide Mutation No. 636, dated 21‑3‑1962, that this act of the agent is in violation of the authority which was given to her by the principal/vendor/defendant No.l (Lal Din), that alienation of land by means of Mutation No.636, dated 21‑3‑1962 in favour of Chandoo by Mst. Ramzan Bibi is also hit by the provisions of section 55(4)(b) of the Transfer of Property Act whereby a seller is entitled to receive the remaining amount from the vendee and places reliance upon Subedar Muhammad Yousuf v. Muhammad Sarwar Khan and others PLD 1955 Lah. 521, that even if it is assumed that Mutation No.636, dated 21‑3‑1962 has been executed in favour of Chandoo by general attorney of Lal Din vendor, even then vendor can receive the amount from the vendee, and consequently Mutation No.636, dated 21‑3‑1962 is liable to set aside, that admittedly possession of the land had been handed over to the plaintiffs‑petitioners. So, even if some amount was outstanding against the plaintiffs‑petitioners, the same could be recovered alongwith interest and places reliance upon Pyare Lal and others v. Mt. Kalawati AIR (36) 1949 All. 340 and Official Receiver of Salem v. Channa Goundan and another AIR 1957 Mad. 630, that Lal Din vendor admitted the receipt of Rs.2,100 from the plaintiffs‑petitioners but no‑order on that score has been passed by the Courts below and relief to that extent has not been granted to the plaintiffs‑petitioners and even on this score the judgments of the Courts below are liable to be set aside.

7. Conversely, the impugned judgments and decrees have been supported by the learned counsel for the defendants‑respondents. To supplement his contentions the learned counsel for the defendants respondents has submitted that agreement to sell in respect of property valuing more than Rs.100 is compulsorily registerable and as agreement to sell, dated 24‑2‑1962 is an unregistered document, so it did not create .any, right or title in respect of suit property in favour of plaintiffs‑petitioners and placed reliance on Moosa and others v, Muhamrnad Yakoob and others PLD 1966 (W.P.) Kar.

376. He, thus, submitted that both the Courts below, have rightly passed the impugned judgments and decree and civil revision is devoid of any force.

8. As per contents of the plaint the stand of the plaintiffs‑petitioners is that they had purchased the suit property from Lal Din vide agreement to sell, dated 24‑2‑1962. They further contended that they bad been handed over the possession in execution of the said agreement after receiving a sum of Rs.2,100 from them and only a sum of Rs.330 was to be paid to the vendor at the time of execution of sale‑deed. Admittedly, agreement, dated 24‑2‑1962 pertains to immovable property of value of more than Rs.100. The said agreement,, according to law requires compulsory registration. The agreement being an unregistered document did not create any title in favour of the plaintiffs‑petitioners it is also a fact that Lal Din vendor executed general power of attorney in favour of his daughter Mst. Ramzan Bibi who in consequence of that document executed Mutation No., 636, dated 21‑3‑1962 in favour of her husband Chandoo. There is nothing on record to restrain Mst. Ramzan Bibi from executing mutation in favour of any person including her husband. The agreement being an unregistered document did not create any title in favour of plaintiffs‑petitioners. As such the general attorney Mst. Ramzan Bibi was perfectly within her right to execute Mutation No. 636, dated 21‑3‑1962 in favour of her husband. Much stress has been laid on the point that Lai Din had appointed his daughter Mst. Ramzan Bibi to be his general attorney for executing the mutation in favour of the plaintiffs‑petitioners but she in violation of the authority conferred upon her executed Mutation No. 636, dated 21‑3‑1962 in favour of her husband. As such she has violated the authority of the principal. I am afraid this contention is devoid of any force as no restriction was imposed on the power of attorney in dealing with the, suit property. She was not authorised only to execute the sale‑deed or mutation in favour of the plaintiffs‑petitioners but she was authorised to deal with the suit property as general attorney of the vendor/Lal Din. Thus, there is no question of violation of the authority of principal on the part of Mst. Ramzan Bibi, defendant No. 3.

9. The learned counsel for the plaintiffs‑petitioners has also relied upon the provisions of section 55(4)(b) of the Transfer of Property Act to contend that part of sale price left with the vendees/plaintiffs‑petitioners to be paid to the vendor Lal Din was a charge on property sold and as such the said property could not be alienated by means of Mutation No.636, dated 21‑3‑1962 in favour of subsequent vendee. The authority relied upon by the learned counsel for the plaintiffs‑petitioners is not applicable to the facts in hand as in the, said case the property had already been mortgaged for a certain amount and certain amount was left with the vendee to be paid to the previous mortgagee but in the instant case the suit‑land was never mortgaged with any person. As such the question of creating a charge on the property does not arise. It may also be noted that the suit‑land has been sold vide Mutation No. 636, dated 21‑3‑1962 for a sum of Rs.7,000 and Lal Din had filed a suit for the recovery of the said amount against Chandoo. If Lal Din had already agreed to sell the land to the plaintiffs‑petitioners for a sum of Rs.2,430 and had received a sum of Rs.2,100 from them, the question of filing a suit for recovery of Rs.7,000 being the sale consideration of Mutation No. 636 in favour of Chandoo does not arise. Thus, consent statement of Lal Din has got no legal sanctity and it is proved that he had not sold the suit‑land in favour of the plaintiffs petitioners vide agreement, dated 24‑2‑1962. It is further proved that suit‑land was sold by his attorney in favour of Chandoo vide Mutation No.636,, dated 21‑3‑1962. So far as the question of return of Rs.22,100 is concerned the said plea has got no foundation as it has been proved from the evidence brought on record that no agreement, dated 24‑2‑1962 executed by Lal Din in favour of plaintiffs‑petitioners is of no legal value. Thus, even on this score the 'impugned judgments and decrees are unexceptionable.

10. The upshot of the above discussion is that both the Courts below have returned their findings in accordance with law. There is no misreading or non‑reading of evidence on the part of the Courts below. Consequently the revision petition fails which is hereby dismissed. Q.M.H./M.A.K./K‑581 Revision dismissed.