2022 PLP 688 (MLD)

CH. MUHAMMAD IQBAL, J.

Through this civil revision, the petitioners have challenged the validity of the judgment and decree dated 11.12.2010 passed by the learned Civil Judge, Gujranwala who dismissed the suit for declaration filed by the petitioners and the judgment and decree dated 04.11.2011, passed by the learned Additional District Judge, Gujranwala who dismissed the appeal of the petitioners.

2. Brief facts of the case are that the petitioners/plaintiffs filed a suit for declaration alleging therein that they are owners in possession of land measuring 12 Kanal situated in Moza Lalianwala Gujranwala, fully described in paragraph No.1 of the plaint. The petitioners/plaintiffs and their mother executed a power of attorney (document No.849) in favour of their relative/Ghulam Nabi, defendant No.1 for administration of the suit property on 09.04.1994. Thereafter, the petitioners/plaintiffs revoked the general power of attorney vide revocation deed No. 24777 dated 28.09.1994 and also informed the defendant No.1 in this regard. The defendant No.1 alienated the suit property to defendants Nos.2 to 5 through oral sale Mutation No.9481 dated 30.10.1994 and defendants Nos.2 to 5 further executed an exchange mutation in respect of the suit land in favour of defendant No.6. Thereafter, on 22.02.2003, defendant No.6 again exchanged the suit land with defendant No.7 through exchange Mutation No.14447 dated 22.02.2003; that defendant No.1 was not competent to alienate/sale the suit land after revocation of the general power of attorney. The petitioners/plaintiffs prayed that all the transactions made by the respondents/defendants are liable to be set aside. Defendants Nos.1 to 7 contested the suit by filing a joint written statement on legal and factual parlances. The learned trial Court framed issues, recorded pro and contra evidence of the parties and finally dismissed the suit on 11.12.2010. The petitioners filed an appeal which was also dismissed by the learned appellate Court on 04.11.2011. Hence, this civil revision.

3. I have heard the arguments of learned counsel for the parties and have gone through the record with their able assistance.

4. Main controversy centers around issues Nos.1 and 2 which are as under:-

1. Whether the plaintiffs or mother of the plaintiffs had not entered into any agreement to sell with the defendant? OPP.

2. Whether oral sale Mutation No.4981 dated 30.10.1994, the exchange Mutation No.9486 dated 320.10.1994, subsequent exchange Mutation No.14447 dated 22.02.2003 in favour of the defendants No.2 to 4 are void, illegal, ineffective and inoperative upon the rights of the plaintiffs and liable to be set aside? OPP. Admittedly, a general power of attorney (Exh.P.2 or Exh.D.1) was executed by the petitioners and their deceased mother in favour of defendant No.1 on 09.04.1994. Later on, the petitioners revoked the said power of attorney on 29-9-1994 through document (Exh.P.1). In support of the assertion made in the plaint, Fayyaz-ul-Haq (P.W.1) deposed in the cross-examination as under: Admittedly, Mst. Shamshad Kosar, Shehnaz Kosar and Fozia Ehsan have not signed the Abtaal Nama (Exh.P.1) as such to their extent the power of attorney is still intact.

5. Conversely, Ghulam Nabi, respondent/defendant No.1 (D.W.1) deposed that he purchased the suit land on 09.04.1994 from the plaintiffs against consideration of Rs.600,000/-, the amount was paid and possession was taken; that the agreement/Iqrar Nama (Exh.D.1) was written; that Haji Akbar Ali and Muhammad Aslam witnesses of Iqrar Nama, had died; that the agreement was written in his favour and on the same day, a general power of attorney (Exh.D.2) was also written and same was registered with the Sub-Registrar; that plaintiffs have received the total consideration of the land; that the plaintiffs did not give any notice or information regarding the cancellation of agreement as well as power of attorney; that at the time of the execution of the agreement (Exh.D.1) and power of attorney (Exh.D.2) the sellers appeared before the Sub-Registrar and imposed thumb impressions in presence of the witness; that he is not a relative of the plaintiffs; that after receipt of total sale consideration, the plaintiffs were not competent to cancel the power of attorney. Further, Haji Akbar Ali the marginal witness of the agreement had died and his son Arbaz Akhbar DW2 identified signatures of his father on power of attorney (Exh.D.1) as Exh.D.1/2. Similarly the second marginal witness of the agreement Ch. Muhammad Aslam has also died and his son Muhammad Asif (D.W.3) identified his father's signatures as Exh.D.1/3. As such, the respondent/defendant produced secondary evidence as prescribed under Article 80 of Qanun-e-Shahadat Order, 1984 to prove the said document. Mumtaz Ahmad (D.W.4) deed writer deposed that agreement Exh.D.1 was drafted by him on the instructions of Sh. Ghulam Ahmad, Advocate; that he also drafted general power of attorney (Exh.D.2); that in the year 1994, he was working as a clerk of Sh. Ghulam Ahmad, Advocate. Muhammad Afzal (D.W.5) deposed that in his presence the agreement (Exh.D.1) and general power of attorney (Exh.D.2) were executed; and parties imposed their thumb impressions in his presence and consideration of Rs.600,000/- was paid to the plaintiffs by Ghulam Nabi; that after receiving the amount, the agreement and general power of attorney were executed. Sh. Ghulam Ahmad , Advocate (D.W.7) reiterated the similar facts as narrated by D.W.4.

6. The main controversy is with regard to the revocation of irrevocable general power of attorney executed against paid consideration. Under section 202 read with section 206 of the Contract Act, 1872, the principal is duty bound to give notice to the agent before cancellation of the power of attorney. For ready reference, aforesaid provisions are produced as under:

202. Termination of agency where agent has an interest in subject matter.

Where the agent has himself an interest in the property which forms the subject matter of the agency, the agency cannot in the absence of an express contract, be terminated to the prejudice of such interest.

206. Notice of revocation or renunciation.

Reasonable notice must be given of such revocation or renunciation; otherwise the damage thereby resulting to the principal or the agency, as the case may be, must be made good to the one by the other." The conjoint reading of the above provisions of law clearly provides that a power of attorney could only be rescinded after serving a notice upon the attorney and any revocation of the attorneyship without notice to the attorney would be illegal. Reliance in this regard is placed on a case cited as Muhammad Tufail v. Muhammad Younas and others (2006 CLC 779) wherein it has been observed as under: "

11. The mere fact that the two Abtaal Namas were registered is of no consequence because requisite intimation of the termination of agency was not given to the agent under section 208 of the Contract Act and furthermore there is nothing on record to show that the appellant had knowledge of such termination." (emphasis supplied) Further here in this case, the power of attorney was issued against receipt of consideration amount of land from the attorney and necessary dues are paid and document was got registered as per law and same is liable to be treated as a sale deed, as such, the said power of attorney could not be revoked until and unless an adverse declaration is obtained from the competent court of jurisdiction. Reliance in this regard is placed on a case cited as Abdul Rahim v. Mukhtar Ahmad and 6 others (2001 SCMR 1488) wherein the Hon'ble Supreme Court of Pakistan has held as under: "5 as such, the power of attorney in the present case was irrevocable having been executed after receipt of Rs.20,000/- as consideration, therefore, the judgments referred by the learned counsel are not applicable to the facts and circumstances of the instant case." (emphasis supplied) The above principle has been reiterated in cases cited as Mst. Hajran Bibi and others v. Suleman and others (2003 SCMR 1555) and Muhammad Aslam and others v. Absar Fatima and others (2011 CLC 1521),

7. The plaintiffs executed the registered power of attorney in favour of the defendant No.1 and after receiving the consideration, they executed the agreement to sell, as such, after receipt of the consideration, the petitioners/plaintiffs are debarred to cancel the general power of attorney as the same was irrevocable. Even otherwise, in the agreement to sell, the execution of general power of attorney was also admitted by the petitioners/plaintiffs. In this way, after payment of total consideration amount, the defendant No.1 became the owner of the suit property and attorney / respondent No.1 was competent to alienate the suit property, whereas the petitioners/plaintiffs were not competent to cancel the power of attorney as they had received the total consideration. In the agreement (Exh.D.1), it has also been mentioned that power of attorney has been executed in favour of the respondent/defendant, as such, the general power of attorney (Exh.D.2) has been admitted by the petitioner which could not be revoked without issuance of notice and observing the procedure of revocation of a sale deed. It is settled law that admitted facts need not to be proved. Reliance is placed on the cases of Mst. Nur Jehan Begum through LRs v. Syed Mujtaba Ali Naqvi (1991 SCMR 2300), Chief Engineer, Irrigation Department, N.W.F.P. Peshawar and 2 others v. Mazhar Hussain and 2 others (PLD 2004 SC 682) and Mst. Rehmat and others v. Mst. Zubaida Begum and others (2021 SCMR 1534).

8. As per law the petitioners-plaintiffs were required to tender document in their own statements but perusal of the record shows that the documentary evidence (Exh.P.2 to Exh.P.9) has been produced by their learned counsel in his statement which is not a valid tender of the documents in evidence. It is settled law that the documents relied upon or sued upon should be produced in the evidence by party itself and a fair opportunity should be given to the other party to cross-examine the same, as such, the documents produced by the petitioners' counsel cannot be relied upon as valid piece of evidence and ordinarily such documents are liable to be excluded from taking into consideration. Reliance is placed on the cases titled of Mst. Hameeda Begum and others v. Mst. Irshad Begum and others (2007 SCMR 996), Province of the Punjab through Collector, Sheikhupura and others v. Syed Ghazanfar Ali Shah and others (2017 SCMR 172) and Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others (PLD 2021 SC 715).

9. Learned counsel for the petitioners has not been able to point out any illegality or material irregularity, mis-reading and non-reading of evidence in the impugned judgments and decrees passed by the learned Courts below and has also not identified any jurisdictional defect. The concurrent findings of fact are against the petitioners which do not call for any interference by this Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction. Reliance is placed on the case titled as Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469).

10. In view of above, this civil revision being devoid of any merit is dismissed. No order as to costs. ZH/F-21/L Revision dismissed.