2005 PLP 1700 (YLR)

The suit was resisted alleging that the plaintiff had appointed the defendant/ petitioner No. 1 as his general attorney "as a result of a family settlement through the Court of Civil Judge, Haripur Hazara. The gift of the land was made with the consent of the plaintiff." Out of the pleadings of the parties following issues were framed:-- (1) Whether the gift in dispute is result of exceeding of authority by defendant No.1 and is illegal and collusive? OPP (2) Whether the suit is not maintainable for want of possession of plaintiff? OPD (3) Whether the suit is properly valued if so, what is correct valuation? OPD (4) Whether the plaintiff is estopped by his words and conduct to file the suit? OPD (5) Whether the suit is bad for misjoinder? OPD (6) Whether the transaction took place as a result of family settlement? OPD (7) Relief. The learned trial Court after recording the evidence of the parties decreed the suit vide judgment dated 25-2-2000. The petitioners preferred an appeal before the District Judge, Sheikhupura which came up for hearing before the learned Additional District Judge, Sheikhupura who vide his judgment dated 24-5-2000 dismissed the suit.

3. Learned counsel for the petitioners contended that the learned Additional District Judge has misapplied the law. The relevant section pertaining to the registration of the power of attorneys is section 33 of the Registration Act and not section

28. He further contended that the petitioner was to receive land measuring 50 Kanals under the compromise deed dated 26-2-1992, Exh.D.6 filed in the Court of Civil Judge, Haripur Hazara. Learned counsel further urged that the power of attorney was given to the petitioner No.1 after payment of sale consideration and the same could not be revoked. Reliance was placed on Nazir Ahmad and others v. Suleman and others 2000 YLR

527. Conversely the learned counsel for the respondent submitted that Muhammad Arvin, petitioner, the attorney of the respondent No.1 had no authority to alienate his land to his sons and that the respondent was not a party in the earlier suit.

4. I have gone through the judgments of the Courts below, perused the record and considered the arguments of the learned counsel for the parties. The plaint of the earlier suit, Exh.D.3, order passed by the Civil Judge dated 26-9-1992, Exh.D.4, order passed by the Civil Judge dated 26-9-1992, Exh.D.4, compromise deed dated 12-9-1992, Exh.D.5 and the statements of the parties, Exh.D.6 show that the respondent was not a party to the proceedings. He could not be bound by the compromise Exh.D.5. The compromise deed. dated 12-9-1992, Exh.D.5 also shows that respondent was not a party to it. There was no privity of contract. The defence of the petitioner taken in written statement was that the land had been transferred under the compromise deed dated 12-9-1992, Exh.D.5. Since the respondent was not a party to the contract, said agreement compromise is not binding upon him. The petitioner No.1 has admittedly transferred 15 Kanals, 12 Marlas land to his sons vide gift Mutation No.609 attested on 29-6-1994, Exh. P.1. The law propounded by the Honourable Supreme Court on the scope of the bolder of general power of attorney in alienating the property is that where the agent alienates the property of his principal in favour of those who are closely related to him, should in his own interest obtain the consent of his principal failing which the principal is at liberty to repudiate the transaction. The petitioner should have resorted to his principal (respondent) seeking his consent before transferring the land in favour of his sons. See Fida Muhammad v. Pir Muhammad Khan (deceased) through Legal Heirs and others PLD 1985 SC 341; Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 1811 and Qadir Bakhsh and 10 others v. Kh. Nizam-ud-Din Khan and 4 others 2001 SCMR 1091. There is nothing on the record to show that any consideration was paid to the respondent before the land was gifted in favour of the petitioners 2 and

3. I tend to agree with the learned counsel for the petitioner that the relevant section for authentication of the power of attorney is section 33 of the Registration Act and not section 28, however, I have already held that the petitioner should have resorted to his principal before transferring the land as gift. The plea would not help the petitioner. The-authority relied upon by the learned counsel for the petitioner is not applicable to the facts of the instant case.

5. For what has been stated above this petition has no merit and is dismissed leaving the parties to bear their own costs. M.H./M-1006/L Petition dismissed.