2006 PLP 68 (YLR)

MAULVI ANWARUL HAQ, J.--On 1-7-1993, the respondents tiled a suit against the petitioners. In the plaint it was stated that they are sisters of petitioner No.2 while petitioner No.1 is the son of petitioner No.2. They had inherited the suit land along with petitioner No.2 from their late father. The joint lands being located in two villages Jampur and Kotla Gujjar in Distt. Rajanpur were being cultivated by their brother from the very beginning who had been paying them their share till three years before the institution of the suit. He refused to give share of Kharif 1993 which resulted in an altercation between the parties. In order to file a suit for produce they obtained the requisite papers and found that petitioner No. 2 representing himself to be a general attorney of respondents had transferred the land to his son i.e. petitioner No.1. They asserted that they have never appointed their brother as attorney or authorized him to sell their land and even if their thumb-impression are found on any such documents, the petitioner No.2 had no lawful authority to transfer their land in favour of his son without consulting them and of course without paying any consideration. In the written statement petitioner No.1 claimed to be a bona fide purchaser for consideration, and both of them asserted that the alienations are lawful and with authority. Issues were framed. Evidence of the parties was recorded. Learned trial Court decreed the suit on 29-4-1999. First appeal filed by the petitioners has been dismissed by learned Addl. District Judge, Burewala on 23-4-2002. Learned counsel for the respondent has put in appearance pursuant to a pre-admission notice. Both the learned counsel are prepared with their arguments and copies of records are also available. This case is being decided as Pacca case.

2. Learned counsel for the petitioners contends that his clients made all efforts to produce only available witness of power of attorney but he could not be produced because of his absence from village. He referred to the several documents appended with C. M. No.1071 of 2002. According to the learned counsel execution of power of attorney was proved and the transactions were lawful and with consideration. Learned counsel for the respondents, on the other hand, contends that even if it be assumed that the respondents had appointed their brother as an attorney, there is no plea? and there is no evidence that he proceeded to transfer the land to his son after consultation and has paid consideration to the said ladies.

3. I have gone through the records. There is no denial that petitioner No.2 and his sisters had inherited the land from their father. Now the power of attorney Exh.D.1 purports to have been executed by the respondent-ladies on 13-2-1971 and registered on 15-2-1971. Admitted position is that Ghulam Mustafa and Abdul Wahab attesting witnesses have since died. Ladies were identified by Rehmat Khan, Lumberdar who could not be produced and I do find that several efforts were made to summon the said witness as per copies of the notices appended with the said C.M. Be that as it may, it is in the endorsement of Sub-Registrar that both the ladies are Parda Nasheen. Now purporting to act under this power of attorney, the petitioner No.2 has proceeded to sell the land located in village Jampur measuring 125 Kanals and 11 Marlas to his son, petitioner No.1 vide registered sale-deed dated 23-1-1994 (Exh.P.5). Mutation No.135, Exh.P.6, was attested on the basis of this sale-deed on 13-2-1994. Land located in village Kotla Gujjar was sold to his son by petitioner No 2 by way of Mutation No.277 (Exh.P.7) attested on 29-1-1994. In Exh.P.5 consideration is mentioned as Rs.3,00,000 while in Exh.P.7 amount of consideration is also mentioned as Rs.3,00,000.

4. Now Muhammad Sharif, petitioner No.2 appeared as D.W.3. There is not even a word in his entire statement that he consulted or in any manner informed his sisters that he is going to transfer the suit land to his son. Now he has stated that after selling the land he paid the entire amount to the respondents.

5. Now he was confronted in the course of cross-examination and he stated that his son had given him two cheques, one in the sum of Rs.6,00,000 and the other in the sum of Rs.2,00,000 and he handed over these cheques which were in the name of the respondents, to them. He stated that he has not summoned any record from the Habib Bank Burewala upon which the cheques were drawn. He then proceeded to state that in fact his son has given him one cheque for Rs.8,00,000 which was in his name. He got it encashed and paid the amount to the respondents. He stated that no one was present when he gave the money to the respondents.

6. Now his son Akhtar Ali, petitioner No.1 appeared as D.W.4. He proceeded to state that he purchased the land in Jampur (Chak No.265) for a consideration of Rs.2,00,000 and paid this amount to his father who paid it to the respondents. The other land he purchased for a sum of Rs.3,00,000 and this amount he also paid to his father who paid to the respondents. In his cross-examination he stated that he had paid the amount in cash and did not give any cheque to his father. He reiterated this position repeatedly.

7. Upon reading of the said evidence only conclusion possible is that in the first instance the petitioner No.2 never consulted his sisters before proceeding to transfer their land to his son and in the second both father and son have told white lies and have falsified each other in the matter of payment of consideration. By now it is well-settled law that mere fact that a person is authorized by means of recital in the power of attorney to alienate the land would not render the transaction entered into by him to be with lawful authority and particularly where he has proceeded to transfer the land to his own nearer relative, in the present case to his son. I may refer here to a judgment by my learned brother Chaudhry Ijaz Ahmad, J. (since elevated to the apex Court) reported as "Muhammad Arif and 2 others v. Zafar Iqbal" 2005 YLR 1479 where his Lordship has recapitulated almost the entire case-law on the subject.

8. C.R. is wholly frivolous and is dismissed with costs throughout. Counsel fee is fixed at Rs.20,

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