2016 PLP 175 (YLRN)

SHAHID WAHEED, J.

This judgment will govern R.S.A. No. 20/2003 and C.R. No. 1026/2003 as common questions of law and facts are involved therein.

2. The respondent No.1, Mehmood Hassan, appointed Muhammad Mansha, respondent No.3, as his attorney through general power of attorney (Ex.D3) registered on 2.5.1990 vide document No.187, Volume No. 1 with the Sub-Registrar, Gujranwala. Muhammad Mansha, respondent No.3, on the basis of above said attorney sold the suit land to the Passban Co-operative Finance Corporation Ltd. (respondent No.2) for a consideration of Rs. 750,000/- vide sale-deed No. 2741 (Ex.P-1) which was executed on 11.6.1990 but was registered on 12.6.1990. The respondent No.1, Mehmood Hassan, on 12.6.1990 also got registered Revocation Deed/Abtal Nama (Ex.P3) in respect of general power of attorney (Ex.D3) vide document No.

262. It is pertinent to mention here that on the basis of sale deed dated 11.6.1990 (Ex.P1), Mutation No.3701 was sanctioned by the A.C-II, Gujranwala vide order dated 13.6.1990 (Ex.D-10) in favour of the Passban Co-operative Finance Corporation Ltd. (respondent No.2). Thereafter, on 25.8.1990, the respondent No. 2 sold the suit land in favour of the present appellant/petitioner, Muhammad Iqbal, for a consideration of Rs. 1,000,000/- vide registered sale-deed No. 4114 (Ex.P-4). On the basis of sale-deed No. 4114 dated 25.8.1990 (Ex.P 4), Mutation No. 3801 (Ex.D-11) was sanctioned on 8.9.1990 in favour of the appellant/petitioner, Muhammad Iqbal.

3. On getting knowledge of sale of suit land in favour of the Passban Co-operative Finance Corporation Ltd. (respondent No.2), the original owner, that is, Mehmood Hassan (respondent No.1) on 5.12.1990 filed revision petition (Ex.D-6) under section 164 of the Land Revenue Act, 1967 before the District Collector, Gujranwala and assailed the order of AC-II, Gujranwala dated 13.6.1990 whereby Mutation No. 3701 (Ex.D-10) was sanctioned. The District Collector, Gujranwala treated the above said revision as an appeal and accepted the same vide order dated 27.1.1991 (Ex. D-7) by setting aside the order of AC-II, Gujranwala dated 13.6.1990 (Ex.D10). The present appellant/petitioner, Muhammad Iqbal, filed review petition under section 163 of the Land Revenue Act, 1967 against order dated 27.1.1991 (Ex.D-7) before the District Collector, Gujranwala. Simultaneously, on 30.1.1991, the present appellant/petitioner filed a suit for declaration and permanent injunction and thereby called in question the order dated 27-1-1991 (Ex.D-7) passed by the District Collector, Gujranwala; and, in the alternative it was prayed that a decree for recovery of Rs. 1,200,000/- be passed.

4. The original owner of the suit land, Mehmood Hassan (respondent No.1), on 31.7.1991 also filed a suit for declaration and thereby challenged sale-deed dated 12.6.1990 (Ex.P-1) whereby his attorney, Muhamamd Mansha, sold the suit land in favour of respondent No.2, the Passban Co-operative Finance Corporation Ltd. and sale-deed dated 25.8.1990 (Ex.P-4) whereby the Passban Co operative Finance Corporation Ltd. sold the suit land in favour of the present appellant/petitioner.

5. The learned Trial Court consolidated the above said two suits vide order dated 16.2.1993. On divergent pleadings, following issues were framed:-

1. Whether the general power of attorney executed by Mehmood Hassan in favour of Mohammad Mansha was cancelled prior in time than the sale deed executed by Muhammad Mansha on the basis of said general power of attorney in favour of Passban Co-operative Finance Corporation Limited? OPD-1.

2. If preceding issue is answered in affirmative whether Muhammad Iqbal is a bona fide purchaser without notice for value from Pass ban Co-operative Finance Corporation Ltd. and as such the order passed by Collector, Gujranwala cancelling the mutations based on the sale deed in favour of Passban Co-operative Finance Corporation Ltd. and Muhammad Iqbal are liable to be set aside being unlawful illegal and against facts? OPP

3. If preceding issue is answered against Muhammad Iqbal, whether Muhammad Iqbal is entitled to recover amount of Rs. 12,00000?If so, from whom? OPP

4. Whether the suit is not maintainable in its present form? OPD-1.

5. Whether the plaintiff has no cause of action? OPD.

6. Whether the suit is based on mala fide intention? OPD-1.

7. Whether the plaintiff has come to this court with unclean hands? OPD-1.

8. Whether the suit is false, frivolous and vexatious and as such the defendant No.1 is entitled to special costs under section 35-A of C.P.C.? OPD-1.

9. Whether this court lacks jurisdiction?

10. Whether the suit is collusive between plaintiff and defendant No.2? OPD-1.

11. Whether the suit filed by Mehmood Hassan is incorrectly valued for the purposes of court fee and jurisdiction, if so, what is the correct valuation? OP-Parties.

12. Whether the suit filed by Mehmood Hassan is not maintainable in its present form? OPP

13. Whether Mehmood Hassan is estopped by way of his words and conduct to bring the suit OPD-4.

14. Whether Mehmood Hassan has filed the suit to blackmail and harass Mohammad Iqbal and as such Muhammad Iqbal is entitled to special costs? OPP.

15. Wheher Mehmood Hassan has filed suit in collusion with Muhammad Mansha? OPD

16. Whether sale-deeds executed by Mohammad Mansha in favour of Passban Co-operative Finance Corporation Ltd. on 12.6.1990 and subsequent sale deed in favour of Muhammad Iqbal dated 25.8.1990 are based on fraud, forgery collusion and as such Mehmood Hassan is not bound by the same? OPD-1.

17. If preceding issue is answered in affirmative, whether Mehmood Hassan is entitled to the decree for possession of the suit property? If so, on what terms? OPD-1.

18. Relief.

6. After recording evidence in respect of above cited issues, the learned Trial Court vide consolidated judgment and decree dated 25.9.1998 dismissed the suit of the present appellant/petitioner to the extent of declaration with costs; and his suit regarding the recovery of amount was also dismissed against respondents except respondent No.3, Muhammad Mansha, and it was partially decreed to the extent of Rs.1,000,000/- against said Muhammad Mansha with cost whereas the suit filed by the original owner of suit property i.e. Mehmood Hassan, was decreed with costs and the sale-deed dated 12.6.1990 (Ex.P1) and sale-deed dated 25.8.1990 (Ex.P-4) were declared null and void.

7. Feeling aggrieved, Muhammad Iqbal, through RFA No.419/98 assailed the judgment and decree passed in his suit before this Court. Through a separate appeal he also assailed the judgment and decree of the learned Trial Court in respect of the suit filed by Mehmood Hassan before the learned Addl. District Judge, Gujranwala. During the proceedings of RFA No. 419/98 this Court withdrew the appeal pending before the learned Addl. District Judge, Gujranwala and after registering it as RFA No. 93/2001 clubbed the same with RFA No.419-1998. Subsequently as per change in law vide Notification No. Legis-13-3/89 dated 26.9-2002 both the above stated RFAs were transmitted to the learned District Court, Gujranwala and the same were entrusted to the learned Addl. District Judge, Gujranwala who vide consolidated judgment and decree dated 14.5.2003 dismissed both the appeals.

8. The petitioner /appellant has assailed the judgments and decrees of the learned courts below in respect of suit filed by Mehmood Hassan/respondent No.1 through C.R. No. 1026/2003 whereas the judgments and decrees passed by the learned courts below in respect of suit filed by him has been assailed through R.S.A. No.20/2003.

9. Before proceeding further it is germane to state here that despite service of notice the respondent No.2 and legal heirs of respondent No.3 did not turn up to oppose this petition/appeal and resultantly vide order dated 4.6.2012 they were proceeded against ex-parte. They were also proceeded ex-parte before the learned courts below.

10. The case of the petitioner/appellant is that the respondent No.3 Muhammad Mansha, on the basis of general power of attorney (Ex.D-3), validly sold the suit land in favour of the Passban Cooperative Finance Corporation Ltd. (respondent No.2) vide sale- deed No. 2741 (Ex.P1) and, thus, he being a subsequent bona fide purchaser vide sale deed No. 4114 dated 25.8.1990 (Ex.P4) is a lawful owner of the suit land. Conversely, the respondent No.1 Mehmood Hassan, has pleaded that he had revoked the attorneyship of Muhammad Mansha, respondent No. 3, prior to execution of sale deed (Ex.P.1) and, therefore, the same; and, the subsequent sale deed dated 25.8.1990 (Ex.P4) were void. The question before this Court, therefore, narrows down to this as to whether, in the present case, the attorney, Muhammad Mansha (respondent No.3) could validly execute sale deed (Ex.P1) in favour of the Passban Co-operative Finance Corporation Ltd. (respondent No.2); and, that as to whether the petitioner/appellant could be declared a bona fide purchaser for value of the suit land.

11. The first question is covered by issues Nos.1 and 16, reproduced in para 5 above. This is a myriad question and thus its each facet requires deeper consideration. In respect of this question, the learned counsel for the petitioner/ appellant has firstly contended that the sale-deed (Ex.P1) in favour of the Passban Co-operative Finance Corporation Ltd. was executed prior to execution of Revocation-Deed/Abtalnama (Ex.P3) and this fact is evident from the dates of execution of sale-deed (Ex.P1) and Revocation Deed/Abtalnama (Ex.P3). He argues that sale-deed was written on 11.6.1990 whereas Revocation-deed was written on 12.6.1990 and, thus, as per principle laid down in the case of "Muhammad Sadiq v. Muhammad Ramzan and 8 others" (2002 SCMR 1821) the sale-deed (Ex.P 1) shall be treated to have been executed prior to execution of Revocation-Deed (Ex.P3). This assertion has been controverted by the learned counsel for the respondent No.1 who submits that the evidence available on record does not support the same. The above said contentions may be addressed by examining the statement of Sikandar Hayat (DW-1) who is a marginal witness of sale-deed (Ex.P1); and, the statement of Ashiq Ali (DW-5) who is the scribe of sale-deed (Ex.P1). Sikandar Hayat (DW-1) has stated that sale-deed (Ex.P1) was scribed at 11/12 noon on 12.6.1990; that on 12.6.1990 at 2.00 p.m. for the purpose of registration of sale deed, he along with Ch. Aman Ullah, Advocate appeared before Sub-Registrar, Mian Muhammad Fazil, who informed them that revocation deed had already been registered at 8.00 a.m; and, that the date 11.6.1990 was not mentioned when he signed the sale-deed. The other witness, Ashiq Ali (DW-5), who is scribe of sale deed (Ex.P1), has stated that certificate qua the exemption of stamp duty was handed over to him on 12.6.1990; that the above certificate was pasted on the reverse of sale deed (Ex.P1); that on 12.6.1990 at 2.00 p.m. after getting above certificate, he scribed the sale deed (Ex.P 1); that the date 11.6.1990 is not in his hand-writing; and, that he wrote the date as 12.6.1990 but it was subsequently changed as 11.6.1990. The afore-stated evidence conclusively show that the sale-deed (EX.P1) and the Revocation-Deed (Ex.P3) were both executed on the same date i.e. 12.6.1990. Thus the date and the principle laid down in the case of Muhammad Sadiq (supra) are not helpful to resolve this question or issue No.1.

12. Inconsequentiality of the factor of date qua execution of sale deed (Ex.P.1) and Revocation-Deed (Ex.P3) to decide the question involved in this case or issue No.1 persuades me to examine the other feature of the said two documents. The learned counsel for the petitioner/appellant submits that this riddle may be resolved by taking into consideration the time at which the documents were registered by the Sub-Registrar. In this context he urges that the sale- deed (Ex.P1) was registered on 12.6.1990 at 9/10 a.m. whereas Revocation-Deed (Ex.P3) was registered on 12.6.1990 at 1.00/2.00 p.m; that as per principle laid down in the case of "Mst. Rasheeda Bibi and others v. Mukhtar Ahmad and others" (2008 SCMR 1384) the certificate of registration or endorsement on the registered document carries a presumption of truth and, thus, the time mentioned on the documents by the Sub-Registrar shows that sale deed (Ex.P1) was registered prior to revocation of power of attorney; and, that according to dictum laid down in the case of "Ahmad Khan and another v. Zaheer Ahmad Khan Tareen and 7 others" (PLD 1986 Lah. 184) the document registered prior in time has priority. I am not inclined to accept this contention for the reason that the documentary evidence available on record does not support it. Mehmood Hassan, the original owner of the suit property, being aggrieved by the mutation No. 3701 dated 13.6.1990 (Ex.D10) which was attested by the AC-II, Gujranwala on the basis of sale-deed (Ex.P1) filed an appeal before the District Collector, Gujranwala. The District Collector called for a report from the Sub-Registrar, Gujranwala in respect of the time of execution of sale-deed (EX.P 1) and Revocation- Deed (Ex.P.3). Pursuant to above said order an inquiry was got conducted through the Naib Tehsildar, Gujranwala who on 24.11.1990 reported as follows:- "a) the original copy of the cancellation deed, though registered on 12.6.1990, does not carry any entry regarding the 'time' and 'day' of registration; b) the original copy of the cancellation deed, which was returned back to the executioner/petitioner, bears serial No. 162, whereas the copy pasted on the official register carries the No.262. This discrepancy is indicative of mala fide intent on the part of the respondents and the revenue staff; c) the executioner of the cancellation deed (petitioner) was made to write in his own hands on the cancellation deed that it was presented around 1.00 p.m. before the Sub- Registrar, whereas this practice had not been followed for any other document registered in that office." This report has been incorporated by the District Collector in his order dated 27.01.1991 (Ex.D7) whereby appeal of Mehmood Hassan, respondent No.1, was accepted and the order of AC-II, Gujranwala dated 13.6.1990 with respect to attestation of Mutation No.3701 was set aside. The present petitioner/appellant assailed the above said order dated 27.1.1991 (Ex.D7) through a review petition under Section 163 of the Land Revenue Act, 1967 before the District Collector. The review was dismissed by the District Collector vide order dated 8.7.1992 (Ex.D-8). The petitioner/appellant through a revision petition under section 164 of the Punjab Land Revenue Act, 1967 assailed the afore-stated order dated 8.7.1992 (Ex.D.8) of the District Collector before the Commissioner, Gujranwala Division, Gujranwala. The Commissioner after affording opportunity of hearing to the present petitioner/appellant and respondent No. 1, Mehmood Hassan, dismissed the revision vide order dated 26.4.1993 (Ex.D-9). The petitioner/appellant never assailed the order dated 8.7.1992 (Ex.D-8) and order dated 26.4.1993(E.D-9) before any higher forum or court and thus the findings qua the time mentioned on the sale-deed (Ex.P1) and the Revocation-Deed (Ex.P3) attained finality. Besides above, the report of Inquiry Officer (Ex.D-2) and the statement of Sikandar Hayat (DW-1); and, Ashiq Ali (DW5), reproduced in preceding paragraph, who had no malice and enmity against the petitioner/appellant are sufficient piece of evidence to disbelieve the statement of Sub-Registrar (PW-2). Learned counsel for the petitioner/ appellant, in this regard, has also failed to point out any mis-reading and non-reading of evidence by the learned courts below. Thus, in the presence of above stated orders/documentary evidence and statement of witnesses it becomes clear that the Sub-Registrar with mala fide intent mentioned the time on sale deed (Ex.P1) and Revocation-deed (Ex.P.3); and, that the sale deed (Ex.P1) was registered, after the registration of Revocation-Deed (Ex.P3).

13. Although it has become clear that the sale deed No. 2741 (Ex.P1) was registered after the registration of Revocation deed (Ex.P3) yet the validity of said sale-deed may be addressed from another angle, that is, by appraising the attorneyship of Muhammad Mansha, respondent No.3. This may be done either by examining the pleadings of the parties or by perusing the recitals of the power of attorney (Ex.D-3). Now, first I examine the pleadings of the parties. The respondent No. 1 in paragraph 3 of his plaint has specifically stated that before the execution of Revocation-Deed (Ex.P3) he orally informed Muhammad Mansha (respondent No.3) about the revocation or cancellation of general power of attorney (Ex.D3). This fact could only be admitted or denied by Muhammad Mansha. In this regard it would be appropriate to reproduce below paragraph 3 of the plaint, which reads as under:- The reply of Muhammad Mansha (respondent No.3) of the said paragraph is as below:- Perusal of afore-cited paragraphs shows that Muhammad Mansha was aware that respondent No. 1 had cancelled his power of attorney. The petitioner/appellant had not led any evidence to the effect that after execution of sale deed (Ex.P1), the attorney, Muhammad Mansha, colluded with the original owner, that is, Mehmood Hassan (respondent No.1). Thus, this admitted fact was not required to be proved and could be basis of decision. Now, an ancillary question arises as to whether the power of attorney could be revoked orally. Answer to this question is in affirmative. The termination of the authority of an agent, so far as regards the agent, takes effect when it becomes known to him, or, so far as regards third persons, when it becomes known to them. There is no provision which requires revocation of authority only through a registered deed. As per provisions of the Contract Act and the principle laid down in the case of "Basri through L.Rs and others v. Abdul Hamid through L.Rs and others" (1996 MLD 1123) and Raza Munir and another v. Mst. Sardar Bibi and 3 others (2005 SCMR 1315) only notice of revocation is required to be given to the agent and this notice may be oral. In this perspective it becomes clear that general power of attorney (Ex.D3) of Muhammad Mansha (respondent No.3) stood revoked before the sale made in favour of the Passban Co-operative Finance Corporation Ltd. (respondent No.2) and, thus, the sale deed (Ex.P1) was illegal and without lawful authority.

14. At this juncture, it would be apposite to examine the implication of the earlier suit (Ex.P11) filed by Mehmood Hassan, respondent No.1, against his attorney, Muhammad Mansha respondent No.3 for recovery of Rs.750,000/-. Learned counsel for the petitioner/appellant contends that in the said suit Mehmood Hassan had not challenged the sale-deed executed in favour of the Passban Co-operative Finance Corporation Ltd. (respondent No.2) and thus by virtue of Order II, Rule 2, C.P.C. he could not claim relief of land in the subsequent suit. The above contention sans merit for the reasons: firstly, the earlier suit (Ex.P11) was dismissed as withdrawn with permission to file fresh suit vide order dated 22.9.1990 (Ex.P16) and thus it would be regarded as never brought; and, secondly, the admissions made by Mehmood Hassan in the earlier suit (Ex.P11) could not be used as legal evidence because he was neither confronted with the specific portion of his previous admission/inconsistent statement during his cross-examination nor the modus operendi prescribed in Article 140 of the Qanun-e-Shahadat Order, 1984 was adhered to by the petitioner/appellant.

15. Notwithstanding above, there is another aspect of the matter which is worth consideration. Muhammad Mansha (respondent No.3) on the basis of general power of attorney (Ex.D-3) sold the suit land in favour of the Passban Cooperative Finance Corporation Ltd. (respondent No.2) vide sale-deed (Ex.P1). The said sale-deed would be valid if it is proved that the agent, Muhammad Mansha, had the authority to execute and register the same. In this context an appraisal of the general power of attorney (Ex.D3) is essential. The contents of the power of attorney (Ex.D3) reads as under:- The power of attorney is a creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of the grantor which when executed will be binding on the grantor as if done by him. It is revocable or terminable at any time. Each recital in the power of attorney constitutes a separate power and thus the power of attorney must be strictly construed and limited to the exact words contained therein. In the above said general power of attorney (Ex.D3) Muhammad Mansha was, inter alia, authorized to sell, gift, exchange, mortgage and waqf the suit land. He was further authorized to accept earnest money in respect of sale of the suit land. There was no clause of a comprehensive character which would show that the principal, Mehmood Hassan, intended to confer plenary powers on his attorney, Muhammad Mansha, to deal with the suit land. Through the above said general power of attorney (Ex.D3) the incidental power of sale, that is, to execute deed of sale and to admit execution thereof before the Registering Officer were not given to the attorney. This power of attorney authorized the attorney, Muhammad Mansha, to sell the property owned by the principal, Mehmood Hassan. Clearly agreement for the sale of property and the execution of conveyance after the agreement of sale are entirely different things. Consequently the power of attorney (Ex.D3) is of no assistance to the present petitioner/appellant. In this regard guidance may be had from the case of "Janki Parshad Singh and others v. Syed Yahia Hossain and others" (13 IC 637), "Chottey Lal v. The Collector of Moradabad" (AIR 1922 PC 279), "Ziauddain Siddiqui v. Mrs. Rana Sultana and another" (1990 CLC 645), "Journalist Publication (Pvt.) Ltd. through Chief Executive v. Mst. Mumtaz Begum alias Mustari Begum through her duly constituted Attonrey and others" (2004 SCMR 1773). Thus, the sale-deed (Ex.P1) executed in favour of the Passban Co-operative Finance Corporation Ltd. (respondent No.2) was illegal and without authority.

16. The general clause conferring incidental power i.e. "to do, perform and carry out all such acts, and deeds whatever as may be considered requisite for the above purpose as amply and effectually as the principal could do in his own proper person if these presents had not been executed", which is usually stated, was not available in the general power of attorney (Ex.D3), therefore, it would mean that the same was susceptible to doubt about its interpretation. In these circumstances, Muhammad Mansha (respondent No.3) as per principle laid down by the Hon'ble Supreme Court of Pakistan in the case of "Fida Muhammad v. Pir Muhammad Khan (deceased) through legal heirs and others" (PLD 1985 SC 341) was required to use reasonable diligence in communicating with the principal/original owner of the suit property, that is, Mehmood Hassan (respondent No.1) and should have sought his instructions about the sale. In the case in hand, no evidence has been led by the petitioner/appellant: that the said attorney, Muhammad Mansha, took reasonable steps in communicating with Mehmood Hassan; and, that he sold the suit land in favour of the Passban Co-operative Finance Corporation Ltd (respondent No.2) after getting his instructions. In these circumstances, the sale made in favour of the Passban Co-operative Finance Corporation Ltd. (respondent No.2) cannot be held valid.

17. Now, a last question which requires determination is as to whether in the given facts and circumstances of the case the petitioner/appellant could be declared a bona fide purchaser for value of the suit land. Answer to this question is in negative for the simple reason that Ashiq Ali (DW-5), who is scribe of sale-deed dated 12.6.1990 (Ex.P1) and respondent No. 1/Mehmood Hassan as DW-7 have categorically stated in their examination-in-chief that the present appellant/petitioner was present along with Muhammad Mansha on 12.6.1990 at the time of registration of sale-deed (Ex.P1) in favour of the Passban Cooperative Finance Corporation Ltd. (respondent No.2) and this fact has not been controverted or challenged through cross-examination. Failure to cross-examine the above mentioned statement of witnesses amounts to admission of the above said fact. The transaction in favour of respondent No.2 (the Passban Co-operative Finance Corporation Ltd.) was a sham transaction. Thus, when the Passban Cooperative Finance Corporation Ltd. (respondent No.2) did not have right, title or interest in the suit land, the present appellant/petitioner cannot claim protection of Section 41 of the Transfer of Property Act as per principle laid down by the Hon'ble Supreme Court of Pakistan in the case of "Muhammad Yamin and others v. Settlement Commissioner and others" (1976 SCMR 489).

18. In view of above, this second appeal and the revision (C.R. No.1026-2003) are dismissed with costs throughout. MH/M-177/L Order accordingl