2010 PLP 1167 (MLD)

PERVAIZ INAYAT MALIK, J.

Since common questions of law and facts are involved in both these civil revision petitions, therefore, are being disposed of through this single order.

2. Through this civil revision, the petitioner assails the judgment and decree, dated 1-6-1995 passed by learned Additional District Judge, Lodhran vide which judgment and decree, dated 31-5-1993 passed by learned Civil Judge was reversed.

3. Briefly stated facts as those emerge out of this civil revision are that petitioner filed a suit for specific performance of the contract or in the alternative recovery of Rs.24,000 which was decreed by the learned Civil Judge, Lodhran vide judgment and decree, dated 31-5-1993, where-against respondents filed an appeal which was allowed by the learned Additional District Judge, Lodhran vide impugned judgment and decree, dated 1-6-1995 and the judgment and decree passed by learned Civil Judge was reversed, consequently the suit filed by the petitioner stood dismissed.

4. It is inter alia contended that an agreement to sell was executed in favour of the petitioner by General Attorney of the owner/respondent No.2 whereas the remaining respondents/owners of the land denied having executed agreement to sell; D.W. 3 Muhammad Munawar son of the deceased vender appeared before the learned Civil Judge and in his written statement admitted execution of agreement to sell. The respondents in their evidence produced Exh.D-2, which is cancellation of the document of General Attorney which by itself admits the execution of the agreement to sell and from the afore-stated facts, it is proved that the deceased Nazim Din did appoint respondent No.7 -as his Attorney. The other objection of the respondents that the agreement to sell in dispute was undated, had committed forgery is also belied from the documentary evidence as, in their written statement they have denied in parawise reply, whereas the same fact has been admitted in the preliminary objection. The very words used by the respondents that they came to know of the alleged conspiracy and therefore promptly got the document of agreement to sell cancelled show that they did have the knowledge; General Attorney respondent No.7 also filed a written statement where he admitted execution and consideration thereof thus, the case of the petitioner stood proved but the learned Additional District Judge proceeded to reverse the well-reasoned findings of the learned Civil Judge on the grounds untenable in law, by non-reading the evidence on record; the plaintiff/petitioner successfully proved all those issues, onus whereof was upon him whereas on the contrary the defendants/respondents failed to discharge the onus of those issues, concerning them. Lastly submits that in view of statement of General Attorney, the fact of purchase of stamp papers from Multan instead of Kehror Pakka loses its importance, therefore, he prays that this revision petition may be allowed. Judgment of the learned Additional District Judge may be set aside and that of the learned Civil Judge, dated 31-3-1993 be restored.

5. Conversely Syed Mohtsham-ul-Haq Pirzada, Advocate, learned counsel for respondents while vehemently controverting the submissions made at bar by learned counsel for the petitioner, submits that the alleged agreement to sell in fact was obtained by practising fraud upon respondents when he was signing the mortgage deed without even informing him and since the alleged agreement to sell was not even within his knowledge, therefore, no action was taken by him. The alleged Power of Attorney and mortgage deed both were registered on 1-1-1978, whereas the suit for specific performance of contract was filed much later. He came to know of the fraud within a period of five months and he got the said document of General Attorney cancelled. Refers to preliminary objection No.5 to canvass that the property in question was also mortgaged with respondent No.8, Muhammad Sharif son of Taj Muhammad, therefore, no question of execution of agreement with respondent No.8, who is close relative of the alleged general attorney arises. Nowhere in the alleged document of general attorney the so-called attorney was ever authorized to execute agreement to sell therefore, the act of general attorney of entering into agreement to sell is without lawful authority. Beyond the scope of powers and that the alleged fraud of the petitioner is also proved from this fact of the matter that the stamp papers regarding agreement to sell were purchased on a day, which was the then holiday and that papers of both alleged agreement to sell, subject-matter of both the civil revisions i.e. C.R. No. 508-D of 1995 and C.R. No.509-D of 1995 were purchased on the same date which cannot be considered as the co-incidence. The papers were allegedly purchased from Multan on a holiday whereas it was prepared and executed at Kehror Pacca. The land in question was mortgaged in consideration of Rs.1.05,000 only. In both the cases both the alleged agreements to sell found mentioned consideration of sale as Rs.24,

000. Nazar Muhammad from whom allegedly stamp papers were purchased was not proved as witness nor other witnesses could depose as to where from those were purchased. Even petition writer who appeared as P. W.1 did not produce his register, therefore, no evidence at all was produced by the plaintiff to prove his contention. P.W. 1. the petition writer, Syed Saeed Anwar in his cross-examination, categorically admitted that number of cases regarding fraud and forgery were registered against Nazar Muhammad son of Eda. P.W.2. Muhammad Murad is brother-in-law of respondent No.1 Nazir Muhammad who is attorney in matter of the civil revision. Learned counsel for the respondent has read out the statement of P.W.2., Refers to part of his statement to the effect that both these stamp papers were written on the same date. P.W.2 denies of payment of Rs.48,000 and he himself says that only Rs.24,000 were paid and thus confirms in his statement that total amount was Rs.24,000 for the alleged documents.

6. In rebuttal, Malik Javaid Akhtar Wains, Advocate learned counsel for the petitioner refers to Exh.P-5 of the petition to canvass that the authority of sale was vested in the General Attorney. Further submits that the execution of agreement to sell by practising fraud and obtaining his signatures and thumb-impression on mortgage deed has been for the first time introduced by learned counsel for the respondents before this Court which is not permissible.

7. Arguments heard. Record perused.

8. The main thrust of arguments of Mr. Mohtsham-ul-Haq Pirzada, Advocate, learned counsel for the petitioner was that the agreement to sell in question was a forged document and that it was obtained by practising fraud upon the petitioner and that the same does not authorize the alleged General Power of Attorney to execute agreement to sell. The submissions are contrary to the record. The execution of agreement to sell is admitted. The mere fact that the same were purchased from some other city or it was written on a day which was a holiday by itself would not be sufficient to doubt the authenticity of a document besides the party once having admitted signature upon a document, the onus shifts to the party who alleged it to be a fraudulent document. Mere allegation per se would not be sufficient to hold a genuine document as forged one. The other limb of argument that the General Attorney has alienated land without authority is also belied from the record Exh.P.5 as it is there in the document itself that the General Attorney was authorized to alienate the land by way of sale etc. Arguments of Malik Javaid Akhtar Wains, Advocate, learned counsel for the petitioner fully find support from the G record, In the preliminary objections of the written statement filed by respondents categorically execution of document of general attorney is admitted, which was got cancelled subsequently. Likewise respondent No.3 real son of above said Nizam Ali who appeared as D.W.3 admitted that since 1-1-1978 till 15-5-1998 Nazar Muhammad respondent No.7 had been the attorney of his father Nizam Ali besides Nazar Muhammad respondent No.7 general attorney of Nizam Ali. In his written statement in reply to para.No.2 has admitted the same in the following words. Exh.P-5 is, the document of general power of attorney which empowers respondent No.7/general attorney to sell land in the following words.

9. I am of the considered view that the learned Civil Judge, proceeded to decree the suit of the petitioners by dilating upon all issues through the well-reasoned judgment and decree which was reversed by the learned Additional District Judge, without any lawful justification. The petitioner/plaintiff successfully proved execution of document and his suit, therefore, was rightly decreed. In support of his contentions learned counsel for the petitioner placed reliance upon law laid down in ("1992 MLD 860) "Muhammad Anwar v. Haji Muhammad Ismail". (1997 CLC 1580) "Syed Muhammad Sultan v. Kabir and others" which to my mind is fully applicable to the case in hand. It was observed therein that documents executed prior to promulgation of Qanun-e-Shahadat Order, 1984 are to be dealt with in accordance with earlier law. Admittedly the controversy in hand pertains to the year, 1978, when Qanun-e-Shahadat Order was not in the field, therefore, the case in hand could not be judged in view of provisions of law which was not applicable at the relevant time.

10. For what has been discussed above, the impugned judgment and decree passed by learned Additional District Judge is hereby set aside and that of the learned Civil Judge, dated 31-5-1993 is restored. M.U.Y./W-20/L Petition allowed.