2000 PLP 2256 (YLR)

The petitioner seeks revisal of impugned order passed by the learned Additional District Judge, Toba Tek Singh, on 18‑6‑1999, whereby the judgment and decree dated 11‑2‑1999, passed by learned Senior Civil Judge, Toba Tek Singh in favour of the respondents was confirmed.

2. The background of the case is that respondent Muhammad Hussain instituted a suit for declaration to the effect that the plaintiff was owner in possession of Khewat No.58, Khatooni No.158 comprising 112 Kenals 8 Marlas according to the Jamabandi 1991‑92 situated in Chak No.381‑J.B., Tehsil and District Toba Tek Singh and that Mutation No.211 on 27‑1‑1988 regarding gift by the plaintiff through General Attorney and son of the plaintiff namely Ghulam Rasool ‑deceased and the alleged general power of attorney by the plaintiff in favour of Ghulam Rasool bearing No.310 dated 21‑6‑1974 regarding mortgage, sale, gift and Tamleek in respect of all the said property was against the law, forged and fictitious, liable to be cancelled, non‑existent void, without authority, without offer and acceptance and the transfer of possession, actually and legally were bogus and for the issuance of a permanent injunction to the effect that the respondents be restrained from alienating the suit land or putting it any charge and interference in its position; on the averments that the plaintiff is owner in possession of the suit land and is to get water sanctioned for garden concerning the land and that the plaintiff is the resident of England and, often comes to Pakistan and goes back to England and the plaintiff in his absence from Pakistan had given to his real son Ghulam Rasool a power of attorney for sanction of the water and for pursuing the litigation and by the said power of attorney his son, namely, Ghulam Rasool was not given any authority to gift, sale, mortgage or Tamleek the property of the plaintiff and that the original power of attorney was in the custody of Ghulam Rasool who died his natural death about two months prior to the institution of the suit and the plaintiff had come to Pakistan to condole his death and that after having given the said power of attorney the plaintiff had gone back to England in the end of 1986 and is still residing there and came to Pakistan in October, 1994 on the death of his son Ghulam Rasool and that the age of the plaintiff is about 75/76 years and he is an old man and that the defendants are the real grandsons of the plaintiff and that the defendant No.1 is major while defendant. Nos.2 and 3 are minor and Mst. Perveen is their real mother who has been appointed as the guardian at item of respondents Nos.2 and 3 and has no interest against the minors and that she can better pursue the litigation in the interest of the minors and that a few days before the plaintiff went on his land to get accounts etc., from his tenants who told him that the defendants have got a forged and fictitious mutation attested in respect of the plaintiff's land on which the required copies were obtained and the forgery came to his knowledge and that as the original general power of attorney was in the custody of Ghulam Rasool, who has since died, and defendant No.1 has destroyed the general power of attorney. However, the plaintiff went to the office of the Registrar and investigated the registration of general power of attorney, from there it came to his knowledge that in it a line has been removed by using ink remover and in place of it the words "REHN KARE" have been added and that the said forgery was clearly visible in the original register (P.1/1). On this account by making the cuttings in the general power of attorney and addition about "Hibba etc. " having been made by the defendants and in league with their father Ghulam Rasool have got a forged and fictitious and without authority the disputed mutation although the ingredients of gift had not actually and legally taken place and that the plaintiff had not given powers to his son Ghulam Rasool deceased to alienate his land in any manner and that for this reason the general power of attorney and the mutation in dispute are liable to be cancelled. The possession of the plaintiff on the spot was through the tenants and that the plaintiff had asked the defendants many times that they should get the power of attorney and the mutation of the disputed property cancelled but they continued refusing and have finally refused about 20 days prior to the institution of the suit.

3. The suit was contested and the respondents took the preliminary objections that the suit was time‑barred and that the suit land was in their possession as owners through tenants and that the plaintiff is not in possession of the suit land and that a simple suit for declaration without a prayer for possession was not maintainable and that the suit land is comprising of 1/2 square of land the value of which for the purpose of court- fee and jurisdiction has not been properly fixed and the suit is liable to be dismissed, and that the suit is not maintainable being collusive with the real mother of defendants Nos.2 and 3 merely to cause loss to defendant No. l and to cause get gain by the plaintiff and that defendant No. l was only 28 days old when his mother died and he was looked after by brother of his grandfather, namely, Muhammad Yousaf, while Ghulam Rasool, father of the defendant No. 1, married a second wife Mst. Perveen Akhtar and out of the wedlock defendants Nos.2 and 3 born and that the said Mst. Perveen Akhtar under an impulse of greed and with mala are in league with the plaintiff got mutation cancelled and intents to get whole area mutated in favour of her own and that a false story has been concocted mala fide intention and as such the suit is maintainable, and that no cause of action available to the plaintiff and that the suit liable to be dismissed with special costs c, section 35‑A, C.P.C.

4. On facts it was admitted by defendant No. l that the suit land was in the ownership of the plaintiff and that the plaintiff had given general power of attorney to Ghulam Rasool the son of the plaintiff and that the plaintiff had himself voluntarily given the powers of attorney in favour of Ghulam Rasool to gift, sale, mortgage or Tamleek etc. and that the original power of attorney was in the custody of Ghulam Rasool, and that defendants Nos.2 and 3, their mother Perveen Akhtar and Ghulam Rasool father of the defendant resided jointly while defendant No.1 separately with the brother of the grand father, namely, Muhammad Yousaf and on the death of Ghulam Rasool the entire household goods remained with Perveen Akhtar, the wife of Ghulam Rasool, and that she had knowingly and collusive concealed the said power of attorney.

5. On the other hand both the defendants Nos.2 and 3 in their written statements admitted that the plaintiff was owner of the suit land and general power of attorney was given to Ghulam Rasool who had since died and that their mother has been rightly made their guardian ad item and that at the spot the tenant is in possession and looking after and managing the suit land of the plaintiff.

6. The learned Senior Civil Judge, Toba Tek Singh framed the following issues:‑‑ (1) Whether plaintiff is owner in possession of the disputed land and Mutation No.211 dated 27‑1‑1988 and general power of attorney No.310 dated 21‑6‑1974 from plaintiff in favour of Ghulam Rasool deceased to the extent of mortgage, sale, gift and Tamleek of the disputed land are wrong, illegal, against the fact, void, without authority and are liable to be cancelled? OPP. (2) If issue No. l is proved, then whether plaintiff is entitled to the decree as prayed for? OPP. (3) Whether suit is within time? OPP. (4) Whether suit is not. maintainable in its present form? OPD. (5) Whether suit has not been properly valued for the purpose of court‑fee and jurisdiction, if so, then what is its proper valuation for both the purposes and its effect? OPD. (6) Whether the plaintiff has got no cause of action and locus standi to institute this suit? OPD. (7) Whether defendants are entitled to special costs under section 35‑A of C.P.C.'~ OPD. (8) Relief.

7. The plaintiff examined Muhammad Sarwar, H/C (P.W.1) and Muhammad Hussain the plaintiff himself as (13.W.2) and brought on record the certified the copy of the entry in the register of the general power of attorney (Exh. P‑1) and the alteration (EX.P.1/1), copy of mutation No.211 (Ex.P.2), and the copy of Jamabandi 1991‑92 (Exh.P3).

8. On the other the defendant examined Muhammad Ismail (D.W.1) Asghar Ali (D.W.2), Abdur Rashid (D.W.31 who produced certified copy of power of attorney in favour of Ghulam Rasool of the year 1974 (Exh.D.1) and a writing different over Exh.D.l as Exh. D.1/1, photostat receipt Mark‑A, Rehmat Ullah (D.W.4), Liaqat Ali Patwari (DW.5), Nasrullah Khan, Tehsildar (D.W.6), Yousaf Ali (D.W.7), Mushtaq Ahmad (D.W.8), Khadim Rasool (defendant/petitioner (D.W.9)) and produced on record of copy of Khasra Girdawari (Exh. D.4), copy of both register of defendant (Exh. D.3) and Copy of General Attorney printed pages Nos. 165 to 167.

9. After hearing the arguments of the learned counsel, the learned Senior Civil Judge decreed the suit on 11‑2‑1999. An appeal was preferred before the learned Additional District Judge, Toba Tek Singh which was dismissed on 18‑6‑1999 with the observation that the trial Court has rightly appreciated the evidence on record in accordance with law on the point.

10. The first contention of the learned counsel for the revision petitioner is that the written contents of the register of power of attorney cannot in law be contradicted by oral evidence. His second contention is that as the gift was duly made and implemented through the mutation while power of attorney was executed in 1974, gift was made in 1988 and the suit was filed in 1994 and that when power of attorney has validly been executed the will and consent of the attorney is deemed to be the will and consent of the principal and the law has been erroneously applied by the Courts below. The mutations are in the name of the petitioners who in law have always remained in possession and that in this circumstance, the decision of both the Courts below being contrary to law were without lawful authority and they should be set aside to avoid injustice.

11. On the other hand learned counsel for the respondents in reply to the first contention of the learned counsel for the petitioner submitted that where fraud is alleged the oral evidence is not only relevant but also admissible. Regarding second contention he replied that where an attorney, in whose favour general power of attorney is executed to alienate the land, if he was to execute a gift deed of the said land in his own favour or in favour of any person depending upon him, he should have got the prior permission of the principal otherwise the alienation will be void.

12. I have given due consideration to the valuable arguments on both sides and have gone through the evidence on record.

13. It is an admitted position on both sides that the primary evidence i.e. the Original Power of Attorney was in the custody of the Attorney who has admittedly died and the petitioners/defendants being his legal heirs have got the possession of all his assets including documents and their denial and non‑production of the Original Power‑of-Attorney gave the right to the respondent/plaintiff to give secondary evidence. The reason is that inter alia, the important modes of proof of facts are: ‑‑ (i) Oral Evidence; and (ii) documentary evidence. Oral evidence means statements which the Courts permit or require to be made before it by witnesses in relation to matters of fact under inquiry. Article 72 of the Qanun‑e‑Shahadat Order, 1984 states:‑‑ "72, Proof of contents of documents, The contents of documents may be proved either by primary or by secondary evidence." This Article is controlled by Articles 75 and 76 which read as under:‑‑ "

75. Proof of documents by primary evidence.‑‑Documents must be proved by primary evidence except in the cases hereinafter mentioned. 76, Cases in which secondary evidence relating to document may be given, Secondary evidence may be given of the existence, condition or contents of a document in the following cases:‑ (a) (b) (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) (e) (f) (g) (h) (i) In cases (a), (c), (d) and (e), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (f) or (g), certified copy of the document, but no other kind of secondary evidence, is admissible. In case (h), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents." Thus, in view of clause (c) above any secondary evidence of the contents of the document is admissible. The respondent/plaintiff has rightly availed his right to bring on record the relevant copy of the Extract of the Register of the Power‑of Attorney (Exh.P.l) maintained in the office of the Sub‑Registrar, Toba Tek Singh as secondary evidence and produced Muhammad Sarwar (P. W.1) Head Clerk of the Registration Branch of the D.C. Office to prove the fraud and manipulation even in the Exh. P.1. Thus P. W 1 deposed that line No.12 appears different from the other writing and that in Exh.P.l at the point of Exh.P.I/1 the 12th line, below which a blue colour line has been drawn, is the line which is doubtful in his register. In his cross examination, he deposed that in his register the doubtful line appears to have been rewritten after erasing with some chemical and the chemical is manifested on this line. The words which were removed by the said chemical were visible. However, those words which were removed by the chemical, the new writing and those words are clearly visible. He again deposed that the new words which were re‑written were visible without any sort of cutting in them. He also deposed that he was not handwriting expert. To a suggestion, he has categorically stated that it was incorrect to suggest that the 12th line and the remaining other writing of the register were in the same handwriting or looking alike. He also deposed that he could not say if the chemical used in the register was for the purpose of creating doubt and to make the writing doubtful and that the writing is the same as it was existing originally. He also deposed that it was correct to suggest that no private person can have excess to the said register. There is no rebuttal of this evidence. The denial by the respondent executant of having given any power to the attorney except the power to manage and control his estate and to get sanction of water for garden, is was committed while the plaintiff/respondent No.1 also proved by the strict construction of the Power of Attorney in the light of the recital and the contents. Thus, the respondent No.1 (plaintiff) has successfully discharged his onus in respect of Issue N0.1. There is no perversity, no misreading, no non‑reading of evidence by the Courts below. To argue that f the contents of the documents cannot be rebutted by oral evidence even when there is allegations of fraud is not a valid argument.

14. In the case of Fida Muhammad v. Pir Muhammad Khan (deceased) through Legal Heirs and others (PLD 1985 Supreme Court 341) before parting with the judgment the Hon'ble Supreme Court of Pakistan took note of a widespread misuse of Power of Attorney and observed as under:‑‑ "It is wrong to assume that every general Power of Attorney on account of the said description means and includes the power to allienate/dispose of property of the principal. In order to achieve that object it must contain a clear separate clause devoted to the said object. The draftsman must pay particular attention to such a clause if intended to be included in the Power of Attorney with a view to avoid any uncertainty or vagueness. Implied authority to alienate property, would not be readily deduce-able from words spoken or written which do not clearly convey the principal's knowledge, intention and consent about the same. The Courts have to be vigilant particularly when the allegation by the principal is of fraud and/or misrepresentation. The second aspect which needs caution on question of validity of acts under a Power of Attorney is that notwithstanding an authority to alienate principal's property, the Attorney is not absolved from his two essential obligations, amongst others: Firstly, in cases of difficulty (and it will be a case of difficultly if the Power of Attorney is susceptible to doubt about its interpretation) to use all reasonable diligence in communicating with the principal and seeking to obtain his instructions, and secondly, if the agent deals on his own account the property under agency e.g., if he purchases it himself or for his own benefit; he in his own interest should obtain the in his own interest should obtain the consent of the principal in that behalf after acquainting him with all material circumstances on the subject, failing which the principal is at liberty to repudiate N transaction. The following two examples given under section 215 of the Contract Act are illustrative of the intention of the law:‑‑ (a) A directs B to sell A s estate. B has bought the estate for himself in the name of CA, on discovering that B has bought the estate for himself, may repudiate the sale, if he can show that B has dishonestly concealed any material facts, or that the sale has been disadvantageous to him. (b) A directs B to sell A's estate. B, on looking over the estate before selling it, finds a mine on the estate which is unknown to A. B informs A that be wishes to buy the estate for himself, but conceals the discovery of the mine. A allows B. to buy in ignorance of the existence of the mine. A, on discovering that B knew of the mine at the time he bought the estate, may either repudiate or adopt the sale at his option."

15. In the case of Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others (1994 SCMR 818) where father of appellant and respondents Nos. l and 3 husband of respondent No.4, Said Nawab, owned landed property in villages and the Said Nawab executed a general power of attorney in favour of his son‑in‑law, Said Ghawas, who was married to one of his daughters Mst. Gulzar Begum and the power of attorney included inter alia the power to sell and transfer the landed properties and the Said Ghawas on the strength of it gifted the properties in favour of his wife a few months before the death of Said Nawab and after his death her two daughters had filed two suits in the Civil Court to challenge the attestation of mutations on the basis of gifts by the said attorney. The trial Court dismissed the suits but on appal the first Appellate Court reverses the judgment and decree of the trial Court and decreed both. the suits. Civil revision applications were filed before the High Court and the judgment and decree of the trial Court was restored. Leave was granted by the Hon'ble Supreme Court against the judgment of the High Court in the said appeal to consider the following questions:‑‑ (a) Whether the High Court in its limited jurisdiction should have interfered, on questions of fact, with the appellant judgment in this case? (b) Whether an attorney could have exercised the right and power of the owner to make a mental decision for purpose of making a gift as against forms of alienations like sale without the donor himself having taken a mental conscious decision of making a gift, particularly, on the basis of alleged power of attorney which allegedly gave power to alienate only through a general power of attorney? (c) Whether law laid down, by this Court regarding transfer by attorneys in favour of next of kin without the specified approval from the principal has been followed in this case. See Fida Muhammad v. Pir Muhammad Khan (deceased) through Legal Heirs (PLD 1985 SC 341)." And the Hon'ble Supreme Court of Pakistan observed as under:‑‑ "The revisional jurisdiction under section 115, C.P.C. exercised by the High Court is attracted only in cases where the lower Court has exercised a jurisdiction not vested in it by law or it has failed to exercise jurisdiction so vested in it or while exercising jurisdiction the Courts below have acted illegally or with material irregularity. It is, therefore, quite clear that the High Court while exercising revisional jurisdiction cannot disturb the finding of fact arrived at by the lower Court in proper exercise of the jurisdiction vested in . the Court and upon consideration of the relevant evidence on record. The finding of fact by the lower Court could only be disturbed in revisional jurisdiction by the High Court, if it is found to be fanciful, perverse or it has been arrived at by a process which had rendered the exercise of the jurisdiction vested in the Court defective. In case of misreading of evidence or non‑consideration of legal evidence on record, the exercise of jurisdiction and power possessed by the Court is rendered defective, justifying interference by the High Court in exercise of its revisional jurisdiction. The‑fact that the High Court on reappraisal of the evidence, finds that the finding of fact recorded by the trial Court is preferable to the finding of fact recorded by the first Appellate Court cannot justify interference with such finding in exercise of revisional jurisdiction by the High Court. The first Appellate Court is the final Court in so far the findings of facts are concerned and such finding can only be disturbed in revisional jurisdiction by the High Court if it is arrived at by the first Appellate Court either by misreading the evidence or through perverse appreciation of evidence on record or due to non‑consideration of legal evidence on record. From the above quoted passage of the impugned judgment, it is quite clear that the findings of facts recorded by the first Appellate Court was reversed by the High Court on reappraisal of the evidence and by substituting its own opinion for that of the first Appellate Court without referring to any defect in the process of reasoning adopted by the first Appellate Court. This, in our opinion, was not permissible within the scope‑ of the revisional jurisdiction exercised by the Nigh Court in the case. Apart from it, the learned Judge in Chambers in the impugned judgment observed‑ that, the evidence on record did not Chow that Said Nawab, the executant of power of attorney, was ailing or was on death bed at the time he executed the power of attorney. This conclusion of the learned Judge is contrary to the evidence on record as Said Ghawas, respondent No.2, in his cross‑examination, stated as follows:‑‑ At the time of execution of the deed he was not doing any work but was ill, previously he was in police and was on pension. About" 7/8 days before the execution of deed he had fallen ill and he appointed me to prosecute litigation on its behalf. That litigation had been started by himself. About 50/60 Kanals is the subject‑matter of present suit. After his illness the possession of property to the extent of 50/60 Kanals was delivered to me, and I am in possession of the above mentioned property till the execution of deed uptil now. Similarly I was in possession of this property prior to execution of the deed because he was living with me and I used to spend on his treatment. The above statement in the cross examination by respondent No.2 clearly shows the object and purpose of execution of power of attorney by the late Said Nawab in favour of respondent No.2. We have gone through the . power of attorney executed by Saib Nawab in favour of respondent No.2 and are unable to discover any specific clause in the said power of attorney which authorised him to make gift of the property on behalf of the donor (Said Nawab). It is to be kept in view that a gift in the present case was allegedly leased on consideration of love and affection of Said Nawab for his daughter Mst. Gulzar. Begum. Love an affection cannot be expressed by any attorney on behalf of the donor. The sentiments which were the consideration for gift in the present suit must be established to have come from the donor. Gifts are voluntarily and gratuitous in the present suit transfer from the donor to the donees. The essential of these transactions are, the capacity of donor, intention of donor to make gift, complete delivery of the gifted property to the donee and acceptance of gift by donee. In order to establish a valid gift of the property by the donor in favour of the donee where gift is made through a person authorised by the donor, the intention of donor to make the gift must be established in clear terms. In such a case the authority given by the donor in favour of another person to make a gift of his property besides containing the power to make the gift must also clearly specify the property and the donee in the case. In the case before us gift made by Said Ghawas in favour of his wife Mst. Gulzar Begum on the basis of the power of attorney executed in his favour by Said Nawab cannot be upheld for two reasons: Firstly, the power of attorney executed in favour of respondent No.2 by the deceased Said Nawab did not contain any specific provision authorising him to make a gift of his properties and secondly, even if we assume that such power was given, there is no indication in the said document that the donor intended to make gift of all his properties in favour of the wife of respondent No. 2 (the donor)."

16. The Hon'ble Supreme Court then referred to the dictum laid down in Fida Muhammad's case (supra) and held that the alienation of the property by attorney in favour of his own wife on the basis of power of attorney executed in his favour was not sustainable at law and allowed the appeal.

17. The same view was reiterated by the Hon'ble Supreme Court in the case of Haji Faqir Muhammad and others v. Pir Muhammad and another (1997 SCMR 1811).

16. The above dictum are fully applicable in the circumstances of the instant case as such I find no reason to interfere and upset the well‑reasoned concurrent findings of the Courts below. Resultantly, the revision petition is dismissed with no order as to costs. Q.M.H./M.A.K./K‑36/L Revision dismissed.