2019 PLP 958 (YLR)

CH. MUHAMMAD MASOOD JAHANGIR, J.

In short the background of the case out of which titled Regular Second Appeal has arisen was that subject land had been allotted to one Mst. Channan Jan alias Channu under Islamabad Oustees Scheme, Undeniably, she appointed Ghulam Rasool-respondent No.3 as her General Attorney through Registered Deed dated 17.02.1973 (Exh.P6). The latter on behalf of his Principal got entered oral sale mutation No.61 on 14.10.1974 (Exh.P1) in favour of his real sons respondents (Nos. 1 and 2). Despite the fact that General Power of Attorney was rescinded through Recovcation Deed dated 05.09.1974 (Exh.D1), even then the suit property was transferred to the sons of the agent, when aforenoted mutation was sanctioned on 18.11.1974, but it could not hold the field having been annulled by A.C./Collector on 30.04.1975 while allowing appeal of Mst. Channan Jan and that order was further maintained when appeal of the respondents Nos. 1 and 2 was dismissed by the Court of Additional Commissioner through order dated 25.10.1975 (Exh. D-5). Without assailing their orders any more before Revenue Forum, respondents Nos.1 and 2 opted to institute the suit in hand on 30.10.1975 before the Civil Court for declaration while claiming their ownership qua the subject property on the basis of oral sale mutation, which had already been cancelled or in alternative for grant of decree for specific performance of agreement to sell dated 02.09.1974 (Exh.P7), contending therein that Mst. Channan Jan being allottee orally agreed to sell the suit land to their father, Ghulam Rasool against consideration of Rs.40,000/- and after receiving full sale price she executed Power of Attorney on 17.02.1973 in his favour for the protection of his rights while authorizing him to pay the dues on her behalf to the State and after attestation of Conveyance Deed, he was empowered to transfer the land to anyone else; that the latter paid the arrears to the Crown and after attestation of Conveyance Deed on 01.08.1974 the agent on behalf of his Principal on the same day when proprietary rights were transferred to her, agreed to sell the suit land to his sons, respondents Nos. 1 and 2 against a consideration of Rs.40,000/-and after receiving Rs.38,000/- the contract (Exh.P7) was executed, whereas remaining sale price was paid at the time of attestation of afore-referred mutation. Mst. Channan Jan the alleged vendor resisted the suit with the firm defence that she had appointed the Attorney only for the management of the suit land; that she had never agreed to sell the suit land and the contract being outcome of forgery and collusion was inoperative upon her rights; that she had already revoked the General Power of Attorney attested in favour of Ghulam Rasool on 05.09.1974, but the agreement was grafted subsequently to usurp her property. After recording evidence of the parties, the suit was initially dismissed on 14.09.1985, but thereafter it was remanded vide order dated 11.11.1986 by the District Court. Subsequently during proceedings of trial, the suit land was transferred by Mst. Channan Jan to the present appellants through oral sale mutation No.389 dated 08.02.1994, who were impleaded in the group of defendants and they too contested the suit while claiming themselves to be the bona fide purchasers. After culmination of trial, the suit was concurrently decreed by the two Courts below through judgments and decrees dated 21.01.1996 and 23.07.1998 respectively, hence instant appeal.

2. Mian Anwar Mubeen Ansari, Advocate, learned counsel for appellants has argued that an Attorney was not competent to transfer the suit land of her/his Principal to his kith and kins without any specific permission of him in this behalf, but the Courts below failed to attend this aspect of the case while rendering the impugned judgments; that respondents Nos.1 and 2 being beneficiaries of the contract failed to prove the valid execution of agreement to sell as well as the transaction reflected therein and findings of the Courts below that the General Power of Attorney was with consideration were without foundation; that the General Power of Attorney (Exh.P6) at the most had been executed for the management of the property and words " " specifically cited therein, revealed beyond any shadow of doubt that considera tion of the suit property was not paid to the Principal at the tune of its execution or prior to it; that at the time of attestation of mutation or Rapt Roznamcha, the impugned sale agreement (Exh.P7) was not brought into light and after cancellation of the mutation, the antedated agreement was designed to institute the suit and that the impugned judgments and decrees being tainted with misreading and non-reading of evidence were liable to be set aside while accepting instant appeal.

3. In contra, Malik Javaid Akhtar Wains, Advocate, learned counsel for respondents Nos.1 and 2 has submitted that the property in dispute had been purchased by Ghulam Rasool respondent No.3 after paying its consideration to Mst. Channan Jan, who pursuant to the said sale authorized the former being her agent to deal with the subject land for all intents and purposes; that revocation deed (Exh.D1) provided a solid proof that an agency was created; that General Power of Attorney being executed against consideration neither could be revoked nor the agent was required under the law to seek special permission from his Principal to further transfer the property to respondents Nos.1 and

2. He further emphasized that concurrent judgments of the Courts below as a result of well appreciation of material evidence available on suit file cannot be interfered with in second appeal until and unless the same are brought into the mischief of Section 100 of the Code of Civil Procedure, 1908 and that the appellants, who purchased the disputed property during the pendency of the suit could not claim any independent right or interest being its bona fide claimants.

4. Heard, record scanned and impugned judgments perused with the able assistance of learned counsel for the parties.

5. Though in the original suit respondents Nos.1 and 2 did not aver that Power of Attorney in favour of their father had been executed against any sale transaction or after making payment of sale consideration, yet subsequently after accord of permission, amended plaint was filed by the plaintiffs, wherein it was specifically pleaded that Ghulam Rasool, their father had settled the sale against consideration of Rs.40,000/- with the lady principal and resultantly the Attorney Deed was executed, but further details of this oral sale with regard to its time, date, month, year, venue and names of witnesses to disclose that when, where and before whom the transaction was affected, were totally missing, rather it was contended therein in vague terms that it was settled in favour of their father respondent/defendant No.3. In the given circumstances, either the beneficiary of the original sale the father had instituted the suit or at least he was to be transposed in the class of plaintiffs, but he never came forward to assert his right or interest on the basis of alleged oral sale independently settled by him, moreover he in his written statement not only failed to explain the afore-discussed essential details, rather it was completely silent that any such oral sale was ever affected by him. As much as, after the submission of amended plaint he was again in a position to assert his transaction independently, but he again missed the chance. Admittedly, neither an independent agreement or receipt was executed in favour of Ghulam Rasool nor the alleged oral sale struck with him was disclosed in the General Power of Attorney (Exh.P6). There was much force in the submission of Mr. Ansari, Advocate, for the appellants that if Exh.P6, had been executed against consideration, then the agent would not have been empowered on behalf of the Principal to receive the sale consideration. Had it been so then the said clause would have not been incorporated rather his own sale was given effect in its contents.

5. Adverting to the evidence available on the lis file, Ghulam Rasool, the agent for the first time, was examined as PW4 on 21.05.1985, who simply deposed that the allottee had appointed him as her Attorney while authorizing him to deal with the land and as per his authority, he being her agent on her specific verbal permission settled the sale with the plaintiffs/respondents Nos.1 and 2 against Rs.40,000/-. For ready reference, the relevant extract from his statement-in-chief in verbatim reads as under:-- Whereas a glimpse of his deposition out of cross-examination is also given below:- Second time, after the amendment of the plaint and remand of the case without discarding his earlier deposition being PW4, his statement as PW7 was again recorded on 07.11.1995, wherein for the first time in contradiction with his earlier statement disclosed while stating that in presence of Allah Diwaya and Allah Wasaya he had purchased the suit land for his minor sons from Mst. Channan against Rs.40,000/- when Khadija, the daughter as well as Banaras, the son of the vendor and one Muhammad Hasnain were also available, but he again failed to give the date and venue to disclose when and where the bargain was struck, whereas during cross-examination he admitted himself to be in occupation of the suit property being tenant of Mst.Channan, who further admitted as under:-- To support his statement Allah Wasaya (PW-5) was examined, who stated that 22-3/4 years ago payment of Rs.40,000/- was made by Ghulam Rasool before him as well as Allah Diwaya. He in his cross-examination admitted that Ghulam Rasool was his cousin, whereas Allah Diwaya was his brother. He further deposed as under:-- Whereas Allah Diwaya, PW-6 being antipodal to him stated as under:-- Despite the major contradiction among them, it was also significant that they did not utter that Mst. Khadija the daughter of the allottee was also available, when sale price was made good. No more material qua oral sale was examined and close scrutiny of the evidence discussed supra persuaded this Court to conclude that firstly there was no independent sale between the Principal and Ghulam Rasool and if it was presumed that an oral sale was struck then onus was on the latter to prove it. The entire evidence on the subject under issue was indicative of the fact that there was neither offer on behalf of the allottee nor acceptance on the part of the agent. As much as there was no fraction of evidence to draw an inference that even mutuality in this regard was existed between, them. Had the payment was made to the vendor by her attorney then there was no fun that the latter received the same amount from his minor sons while executing agreement/mutation in their favour, hence it can safely be concluded that General Power of Attorney was not executed against any consideration and the law laid down in the judgment reported as Abdul Rahim v. Mukhtar Ahead and 6 others (2001 SCMR 1488) was of no help to the respondents.

6. As per opening contents of Power of Attorney it was executed for the management of the land, no doubt that it also contained a clause therein that the agent was authorized to dispose of the land, but under the law the agent was required to act for the gain of the principal and if the agent intended to derive benefit for his own or his kith and kin, he should have informed his principal prior to entering into any such transaction. Any furtive or surreptitious transaction would not be binding upon the Principal nor it could be protected under the law. The General Power of Attorney itself was neither a document for transfer of property as well as a conveyance deed nor it was agreement to sell the property, rather it was a document for the constitution of agency and as per settled principle of law neither the agent himself could claim his ownership rights in the suit land of his Principal merely on the basis of agency document nor for his own kith and kins. It was sine qua non for him to have sought prior approval of the Principal in that behalf after acquainting her with material circumstances on the subject, failing which the Principal was at liberty to repudiate the transaction and the following two examples given under section 215 of the Contract Act are illustrative of the intention of law, which are reproduced hereunder:-- a) A directs B to sell A's estate. B buys the estate for himself in the name of C. A, on discovering that B has bought the estate for himself, may repudiate he sale, if he can show that B-has dishonestly concealed any materal 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 he wishes to buy the estate for himself, but conceals the discovery 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 option. The case of the respondents Nos. 1 and 2, when is examined on the touchstone of section 211 read with section 215 of the Act ibid as well as the principle settled by apex Court through judgments reported as Fida Muhammad v. Pir Muhammad Khan (deceased) through Legal Heirs and others (PLD 1985 SC 341), Muhammad Yasin and another v. Dost Muhammad through Legal Heirs and others (PLD 2002 SC 71) and Maqsood Ahmad and others v. Salman Ali (PLD 2003 SC 31), was found to be violative enunciated therein.

7. Adverting to the second aspect of the case, whether respondents Nos. 1 and 2 succeeded to establish independent sale. First of all adverting to the definition of sale provided in Section 54 of the Transfer of Property Act, 1882, which envisages transfer of ownership of immoveable property for price, paid or promised. In order to enforce sale, it is imperative upon the vendee to establish, firstly that transaction was struck with the titled holder or having authority to create a right, secondly it was settled against consideration and thirdly that it was accompanied by delivery of possession. Mere execution of agreements, attestation of mutation or even registration of document by itself does not furnish proof of ingredients of sale referred herein above and whenever any of such document as well as transaction of sale reflected therein is denied or questioned, the onus lies on the beneficiary. It was the stance of Mst. Channan from the day first that after revocation of General Power of Attorney, antedated agreement was fabricated. On the face of it, agreement to sell (Exh.P7) was allegedly executed on 02.09.1974. Now to ascertain, whether it was engineered/maneuvered after the Revocation Deed dated 05.09.1974 or not, this court has to return to the said document as well as evidence examined by respondents Nos. 1 and

2. The perusal of agreement reveals that its Stamp Paper was not purchased for the plaintiffs, whereas, signatures of the person on whose behalf it was issued were also not procured. Neither the Stamp Vendor, who issued it was examined, nor his relevant Register which as per practice was to be consigned to the Record Room was summoned. The Petition Writer, who scribed it besides his Register was also withheld. They could be the best persons/ record to belie the allegation of the lady that it was an antedated, fabricated and collusive document grafted after the execution of Revocation Deed (Exh. D1). Though both the attesting witnesses (PW-1 and 2) of the contract were examined, but it was taken by surprise that none of them mentioned the date of its execution. At the cost of repetition, it would be relevant to recall that if the agreement (Exh. PI) was genuinely executed on 02.09 1974, then it was to be reflected in the Rapt Roznamcha (Exh.P-9) and mutation (Exh.P-I), which were entered much thereafter on 14.10.1974, whereas in both these documents it was averred that the land had been orally sold/purchased, which casted serious doubt about genuineness of the agreement. In the above context, the allege sale transaction being full of infirmity on legal and factual sides neither can be approve nor enforced legally. The narrative emerges from the above discussion and appreciation of the record was that the tenant, Ghulam Rasool fraudulently maneuvered/grafted the contract to deprive the old age, infirm, folk and illiterate lady of her property.

8. The argument of learned counsel for respondents Nos.1 and 2 that the present appellants had purchased the disputed property during the pendency of lis, without permission of the Court, therefore, their sale was violative is not tenable. As per mandate enshrined from Section 52 of the Transfer of Property Act, a transfer of immoveable property subject of a pending suit to which any right is directly or specifically claimed is not forbidden, but it envisages that property cannot be transferred or dealt with, without the leave of the Court by any party to the suit, so as to affect rights of other party thereto under any decree or order, which might be passed therein. So there is no complete embargo upon transfer of property without permission of the Court, but subject to aforenoted reservations, however, there is no denial that transferee would acquire title or right therein only subject to the verdict of the Court to be passed in the suit. Since in civil litigation an issue is to be decided by preponderance of evidence, the initial burden was upon the plaintiffs to prove their prior contract/mutation, which if successfully discharged, the burden of proving a valid sale through subsequent bona fide transfer for value without notice would be on the appellants, but as observed supra the plaintiffs miserably failed to prove their prior sale, so they have to suffer and cannot succeed on the sole ground that the judgments and decrees were not assailed by Mst. Channan Jan.

9. At the fag end of his arguments, the learned counsel for the plaintiffs has submitted that the concurrent findings of the fact recorded by the Courts below cannot be disturbed by this Court while exercising appellate jurisdiction provided under section 100 of the Code of Civil Procedure, 1908 is not plausible. The Courts below were bound to draw inference in legal manner, but they did not adhere to the law applicable in this regard. It is correct that normally this Court does not interfere in the concurrent findings of fact recorded by two Courts below, but when there is gross misreading and non-reading of evidence and patent violation of law, floating on the surface of such concurrent findings, this Court cannot shut its eyes and is always under obligation to rectify the error by interference in such like illegal findings. Reliance can be placed upon the judgments reported as Nazim ud Din and others v. Shaikh Zia ul Qamar and others (2016 SCMR 24) and Ghulam Muhammad and 3 others v. Ghulam Ali (2004 SCMR 1001). From the discussion above, I have no hesitation in my mind to observe that both the Courts below badly failed to analyze the facts and law on the subject and committed grave irregularity and illegality while passing the impugned judgments and decrees, which cannot be sustained in the eye of law. Both the courts below have erroneously decreed the suit filed by the plaintiffs which being contrary to law and to usage having the force of law cannot be sustained and same are liable to be interfered with by this court while exercising jurisdiction under section 100 of the Code of Civil Procedure, 1908.

10. Consequently, the instant appeal is allowed, impugned judgments and decrees passed by the learned Courts below are hereby set aside and suit filed by the plaintiffs/respondents Nos. 1 and 2 is dismissed, leaving the parties to bear their cost. MH/M-165/L Appeal allowed.