2022 PLP 2399 (YLR)

This appeal under section 96, C.P.C. is of the plaintiff and arises out of his suit for specific performance of agreement to sell a piece of land measuring 88 kanals 5 marlas in Mauza Feroze Wattwaan, Sheikhupura, belong-ing to the first defendant who, it is alleged, through his nephew, the second defendant, agreed to sell the same to him but subsequently resiled from the agreement and refused to execute the sale deed in his favour.

2. The plaintiff's case, in substance, is that the first defendant, who was owner of the land measuring 88 kanals 5 marlas situated within the revenue estate of Mauza Feroze Wattwaan, Sheikhupura, the details whereof have been given in paragraph 1 of the plaint, through the second defendant entered into negotiation for sale of the same with him. As a result of negotiation, on 29th May, 2019 the second defendant acting on behalf of the first defendant through a written agreement agreed to sell the said land to the plaintiff for a consideration of Rs.75,000,000/-, which was paid by the plaintiff to the first defendant/through the crossed cheques. Although the possession of the land was delivered to the plaintiff, the sale deed was not executed as the plaintiff being an investor did not want it due to recession in the business of real estate. However, subsequently, the first defendant was asked to execute the sale deed in favour of the plaintiff but he went back on his promise and did not execute the same in favour of the plaintiff.

3. During trial, the defendants did not appear before the original Court and thus, they were proceeded against ex-parte vide order dated 7th December, 2020. The plaintiff, however, produced his ex-parte evidence. On consideration of the matter, the Trial Court concluded that since the evidence on record did not show that the second defendant had any authority to sell the land of the first defendant, the agreement to sell (Ex.P5) could not be held valid. The suit was thus, dismissed through judgment and decree dated 9th November, 2021. So, this appeal.

4. The memorandum of appeal before us not only contains the grounds to challenge the decree dated 9th November, 2021 but also the complete certified record of the original Court and thus facilitates us to decide the appeal without requisitioning the original record. Such a course of action has been approved in the cases of "Hameed Ahmad v. Gulab Khan" (2006 SCMR 895) and "Sohail Hameed Butt v. Mst. Nudrat Nafees" (2008 SCMR 635).

5. We have examined the record with the assistance of the counsel and found that the essential question requiring determination to resolve the controversy in hand is whether the second defendant was holding a valid power of attorney and being a duly authorized agent of the first defendant was competent to enter into sale transaction. It is now well settled that the power of attorney is a written authorization by virtue of which the principal assigns to a person as his agent and confers upon him the authority to perform specified acts on his behalf and thus, primary purpose of instrument of this nature is to assign authority of the principal to any other person as his agent. The main object of such type of agency is that the agent has to act in the name of the principal and the principal also purports to ratify all the acts and deeds of his agent done by him under the authority conferred through the instrument. In view of nature of the authority, the power of attorney by virtue of clause (bb) of subsection (1) of section 17 of the Registration Act, 1908 is a compulsorily registerable document. On the contrary, a perusal of the record indicates that neither the details of the power of attorney were given in the plaint or the agreement to sell (Ex.P5) nor the same was made available to the original Court so that it could examine it, and even there was no explanation of this omission. In such like situation the transaction of sale incorporated in the agreement to sell (Ex.P5) could not be considered genuine and within the authority of the second defendant for want of explicit power of sale.

6. There is another good ground to decline the prayer made in this appeal. The plaintiff through his suit had sought a decree for specific performance of the agreement to sell dated 29th May, 2019 (Ex.P5), which was also compulsorily registerable under section 17(1)(bb) of the Registration Act, 1908. A perusal of this document (Ex.P5) indicates that it is unregistered. So, it shall not operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest whether vested or contingent, to or in the suit property, neither can it be received in evidence. This has been so held in the cases of "Bisheshar Lal v. Mt. Bhuri" (AIR 1920 Lahore 20), "Ghulam Mohammad v. Sarkhru" (AIR 1934 Lahore 970) and "Wadhawa Singh v. Kunj Lal" (AIR 1938 Lahore 497).

7. The upshot of the above discussion leads us to draw an irresistible conclusion that the plaintiff had failed to establish the privity of the first defendant with the agreement (Ex.P5) and consequently, we do not find any infirmity in the findings returned by the original Court. This appeal, therefore, fails and accordingly dismissed. ZH/M-89/L Appeal dismissed.