2007 PLP 85 (SCMR)

CH. IJAZ AHMED, J.

Petitioners have sought leave to appeal against the judgment of the Lahore High Court, Multan Bench, dated 25-2-2002 passed in Civil Revision No.445-D of 2001 wherein the revision petition was dismissed and upheld the judgment of the First Appellate Court and the trial Court.

2. The brief facts out of which the present petition arises are that the respondent had filed a suit for declaration through his special attorney Allah Wasaya (brother of the respondent) on 12-7-1989 in the Court of Civil Judge 1st Class Jalalpur Pirwala. The contents of the plaint reveal that the respondent had called in question the validity, of the registered sale-deed dated 7-12-1987 in favour of Hazoor Bakhsh petitioner No.2 which was executed by petitioner No.1 as general attorney of respondent on the ground that the general power of attorney dated 19-5-1979 was cancelled by him vide "Abtalnama" dated 18-1-1986 and petitioner No.1 was not competent to execute any document on his behalf. Petitioners/defendants had filed written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties, the trial Court framed 10 issues and after recording the evidence of the parties decreed the suit of the respondent vide judgment and decree, dated 5-1-1999. Petitioners being aggrieved filed appeal in the Court of Additional District Judge, Multan who dismissed the same vide judgment and decree, dated 16-4-2001. Petitioners being aggrieved filed Civil Revision No.445-D of 2001 in the Lahore High Court, Multan Bench which was also dismissed vide impugned judgment, dated 25-2-2002. Hence the present petition.

3. The learned counsel for the petitioners submits that all the Court below had failed to take notice of the fact that the power of attorney allegedly executed by the respondent in favour of his brother Allah Wasaya was a special power of attorney whereas the power of attorney in favour of petitioner No.1 was a general power of attorney. He maintains that the general power of attorney cannot be revoked through special power of attorney. He further urges that "Abtalnama" Exh.P.1 was a fictitious and a fake document and therefore, all the Courts below erred in law to non-suit the petitioners on the basis of that document. He further submits that the respondent had not instructed his brother Allah Wasaya to file the suit against the petitioners and this fact was not considered by the Courts below in its true perspective. He further states that all the Courts below had erred in law by not considering audio cassette, in evidence, merely on the ground that the same cannot be taken into consideration without its formal proof by producing the person who had recorded it. He further maintains that all the Courts below including the learned High Court had misread the evidence on record. Courts below had also erred in law not to take the judicial notice of audio cassette which was already on the record and through conversation in video cassette, the respondent himself admitted the sale in favour of petitioner No.2 and payment of Rs.3,00,000 on this account. He also states that the Courts are duty bound to take the judicial notice of audio cassette which are already on record. He summed up his arguments stating that the learned High Court erred in law to dismiss the applications filed by the petitioner under Order XLI, rule 27 read with section 151 of C.P.C. and under section 163 of the Qanun-e-Shahadat Order, 1984.

4. We have considered the submissions of the learned counsel for the petitioners, and have perused the record. It is better and appropriate to reproduce the operative part of the judgment of the Additional District Judge, Multan to resolve the controversy between the parties: "No doubt the signatures of Muhammad Ramzan on Abtalnama are found to be different from his signatures on Exh.P.1 and Exh.P.2 the power of attorney admittedly executed by him but mere because of the same the Abtalnama cannot be declared to be the forged one as not only it bears the National Identity Card number of Muhammad Ramzan respondent but also signatures have been verified by Consulate-General of Pakistan, at Jeddah as is the requirements of law. There is a gap of almost three years in between the execution of Exh.P.1 and Exh.P.3 and during this period one can change his signatures. The Abtalnama Exh.P.3 has been stamped and registered in Pakistan on 18-1-1986 within three months of its execution outside Pakistan which took place on 18-11-1985 as is required under section 18 of Stamp Act. It has been rightly argued by the learned counsel for the respondent that its registration is notice to all. I have also gone through the gist of the cassette and in the same there is no mentioning of the date. It was incumbent upon the appellants to establish on record that the said cassette was got recorded by Muhammad Ramzan with his free consent and that too after 18-11-1985 when Abtalnama Exh.P.3 was executed but same is not being proved through the evidence available on the record. Then Malik Shadi Muhammad who has handed over the said cassette to appellant No.1 has not been produced in the witness-box in spite of his availability and as such an important piece of evidence has been withheld because of which adverse inference is drawn against the appellants. Another significant fact is about non-mentioning of the audio cassette in the written statement. As according to the appellants, the registered sale-deed was executed in favour of respondent No.2 because of passing of instructions from Muhammad Ramzan through audio cassettes it was necessary for appellants to mention the same in the written statement. As such audio cassette being out of pleadings cannot be taken into consideration. Then it is admitted by appellant No.1 while appearing as D.W.1 that Rs.3,00,000 about which new claim of appellants is of consideration amount were in fact paid to respondent Muhammad Ramzan by Hazoor Bakhsh appellant No.2 for making arrangements for Visa for Ghulam Hussain etc. Discrepancy is also found in the evidence of the appellants with respect to its payment as according to Rasool Bakhsh D.W.1 this amount was paid only in his presence while D.W.2 Khuda Bakhsh, who is also son of appellant No.2 has claimed his own presence and of other at the time of payment. Admittedly, the suit-land is in possession of respondent's brother and with the execution of the impugned sale-deed it was not transferred. In view of what has been stated above, the learned trial Court has rightly decided the controversy against the appellants after well appreciation of law and fact which calls for no interference."

5. The aforesaid findings of the First Appellate Court were upheld by the learned High Court in the impugned judgment and observed as under:-- "There is no illegality or material irregularity committed by the Courts below while decreeing the suit of the plaintiff/respondent in his favours admittedly the Abtalnama had been issued on 18-1-1986, whereby, the general power of attorney in favour of petitioner/defendant No.1 was cancelled before he got the sale-deed registered in favour of his own brother, hence, the registered sale-deed on his behalf in favour of his own brother on 7-12-1987 has rightly been held to be void and without any consequence qua the rights of the plaintiff. No misreading or non-reading of evidence even has been pointed out."

6. Mere reading of the aforesaid operative parts of the judgments of both the Courts below clearly reveal that both the Courts below had decided the case against the petitioners after proper appreciation of evidence on record. It is pertinent to mention here that all the contentions, which are raised before us by the learned counsel for the petitioners were raised by the learned counsel for the petitioners before the Courts below which were rejected with cogent reasons by the learned High Court and the First Appellate Court. Abtalnama is a registered document. It is a settled law that the registered document has sanctity attached to it and stronger evidence is required to cast a aspersion on its genuineness as law laid down by this Court in Mirza Muhammad Sharif's case NLR 1993 Civil

148. It is also a well-established legal proposition that a person who has been validly authorized to alienate the property of another, he has to satisfy the Court that at the time of entering into a transaction of sale of a property, the principal was not available and if there is no such evidence then the transaction does not hold good unless it is established on record that the transaction has been made with knowledge and with consent of the principal while entering into general power of attorney as law laid down by this Court in Fida Muhammad's case PLD 1985 SC

341. It is pertinent to mention here that the registered document is not only binding to the parties in the document but is equally applicable to the 3rd party. See Gosto Beharidas's case AIR 1956 Kalkata

449. It is also an admitted fact that the petitioner No.1 had sold the property in question having general power of attorney of the respondent to petitioner No.2 who is his real brother coupled with the fact that the respondent had already cancelled the same before the execution of sale-deed in question. Such type of transactions are considered sham transactions. See Sardar Ahmad Khan's case PLD 1950 Pesh. 45, Wali Muhammad's case PLD 1989 Lah. 440 and Fida Muhammad's case (supra). It is also a settled principle of law that power ' of attorney does not contain any clause that the same was executed for consideration, therefore, contention of the learned counsel of the petitioner that power of attorney could not he revoked by the principal has no force in view of section 202 of Contract Act, 1872. The aforesaid proposition of law was considered by the Lahore High Court after considering all the case-laws on the subject and observed that such type of transaction by the person having general power of attorney on behalf of the principal and it was held that such type of sales are not genuine. See Suleman's case PLJ 2000 Lah. 1723. The judgment of the Division Bench of the Lahore High Court was upheld by this Court in Maqsood Ahmad's case PLD 2003 SC 31.

7. In view of what has been discussed above all the Courts below have given concurrent findings of fact against the petitioner after proper appreciation of the evidence and this Court does not, normally, interfere in the concurrent conclusions arrived at by the Courts below while exercising power under Article 185(3) of the Constitution. The learned High Court had dismissed the application for additional evidence under Order XLI, rule 27 of C.P.C. and under Article 163 of Qanun-e-Shahadat Order with cogent reasons. The learned counsel of the petitioner has failed to point out any infirmity or illegality in the orders of the Lahore High Court in dismissing the applications and revision petition. This petition has no force and the same is dismissed. Leave declined. M.H./R-17/SC Petition dismissed.