1996 PLP 1223 (SCMR)

A. W . Butt, Advocate instructed by Sh. Salahuddin, Advocate-on Record for Petitioner. Nemo for Respondents. Date of hearing: 26th July, 1995. MUHAMMAD MUNIR KHAN, J.- -This petition directed against the order dated 13-12-1993 of the Lahore High Court, Lahore arises from the facts that on 23-2-1991, Sajawal petitioner filed a suit against Mst. Saubia Hamid and Ghulam Hayder respondents for declaration to the effect that the sale of land in dispute by Ghulam Hayder respondent No.2 in favour of Mst. Saubia Hamid respondent No.1 was illegal, void and ineffective upon his rights, in the Court of Civil Judge, Toba Tek Singh, averring that he was the owner of the land in dispute and although he had not authorized Ghulam Hyder in the Power of Attorney executed by him in his (Ghulam Hayder's) favour to sell the land yet he, on the strength of manipulation with the collusion of the Deed Writer in the Power of Attorney, had sold the land to Mst. Saubia Hamid which was illegal and void. The suit was resisted. Averments in the plaint were denied. Mst. Saubia also raised the plea of bona fide purchaser of the land in dispute. .

2. The Trial Court framed as many as six issues. Sajawal appeared as P.W.1. He produced Muhammad Akram P.W.2'and also tendered in evidence copy of Mutation No.168 (Exh. P1), copy of General Power of Attorney (Exh. P2) and the copy of Revocation Deed (Exh. P3). In rebuttal, Ghulam Hayder defendant appeared as D.W.2. Abdur Rashid Deed. Writer gave evidence as D.W.2. Original registered Power of Attorney Exh. D1 was tendered in evidence. Malik Junaid Anwar, Mukhtar-e-Aam of Mst. Saubia Hamid appeared as D.W.1. The Civil Judge dismissed suit on 11-3-1993 holding General Power of Attorney of the petitioner in favour of Ghulam Hayder to be a genuine document which contained an express power of the sale of the land by Ghulam Hayder. The Trial Judge was also of the view that the sale of the land in dispute in favour of Mst. Saubia Hamid was protected in law. He alto found that the suit was not maintainable on the ground that Sajawal was not in possession of the suit land. Feeling aggrieved thereby, Sajawal filed Revision in the Lahore High Court, Lahore, which was dismissed vide impugned judgment.

3. Learned counsel for the petitioner has vehemently argued that the concurrent findings of the Courts below suffer from misreading/non-reading of the material evidence; that since the Sub-Registrar and the marginal witnesses of the Power of Attorney were not produced, the Power of Attorney could not have been taken into consideration; that Ghulam Hayder had not paid the sale price or part thereof to the petitioner; that the sale price of the land in dispute was inadequate which will show that the land was not genuinely sold to Mst. Saubia; that Mst. Saubia was not a bona fide purchaser without notice. Learned counsel submitted that the rules laid down by the superior Courts for the appreciation of evidence in a revision under section 115, C.P.C. were not followed by the High Court; that the provisions of Article 78 of Qanun-e-Shahadat requiring the production of marginal witnesses have been ignored. He was of the view. that the guided principles laid down in various judgments of the superior Courts, for example, Fida Muhammad v. Pir Muhammad Khan (deceased) through Legal Heirs and others (PLD 1985 SC 341), Zafarullah v. Board of Intermediate and Secondary Education, Lahore etc. (PLD 1981 Lahore 244), Mian Muhammad Ismail v. Manzoor Ahmad and others (1990 CLC 1112-Lahore) and Manager, Jammu & Kashmir, State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678) have just been ignored by the High Court.

4. We have considered the submissions made by the learned counsel for the petitioner. We do not agree with him. The Courts below have concurrently found that the petitioner was not in possession of the suit land. There can be no two opinions that a suit for declaration with prayer for consequential relief filed by a plaintiff not in possession of the suit land is not maintainable. Learned counsel has not been able to show any misreading or non-reading of the evidence relatable to Issue No.1 of the maintainability of the suit, by the Courts below. The suit of the petitioner being not maintainable, this petition is liable to be dismissed on this score alone. However, in the larger interest of justice we have considered the submissions made by the learned counsel for the petitioner. We find that Issue No.5 i.e. "whether the plaintiff did not allow the defendant No.1 to transfer his property by his Power of Attorney dated 12-7-1990 and as such '1 Mutation No. 168 dated 4-9-1990 ,is illegal, void and ineffective upon the rights of the plaintiff," is an issue of fact. The Courts below have concurrently found this issue against the petitioner. Both the Courts have found that the registered Power of Attorney, execution whereof was admitted by the petitioner, did not suffer from forgery and was a genuine document in which the petitioner had authorized Ghulam Hyder to sell his land. Since the Power of Attorney did not require any attestation, it was not necessary to produce any attesting witness, more particularly when execution of the same was not disputed by the petitioner, Furthermore, this point was not agitated, before the High Court. The Courts below have applied their conscious mind to the relevant evidence and have appreciated the evidence in accordance with the provisions of law. We do not see any legal infirmity in the impugned judgment. The case-law cited by the petitioner has not been disregarded by the High Court in any manner. For all these reasons, we are of the view that no case for interference with the well reasoned judgments of the Courts below is made out.

5. Leave to appeal is, therefore, refused and the petition is dismissed. A.A./S-992/S Leave refused