2008 PLP 2892 (YLR)

MUHAMMAD REAZ AKHTAR CHAUDHRY, C.J.

Through this petition for leave to appeal, the petitioner has sought the impeachment of the judgment of the High Court, dated 7-9-2006, whereby the appeal filed by him was dismissed.

2. The succinct facts giving rise to the instant petition are that on 9-9-1995 respondent No.1 (Mst. Aanit Bibi) executed a power of attorney in favour of Muhammad Sharif, respondent No.5, whereby he was empowered to transfer or exchange the land measuring 9 Marlas comprising Survey No.6309 situate in village Daura, Tehsil Bhimber. On 10-10-1995, she cancelled the said power of attorney through `Abtaal Nama'. The said attorney transferred the said land in favour of the petitioners. This transfer deed was challenged by the respondent-plaintiff on 1-3-2001 on the ground that after `Abtaal Nama', the attorney was not competent to transfer the said land on the basis of the power of attorney which had already been revoked by the respondent-plaintiff. This suit was dismissed by the trial Court. Feeling aggrieved from the said judgment and decree of the trial Court, the respondent-plaintiff filed an appeal in the Court of District Judge, Bhimber. This appeal was accepted by the District Judge and the judgment and decree passed by the learned Senior Civil Judge were set aside and the sale-deed executed on 10-2-1996 and the Mutation No.340 sanctioned on the basis of said sale-deed were set aside. The respondent-plaintiff was declared the owner of the land. The present petitioners-defendant were restrained from interfering into the aforesaid land. Feeling aggrieved from the said judgment and decree of the learned District Judge, the petitioners filed an appeal in the High Court which was dismissed by the said Court vide judgment and decree, dated 7-9-2006. Now the instant petitioner for leave to appeal has been filed against the aforesaid judgment and decree of the High Court.

3. Raja Muhammad Siddique Khan, the learned counsel for the petitioners, argued that the reasons recorded in the `Abtaal Nama' are different from the reasons which have been mentioned in the plaint for setting aside the sale-deed. He submitted that in `Abtaal Nama' it was stated that the attorney wants to misappropriate the land, therefore, she had no confidence on him and cancelled the power of attorney while in the suit it was alleged by her that the attorney obtained the power of attorney in his favour through fraud and cheating. Therefore, the suit has wrongly been dismissed by the lower Courts. It was further submitted by the learned counsel that the case reported as Muhammad Zaman Khan v. Sher Afzal and 8 others PLD 1984 SC (AJ&K) 138, referred by the learned Judge of the High Court has no bearing on the facts of the present case. The learned Judge of the High Court has held that it was the duty of the petitioners-defendants to prove the execution of the document while the execution of the document was admitted one.

4. I have heard the learned counsel for the petitioners and perused the record. So far as the contention of the learned counsel for the petitioners is concerned that the High Court has wrongly held that execution of the document was to be proved by the attorney in whose favour this document was executed, has substance because in the instant case there was no dispute regarding the execution of the power of attorney. They execution of the power of attorney is admitted one as it has been clearly stated in the `Abtaal Nama' and the power of attorney has been cancelled through `Abtaal Nama'. There was no dispute between the parties regarding the execution of power of attorney.

5. The other contention of the learned counsel for the petitioners has no substance. In the instant case the power of attorney was executed in favour of attorney by the plaintiff-respondent on 9-9-1995. It was cancelled on 10-10-1995. After 10-10-1995, the attorney was not competent to transfer the land in dispute on the basis of power of attorney because it was revoked by her. In the present case the attorney executed the sale-deed on 10-2-1996. On the said date he was not at all competent to transfer the land being attorney of respondent No.1. Therefore, the lower Courts have rightly held as such.

6. The contention of the learned counsel for the petitioners that no notice regarding `Abtaal Nama' was given to the attorney has also no substance because the `Abtaal Nama' is a registered document and the registration is general notice to the public at large. Thus finding no force in this petition for leave to appeal, it is hereby dismissed. H.B.T./91/SC(AJ&K) Petition dismissed.