2019 PLP 811 (CLC)

AMIN-UD-DIN KHAN, J.

Through this second appeal the appellants have challenged the judgment and decree dated 19.03.2016 passed by the learned Additional District Judge, Jhang whereby the first appeal filed by the appellants was dismissed and the judgment and decree dated 24.06.2014 passed by the learned Civil Judge 1st Class, Jhang whereby the suit for declaration in the alternate for specific performance filed by the appellants/plaintiffs was dismissed.

2. I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.

3. The suit was filed by the appellants on 27.04.2001 on the basis of an agreement to sell dated 17.04.1993 pleading as a sale deed, therefore, suit for declaration was filed and in the alternate a prayer for specific performance was made. Subsequently plaint was amended and mutations No.993 attested on 19.04.2001 and 1904 attested on 31.03.2001 were also challenged. The written statement was filed and suit was contested. Learned trial court framed the issues and invited the parties to produce their respective evidence. Both the parties adduced oral as well as documentary evidence in support of their versions. After the completion of trial suit was dismissed by the learned trial court vide judgment and decree dated 24.06.2014. Feeling aggrieved thereby, an appeal was preferred before the learned first appellate court, which also met with the same fate vide judgment and decree dated 19.03.2016. Hence, this second appeal before this Court.

4. The alleged agreement is by Mohabbat Khan the attorney of original owner Pehlwan Khan. The view taken by the learned courts below is that plaintiffs failed to prove that the consideration amount was reached to the owner Pehlwan Khan as Mohabbat Khan (general attorney) is near relative of the plaintiffs and a connivance with the plaintiffs has been observed by the learned courts below in the transaction. It is on the record that possession was already with the plaintiffs being tenants upon the suit property and in part performance it was not delivered to the plaintiffs. It is also on the record that original owner after coming back from performance of Hajj got revoked the general power of attorney on 13.07.1993, which clearly shows a refusal for performance of agreement, if any, in favour of plaintiffs by the original owner. The suit was filed on 27.04.2001, which also shows that it was beyond the period of limitation for filing a suit for specific performance. Though the courts below have not considered this aspect of the case and decided issue No.10 against the defendants but this fact is important one. I am further of the view that when a transaction was claimed through attorney, it was the duty of plaintiffs to prove that original owner was not available at the place where the parties were entering into agreement to sell and the attorney was having full powers to enter into agreement to sell the suit property. I have minutely scrutinized the power of attorney Exh.D-11, with regard to transfer of land relevant paragraph is as under:- At this juncture it will be appropriate to consider legal implications of sale and agreement to sell. For ready reference I would like to reproduce Section 54 of the Transfer of Property Act, 1882 as under:- "54. "Sale Defined." "Sale" is a transfer of ownership in exchange for a price paid or promised or part paid and part promised. Sale how made. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other, intangible thing, can be made only by a registered instrument. In the case of tangible immovable property, of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs in possession of the property. Contract for sale. A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties." The definition of "Contract" under the Contract Act, 1872 as provided under section 2(h) is that an agreement enforceable by law is a contract.

5. In my view the powers to sell the property do not give power to enter into an agreement to sell because in the powers of sale the consideration amount is received and property is sold out, whereas the agreement to sell binds both the parties in accordance with the terms of agreement to perform their part in future. If in the power of attorney specific power of entering into agreement to sell of suit property is not provided, an attorney cannot enter into agreement to sell of the property of the principal/owner. In case of sale a transaction is completed, rights and liabilities of the parties are determined through an instrument of sale and with the registration and completion of same no further liability of parties remains against each other but in case of agreement to sell both the parties are bound to perform the terms of agreement in future, therefore, unless an attorney is given specific powers to bind the principal for performance of terms of the agreement in future, the attorney cannot bind the principal and enter into agreement to sell of property owned by the principal, therefore, this agreement is bad on the basis of having no powers with the attorney to enter into agreement to sell of suit property.

6. I am fortified by the judgment of august Supreme Court of Pakistan in taking the view expressed supra, reliance whereof is placed upon "Malik Riaz Ahmed and others v. Mian Inayat Ullah and others" (1992 SCMR 1488) as well as the judgment reported as "Fida Muhammad v. Pir Muhammad Khan (Deceased) through Legal Heirs and others" (PLD 1985 Supreme Court 341). The relevant portion of which has been rendered in the judgment of Malik Riaz Ahmad's case (supra). I also quote the same as under:- "It is wrong to assume that every 'general' power of attorney on account of the said description means and includes the power to alienate/dispose of property of the principal. In order to achieve that object it must contain a clear separate clause devoted to the said object. The draftsman must pay particular attention to such a clause if intended to be included in the power of attorney with a view to avoid any uncertainty or vagueness. Implied authority to alienate property, would not be readily deducible from words spoken or written which do not clearly convey the principal's knowledge, intention and consent about the same. The Courts have to be vigilant particularly when the allegation by the principal is of fraud and or misrepresentation." Further reliance is placed upon the judgment of this Court reported as "Dost Muhammad v. Member, Board of Revenue and others" (2001 MLD 2019) and the judgment of Peshawar High Court reported as "Yar Baz Khan v. Lal Nawaz" (PLD 1996 Peshawar 86). The relevant paragraph is as under:- "Before parting with the case, I would like to emphasize that an attorney derives authority from the principal with regard to his property either for its management or alienation for a specific purpose. The agent has to act within the framework of the deed which is depository of the intention, rights, liability and authority of parties and cannot travel beyond its scope and purview of its recitals. By re-passing confidence in agent, he is expected in law to act for the benefit of his principal. His conduct and performance of duty enjoined upon him is subject to certain commotions and limitations. For instance, where an agent is appointed to sell Hussain principal's goods, and he buys the same for himself on his own account but the principal ratifies it, the transaction is not void. But where there is conflict between the duty and interest, the agent must disclose the undertaking, which results in wrongful gain to him and wrongful loss to his principal, so as to enable the latter to rescind the deal with third party. Understood in this sense, a holder of power of attorney to manage immovable property, though invested with power to alienate property, is required to act for the benefit and not to the detriment of the principal. If he intends to derive benefit for his own self or his next of kin, he should inform his principal prior to entering into such transaction. Any clandestine deal without disclosure to principal will not bind the latter nor will be enforced in law. In the present case, it will have been seen that both the gift and sale transactions affected by holder of power of attorney were tainted with deception and fraud and their validity cannot be upheld on any weapon of reasons. Both the Courts below have overlooked and ignored the prominent facts highlighted above and have thus acted with material irregularity in assessing their legal effects on the transactions in question. The principal or his successor-in-interest cannot be bound with such illegal deals." It is the case of the respondents that the attorney has transferred the property in favour of his near relative, which was also a bar without special consent of the principal. In this context, reliance is placed upon "Haji Faqir Muhammad and others v. Pir Muhammad and another" (1997 SCMR 1811).

7. Even otherwise there are concurrent findings of fact recorded by two courts below and the courts below while passing the impugned judgments and decrees took a count of every bit of evidence available on the file and nothing is shown to have been over looked any part of the record from their judicious consideration. The findings of learned courts below on question of fact and law are based upon proper appreciation of oral as well as documentary evidence, which are not liable to be reviewed or substituted by this Court while exercising jurisdiction under section 100 of the C.P.C. Therefore, I am unable to disagree with the concurrent findings recorded by both the learned courts below. Resultantly, this second appeal having no scope stands dismissed with costs throughout. ZC/N-21/L Appeal dismissed.