2012 PLP 365 (YLR)

MUHAMMAD KHALID MEHMOOD KHAN, J.

The petitioners filed a suit for declaration against respondents to the effect that sale-deeds and mutations detailed in the plaint be declared illegal, fraudulent, without consideration and inoperative against their rights and the petitioners be declared the owners of 1/3rd land belonging to deceased Walayat Shah. Learned trial court dismissed the suit, the appeal thereagainst was also failed, hence the present petition.

2. Briefly stated the facts of case are, one Walayat Shah was the owner of agricultural land in three districts of Punjab including Khanewal. The petitioners are the nephews and nieces of deceased Walayat Shah. As per averments of the plaint the deceased never sold any land to any respondent in his life time, nor he appointed anyone as his attorney. The deceased was suffering from "MARAZ UL MOUT", was an old man of 70 years and was the patient of paralysis. He was unable even to talk and walk. Four months before the institution of the suit, they came to know about the fraud committed by the respondents when they started to claim the ownership of the land belonging to deceased who died in the year 1970. It was prayed that sale-deeds and mutations detailed in the plaint in favour of respondents be declared void, inoperative, outcome of fraud and as such the same may be declared illegal and without any lawful authority.

3. Respondents Nos.1 to 3 contested the suit, the respondents Nos.4 to 8 admitted the petitioner's claim and the respondent No.9 opted to stay away and he was proceeded against ex parte throughout.

4. The learned trial court, out of divergent pleadings of the parties, framed the following issues:-- "ISSUES: (1) Whether the court lacks juris-diction? OPD (2) Whether the suit is competent in its present form? OPD (3) Whether the suit is properly valued for the purposes of court-fee and jurisdiction? If not what is correct value? OP-Parties. (4) Whether the suit is barred under Order II Rule 3, C.P.C.? OPD (5) Whether the suit is bad for non-joinder of necessary parties? OPD (6) Whether Mst. Ghulam Fatima purchased the suit-land pertaining to Khewat No.11 of Chak No.77/10-R Tehsil Khanewal for Rs.18,000?. OPP (7) Whether Mutations Nos.1891, 5680, 5679, 5677 were validly sanctioned? OPD (8) If Issue Nos.6 and 7 are proved whether the sales are illegal and void for the reasons stated in para No.7 of the plaint? OPP (9) Relief."

5. Both the parties adduced their respective evidence both oral as well as documentary. The learned trial court dismissed the suit on 26-9-1987 and appeal thereagainst failed on 2-4-1988.

6. Learned counsel for the petitioners submits that judgments of two courts below are the outcome of misreading and non-reading of the evidence available on record. He submits that original power of attorney was not produced and the certified copy of the same is not admissible in evidence. Learned trial court has wrongly relied on the said document. Further submits that under sections 16 and 17 of C.P.C. the suit could be filed at a place where the part of property is situated and as such suit was rightly filed at Khanewal. Learned counsel for the petitioner further submits that it has been proved on record that power of attorney claimed by respondent No.2 is a fake and forged document. The deceased at the relevant time was not in a position, due to his ill health, to appear before any court or authority for execution of the attorney. Learned counsel for the petitioners vehemently argued that respondent No.1 has not appeared herself and the respondent No.2 produced a forged document on her behalf claiming himself to be her attorney. The consideration of sale in favour of respondent No.1 has not been proved. He lastly argued that even if it is assumed for the sake of arguments that respondent No.2 was the attorney of deceased even then the learned trial court has failed to appreciate the fact that respondent No.2 has transferred the property in favour of his relatives without obtaining any permission from the principal and as such the alleged sales are void.

7. Learned counsel for respondents Nos.1 to 3 submits that judgments of two courts below were set aside by this Court vide order dated 4-5-2005 on the objection of petitioners that original power of attorney is not on record, the said order was finally set aside in Review Petition No.11-C/2005 vide order dated 16-1-2008. The petitioners have not assailed the said order, which attained finality and as such the issue of admissibility of the power of attorney stand settled forever. He submits that petitioners are not in possession of a single inch of the property subject-matter of the suit and as such the suit was rightly dismissed by the courts below. The petitioners have not raised the alternative plea with reference to the power of attorney and as such at this stage the same could not raise this ground at this stage. The execution of power of attorney by the deceased in favour of respondent No.2 has been proved and as such the suit was rightly dismissed. He lastly adds that this court in its revisional jurisdiction could not interfere in concurrent findings of the two courts below even if after scanning the evidence this court comes to different conclusion.

8. Heard. Record perused.

9. It is an admitted fact that petitioners are the legal heirs of deceased Walayat Shah, the respondent No.1 is the daughter of deceased, respondent No.2 who claims himself to be the general attorney of the deceased is the brother-in-law of Walayat Shah. It is also an admitted fact that deceased was the owner of immovable properties in three districts of Punjab including at Khanewal. The allegation of petitioners is that deceased was incapacitated person, he was a man of advance age, patient of paralysis, unable to walk and two years before his death was suffering from Marz-ul-Mout, he never executed any sale-deed nor appointed respondent No.2 his attorney and all alleged sales and power of attorney in favour of respondent No.2 is the outcome of fraud.

10. The petitioners are claiming their share in the properties of deceased being his legal heirs. The respondents' claim is that they have purchased the property against consideration and deceased executed the attorney as he was enjoying good health, he himself appeared before the Sub-Registrar for execution of the documents and attestation of mutation.

11. As it is an admitted fact that petitioners are the legal heirs of deceased and the deceased survived by only two daughters and as such under Islamic law of inheritance the petitioners are entitled of their share in the estate of deceased. In these circumstances, it becomes the legal duty of respondents to prove that sale in their favour as legal one and that the deceased appointed Muhammad Khan as his attorney.

12. Learned courts below have held that simple suit for declaration without possession was not maintainable. After admission of respondents about the status of petitioners, being the legal heirs of deceased owner, the petitioners become the owner of their respective share and they will be deemed to be co-sharer in the property, hence the suit for declaration was maintainable and as such the findings of learned courts below to that extent are against law.

13. Learned courts below have further held that suit was not maintainable under Order II Rule 3, C.P.C. for the reason that defendants are different as well as the properties are situated in different districts, the petitioners have joined different causes of action against different defendants, who are not joint as they have their individual rights and as such suit suffers from non-joinder of necessary parties as well as different causes of action. Now it has to be seen what is the petitioners' claim in suit and against whom

14. The claim of petitioners as per the plaint is reproduced as under:--

15. The petitioner's claim was admitted by respondents Nos.4 to 8 and 10. respondent No.9 remain absent. respondents Nos.1 to 3 only contested the suit. Respondent No.1 is the daughter of deceased who through her attorney, respondent No.2, claims the purchase of property against consideration of Rs.18,

000. Respondent No.2 is the purchaser of land through attorney Muhammad Khan vide Mutation No.1891 of oral sale. The respondent No.3 is claiming the ownership of land through Mutation No.580 of oral sale, he is the real brother of attorney Muhammad Khan. Respondents Nos.4 to 8 claims the ownership of land through Mutation Nos.5679 of oral sale. Respondent No.9, absentee respondent, is claiming the ownership of land through Mutation Nos.5678 through oral sale. Respondent No.10 claims the ownership through Mutation No.5677 of oral sale, all these respondents allegedly purchased land through Muhammad Khan who is their relative.

16. From the above said details of property it is clear that alleged seller in all these oral and registered sale-deeds is Walayat Shah, through his alleged attorney. Respondents Nos.4 to 8 and 10 admitted the claim of petitioners meaning thereby on the said admission of said respondents the suit is bound to be decreed at least to their extent without any further proceedings. The respondent No.9 opted not to contest the suit, hence his absence will be deemed to be the admission of petitioners claim. After admission of above respondents, a strong evidence came into existence against the respondents Nos.1 to 3, and the alleged attorney. Respondents Nos.1 to 3 have contested the claim of petitioners and as such they have to prove their claim themselves. The respondent No.1 is the daughter of deceased Walayat Shah, the property allegedly transferred in her name is situated at Khanewal. Respondent No.2 is the purchaser of land through Mutation No.1891. Property is situated at Tala Gang, the respondent No.3 is the purchaser of land through Mutation No.580, the said property is situated at Mianwali.

17. The seller of all these properties is Walayat Shah through Muhammad Khan attorney. The petitioners are admittedly the legal heirs of Walayat Shah, according to them he never sold any land nor appointed Muhammad Khan as attorney, hence the petitioners have an interest in the property of deceased Walayat Shah. One of the property of deceased is situated at Khanewal. Hence the civil court at Khanewal is enjoying the jurisdiction to decide the suit, hence the suit does not suffer from any territorial jurisdiction.

18. The main dispute between the parties is whether Walayat Shah ever appointed Muhammad Khan his attorney or not? Issues Nos.6 and 7 were framed on this point. Admittedly respondents Nos.1 to 3 never appeared in witness box in support of their claim. Respondent No.1 appeared through Muhammad Khan, who claimed himself to be the attorney of respondent No.1. Muhammad Khan although is not the party to suit but he appeared as D.W-8. Respondents have produced the marginal witnesses of power of attorney Exh.D-1 in favour of Muhammad Khan allegedly executed by Walayat Shah. Exh.D-1 shows that Walayat Shah appointed Muhammad Khan his attorney with the powers to sell his property located in three districts. Respondent No.1 is the real daughter of Walayat Shah, the sale deed in favour of respondent Nos.1 is Exh.D-3. This sale deed was shown to be executed by Muhammad Khan being the attorney of Walayat Shah against consideration of Rs.18,000 now it has to be seen why the father opted to sell his property in favour of his real daughter through attorney and not himself when he is allegedly enjoying good health. Admittedly the daughter is unmarried at the time of sale, Muhammad Khan is the maternal uncle of respondent No.1. For a moment if we consider that a greedy father of respondent child decided to sell his property to her against consideration and he selected his brother-in-law to fulfil his desire to convert his immovable asset into cash, even then prime question will be what was the source of income of respondent No.1, who is admittedly a Parda Nasheen unmarried lady, living with his father and her mother was not alive at that time. She submitted written statement through Muhammad Khan. It is noteworthy that the said Muhammad Khan was the attorney of Walayat Shah and after his death he became the attorney of respondent No.1. Muhammad Khan appeared in witness box. The attorney deposed in his examination-in-chief as under:--

20. The above said story narrated by D.W-8 unearth the entire plan of Muhammad Khan. The land sold to respondent No.1 was mortgaged with Agricultural Bank, Walayat Shah paid the said loan himself and then property was sold to respondent No.1, the amount of Rs.18,000 was paid by maternal grand-mother of respondent No.1. The only amount which came into the pocket of Walayat Shah if paid to him is Rs.5,

000. It could not be imagined that any father who is an old man of 70 years will adopt this mode of transfer in favour of her expected legal heir. It is Muhammad Khan who brought the maternal grandmother in picture who is also his mother. The said D.W. 8 has deposed in his examination-in-chief as under:--

21. The alleged sale-deed was executed on 8-1-1969, meaning thereby if respondent No.1 born in 1947, she was 19 years old in these days, and was unmarried. This deed was presented before the Sub-Registrar on 8-1-1969. The Sub-Registrar made the following endorsement on it:--

22. Respondent No.1 has not produced marginal witness, nor the deed writer. A person named in the above said document is Muhammad Shah, the said Muhammad Shah appeared on behalf of Fatima Bibi. No evidence has been produced to the effect whether Muhammad Shah is alive or dead. If Muhammad Shah was looking after the affairs of respondent No.1, he should appear in witness box to certify the facts of sale-deed in her favour. The above said facts show that Muhammad Shah was the man of Muhammad Khan who produce him before Sub-Registrar on behalf of Fatima Bibi. D.W-8 when appeared in witness box he has not deposed a single word that Fatima Bibi paid the amount of Rs.18,000 to him and he passed on the same to Walayat Shah.

23. Mst. Gul Jehan, the alleged maternal grandmother of respondent No.1 recorded her statement when she is 75 years old lady, she has not deposed a single word about her source of income and assets, she deposed that Walayat Shah transferred land in favour of his daughter and she paid Rs.18,000 to Walayat Shah as he constructed Mosque, digged well and prepared his grave, his elder son's name is Muhammad Shah, he was the attorney of Walayat Shah, Walayat Shsh himself executed sale-deed and no other has done this. She in cross-examination has admitted that Walayat Shah was the owner of land approximately 12000 to 14000 kanals. From this statement of Gul Jehan it become clear that Muhammad Shah was the attorney of Walayat Shah, the amount was required to Walayat Shah for meeting the expenses of construction of mosque, well and his own grave, but Muhammad Khan has not disclosed these facts in his statement. It is also proved from the said deposition that Walayat Shah was a rich man, the sale-deed in favour of respondent No.1 shows that he only got Rs.5,000 if it is admitted that he sold the suit property to respondent No.1. The sale-deed shows that it was executed by Muhammad Khan and not Walayat Shah, money was received by Muhammad Khan, hence the story prepared by Muhammad Khan has proved fake.

24. All D.Ws appeared on behalf of respondents tried to prove that Walayat Shah appointed Muhammad Khan general attorney, but D.W-2 who identified Walayat Shah at the time of execution of D.W-1 admitted as under:-- From the above said facts unearthed in evidence, it is proved that Muhammad Khan is the master mind of all the fraudulent transaction. He is the brother-in-law of Walayat Shah, whose wife died in 1947, his daughter in the absence of her mother was living with her maternal grand-mother. Walayat Shah received an attack of paralysis, he prepared a general power of attorney in his favour, he transferred land in the name of respondents Nos.1 to

3. He in cross-examination admitted that respondent No.3 is his real brother. He transferred sale against consideration of Rs.24,000 but when Tehsildar appeared as D.W-5 he admitted as under:--

25. One fact about the age of Walayat Shah also required attention. As per Exh.P-3, he died due to paralysis attack at the age of 90 years on 16-2-1970, whereas in power of attorney in favour of Muhammad Khan his age has been shown 70 years, he died within two years of execution of power of attorney in favour of Muhammad Khan. It seems that the age of deceased was intentionally mentioned wrong in the documents giving the impression that he was enjoying good health.

26. Respondent No.2 has failed to appear, likewise respondent No.3 has not appeared, all other respondents have conceded the claim of petitioners although they all have shown to be purchaser of deceased land against consideration through Muhammad Khan.

27. The learned trial court as well as learned appeal court has failed to consider that after admission of petitioner's claim the suit should have been decreed at least against those respondents who admitted the claim but both the court decided to dismiss the entire suit believing Muhammad Khan was the duly authorized attorney of Walayat Shah, whereas it has been proved that Muhammad Khan prepared all plan only to deny the share of petitioners and the legal heris of Walayat Shah who survived by two daughters only. He transferred all property of Walayat Shah on the basis of forged power of attorney in favour of his brother and other relatives.

28. The upshot of the above discussion is that petitioners have successfully proved their case. Respondent No.1 is the daughter of decreased and as such she is entitled of her respective share according to law even if sale-deed in his favour is declared illegal.

29. In view of the above, the petition is allowed, the impugned judgment and decree is set aside and the petitioner's suit is decreed, consequent upon all legal heirs of deceased Walayat Shah become the owner of estate of deceased according to Islamic law of inheritance. M.H./A-157/L Revision allowed.