2018 PLP 1503 (MLD)

MUJAHID MUSTAQEEM AHMED, J.

This consolidated judgment shall decide Civil Revision No.45-D of 2007 and Civil Revision No.46-D of 2007 as parties in both these petitions as also suit property as well as judgment impugned herein are the same.

2. Mst. Khadija Kausar and her brother Muhammad Qasim petitioners Nos.1 and 2 (in both the petitions) have assailed the consolidated judgment and decree dated 04.11.2006 passed by learned Additional District Judge, Multan, whereby he has reversed consolidated judgment and decree dated 15.04.2003 of learned Civil Judge Ist Class, Multan and has decreed two suits; one filed by Rai Muhammad Arshad (respondent No.1 in Civil Revision No. 46 of 2007 hereinafter to be called respondent No.1) for specific performance of contract and the other filed by Nazir Ahmad Qureshi (respondent No.1 in Civil Revision No.45-D of 2007 hereinafter to be called respondent No. 2) seeking declaration against the petitioners.

3. Shorn of unnecessary details, brief but relevant facts of litigation between the parties are that respondent No.2 was owner of commercial property situated in Lodhi Colony, Nawab-Pur Road, Multan, who was married to petitioner No.1 on 26.05.2002 (marital tie ended afterwards). He purportedly got registered General Power of Attorney Deed (Exh.P1) on 01.06.2002 in favour of petitioner No.1 in respect of suit property, through Local Commission (DW.1) with Sub-Regisirar, Model Town, Lahore. On the strength of said Power of Attorney, petitioner No.1 by appearing before the competent Authority in Multan Development Authority on 12.07.2002 transferred suit property in favour of her brother/petitioner No.2 for a consideration of Rs.15,00,000/- (title deed not produced). In this backdrop respondent No.2 filed suit for declaration assailing therein execution of General Power-of-Attorney deed Exh.P1 and subsequent transfer of suit property by his ex-wife/petitioner No.1 in favour of petitioner No.2 mainly on the grounds of against facts, law, collusive, based on fraud and as such ineffective upon his rights.

4. Whereas respondent No.1 filed suit for specific performance of contract against respondent No.2 and petitioners alleging therein that respondent No.2 had entered into an agreement to sell (Exh.P3) with him regarding suit property on 21.02.2002 for a consideration of Rs.6,25,000/- and possession was also delivered to him on receipt of earnest money Rs.2,70,000/- and specific performance of contract was to be made in July, 2002. Afterwards on 06.05.2002 he paid Rs.1,35,000/- to respondent No.2 through cross-cheque. Respondent No.2 in his written statement as well as in evidence conceded the claim of respondent No.1. The petitioners, however, contested both the suits. In former suit petitioner No.1 took the plea that she was exclusive owner in possession of suit property, whereas respondent No.2 has no concern with it, however subsequently she has been dispossessed from suit property. In latter suit, the petitioners in their written statement took the plea that agreement to sell is forged, fictitious and as such liable to be cancelled.

5. Learned trial Court consolidated both the suits and out of divergent pleadings of the parties, following consolidated issues were framed:--

1. Whether the plaintiff is owner of Plot No. 23-CR measuring 5-marlas along with 3-shops as described in the headnote of the plaint and the alleged general power of attorney dated 1.6.2002 alleged to have been executed by the plaintiff in favour of the defendant No. 1 with respect to suit property is against the law and .facts and is a result of fraud and mis-representation and is ineffective upon the rights of the plaintiff? OPP

2. If the above said issue is proved in the affirmative, whether the alienation of property by defendant No.1 in favour of defendant No.2 dated 12.7.2002 on the basis of alleged general power of attorney is also against the law and the facts, is liable to be cancelled and plaintiff is entitled for the decree as prayed? OPP

3. Whether the plaintiff (Rai Muhammad Arshad) is entitled for the specific performance of alleged agreement to sell dated 21.1.2002 for a consideration of Rs.6,25,000/-? OPP

4. Whether the plaintiff has got no cause of action to file this suit? OPD 1,2.

5. Whether the plaintiff has incorrectly valued his suit for the purposes of court fee and jurisdiction, if so, what is its correct valuation? OPD 1, 2

6. Whether the defendant No.1 was owner of the suit property and she was in possession of the said property and has been dispossessed illegally? OPD 1

7. Whether the plaintiff (Nazir Ahmad) had voluntarily with free consent executed general power of attorney in favour of defendant No.1, if so, what is its effect? OPD 1

8. Whether the plaintiff (Rai Muhammad Arshad) has filed suit for specific performance being collusive with Nazir Ahmad? OPD 1, 2.

9. Whether the alleged agreement to sell dated 21.1.2002 is against the law and facts and is a forged document and is liable to be cancelled? OPD 1, 2.

10. What should the decree be? After recording evidence of all the parties, vide consolidated judgment and decree dated 15.04.2003, learned Civil Judge 1st Class, Multan dismissed both the suits. Feeling dissatisfied and disgruntled with the aforementioned judgment, both the respondents filed separate appeals in terms of section 96, C.P.C., which were allowed by learned Additional District Judge, Multan vide impugned consolidated judgment in the following terms:-- "Both the appeals of appellants are accepted, impugned judgment and decree dated 15.04.2003 are set aside and suit of the appellant Prof. Nazir Ahmad for declaration is decreed in his favour and against the respondents/defendants to the extent of alienation of suit property by respondent/defendant No.1 through respondent No.4 in favour of respondent/defendant No.2, dated 12.7.2002 being against the law, against the facts and the same is set aside. Suit of the appellant/plaintiff Rai Muhammad Arshad is also decreed in his favour and against the respondents/defendants subject to depositing the outstanding sale price i.e Rs.2,20,000/-, within 30 days in the Government treasury, if it is not deposited earlier, failing which, his suit will stand dismissed. The appellant/plaintiff Prof. Nazir Ahmad will be entitled to withdraw the above amount from the Govt. treasury in accordance with law. " The petitioners (defendants in aforementioned suits) feeling dissatisfied with the above referred judgment and decree of learned Additional District Judge have assailed the same by filing two separate revision petitions in terms of Section 115 Code of Civil Procedure, 1908 mainly on the grounds that the same suffers from misreading and non-reading of evidence and learned first appellate Court was not justified to reverse the well-reasoned judgment delivered by learned Civil Court.

6. During course of arguments, learned counsel for the petitioners have vehemently maintained that both the learned Courts below have accepted plea of petitioners that respondent No.2 has validly got executed and registered 'General Power of Attorney' deed Exh.P1 in favour of his ex-wife/petitioner No.1 and in view of such findings, learned appellate Court was not justified to set aside valid sale effected by petitioner No.1, in favour of petitioner No.2 on the specific direction and permission of her husband/respondent No.2. It has been further maintained that petitioners have succeeded to lead sufficient evidence in support of their case that petitioner No.1 has transferred suit property against consideration of Rs.15,00,000/- in favour of petitioner No.2 but this testimony of DWs has been disbelieved by learned first appellate Court without assigning cogent and valid reasons. The learned counsel for the petitioners M/s. Abdul Rehman Khan Laskani and Syed Tajammul Hussain Bukhari have further contended that in suit filed by respondent No.1, the marginal witnesses of agreement to sell have not appeared in witness box and as such he has failed to prove valid execution of agreement to sell as required under Articles 17 and 79 of Qanun-e-Shahadat Order, 1984 and as such decree passed in his favour is liable to be set aside. Whereas learned counsel for respondents have supported the impugned judgment and decree maintaining that the same is based on proper appreciation of evidence and as such in limited scope of civil revision, the same cannot be interfered with.

7. Arguments heard. Record perused.

8. The points for determination before this Court are:-- i. Whether Khadija Kausar-petitioner No. 1, as general attorney of her (ex) husband/respondent No.2 has validly transferred suit property in favour of her brother Muhammad Qasim/petitioner No.2? ii. Whether Rai Muhammad Arshad/respondent No.1 and Nazir Ahmad Qureshi/respondent No.2 have validly entered into agreement to sell?

9. As noticed earlier, both the learned Courts below have believed the evidence of petitioners that respondent No. 2 has validly got executed general power of attorney deed Exh. P 1 in favour of his (ex) wife/petitioner No.1 and respondent No. 2 has not filed any cross objection against these findings, so, there is no need to dilate upon oral as well as documentary evidence on this point.

10. In written statement, submitted in former suit titled Nazir Ahmad Qureshi v. Khadija Kausar and others petitioner No.1 has not taken the plea that she had transferred the suit property in favour of her brother on the specific/express instructions of executant of general power of attorney deed/respondent No.2 and that sale consideration Rs.15,00,000/- stood paid to him. Rather she claimed that she was owner in possession of suit property and respondent No.2-Nazir Ahmad Qureshi has no concern with it and that she has been illegally dispossessed from suit property. However, petitioner No.1 as DW-2 in her examination in chief deposed that her husband had instructed her to execute transfer deed in favour of petitioner No.2 as he had settled bargain with him, and he intended to proceed to Saudi-Arabia. During cross-examination she deposed that respondent No.2 and petitioner No.2 had intimated her about the bargain but it was not in her memory that she had informed her counsel about such fact. However, she conceded that such bargain between respondent No.2 and petitioner No.2 was not settled in her presence. Whereas, Muhammad Qasim-petitioner No.2 as DW-4 deposed that he has purchased suit property from respondent No.2 on payment of entire sale consideration Rs.15,00,000/- and at that time hand of his sister/petitioner No.1 had already been given to respondent No.2. During cross-examination he deposed that the bargain of the suit property with respondent No.2 was settled in the month of May and payment was made in mid of May (without specifying the calendar year) without obtaining any receipt due to close relationship. Whereas Nazir Ahmad Qureshi/ respondent No.2 as PW-2 deposed that he had neither promised nor transferred the suit property to the petitioner No.2. No suggestion was put to him that after his engagement with petitioner No.1, he has entered into bargain of suit property with petitioner No.2 and has received sale consideration Rs.15,00,000/- and on his express direction, petitioner No.1, his attorney, has transferred the suit property in favour of petitioner No.2. As such the petitioners have admitted his statement as correct one. Reliance is placed on case 'Chief Engineer, Irrigation Department, NWFP Peshawr and 2 others v. Mazhar Hussain and 2 others' (PLD 2004 Supreme Court 682) and 'Shazia Qamar and others v. Bashiran Bibi and others' [2016 CLC 15 (Islamabad)].

11. The careful scrutiny of above oral testimony of the witnesses makes it crystal clear that petitioners have not pleaded in written statement that bargain was settled between respondent No.2 and petitioner No.2 after engagement of the former one with petitioner No.1 and on express direction of respondent No.2, his wife/petitioner No.1 has transferred the suit property in favour of her brother Muhammad Qasim/petitioner No.2. It is well settled that facts not pleaded cannot be allowed to be proved and if any evidence has come on record beyond pleadings, the same cannot be read in evidence. Reliance is placed on case 'Sardar Muhammad Naseem Khan v. Returning Officer PP-12 and others' (2015 SCMR 1698) and Zahoor Ahmad v. Mohammad Siddique [2017 CLC 704 (Supreme Court AJ&K)]. Thus, petitioner No.1 (ex-wife)/'General Attorney' of respondent No.2 has failed to establish that before transferring suit property in favour of petitioner No. 2, either she has sought or was granted express permission by respondent No.2 for such transfer. Rather Ex.P8 petition for transfer of suit property moved by petitioner No.1 before Director M.D.A. Multan negates her case of valid transfer of suit property wherein she pleaded as under:- As such the transfer made by petitioner No.1 as agent of respondent No.2 in favour of her own brother, without permission of principal, is hit by Section 215 of the Contract Act, 1872. In case 'Jamil Akhtar and others v. Las Baba and others' (PLD 2003 Supreme Court 494) following principle has been laid down regarding sale of property of principal by an agent:-- "It is a settled principle of law that whenever a general attorney transfers the property of his principal in his own name or in the name of his close fiduciary relations, he has to take special permission from the principal." Similar view has been taken in 'Muhammad Taj v. Arshad Mehmood and 3 others' (2009 SCMR 114), 'Maqsood Ahmad v. Salman Ali' (PLD 2003 Supreme Court 31), 'Haji Faqir Muhammad and others v. Pir Muhammad' (1997 SCMR 1811), 'Fida Muhammad v. Pir Muhammad Khan' (PLD 1985 SC 341), 'Muhammad Yousaf Khan v. Mst. Iqbal Bibi through LRs and others' (2005 CLC 1839 Lahore) and 'Wali Muhammad v. Muhammad Ibrahim and others' (PLD 1989 Lahore 440). Whereas case law 'Mst. Hajran Bibi and others v. Suleman and others' (2003 SCMR 1555), 'Abdul Rahim v. Mukhtar Ahmad and 6 others' (2001 SCMR 1488) (Appellate Jurisdiction)], (Both dealing with irrevocable power of attorney) 'Saif Ullah Khan v. Javed Iqbal and another' (1997 SCMR 1210), 'Muhammad Younis v. Atta Muhammad and 2 others' (1999 SCMR 2574) referred by learned counsel for petitioners due to their distinguishable facts, is not applicable to the case in hand. So, it is concluded that petitioner No.1/ex-wife of respondent No.2 has unauthorizedly transferred suit property of principal in favour of her own brother and as such this transfer is not valid under the law and has rightly been set aside by learned Additional District Judge, Multan.

12. So far as second question for determination of this Court regarding valid execution of agreement to sell (Exh.P3) between Rai Muhammad Arshad/respondent No.1 and Nazir Ahmad Qureshi/ respondent No.2 is concerned, testimony of Rai Muhammad Arshad/ PW-3, Abdullah Chaudhary, Officer Habib Bank Limited Gulgasht Branch, Multan/PW-4 and Nazir Ahmad Qureshi/PW2 is relevant. PW-3 deposed that on 21.01.2002 he has entered into agreement to sell Exh.P3 with respondent No.2 and on payment of earnest money Rs.270,000/-, possession of suit property was delivered to him and date for specific performance of contract was fixed as 15.07.2002. He further deposed that he has paid Rs.135,000/- through cross cheque to the original owner. PW-4, Bank Officer has proved that after collection of Rs.135,000/- against cheque drawn on National Bank of Pakistan, Rajanpur Branch, this amount was credited in account of respondent No.2 vide pay slip Exh.P

4. Nazir Ahmad Qureshi/respondent No.2 as PW-2 in his examination in chief has admitted terms and conditions of agreement to sell Exh.P

3. During cross-examination he rejected the suggestion that this agreement is forged and fictitious. The main ground of attack taken by learned counsel for the petitioners is that respondent No.1 pupil of respondent No.2, is enjoying good relations with him and as such respondent No.1 has filed the suit for specific performance of contract only to adversely effect the rights/interests of the petitioners in the suit property. It has been further added that none of the marginal witnesses of agreement Ex.P3 has come in witness box to prove its valid execution. Worth mentioning that petitioner No.1 as DW-2 in her examination in chief has deposed nothing regarding agreement to sell Exh.P

3. However, petitioner No.2 as DW-4 dubbed this agreement as forged and fictitious. The careful examination of this evidence hints that execution of agreement to sell Exh.P3 is not denied by respondent No.2 (original owner of suit property). As rightly observed by learned Additional District Judge in impugned judgment, version of both the respondents is supported by PW-4/Bank Officer and even prior to execution of 'General Power of Attorney Deed' in favour of petitioner No.1, respondent No.1 has paid Rs.135,000/- through bank transaction on 10.05.2002 to respondent No.

2. As such the plea of the petitioners that this agreement to sell is forged and fictitious one is belied. When the executant of agreement to sell Exh. P3 has admitted its execution, production of marginal witnesses of agreement in witness box is not needed, particularly when valid title of petitioner No.2 in respect of suit property is not established. Thus the findings of the learned Additional District Judge, Multan, decreeing the suit of respondent No.1 are based on proper appreciation of oral as well as documentary evidence and no reason what-so-ever exists to dislodge the same.

13. The resume of the above discussion is that learned Additional District Judge, Multan has attended to all the relevant oral as well as documentary evidence, appreciated the same in its true perspective and for valid and cogent reasons, by passing an elaborative and exhaustive judgment has decreed the suits of respondents. In case, 'Hakim-ud-Din through LRs and others v. Fazil Karim' (2007 SCMR 870) it has been held that basic and fundamental principle of administration of justice is that in case there is conflict between the judgments of trial court and the first appellate Court, then normally judgment of first appellate Court is to be given preference over the judgment of trial Court. Learned counsel for the petitioners could not pin point any misreading or non-reading of evidence or any material irregularity or want of jurisdiction in the impugned judgment and decree. Consequently, both the revision petitions being devoid of merits are dismissed. ZC/K-11/L Revision dismissed.