2007 PLP 1568 (MLD)

MIAN SAQIB NISAR, J.

The suit for declaration and permanent injunction brought by the respondents/petitioners was dismissed by the learned Trial Court, vide judgment and decree, dated 4-3-2000; but on appeal of the respondents such judgment and decree has been set aside and the suit has been allowed.

2. Briefly stated the facts of the case are, that the respondents filed a suit for declaration and permanent injunction claiming that they are the owners of the suit property measuring 7 Kanals, 5 Marlas (described in the plaint), Mushtaq Ahmad, defendant No. 1, has fraudulently manoeuvred the registered general power of attorney in his favour on behalf of the plaintiffs and has sold the land to defendant No.2, his real brother. In paragraph 6 of the plaint, it is specifically mentioned that the power of attorney, dated 16-2-1978 is ingenuine, based upon fraud and misrepresentation; as stated above, the mutation of sale by the attorney in favour of his brother was also claimed to be a sham transaction. The petitioners/defendants appeared in the matter, they resisted the suit; their main defence is that the. suit property was sold to them by the plaintiffs and after receiving the full amount of consideration the power of attorney was given in pursuance thereof, which has been validly utilized by defendant No. 1; issues were framed, and the parties were put to trial; the learned Civil Judge by holding that the power of, attorney, dated 16-2-1978 is a genuine document and the Mutation of sale No.221, dated 28-2-1993 is valid, dismissed the suit vide judgment and decree, dated 4-3-2000; the respondents challenged the above judgment and decree through an appeal, which has been accepted on 19-7-2001. The learned Appellate Court has also come to a categorical finding, that the power of attorney, dated 16-2-1978 in favour of Mushtaq Ahmad/petitioner No.1 is genuine; however, the Court by relying upon PLD 1989 Lahore 440, PLD 1985 SC 341 and 1994 CLC 1690, has held that the transaction made by the attorney in favour of his brother is sham; colourable and without consideration.

3. Learned counsel for the petitioners argues, that the finding of the learned Trial Court about the genuineness of the power of attorney when challenged by the respondents in appeal, has been upheld, thus there is a concurrent finding of tact that the power of attorney, dated 16-2-1978 Exh. D 1 was genuinely executed; no further challenge has been thrown to this concurrent finding of fact, even orally by the respondents before this Court. The only limited controversy, which therefore remains between the parties, is whether the transaction in favour of Ghulam Haider/petitioner No.2, by the attorney is sham and collusive; the learned counsel for the petitioners submits that this is so not proved by the respondents on the record, through any evidence, and only for the reason that the petitioners are brothers, does not mean that the sale is invalid and colourable.

4. The counsel for the respondent on the contrary argued, that the sale in question effected through Mutation No.221, dated 28-3-1993, is a sham transaction and without consideration.

5. Heard. From the averments of the plaint, it is quite clear that the basic attack of the respondents has been upon the power of attorney, dated 16-2-1978 Exh.D1, in favour of Mushtaq, which they claimed to be the result of fraud and it is only as an-ancillary that the mutation was also challenged. But as per the finding of the two Courts below, such power of attorney is genuine, which is proved to have been executed by the respondents in favour of Mushtaq/defendant No.1; Riasat Ali; the co-plaintiff of the .case has not even appeared before the Court to controvert the execution of the power of attorney by him, both the learned Courts below have concurrently found, about the validity of this document in favour of petitioner No.1, which finding according to my own reading of the evidence does not suffer from any misreading or non-reading; besides, as mentioned earlier the counsel for the respondents has not even uttered a single word to question such finding. Now when it stands settled, that the power of attorney is the genuine document, the question remains for the determination is, if on the authority of the attorney the transaction of sale by Mushtaq in favour of his brother is invalid, and sham, suffice it to say, that only for the reason that the sale has been made to the brother by the attorney per se cannot be held to be invalid and the respondents were required to lead some evidence in this behalf, particularly for the reason, when the respondents have failed to establish as to why the power of attorney was given to Mushtaq, when there is no close relationship between them, and especially when such power of attorney was primarily assailed, but has been declared by the learned two Courts below to be genuine. In fact the validity of the sale in question was 'dependent on the validity of the power of attorney and the entire thrust of attack to the sale was on the basis of the above, with regards to which the respondents have failed. It is not their case that the power of attorney was given to their agent and the purchaser has committed some-fraud with them. In my view, in all probability the respondent had sold the property to the petitioners and the power of attorney was given for that purpose; this is proved by the statements of D.W.2, D.W.3, D.W.4, who have appeared to testify about the sale of the property to the petitioners.

6. In my considered view, the respondents having failed to prove on the record that the power of attorney is ingeamine and is the result of any fraud etc. which primarily and basically is their case, were under the duty to establish that the sale in favour of petitioner No.2 was a sham, transaction and for lack of consideration; though, it is a negative fact that one of the co-plaintiffs, who is equally involved in the matter, has not even appeared to testily in this behalf. The respondents have not shown and established of being illiterate persons or respondent No.1 to be a Pardanasheen lady, thus, taking all the factums in totality, I am of the view that the learned Appellate Court while deciding the matter had committed an error of jurisdiction, which judgment and decree cannot sustain and- is hereby dismissed, with the result that this petition is allowed and the judgment and decree of the learned Trial Court is upheld. M.H./M-291/L Revision allowed.