2009 PLP 1489 (YLR)

MIAN SAQIB NISAR, J.

The suit "property measuring about 158, Kanals 10 Marlas situated in Diya Singh Wala, Tehsil Chunian, District Kasur, was owned' by Baz Khan, the father of the present respondent; Baz Khan appointed Niaz Khan as his attorney vide registered power of attorney, dated 1-6-1977 and the attorney on the basis of the above .sold the suit-land in favour of defendants Nos. 1 and 2; said defendants further sold the land in favour of defendants Nos. 3 and 4 vide document No.2406, dated 20-7-1980, through registered sale-deed bearing No.1158, dated 25-6-1977 and Baz Khan, admittedly died on 4-5-1989, and his son, the respondent on 22-12-1990 brought a suit for declaration, claiming that such transactions of sale in favour of the petitioners were result of fraud etc. his father was a naive person and he has been a victim of fraud, It may be A pertinent to mention here, that Niaz was neither originally impleaded as a party nor the power of attorney in his favour was challenged. He under the order of the Court was arrayed as defendant No.5, still no challenge was thrown about his power of attorney, which is the basis of the first transaction of sale. But that as it may, the cause was contested by the petitioners and the 'learned Civil Judge after the trial dismissed the suit vide judgment and decree, dated 19-12-2000, holding that the respondent has failed to prove that the transaction in favour of the petitioners is based upon fraud etc., besides, the suit is time barred challenging the sale of the petitioners effected in 1977, through a suit brought in the year, 1990; that respondent challenged this judgment and decree; through an appeal and on both the issues regarding the limitation and also about the validity of the sale deeds, the findings of the learned trial Court have been reversed. It is the view of the learned Appellate Court, that the plaintiff/respondent's side was. kept in dark for a long period of time about the execution of the sale documents, and thus, the limitation shall commence from the date of the knowledge, which according to the plaintiff was in the year 1990, when he had come .from Saudi Arabia. As regards the question of fraud, it is the finding that as per the conduct of the petitioners, who were the beneficiaries, they have failed to prove the power of attorney in favour of Niaz, on the basis of which the sales have been executed in their favour.

2. I have heard the learned counsel for the parties. As far as the question of validity of the sale-deeds is concerned, it is the case of the respondent, that the instrument was not executed by his late father in favour of the petitioners, but this is factually incorrect that the first sale-deed in fact, was executed by Niaz Khan, his father's attorney, and the power of attorney, dated 1-6-1977 is on the record as Mark "F". Having come to know from the contents of the sale-deed, which already was available to the respondent before the institution of the suit, it was incumbent upon the respondent/plaintiff to have mentioned in his plaint about the factum that no power of attorney was executed by' Baz Khan in favour of Niaz Khali and the power of attorney should have been challenged, but this is conspicuously missing in the plaint and without seeking the annulment of the power of attorney, the sale in favour of the petitioners/defendants Nos. 1 and 2 could have been challenged, because the sale is founded thereupon; this aspect of the matter has not been considered by the learned Court of appeal, therefore, such finding cannot sustain.

3. As far as the issue of limitation is concerned, suffice it to say that the first sale-deed was executed in the year, 1977, and the present suit admittedly was being filed after 13 years, thus, in such circum stances, the respondents under Order VII, Rule 6, C.P.C. were required to state the grounds of exemption from the limitation law, which in the present case have not been strictly mentioned, the general statement in this behalf was not adequate, particularly when Niaz Khan, who had executed the first sale-deed in favour of defendants Nos. 1 and 2, was not even c arrayed as a party and his power of attorney, which is a registered document, was not challenged at all, even this has not been proved, that such power of attorney, which is the genesis of the two transactions, was based upon fraud and misrepresenta tion. Obviously, in such circumstances, it was the duty of the respondent/plaintiff to primarily establish that his suit was within limitation but except the bald allegations averred in the plaint and only the statement of his attorney, there is no other evidence on the record, if Baz Khan, his father, was not a party to the transactions.

4. The argument that being the beneficiaries of the transactions it was the petitioners, who had to prove that Baz Khan had executed the sale-deeds and was, therefore, aware of the transactions, it may be held, that once the petitioners were able to satisfactorily discharge their burden in this regard, which to my mind the respondent has miserably failed. It may further be added, that the respondent/ plaintiff had only stepped, into the shoes of his father, who had lived till 1989 and had not challenged the transactions himself, therefore, the judgment of the Hon'ble Supreme Court reported as Abdul Haq and another v. Mst. Surrya Begum and others (2002 SCMR 1330), shall squarely applicable to the case in hand, according to which it was held that in such circumstances, the plaintiff shall have no locus standi. In the light of the above, by allowing the revision petition, the impugned judgment and decree of the learned Appellate Court is hereby set aside and that of the learned trial Court is upheld. H.B.T./K-17/L Petition allowed.