P L D 1990 Lahore 314 (PLP)

This was a suit for a declaration by Sohrab Khan and Mst. Chando, plaintiffs, respondents herein, that the mutation of sale of the land in suit in favour of Muhammad Ramzan, defendant, now petitioner, was obtained by fraud, was without consideration and was, therefore, ineffective as against the plaintiffs' rights as owners. The suit was decreed ex parte by the learned Civil Judge's judgment dated 24‑10‑1975 and the petitioner's appeal against the judgment and decree was dismissed by the judgment of the learned Additional District Judge, Lahore, dated 17‑10‑1981.

2. By this petition under section 115 of the CPC, Muhammad Ramzan, defendant, seeks the revision of the judgments and decrees of the learned Courts below.

3. The land in suit belonged to Najboo who had died in October, 1972; the plaintiffs Sohrab Khan and Mst. Chando are his son and daughter respectively. Muhammad Ramzan, defendant, is a nephew of Najboo. By the mutation dated 28‑5‑1965, Najboo had purportedly sold the land in suit in favour of Sohrab Khan, plaintiff, and Muhammad Ramzan, defendant, for Rs.4,000, the share of Sohrab Khan being 2/3rd and that of Muhammad Ramzan being 1/3rd.

4. This suit was brought on 17‑1‑1975.

5. The plaintiffs' case is that some months before the suits, the defendant approached Sohrab Khan, plaintiff, and demanded 1/3rd share of the produce of the land in suit and disclosed that some nine years earlier, 1/3rd of the land had been sold to him by Najboo. The plaintiffs' case is that the mutation of sale was obtained by fraud and misrepresentation; that the attestation of the mutation was obtained by producing some other persons for Najboo and Sohrab Khan and that Najboo had never entered into a sale transaction with Sohrab Khan, plaintiff, or Muhammad Ramzan, defendant and hack never received the sale consideration. It was said that during his life, Najboo had remained in possession of the land; after his death, the land had been in the possession of Sohrab Khan.

6. Cause of action for the suit, it was pleaded, arose a few months before the suit when the defendant demanded the share in the produce of the land in suit.

7. The defendant appeared and filed the written statement contesting the suit. He asserted that Najboo had sold the land to him and Sohrab Khan, plaintiff, he also claimed that he had been in possession of 1/3rd of the land in suit. He denied that the sale transaction was not known to Sohrab Khan, plaintiff, or that he had come to know of it when he demanded his share in the produce of the land in suit.

8. The written statement, it should be mentioned here, was filed on 8‑2‑197'5 when the suit was being tried by Salamat Ali, Civil Judge. Thereafter, by administrative orders, the suit was transferred to Mr. Akhtar Naqi Naqvi, Civil Judge, and then to Mr. Faiz Talib, Civil Judge. It is common ground between the parties that from the Court of Mr. Faiz Talih, Civil Judge, notices were issued for 20‑9‑1975 and that the petitioner's counsel was duly served for that date. Nobody had appeared for the petitioner on 20‑9‑1975 when he was proceeded ex parte. The suit was then adjourned for ex parte proceedings to 24‑10‑1975 when after recording ex parte evidence, the learned Civil Judge decreed the suit.

9. The learned Additional District Judge dismissed the petitioner's appeal on the ground that "there is no explanation on the record with regard to the absence of the counsel for the appellant," and that in the circumstances of the case, the petitioner was rightly proceeded ex parte. This is a Finding of fact. Learned counsel for the petitioner was unable to show that this evidence suffers from any illegality or irregularity.

10. Before the learned Additional District Judge, one of the grounds of appeal was that the suit was liable to dismissal on its merits. It appears that specific grounds were taken in the memorandum of appeal to that effect; that according to the petitioner, the suit should have been dismissed on its merits was pressed as a ground of attack before the learned Additional District Judge also received support from the written arguments which are part of the file of the learned Additional District Judge. The learned Additional District Judge, however, did not, in dismissing the petitioner's appeal, touch the merits of the suit.

11. The appeal before the learned Additional District Judge was opposed by the plaintiffs, among others, on the ground that the memo of appeal had been presented by Hassan Din, a general attorney of Muhammad Ramzan; that the deed, which gave him the authority to act on behalf of Muhammad Ramzan was in favour of two attorneys, namely, Hassan Din and Muhammad Bashir; that the authority so given was to act jointly and that, therefore, the appeal by one attorney, Hassan Din, was not competent.

12. This ground, it is obvious, went to the root of the matter but, if I may say so, it received a short shrift at the hands of the learned Additional District Judge. After noticing the contentions of the parties' counsel, the learned Additional District Judge was content to say that in his view "the objection raised by the learned counsel for the respondent is not more than an irregularity. He has admitted to this extent that one of General Power of Attorney appointed the counsel for the appellant."

13. Learned counsel for the respondents argued that the learned Additional District Judge took a wrong view of the law in holding that the appeal by Hassan Din attorney was competent and the failure of the other attorney to join with him was a mere irregularity. Learned counsel for the petitioner on the other hand referred to Muhammad Sarwar alias Feroze Ali v. Abdul Ghani and 7 others 1980 CLC 946 and supported the view of the learned Additional District Judge.

14. The appeal before the learned Additional District Judge was presented on 12‑12‑1975. The general power of attorney executed by Muhammad Ramzan petitioner, was dated 22‑7‑1975; by it, Hassan Din and Muhammad Bashir were constituted as general attorneys of Muhammad Ramzan. The acts that they were authorized to perform on behalf of Muhammad Ramzan were enumerated in detail and it is of great significance to note‑for it gives an indication of the intention of the donor Muhammad Ramzan‑‑that each and every act that they were authorized to perform, they 'were authorized to perform jointly. In the B context of the facts of this case, it is also of some importance to mention that the authority so delegated to the attorneys by Muhammad Ramzan was a permanent', authority for the deed expressly provided that the donor Muhammad Ramzan 1, would have no power to cancel the power of attorney. The language of the power' of attorney being plain and it being obvious that the parties to the power of attorney took great pains to make their intention manifestly clear that the two attorneys, Hassan Din and Muhammad Bashir, would exercise the authority delegated to them jointly and not jointly and severally, all that the Court can do is to give effect to that intention.

15. That in such a case, the attorneys or co‑agents must act jointly or not at all, is vouched by the following statement of the law in Halsbury's Laws of England, Fourth Edition, para. 727 which reads: "A principal may give authority to co‑agents to act for him, either jointly, or jointly and severally. A mere authority to act, without further specification, is a joint authority, and can be acted upon only by the cogence jointly; but an authority given jointly and severally may be acted upon by all or any of the co‑agents so as to bind the principal."

16. Learned counsel for the respondents cited Jaffar Khan.v. Muhammad Achar PLD 1961 (W.P.) Kar. 335; that was a case where a contract was entered into between one primrose (A) and two promises (B and C) but a suit based on a claim arising out of the contract was brought only by B; in the plaint it was nowhere alleged by him that the other promisee (C) had assigned his own rights to him or that he was not joined as a party to the claim arising out of the contract for some other cogent reasons. It was held that the contract could not be enforced by (B) alone. The principle enunciated in the precedent case, in my view, applies equally to the facts of this case to which I return immediately.

17. The appeal was presented before the learned District Court by Muhammad Ramzan son of Kalu, petitioner, "through Hassan Din, general attorney'. The wakalatnama in favour of Ch. Bashir Ahmed Chohan, Advocate, was signed only by Hassan Din on behalf of Muhammad Ramzan and the memorandum of appeal was signed by Ch. Bashir Ahmed Chohan, Advocate only. Though the objection to the competence of appeal was taken at a very early stage, yet neither Mohammad Ramzan nor the other attorney Muhammad Bashir came forward to sign the memorandum of appeal. Nor was it the case of Hassan Din that it was by inadvertence that Muhammad Rarnzan or for that matter Muhammad Bashir had not signed the wakalatnama in favour of Ch. Bashir Ahmed Chohan, Advocate

18. Learned counsel for the petitioner relied upon Muhammad Sarwar v. Abdul Ghani and 7 other 1980 CLC 940, before the learned Additional District Judge and he relied upon the same precedent case before me. That case was, however, decided on, and is authority for, its own facts. The appeal was riled by Ch. M.A. Rehman, Advocate in the Court of the District Judge, Gujranwala. Neither the memorandum of appeal nor the wakalatnama, attached with the appeal, was signed by the appellant. However, both these documents had been signed by his counsel. The appeal was put up before the learned District Judge on the next day when only Ch. MA. Rehman, Advocate, appeared. On the next date, viz. 4‑7‑1958, the appellant had appeared in person. Thereafter, the appeal was adjourned on a number of times. The appeal was dismissed on the preliminary objection that Ch. MA. Rchman, Advocate, did not hold a power of attorney on behalf of the appellant and there was no proper memorandum of appeal before the Court. It was held that the main purpose of Order III, rules I and 4 and Order 41, rule 1 of the CPC "is to ensure that suit or appeal, as the case may be, has been preferred by a recognized agent or pleader on behalf of the party concerned. The provision that authority in favour of a Header should be in writing aims at eliminating every possibility of confusion, fraud or exploitation, so as to make sure that no harm is caused to the genuine party. If circumstances of a case show that a party has genuinely and actually engaged a lawyer and has given him due instructions who has acted according to them then even in the absence of such authority being in writing proceedings conducted by such lawyer on behalf of his client would not become invalid." It was found as a fact that Ch. MA. Rehman, Advocate had due instructions though oral from the appellant to present the memorandum of appeal, it was in these circumstances that it was held that the presentation of the appeal "amounts to an irregularity which on be cured in law"

19. The distinction thus is between a mere inadvertence to sip a memorandum of appeal or vakalatnama by an appellant and the non‑exercise of the authority to act by his agent; the former may, in the given facts of a case be a mere curable irregularity, but the latter is not, for it goes to the root of the matter. Suppose that Hassan Din had, on the basis of this power of attorney, sold the land of Muhammad Ramzan acting singly. Undoubtedly, the sale would be void. There appears no reason why the result of his acting singly in presenting the memorandum of appeal should be different. Logically, the result must be the same in both the cases. It must follow inexorably that the act of Hassan Din was void and consequently non‑existent in law, for nobody can build anything on nothing.

20. As observed above, neither Muhammad Ramzan, petitioner, nor the other attorney Muhammad Bashir came forward with a vakalatnama in favour of Ch. Bashir Ahmed Chohan, Advocate. The position taken up in the written arguments of the petitioner before the learned Additional District Judge was that one of the attorneys' signatures are on the power of attorney whereas other attorney, namely, Bashir Ahmed's signatures are not on the power of attorney. This means that the counsel for the appellant was authorised to rile the appeal." Thus, it was not the petitioner's case that he had authorised Ch. Bashir Ahmed Chohan, Advocate, to act on his behalf. As the authority in favour of Hassan Din and Muhammad Bashir was joint authority, and the appeal was presented and the vakalatnarn in favour of Ch. Bashir Ahmed Chohan, Advocate, was signed by Hassan Din only, it must inevitably follow that the appeal was not competently presented. In other words, there was no proper appeal before the learned District Court and it was liable to dismissal on this short ground.

21. I am in agreement with the petitioner's counsel that if on the ex parte evidence led by the plaintiffs, the suit did not merit to be decreed, it should have been dismissed and that the learned Additional District Judge could not dispose of the appeal before him without going into the merits of the plaintiffs' case. Learned counsel for the petitioner argued that the suit was on the face of it barred by time; that this objection was expressly taken in the written statement; that the ex parte evidence of the plaintiffs' was wholly inconsistent with the plaintiffs' claim, as laid in the plaint. In this connection, he pointed out that although the plaintiffs' case in the plaint was that the sale mutation dated 28‑5‑1965 was obtained by producing fictitious persons for Najboo deceased, and Sohrab Khan plaintiff, yet in the evidence it was admitted that Sohrab Khan was present when the mutation in question was attested.

22. As to the contention regarding limitation, learned counsel for the petitioner thought that time began to run against the plaintiffs from the date of mutation viz. 28‑5‑1905, for Sohrab Khan was recorded as present before the Revenue Officer and had, therefore, the knowledge of the mutation. It seems to me, however, that neither of the plaintiffs could have challenged the sale in the life time of Najboo on the ground that it had been obtained by fraud and misrepresentation or that the sale was without consideration. Najboo died in October, 1972, and it was then that the plaintiff‑, succeeded to his estate, and the right to have the sale declared ineffective as against their rights accrued to them. Learned counsel for the petitioner cited Mst. 177at v. Allah Ditta PLD 1981 SC

165. In that case, the plaintiff sued for a declaration that a sale‑deed dated 11‑2‑1952 was void and unlawful on account of fraud and lack of consideration and that the mutation based on the registered deed was also illegal. The plaintiffs case was that her husband had "defrauded her into the execution of the sale by misrepresenting to her that it was a special power of attorney". The defendant controverted this allegation and raised the plea of limitation. The learned trial Court held that the plaintiff had continued to be in possession of land; that limitation was governed by Article 120 of the Limitation Act and would commence from the date of the registration of the sale‑deed (11‑5‑1958) and that the suit was within time because the time would run against the plaintiff from 19‑5‑1969 when defendant got sanctioned a mutation with the object of denying possession and ownership of the plaintiff. After referring to Hamida Begum. v. Murad Begurn PLD 1975 SC 624 and Shamshad Ali Shah v. Hassan Shah PLD 1964 SC 143, it was held that the relief claimed with respect to the registered deed was only ancillary, therefore, Articles 91 and 95 of the Limitation Act were not attracted; that the date of the accrual of the cause of action in that case was not necessarily relatable to the date of the deed. or the knowledge of the plaintiff with regard to the fact that she had been defrauded; that the essential relief claimed was with regard to the maintenance of possession and issuance of injunction in this behalf against the defendant and therefore, the cause of action arose to the plaintiff first on account of the effort made by the defendant to disturb the then existing status quo through the sanction of the mutation viz. 19‑5‑1969 and then from the plaintiffs' disclaimer of the right of respondent and warning him against any interference regarding the suit land. I do not, therefore, think that this case in any way helps the petitioner; as has been noticed above, the plaintiffs claim to be the owners in possession and they could not sue for such a declaration in the lifetime of Najboo. They felt aggrieved for the first time a few months before the suit when the petitioner came forward with the claim that he was the owner to the extent of 1/3rd share in the estate of Najboo. As has been noticed above, Najboo died in October, 1972, and the suit was instituted on 17‑1‑1975.

23. As to the parties' evidence, led before the learned trial Court, the consideration of the plaintiffs' evidence must be prefaced by the very important fact that the real aggrieved person was Mst. Chando, plaintiff. She, it was who had been wholly deprived of any share in the estate of Najboo by reason of the mutation of sale dated 28‑5‑1965. Sohrab, plaintiff, was entitled to a 2/3rd share in the estate of Najboo and that share he had obtained by the sale mutation. It was the remaining 1/3rd, that is the share of Mst. Chando, which had gone to Muhammad Ramzan, defendant.

24. The sale mutation is Ex. P.

1. It shows that Najboo, Muhammad Ramzan and Sohrab Khan had appeared before the Patwari on 19‑3‑1965 and reported that Najboo had sold the land to Sohrab Khan and Muhammad Ramzan. The mutation was attested on 28‑5‑1905. The order of the Revenue Officer shows that Karima Lambardar was present and so were Najboo vendor and Muhammad Ramzan and Sohrab Khan, vendees. Before the Revenue Officer, the vendor admitted that he had received Rs.4,000 as the sale consideration and had sold the land to Sohrab Khan and Muhammad Ramzan, in the shares mentioned above. The copy of khasra girdawri (Ex.P. 3) shows that the land had remained in the cultivating possession of tenants.

25. The oral evidence consisted of the statements of Sohrab Khan, plaintiff, and four witnesses, namely, Karima, Jeer Khan, Meraj Din and Kalay Khan. Karima (PW. 1) was the Lambardar who was present before the Revenue Officer at the time of the attestation of the mutation. He said that he had identified Najboo; that with Najboo was also present (be petitioner Muhammad Ramzan; that Sohrab Khan was not present at that time. He added that in his presence, Muhammad Ramzan had not paid any money to Najboo. He further stated that no statement was made in his presence; all that he had done was to identify Najboo. Jeer Khan (PW. 2) stated that he had been cultivating the land as a tenant and had been paying to Najboo; he had banded over the possession of the land to Sohrab Khan. Muhammad Rarnzan, petitioner, he added, had never demanded the share of the produce. Meraj Din (PW. 3) had also been cultivating the land; he had handed over the possession to Najboo and Jeer Khan P.W. Kalay Khan (PW. 4) said that Najboo had told him that he had a mutation attested in favour of Sohrab Khan. Najboo, he added, was eighty years of age and Muhammad Ramzan had the mutation attested in collusion with the Patwari. The land, he further stated, had been in the possession of Sohrab Khan. As his own witness, Sohrab Khan stated that the land in suit was in his possession through the tenants; that it had never been in the possession of Muhammad Ramzan, petitioner. He further stated that his father had the Mutation No. 478 attested in his favour; that he had never told him that the land had been sold to anybody else. His father had not received any sale consideration from Muhammad Ramzan. According to him, he came to know that the mutation was also in favour of Muhammad Ramzan when the latter demanded his share.

26. Now from this evidence, it does appear that Najboo had a mutation attested in favour of Sohrab Khan but the real question was whether there was a sale in favour of Muhammad Ramzan, petitioner, and if so, whether that sale was for consideration. Karima (PW. 1) said that no admission of sale or1H acknowledgment of the payment of the sale consideration was made in his presence by Najboo. His admission that Muhammad Ramzan was present did not, therefore, necessarily mean that there was a sale in favour of Muhammad Ramzan. Similarly, Sohrab Khan denied that his father had sold the land to Muhammad Ramzan or had received any sale consideration.

27. Otherwise too, it did not stand to reason that Najboo had sold his land to his only son Sohrab Khan and to his nephew Muhammad Ramzan.

28. For these reasons, I am of the view that on the merits, the suit was rightly decreed. The revision petition is dismissed but related inter se, they are left to bear their own costs. AA./R‑211/L Revision dismissed.