2006 PLP 474 (MLD)

NASIM SIKANDAR, J.

This Civil Revision under section 115 of Code of Civil Procedure, 1908 seeks to challenge a judgment and decree dated 6-10-2003 of the Additional District Judge, Ferozewala. Through that order he maintained the judgment and decree of the trial Court dated 27-9-1999.

2. The respondent, Mst. Tahira Jabeen, on 24-2-1992 filed a suit for declaration as well as possession of 16 Kanals of land being 7/48 share out of total land measuring 81 Kanals and 7 Marlas, described and detailed in the plaint. It was alleged that defendant, Muhammad Hussain, forged a general power-of-attorney on her behalf and got it registered on B 16-6-1985 with the concerned Sub-Registrar and on the basis thereof he transferred the aforesaid piece of land in favour of defendant No.1, Mts. King Poultry Farm (Pvt.) Limited, on 17-6-1985. Thereafter M/s. King Poultry Farm mortgaged the said piece of land along with other with the Agricultural Development Bank of Pakistan. It was alleged that she was minor at the time of execution and attestation of the alleged general power-of-attorney in favour of defendant, Muhammad Hussain. Also that she neither appeared before the Sub-Registrar nor as a fact executed the said general power-of-attorney on the basis of which the defendant, Muhammad Hussain sold, her share of land to the defendant-company. Accordingly it was claimed that having attained the age of majority she came to know of the execution of the aforesaid general power-of attorney and therefore, challenged not only the same but also the sale-deed executed by the alleged attorney in favour of the defendant-company.

3. The defendants contested the suit and maintained that it was motivated and had been filed to frustrate the winding up proceedings of the defendant-company pending in the company jurisdiction of the Lahore High Court, Lahore as C.O. No.40/92; that the plaintiff was not only a major at the time of execution and attestation of registered power, of-attorney but also she was estopped from her conduct to bring the suit inasmuch as the alleged attorney Muhammad Hussain was her real who acted on her behalf in the sale-deed through which her mother Bushra Begum also sold her share in the total land measuring 81 Kanals and 7 Marlas. The contesting defendant also exception to the fact that the plaintiff did not disclose the exact date of her birth the attaining of age of majority and the time and the, occasion on which she became aware of the execution of the alleged forged power-of-attorney and the subsequent sale-deed.

4. Out of the pleadings of the parties as many as nine issues were framed. For the plaintiff her attorney and real uncle Muhammad Aslam appeared as P.W. 1 while 'for the defendant-company Sher Afzal, one of the Directors, appeared as D.W.1. No other oral evidence was produced by the remaining defendants. Both sides, however, relied upon a number of documents. Learned trial Court on 27-9-1999 decreed the suit of the plaintiff primarily on the ground that the plaintiff was a minor on the date of execution of the general power-of-attorney and therefore, not only the same was void but also the execution of sale-deed by her alleged attorney was also void to that extent.

5. Learned Court of first appeal, Additional District Judge, Ferozewala, on 21-10-2000 set aside the judgment and decree of the trial Court and remanded the case to it with the following observations:

"In these circumstances, 'I do not feel just and proper to concur this judgment based upon presumption and wrong inferences, rather I am inclined to seek further affirmative/rebuttal evidence not only to the factum of execution of relevant document but also to the controversy of the age of minority/majority of the plaintiff. Hence, the appeal is accepted and the impugned judgment is set aside and the file is sent back to the learned trial Court to examine Tahira Jabeen as C.W. if at all she does not appear as P.W. along with all relevant documents/material like original power-of-attorney etc. The appellants/defendants shall be given proper opportunity or rebuttal before final adjudication of this case. The parties are left to bear their own costs. The file of the lower Court be sent back and that of the appeal be consigned to the record room after completion. The parties shall appear before the learned trial Court on 25-10-2000 for further proceedings."

6. The above remand order was challenged before this Court as Civil Revision No.22 of 2001. By way of my order dated 30-8-2002 the remand order was set aside and the First Appellate Court was directed to decide the matter itself on the basis of the material/evidence available on record. Thereafter by way of the impugned judgment, learned Additional District Judge, Ferozewala on 6-10-2003 has maintained the findings of F the trial Court in decreeding the suit of the plaintiff. Hence this revision petition.

7. After hearing the parties I will agree with the learned counsel for the petitioner that the First Appellate Court not only misread the evidence but also acted with material irregularity in maintaining the findings of the trial Court. Following are my reasons:-- First, Respondent No.1 Muhammad Hussain is real grand-father of the petitioner. Also he is father-in-law of Mst. Bushra Begum whose property was sold by him along with that of the respondent/plaintiff in the suit by way of a single sale-deed. In that manner Bushra Begum the real mother of the plaintiff/now respondent also becomes a party to the alleged fraud. The presumption that generally such relation would not practise fraud upon their children was not demolished by the plaintiff/present respondent. All the moreso when the plaintiff/present respondent without any sufficient reason failed to appear before the Court to support the allegations made in the plaint as also to stand the test of cross-examination. Second, there is neither an allegation nor any evidence or material brought, on record that the defendant No.1, M/s. King Poultries (Pvt.) Limited/now petitioner had any knowledge of an infirmity in the authority of the defendant No.1 Muhammad Hussain to act on behalf of the plaintiff/now respondent to sell the property in question. Also the plaintiff failed to rebut the assertion made in the written statement by the contesting defendant that the company acted in good faith without knowledge and paid adequate consideration for the property transferred in its favour. D.W.1 Sher Afzal/defendant supported the said contention in the written statement while appearing as a witness. However, he was not put even a suggestion to the contrary. Third, the plaintiff represented before the Court through her special attorney who happens to be her real uncle and son of defendant Muhammad Hussain who is stated to have committed the fraud. The gentleman failed to explain as to why any civil or criminal proceedings with regard to the impugned transaction were not started before the initiation of winding up proceedings against the defendant company. Fourth, I will also agree with the exact day and date of removal or cessation of disability of the plaintiff (in this case minority) was neither given in the plaint nor proved by evidence. The attorney of the plaintiff made evasive replies in the cross-examination. He knows only one thing and it is that the plaintiff was minor in 1985 when the alleged power-of-attorney was executed. He was neither aware of the legal age of majority nor the exact date on which the plaintiff attained majority. The cross-examination of her attorney leaves no doubt that the suit was designed to deprive the defendant/Private Limited Company of its property and the defendant bank of its security as a lender. Particularly in view of the fact that both the grand-father of the plaintiff, her alleged attorney and two real uncles were share-holders and directors of the defendant company which was sought to be wound up by other directors/share-holders who did not belong to the family of the plaintiff. In the given situation it was first of all the alleged attorney who was needed to be taken to task both on criminal side as well as for damages and return of the sale proceeds of the land sold by him if all the contents of the plaint are accepted as correct. Fifth, the difference in the name of the plaintiff and the one given in the birth certificate was neither explained in the plaint nor by the attorney of the plaintiff as P.W. Learned trial Court as well as the Court of first appeal acted unjustly in condoning with lacuna in favour of the plaintiff. Also the attorney of the plaintiff evidently made an incorrect statement that he was not aware of the fact that the defendant company was being wound up by the orders of this Court despite the fact that its liquidator had already been arrayed as defendant in the suit. Sixth, the contention that the suit was collusive between the plaintiff and defendants Nos.1-E to 1-G and defendants Nos.1-E to 1-F who were real uncles and defendant No.1-G who was real grand-father of the plaintiff was clearly established on record when the plaintiff's evidence is seen in its totality. The findings of the trial Court as well as that of the First Appellate Court, therefore, on Issue No.3 are not supported from the record. As a matter of fact the trial Court as well as the Court of first appeal decided the issue in a cursory and slipshod manner. The sequence of events stated in the written statement filed by the contesting defendants and the statement of D.W.1 clearly supported their defence. Therefore, the findings recorded on Issue No.3 by the trial Court that no evidence was led to prove that the suit was collusive and maintained by the Court of first appeal are patently incorrect. Seventh, on Issue No.8 "if the plaintiff was entitled to the decree prayed for", it was for her to prove that the defendant M/s. King Poultries (Pvt.) Limited acted malafidely with notice and did not pay adequate consideration for the land in dispute. In absence of proof of the three elements a decree in favour of the plaintiff was clearly against law inasmuch as it resulted in L perpetuation of fraud committed by defendant Muhammad Hussain who was one of the directors and ' share-holders in the purchaser company. Eighth, nothing has been brought on record to establish that the creditor bank as mortgagee could be deprived of its security inasmuch as the mortgager company, as noted above, was never proved to have acted malafidely. Ninth, both the Courts below completely ignored the background of the suit. The Appellate Court in agreeing with the findings of the trial Court on Issues Nos.3 and 5 failed to exercise its jurisdiction vested in it under the law. Also the findings of the . trial Court on Issue No.6 are vague while the Court of first m appeal also failed to exercise its duty requiring the plaintiff to prove that the suit was filed within limitation. The trial Court as well as the Court of first appeal did not determine the exact date of attaining the age of majority by the plaintiff nor as to how the suit was well within the limitation provided by law as observed by them. Once the limitation started, the plaintiff owed an explanation as to why she did not file the suit and waited till the time the winding up proceedings of the respondent-company were initiated. Both Courts also failed to take notice of the admission made by P. W.1. , her real uncle and son of Muhammad Hussain defendant that his other two brothers accepted the transfer of the property in favour of the defendant-company to be valid. Tenth, the claim of the contesting defendants that the plaintiff held herself out as a major at the time of execution of the impugned power-of-attorney was not effectively rebutted by her. Eleventh, the mother of the plaintiff was also a party to the sale deed as a seller and in absence of the father of the plaintiff she was her natural guardian. Therefore, it is not believable, in absence of any evidence to the contrary that she also acted mala fide and against the interest of her daughter. Twelfth, the Courts below confined themselves to the alleged minority of the plaintiff. The defence that she actually appeared before the Sub-Registrar for execution of the power of attorney was not ruled upon. If it was proved that the plaintiff actually appeared before the Sub-Registrar then the perspective of the examination of the pleadings as well as the evidence of the parties would have completely changed.

8. For the various aforesaid reasons, this civil revision shall be allowed and the order of the Court of first appeal/Additional District Judge, Ferozewala, dated 6-10-2003 as well as judgment and decree of the trial Court dated 27-9-1999 shall be set aside. H.B.T./K-138/L Revision allowed.