2001 PLP 754 (MLD)

Date of hearing: 17th November, 2000. This judgment shall decide R.S.A. No.4 of 1985 and R.S.A. No. 13 of 1985 as both these RSAs. involve a common question.

2. The appellants in both these cases purchased the suit‑land vide Mutations Nos. 398 dated 22‑8‑1973 (26 Kanals, 9 Marlas and 400 dated 22‑2‑1974 (28 Kanals, 2 Marlas). The plaintiff/respondent No.1 in both the cases filed suits on 29‑7‑1974 and 7‑2‑1975 respectively for possession by pre‑emption. He claimed to be an owner in the estate. The suits were contested inter alia, on the ground that the person filing the suit on behalf of respondent No. l was not authorised to do so. Amongst others the following issue was framed by the learned trial Court:‑‑ (1‑A) Whether Khalid Asghar plaintiff, validly executed power of attorney in favour of Muhammad Abdullah for the institution of the present suit? If not, with what effect? OPP Evidence of the parties was recorded. The learned trial Court decreed the suits vide judgment and decree dated 28‑6‑1982. First appeals filed by the appellants were heard by a learned Additional District Judge, Toba Tek Singh who dismissed the same on 23‑12‑1984.

3. Learned counsel for the appellants contends that the learned Courts below have misread the evidence on the record particularly the power of attorney and have failed to apply the correct law while finding the said issue in favour of respondent No.1. Learned counsel for the respondents, on the other hand, argued that Abdullah was duly authorised to file the suit on behalf of the plaintiffs/respondents.

4. I have gone through the record of the case, with the assistance of the learned counsel for the parties. The original power of attorney is available as Exh.P.5 in the file of the suit subject‑matter of R.S.A. No.4 of 1985. Apart from the other witnesses Khalid Asghar, plaintiff/respondent himself appeared as a witness and deposed that he had executed the said power of attorney in favour of his father Ch. Muhammad Abdullah.

5. I have read this power of attorney with the assistance of the learned counsel for the parties. I find that this power of attorney is multi‑purposes and has several parts. To begin with the donor gave the detail of his existing properties and assets and proceeds to appoint his father Abdullah to be his attorney in respect of matters that may possibly pertain to the said property. Then this power of attorney proceeds to separately authorise the said Abdullah to tile suits and to deal with the proceedings arising out of those suits. Then the document proceeds to authorise the attorney to alienate the said property. Ultimately the principal authorised the agent to purchase the property for him. The exact words used are as follows:‑‑ Or koi Jaydad Bahaq Maker Khareed Kary

6. Learned counsel for the appellants relies on the case of Gultaj Begum v. Lal Hussain and others PLD 1980 SC (AJ&K) 60, Shahabuddin and others v. Maryam Bibi and others 1995 MLD 45 in respect of contention that power of attorney has to be strictly construed and that when a person authorised to do any particular act than he could only do that specific act and would not travel beyond the authority vested in him. As to the aforementioned power contained in the power of attorney, learned counsel argues that thereby the principal should be presumed to have authorised the attorney to purchase the land only by negotiations on individual basis and not by filing a suit for pre‑emption. According to the learned counsel as per section 4 of the Punjab Pre‑emption Act, 1913 a right conferred thereon can be exercised only by filing a suit and as such the said recital cannot be held to mean that, the attorney was authorised to file a suit for pre‑emption.

7. Learned counsel for respondents, on the other hand, argues with reference to the case of Sh. Allah Diya Saleem v. Abdul Qadeer PLD 1971 Lahore 311 to argue that power to manage includes power to file suits. Also tries to draw some support from the judgment in the case of Jiwibai w/o Karsondas Bhatia v. Ramkuwar Shriniwas Murarka Agarwala AIR (34) 1947 Nagpur 17.

8. After hearing the learned counsel in support of their respective contentions I find that what needs to be resolved in this matter is as to whether the power conferred on the attorney by the plaintiffs/respondents to purchase the property for him can be said to include a power to file a suit for pre‑emption. Section 4 of the Punjab Pre‑emption Act, 1913 gives some idea as to what a right of pre‑emption is. It states that the right of pre‑emption shall mean the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons and it arises in respect of such land only in the case of sales and in respect of such property only in the case of sales or `of foreclosure of the right to redeem such property. A plain meaning of the said provision of law would be that in case of agricultural land, the moment it is sold, a right accrues to a person who is armed with any of the qualification mentioned in section 15 of the said Act as applicable to Muslims to acquire the said property in preference to other persons. Obviously the reference is to the person who has in fact purchased the land. In the present case the plaintiffs/respondents was the owners in the estate at the time of sale. Thus, a right to acquire the land sold in the said estate to the other persons i.e. the present appellants, accrued to the plaintiffs/respondents. The attorney proceeded to file the present suit on behalf of the plaintiffs in exercise of the said right of the said plaintiffs/respondents. Now it is well‑settled that d successful pre‑emptor stands substituted for the vendee in the documents of sale and ultimately becomes himself the vendee of the land. Thus, for all purposes it is purchase by the pre‑emptor of the land sold to the other person upon satisfying the Court that he has a right to acquire' it in accordance with law. Thereafter, the Court fixes the consideration and the same is ordered to be deposited for payment to the original vendee. The moment the deposit is made, title accrues to the plaintiff in a pre‑emption suit per terms of Order XX, Rule 14, C.P.C.

9. To my mind even if applying the rule of strict construction to the document in question the said authority given to the attorney by the plaintiffs/respondents to purchase the land for him does include purchasing of land by means of a pre‑emption suit. In the case in hand the document apart from conferring authority upon the attorney to file suits in respect of the property mentioned in the power of attorney, also generally authorises the attorney to file suits on behalf of the principal and to pursue the same as also the proceedings arising out of the suits.

10. As a result of the above discussion I find that the learned Courts below have not violated the rules of interpretation of a power of attorney laid down in the judgments relied upon by the learned counsel for the appellants while deciding this case. Both these R.S.As. are accordingly dismissed leaving the parties to bear their own costs. H.B.T./M‑420/L Appeal dismissed.