2021 PLP 447 (MLD)

ALI BAIG, J.

Through the instant Civil 1st appeal, the appellants/plaintiffs have called-in-question the validity and propriety of the impugned judgment/decree dated 28-4-2018, passed by Mr.Mohammad Sharif, Senior Civil Judge Gilgit in Civil Suit No.134/2008, whereby, the learned trial court has dismissed the suit of the present appellants/plaintiffs.

2. Brief facts giving rise to the institution of this civil 1st appeal are that the appellants/plaintiffs instituted a civil suit for declaration, permanent injunction and cancellation of certain mutations in respect of suit land fully described in the head note of plaint against the present respondents/defendants in the trial court claiming that the appellants/plaintiffs being purchaser of suit land are owners of suit land measuring 11 kanals, suited at Sakwar Gilgit. The suit land was sold out by the present respondent No.1 to respondents Nos.2 and 3 through fake and fraud power of attorney prepared by the respondent/defendant No.1 namely Karimullah Baig and mutations of said suit land have been attested in favour of respondents/defendants Nos.2 and 3 through fraud and misrepresentation which are illegal, ineffective against the rights of the appellants/plaintiffs and which are liable to be cancelled.

3. The respondents/defendants Nos.1 to 3 contested the suit by way of filling their joint written statement in the trial court wherein they have raised certain legal objections and have also repudiated the averments of plaint. The present respondents/defendants Nos.4, 5 and 8 have also contested the suit by filing their joint written statement in the trial court, wherein, they have also raised certain legal objections and have denied the claim of the appellants/plaintiffs by asserting/pleading that the suit land is khalisa sarkar and all mutations in respect of suit land were illegally attested which have already been cancelled by the competent authority.

4. Out of divergent pleading of parties, the learned trial court has framed the following issues:--

5. After framing of the above-mentioned issues, the learned trial court directed the parties to adduce their respective evidence as they wished to adduce. Accordingly, the appellants/plaintiffs have got recorded their statement through appellant/plaintiff No.1 namely Sher Zaman and have produced two copies of power of attorneys, Exh.P/1 and Exh.P/2. Except recording statement of one of the appellants/plaintiffs, the appellants/plaintiffs have not produced a single witness in support of their claim.

6. Whereas the respondents/defendants Nos.1 to 3, 6 and 7 have produced 6 (six) oral witnesses besides recording of their statement through respondent/defendant No.1. The respondents/defendants Nos.1 to 3, 6 and 7 have also produced documentary evidence Exh. D/1 to D/31. Likewise, respondents/defendants Nos.4, 5 and 8 got recorded their statement through departmental representative namely Amjad Qureshi, Nabib Tehsildar and have not produced any oral and documentary evidence in the learned trial court.

7. On conclusion of trial, the learned trial court after hearing arguments on behalf of the parties has dismissed the suit of the appellants/plaintiffs vide impugned judgment/ decree dated 28-4-2018, hence this civil 1st appeal.

8. The learned counsel appearing on behalf of appellants/plaintiffs contended that the impugned judgment/decree passed by the learned trial court is contrary to law and facts on the record of the case, as such the impugned judgment/decree passed by the learned trial court is not maintainable and liable to be set aside. The learned counsel for the appellants/plaintiffs further argued that the impugned/judgment/decree passed by the learned trial court is result of misreading and non-reading of evidence of the parties. The learned counsel for the appellants/plaintiffs further argued that the learned trial court has failed to apply its judicious mind while passing the impugned decree and has arrived at wrong conclusion, hence the impugned judgment/decree passed by the learned trial court is not sustainable in the eye of law and liable to be set aside.

9. On the other hand, the leaned counsel for the respondents/defendants and Additional Advocate General controverted the arguments advanced by the learned counsel for the appellants/plaintiffs and supported the impugned judgment/decree passed by the learned trial court by contending that since the appellants/plaintiffs have failed to prove their claim by adducing reliable evidence in the trial court, therefore, the learned trial court has rightly dismissed the suit of the appellants/plaintiffs vide the impugned judgment/decree. The learned counsel for the respondents/defendants further argued that except recording statement of one of the appellants/plaintiffs namely Sher Zaman, the appellants/plaintiffs have not produced a single oral or documentary evidence in the trial court. Hence, the learned trial court has rightly dismissed the suit of appellants/plaintiffs as the appellants have miserably failed to prove their case/claim.

10. We have heard the learned counsel for the parties at considerable length and have gone through the record with their able assistance.

11. It is the case of appellants/plaintiffs that the respondent/defendant No.1 namely Karimullah Baig, who was employee/servant of father of the appellants/plaintiffs, has managed and got prepared fake general power of attorney in the name of appellant/plaintiff No.1 on behalf of the appellants/plaintiffs Nos.2 to 6 vide Exh.P/1 dated 03-12-2004, which was got registered on 22-12-2004. On the basis of said alleged fake/fictitious general power of attorney, the respondent/defendant No.1 alienated/sold-out the suit land to the respondents/defendants Nos.2 and 3 vide mutation Exh.D/2 attested on 29-5-2006. It is further averred/asserted in the plaint that the suit land was alienated to the respondents/ defendants Nos.2 and 3 by the respondent/defendant No.1 through fake power of attorney, therefore, the said fictitious/ fake power of attorney and mutations D/2 to D/4 are liable to be cancelled.

12. In order to substantiate their claim, the appellants/ plaintiffs have not produced a single oral or documentary evidence in the learned trial court except recording of statement of appellant/plaintiff No.1 namely Sher Zaman, who has produced the alleged fake general power of attorney, Exh. P/1, in the learned trial court. Whereas, the respondents/ defendants Nos.1 to 3 have produced reliable, convincing and cogent oral as well as documentary evidence in the learned trial court to rebut claim of the appellants/plaintiffs. The appellants/plaintiffs were required under law to prove their case/claim that the respondent/defendant No.1 has got prepared fictitious/fake general power of attorney in the name of appellant/plaintiff No.1 on behalf of appellants/plaintiffs Nos.2 to 6 by producing credible evidence in the trial court, but the appellants/plaintiffs have failed to do so.

13. It is well settled principle of law that the appellants/ plaintiffs must prove their case on the strength of their own evidence and cannot take advantage of the shortcoming of respondents/defendants' case. It is also an established principle of law that a person asserts/alleges a particular fact and wants the court to believe that such fact exists, he shall be required to prove the existence of such a fact. In the instant case, the appellants have not been able to prove successfully that the respondent/defendant No.1 had got prepared fictitious power of attorney and sold the suit land on the basis of said general power of attorney to the respondents/defendants Nos.2 and 3.

14. We are fortified in our view by the following reported judgments of superior courts:- 2004 CLC 1010 PLD 2003 Peshawar 49.

15. We have also gone through the impugned judgment/decree passed by the learned trial court and found that the learned trial court has minutely examined the entire evidence and has arrived at correct conclusion after taking into account pro and contra evidence. No misreading or non-reading of evidence pointed out by the learned counsel for the appellants/plaintiffs during his lengthy and exhaustive arguments.

16. For the reasons recorded above, this civil 1st appeal being devoid of any force is dismissed. Parties are left to bear their own costs. File. SA/138/GB Appeal dismissed.