PLJ 2023 Lahore 39
Specific Relief Act, 1877 (I of 1877)--
----S. 12--Civil Procedure Code 1908, S. 115--Suit for specific performance--Decreed--Concurrent findings--Agreement to sell--General power of attorney--Exect whereabout of suit property were not mentioned in GPA--Doubtful transaction--Producing of photocopy of GPA--Plaintiff was failed to cross-examine witness on this particular deposition wherein he specifically stated that his father did not give any authority to defendants to for execution of agreement to sell--Where a portion of statement of a witness was not cross-examined then failure to cross-examine would amount to admission of said facts--Neither exact whereabout of suit property owned by Abdullah were specifically mentioned in GPA nor any authority for execution of agreement to sell was given to agent--This fact alone makes transaction doubtful--It is settled principal of law that there must not be any uncertainty or vagueness in power-of-attorney--Plaintiff produced copy of power-of-attorney as Exh.P-7 without proving non-availability of original and seeking permission for producing of secondary evidence--Defendant No. 1 has no authority to execute agreement to sell in favour of plaintiff on strength of power-of-attorney--Courts below have acted with material irregularity in exercise of their jurisdiction--Civil revision allowed. [Pp. 53, 55 & 62] A, B, C, D, E, F
PLD 1985 SC 341, 1992 SCMR 1488, 2001 SCMR 1700,
PLD 2002 SC 71 and PLD 2005 SC 418 ref.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional jurisdiction--If Courts below acted with material irregularity and legal infirmity, High Court while exercising revisional jurisdiction conferred under Section 115 of Code of Civil Procedure, 1908, can take cognizance of matter. [P. 63] G
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Exercising of jurisdiction--Revisional jurisdiction of High is invoked only in cases of exercise of jurisdiction by lower Courts not vested in them by law or Court had failed to exercise Jurisdiction so vested or jurisdiction was exercised in an illegal manner or that some material irregularity was committed--High Court must interfere in the matter in its revisional jurisdiction and correct the illegality committed by the subordinate Courts. [P. 63] H & I
1994 SCMR 818 and 2014 SCMR 914 ref.
Syed Tajamal Hussain Bukhari, Advocate for Petitioners.
Mr. Muhammad Iqbal Gabol, Advocate for Respondents.
Date of hearing: 29.6.2022.
PLJ 2023 Lahore 39
[Multan Bench, Multan]
Present: Ahmad Nadeem Arshad, J.
MUHAMMAD ASHRAF (deceased) through L.Rs., and etc.--Petitioners
versus
MUHAMMAD YOUSAF, etc.--Respondents
C.R. No. 225-D of 2002, decided on 29.6.2022.
Judgment
Through this Civil Revision, petitioners/legal heirs of Muhammad Ashraf son of Abdullah assailed the judgments and decrees dated 05.02.1989 and 15.01.2002 whereby suit for specific performance of agreement to sell instituted by Respondent No. 1/plaintiff namely Muhammad Yousaf was decreed, concurrently, by the learned Courts below.
2. Inessential details apart, Respondent No. 1/plaintiff namely Muhammad Yousaf son of Muhammad Ismail (hereinafter referred to as plaintiff) instituted a suit for specific performance of an agreement to sell dated 10.01.1979 against Abdullah (hereinafter referred to as Abdullah), Muhammad Ali (hereinafter referred to as Defendant No. 1) and Muhammad Ashraf predecessor of the petitioners (hereinafter referred to as Defendant No. 2) on 01.09.1979 with the contention that suit property measuring 32 kanals belonged to Abdullah, who appointed Defendant No. 1 as his general attorney via registered general power-of-attorney dated 01.08.1962, whereby, he gave him full authority to transfer the suit property; that the suit property was already mortgaged with him through registered mortgaged deed No. 1992 dated 30.06.1977; that Defendant No. 1 being general attorney of Abdullah made contract with him regarding sale of the suit property for a total consideration of Rs. 112,000/- vide agreement to sell dated 10.01.1979 whereby it was settled that after deducting Rs. 40,000/- as mortgage money remaining consideration amount of Rs. 72,000/- was to be paid; that Rs. 60,000/- were paid in presence of the witnesses through receipt dated 10.01.1979 and remaining consideration amount Rs. 12,000/- was agreed to be paid at the time of attestation of sale deed; that date for performance of the agreement to sell was settled as 05.08.1979; that plaintiff remained ready to fulfill the settled conditions of agreement to sell and he also gave a notice in this regard on 01.08.1979 to Abdullah Defendants No. 1; that the defendants have conspired with each other to damage his rights and Abdullah allegedly transferred the suit property through Tamleek in the name of Defendant No. 2; that the said Tamleek is against facts and law, result of fraud and mis-representation liable to be cancelled; that the plaintiff always remained ready to perform his part of contract but defendants failed to abide by their commitment which constrained him to institute the suit in hand. Abdullah son of Kalo (Defendant No. 1 in the initial plaint) and Defendant No. 2 (Muhammad Ashraf son of Abdullah) filed joint contesting written statement on 21.11.1979 whereby they raised preliminary objections that suit had been instituted by the plaintiff on the instigation of Defendant No. 1 (Muhammad Ali) with mutual collusiveness; that plaintiff has no locus standi to institute the suit as Abdullah transferred the suit property through registered Tamleek deed dated 07.07.1979 in favour of his sons and daughters i.e. Defendant No. 2, Ghulam Nabi and Karim Khatoon; that plaintiff with connivance of Defendant No. 1 got prepared the said agreement to sell after 07.07.1979 which is ante-dated and stamp paper used for this purpose was also obtained after execution of the Tamleek deed which is also ante-dated; that suit is bad for non-joinder of Ghulam Nabi and Karim Khatoon. While giving reply to the facts, maintained that Abdullah, who was owner of the suit property, transferred the same through Tamleek in favour of Defendant No. 2, Ghulam Nabi and Mst. Karim Khatoon; that Abdullah appointed Defendant No. 1 as his attorney in the year 1962 for allotment of land and recovery of share produce and he was not given any authority for alienation of the suit property; that he cancelled the said general power-of-attorney through cancellation deed (Abtal nama); that agreement to sell is forged, fictitious, without authority, result of collusiveness, therefore, has no force; that all receipts of money are forged and fictitious and no consideration amount was passed on/paid to Abdullah and prayed for dismissal of the suit. After submission of said written statement Mst. Karim Khatoon moved an application on 26.11.1979 for her impleadment as a party in the suit, whereas, plaintiff also moved an application for impleading of Ghulam Nabi and Mst. Karim Khatoon as a party. Learned trial Court allowed said application on 20.01.1980. Plaintiff with the leave of Court impleaded Ghulam Nabi and Mst. Karim Khatoon as party in the array of defendants and filed amended plaint on 04.02.1980. Meanwhile, Abdullah (Defendant No. 1 in the original plaint and amended plaint dated 04.02.1980) was died and fresh amended plaint was filed on 15.09.1980 by impleading all his legal heirs i.e. Muhammad Ali as Defendant No. 1, Muhammad Ashraf as Defendant No. 2, Ghulam Nabi as Defendant No. 3, Haider Ali as Defendant No. 4 and Mst. Karim Khatoon as Defendant No. 5 in the plaint as a party. Through this amended plaint confusion ensued as number allocated to the defendants were changed by plaintiff. To avoid any further confusion, Abdullah (Defendant No. 1 in the initial plaint) was referred by his name and rest of defendants were referred to as numbered in the last amended plaint dated 15.09.1980. Defendant No. 1 (Muhammad Ali), Defendant No. 4 (Haider Ali) and Defendant No. 5 (Mst. Karim Khatoon) filed contesting written statement on 25.11.1980 with a preliminary objection that plaintiff is estopped to institute the suit by his own words and conduct, however admitted the execution of agreement to sell with the assertion that the plaintiff himself violated the terms and conditions of the same and he himself cancelled it, and maintained that Abdullah transferred the suit property to Defendants No. 2, 3 & 5 through Tamleek, prayed for dismissal of the suit. Defendant No. 2 (Muhammad Ashraf) and Defendant No. 3 (Ghulam Nabi), beneficiary of the Tamleek filed contesting amended written statement on 25.11.1980 whereby they reiterated the same averments as pleaded by Abdullah and Defendant No. 2 in their earlier joint written statement dated 21.11.1979. The learned trial Court keeping in view the divergent pleadings of the parties framed necessary issues as follows: -
ISSUES:
1. Whether the suit is collusive and is filed at the instance of Defendant No. 2? If so, its effect? OPD.
2. Whether the plaintiff has no locus standi in view of the preliminary objection No. 2? OPD.
3. Whether the suit is bad for non-joinder of necessary parties? OPD.
4. Whether the Defendant No. 2 was a general attorney of Defendant No. 1? OPP.
5. If issue No. 4 is proved whether Defendant No. 2 has power to alienate the suit land?OPP.
6. Whether Defendant No. 2 as “Mukhtar Aam” of Defendant No. 1 has validly executed an agreement to sell dated 10.1.79 in favour of plaintiff by receiving Rs. 60,000/-? OPP.
6-A Whether plaintiff is estopped to sue due to his acts and conduct? OPD.
6-B. Whether the plaintiff is entitled to a decree for Specific Performance? OPP.
7. Relief.
Parties were invited to produce their respective evidence. Plaintiff got examined Ghulam Nazak son of Mian Azeem Bukhsh scriber of agreement to sell (Exh.P.1) as PW-1, Ghulam Farid one of the attesting witness as PW-2 and Muhammad Yousaf plaintiff examined himself as PW-3. He also produced agreement to sell dated 10.01.1979 as Exh.P-1, receipt dated 10.01.1979 as Exh.P-2, copy of record of right for the year 1971-72 as Exh.P-3, copy of Khatoni as Exh.P-4, copy of cancellation deed (Abtal Nama) as Exh.P-5 and copy of registered Tamleek deed as Exh.P-6 and in rebuttal evidence, produced copy of khasra girdwari from Kharif 1983 to Rabi 1987 as Exh.P-6 (wrongly allocated the same number of Exh.P-6 as it was already allocated to copy of registered Tamleek deed), and copy of general power-of-attorney from Abdullah in favour of his son Defendant No. 1 dated 02.08.1962 as Exh.P-7. On the other hand, the defendants got examined Qasim Hussain Casher/Treasurer as DW-1, Muhammad Ashraf (Siah Navees/Moharrir) as DW-2. Thereafter, learned Trial Court recorded evidence of Riaz Hussain son of Muhammad Ramzan and Muhammad Ashraf Defendant No. 2 but inadvertently numbered them as D.W.1 & D.W.2 respectively instead of D.W.3 & D.W.4, Defendant No. 1 got recorded his statement on 16.09.1987 (inadvertently shown as Defendant No. 3 whereas he was Defendant No. 1, without assigning him any number as DW). Defendants No. 2 & 3 moved an application for summoning of Azeem Bakhsh alleged stamp vendor as Court witness (CW) on 15.09.1982 which was allowed on 22.01.1983. The Court summoned him and recorded his statement as CW-1. After conclusion of trial, the learned trial Court vide judgment and decree dated 05.02.1989 partially decreed the suit after deducting 03 kanals 08 4/7 marlas from the total suit property measuring 32 kanals. Feeling aggrieved, Defendant No. 2 preferred an appeal whereas plaintiff also filed cross-objections. The learned appellate Court vide order dated 19.10.1991 concluded that mortgage deed No. 1992 dated 30.06.1977 is a material document which is available on record in original but it should be brought on record through proper procedure and after framing of additional issue in this regard (Whether Muhammad Ali as general attorney of Abdullah deceased defendant validly mortgaged the land belonging to Abdullah in favour of Muhammad Yousaf plaintiff after receiving
Rs. 40,000/-, if so, its effect?), set-aside the impugned judgment and decree and remanded the matter to the learned trial Court for decision afresh after recording further evidence on the newly framed issue. Feeling distressed, plaintiff filed first appeal against order (F.O.A. No. 56 of 1999) which was allowed by this Court vide judgment dated 13.04.2000 and set-aside the order dated 19.10.1991, resultantly appeal as well as cross-objection deemed to be pending before the Appellate Court who shall be directed to decide the same afresh in accordance with law. The learned appellate Court vide judgment and decree dated 15.01.2002 dismissed the appeal of the Defendant No. 2, whereas allowed the cross-objection of plaintiff and decreed his suit in toto. Feeling dissatisfied, the petitioners-legal heirs of Muhammad Ashraf Defendant No. 2 filed instant revision petition by challenging the aforementioned judgments and decrees.
3. This Court vide order dated 18.05.2015 proceeded ex-parte against the respondents except Respondents No. 2(h), 4 & 6. Through C.M. No. 2217-C/2021 a permission was sought to bring on record legal heirs of Respondents No. 1, 2-H, 3,4 & 6 which was allowed on 20.09.2021. Notices were issued to the newly added legal heirs of above referred respondents. Mr. Muhammad Iqbal Gabol, Advocate submitted power-of-attorney on behalf of Respondents No. 1(a) to 1(i)/legal heirs of plaintiff, however, no one appeared on behalf of rest of the respondents despite their due service, therefore, ex-parte proceedings are going to be initiated against rest of respondents. The suit of the plaintiff was decreed in his favour and after his demise his legal heirs were brought on record, duly represented through their counsel, who are the main contestants, therefore absence of the rest of respondents and ex-parte proceedings does not effect the merit of the case and there is no bar to hear the revision petition on merit which is pending since 2002.
4. I have heard the learned counsel for the parties at full length and perused the record with their able assistance.
5. The plaintiff and Defendant No. 1 are not at issue with regard to execution of the agreement to sell, therefore, it is well entrenched proposition of law that admitted facts need not to be proved. The controversy is that whether said agreement to sell is free from any collusion, executed on the date shown upon it and the Defendant No. 1 has authority to execute the said agreement to sell
in favour of plaintiff. Now I discuss both the controversies one by
one.
6. Abdullah and his son Defendant No. 2 in their written statement raised a preliminary objection to the effect that plaintiff and Defendant No. 1 by conniving with each other prepared the agreement to sell after 07.07.1979 which is ante-dated. Stamp paper used for writing of said agreement to sell was also obtained after 07.07.1979, wrongly shown its ante-dated purchase and alleged that said agreement to sell is result of collusion, prepared ante-dated and suit was instituted collusively at the instance of Defendant No. 1. The exact wording of the written statement is as under:
" یہ کہ دعوی ہذا مدعی نے مد عاعلیہ نمبر 2 کے ایما پر دائر کیا ہوا ہے۔ کیونکہ مد عاعلیہ نمبر 2 نے آپس میں ساز باز کی ہوئی ہے ۔"
" یہ کہ مدعی اور مدعا علیہ نمبر 2 نے آپس میں ساز بار کر کے معاہدہ بیع متد عویہ مورخہ 7.7.79 کے بعد تحریر کرایا ہے اور معاہدہ مذ کور پر پہلے کی تاریخ ڈالی گئی ہے ۔ نیز معاہد ہ مذکور کی تحریر کیلئے جو اسٹامپ حاصل کیا گیا وہ بھی در حقیقت مورخہ 7.7.79 کے بعد حاصل کیا گیا تھا۔ اور اس پر خلاف حقائق پہلے کی تاریخ ڈالی گئی ہے ۔"
Whereas the plaintiff asserted that agreement to sell was rightly executed by Defendant No. 1 on 10.01.1979. The learned trial Court in the light of said controversy framed Issue No. 1 (Whether the suit is collusive and is filed at the instance of Defendant No. 2? If so, its effect? OPD) and placed its onus of proof upon defendants. Although, learned Trial Court failed to frame any issue with regard to the said agreement to sell, whether it is ante dated or not but as the parties were well aware in respect of the controversy present between them and produced their entire evidence in support of their version, so, no need to frame any additional issue at this stage and put the parties to a denovo trial by remanding the matter as Issue No. 1 covers the controversy to some extent. The learned trial Court decided issue No. 1 against the defendants which finding was upheld by the learned appellate Court.
7. The stamp paper used for writing of agreement to sell was shown to be purchased from Azeem Bakhsh stamp-vendor on 10.01.1979, whereas Defendant No. 2 claimed that said stamp paper was obtained from Jamal Khan stamp-vendor as Azeem Bakhsh was not stamp-vendor at that time. Qasim Hussain, Treasure Ali Pur appeared as DW-1 who deposed that according to their record Azeem Bakhsh stamp-vendor did not purchase stamps since 10.09.1977. During cross-examination he deposed that the stamp-vendor can keep stock of already purchased stamps and has shown possibility that stamp paper dated 10.01.1979 may be already purchased stamp with the stamp vendor, however, on Court’s question he deposed that there is neither any record of stamp paper of Exh.P-1 nor any entry is present in this regard in the register. Muhammad Ashraf (Siah Navees/Moharrir) appeared as DW-2 and deposed that no money/amount was deposited in the treasury by Azeem Bakhsh stamp vendor for obtaining or purchase of stamp papers since 10.09.1977. On Court query he clarified that the stamp vendor’s register can tell that when he lastly purchased the stamp paper and when his purchased stock was finished. He further clarified on Court’s question that Azeem Bakhsh left the profession of stamp vending in the year 1977 due to ailment. Stamp vendor Azeem Bakhsh got recorded his statement as CW-1 and deposed that he remained stamp vendor for few days, then voluntarily said, for eight to nine months. He also maintained that when his license was finished he immediately deposited his register. Voluntarily said that his license was not finished but he himself resigned. He also deposed that in the year 1966 he got the license and resigned in 1967 and after 02/03 days of resignation he deposited the register. He deposed that he did not made any entry of stamp paper in the register with his own hand-writing, and it was entered by his agent. He clarified that after completion of register, the same was submitted in the office. During cross-examination, he denied the suggestion as incorrect that he was stamp vendor in the year 1979 and used to sell stamp paper. While answering to a question he deposed that after resignation he deposited all the un-used stamp papers and no stamp paper was left with him. He admitted that his son Nazak works as deed writer in Alipur Courts. He said that as on Exh.P-1 signature of Nazak is present, therefore, it may be in his hand-writing. He showed his ignorance that any other person can prepare stamp or not. He said that he had no need to keep the stamp after resignation. He also deposed that Nazak resided with him in his house. He also suggested it incorrect that he used to sell the stamps after resignation. He deposed that he did not remember, whether his agent had deposited any remaining stamp paper after his resignation or not. Voluntarily said what was the point of keeping it by him. He also deposed that the date of Exh.P-1/G, shown to him as 1979, cannot be in his hand-writing. He also said that it is correct that when his approved agent asked him to make signatures, he put his signatures. The exact deposition in verbatim is as under:
" میں اشٹام فروش بھی رہا ہوں کچھ دن رہا ہوں۔ پھر کہا 8 ، 9 ماہ اشٹام فروشی کا کام کیا تھا۔۔۔۔۔۔ میں اشٹام خود اپنے ہاتھ سے رجسٹر میں درج نہ کر تا تھا بلکہ میر اکار ندہ محبوب الحسن درج کر تا تھا جو کہ منظور شدہ تھا۔ میں نہیں بلکہ میر اکار ندہ ہی رجسٹر میں فروختگی اشٹام کا اندراج کیا کر تا تھا۔ رجسٹر ختم ہونے پر داخل دفتر کر ادیا کر تا تھا۔ جب میرا لائسینس ختم ہوا تو اپنار جسٹر فوری طور پر داخل کرادیا تھا۔ درست ہے کہ لائسینس ختم ہونے کے بعد میں رجسٹر میں کسی قسم کا اندراج بعد میں نہ کر سکتا تھا۔ از خود کہا کہ میرا لائسینس ختم تو نہیں ہوا تھا۔ میں نے خود استعفے دیا تھا۔ میں نے 1966 کے درمیان میں لائسینس لیا تھا۔ 1967 کے درمیان میں استعفے دے دیا۔ استعفے دینے کے دو، تین دن کے اندر اندر رجسٹر جمع کرادیا تھا۔ استعفے ضعیف العمری کی وجہ سے دیا تھا۔ میں وہ رجسٹر ساتھ نہ لایا ھوں وہ تو 1967 سے داخل دفتر ھے۔ 1967 سے میں گھر میں رہتا ہوں۔۔۔۔۔۔۔۔۔۔ (گواہ کی حالت ایسی ھے کہ اسے لوگوں نے اور بیلف نے پکڑ کر عدالت میں کھڑا کر رکھا ھے اور اب وہ کھڑا بھی نہ ھو سکتا ہے اور مجبوراً کرسی پر بٹھا دیا گیا ھے)۔۔۔۔۔۔۔۔۔۔ درست ہے کہ جو اشٹام بیچتا تھا اسکا اندراج رجسٹر میں کیا جا تا تھا۔۔ درست ھے کہ میں دستخط انگریزی میں کرتا تھا۔ یہ درست ہے کہ مجھے جو دستخط دکھائے گئے ہیں وہ دستاویز 1 .Exh.P پر Exh.P.1/D اور Exh.P. 1/E میرے دستخط ہیں۔ ۔۔۔۔۔۔ غلط ھے کہ 1979 میں میں اشٹام فروش کر تا تھا اور میں اشٹام بیچتا تھا۔۔ ۔۔۔۔۔۔ درست ھے کہ مجھے منظور شدہ کارندہ جو کہتا تھا کہ دستخط کر دو میں دستخط کر دیتا تھا۔۔ ۔ استعفے کے بعد تمام اشٹام داخل دفتر کر دیے تھے میرے پاس کچھ نہ بچے تھے۔ پھر از خود کہا کہ مجھے علم نہ ھے شاید ایک آدھ بچ گیا ھو۔ میں نے 1982 میں آپریشن کرایا اس وقت سے میری بصارت کم ھے ۔۔۔۔۔۔۔۔۔۔ میں یہ بھی نہ بتا سکتا ہوں کہ اشٹام کے سامنے اور پشت کی تحریر ایک ہی ہاتھ کی لکھی ھے یا مختلف ہیں۔ درست ھے کہ نازک میر اپسر ھے۔ درست ھے کہ وہ کچہری علی پور میں وثیقہ نویسی کا کام کر تا ھے۔ 1 .Exh. P پر دستخط چونکہ نازک کے ہیں اسلئے اس کی تحریر ہے ۔ مہر بھی داخل دفتر ہو چکی تھی۔ جب استعفے دیا تھا۔ علم نہ ھے کہ اس نام کی مہر کوئی دوسرا بھی بنا سکتا ھے یانہ ۔ مجھے کیا ضرورت تھی کہ میں استعفے کے بعد اپنی مہر پھر استعمال کر تا از خود کہا کہ فراڈ کسی نے کیا ھو تو علم نہ ہے۔ نازک میرا بڑا لڑکا ھے اور میرے ساتھ ایک ہی مکان میں رہتا ھے ۔۔۔۔۔۔۔۔۔۔ یاد نہ ھے کہ میرے کارندہ نےاشٹام اگر کوئی بچ گیا ھو تو جمع کرادیا تھا یا نہ۔از خود کہا اسے رکھنے کا کیا فائدہ تھا۔ غلط ھے کہ 80-1979 تک میرے کارندہ نے اشٹام داخل نہ کئے اور اپنے پاس رکھے تھے ۔ مجھے جو تاریخ Exh. P.1/G دکھائی گئی ھے وہ 1979 کی ھے اور میری تحریر کر دو نہ ھو سکتی ھے ۔ یہ 12/11 سال کی بات ھے واللہ علم اب صحیح یاد نہ ھے کہ اشٹام کارندہ کے پاس تھے یا نہ۔ اس وقت مجھے ہوش ھے اور میں حلفا "بات کہہ رہا ھوں۔"
The learned Courts below were much impressed on his admission whereby on a suggestion he said that it is correct that the signatures shown to him on Exh.P-1 as Exh.P-1/D and Exh.P-1/E are his
own signatures, but failed to consider his age who was 87 years old at the time of said cross-examination and his deposition that in the
year 1982 he got operated his eyes and since that time his eye-sight is weak.
8. Riaz Hussain (DW-1) deposed that he knew Mureed Hussain deed writer as he works with him. He deposed that he knew Muhammad Ali and Muhammad Yousaf who came before Mureed Hussain in his presence and asked him for writing of an agreement to sell. Murred Hussain, who was patient of asthma said that since he was not free, so, to get it write from any one else and then they went to Nazak. It was month of July. During cross-examination, he clarified that it was last week of July and date was 25. Stamp paper was obtained from Jamal Khan. He answered to a question that Jamal Khan is alive. He was not put any suggestion that stamp paper was not purchased from Jamal Khan and it was not month of July. During cross-examination he deposed that agreement was written by Nazak as he saw them in his chamber. He admitted it correct that father of Nazak was remained stamp vendor at one time. Defendant No. 2 (DW-2) deposed that after cancellation of power-of-attorney agreement to sell was got written antedated fraudulently. Stamp was purchased from Jamal Khan and made entry of antedate on it. He specifically deposed that said agreement to sell was prepared antedated. He also deposed that Azeem Bakhsh alleged stamp vendor while recording his statement admitted that he did not issue the stamp paper for writing of agreement to sell and he resigned from stamp-vendoring in the year 1966. During cross-examination deposed, it was told by plaintiff that Defendant No. 1 purchased stamp paper from Jamal Khan. Ghulam Farid one of the attesting witnesses of agreement to sell appeared as PW-2. During cross-examination he deposed that stamp was purchased from Siah Navees. Plaintiff (PW-3), during cross-examination deposed that he and Muhammad Ali both had gone to Siah Navees for obtaining the stamp paper. He himself gave stamp paper to them and said stamp paper was not obtained from treasury. Then he inquired who is called Siah Navees, and subsequently replied that stamp paper was obtained from stamp vendor. He admitted that stamp paper was purchased from Jamal stamp vendor. He deposed that he is knowing and watching Jamal Khan for last 02/3 years in the Tehsil. After purchase of stamp paper, they came to Nazak for writing of agreement to sell. His exact deposition in verbatim is as under:
"میں اور محمد علی دونوں اشٹام لینے گئے تھے۔ سیاہ نولیس کے پاس گئے تھے۔ اس نے اشٹام پاس سے ہی نہ کہ خزانہ سے نکلوا کر دیا تھا۔ مکرر گواہ نے دریافت کیا کہ سیاہ نو لیس کیا ہو تا ہے مکر رکہا اشٹام فروش سے لیا تھا۔ "
"جمال اشٹام فروش سے اشٹام لیا تھا۔ جو برادر اسحاق پٹواری ہے۔ علم نہ ہے کہ وہ پسر چاند خان ہے ۔ اشٹام کے حصول کے بعد نازک کے پاس آگئے تھے جمال کو دو تین سال سے تحصیل میں دیکھ رہا ہوں۔"
Ghulam Nazak deed writer (PW-1) did not say anything that from whom stamp paper was purchased. However, he denied the suggestion that he had got written the stamp paper Exh.P-1 after getting his father’s signature ante dated. He denied the suggestion incorrect that eight and half month before 10.01.1979 his father left stamp vendoring. Defendant No. 1 during cross-examination deposed that Nazak (deed writer) sent his son for bringing the stamp paper from home and his son brought it from his grandfather because he was ill and present at home at that time. He further said that he also accompany him for bringing the stamp paper and he put his thumb impression upon the register. Further deposed that he got stamp paper valuing Rs. 30/- whereas stamp papers of agreement to sell are value of Rs. 20/- and Rs. 10/- and on the back side of it showed value of Rs. 15/- and Rs. 15/- usual stamp paper valuing Rs. 4/- was used for writing of an agreement to sell. Exact deposition in verbatim is as under:
"اشٹام سٹھ بیع نازک کا والد بیمار تھا۔ نازک نے اپنے لڑکے کو بھیجا کہ گھر سے اشٹام لے آیا۔ نازک کالڑ کا اشٹام اپنے دادا سے لے آیا کیونکہ دادا بیمار تھا۔ اشٹام لینے میں ساتھ گیا۔ میرا انگو ٹھار جسٹر پر بھی لگوایا نازک کا لڑکا بھی تھا ساتھ۔ گھر پر اشٹام دیئے ۔ پھر میں تحصیل آگیا۔ نازک کے پاس میں نے تحریر کر وایا۔ تیس روپے کا اشٹام لیا۔"
Plaintiff (P.W.3) stated that he along with Defendant No. 1 purchased stamp paper from Jamal Khan whereas Defendant No. 1 deposed that stamp paper was purchased from Azeem Baksh. Plaintiff stated that he paid price of stamp paper whereas Defendant No. 1 claimed that he paid the price. Plaintiff stated that he and Defendant No. 1 went together for purchase of stamp paper whereas Defendant No. 1 said that he and son of Nazik had gone to purchase the stamp paper. Alleged stamp vendor Azeem Baksh denied issuance of stamp paper but also maintained that he was not stamp vendor in the year 1979. The story narrated by Defendant No. 1 was not corroborated by the witnesses appeared on behalf of the plaintiff which suggest that he concocted a false story regarding purchase of stamp paper which seems to be an afterthought and it proved his collusiveness with plaintiff. Register of stamp vendor was neither tried to be summoned nor produced in evidence, which established that stamp paper was not entered in any register. Said depositions of the witnesses clearly suggests that a blank stamp paper was used for preparing the agreement to sell which was purchased from Jamal Khan and for making it ante-dated name and stamp of Azeem Bakhsh was used who was not stamp vendor in the year 1979. The learned Courts below ignored the fact that when Azeem Bakhsh was not stamp vendor in the year 1979 how can he issued stamp paper for execution of an agreement to sell and how his admission with regard to his signatures upon the stamp paper made it a validly issued stamp paper. The learned Courts below mis-read and non-read the evidence of both parties and had drawn a wrong conclusion.
9. Abdullah gifted the suit property to Muhammad Ashraf, Ghulam Nabi and Mst. Karim by excluding Muhammad Ali and Haider Ali. From scanning the whole record, it appears that due to this grudge Muhammad Ali joined hands in gloves with Muhammad Yousaf plaintiff for preparing an ante-dated agreement to sell to deprive the donees from the fruit of gift made by their father. The suit was not contested by Muhammad Ali, Haider Ali and Mst. Karim rather they admitted the execution of agreement to sell in their written statement.
Displeasure and angriness came on the surface during cross-examination, when Defendant No. 1 deposed that Defendant No. 2 brought his father to Tehsil and got transferred the suit property in his name through Tamleek. Further deposed that he and his brother Haider Ali were also entitled but they had not given their share. This deposition clearly suggests that he was not happy with the Tamleek of the suit property to Defendants No. 2, 3 & 5 wherein he and his brother Haider Ali were deprived from the suit property. The exact deposition is as under:
"اشرف تحصیل میں میرے والد کو لے آئے اور اس سے تملیک کرائی تھی۔ میرا حق بھی بنتا تھا اورمیرے دوسرے بھائی حیدر علی کا حق بھی بنتا تھا۔"
"مجھے اور حیدر علی کو حصہ نہ دیا گیا۔"
"اس میں میرے اور بھائی کا حق بھی تھا۔"
Now question arises, Muhammad Ali and Haider Ali were angry being deprived from the suit property by their father Abdullah but why Mst. Karim Khatoon admitted the claim of plaintiff and he made admission against her interest by conceding execution of the agreement to sell. This question was answered during the pendency of appeal when Defendant No. 2 moved an application for impleading Mst. Noor Bibi daughter of Muhammad Shahzad wife of Muhammad Yousaf as party in the appeal. In the said application, he maintained that during the proceedings of suit, Mst. Karim Khatoon alienated the properties which she obtained through tamleek Mutation No. 3004 and inheritance Mutation No. 3007 via agreement to sell dated 19.06.1980 to Mst. Noor Bibi and thereafter got executed sale deed No. 1392 on 08.06.1981. On the basis of said sale deed Mutation No. 306 was sanctioned on 28.06.1984. Meaning thereby, Mst. Karim Khatoon Defendant No. 5 agreed to alienate the properties obtained through tamleek and inheritance to the wife of plaintiff Muhammad Yousaf before filing of her written statement. This transaction of sale from Defendant No. 5 in favour of plaintiff’s wife showed that plaintiff not only accepted/admitted the execution of tamleek in favour of Mst. Karim Khatoon, Muhammad Ashraf and Nabi Bakhsh but he himself negated the factum of agreement to sell allegedly executed in his favour by purchasing the same property from Defendant No. 5 in the name of his wife. If any agreement to sell (Exh.P-1) with regard to suit property was genuinely existed in his favour, then why he again purchased it from Mst. Karim Khatoon Defendant No. 5 through his wife Mst. Noor Bibi. The facts and circumstances as well as evidence discussed supra make the agreement to sell doubtful and seems to be result of collusiveness. The findings of Courts below upon Issue No. 1 are not sustainable.
10. Plaintiff claimed that Defendant No. 1 was valid attorney of Abdullah and he has authority to alienate the suit property and on the strength of said authority he got executed the agreement to sell whereas the defendants (Abdullah and Muhammad Ashraf) denied this fact by alleging that the said attorney was appointed only for allotment of lands and recovery of share produce and he was not given any authority to further alienate the suit property. The controversy emerged was covered by the learned Trial Court through formulating Issue No. 5 (If Issue No. 4 is proved whether Defendant No. 2 has power to alienate the suit land? OPP) and decided the same in favour of plaintiff which was upheld by the learned appellate Court.
11. Abdullah and Defendant No. 2 pleaded in their written statement while giving reply to Para No. 2 of the plaint that Abdullah appointed Defendant No. 1 as his attorney in the year 1962 for the allotment of lands and recovery of share produce and he was not given any authority to alienate the suit property. Exact wording are as under:
ضمن نمبر2غلط ہے مد علیہ نمبر1نے سال 1962 میں مد علیہ نمبر 2 کو مختار عام براۓ الا ٹمنٹ اراضیات و حصول پیدوار مقرر کیا تھا مد علیہ نمبر 2 اراضی متد عویہ منتقل کرنے کا اختیار نہیں تھا مگر مد علیہ نمبر 1 نے مختار نامہ مذکور حسب ضابطہ بذریعہ ابطال نامہ منسوخ کر دیا تھا۔"
The contents of written statement were verified on oath by Abdullah on 21.11.1979 and said verification also contained his thumb impression. The exact wording of verification is as under:
"میں حلفاً بیان کر تا ہوں کہ ضمن نمبر 1 تا4 عذرات ابتدائی و ضمن نمبر 1 تا 10 میرے علم سے وضمن نمبر 11 تا 13 میرے یقین سے صحیح و درست ہیں۔"
Said Abdullah was died during proceedings of the suit before recording his testimony. Defendant No. 2 got recorded his statement as DW-2 whereby while maintaining that his father submitted written statement categorically deposed that his father did not give any authority to Muhammad Ali for execution of agreement to sell of the suit property. His exact deposition is as under: -
"بیان کیا کہ میرے والد کا نام محمد عبد اللہ ہے ۔ وہ76 / 75 سال کی عمر میں فوت ہوئے ۔ پہلے دعویٰ ہذا یوسف نے دائر کیا تھا ہمارے والد کے خلاف۔ میر ا والد حاضر بھی آیا۔ جو اب دعوی میرے والد نے دیا۔ دعویٰ کے دوران فوت ہو گئے۔ مختار نامہ جو محمد علی کو میرے والد نے لکھ کر دیا تھا وہ منسوخ کرا دیا تھا۔ ابطال نامہ لکھا گیا تھا۔ آراضی متد عویہ کا مالک میر اوالد ہے۔ میرے والد نے محمد علی کو اس زمین کا سٹھ بیع لکھ دینے کا اختیار نہ دیا تھا۔"
(Underline was supplied for emphasis)
12. The plaintiff failed to cross-examine the witness on this particular deposition wherein he specifically stated that his father did not give any authority to Muhammad Ali for execution of the agreement to sell. It is settled proposition of law that where a portion of statement of a witness was not cross-examined then failure to cross-examine would amount to admission of said facts. Defendant No. 1 while recording his statement did not utter a single word that through said power-of-attorney his father gave him authority to execute the agreement to sell. Although, during cross-examination from plaintiff’s side he deposed that being attorney he has every right of sale, purchase and gift but that deposition did not give him authority to execute agreement to sell. Similarly, plaintiff while recording his statement as PW-3 did not narrate that Defendant No. 1 was given authority by his father for execution of the agreement to sell and in this way he failed to negate the version of Abdullah and Defendant No. 2. Before further discussion it is better to see the contents of power-of-attorney, which reads as under:
منکہ عبد اللہ ولد کالو قوم ارائیں بعمر ... سال سکنہ موضع بیٹ نبی شاہ تحصیل علی پور کاہوں۔ اقرار کر تا ہوں۔ اور لکھد یتا ہوں۔ برضاور غبت خود بلا جبر و ترغیب کے دوسرے شخص کے اس بات پر جو کہ مظہر کی جائداد زرعی و سکنی وغیرہ اندرون تحصیل علی پور ۔ ضلع مظفر گڑھ ھے ۔ اور اس کا انتظام ہر قسم مجھے کرنا پڑتا ھے ۔ مظہر عمر رسیدہ ھے اور بوجہ تقاضا عمر تمام کاروبار بذات خود سر انجام دینے سے معذور ہوں۔ اس لئے اپنے طرف محمد علی ولد عبد اللہ قوم ارائیں سکنہ موضع بیٹ نبی شاہ تحصیل علی پور پسر خود کو مختیار عام مقرر کر کے اقرار کر تا ہوں۔ کہ مختیار مذکور ہر محکمہ اور عدالت میں میری طرف سے حاضر ہو کر مقدمات ہر قسم جو میری طرف سے دائر ہوں۔ یا میرے خلاف دائر ہوں ۔ پیروی و جو ابد ہی کرے۔ تقر ر و بر طرفی مزارعان وصولی پید اوار و تقسیم اراضیات ۔ حد براری بطور خود یا بذریعہ عدالت کر اسکیگا۔ میری طرف سے دعوی شفع ۔ استقرار حق ۔ د خلیابی۔ بید خلی۔ کنکوت وغیرہ بھی دائر کر کے پیروی و جوابدہی کر سکیگا۔ جملہ عدالت ہائے مال۔ دیوانی۔ فوجداری۔ ریلوے۔ پولیس۔ ڈاک خانہ جات ۔ کیلہ بندی۔ اشتمال۔ بند وبست میں از عدالت ابتدائی تا عدالت اپیل ( ہائی کورٹ مغربی پاکستان و فنانشل کمشنر صاحب ) جملہ دعوی ہائے جو میری طرف سے یا میرے خلاف دائر ہوں۔ حاضر ہو کر پیروی و جو ابد ہی کر سکیگا۔ جملہ دعوی ہاۓ پیداوار ۔ بید خلی۔ د خلیابی۔ استقرار حق۔ شفع میں ڈگری حاصل کرے اور اجرا کر اکر دخل لے سکیگا۔ اور خرچہ بذریعہ قرقی و نیلامی جائداد مدیونان سے وصول کر سکیگا۔ اگر کسی جگہ بولی دینی پڑے تو با اجزت عدالت بولی دے کر میرے نام پر اراضی کر اسکیگا۔ اور انتقالات اراضی ہر قسم جو میرے حق میں یا میری طرف سے دوسرے کے حق میں ہوں۔ بیان دے کر داخلخارج منظور یا نامنظور جیسی صورت ہو۔ کر اسکیگا۔ دوران مقد مہ اگر کسی قسم کی درخواست انتقال مقد مہ بیان یا بیان حلفی دینا پڑے یا درخواست متسقلہ مقد مہ یا التوا حکم دینے پڑے تو دے سکیگا۔ نیز کاروائی مقد مہ میں ثالث یا سر پنچ مقرر کرنا پڑے تو کر سکیگا۔ راضی نامہ بھی کر سکیگا۔ وکیل ۔ بیرسٹر یا مختیار خاص بھی مقرر کر سکیگا۔ محکمہ بحالیات میں ہر قسم کی درخواست ہائے۔ بیان حلفی ۔ بیان تحریری یا زبانی اقرار نامہ وغیرہ بھی کرنے کا اختیار ہو گا۔ اگر کسی قسم الاٹ وغیرہ ہو۔ تو محکمہ متعلقہ میں حاضر ہو کر ہر قسم کی کاروائی بمثل میرے کر سکیگا۔ میرے معاوضہ بک سے یا کسی دوسرے کے معاوضہ بک سے رقم لینی یادینی پڑی۔ تو ہر قسم لین دین وغیر ہ کا نامز دہ کو حق ہو گا۔ اگر کلیم یا دیگر رقبہ سکنی و زرعی میں ردوبدل وغیرہ کرنا پڑے تو کر سکیگا۔ نیز تبادلہ ۔ تملیک ۔ ہبہ ۔ بیع۔ مستاجری۔ رہن غرضیکہ ہر قسم کا انتقال عارضی و دوامی کامیری طرف سے میرے ہر قسم کی جائیداد کا کر دینے کا نامزدہ کو اختیار ہو گا۔ اور اس کے متعلق جس قسم کی تحریر۔ رجسٹری کر دینے اور زبانی انتقال کی صورت میں بیان دینے اور زر بیع و غیر ہ وصول کرنے کا نامز دو کو بمثل میرے کلہم اختیار ہونگی۔ غرضیکہ مختیار مذکور کومیری کلہم جائیداد ہر قسم واقعہ اند رون۔ تحصیل علی پور کے متعلق ہر قسم کا انتظام اور اس کی منتقلی ہر قسم کا جیسا کہ مجھے اختیار وحق ھے ۔ اور جسکی وضاحت او پر بھی کر دی گئی ھے۔ کر نیکا بمثل میرے کلہم اختیار ہو گا۔ اور اس کا کر دہ مجھے بمثل کر دو ذات خود منظور و قبول ہو گا۔ لہذ امختیار عام تحریر کر دیا ھے ۔ کہ سند رہے ۔ یکم اگست ۱۹۶۲۔ گواہ شد غلام نبی ولد غلام حسین خان قوم بلوچ گوپانگ سکنہ علی والی بقلم خود۔ العبد عبد اللہ مقر مذکور و نقش انگوٹھا۔ گواه شد الہی بخش ولد اللہ وسایامکول سکنہ مکول ہڑیر و نقش انگوٹھا ۔ بقلم رحیم بخش عرضی نویس علی پور۔ نمبر رجسٹر ۱۳۲۴ و مہر عرائض نویس۔"
13. Having a glance on the contents of general power-of-attorney (Exh.P-7) it appears that neither exact whereabout of the suit property owned by Abdullah were specifically mentioned in it nor any authority for execution of agreement to sell was given to the agent (Muhammad Ali). This fact alone makes the transaction doubtful. It is settled principal of law that there must not be any uncertainty or vagueness in the power-of-attorney. Power of attorney should be construed strictly and only such powers qua the explicit object which were expressly and specifically mentioned in the power-of-attorney should be exercised by the agent as conceded to have been dedicated to him. The august Supreme Court of Pakistan in its esteem judgment titled “Fida Muhammad versus Pir Muhammad Khan (Deceased) Through Legal Heirs And Others” (PLD 1985 Supreme Court 341) held as under:
“It is wrong to assume that every “general” Power-of-Attorney on account of the said description means and includes the power to alienate/dispose of property of the principal. In order to achieve that object it must contain a clear separate clause devoted to the said object The draftsman must pay particular attention to such a clause if intended to be included in the Power-of-Attorney with a view to avoid any uncertainty or vagueness. Implied authority to alienate property, would not be readily deduceable from words spoken or written which do not clearly convey the principal’s knowledge, intention and consent about the same. The Courts have to be vigilant particularly when the allegation by the principal is of fraud and or misrepresentation.
The second aspect which needs caution on question of validity of acts under a Power-of-Attorney is that notwithstanding an authority to alienate principal’s property, the Attorney is not absolved from his two essential obligations, amongst others firstly in cases of difficulty (and it will be a case of difficulty if the Power-of-Attorney is susceptible to doubt about its interpretation) to use all reasonable diligence in communicating with the principal and seeking to obtain his instructions, and secondly, if the agent deals on his own account with the property under agency, e.g., if he purchases it himself or for his own benefit, he in his own interest should obtain the consent of the principal in that behalf after acquainting him with all material circumstances on the subject, failing which the principal is at liberty to repudiate the transaction.”
The august Supreme Court of Pakistan in a case titled “Malik Riaz Ahmad and others versus Mian Inayat Ullah and others” (1992 SCMR 1488) where power of agreement to sell was not specifically given despite the fact that he was given authority to deal with the properties and also to sell them held that agreement to sell executed on behalf of principal was not duly authorized and proper in the facts and circumstances of the case and observed that “we are persuaded to hold that although the power-of-attorney was executed by Appellants No. 2 to 6 in favour of Respondent No. 2, as he had never acted upon the power to sell the property for a very long period and prior to executing agreement to sell he did not bring it to the knowledge of Appellants No. 2 to 6 the same could not have been validly made”. Further held as under:
“9. Section 214 of the Contract Act, 1872 provides that it is the duty of an agent, in cases of difficulty, to use all reasonable methods in communicating with his principal and in seeking to obtain his instructions. It, therefore, makes it obligatory on an agent to communicate with his principal and obtain his instructions in cases of difficulty. The determination whether a particular case will be covered by the expression `cases of difficulty’ depends upon the facts and circumstances of each case. However, as the power-of-attorney has to be construed strictly and in cases of doubt and ambiguity, for the benefit of the executant, in the facts of this case it seems that Respondent No. 2 ought to have sought instructions and communicated with his principals. The facts that Appellants Nos. 3 to 6 are Pardahnashin ladies, the interest Respondent No. 2 has in the property, since the execution of the power-of-attorney Respondent No. 2 had only been managing and had not sold a single property and further that the power-of-attorney was executed about 7 years back and the executants have been disputing that it was acted upon which only reflects the reluctant attitude of the principals, the case was of difficulty and it was obligatory for Respondent No. 2 to have sought instructions from his principals.”
By following the said dictum, the Hon’ble Supreme Court of Pakistan in a case titled as “Muhammad Akhtar versus Mst. Manna and 3 others” (2001 SCMR 1700) observed as under:
“It is well settled by now that the power-of-attorney must be strictly construed and it is necessary to show that on a fair construction of the whole instrument the authority in question may be found within the four corners of the instrument either in express terms or by necessary implication.”
The Hon’ble Supreme Court of Pakistan endorsed said dictum in “Muhammad Yasin and another versus Dost Muhammad through Legal Heirs and another” (PLD 2002 SC 71) in following terms:
“It is also well known principle of law that all such instruments of power-of-attorney in pursuance whereof attorney is authorized to act on behalf of principal are to be construed strictly.”
Keeping in view the above well settled principles the august Supreme Court of Pakistan in its judgment reported as “Imam Din and 4 others versus Bashir Ahmed and 10 others” (PLD 2005 SC 418) did not validate the oral sale on behalf of attorney despite the fact he was given authority to sell the property through registered sale deed and held that attorney was specifically authorized to sell the property through registered sale deed and in the light of strict construction of power-of-attorney, implied authority of oral sale could not be presumed and also observed as under:
“The power-of-attorney is a written authorization by virtue of which the principal assigns to a person as his agent and confers upon him the authority to perform specified acts on his behalf and thus primary purpose of instrument of this nature is to assign the authority of the principal to another person as his agent. The main object of such type of agency is that the agent has to act in the name of principal and the principal also purports to rectify all the acts and deeds of his agent done by him under the authority conferred through the instrument. In view of nature of authority, the power-of-attorney must be strictly construed and proved and further the object and scope of the power-of-attorney must be seen in the light of its recital to ascertain the manner of the exercise of the authority in relation to the terms and conditions specified in the instrument. The rule of construction of such a document is that special powers contained therein followed by general words are to be construed as limited to what is necessary for the proper exercise of special powers and where the authority is given to do a particular act followed by general words, the authority is deemed to be restricted to what is necessary for the purpose of doing the particular act. The general words do not confer general power but are limited for the purpose for which the authority is given and are construed for enlarging the special powers necessary for that purpose and must be construed so as to include the purpose necessary for effective execution. This is settled rule that before an act purported to be done under the power-of-attorney is challenged as being in excess of the powers, it is necessary to show on fair construction, that the authority was not exercised within the four corners of the instrument”.
“Even if a presumption of existence of the power of attorney is raised, the transaction would still be not considered genuine and within authority of agent for want of explicit power of oral sale. The attorney was specifically authorized to sell the property through registered sale-deed and in the light of strict rule of construction of power-of-attorney, the implied authority of oral sale could not be presumed. The attorney was not given general authorization for disposal of property in any manner rather his authority of sale was restricted by registered deed and consequently, his failure to act in the manner as provided in the document would render the transaction invalid”.
“The perusal of the attested copy of the power-of-attorney would show that various acts relating to the management of property, litigation and all other matters concerning the property, including the power of selling through registered sale-deed were mentioned therein in explicit terms and the attorney was bound to act strictly in the manner as specified in the power-of-attorney to ensure that the transaction was transparent and free of fraud and misrepresentation”.
“The property in respect of which the power-of-attorney was executed, was allotted to the vendor by the Rehabilitation Department and the powers given therein in the power-of-attorney were in respect of the litigation of property with the departments, including the power of filing of suits, written statements, appeals, revisions in the Civil Court. High Court and the Supreme Court, the management of property, the ejectment of tenant, receipt of produce and rent from the tenants to pursue litigation, civil and criminal to file affidavits and applications in the suits as well as in execution proceedings and let out property on lease. In addition, the attorney was also empowered to sell the property on receipt of the sale price through registered sale-deed and appoint the Advocate for his assistance. The perusal of this document would show that the power of sale of land was given to the attorney specifically by means of a registered sale-deed and probably the purpose of restricting the power of sale only by registered sale-deed was to avoid any misuse of the said power and to ensure that the sale was with the consent and knowledge of the principal, therefore, in the light of rule of strict construction of such instrument, it could be visualized that the oral sale was not within the authority of agent under the instrument”.
This Court in the light of dictums led down by Hon’ble Supreme Court of Pakistan observed that the power-of-attorney must be construed strictly and the attorney cannot go beyond the scope of the terms of power-of-attorney. In a case titled as “Bashir Begum versus Ch. Muhammad Anwar and others” (PLD 2003 Lahore 522) where principal did not authorize his agent to entered into any arbitration agreement declared that such an agreement would not bind the principal in the following manner:
“Attending to the argument raised by the learned counsel for the appellant that the powers of attorney Exh.R-13, did not authorize Muhammad Nazir to enter into any arbitration agreement and thus the agreement and the award based thereupon are invalid; it is fundamental rule of law that the power-of-attorney must be strictly construed. If any reference in this behalf is required, reliance can be placed on the case reported as Muhammad Yasin and others v. Dost Muhammad and others (PLD 2002 SC 71). Applying this principal, I have gone through the power-of-attorney and I find that though there are general powers conferred upon the attorney, to conduct the cases before the Courts and also to alienate the property, but there is no specific power given to him to enter into any arbitration agreement on behalf of ladies, for the reference of the matter to the arbitrator. The general powers mentioned above cannot in any manner be construed, the intention of the ladies to authorize their agent to seek the resolution of the dispute through arbitration. If the ladies intended to confer such power, nothing prevented them to have specifically empowered the authority, in this behalf. This conspicuous omission of authority in the power-of-attorney clearly indicates that Muhammad Nazir was never authorized to enter into the arbitration agreement, therefore, notwithstanding whether Muhammad Nazir factually executed the arbitration agreement on behalf of the daughters of Muhammad Bakhsh with the respondents and had agreed for the appointment of Muhammad Asghar; even on the principle of acquiescence on his part such an agreement, would not bind the appellant and the other ladies.”
In a similar situation this Court in a case “Abdul Majeed and another versus Mst. Irshad Begum and 10 others” (2016 CLC 248) held that:
“As regard the transfer of the suit land by the attorney in result of so called arbitration in favour of his own brother it is also settled principle of law that the general attorney in this situation had to obtain the permission from the principal i.e. predecessor of the petitioner which is missing in this case.”
This Court in another case titled as “Muhammad Iqbal through
L.Rs versus Mehmood Hasan and others” (2016 MLD 1243) held as under:
“The power-of-attorney is a creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of the grantor which when executed will be binding on the grantor as if done by him. It is revocable or terminable at any time. Each recital in the power-of-attorney constitutes a separate power and thus the power-of-attorney must be strictly construed and limited to the exact words contained therein. In the above said general power-of-attorney (Ex.D3) Muhammad Mansha was, inter alia, authorized to sell, gift, exchange, mortgage and waqf the suit land. He was further authorized to accept earnest money in respect of sale of the suit land. There was no clause of a comprehensive character which would show that the principal, Mehmood Hassan, intended to confer plenary powers on his attorney, Muhammad Mansha, to deal with the suit land. Through the above said general power-of-attorney (Ex.D3) the incidental power of sale, that is, to execute deed of sale and to admit execution thereof before the Registering Officer were not given to the attorney. This power-of-attorney authorized the attorney, Muhammad Mansha, to sell the property owned by, the principal, Mehmood Hassan. Clearly agreement for the sale of property and the execution of conveyance after the agreement of sale are entirely different things. Consequently the power-of-attorney (Ex.D3) is of no assistance to the present petitioner/appellant. In this regard guidance may be had from the case of “Janki Parshad Singh and others v. Syed Yahia Hossain and others” (13 IC 637), “Chottey Lal v. The Collector of Moradabad” (AIR 1922 PC 279), “Ziauddain Siddiqui v. Mrs. Rana Sultana and another” (1990 CLC 645), “Journalist Publication (Pvt.) Ltd. through Chief Executive v. Mst. Mumtaz Begum alias Mustari Begum through her duly constituted Attorney and others” (2004 SCMR 1773). Thus, the sale-deed (Ex.P1) executed in favour of the Passban Co-operative Finance Corporation Ltd. (Respondent No. 2) was illegal and without authority.” (Underline provided for emphasis)
In case titled as “Ghulam Bari versus Haji Bashir Ahmad through L.Rs & others” (PLJ 2016 Lahore 118) this Court where an agreement to sell which was based upon a power-of-attorney by the principal in favour of agent whereby power to execute agreement to sell was not specifically given held that:
“There are no powers to enter into an agreement to sell with regard to the suit property. When the powers to entering into the agreement to sell of suit property and not given in this alleged power-of-attorney, therefore, I am clear in my mind that the Agent cannot enter into an agreement to sell with regard to the property, as in an agreement there are conditions imposed upon both the parties. In case of default by the party there is ever a penalty clause in the agreement to sell. When a person has given powers to sell his property, that does not automatically give the powers to the Agent to enter into an agreement to sell the property of Principal. As I have earlier observed that an agreement to sell both the parties are bound to the conditions mentioned therein. In this view of the matter, I am of the considered view that in the power-of-attorney when the powers are not given to an Agent to enter into an agreement to sell, then he cannot do so.”
Similar view was expressed by this Court in a case titled as “Nawab and another versus Pehlwan Khan (Deceased) through L.Rs and others” (2019 CLC 811) wherein despite the fact that attorney was given the authority to sell, gift, exchange, mortgage the property did not acknowledge the transaction made through agreement to sell by holding that it was the duty of the plaintiff to prove that original owner was not available at the place where the parties were entering into agreement to sell and the attorney was having full power to enter into agreement to sell the suit property and observed as under: -
“In my view the powers to sell the property do not give power to enter into an agreement to sell because in the powers of sale the consideration amount is received and property is sold out, whereas the agreement to sell binds both the parties in accordance with the terms of agreement to perform their part in future. If in the power-of-attorney specific power of entering into agreement to sell of suit property is not provide, an attorney cannot enter into agreement to sell of the property of the principal/owner. In case of sale a transaction is completed, rights and liabilities of the parties are determined through an instrument of sale and with the registration and completion of same no further liability of parties remains against each other but in case of agreement to sell both the parties are bound to perform the terms of agreement in future, therefore, unless an attorney is given specific powers to bind the principal for performance of terms of the agreement in future, the attorney cannot bind the principal and enter into agreement to sell of property owned by the principal, therefore, this agreement is bad on the basis of having no powers with the attorney to enter into agreement to sell of suit property.”
14. It is also evident from the record that plaintiff produced copy of power-of-attorney as Exh.P-7 without proving non-availability of original and seeking permission for producing of secondary evidence. It is settled principle of law that when existence or validity of the document is disputed then its certified copy is admissible in evidence only, if non-availability of the original document is proved, sought and obtained permission for production of secondary evidence. Guidance sought from “Imam Din’s case supra where august Supreme Court of Pakistan observed as under:
“This is settled law that in absence of original document, its certified copy if not admissible evidence and notwithstanding the presumption of correctness being attached with certified copy of a document pertaining to the official record, if the validity or the existence of the document is disputed and original is not produced, its certified copy would not be admissible in evidence without proving the non availability of the original. There was neither anything on record to show that original power-of-attorney was not available to be produced before the Court nor an explanation was given for non-production of original power-of-attorney”.
15. From the above discussion inference can easily be drawn that Defendant No. 1 (Muhammad Ali) has no authority to execute agreement to sell in favour of plaintiff on the strength of power-of-attorney (Exh.P-7). Therefore, the suit instituted on the basis of said agreement to sell dated 10.01.1979 was not proceed-able and liable to be dismissed. The learned Courts below have acted with material irregularity in the exercise of their jurisdiction.
16. It is very strange, as appears from the findings of the learned Courts below that both the learned Courts have not even bothered to peruse the record and particularly the power-of-attorney which is in fact the basis of all the subsequent misdeeds and frauds. The learned appellate Court being the first Court of appeal instead of appreciating and evaluating the record in a very summery and slipshod manner had dismissed the appeal, which in any case, is not warranted by law. The learned Courts below and specially the learned appellate Court is always expected that the appellate Court will correct and set at right the irregularities and illegalities committed by the Court of first instance.
17. Although, both the learned Courts below recorded concurrent findings but the Hon’ble Supreme Court of Pakistan has observed that if the Courts below acted with material irregularity and legal infirmity, the High Court while exercising the revisional jurisdiction conferred under Section 115 of Code of Civil Procedure, 1908, can take the cognizance of the matter.
18. There is no cavil to the proposition that the revisional jurisdiction of the High Court under Section 115, C.P.C. is invoked only in the cases of exercise of jurisdiction by the lower Courts not vested in them by law or the Court had failed to exercise the Jurisdiction so vested or jurisdiction was exercised in an illegal manner or that some material irregularity was committed but this is the settled law that in case in which it is found that the findings of the subordinate Courts were suffering from misreading, non-reading of evidence or that the inference drawn was in utter disregard, to the law and facts of the case, this Court must interfere in the matter in its revisional jurisdiction and correct the illegality committed by the subordinate Courts.
The Hon’ble Supreme Court of Pakistan in the judgment titled “Nasir Abbas v. Manzoor Haider Shah” (PLD 1989 Supreme Court 568), has observed that this type of the concurrent findings can be interfered. The relevant portion is reproduced as under:
“11. It is settled that if the lower Court, misread the evidence on record and fails to take notice of a vital fact appearing therein, comes to an erroneous conclusion, it would be deemed to have acted with material irregularity and its decision is open to revision by the High Court. See. Dwarika v. Bagawati (AIR 1939 Rangoon 413) and Fut Chong v. Maung Po Cho (AIR 1929 Rangoon 145)”
The august Supreme Court has laid down guidelines for exercise of revisional jurisdiction in “Shumal Begum v Gulzar Begum” (1994 SCMR 818) as under:-
“The revisional jurisdiction under Section 115,C.P.C. exercised by the High Court is attracted only in cases where the lower Court has exercised a jurisdiction not vested, in ‘it by law or it has failed to exercise jurisdiction so vested in it or while exercising jurisdiction the Courts below have acted illegally or with material irregularity. It is, therefore, quite clear that the High Court while exercising revisional jurisdiction cannot disturb the finding of fact arrived at by the lower Court in proper exercise of the jurisdiction vested in the Court and upon consideration of the relevant evidence on record. The finding of fact by the lower Court could only be disturbed in revisional jurisdiction by the High Court, if it is found to be fanciful, perverse or it has been arrived at by a process which had rendered the exercise of the jurisdiction vested in the Court defective. In case of misreading of evidence or non consideration of legal evidence on record, the exercise of jurisdiction and power possessed by the Court is rendered defective, justifying interference by the High Court in exercise of its revisional jurisdiction. The fact that the High Court on reappraisal of the evidence, find that the finding of fact recorded by, the trial Court is preferable to the finding of fact recorded by the first appellate Court cannot justify interference with such finding in exercise of revisional jurisdiction by the High Court. The first appellate Court is the final Court in so far the findings of facts are concerned and such finding can only be disturbed in revisional jurisdiction by the High Court if it is arrived at by the first appellate Court either by misreading the evidence or through perverse appreciation of evidence on record, or due non-consideration of legal evidence on record. From the above quoted passage of the impugned judgment, it is quite clear that the findings of facts recorded by the first appellate Court, was reversed by the High Court on reappraisal of the evidence and by substituting its own opinion for that of the first appellate Court without referring to any defect in the process of reasoning adopted by the first appellate Court. This, in our opinion, was not permissible with the scope of the revisional jurisdiction exercised by the High Court in the case.”
In another esteemed judgment cited as “Muhammad Nawaz alias Nawaza and others v. Member Judicial, Board of Revenue and others” (2014 SCMR 914), the Hon’ble Supreme Court of Pakistan has observed as under:
“The argument that when all the for a functioning in the revenue hierarchy concurrently held that the appellants were occupying the land in dispute in their capacity as tenants, such finding being one of fact could not have been interfered with by the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, has not impressed us as a finding does not become sacrosanct because it is concurrent. It becomes sacrosanct only if it is based on proper appraisal of evidence. The finding of the for a functioning in the revenue hierarchy despite being concurrent was not based on proper appraisal of evidence and due application of law therefore, the High Court was well within its jurisdiction to interfere therewith. For the very condition for conferment of jurisdiction on a Court of law is to render a finding on proper appraisal of evidence and due application of law. If and when it would do otherwise, it would go outside its jurisdiction. Such order can well be quashed in exercise of Constitutional jurisdiction of the High Court. An order thus passed cannot be protected because the repository of such jurisdiction has the jurisdiction to pass it. Lord Denning of his well-known book ‘the Discipline of law”, while commenting on orders of this nature at page 74 observed as under:
“This brings me to the latest case. In it I ventured to suggest that whenever a tribunal goes wrong in law, it goes outside the jurisdiction conferred on it and its decision is void, because parliament only conferred jurisdiction on the tribunal on condition that it decided in accordance with law.”Another paragraph of this book at page 76 also merits a keen look which reads as under:
“I would suggest that this distinction should now be discarded. The High Court has, and should have, jurisdiction to control the proceedings of inferior Courts and tribunals by way of judicial review. When they go wrong in law, the High Court should have power to put them right. Not only in the instant case to do justice to the complainant. But also so as to secure that all Courts and tribunals, when faced with the same point of law, should decide it in the same way. It is intolerable that a citizen’s rights in point of law should depend on which judge tries his case, or in what Court it is heard. The way to get things right is to hold thus: No Court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends. If it makes such an error, it goes outside its jurisdiction and certiorari will lie to correct it.”
19. Epitome of above discussion is that instant Civil Revision is allowed and both impugned judgments and decrees of learned Courts below dated 05.02.1989 and 15.01.2002, respectively are set-aside and reversed. Resultantly, suit of Respondent No. 1/plaintiff for specific performance of agreement to sell dated 01.01.1979 stands dismissed. Parties are left to bear their own costs.
(Y.A.) Civil revision allowed
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