PLJ
2004 Lahore 752
Present:
MUHAMMAD
MUZAMMAL KHAN, J. SHAUKAT ALI and 9 others-Petitioners
versus
MUHAMMAD ANWAR and 6
others-Respondents
C.R.
No. 629 of 2003, decided on 16.2.2004.
(i) Qanun-e-Shahadat Order, 1984
(P.O. 10 of 1984)--
—-Art. 118-Suit for
declaration-Challenged power of attorney-Burden to prove-Party challenging any document has
simply to deny its execution, whereafter
onus to prove shifts on person beneficiary to it—Respondents being beneficiaries of the power of attorney,
agreement to sell and sale deed in dispute, thus were required to prove
each of them in accordance with law-Mere
registration of a document was not sufficient-No evidence was needed in support of assertion of fraud by the plaintiff
if the beneficiaries did not prove
the execution of the disputed documents- High Court set aside the judgment of first appellate Court and restored
that of trial Court while decreeing the suit. [P. 755 & 756] A, B & F
that of trial Court while decreeing the suit. [P. 755 & 756] A, B & F
(ii) Contract Act, 1872--
—S. 188-Power of attorney-Power of
attorney was itself not proved, any act done by the alleged attorney had no
sanctity under Law. [P. 755] C
(iii) Parda Nashin
Ladies--
—Parda observing
lady-Not only illiterate ladies but also parda observing lady remained involved in litigation on
settlement side concluded were protected
under the law and transactions by such women require more authentic and clear positive proof. [P. 756] D
<iv> Specific
Relief Act, 1877 (I of 1877)--
-—Ss. 39 &
42-Limitation Act, 1908 (IX of 1908) Art. 120-Suit for declaration and
possession as consequential relief-Such form of suit falling under
Section 39 of the specific Relief Act can be filed with in 6 years from date of
cause of action. [P. 756] E
judgment
This civil revision assails judgment
and decree dated 26.3.2003 passed
by the learned Additional District Judge, Gujranwala, whereby he accepted the appeal of the respondents and dismissed the suit of the petitioners
which had been decreed by the trial Court.
2 A short factual
background of the case is that Mst. Fazal Bibi widow of Fazal
Muhammad, predecessor-in-interest of the petitioners, filed a suit for declaration
with possession of land measuring 332 kanals 11 mdrlas in forma pauperis,
with the assertion that she was allotted this land vide Khata No. 27 of
Register RL-II in Mouza Rahimpura, District Gujranwala. by the Settlement
Department, but on account of a Mukhbari application filed by someone she
remained in litigation but the land allotted to her, remained intact by the
final orders of the Chief Settlement Commissioner dated 1.3.1982. She further pleaded that
land allotted to her was bunjar and on
account of litigation, she could not cultivate it and on conclusion of litigation
on settlement side, she went to her land for cultivation where respondents told her that they had purchased the
said land from Khalid son of Bashir Ahmed (Respondent No. 20) as an attorney of
the predecessor of the petitioners Mst.
Fazal Bibi. According to her averments in the plaint, she approached
the revenue staff whereon it revealed to her that a fake mutation of Sale No. 512 was sanctioned in favour of Akbar
Ali and Muhammad Din. She asserted
that she never appointed Khalid son of Bashir Ahmed as her attorney and did not
give him power to sell out her land. She also denied having received any sale price under the
sale-deed dated 7,2.1967, alleged to have been executed by her attorney.
3. Respondents being defendants in the
suit denied the assertions of the
predecessor of the petitioners .and pleaded themselves to be lawful owners under lawful documents of title.
Respondents also pleaded that suit of Mst.
Fazal Bibi was barred by limitation and she was estopped by her words and
conduct in filing the suit. They also denied valuation of the suit for the purpose of Court fee and jurisdiction
fixed by the original plaintiff Controversial
pleadings of the parties necessitated framing of issues and recording of
evidence. The learned trial Judge, who was seized of the matter, after doing the
needful, decreed the suit vide his judgment and decree dated 31.10.2000
pending which Mst. Fazal Bibi had died and petitioners were replaced in
her place as her heirs/legal representatives.
4.
Respondents aggrieved of the decision of the trial Court
dated 31.10.2000
filed an appeal before the learned Additional District Jydge, where they succeeded
as their appeal was accepted and judgment and decree of the trial Court was
reversed, dismissing suit of the petitioners. Petitioners then filed instant
civil revision challenging appellate
judgment and decree, which was admitted to regular hearing and has now been
laid for final determination.
5.
Respondents were served but they did not appear to follow
this petition.
On 27.10.2003 they were again informed regarding fixation of case through postal cover
acknowledgement due but on account of their non- appearance they were proceeded against exparte.
6.
Learned counsel for the petitioners submitted that
predecessor of the petitioners i.e. Mst. Fazal Bibi had specifically denied
execution of power of attorney, as such, after denial, it was duty of the respondents to
prove due execution
of power of attorney and conclusion of sale transaction between the parties. He in
this behalf, referred to the case of Muhammad Khan vs. Mst. Rasul Bibi (PLD 2003 S.C. 676)
to assert that inspite of registration of power of attorney, it has to be proved, where
its execution is denied. He further contends that respondents did not produce
any evidence to prove lawful constitution of agency of attorney-ship or the
sale, hence their suit could not have been decreed, but- the appellate Court has
erroneously returned findings contrary
to the record.
It is also
submitted that respondents did not
produce even original power of attorney and only a copy (Exh. D.I) was
produced, which was not enough for discharging onus placed
on them. It has also been added to the submissions by the learned counsel for the petitioners that the appellate Court was not justified in reversing well reasoned judgment of the trial Court without meeting the points evolved by it,
on them. It has also been added to the submissions by the learned counsel for the petitioners that the appellate Court was not justified in reversing well reasoned judgment of the trial Court without meeting the points evolved by it,
7. I have anxiously
considered the arguments of the learned counsel for the petitioners and have
examined the record, appended
herewith. Primarily,
dispute in the litigation brought to the Courts was as to whether Mst. Fazal Bibi widow of Fazal Muhammad did
execute the power of attorney dated 2.1.1967 appointing Khalid son of B'ashir
Ahmed, as her attorney. Mst. Fazal Bibi besides denying execution of this
document in her plaint, appeared in the witness box and stated that she never appointed Respondent No. 20 as
her attorney and did not execute the power of attorney dated 2.1.1967. While in
the witness box, she denied to have entered into any agreement to sell with
any person, selling out the land in dispute. She specifically deposed that power of
attorney is bogus and is based upon fraud and forgery. She detailed her involvement in
litigation initiated through a Mukhbari petition before the settlement Authorities
and asserted to be a very poor lady. Besides this she materially supported-her
averments in the plaint. Under law, party challenging any document has simply to deny its execution, whereafter
onus to prove it, through positive evidence, shifts on the person drawing
any benefit through it. Respondents were beneficiaries of the power of
attorney, agreement to sell and the sale-deed, thus were required to prove on
the file due execution of power of attorney dated 2.1.1967. transaction
of sale between the parties, agreement to sell and thereafter sanctioning
of mutation. In this behalf, my viewpoint gets support from the judgments in
the cases of Hakim Khan vs. Nazeer Ahmad Lughmani and 10
others (1992 SCMR 1832), Mst. Bakht Bano vs. Mst. Zainab Khatoon (1991 MLD 2389), Niaz
Ali and 16 others vs. Muhammad D:>2 through Legal Heirs and 13 others
(PLD 1993 Lahore 33) and Mst. Rasul Bibi vs. Nasrullah Khan (1994
CLC 1774). Respondents in view of settled proposition that beneficiary was
required to prove the transaction, did not bring on record any evidence to this
effect. Respondents in support of their case, produced Khalid Bashir son of
Bashir Ahmed, the attorney, as DW.3, who deposed that Mst. Fazal Bibi and her
brother had executed a power of attorney in his favour at Sialkot. Though this witness
was also a beneficiary, having received sale price from the vendees for his own
benefit, yet
did not produce original power of attorney, wherefrom thumb impressions/signatures
could have been compared and at the same time, could not explain as to why this power
of attorney was executed at Sialkot, as undeniably Mst. Fazal Bibi was
residing in Mouza Bankey Cheema, District Guj ranwala, where the land in question is
situated. None of the marginal witnesses of this document was produced and its scribe
was deliberately withheld. On account of non-production of marginal witnesses, power of
attorney cannot be said to have been executed by Mst Fazal Bibi merely on the basis of statement
of DW.3, without any independent corroboration of his statement. The
other two witnesses are DW.l Umar Din and DW.2. Muhammad Bashir, one of the
respondents. DW.l Umar Din, who is not a witness to any document or transaction,
simply deposed that Khaliq Butt sold this land to the respondents. Honourable
Supreme Court in the case of Muhammad Khan (supra) has mandated that
inspite of registration of a power of attorney, it has to be proved in accordance with
law when its executant specifically denies its execution. I respectfully following
the view of the Honourable Supreme Court hold that respondents miserably failed to prove execution of
the power of attorney.
8. Though there is also no
evidence regarding sale of land in favour of the respondents, as none of the DWs
deposed that bargain was struck in his presence and sale price was paid to Mst.
Fazal Bibi, yet since execution of power of attorney itself is not proved, any
act done by the alleged attorney, has no sanctity under law. Sale-deed dated
7.2.1967 executed by Khalid C Bashir attorney itself
is also of no consequence having
been executed j without any authority.
9. Mst Fazal Bibi, who filed suit in forma paupens, was
not'only illiterate but also a Parda
observing lady, remained involved in litigation on settlement side, which concluded on 1.3.1982
through an order of the Chief Settlement
Commissioner maintaining her allotment. Ladies, like the one Mst. Fazal Bibi, are
protected under law and transactions by such women, require more authentic and clear positive proof.
Respondents did not bring
an iota of evidence on the file to show that Mst. Fazal Bibi, if
at all executed documents
above referred, executed
those out of
her free will
after understanding impact of those, by having some independent advice.
10. Learned Additional District
Judge while reversing well reasoned judgment
of the trial Court, did not opt to meet the reasoning given therein and instead emphasized that the suit was hopelessly
barred by time, relying on Exh. P. 1.
in this exercise, it was observed that since Akbar Ali and Muhammad Din predecessor-in interest of the
respondents were also party to the
proceedings before the Settlement Department, Mst. Fazal Bibi did not challenge their possession during those proceedings.
Proceedings on the settlement side concluded on 1.3.1982.and suit
was filed on 22.1.1985, which was for
declaration and possession as onsequential
relief. Under law, a declaratory suit
in the form of suit under Section 39 of the Specific Relief Act, could be filed within six years from the date
of cause of action which, in the
instant case, arose on final determination of title of the predecessor of the petitioners i.e. on 1.3.1982, from this date,
suit was within limitation having been filed within a period of less than three
years, it goes without saying that
suit was filed in forma pauperism and the lady like Mst. Fazal Bibi having blocked for two decades before the
settlement hierarchy, can be imagined
why did not file the suit promptly but since it is within limitation, it could not have been thrown out, in the manner by
the appellate Court. The other basis on which the appellate Court was
impressed in holding that the suit of
the petitioners should be dismissed is that Akbar Ali and Muhammad Din, the original vendees were also
parties to the proceedings before the settlement side where Mst. Fazal
Bibi did not deny their status. Respondents themselves produced copy of an
order dated 9.12.1978 passed by the Settlement Commissioner (L) as Exh. D.2.
This order in its paragraph 6 has a
reference that statement of Mst. Fazal Bibi was recorded there, wherein she specifically denied to have executed
any power of attorney in favour of
Ghulam Rasul or anybody else. She also denied sale of her allotted land. In presence of this evidence, it was
absolutely presumptive to remark that
Fazal Bibi had not denied status of the alleged vendees during the litigation before settlement hierarchy. Likewise,
findings of the appellate Court that Mst.
Fazal Bibi did not produce any evidence in support of her assertion that power of attorney dated 2.1.1967
was obtained through fraud is also
simply misconceived and erroneous because if a document was not proved to have been executed by the person alleged
then what kind of evidence in support
of assertion of fraud was needed. If the document was prepared at the back of Mst. Fazal Bibi
without her knowledge, it was a
11. For what has heen
discussed above, it is clear that appellate judgment runs counter to the evidence on the file and is contrary
to settled propositions of law, as discussed above, thus the same is not
maintainable. Appellate Court acted illegally and with material irregularity
while deciding lis before it. inviting
invocation of revisional jurisdiction of this Court, consequently, this revision
petition is accepted, judgment and decree dated 26.3.2003 passed by the learned Additional District Judge, Gujranwala,
is set aside with the result that
judgment and decree dated 31.10.2000 passed by learned trial Court shall
stand revived. There will be no order as to costs.
( J.R.) Petition accepted.
