PLJ 2012 Lahore 396
Present: Ch. Shahid Saeed, J.
ABDUL HAQ and 7
others--Petitioners
versus
ASGHARI
BEGUM--Respondent
C.R. No. 3484 of
2010, heard on 2.4.2010.
Civil Procedure
Code, 1908 (V of 1908)--
----S.
115--Civil revision--Suit for declaration with permanent
injunction--Controversy about general power of attorney executed by plaintiff
in favor of her real brother who on basis of same gifted out the property and
subsequent mutations were sanctioned--Question of--Whether general power of
attorney was true or not--Presumption of truth was attached to register
documents--After receipt of consideration amount power of attorney was got
registered--Respondent appeared before sub-registrar and put her thumb
impression power of attorney in presence of witnesses--Respondent could not be
allowed to seek cancellation of same--Validity--Courts below thrashing all
aspects relating to that matter was required but Courts had failed to apply
judicious mind and all other ignored--Civil revision was allowed--Appellate
Court can resort to comparison of thumb impression of lady as according to
petitioner--Lady was present before sub-registrar when alleged power of
attorney was executed but ladies denied same. [P. ] A & B
Mr. Muhammad Iqbal Mohal, Advocate for
Petitioners.
Mr. Zahid Ghafoor Azam,
Advocate for Respondent.
Date of hearing:
2.4.2012.
Judgment
This civil
revision is directed against judgments and decrees dated 8.10.2010 and 2.7.2010
passed by learned Additional District Judge, Pasrur
and learned Civil Judge, Pasrur respectively.
2. Succinctly stated the facts leading to the
filing of this civil revision are that Mst. Asghari Begum, respondent, instituted a suit for
declaration with permanent injunction against the present petitioners alleging
therein that she being the owner of land measuring 40 kanal-1 marla, fully described in the plaint, leased out the same
to her real brother Abdul Haq for a period of seven
years from 1998 to 2005 against lease money of Rs. 70,000/- but when, after
expiry of lease period, she contacted Abdul Haq for
renewal of lease, he first kept the matter pending on one pretext or the other
for some time and ultimately, informed the plaintiff that she had made general
power of attorney No. 478, dated 18.12.1997 in his favour
by virtue of which, Abdul Haq gifted the suit
property to his real son vide Gift-Deed No. 425, dated 05.08.1998. The
plaintiff avers that she did not execute the power of attorney in favour of Abdul Haq which is
result of fraud and has been got prepared in connivance with the revenue
officials. The plaintiff prayed for cancellation of general power of attorney
Bearing No. 478 dated 18.12.1997, Gift-Deed No. 425 dated 18.12.1997 and
subsequent Mutations No. 1 to 8 dated 22.01.2000 averring that the said
documents are illegal and inoperative upon the rights of the plaintiff.
3. The petitioners-defendants hotly contested
the suit by way of filing written statement whereby the averments of the
plaintiff were opposed. Keeping in view divergent pleadings of the parties, the
learned trial Court framed as many as nine issues including that of relief.
After recording oral as well as documentary evidence of the parties, the
learned trial Court proceeded to decree the suit of the plaintiff vide judgment
and decree dated 02.07.2010. The appeal preferred thereagainst
by the petitioners was dismissed vide judgment and decree dated 08.10.2010
passed by learned First Appellate Court. Hence this Civil
Revision.
4. Learned counsel for the petitioners mainly
contends that the general power of attorney was duly executed by the plaintiff
in favour of her real brother Abdul Haq after receipt of consideration amount of Rs. 2,60,000/-
which power of attorney was also got registered. Further argues that she
herself appeared before the Sub-Registrar and put her thumb impression on the
disputed general power of attorney in presence of the witnesses
whereafter she could not be allowed to seek
cancellation of the same. He avers that presumption of truth is attached to the
registered documents. His more stress was on the point that the plaintiff lady
is still alive, therefore, the matter, be remanded to
learned trial Court for comparison of thumb impression of the lady so that
truth may be reached. Learned counsel further avers that no illegality or fraud
has been committed by Abdul Haq who having possession
of the property and holding the general power of attorney was fully authorized
to gift the disputed property to his son. He further points out that the
possession of the property is admittedly with the petitioners but the plaintiff
has filed the suit for declaration without seeking possession which is not
maintainable. He further argues that learned Courts below have failed to apply
their judicious mind and even issue-wise findings have not been given by them.
He prays that the instant civil revision be allowed, the impugned judgments and
decrees be set aside and the case be remanded to the learned trial Court for
decision afresh. He has relied upon the law laid down in cases Rahmatullh Khan and another vs. Ghulam
Farid (2009 SCMR 371). Abdul Mannan
and others vs. Sikandar Khan (1992 CLC 505), Alam Khan and 3 others vs. Pir Ghulam Nabi Shah & Company
(1992 SCMR 2375), Taj Muhammad Khan (deceased)
through LRs and another vs. Mst. Munawar
Jan and others (PLJ 2009 SC 375) and Nazir Ahmad and
another vs. M. Muzaffar Hussain
(2008 SCMR 1639).
5. On the other hand, learned counsel for the
respondent-plaintiff vehemently opposes this civil revision and fully supports
the impugned judgments and decrees.
6. The whole controversy revolves around the
general power of attorney allegedly executed by the plaintiff in favour of her real brother Abdul Haq
who on the basis of the same gifted out the property in favour
of his son vide Gift-Deed No. 425 dated 18.12.1997 and subsequent Mutations No.
1 to 8 dated 22.01.2000 were also sanctioned. The alleged power of attorney was
registered vide No. 478 on 18.12.1997. Issue No. 5 was framed at to whether the general power of attorney was true or not
but the same has not been discussed independently nor independent findings have
been given by learned Courts below. In my view, Issue No. 5 was a vital issue add
full-fledge discussion by learned Courts below thrashing all the aspects
relating to this matter was required but the learned Courts have failed to
apply their judicious mind and altogether ignored Issue No. 5. In this view of
the matter, the instant civil revision is allowed, judgment and decree dated
08.10.2010 passed by learned First Appellate Court is set aside and the case is
remanded to the learned First Appellate Court for decision afresh after hearing
the parties. For the very purpose, the appeal of the petitioners would be deemed to be
pending before the
learned lower appellate Court. The appellate Court may
resort to comparison of thumb impression of the plaintiff lady as according to
learned counsel for the petitioner, the lady was present before the
Sub-registrar when the alleged power of attorney was executed but the lady
denies the same. Parties are directed to appear before the learned First
Appellate Court on 21.4.2012.
(R.A.) Case remanded
