PLJ 2005 Lahore
1007
Present: Mian Hamid Farooq, J.
SARDAR MUHAMMAD & others--Petitioners
versus
Mst. SAADIA and another--Respondents
Civil Revision No. 1925-D of 1997, heard on 29.9.2003.
Rule of Evidence--
----Burden of prove--Matter of validity, legality and
execution of general power of attorney--When the execution of a document is
denied by one party, onus shifts upon other party, who was claiming benefit
from the said document, to prove the execution of the said document under the
law--Beneficiary of power of attorney is to prove that the document was
genuinely executed in favour of respondent when the onus to prove the validity,
legality and execution of general power of attorney shifted to other--It was
his duty to prove the execution of general power of attorney within the
parameters set up under the law--The original defendant failed to produce
respondent the general attorney, in his evidence, who was the best witness to
prove the execution of the power of attorney--Case does not suffer from any
material irregularities--Revision dismissed.
[Pp. 1009
& 1010] A, B & C
Mr. Mushtaq Ahmad Chaudhry, Advocate for Petitioners.
Mian Hamid-ud-Din Kasuri, Advocate for Respondent No. 1.
Nemo for Respondent No. 2.
Date of hearing : 29.9.2003.
Judgment
Petitioners, claiming to be the successors-in-interest of
Noor Muhammad, deceased, the original defendant, through the filing of the
present revision petition have called in question judgment and decree dated
27.10.1997, whereby the learned Appellate Court accepted Respondent
No. 1's appeal, decreed her suit and set aside the
judgment and decree dated 17.2.1994, passed by the learned Civil Judge, through
which he dismissed the suit for declaration, filed by Respondent No. 1.
2. Briefly stated
the facts relevant for the decision of the present revision petition are that
Mst. Saadia, claiming to be the minor, filed a suit for declaration, against
Noor Muhammad and Naveed Alam, Respondent No. 2, thereby asserting that the
registered sale-deed dated 6.8.1978, executed by Respondent No. 2 on the basis
of general power of attorney dated 27.7.1978, is illegal, void and based on
fraud, thus, liable to be declared as null and void as on the date of alleged
execution of power of attorney dated 27.7.1978, she was minor and thus could
not execute the said document. She also claimed the possession of the disputed
land. The suit were resisted by Noor Muhammad and Respondent No. 2 who filed
separate written statements. The defence of Noor Muhammad was that the power of
attorney was validly executed, as she was major at the time of execution of the
general power of attorney and Respondent No. 2 is the first cousin of
Respondent No. 1, therefore, there is no question of fraud. It was further the
case of Noor Muhammad that he is bona fide purchaser for value and without notice.
Naveed Alam, Respondent No. 2, through a separate written statement, supported
the claim of Noor Muhammad and stated that the plaintiff was major at the time
of execution of general power of attorney, she has rightly executed the general
power of attorney and, therefore, the sale-deed is valid document.
Out of the divergent pleadings of the parties the learned
trial Court framed issues, recorded the evidence of the parties and ultimately
dismissed the suit vide judgment and decree dated 17.2.1994. Feeling aggrieved
Respondent No. 1 filed an appeal and the learned Additional District Judge
accepted the appeal and decreed her suit vide judgment and decree dated
27.10.1997, hence the present revision petition.
3. Learned counsel
for the petitioners has contended that the impugned judgment suffers from
misreading and non-reading of evidence and that the learned Additional District
Judge has committed legal errors, thus, the impugned judgment is not
sustainable. Conversely, the learned counsel for Respondent No. 1 has supported
the impugned judgment and submitted that with denial by Respondent No. 1 of the
execution of general power of attorney, the onus shifted upon Noor Muhammad to
prove that the general power of attorney was validly executed, but he could not
produce evidence to prove the execution of the general power of attorney.
4. Upon the
examination of the available record, the real controversy, to my mind, hinges
on the question as to whether the general power of attorney dated 27.7.1978,
was validly and legally executed by Respondent No. 1 or not, on the basis of
which Respondent No. 2 executed the sale-deed dated 6.8.1978, favouring Noor
Muhammad. To resolve that controversy the learned trial Court framed Issues
Nos. 5 and 6 upon which the parties led evidence. Respondent No. 1 by producing
her evidence proved that on the date of execution of power of attorney, she was
minor and that she did not execute the general power of attorney, inasmuch as
had writing expert, who appeared as P.W.2, supported the case of the plaintiff.
It is settled law that when the execution of a document is denied by one party,
the onus shifts upon the other party, who is claiming benefit from the said
document, to prove the execution of the said document under the law. The
learned Appellate Court has rightly observed that the beneficiary of power of
attorney is to prove that the document was genuinely executed in favour of
Respondent No. 2. When the onus to prove the validity, legality and execution
of general power of attorney shifted to Noor Muhammad, it was his duty to prove
the execution of said general power of attorney within the parameters set up
under the law. Upon the examination of the evidence produced by Noor Muhammad
it is clear that none of the witnesses has stated that at the time of execution
of power of attorney, Respondent No. 1 was major. The best evidence, available
with Noor Muhammad, was the marginal witnesses, which he failed to produce. The
original defendant failed to produce Respondent No. 2, the general attorney, in
his evidence, who was the best witness to prove the execution of the power of
attorney. It is true that in his written statement, the alleged attorney has
supported the defence of the original defendant and asserted that the power of
attorney was validly executed by Respondent No. 1 herself but the fact remains
that after the filing of written statement he absented and did not participate
in the rest of the proceedings. In these circumstances, it was all the more
necessary for the original defendant to produce the said witness in support of
his case, but he failed to do so inasmuch as the said witnesses was not even
summoned. The learned counsel for the contesting respondent is right in
submitting that the defendant did not make any endeavor to produce the marginal
witnesses, they were never summoned and the defendant did not make any effort
to cause the attendance of those witnesses. In view of the evidence on record I
am of the firm view that by producing the evidence, Respondent No. 1/plaintiff,
has been able to prove that the power of attorney was not validly executed,
however, the original defendant could not produce any evidence in order to
prove that the power of attorney as validly executed by her. On the basis of
available evidence, the learned Appellate Court has drawn correct inferences to
hold that the power of attorney could not be proved to have validly executed by
Respondent No. 1 in favour of Respondent No. 2.
5. Although it has
been urged by the learned counsel for the petitioners that the impugned
judgment suffers from mis-reading and nonreading of evidence, however, when
asked to explain as to which portion of the evidence has been misread the
learned counsel despite of his best efforts could not explain any misreading
and nonreading of evidence.
6. In my view as
the impugned judgment is neither contrary to the evidence on record nor in
violation of the principle to administration of justice, thus, the judgment of
the learned Appellate Court should ordinarily be preferred. If any case is
needed, judgments reported as Mir Muhammad alias Miral vs. Ghulam Muhammad (PLD
1996 Karachi 202), Ilamuddin through legal heirs vs. Syed Sarfraz Hussain
through legal heirs and 5 others (1999 CLC 313) and Aasa vs. Ibrahim (2000 CLC 500)
can be referred.
7. In the above
perspective, I have examined the impugned judgment and find that the same is
legal, apt to the facts and circumstances of the case and does not suffer from
any material irregularities, much less the illegality, thus, in my view does
not call for any interference by this Court in exercise of its revisional
jurisdiction. The learned counsel for the petitioners has not been able to
point any flaw or grave illegality so as to upset the well reasoned judgment
rendered by the learned Additional District Judge, in view whereof the impugned
judgment is hereby maintained.
Upshot of the above discussion is that the present
revision is devoid of merits, thus, the same is dismissed, with no orders as to
costs.
(H.A.) Revision
dismissed.
