PLJ 2013 SC 552
[Appellate Jurisdiction]
[Appellate Jurisdiction]
Present: Nasir-ul-Mulk, Amir Hani Muslim & Muhammad Ather Saeed, JJ.
TARIQ MAHMOOD--Petitioner
versus
GHULAM MUSTAFA
SHAH and another--Respondents
Civil Petition
No. 2018 of 2011, decided on 18.3.2013.
(On appeal
against the judgment dated 28-09-2011 passed by the Lahore High Court, Multan
Bench, Multan in CR No. 986-D of 2011)
Power of
Attorney--
----Property was
sold fraudulently by executing sale deed on basis of power of attorney--Power
of attorney was challenged in other proceedings by filing another suit, which
was subsequently compromised--High Court as well as Courts below were wrongly
decreed suit--Validity--In collateral proceedings initiated by challenging the
general power of attorney resulted in compromise could hardly be made a ground
to presume that General Power of Attorney was validly executed--Findings of
High Court and Courts below were based on correct appreciation of material
brought on record and did not warrant interference by Supreme Court--Leave to
appeal was declined. [P. 554] A
Malik M. Latif Khokhar, ASC for
Petitioner.
Not represented
for Respondents.
Date of hearing:
18-03-2013
Order
Amir Hani
Muslim, J.--Through these proceedings the petitioner has challenged the
judgment of the Lahore High Court, Multan Bench, Multan passed in Civil
Revision whereby it has dismissed the Civil Revision filed by the petitioner.
2. The material facts for the purpose of
deciding these proceedings are that the Respondent No. 1 filed a suit of
declaration challenging the validity of General Power of Attorney dated
8.10.1990 against Ghulam Murtaza
Shah Respondent No. 2 and the petitioner. It was pleaded
by the Respondent No. 1 that he and his sisters namely Surreya
Bibi, Ruqueyya Bibi and Kalsoom Bibi did not execute the General Power of Attorney in favour of Respondent No. 2 Ghulam
Murtaza Shah as their attorney to dispose of their
immovable properties. It was further pleaded in the suit that the Respondent
No. 2 fraudulently sold the property of the Respondent No. 1 to the petitioner
by executing sale deed on 21.06.2003 on the basis of power of attorney dated
8.10.1990. The Respondent No. 1 who is real brother of the Respondent No. 2 did
not impleaded his sisters as
defendants in the suit. He, further pleaded that even
otherwise, the power of attorney on the basis of which the petitioner acquired
title stood revoked on 2.1.1999 on the death of his sister Ruqueyya
Bibi. The suit was contested by the petitioner. The
Respondent No. 1 neither filed written statement nor appeared in the witness
box and was ordered to be proceeded ex-parte. After the evidence produced by
the parties, the trial Court on 23.12.2009, decreed the suit against which the
petitioner prefened appeal which was dismissed on
20.7.2011. The petitioner thereafter prefened the
revision petition which, too, was dismissed by the impugned judgment.
2. It is contended by the learned counsel for
the petitioner that the suit filed by the Respondent No. 1 against his brother
Respondent No. 2 was collusive and the decree passed therein was obtained by
fraud depriving the petitioner from the subject property which he acquired as
bona fide purchaser, without notice pursuant to the sale deed dated 21.6.2003.
He next contended that the Respondents No. 1 &, 2 were in league
throughout. He submitted that the same power of attorney was challenged by the
Respondent No. 1 in other proceedings by filing another suit, which was
subsequently compromised. He submitted that the High Court as well as the
Courts below have wrongly decreed the suit of the
Respondent No. 1. According to him, the Respondent No. 1 did not produce the
required evidence to seek a decree against the petitioner and his brother
Respondent No. 2. He further contended that the Courts below fell in error in
holding that on the death of Mst. Ruqueyya
Bibi on 2.1.1999 the power of attorney executed by
the Respondent No. 1 and his sisters stood revoked. He contended that he
purchased the property of the Respondent No. 1 bonafidely
and death of one of the executants of power of attorney, whose property or
interest has not been purchased by him, shall not invalidate the sale
transaction.
3. We have heard the learned counsel and perused
the record. It is an admitted fact that the petitioner was never put in
possession of the property which he claims to have purchased from the
Respondent No. 1 by virtue of sale deed pursuant to the power of attorney. We
have inquired from the petitioner's counsel as to whether the petitioner has
filed any suit for possession after the purchase of the property, as admittedly
its possession was not delivered to him by the Respondent No. 2. He concedes
that no suit for possession was filed by the petitioner till date. He could not
offer any plausible explanation for not filing of the suit against the
respondents. The petitioner's cause was independent of the dispute between the
Respondents No. 1 and 2 and irrespective of the findings in
the suit, he was required to file separate suit for
possession against the respondents. The petitioner was party to the suit filed
by Respondent No. 1. against Respondent No. 2 but he
being defendant could not seek a decree against respondents on the basis of his
written statement and the evidence led in support thereof.
4. The petitioner's counsel has also failed to
offer any plausible explanation as to why the possession of the property was
not delivered to him by the Respondent No. 2 on receipt of the entire sale
consideration. The petitioner also, at trial, could not prove the payment of
sale consideration of the property in dispute to establish his bona fide.
5. In the given circumstances irrespective of
the litigation between the Respondents No. 1 & 2, the petitioner ought to
have filed a separate suit for possession of the suit property to seek redressal of his grievance against the respondents. The
contention of the learned counsel for the petitioner that in collateral
proceedings initiated by the Respondent No. 1 challenging the said General
Power of Attorney resulted in compromise could hardly be made a ground to
presume that General Power of Attorney was validly executed by the Respondent
No. 1. The findings of the learned. High Court and
Courts below are based on correct appreciation of the material brought on
record and does not warrant interference by this Court.
6. For the forgoing reasons, we do not find any
merit in this petition, which is dismissed and leave to appeal is declined.
(R.A.) Leave to appeal
dismissed
