Sale is possible through Power of Attorney

PLJ 2011 Lahore 724
[Bahawalpur Bench Bahawalpur]

Present: Ch. Shahid Saeed, J.

FAZAL KARIM etc.--Petitioners

versus

MUHAMMAD AZAM etc.--Respondents

C.R. No. 473 of 1996, heard on 22.2.2011.

Civil Procedure Code, 1908 (V of 1908)--

----S. 115--Civil revision--Revisional jurisdiction--General power of attorney was written for transfer of property--Denied from power of attorney--Transfer of property through any gift or tamleek--Once Court reaches on conclusion that documents were not produced then Court was bound to decide the issue accordingly--Validity--Transaction was not gift deed but it was sale as agreement to sell and receipt issued by plaintiffs were sufficient to establish that it was a transaction of sale and only to avoid from suit for possession through pre-emption, gift deed was prepared in between defendants--Plaintiffs also had failed to produce the evidence in rebuttal--Findings of lower Courts on question of fact and law based on proper appreciation of oral as well as documentary evidence led in suit were not liable to review to be upset or substituted in revisional jurisdiction--Petition was dismissed.        [Pp. 727 & 728] A & B

Ch. Naseer Ahmad, Advocate for Petitioners.

Nemo for Respondents.

Date of hearing: 22.2.2011.

Judgment

Through the instant civil revision the petitioners have challenged the impugned judgments and decrees dated 19.12.1995 and 02.10.1996 passed by the Courts below, whereby suit for declaration alongwith permanent injunction filed by the petitioners as well as appeal was dismissed.

2.  Brief facts as leading to the instant civil revision are that the plaintiffs/petitioners filed a suit for declaration alongwith permanent injunction alleging therein that they are owners in possession of land measuring 15-Kanals, 07-Marlas and 6-3/13 Sarsahi, situated in Chak No. 62/F Tehsil Hasilpur District Bahawalpur. They have not transferred the said land to Defendants No. 1 to 4. The Defendant No. 5 had no authority to transfer the property of the plaintiffs through any gift or Tamleek. The gift deeds dated 15.06.1988 and 23.06.1988 are based on fraud, misrepresentation and ineffective upon the rights of the plaintiffs. When it came into the knowledge of the plaintiffs, the defendants were asked to cancel the same but they refused. Hence, the present suit.

3.  The suit was contested by the defendants vehemently by filing written statements wherein some preliminary objections were also raised. The Defendants No. 1 to 4 stated that the documents, gift deed, and general power of attorney are registered. The plaintiffs did not make any request for cancellation of these documents. The possession is with the defendants. The Defendant No. 5 in his written statement submitted that plaintiffs gave him general power of attorney with their free will. The Defendants No. 1 to 4 executed an agreement to sell with the plaintiffs. The plaintiffs received the consideration amount and then gave general power of attorney to Defendant No. 5 and completed the registry in favour of Defendants No. 1 to 4. From the factual controversy appearing on the pleadings of the parties, learned trial Court led to frame twelve issues including the relief. Thereafter both the parties were directed to adduce their evidence. Both the parties produced oral as well as documentary evidence in support of their respective contentions. Learned trial Court vide judgment/decree dated 19.12.1995 dismissed the suit. Feeling aggrieved thereby, the plaintiffs preferred an appeal before the learned appellate Court which also met with the same fate vide judgment/decree dated 02.10.1996. Hence, the instant civil revision.

4.  Learned counsel for the petitioners/plaintiffs contended that the impugned judgments and decrees passed by the Courts below are illegal, against law and facts on record and inoperative upon the rights of the plaintiffs. The findings of the Courts below on vital issues are the result of misreading and non-reading of evidence. That the petitioners have denied the execution of General Power of Attorney in favour of Defendant No. 5 (Habib Ahmad) alleged to be authorized him to alienate the suit land. It was incumbent upon the defendants to prove that the plaintiffs had duly executed the said document in favour of Habib Ahmad but they have led no evidence whatsoever to prove the execution of said document. That even if the execution of General Power of Attorney is presumed to be correct, but in view of the bar contained in Section 215 of the Contract Act, 1872, the Agent cannot deal with the property of original owner, on his own account, without obtaining the consent of said owner. The alleged Attorney Habib Ahmad has gifted the suit land in favour of his own sons and brother in law. Such alienations have always been declared to be void by the Superior Courts. The disputed gift deed is ineffective and inoperative upon the rights of the petitioners, on this score. Reliance is placed upon "PLD 1985 Supreme Court 341, PLD 2006 Lahore 619 and PLD 1989 Lahore 440". Further maintains that gift could only be executed and the property may be transferred by the donor himself not through the General Power of Attorney.

It has been further argued that the Courts below have committed illegality in not keeping in view the legal aspect that the respondents being party to the document are not permitted in law from asserting the alleged gift deed to be a deed of sale. That there are material contradictions in the statements of the witnesses produced by the respondents/defendants to prove execution of Ex.D-1 and Ex.D-2. Learned counsel further contended that observations made by the learned appellate Court on Issues No. 1 to 3 are different to that of the trial Court, once the Court reaches on the conclusion that the documents were not produced then the Court was bound to decide the issues accordingly but the appellate Court decided Issues No. 1 to 3 against the petitioners/plaintiff contrarily to its observations/findings. Lastly contended that the learned appellate Court observed that the marginal witnesses of General Power of Attorney or gift deed have not been produced, thus, the judgments/decrees passed by the Courts below are not sustainable and the same are liable to be set aside.

5.  The Respondents No. 1 to 5 have been represented by Muhammad Arshad Ali Sangra and Mirza Muhammad Nadeem Asif, Advocates but today none has put presence on behalf of these respondents inspite of the names of learned counsels appeared in the cause list. Therefore, they are proceeded against ex-parte. The rest of respondents have already been proceeded against ex-parte vide order dated 09.06.2009.

6.  The arguments of learned counsel for the petitioners have been heard and perused the record minutely.

7.  The plaintiff Fazal Karim appeared himself as P.W-1, the brother of Ali Ahmad (predecessor of Respondents No. 1 to 4) and denied the execution of agreement to sell as well as receipt, Ex.D-1 and Ex.D-2, respectively. He also denied that he gave General Power of Attorney to Habib Ahmad for completion of said sale transaction. He nothing stated in support of Issues No. 1 and 2 when the onus to prove these issues was on the plaintiffs, as is evident from the law that the person who alleges, has to prove the same. He did not make any application to the trial Court to summon the marginal witnesses of alleged General Power of Attorney and Gift Deed. He also failed to produce any confidence inspiring evidence to disprove the said documents. Muhammad Sabir appeared as P.W-2 and deposed that gift deed in favour of Defendants No. 1 to 4 was fictitiously executed, but the said witness is the resident of for a long place to that of suit property who did not know the whereabouts. He also did not depose anything in support of the plaintiffs.

8.  On the other hand, Abdul Karim appeared as D.W-1 and stated that an agreement to sell Ex.D-1 was executed on 13.06.1988 between the plaintiffs Fazal Karim and Mst. Saleem Bibi and a receipt Ex.D-2 regarding the payment of consideration amount was also written. He stated that according to the agreement, Fazal Karim and Mst. Saleem Bibi agreed to sell the suit property for a consideration of Rs. 2,00,000/- to the Defendants No. 1 to 4. They also received a sum of Rs. 1,90,000/- as earnest money and marked thumb impressions over the agreement to sell and receipt. The possession of land in dispute was handed over to the defendants. The witness further stated that due to the visit of Nawaz Sharif on 13.06.1988 the registry could not be taken place. The plaintiffs gave a Power of Attorney to Habib Ahmad-Defendant No. 5 to get the sale completed. That said Habib Ahmad was present when the Power of Attorney was written. Munir Ahmad appeared as D.W-2 and deposed that the agreement to sell Ex.D-1 and receipt of payment of consideration amount Ex.D-2 were written in his presence. He supported the version of the defendants. The D.W-1 and D.W-2 are the marginal witnesses of Ex.D-1 and Ex.D-2. Habib Ahmad appeared as D.W-3 and stated that he got an amount of Rs. 10000/- from the defendants and transferred the land in dispute in the name of defendants through gift deed. He further stated that the General Power of Attorney was written for transfer of property. Nabi Ahmad, one of the defendants, appeared as D.W-4, who supported the execution of agreement to sell and receipt. In view of these circumstances, this Court comes to the conclusion that the transaction was not gift deed but it was a sale, as agreement to sell and receipt issued by the plaintiffs are sufficient to establish that it was a transaction of sale and only to avoid from the suit for possession through pre-emption, gift deed was prepared in between the defendants. The plaintiffs also failed to produce the evidence in rebuttal. The contention of learned counsel for the petitioners that learned appellate Court while discussing the vital issues observed that the defendants did not produce any documentary evidence to prove General Power of Attorney and Gift Deed, is not supporting one. The defendants fully proved agreement to sell and receipt by producing marginal witnesses. This Court is of the considered view that when onus was on the plaintiffs, the same should have been proved accordingly by the plaintiffs. Moreover, the case law referred by the learned counsel for the petitioners do not support the version of the plaintiffs.

9.  There are concurrent findings of facts in the matter and the Courts below while passing the impugned judgments and decrees took a count of every bit of evidence placed before them and nothing is shown to have been over looked any part of the record from their judicious consideration. Findings of the lower Courts on question of facts and law based on proper appreciation of oral as well as documentary evidence led in the suit, are not liable to review to be upset or substituted in revisional jurisdiction. The Court is not inclined to interfere in the impugned judgments/decrees as there is no any illegality, irregularity, misreading or non-reading of evidence Resultantly, this civil revision being devoid of any force is dismissed with no order as to costs.

(R.A.)  Revision dismissed.