' The suit for possession, filed by the respondents claiming ownership of the suit property and challenging the transaction of alienation made in favour of the appellants, was dismissed by the learned trial Court, vide judgment and decree dated 26-9-1988; however, on appeal filed by the respondents, which was, accepted, the said judgment and decree of the Court below was set aside, and the suit has been allowed.
2. Briefly stated the facts of the case are, that on 9-4-1984, the respondents, who are the daughters of Muratab Ali, filed a suit for possession claiming that the suit property measuring 80 Kanals, 6 Marlas, was owned by their father Muratab Ali, and they being his legal heirs, are entitled to the suit property and the sale Mutation No,291 dated 21-11-1981 made in favour of the respondents, in terms of the sale-deed dated 7-7-1981, executed by Bashir Ahmad, the alleged attorney of Muratab Ali is ineffective qua their rights on the grounds that Bashir Ahmad, was never appointed as a valid attorney by Muratab Ali, and therefore, the sale-deed and the mutation have been fraudulently and fictitiously effected. The suit was contested by the appellants, issues were framed, parties were put to trial and the learned trial Court came to the conclusion, that a valid power of attorney had been executed by Muratab Ali in favour of Bashir Ahmad/defendant No,2 on 31-1-1981, and that the attorney had validly executed the sale-deed qua the land in question, in favour of the appellants, which was followed by the Mutation No,291, dated 21-11-1981. The additional relevant fact, which needs mention is that earlier, Muratab Ali had been allotted land in Chak No,446/GB and he in the power-of-attorney dated 31-1-1981, had empowered his attorney Bashir to procure the land in the alternative/exchange for the aforesaid, and it is in lieu of the land in Chak No,446/GB, the land measuring 80 Kanals, 6 Marlas in Chak No,388/GB, Tehsil Samundri, District Faisalabad, was allotted to the deceased Muratab Ali and has been transferred by Bashir in favour of the present appellants. Learned Court of. Appeal, while reversing the judgment and decree of the learned trial Court, has come to the conclusion that the power-of-attorney Exh.D.1 does not pertain to the land in Chak No,388/GB, rather it is for the Chak No,446/GB, and therefore, the attorney had no authority to transfer this land in favour of the appellants. It is also concluded by the learned Appellate Court, that the appellants have failed to prove the valid execution of the power-of-attorney in favour of Muratab Ali dated 31-1-1981 because the Lumberdar of the Chak, who is the marginal witness and identifier of Muratab Ali before the Sub-Registrar, does not belong to the same Chak; moreover, that the appellants have failed to get the finger prints of Muratab Ali on the power of attorney compared and proved through a handwriting expert, that the I.D. Number of Muratab Ali is not given in the power-of-attorney.
3. I have heard the learned counsel for the parties and perused Exh.D.1, the power-of-attorney. In this power-ofattorney, it is clearly mentioned that the attorney shall have the power of alienating such property, which falls to the lot of Muratab Ali in lieu of his land in Chak No,446/GB. From the Exh.D.2, which is the Rapt Roznamcha, Muratab Ali got the land in Chak No,388/GB in lieu of the land for his Chak No,446/GB, which perhaps was cancelled but was restored in the shape of the allotment in Chak No,388/GB. From the statement of P.W.2/Mst. Hafeezan, who in her examination- in-chief has clearly admitted that the land in Chak No,388/GB was in lieu of the land in Chak No,446/GB, when she states that {{URDU TEXT}} ' This settles the question, that the land, which was allotted to Muratab Ali in Chak No,388/GB, is in lieu of the land in Chak No,446/GB, and it is specifically mentioned in Exh.D.1, that the attorney shall have the power to transfer that land of Muratab Ali, which he gets in lieu of the land in Chak No,446/GB, therefore, on the clear construction of the power-of-attorney, it is established that the attorney had the power to alienate the suit property in favour of the appellants.
4. The next question, whether the power-of-attorney was duly executed by Muratab Ali in favour of Bashir Ahmad/defendant No,2, the appellants have examined the scribe of the document as also two marginal witnesses, and the Sub-Registrar, Faisalabad, and through the evidence of these witnesses, it stands amply established that Muratab Ali did execute the power-of-attorney Exh.D.1; only for the reason that the Lumberdar of the village did not identify Muratab Ali, as he was Lumberdar of the Chak No,447 and not 446, by itself would not mean, that there is any defect in the identification of Muratab Ali.
5. The reasoning given by the learned Appellate Court, that I.D. Card number of Muratab Ali is not mentioned in the powerof-attorney, suffice it to say, that there is no proof on the record, if Muratab Ali at that time had an I.D. Card. In any case, no presumption on account of non-mentioning of the I.D. Card can be raised when otherwise the execution of the power-ofattorney has been proved on the record. The other reasoning of the learned Appellate Court, that the appellants did not get the thumb-impressions of Muratab Ali examined through a Finger Expert, it may be mentioned that in fact the onus to prove that the power-of-attorney is fake document, was on the shoulders of the respondents, and they never made any endeavour to get his thumb-impressions on the power-of- attorney disproved through the expert, therefore, instead of drawing an adverse inference against the respondents the Appellate Court, has erroneously concluded otherwise. It may be pertinent to state here, that as per Rapt Roznamcha Exh.D.2, the allotment of the alternate land in favour of Muratab Ali in fact has been procured through Bashir Ahmad/defendant No,2, as attorney, and thus, the factum that he was acting as attorney on behalf of Muratab Ali stood established. This strong piece of evidence has not been controverted by the respondents to prove, that he had not acted on the basis of same power-ofattorney, which is Exh.D.1. It may also be stated, that Muratab Ali had remained alive for the couple of years after the transfer of the land in favour of the appellants, but did not challenge the same, it is only after his death that the present respondents brought the suit for possession, and therefore, it can be, reasonably presumed that Muratab Ali had accepted the valid appointment of Bashir Ahmad as his attorney, and the transfer in favour of the appellants.
6. As regards the view of the learned Court of Appeal, that the consideration of some amount for the execution of the power-of-attorney Exh.D.1 in favour of Bashir has not been proved, it may be stated that for the power-of-attorney the question of consideration is not relevant, moreover, this was not the case of the respondents, and therefore, even if the payment by Bashir to Muratab has not been adequately proved on the record, this would " not mean that the power-of-attorney, which otherwise was proved to be validly executed, was invalid. Anyhow, if Bashir after the sale of the property to the appellants, has failed to pay to Muratab Ali the sale price, Muratab Ali could only seek the recovery of the said amount from Bashir, but the sale could not be annulled on this account. All these aspects of the matter, which have important bearing on the case and are eminent from the reading of the record, have been ignored by the learned Appellate Court, therefore, it is a case of sheer misreading and non-reading of the evidence, thus, the impugned judgment and decree cannot be sustained. Resultantly, by setting aside the judgment and decree of the Court of Appeal, the judgment and decree of the learned trial Court is upheld. Accordingly, this appeal is allowed.