' This judgment shall deal with and decide Civil Revision No. 1467-D/97 titled "Muhammad Asif Raees Ahmad v. Zubaida Bibi and others" and Civil Revision No.1468-D/97 titled "Muhammad Sharif and others v. Mst. Zubaida Bibi and others". Both the Civil Revisions involve common questions of law and facts and relate to the suit-land claimed by respondent i.e. Mst. Zubaida Bibi as donee from her father, Suraj Khan, while petitioners of both petitions claim the said land as vendees.
2. Respondent i.e. Zubaida Bibi's father i.e. Suraj Khan owned agricultural land in village Deh Punju, Tehsil and District Lahore. Respondent was the only issue of her father. Suraj Khan jointly with his three bothers (Bagh-e-Dil, Urjan Khan and Chohtay Khan) and one sister on 3-1-1977, executed in favour of another brother Muhammad Yaqub, a joint General Power-of-Attorney (Exh. D-2 and Exh.P-3). On the strength of this power-of-attorney, said Muhammad Yaqub on 14-11-1983 executed following sale-deeds:--
(i) Sale-deed bearing Registration No.32849, Bahi No. 1, Volume No.1116 (Exh. P-4) for land measuring 18 Kanals, 12 Marlas in favour of his real son namely; Asif Raees Ahmed for a purported consideration of Rs. 25,000 and this sale-deed is the subject of Civil Revision No.1467-D/97); and
(ii) Sale-deed bearing Registration No.32950, Bahi No.1, Volume No. 1157 (Exhs. P-5 and P-6) in favour of his real nephews namely; Muhammad Sharif and Muhammad Akbar sons of Chohtay Khan i.e. The subject of Civil Revision No.1468-D of 1997.
3. On 19-12-1983, above-referred Suraj Khan and Zubaida Bibi daughter of Suraj Khan, filed two suits to seek declaration of Zubaida Bibi's title to the suit-land as donee from Suraj Khan and for cancellation of above-referred sale-deeds and also for perpetual injunction. During pendency of the suits, Suraj Khan died leaving Zubaida Bibi i.e. Respondent to prosecute the said suits. Amended plaints thereupon were filed. Suit against Asif Raees Ahmad and his father Muhammad Yaqub was numbered as 79/1/31-1-1990 and suit against Muhammad Sharif, Muhammad Akbar and Muhammad Yaqub was numbered as 80/1/31-1-1990. Plaintiff i.e. Zubaida Bibi in the plaints claimed to be owner in possession of the suit-land on the basis of gift-deeds, dated 15-9-1983 (Exhs. P-1 and P-2) and Rectification Deed, dated 7-11-1983 made by her father Suraj Khan, in her favour. She also challenged sale-deeds in favour of petitioner-defendant(s) as illegal, void, fraudulent and ineffective for non-execution of the same by Suraj Khan and non-receipt of consideration. Power- of-Attorney (Exh.P.3) in favour of Muhammad Yaqub was also challenged but this challenge was given up subsequently upon adjudication of another suit in favour of Muhammad Yaqub.
Petitioner(s) as defendant(s) filed" contesting written statements denying alleged gift-deeds in favour of Zubaida Bibi i.e. Respondent and asserted legality of above-said sale-deeds in their favour. It was specifically pleaded in the written statement that the sale-deeds were made on 26- 7-1983 registered on 14-11-1983 (after gift-deeds, dated 15-9-1983) yet late registration was inconsequential. And that sale price was received by Suraj Khan (plaintiff No.1) but no receipt of money was executed.
4. The learned Civil Judge framed eight issues and recorded evidence of the parties. On behalf of plaintiffs, Bhag Ali appeared as P.W.1, Sadiq Ali as P.W.2 and Muhammad Israel (husband and attorney of plaintiff Zubaida as P.W.3). On behalf of petitioner(s) defendant(s) only Muhammad Yaqub defendant appeared as D.W. I.
5. The learned Civil Judge through judgment and decree, dated 27-3-1990, dismissed both the above-said suits of Zubaida Bibi, who filed appeals thereagainst. The learned Additional. District Judge partly accepted the appeals through judgment and decree, dated 12-5-1997 by maintaining findings of learned Civil Judge on Issue No.6 to deny respondent's exclusive ownership as donee of the suit-land but modified the decree of the learned Civil Judge on Issue No.5 by holding that the petitioner-defendant(s) also failed to prove the sale-deeds in their favour. The learned Additional District Judged further decreed that estate of the deceased Suraj Khan be distributed in accordance with Muhammadan Law.
6. Zubaida Bibi i.e. Respondent did not challenge judgment and decree, dated 12-5-1997 of learned Additional District Judge. Present Civil Revisions were, however, filed by the petitioner defendant(s).
Muhammad Yaqub also died and Asif Raees Ahmad was substituted in lieu of his father C.M. No.1-C of 2000 filed by Mst. Ramzan Bibi daughter of Urjan Khan (real niece of Suraj Khan) was also accepted through order, dated 29-10-2002 to implead said Ramzan Bibi as respondent No.2 in civil revisions. Amended memo. Of parties were brought on record on 10-1-2003.
7. The learned counsel for the petitioner sought reversal of the impugned judgment and decree, dated 12-5-1997 of the learned Additional District Judge and prayed for restoration of the judgment and decree, dated 27-3-1993 of the learned Civil Judge, Lahore. Learned counsel for respondents supported the impugned judgment and decree, dated 12-5-1997.
8. It was pointed out by learned counsel for the respondents that a number of documents produced in evidence by the parties as well as statements of P.W.1 and P.W.2 were not filed by the petitioner(s) along with the civil revisions and as such sought dismissal for breach of mandate contained in section 115 of the Code of Civil Procedure, 1908. The learned counsel for the petitioner specifically stated that the said documents were not relevant for decision of civil revisions, therefore, he would not place any reliance on the said documents and that civil revision be decided without the said documents.
9. Be that as it may, Exh.P.3 being general power-of-attorney in favour of Muhammad Yaqub from Suraj Khan and statements of P.W.1 and P.W.2 appearing as plaintiffs' witnesses were adjudged necessary by the Court for Court's examination. The petitioner(s) were thus directed to produce the same. The learned counsel on 1-10-2003 sought to produce uncertified copies of the said documents on record. For the reasons recorded in order, dated 1-10-2003, this prayer was granted to bring on record the power-of-attorney (Exh.P.3/D.2) and depositions of P.W.1 and P.W.2 to evaluate the case.
10. I have heard the learned counsel for the parties and also examined the record available with the civil revisions.
11. Following issues were framed by the learned trial Court:--
(1) Whether the suit is liable to be stayed under section 10, C.P.C.? OPD
(2) Whether the suit for mere declaration is maintained? OPP
(3) Whether the value of the suit for court-fee and jurisdiction is correct. If not, what is the correct value? OP parties.
(4) Whether the disputed general power-of-attorney is based on fraud and forgery and is thus void. If so, to what effect? OPP
(5) Whether the disputed sale-deed is void? If so, to what effect? OPP
(6) Whether the plaintiff No.2 is the owner of the land covered by sale-deed? OPP
(7) Whether the plaintiffs are estopped to bring this suit? OPD (7A) Whether all the heirs of deceased plaintiff have not been impleaded. If so, with what effect?
OPP.
' Issues Nos. 1 and 3 were decided by the learned Courts below as not pressed. Upon submission of amended plaint, decree for cancellation of the sale-deed was also sought by the respondent- plaintiff wherefor Issue No.3 became irrelevant. Similarly in amended plaint relief for decree for cancellation of general power-of-attorney (Exh.D.l/Exh.P.3) was deleted by the respondent-plaintiff in view of decision of the suit by learned Civil Judge on this subject against the plaintiff- respondent. Issues Nos. 7 and 7-A were also left unpursued. As such Issues Nos. 1, 2, 3, 4, 7 and 7-A are not the subject-matter of the present civil revisions.
12. Issues Nos. 5 and 6 relating a validity of sale-deeds in favour of the petitioner(s) and plaintiffs- respondents exclusive ownership of the suit-land were also decided by the learned Civil Judge against the plaintiff. She preferred an appeal to challenge the findings of the learned Civil Judge on these issues. This appeal partly succeeded. The learned Additional District Judge, Lahore, through judgment and decree, dated 15-5-1997 decided issue No.5 against the petitioner(s) by holding that they had failed to prove the sale-deeds in their favour. On issue No.6 the learned Additional District Judge decreed that as both the parties had failed to prove their respective documents (gift-deed and sale-deeds) in their favour, therefore, estate of deceased Suraj Khan be distributed amongst of the heirs in accordance with Muhammadan Law and Sharia.
13. Respondent-plaintiff, i.e. Zubaida Bibi accepted the above-referred judgment and decree, dated 15-5-1997 of Additional District Judge, Lahore, and did not file any civil revision thereagainst. Even during arguments the learned counsel for the respondent did not address any arguments to advance the purported gift-deed in favour of respondent or exclusive ownership. The respondent Zubaida Bibi seems content to inherit the share allocated to her in Muhammadan Law as the only heir/ daughter of Suraj Khan.
14. Petitioner(s) however filed the present civil revision(s) to challenge the findings of the learned Additional District Judge on above said issues. The main thrust of the arguments of the learned counsel for the petitioner(s) was that petitioner(s) had succeeded in proving the sale-deeds executed in their favour by Muhammad Yaqub i.e. The General Attorney of Suraj Khan (Exh.D.1 and Exh.P.3), which had been adjudged by the learned Civil Judge to be valid document whereupon the respondent plaintiff gave up the cancellation plea against the said power of attorney. And that even otherwise onus of Issue No.5 was on respondent-plaintiff, Zubaida Bibi, who failed to discharge the same. The learned counsel for the respondent advanced contrary propositions. On behalf of the respondent-plaintiff her husband and special attorney, Muhammad Israel deposed as P.W.3. He stated in his deposition for Zubiada Bibi plaintiff, that Muhammad Yaqub, the general attorney of Suraj Khan, executed sale-deed (Exh.P.4) in favour of his real son for part of the land and made purported transaction of sale through Exh.P.5 and Exh.P.6, to real nephews, with the object to deprive Zubaida Bibi for her inheritance as the only daughter of Suraj Khan. In answer to questions of petitioners in the cross-examination he denied that Suraj Khan wanted to transfer the said land to his brothers and that the registered sale-deeds (Exhs. P.4 to P.6), were made on the instructions of Suraj Khan. This statement of Muhammad Israel as husband and attorney of Zubaida Bibi plaintiff denying sale-deeds was adequate to discharge burden of proof placed on female plaintiff. It is noteworthy that initially the suit was jointly filed by Suraj Khan as plaintiff No.1 and Zubaida Bibi plaintiff No.2 to challenge said sale-deeds. It has not been stated or urged by respondents that the suit was not signed or filed by Suraj Khan himself. The only assertion of the petitioner(s) as defendant(s) was that suit was filed by Suraj Khan and Zubaida Bibi under pressure and threat of Muhammad Israel (P.W.3). This suggestion was specifically and credibly denied by Muhammad Israel in his cross-examination. No further question whatsoever was asked from him. It is also an admitted case of the parties that Muhammad Yaqub, General Attorney and real brother of Suraj Khan used his general power-of-attorney, dated 3-1-1977 to execute deeds (Exh.P.4. And Exh.P-6) on 14-11-1983 on behalf of Suraj Khan in favour of his real son Asif Raees Ahmad and his real nephews Muhammad Ashrif etc. The beneficiaries of these transactions of sale were closest possible blood relations of general attorney Muhammad Yaqub. In these circumstances onus shifted upon the petitioner(s) as defendant(s) to prove that:--
(i) Sale in question on behalf of Suraj Khan to his real son and real nephews by Muhammad Yaqub attorney were real, genuine, honest and proper transactions;
(ii) Suraj Khan had knowledge of the sale transactions and had agreed to such sales and was also paid the sale price, if any; and
(iii) Muhammad Yaqub, general attorney was granted the power in the General Power-of-Attorney (Exhs.D.1 and P.3) to execute and register the sale-deeds (Exhs.P.4 to P.5) in favour of his real son and real nephews.
15. The burden on beneficiaries/ petitioner(s) was thus heavy. To discharge this burden they only presented Muhammad Yaqub (defendant and general attorney of Suraj Khan) as D.W.1. He deposed that he through Exh.P.3 had been appointed as the general attorney by all his brothers and the sister and he used to obtain allotment against their claims. He further deposed that suit- land was sold on the desire of Suraj Khan and his son-in-law Muhammad Israel "to our brother and nephews" proportionate to the amount available with them. And that remaining land was sold to one Abdul Ghani for a sale price of Rs.1,50,000 and upon receipt of earnest money of one lakh, the same was paid to Suraj Khan in the presence of Muhammad Israel to whom the money was given by Suraj Khan. In the cross-examination he admitted that he did not take any receipt from Suraj Khan. By denying non-presence of witnesses to oversee payment of money to Suraj Khan, he asserted exchange of money in presence of witnesses. He also admitted that he made impugned sale-deeds, in favour of his real son Asif Raees Ahmad and in favour of real nephews and that Suraj Khan had not gone to the office of Registrar and that the power-of-attorney (Exh.P.3) in his favour was jointly executed by all his brothers and the sister and that no independent power-of-attorney was given by Suraj Khan.
16. From the above synopsis of evidence of D.W.1, following facts become evident:--
(i) D.W.1. Muhammad Yaqub did not specify and particularize the sale price;
(ii) He did not at all state in the examination-in-chief that he had received any money from his son and 'nephews as sale price for the land transferred to them and that he paid the same to Suraj Khan;
(iii) He only stated in examination-inchief that his brother and nephews purchased the land proportionate to the amount available with them but this amount or the sale price was not specified and payment of available amount was not asserted;
(iv) His deposition only was that he sold the remaining land to one Abdul Ghani for a sale price of Rs.1,50,000 out of which he received Rs.1,00,000 as earnest money and paid the same to Suraj Khan in presence of Muhammad Israel;
(v) He admitted in the cross-examination that (a) he did not take any receipt from Suraj Khan for any purported payment; (b) Suraj Khan had not appeared before Registrar; (c) the power- ofattorney to him was joint from all his brothers and sister;
(vi) He did not make any deposition that possession of the land under purported sales was transferred; and
(vii) He was categorical in the cross-examination that exchange of money was witnessed by witnesses.
17. The above-deposition of D.W.1, is strikingly deficient in proving delivery of possession, the amount of sale price, its receipt by him as attorney of Suraj Khan from his son and nephews for purported sales and re-imbursement by him as agent to his principal Suraj Khan. Despite asserting in the cross-examination that exchange of sale price was witnessed by others, not a single witness was presented either by Muhammad Yaqub (himself a defendant) or the petitioner(s) to prove the sale, transfer of consideration, delivery of possession or receipt of money by Suraj, Khan. In the joint written statement the defendants including the petitioner(s) had particularly pleaded that Suarj Khan had received the sale consideration himself but this fact was not reiterated by attorney Yaqub (D.W.1) himself and no witness was presented by defendant-petitioner(s) to prove the same.
18. Examination of the power-ofattorney (Exh.D.1 and Exh.P.3) shows that this power-of-attorney in favour of D.W.1 Muhammad Yaqub was made on 3-1-1977 by all his brothers and the sister. This was also admitted by D.W.1 in his deposition. The power-of-attorney was made in general terms giving stereotype powers to D.W.1 for seeking allotment of the land, contesting cases for this purpose, selling, mortgaging, gifting or exchanging the land. Description of land was conspicuously absent from the joint power-of-attorney. The object of this power-of-attorney, dated January, 1977, therefore, appears to be only to secure allotment of land against claims. Had the purpose been to confer powers of sale etc. On behalf of each land holder, share of each share holder the land and its area would have been specifically set up in the powerof-attorney or otherwise independent and separate document or attorney would have been granted by each individual. This power-of- attorney does not authorize D.W.1 to act as general attorney for each single principal separately and independently. The term employed throughout in the said power-of-attorney for principals is "Ma-Muqarran" which obviously connotes a joint action on behalf of all the principals and cannot be interpreted to confer power on D.W.1 Muhammad Yaqub to act for anyone of the joint donors of power-of-attorney. D.W.1 in the first three lines of his examination-inchief admits that he used to obtain allotment against the claim of his brothers and sister who had jointly appointed him as General Attorney through Exh. P.3 which as such obviously did not delegate power to act on behalf of an individual allottee of the land after allotment.
18. Petitioner(s) deliberately withheld the document of General Power-of-Attorney (Exh.D-1/P-3) and did not produce the same with the civil revisions despite mandatory requirements of section 115 of the Code of Civil Procedure, 1908. The learned counsel for the petitioner also stated that no reliance was to be placed on documents not produced by him. It was upon specific direction of the Court that copies of Power-of-Attorney (Exh.D.1/P.3) were produced on 1-10-2003. Furthermore, despite specific directions in para. 3 of order, dated 24-9-2003 to petitioner(s) to place on record "all the exhibits", the petitioner(s) failed to produce impugned sale-deeds (Exh.P.4 to Exh.P.6) and many other documents on record. The presumption thus obviously goes against the petitioner(s) who under law being beneficiaries of the impugned sale-deeds should have produced the same for examination by this Court.
20. Even otherwise, I am of the opinion that in absence of specific delegation of power by Suraj Khan to Muhammad Yaqub (D.W.1) to transfer land to his real son and real nephews, Muhammad Yaqub was not competent and authorized to sell or transfer or alienate the suit-land to Asif Raees Ahmad (his son) and Muhammad Sharif etc. (his nephews). In view of the close blood relationship of Muhammad Yaqub with the alleged vendees, he was under a heavy burden to prove express permission and payment of sale price to Suraj Khan for the said transactions.
21. In absence of clear proof of the genuineness of these sales and sale consideration, the only conclusion that can be drawn under the circumstances is that in actuality the transactions were sham and Muhammad Yaqub (the General Attorney/ D.W.1) was himself the beneficiary of the sale-deeds and wished to deprive Zubaida Bibi-of her legitimate inheritance as the sole issue of Suraj Khan. The petitioners and Muhammad Yaqub in their greed forgot that since Zubaida Bibi was the only issue of Suraj Khan, therefore, under Hanafi Law applicable to the parties, brothers of Suraj Khan (or their heirs) and petitioners would have, in any case, inherited Suraj Khan's estate along with Zubaida Bibi on death of Suraj Khan.
22. In view of what has been discussed above, I do not find any infirmity in the impugned judgment and decree, dated 12-5-1997 of learned Additional District Judge, Lahore, who validly decreed the devolution of the estate of Suraj Khan deceased upon all his legal heirs (including the parties) in accordance with Injunctions of Sharia and Muhammadan Law.
23. The civil revisions are thus dismissed with no order as to costs.