' MUHAMMAD NAWAZ ABBASI, J.---This appeal by leave of the Court has been directed against the judgment dated 8-9-1997 passed by a learned Single Judge in Chambers of the Lahore High Court, Multan Bench, in a civil revision arising out of the cross civil suits filed by the parties.
2. The appellants filed a suit for permanent injunction against the respondents on the ground that the suit-land, subject-matter of the dispute, was owned and possessed by them and the alleged oral sale of the land in favour of respondents was collusive and ineffective to their rights. The respondents on the other hand, filed a suit seeking a declaration that they having purchased the land in dispute, obtained the possession and became its absolute owner therefore, the subsequent cancellation of mutation entered in their name by the Revenue Officer at the instance of Tull, vendor, was illegal. The learned Civil Judge, 1st Class, Khanewal, vide a consolidated judgment dated 31-1-1996 decreed the suit filed by the respondents and dismissed the suit of the appellants.
The judgment and decree was affirmed by a learned Additional District Judge, Khanewal, in appeal filed by the appellants vide judgment dated 25-2-1997 and was also upheld by a learned Single Judge of High Court in the civil revision filed by the appellants.
3. The dispute between the parties pertained to the land measuring 36 kanals and the claim of respondents in the suit was that they had purchased the land from its original owner, Tulli, through his attorney Muhammad Rafiq, for a consideration of Rs,60,000. The sale transaction was entered vide Mutation No,234 on 23-4-1985 at the instance of Tulli and possession of land was also delivered to them vide Report No,441 of even date of Roznamcha Waqiati prepared by the Patwari but subsequently, the Revenue Officer, at the instance of Tulli, predecessorin-interest of appellant, cancelled the mutation vide order dated 22-5-1985 on the ground that Muhammad Rafiq had no authority to sell the land on his behalf. The suit was resisted by the appellants on the plea that general power of attorney of Tulli on the basis of which Muhammad Rafiq sold the land, was forged and the transaction was not genuine. Leave was granted in this appeal vide order dated 5-4-1999 as under:- "6: Learned counsel for the petitioners submitted that though Muhammad Rafique, the alleged general attorney of the petitioners, was made party in the suit but he did not produce the original general power of attorney on the basis of which he allegedly agreed to sell the land of the petitioners to the plaintiffs which was necessary to be produced in view of the objection raised in the written statement 'about its fraudulent nature.. He also maintained that even if the said power of attorney is taken to have been executed by the petitioners on 13-11-1962, as alleged, the exercise of the power under the same in the year 1985 after a lapse of about 23 years was seriously questionable and in these circumstances, it was necessary that the plaintiffs and the general attorney both should have consulted the petitioners and have their consent before selling their land. It was also argued that the learned Judge in Chambers as also the Courts below have placed reliance mainly on the admission of Muhammad Rafique, general attorney made in the written statement as regards making of report 41 of the sale of land by him as attorney of the petitioners and receipt of the entire amount of consideration while decreeing the suit whereas there is no independent evidence about the execution of the power of attorney in his favour as the original document which should have been in possession of Muhammad Rafique had not been produced nor independent evidence was led to prove the payment of the amount of consideration of Rs,1,60,000. The claim that the respondents were delivered possession of the land in lieu of payment of the said amount of Rs,1,60,000 according to the learned counsel stands belied by the fact the suit was decreed for specific performance of agreement of sale and the petitioners themselves have in the execution petition claimed delivery of possession of the land to them, a copy of which has been placed on the record as additional documents, therefore, according to him, it was not a case which could be decreed on the basis Of the evidence available on the record most of which in the circumstances of this case is inadmissible, as against the petitioners.
7. The above noted contentions raised by the learned counsel for the petitioners require examination, therefore, leave to appeal is granted to consider the same."
4. Precisely the case of the appellants was that general power of attorney in question was not a valid document and in any case, Tulli, the owner of land, having visualized the mischievous activities of Muhammad Rafiq, cancelled the power of attorney on 11-5-1985, as an abandoned caution,, to avoid any complication. Their assertion was that the transaction was collusive and void as neither the sale consideration was paid to Tulli nor he delivered the possession of land. The respondents, on the other hand, pleaded that Muhammad Rafiq was holding power of attorney duly registered and being an authorized agent of Tulli sold the land to them under the instruction of his principal. The sale price was paid directly to Tulli and with his consent, Muhammad Rafiq got the sale transaction incorporated the Roznamcha Waqiati of the Patwari for the purpose of attestation of mutation of sale but subsequently the vendor, at the instance of appellants, declined to acknowledge the sale before the Revenue Officer.
5. In order to prove the genuineness of the transaction of sale, the respondents in addition to Muhammad Anwar and Niaz Ahmed, Patwaris of the Halqas, Niaz Muhammad Naib Kanongo, also produced Muhammad Shafi who stated that mutation of sale was entered on the instructions of Muhammad Rafiq, attorney of Tulli in his presence. Abdul Aziz, petition writer produced register containing the entries relating to the execution of power of attorney. Muhammad Rafiq, attorney of Tulli, stated that power of attorney was executed in his favour in 1961-1962 and he sold the land to the appellants and delivered the possession of the land to them under the instructions of Tulli.
Bashir Ahmed, one of the vendee, stated that Tulli having received the payment directly, instructed Muhammad Rafiq for attestation of mutation and delivery of possession. In addition to the oral evidence, appellants also produced certified copy of the power of attorney and the daily diary of the Patwari containing the entries relating to the mutation of sale. (order dated 11-5-1985 (D-3), Nagai Roznamcha dated 4-5-1985 (D-4), copy of Mutation No,234 (D-5), Nagai Jamabandi (D-6 to D-8) and copy of Khasra Girdawari (D-9 to D-11).
' In rebuttal, appellants produced 4 witnesses namely, Wali Muhammad, Nek Muhammad, Mauj Din and Raja Jamsheid. Wali Muhammad, stated that Muhammad Rafiq sold the land in a clandestine manner without holding a valid power of attorney and without the consent or knowledge of Tulli and that he was in possession of land as tenant of Jamsheid Ali, attorney of Tulli, Mauj Din also stated that he was cultivating the land and giving share in the produce to Jamsheid Ali. Nek Muhammad stated that he was marginal witness of power of attorney executed by Tulli in favour of Jamshied Ali. Iman Din, son of Tulli, and Jamsheid Ali, his general attorney stated that the transaction of sale was not genuine and Muhammad Rafiq was not holding a valid power of attorney to enter into such transaction of sale on behalf of Tulli. They stated that neither the payment of sale consideration was made to Tulli nor he delivered the possession of land and Jamsheid Ali was his attorney at the time of sale.
6. Learned counsel for the appellants has contended that the power of attorney was jointly executed by three persons and two had already died, therefore, agency would be deemed to have come to an end in terms of section 201 of the Contract Act, 1872. We may point out that the above provisions cannot be pressed into service in the present case as nothing was brought on record to show that the other two executants of the power of attorney died before or that after the confirmation of allotment of land or at the time of sale, they were joint owners of the property, therefore, the agency if any on behalf of Tulli, would not be terminated by reason of death of other two executants of documents. Be that as it may, no flexible rule can be laid down that when more than one persons jointly appoint a person as their agent, the death of one would result termination of the authority of the agent not only with regard to the deceased but also on behalf of the others.
This question is to be determined in each case on the basis of intention of the parties in the light of terms of the instrument and since the agency under the power of attorney is different to that of other contracts therefore, the agency of power of attorney cannot be stricto senso, adjudged on the touchstone of the principles applicable to the contracts.
7. The essential question requiring determination to resolve the controversy would be firstly, whether Muhammad Rafiq, respondent herein, was holding a valid power of attorney and being duly authorized agent of Tulli was competent to enter into sale transaction, secondly, whether the alleged sale was complete in terms of Section 54 of Transfer of Property Act, 1882, and the vendees being bona fide purchasers, were entitled to the protection of section 41 of the Transfer of Property Act, 1882, despite having not taken care of inquiring the authority of attorney and the consent of seller before the sale which was being made after a period of about 23 years from the date of execution and registration of power of attorney and thirdly, whether without proving the existing of original power of attorney, its certified copy brought in evidence would be admissible and sufficient to hold that Muhammad Rafiq was holding a valid power of attorney and could pass on the title in the land.
The power of attorney is a written authorization by virtue of which the principal assigns to a person as his agent and confers upon him the authority to perform specified acts on his behalf and thus primary purpose of instrument of this nature is to assign the authority of the principal to another person as his agent. The main object of such type of agency is that the agent has to act in the name of principal and the principal also purports to rectify all the acts and deeds of his agent done by him under the authority conferred through the instrument. In view of nature of authority, the power of attorney must be strictly construed and proved and further the object and scope of the power of attorney must be seen in the light of its recital to ascertain the manner of the exercise of the authority in relation to the terms and conditions specified in the instrument. The rule of construction of such a document is that special powers contained therein followed by general words are to be construed as limited to what is necessary for the proper exercise of special powers and where the authority is given to do a particular act followed by general words, the authority is deemed to be restricted to what is necessary for the purpose of doing the particular act. The general words do not confer general power but are limited for the purpose for which the authority is given and are construed for enlarging the special powers necessary for that purpose and must be construed so as to include the purpose necessary for effective execution. This is settled rule that before an act purported to be done under the power of attorney is challenged as being in excess of the powers, it is necessary to show on fair construction, that the authority was not exercised within the four corners of the instrument.
8. This is an admitted fact that original power of attorney was neither brought on record nor its existence was proved and no explanation was offered either by the vendees or by Muhammad Rafiq of its not placing on record but all the three Courts, without attending this basic question, proceeded on the assumption that the original power of attorney was available on record. The certified copy of a power of attorney was produced without proving the loss of original and neither the record of Registrar was called nor any official of his office was examined to prove that power of attorney was registered in the said office and the certified copy produced in the Court was copy of the original. Tulli, the alleged vendor denied that Muhammad Rafiq had authority to have conducted the sale on his behalf and stated that Muhammad Rafiq acted on his behalf without his consent and knowledge, therefore, respondents were under heavy burden to prove that Muhammad Rafiq was holding a valid and genuine power of attorney on the basis of which, he under the instructions of his principal, passed on the title in the land.
9. This is settled law that in absence of original document, its certified copy if not admissible evidence and notwithstanding the presumption of correctness being attached with certified copy of a document pertaining to the official record, if the validity or the existence of the document is disputed and original is not produced, its certified Copy would not be admissible in evidence without proving the non-availability of the original. There was neither anything on record to show that original power of attorney was not available to be produced before the Court nor an explanation was given for non-production of original power of attorney. Be that as it may, even if a presumption of existence of the power of attorney is raised, the transaction would still be not considered genuine and within authority of agent for want of explicit power of oral sale. The attorney was specifically authorized to sell the property through registered sale-deed and in the light of strict rule of construction of power of attorney, the implied authority of oral sale could not be presumed. The attorney was not given general authorization for disposal of property in any manner rather his authority of sale was restricted by registered deed and consequently, his failure to act in the manner as provided in the document would render the transaction invalid. It was held in Fida Muhammad v. Muhammad Khan (PLD 1985 SC 341) as under:-- "It is wrong to assume that every "general" Power of Attorney on account of the said description means and includes the power to alienate/dispose of property of the principal! In order to achieve that object it must contain a clear separate clause devoted to the said object. The draftsman must pay particular attention to such a clause if intended to be included in the Power of Attorney with a view to avoid any uncertainty or vagueness.
' Implied authority to alienate property, would not be readily deducible from words spoken or written which do not clearly convey the principal's knowledge, intention and consent about the same. The Courts have to be vigilant particularly when the allegation by the principal is of fraud and/or misrepresentation."
' The perusal of the attested copy of the power of attorney would show that various acts relating to the management of property, litigation and all other matters concerning the property, including the power of selling through registered sale-deed were mentioned therein in explicit terms and the attorney was bound to act strictly in the manner as specified in the power of attorney to ensure that the transaction was transparent and free of fraud and misrepresentation.
10. The property in respect of which the power of attorney was executed, was allotted to the vendor by the Rehabilitation Department and the powers given therein in the power of attorney were in respect of the litigation of property with the departments, including the power of filing of suits, written statements, appeals, revisions in the Civil Court, High Court and the Supreme Court, the management of property, the ejectment of tenant, receipt of produce and rent from the tenants to pursue litigation, civil and criminal to file affidavits and applications in the suits as well as in execution proceedings and let out property on lease. In addition, the attorney was also empowered to sell the property on receipt of the sale price through registered sale-deed and appoint the Advocate for his assistance. The perusal of this document would show that the power of sale of land was given to the attorney specifically by means of a registered sale-deed and probably the purpose of restricting the power of sale only by registered sale-deed was to avoid any misuse of the said power and to ensure that the sale was with the consent and knowledge of the principal, therefore, in the light of rule of strict construction of such instrument, it could be visualized that the oral sale was not within the authority of agent under the instrument. Be that as it may, Muhammad Rafiq, the attorney of Tulli, without producing original power of attorney, acknowledged the sale in favour of the respondents in his statement before the Court but since the validity of power of attorney was under serious challenge and the receipt of sale price and delivery of possession was also denied, therefore, the appellants were heavy burden to prove the genuineness of the transaction of sale in terms of section 54 of the Transfer of Property Act, 1882. The mere fact that the alleged power of attorney was cancelled by Tulli subsequent to the entry of mutation of sale in the Roznamcha Waqiati, would neither establish the sale nor would be an evidence of existence of a valid power of attorney.
' The next question would relate to the bona fide of the vendees for the purpose of claiming the protection under section 41 of Transfer of Property Act, 1882. The essential conditions to claim the benefit of this provision of law are as under:-- "41.Transfer by ostensible owner. Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be viodable on the ground that the transferor was not authorized to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith."
11. The alleged power of attorney was executed and registered in 1962 whereas the transaction of oral sale had taken place in April, 1985 and there was nothing on record to suggest that at the time of sale, the attorney was holding a valid authority. There is also no explanation that why the attorney without seeking instruction from principal, preferred to enter into an oral transaction of sale and why vendees did not consider necessary to confirm about the authority of the attorney and genuineness of the transaction from the owner. The respondents have not produced an independent person to prove the payment of sale price to Tulli or that sale had taken place on his instructions and thus the manner in which the attorney and the vendees conducted in the matter, would create a serious doubt about the bona fide of vendees and genuineness of the transaction.
12. It was contended by the learned counsel for the respondents that the High Court following the rule that revisional jurisdiction cannot be exercised to interfere in the concurrent finding of the two Courts on the question of fact even if erroneous, has rightly dismissed the civil revision. There is no cavil to the proposition that the revisional jurisdiction of the High Court under section 115, C.P.C. Is invoked only in the cases of exercise of jurisdiction by the lower Courts not vested in them by law or the Court had filed to exercise the jurisdiction so vested or jurisdiction was exercised in an illegal manner or that some material irregularity was committed but this is the settled law that in case in which it is found that the findings of the subordinate Courts were suffering from misreading, non- reading of evidence or that the inference drawn was in utter disregard to the law and facts of the case, the High Court must interfere in the matter in its revisional jurisdiction and correct the illegality committed by the subordinate Courts. This Court has laid down guidelines for exercise of revisional jurisdiction in Shumal Begum v. Gulzar Begum 1994 SCM R 818 as under:-- "The revisional jurisdiction under section 115,C.P.C. Exercised by the High Court is attracted only in cases where the lower Court has exercised a jurisdiction not vested in it by law or it has failed to exercise jurisdiction so vested in it or while exercising jurisdiction the Courts below have acted illegally or with material irregularity. It is, therefore, quite clear that the High Court while exercising revisional jurisdiction cannot disturb the finding of fact arrived at by the lower Court in proper exercise of the jurisdiction vested in the Court and upon consideration of the relevant evidence on record. The finding of fact by the lower Court could only be disturbed in revisional jurisdiction by the High Court, if it is found to be fanciful, perverse or it has been arrived at by a process which had rendered the exercise of the jurisdiction vested in the Court defective. In case of misreading of evidence or non-consideration of legal evidence on record, the exercise of jurisdiction and power possessed by the Court is rendered defective, justifying interference by the High Court in exercise of its revisional jurisdiction. The fact that the High Court on reappraisal of the evidence, find that the finding of fact recorded by the trial Court is preferable to the finding of fact recorded by the first appellate Court cannot justify interference with such finding in exercise of revisional jurisdiction by the High Court. The first appellate Court is the final Court in so far the findings of facts are concerned and such finding can only be disturbed in revisional jurisdiction by the High Court if it is arrived at by the first appellate Court either by misreading the evidence or through perverse appreciation of evidence on record or due to non-consideration of legal evidence on record. From the above-quoted passage of the impugned judgment, it is quite clear that the findings of facts recorded by the first appellate Court was reversed by the High Court on reappraisal of the evidence and by substituting its own opinion for that of the first appellate Court without referring to any defect in the process of reasoning adopted by the first appellate Court. This, in our opinion, was not permissible with the scope of the revisional jurisdiction exercised by the High Court in the case."
13. Learned counsel for the respondents has not been able to convince us that the finding of facts of two Courts were based on legal evidence and sound principles of law and the same were not suffering from misreading or non-reading of evidence or that non-interference of the High Court in the matter in the given facts, was not open to challenge before this Court in exercise of its jurisdiction under Article 185(3) of the Constitution. This Court ordinarily does not interfere in the matters in which the High Court in its revisional jurisdiction, affirmed or reversed the findings of the fact in the light of principles laid down for exercise of such jurisdiction but in exceptional circumstances in a case in which a substantial question of law is involved, or miscarriage of justice has been done, this Court in the light of the concept of doing the complete justice, feels it necessary to interfere in the matter and undo the injustice done to a party.
14. In the light of foregoing reasons, we are of the considered view that all the three Courts were misdirected and misled in arriving to a conclusion which was entirely against the law and facts of the case and was found suffering from serious jurisdictional error. We therefore, allow this appeal and set aside the impugned judgment. In consequence thereto, the suit `stands decreed. There shall be no order as to costs.
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