I intend to decide the following revision petitions by one consolidated judgment having similar facts and law:--
(1) C.R. No.1034 of 1994.
(2) C.R. No.1035 of 1994
(3) C.R. No.3346 of 1994
2. The brief facts out of which C.R. No.1035 of 1994 arises are that land in question was originally owned by late Mst. Zubaida Khatoon who appointed Syed Fayyaz Miran as her general attorney through general power of attorney duly executed and registered in his name on 15-8-1967. The said attorney allegedly executed an agreement dated 7-5-1980 in favour of Malik Muhammad Akbar respondent/defendant No.1 authorizing him to sell the suit property. Subsequently, another agreement of the same nature with time limit was substituted on 20-5-1980. After its expiry he executed another agreement on 21-12-1980 in favour of respondent/defendant No.1 authorizing him to sell the plot in question. On the basis of this agreement respondent/defendant No.1 executed aforesaid agreement to sell dated 30-7-1983 in favour of the petitioner/plaintiff to enter into agreement who executed agreement to sell in favour of Jamal Din on 30-7-1983. According to terms of the agreement to sell total consideration was fixed as Rs.55,140 out of which Rs.50,000 was paid. Possession of the land in question was given to Jamal Din plaintiff/petitioner. The agreement to sell was witnessed by Subedar Major Muhammad Sharif (P.W.1) and Miraj Din (P.W.2). The said Malik Akbar failed to get the sale-deed completed in terms of the agreement. Jamal Din being aggrieved filed suit for specific performance in the Court of Civil Judge 1st Class, Lahore.
3. The brief facts out of which C.R. No.1034 of 1994 arises are that the original owner also gifted land measuring 1 Kanal, 16 Marlas and 195 Sq.Ft. Through registered deed dated 22-5-1984 in favour of Syed Altaf Hussain Shah. Syed Altaf Hussain Shah also filed a suit for possession.
4. Both the above suits were consolidated vide order dated 10-6-1992. The parties filed written statements. Out of pleadings of the parties trial Court framed the following issues:--
(1) Whether the suit is not maintainable in its present form? OPD
(2) Whether the suit is bad for non-joinder and mis-joinder of parties? OPD
(3) Whether the plaintiff has no locus standi and cause of action to bring the present suit? OPD
(4) Whether the suit has not been correctly valued for the purpose of court-fee and jurisdiction? If so, its effect? OPD
(5) Whether the plaintiff is owner in possession of the disputed property? OPP (5-A) Whether the suit filed by Jamal Din is barred by time? OPP (5-B) Whether the agreement to sell dated 30-7-1983 is forged and fictitious? OPP (5-C) Whether the plaintiff Jamal Din is entitled to the decree for specific performance of the contract as prayed for in view of the averment made in the plaint? OPD
(6) Relief.
' The trial Court dismissed the suit of Jamal Din and decreed the suit of Syed Altaf Hussain. The petitioner being aggrieved filed two appeals in the Court of Additional District Judge, Lahore who dismissed the same vide impugned judgment dated 8-2-1994. Hence the present C.Rs. Nos.1034 of 1994 and 1035 of 1994.
5. The brief facts out of which C.R.No.3346 of 1994 arises are that plot in question was owned by late Mst. Zubaida Khatoon defendant No.2/respondent No.2 who appointed her son Syed Fayyaz Miran Gillani respondent No.3/defendant No.3 as her general attorney in order to sell her property situated in Khasra No.943. Respondent No.3/defendant No.3 appointed respondent No.1 Muhammad Akbar as his agent for the purpose of sale of said property who accordingly executed agreement to sell dated 30-7-1983. Prior to that the said attorney allegedly executed an agreement dated 7-5-1980 in favour of Malik Muhammad Akbar respondent/defendant No.1 authorizing him to sell the suit property. Subsequently, another agreement of the same nature with time limit was substituted on 20-5-1980. After its expiry he executed another agreement on 21-12- 1980 in favour of respondent/defendant No.1 authorizing him to sell the plot in question. On the basis of this agreement respondent No.1/defendant No.1 executed aforesaid agreement to sell dated 30-7-1983 in favour of the petitioner/plaintiff. According to the terms of the agreement total consideration was fixed as Rs.62,000 out of which Muhammad Shafiq had paid Rs.20,000 and possession of the property was delivered to him on 18-10-1988. Respondent No.4 has taken possession of the plot in question forcibly from the petitioner on 18-10-1988. The petitioner being aggrieved filed suit for specific performance of agreement dated 30-7-1983. Respondents Nos.2 to 4 filed written statement, controverted the allegations levelled in the plaint. Out of pleadings of the parties the trial Court framed the following issues:--
(1) Whether an agreement to sell was executed between the parties? OPP
(2) If Issue No.1 is proved whether the plaintiff is entitled for specific performance of the contract?
OPP
(3) Whether gift-deed registered on 22-5-1984 in favour of defendant is illegal void? OPP
(4) Whether the plaintiff has no cause of action? OPD
(5) Whether this suit is mala fide and has been filed as counterblast? OPD
(6) Whether the suit is not properly valued for the purposes of court-fee, if so, its effect? OPD
(7) Whether the suit is barred by law of limitation? OPD
(8) Whether the suit is collusive? OPD
(9) Whether the suit is bad for mis-joinder of parties? OPD
(10) Relief.
' The trial Court dismissed the suit vide impugned judgment and decree dated 5-4-1993. The petitioner being aggrieved filed appeal in the Court of Additional District Judge who dismissed the same vide impugned judgment and decree dated 8-2-1994. Hence the present C.R. No.3346 of 1994.
6. Learned counsel of the petitioners submits that Malik Muhammad Akbar was agent appointed by Fayyaz Miran general attorney of original owner late Mst. Zubaida Khatoon. The possession of the land in question was handed over to Jamal Din and Muhammad Shafiq Butt. Malik Muhammad Akbar did not appear in witness-box in spite of the fact that petitioners have impleaded him as defendant/respondent in their suits, appeals and revision petitions. Malik Muhammad Akbar denied his authorization in his written statement but he did not enter appearance in the witness- box. Therefore, adverse inference can be drawn against him. In support of his contention he relied upon Abdul Khaliq Qureshi v. Anis Ahmad (1987 M LD 2502). He further submits that gift was not properly executed in favour of Altaf Hussain as possession of the property in question was not handed over to him as possession of the land in question is with Muhammad Shafiq Butt and Jamal Din. Therefore, there is no valid gift in favour of Altaf Hussain by the original owner. In support of his contention he relied upon Muhammad Bakhsh v. Ellahi Bakhsh (2003 SCM R 286).
7. Learned counsel of the respondents submits that it is not requirement of law to hand over physical possession by the donor in case the donor is not in possession of the land in view of para. 152 of Mohammadan Law. He further submits that both the Courts below have given concurrent finding of fact against the petitioners. Therefore, revision petitions are liable to be dismissed. He further submits that petitioners failed to bring on record any authorization in favour of Malik Muhammad Akbar. Therefore, both the Courts below were justified to dismiss the suit of the petitioners Muhammad Shafiq and Jamal Din.
8. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
9. It is better and appropriate to reproduce basic facts in chronological order to resolve the controversy between the parties:--
(i) The original owner late Mst. Zubaida Khatoon respondent No.2 appointed her son Syed Fayyaz Miran Gillani respondent No.3 as her general attorney for the purpose to sell her property in question. Respondent No.3 appointed respondent No.1 Malik Muhammad Akbar as his agent vide agreement dated 7-5-1980 according to which respondent No.1 has to arrange bargain qua the land in question as agent/broker who could only receive token amount whereas the sale consideration has to be. Received by Syed Fayyaz Miran Gillani himself. This agreement was substituted by said attorney of the original owner in favour of respondent No.1 Malik Muhammad Akbar along with Sajjad Hussain and Abdul Majeed on 20-5-1980 authorizing them to arrange a bargain of property in question within a period of 2 months after execution of the agreement after completing the legal formalities.
(ii) Thereafter another agreement was allegedly executed by said attorney of the original owner in favour of respondent No.1/defendant No.1 on 21-12-1980. It is pertinent to mention here that this agreement was not produced on record.
(iii) Respondent No. 1/defendant No.1 entered into agreements for sale of respective plots in favour of the petitioners on 30-7-1983. He also received major part of the consideration from the petitioners.
(iv) Jamal Din petitioner also filed suit for permanent injunction against WAPDA authorities wherein he took a stand that he purchased the property in question from respondent No.3 Syed Fayyaz Miran Gillani and did not mention a single word about purchase of the property from Malik Muhammad Akbar.
' In case the aforesaid facts are put in a juxtaposition then it is crystal clear that respondent No.1 was not agent of the attorney of the original owner or the original owner at the relevant time.
Therefore, any agreement executed by the petitioner with respondent No.1 Malik Muhammad Akbar has no binding force upon the general attorney of the original owner as well as the original owner.
It is pertinent to mention here that witnesses Muhammad Sharif and Meraj Din admitted in their statements that they did not seen authorization in favour of Malik Muhammad Akbar by Syed Fayyaz Miran Gillani who had orally mentioned to them that he was authorized by said attorney to sell the property in question. There is no doubt that Malik Muhammad Akbar respondent No.1 did not appear as a witness in the present case but he filed written statement and controverted the allegations levelled by the petitioners in the contents of the plaint to the extent that lie had not executed agreements dated 30-7-1983 in favour of the petitioners Jamal Din and Muhammad Shafiq Butt respectively. The petitioners are beneficiaries of the agreements to sell, therefore, it was their duty to prove that the agreements were executed in favour of the petitioners by Malik Muhammad Akbar duly authorized agent of general attorney of the original owner. Both the Courts below have given concurrent finding of fact that Malik Muhammad Akbar has no lawful authority to execute agreements to sell in question on behalf of the general attorney of original owner.
Therefore, findings of the Courts below in the suits and appeals filed by Muhammad Shafiq Butt and Jamal Din for specific performance of agreements to sell dated 30-7-1983 are upheld. It is also settled principle of law that it is discretionary relief. Both the Courts below have refused to grant discretionary relief to the petitioners after judicial application of mind which is in consonance with the law laid down in Nowab Meah Chowdhury v. Syed Ezaz-ud-Din Ahmad (PLD 1962 Dacca 655). It is also settled principle of law that once the agency is created in favour of any person which shows complete trust by the principal qua the agent, each word of the agency is to be construed strictly and also to be strictly proved. In arriving to this conclusion I am fortified by the law laid down in Haji Mitha Khan's case (1995 CLC 896). It is also settled principle of law that in case the general power of attorney does not contain any specific authority empowering the general attorney to delegate his power to any other person, sale by that person would be void. Therefore, in the present case even if general attorney has executed authority in favour of respondent No.1 the same is void. In arriving to this conclusion, I am fortified by the law laid down by the Division Bench of Karachi High Court in Gulfam and others v. Ali Muhammad and others (PLD 1989 Kar. 499). In the present case there is another important aspect of the matter that it is settled proposition of law that it is the duty and obligation of the petitioners to place on record copies of the documents which are before the Courts below in view of section 115, C.P.C. The basic document in this case is general power of attorney executed by original owner late Mst. Zubaida Khatoon in favour of her son Syed Fayyaz Miran Gillani on 15-8-1967 which is a material document to determine whether Syed Fayyaz Miran Gillani was authorized by the original owner to appoint any agent for the purpose of selling the property in question. This document was not produced by the petitioners before the lower Courts and they also did not attach the same with the revision petitions.
10. So far as the suit for possession filed by Altaf Hussain is concerned, the land in question was gifted by original owner late Mst. Zubaida Khatoon in favour of the respondent/plaintiff. As the suits filed by Muhammad Shafiq Butt and Jamal Din have been dismissed, therefore, both the Courts below were justified to give finding concurrently against Jamal Din that Jamal Din has no locus standi to challenge the gift made by original owner in favour of Altaf Hussain.
' In view of what has been discussed above, there is no illegality or irregularity in the impugned judgments of both the Courts below. All the three revision petitions have no merit and the same are dismissed.