' This revision petition is directed against the judgment and decree, dated 4-1-1986 of the learned Addl. District Judge, Okara whereby while reversing the judgment and decree of the learned trial Court, dated 23-10-1982 the suit filed by the petitioners was dismissed.
2. On 5-12-1979, the petitioners filed a suit for declaration in which the general power of attorney, dated 15-10-1979 (Exh.D1) executed by them in favour of the respondents and two registered sale- deeds, dated 18-10-1979 executed by respondent No.1 in favour of respondent No.2 were assailed.
Their case was that they had succeeded in a pre-emption suit before the learned Collector as well as the learned Additional Commissioner. For getting the said orders implemented in the Revenue Record and to obtain possession of the tube-well from one Aziz Baig respondent No.1 approached them for executing a special power of attorney in his favour. The petitioners were illiterate simple villagers and trusting respondent No.1 they executed a special power of attorney but respondent No.1 got executed a general power attorney in collusion with the marginal witnesses and the staff of the Sub-Registrar. And, on the basis of the aforesaid power of attorney land measuring 103 Kanals owned by Muhammad Ali petitioner No.1 and land measuring 60 Kanals owned by Sharif petitioner No.2 was alienated in favour of respondent No.2 respectively for sale considerations of Rs.52,000 and Rs.24,000 by two registered sale-deeds, dated 18-10-1979. It was averred that two weeks preceding the institution of the suit respondents started claiming title to the land in dispute and examination of the record revealed the above facts.
3. The suit was contested. The case in the written statement was that the petitioners had to pay pre-emption money and for that purpose obtained a loan of Rs.76,000 from respondent No.l. The said amount was advanced on the condition that the land in dispute should be transferred in the name of respondent No.2 on which they agreed. It was further averred that possession of the said land was handed over to respondent No.2. Further, the respondents had made an offer that they can get back their land on payment of the aforesaid amount but they refused.
4. Necessary issues were framed and the suit was tried. Issue No.5 was the all important issue. The learned trial Court noted that the petitioners had deposited the pre-emption money amounting to Rs.73,350 minus Zare-Panjam in the Court on 28-5-1978 and, therefore, the averment of the respondents that they had advanced the money 5/7 days before execution of the general power of attorney led to the inference that the petitioners were not in need of the money, the version of D.W.3 and D.W.5 was contradictory, the scribe, D.W.1 admitted that he did not give any note to the effect that he had read over the document to the parties. Statement of P.W.2, a marginal witness of the general power of attorney was also referred to according to which he had signed the power of attorney Exh.D1 without reading it. His oath on Kalma was also noted. Thereafter the evidence of the plaintiffs was noted and it was observed that the general power cf attorney was the outcome of fraud. Accordingly, the suit filed by the petitioners was decreed on 23-10-1982.
5. The respondents filed an appeal. The learned first Appellate Court noted each and every piece of evidence. It was observed that the evidence of the P.Ws. Was wrongly believed, reasons adduced by D. Ws. For execution of allegedly a special power of attorney was contradictory and that after admission of execution of power of attorney strong evidence was required to prove fraud. It was also observed that the statement of P.W.1 an Advocate, who identified the petitioner before the petition-writer and before the Sub-Registrar and P.W.2 his clerk that they signed the document without reading it was not believable. Accordingly, the appeal filed by the respondents was allowed and the suit filed by the petitioners was dismissed.
6. The learned counsel for petitioner No.2 has raised two contentions. Firstly the consideration for execution of the general power of attorney was statedly a loan of Rs.76,000 allegedly obtained by the petitioners from the respondents for payment of pre-emption money while according to the finding of the learned trial Court it had already been paid much before execution of the general power of attorney. Therefore, the justification for execution of the general power of attorney had totally failed. Secondly, while general power of attorney was executed on 15-10-1979, the two sale- deeds were executed by respondent No.1 in favour of respondent No.2 son of respondent No.1 on 18- 10-1979, the two transactions were hit by the rule laid down in Mst. Ghulam Fatima v. Muhammad Din and others (2004 SCM R 618) and Haji Faqir Muhammad and others v. Pir Muhammad an another (1997 SCM R 1811).
7. On the other hand, the learned counsel for the respondents submits that whatever evidence was produced by the parties, was duly taken into consideration by the learned first Appellate Court and the matter stands concluded by a finding of fact not liable to interference in exercise of revisional jurisdiction. He invited my attention to C.M. No 1167-C of 1989 moved by Muhammad Ali, petitioner No.1, whose land measuring 103 Kanals was involved. It contains a categorical admission that he along with the other petitioner, had sold the land in dispute to respondent No.2 through respondent No.1 as their general attorney. "The power of attorney was actually executed and got registered by the petitioners in favour of respondent No.1 but on the pursuance of one of the relatives (of the said petitioner) the suit in question was filed against the respondents and that he has decided to withdraw the revision petition to his extent". This application came up for hearing before this Court on 13-3-1989 and the revision petition was dismissed to the extent of petitioner No.1 According to him this admission was binding on petitioner , No.2. Reliance was placed on Sher Muhammad Khan v. Ghulam Khan (1990 M LD 334).
8. The submissions made by the learned counsel for the parties have been considered. Execution of a document is a question of fact which stands concluded by finding of fact duly arrived at by the learned first Appellate Court on reappraisal of the evidence. The learned counsel for the petitioner has not been able to point out any misreading or non-reading of evidence except that the justification for the loan statedly advanced by the respondents to the petitioners has failed. The learned first Appellate Court has rightly pointed out that it was for the petitioners to establish fraud after having admitted that they had executed (at least) a special power of attorney. It may be observed that the fate of a document is to be determined after taking into consideration the totality of the circumstances brought out in the evidence and not on the obliging concession of a marginal witness. The assertion in the written statement that the petitioner needed the amount to pay the pre-emption money while it has already been paid could at best lead to a conjecture but could not undo the effect of the evidence on the record. The circumstances brought out on the record as a result of the evidence produced by the parties have given me an impression that both the parties have suppressed certain facts. I have however, examined the entire evidence produced in the case. P.W.1 Mian Saeed Ahmad, Advocate identified the petitioners before the Sub-Registrar.
He stated that he knew the petitioners. He further said that the petitioners had informed him that they had to execute a special power of attorney. Then he went to the room of the Registry Moharrir and put the signatures. He however, in the cross examination, stated that he did not sign a power of attorney or a registry but one power of attorney was signed by him without reading it and further that he did not sign any document without reading it. According to his own showing, he was practising since 1972 and when his evidence was recorded on 5-4-1981 he had a standing of nine years as a lower. He should have realized that ordinarily a special power of attorney does not require registration. He said that he never signed a document without reading it but simultaneously, stated to have signed Exh.D.1 without reading it. Therefore he could not be believed that in the garb of special power of attorney a general power of attorney was manipulated by the respondents. Abdul Ghani, P.W.2, clerk of P.W.1, was one of the marginal witnesses. He too said that he signed Exh.D.1 without reading it. He stated on oath of Kalma that respondent No.1 had committed fraud which appears to have influenced the learned trial Court P.W.2 being a clerk of P.W.1 could not have possibly taken a different stand. Haji Jalal Din was examined as P.W.3. He produced Exh.P.1, his decision as an arbitrator, according to which the respondents were defrauded.
Muhammad Sharif petitioner No.2 appeared as P.W.4. According to him, during the litigation of pre- emption suit, respondent No.1 has been helping him. P.W.1 was got engaged by respondent No.1 who had advanced a sum of Rs.20,000 to him out of which he had still to pay Rs.5,000. According to him on the persuasion of respondent No.1 for getting a tube-well a special power of attorney was executed which was not read over to them nor they had appeared before the Sub-Registrar. Mian Mustafa Haider was examined as D.W.1. He was the scribe of the power of attorney, Exh.D1. He testified that the said document was thumb-marked by Sharif and Muhammad Ali. They were identified by Mian Saeed Ahmad, Advocate who had signed the document after reading it. Haji Sharaf Ali, Registry Moharrir, was examined as D.W.2. He testified that the certificates{{URDU TEXT}}recorded on Exh.D.1 were written by him which was read over and explained to the petitioners in presence of the Sub-Registrar. Mian Saeed Ahmad, Advocate (P.W.1) had identified the petitioners who had signed the relevant register as well. He denied that any fraud was committed with the petitioners.
Muhammad Ali D.W.3 stated that the two petitioners had approached him for selling the land. They went to the house of respondent No.1 where the bargain was struck and thereafter the power of attorney was executed. Muhammad Ashfaq Qureshi, Tehsildar was examined as D.W.4 who had attested Exh.D.1. He stated that the said document was read over to the parties and the executants were identified by Mian Sat ed Ahmad, Advocate, respondent No.1 w:,s examined as D.W.S.
9. The admission of the petitioners to have at least executed a special power of attorney, statements of P.W.1, P.W.2 that they had signed the said document as identifier and marginal witnesses respectively, and the statements of D.W.1, D W.3 and D.W.4 satisfactorily established execution of the general power of attorney by the petitioners. It has come on the record that respondent No.1 has been helping the petitioners for prosecuting the pre-emption suit and had advanced at some stage, a sum of Rs.20,000. It may be noted that the consideration for which land of Muhammad Sharif was sold to petitioner No.2 was Rs.24,000. The two petitioners contested the pre-emption matter without involving any other person as an attorney and their stance that only for implementation of the judgment of the learned Collector and the Additional Commissioner or to obtain possession of the tube-well, a special power of attorney was executed by them on the asking of resp.Indent No.1, could not therefore, be believed.
10. The admission of petitioner No.1, in C.M. No.1167/C of 1989 also ffirnishes strong evidence in favour of execution of general power of attorney, although not binding on petitioner No.2 as contended by the learned counsel for the respondents because the two petitioners had separate holdings.
11. The other contention of the learned counsel has also been considered. The plea has been taken for the first time before this Court. In the case of Mst. Ghulam Fatima, the suit to assail a mutation of sale was decreed which was upheld by the learned first Appellate Court, this Court and leave was refused by the Hon'ble Supreme Court. In the said case the alienation was by a attorney in favour of his wife, the petitioner before the Hon'ble Supreme Court. The report does not indicate whether the plea based on sections 214 and 215 of the Contract Act was or was not raised before the learned trial Court or before any other lower forum. In the case of Haji Faqir Muhammad supra the power of attorney was executed by a father in favour of his son and on the basis thereof he gifted the property in dispute to his two minor sons. The suit filed by the principal was dismissed but the first Appellate Court reversed the judgment on the ground that in getting the general power of attorney executed by the son had deceived his father. The matter was taken before learned Peshawar High Court and the finding recorded was that the principal had not authorized to gift the land to the sons of the agent. The leave petition was dismissed by the Hon'ble Supreme Court. The aforesaid cases proceeded on their own facts while the case in hand has peculiar features. I may add that under section 215 of the Contract Act an agent cannot deal on his own account in the business of the agency without first obtaining the consent of his principal and acquainting him with all material circumstances which have come to his own knowledge on the subject, the principal may repudiate the transaction, if the case shows either that any material fact has been dishonestly concealed from him by the agent, or that the dealings of the agent have been disadvantageous to him. Therefore, it necessarily involves a factual inquiry and unless plea was raised before the trial Court issue framed and parties allowed to lead evidence it is not open to examination for the first time in this revision petition.
12. For what has been stated above, I find no merit in this revision petition which is, accordingly, dismissed. No order as to costs.