' The brief facts out of which the present revision petition arises are that the land in question measuring 17 Kanals, 15 Marlas situated at Amir Singh District Sheikhupura was inherited by the respondent/ plaintiff vide inheritance Mutation No.233. The parties are inter se related. The respondent/plaintiff is nephew of petitioner No.3. The petitioner/defendant No.3 is father of petitioner No.2/defendant No.2 and also brother of petitioner No.1. The respondent/plaintiff executed General Power of Attorney with regard to the land in question in favour of petitioner No.3/defendant No.3 on 11-4-1983, which was attested by Muhammad Umar Khan and Malik Muhammad Mansha. Petitioner No.3/defendant No.3 sold the land in question in favour of petitioner No.2/defendant No.2 and petitioner No.1/defendant No.1, who are his real son and brother on 10-5-1983. The respondent/plaintiff filed a suit for declaration with consequential relief of permanent injunction on 27-7-1991 in the Court of Civil Judge, Sheikhupura against the petitioners/defendants. The contents of the plaint reveal that the respondent/ plaintiff executed a General Power of Attorney, as mentioned above, in favour of Ahmad Ali for supervising the property in question. 8 years ago they came to Sheikhupura for the same. The contents of the plaint further reveal that petitioner No.3/defendant No.3 got entered the word of sale, gift and mortgage in the deed of attorney without knowledge of the respondent/plaintiff, who subsequently, as mentioned above, in the year, 1983 sold the land in question in favour of his brother and son through registered sale-deed and Mutation No.499 was also sanctioned on 20-8-1984. The contents of the plaint further reveal that respondent/plaintiff filed a suit for declaration against the legal value of the sale-deed and mutation on the allegation of fraud. The petitioners/ defendants filed the written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties, the learned trial Court framed the following issues:--
(1) Whether the plaintiff has no cause of action? OPD
(2) Whether the plaintiff is estopped by his words and conduct? OPD
(3) Whether the suit is not maintainable? OPD
(4) Whether the defendants are entitled to special cost under section 35-A CPC? OPD
(5) Whether the General Power of Attorney, dated 11-4-1983 is illegal, fictitious, result of fraud and collusive? OPP
(6) Whether the sale-deed, dated 10-5-1983 and Mutation No.499, dated 20-8-1984 are illegal, against law and fact, result of fraud, collusive and without authority and therefore, the plaint is liable to be rejected? OPP
(7) Relief.
' The learned trial Court dismissed the suit vide judgment and decree, dated 13-12-1995. The respondent/plaintiff being aggrieved preferred an appeal in the Court of Additional District Judge, Sheikhupura, who accepted the same vide impugned judgment and decree, dated 6-1-1998, hence the present revision petition.
2. The learned counsel of the petitioners/defendants submits that the judgments of both the Courts below are at variance. He further submits that the First Appellate Court reversed the findings of the trial Court without adverting to the reasoning of the Trial Court. He further submits that the respondent/plaintiff is not in possession of the land in question and execution of General Power of Attorney and sale was effected on the basis of the General Power of Attorney in favour of the petitioner No.3, therefore, suit for declaration under section 42 is not maintainable but this fact was not considered by the First Appellate Court as the respondent/plaintiff has to file the suit for cancellation of the document under section 39 of the Special Relief Act. The time is prescribed three years to file a suit for cancellation of a document under section 114 of the Limitation Act whereas respondent/plaintiff has filed a suit after 8 years. He further submits that suit under section 42 is also time barred as the suit was filed by respondent/plaintiff after 8 years in view of Article 120 of the Limitation Act according to which respondent/plaintiff has to file suit within 6 years. He further submits that this fact was admitted by the respondent/plaintiff in the grounds of appeal before the First Appellate Court in paragraph 1, which is to the following effect:-- {{URDU TEXT}} ' This fact was also noted by the First Appellate Court in narration of facts but did not give any finding in the operative part, therefore, judgment of the First Appellate Court is result of misreading and non-reading of the record, therefore, based on surmises and conjectures. He further submits that it is the duty and obligation of the Court to frame issues and to take note qua maintainability of the suit keeping in view the mandate of section 3 of the Limitation Act that the suit is time- barred but the First Appellate Court did not consider this aspect of the case, therefore, judgment of the First Appellate Court is not sustainable in the eye of law. He further urges that it is the duty and obligation of the Court to frame issues in terms of the pleadings of the parties as is envisaged by Order 14 read with Rule 5 of C.P.C. But the Courts below failed to frame the issues with regard to limitation, therefore, impugned judgment is not sustainable in the eye of law. In support of his contention, he relied upon Ahsan Ali and others v. District Judge and others (PLD 1969 SC 167). He further submits that suit of the respondent/ plaintiff is not maintainable in view of Proviso of section 42 of the Special Relief Act as the respondent/plaintiff has not claimed partition of the joint property in question, therefore, judgment of the First Appellate Court is not in accordance with law laid down by the superior Courts. In support of his contention, he relied upon Atma v. Guddoo Ram (AIR 1933 Lahore 712) and Ishwari v. Norain Dada 1914 ILR 312. He further submits that execution of the General Power of Attorney was accepted by the respondent/plaintiff, therefore, requirement of producing two attesting witnesses is not necessary and the judgment relied by the First Appellate Court is not applicable in the present case as in the cited judgment execution of the document was denied whereas as mentioned above, the respondent/plaintiff has accepted the execution, therefore, judgment relied by the First Appellate Court (1991 CLC 820) is not applicable in the given circumstances of this case. He further submits that respondent/plaintiff has admitted that the General Power of Attorney contained his signatures in cross-examination but this fact was also not noted by the First Appellate Court in its true perspective. He further submits that the General Power of Attorney was attested by the attesting authority wherein respondent/plaintiff accepted that he has heard the contents of the document and thereafter it was registered. This fact was also not noted by the First Appellate Court and decided the case without application of mind. He further submits that document in question is proved on the well known principle that official acts are presumed to be correct and performed in accordance with law in view of Article 129 (e) read with Article 95 of the Qanun-eShahadat Order, 1984. He further submits that respondent/plaintiff claimed this case that General Power of Attorney was executed by fraud and misrepresentation whereas the respondent/plaintiff filed to prove that fraud has been committed by the petitioners with the respondent/plaintiff, therefore, judgment of the First Appellate Court is result of misreading and non-reading of the record as the petitioners have produced witnesses that document in question was executed in accordance with law, therefore, onus was automatically shifted to the respondent coupled with the fact that respondent has admitted his signatures on the General Power of Attorney. He further submits that property in question and the properties mentioned by the First Appellate Court with regard to the price of the land are not in consonance in terms of statement of P.W.3 Ikram, who stated in his statement that the land in question is "BANJAR", therefore, judgment of the First Appellate Court is result of misreading and non-reading of the record. He further submits that consideration was also passed on to respondent/plaintiff as is evident from the statement of D.W.1 Muhammad Mansha and D.W.2 Ahmad Ali, who stated in their statement in examination-in-chief that price of the land in question was handed over to respondent/plaintiff, which was noted in its true perspective by the First Appellate Court, therefore, judgment of the First Appellate Court is not sustainable in the eye of law. He further urges that respondent has not taken a ground that General Power of Attorney was executed by him in favour of petitioner No.3 under undue influence which was not mentioned in the contents of the plaint, therefore, First Appellate Court was not justified to reverse the findings on the basis of the evidence, which is produced by the respondent/plaintiff, which is not in consonance with the contents of the plaint. He further urges that document must be read as a whole and in case the vast power has been given by the respondent/plaintiff to petitioner No.3 then smaller portion if it is not mentioned in the document can be ignored. He further submits that First Appellate Court erred in law that it was not proved on record that there is no proof qua purchase of the stamp papers, which is not necessary when the execution of the document is accepted by respondent/ plaintiff. He further submits that First Appellate Court non-suited the petitioner by mentioning that there are certain discrepancies in the evidence of respondent/ plaintiff without mentioning the discrepancies and pointed out in the contents of the judgment, therefore, judgment of the First Appellate Court is result of misreading and non-reading of the record. He further submits that in case time is not prescribed in the General Power of Attorney then it is presumed that the person who has such power of attorney can sell the property in question immediately after execution of the General Power of Attorney by the respondent in favour of petitioner No.3, which is not scrutinized by the First Appellate Court in its true perspective.
3. The learned counsel of the respondent/plaintiff submit that parties are well within their knowledge qua the issue involved in this case and produce their evidence, therefore, if the Court has not framed issue, which is not fatal. He further submits that petitioner No.3 is maternal uncle of the respondent/plaintiff, who has intimated the respondent/plaintiff that property of the respondent/plaintiff is mismanaged and on his direction the respondent/plaintiff, keeping in view the nearest relation, has given General Power of Attorney in favour of petitioner No.3 for the purpose of management of the property in question and respondent has not given any authority to petitioner No.3 to sell the land in question to any third person. The word "sell" is inserted by petitioner No.3, therefore, First Appellate Court was justified to non-suit the petitioners after reappraisal of the evidence on record with cogent reasons. He further submits that respondent executed General Power of Attorney in favour of petitioner No.3 on 11-4- 1983, who has sold the land in question to his son and brother on 10-5-1983 without securing any permission from the respondent/plaintiff, which is not in consonance with section 215 of Contract Act read with Explanation I and II and the law laid down by the superior Courts. In support of his contention, he relied upon the following judgments:-- (PLD 1965 SC 341) (There is no judgment at the cited page), Wali Muhammad v. Muhammad Ibrahim and others (PLD 1989 Lahore 440) and Muhammad Rafique v. Muhammad (1989 CLC 1318).
He further submits that suit is maintainable in case the whole prayer clause be read as the respondent/plaintiff has filed suit basically for challenging the vires of the sale-deed, which is void in view of the aforesaid provisions of law and the law laid down by the superior Courts, therefore, First Appellate Court was justified to accept the appeal of the respondent/plaintiff. He further submits that petitioner No.3 has sold the land in question of the respondent/plaintiff which is in joint possession as is evident from Exh.P.4, which is at page 65 of the file for consideration of Rs.12,00,000. He further submits that sale price was not paid by the petitioner to the respondent and is not proved on record. He further submits that First Appellate Court has all the powers to reappraisal all the evidence while deciding the appeal under section 96 of C.P.C. He further submits that P.W.1 Zafar Iqbal categorically stated that he visited the village where the land in question suit- land along with her aunt who is real sister of petitioner No.3 and highlighted the circumstances under which the General Power of Attorney was executed for the purpose of management of the property in favour of petitioner No.3 by the respondent/plaintiff and this fact was duly noted by the First Appellate Court and non-suited the petitioners with cogent reasons. He further submits that First Appellate Court has decided the case against the petitioners after reappraisal of the evidence with cogent reasons and the learned counsel of the petitioners failed to point out any infirmity or illegality and he did not mention a single word with regard to the application of section 215 of the Contract Act.
4. The learned counsel of the petitioners in rebuttal submits that the petitioners have proved on record that payment has been passed on to respondent/ plaintiff by producing D.W.1 and D.W.2. He further submits that First Appellate Court has non-suited the petitioners over and above the leadings of the parties as the respondent did not claim in the contents of the plaint that the General Power of Attorney was executed by the respondent/ plaintiff in favour of petitioner No.3 under the influence of petitioner No.3, therefore, section 215 of the Contract Act is not attracted.
5. j have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
6. It is better and appropriate to reproduce the General Power of Attorney to resolve the controversy between the parties:- {{URDU TEXT}} ' The aforesaid General Power of Attorney was executed by respondent in favour of petitioner No.3/defendant No.3 on 11-4-1983. Petitioner No.3 sold the land in question to his real son and brother petitioners Nos.2 and 1 respectively on 10-5-1983 without securing any permission from the respondent/plaintiff to sell the land in question to his nearest relations, which is condition precedent by virtue of section 214 and section 215 of the Contract Act. The aforesaid provisions of law was interpreted by the Honourable Supreme Court in Fida Muhammad v. Pir Muhammad Khan and others (PLD 1985 SC 341). The relevant observation is as follows:- "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 aforesaid view was reaffirmed by the Honourable Supreme Court in the following judgments:- - Mst. Shumal Begum v. Mst Gulzar Begum (1994 SCMR 818), Mst. Feroz Bano v. Mst. Bilqis Jehan and others (1987 SCMR 1009), Haji Faqir Muhammad v. Pir Muhammad and others 1997 SCMR 1811, Wali Muhammad v. Muhammad Ibrahim and others (PLD 1989 Lahore 440) and Dost Muhammad v.
Member Board of Revenue (2001 MLD 2019). In view of the dictum laid down by the Honourable Supreme Court in the aforesaid judgment the document in question with regard to sale vide Mutation No.499, dated 20-8-1984 is not valid sale. The trial Court dismissed the suit in violation of the aforesaid provision of law whereas the judgment of the First Appellate Court is in consonance with the aforesaid provisions of law and law laid down by the Honourable Supreme Court in the aforesaid judgments. This Court also followed the aforesaid judgment of the Honourable Supreme Court along with other judgments with regard to the issue in question in Salman Ali v. Maqbool Hussain and others 2000 YLR 1983, which is upheld by the Honourable Supreme Court in reported judgment as Maqsood Ahmad and others v. Salman Ali (PLD 2003 SC 31) wherein the Honourable Supreme Court after considering the case law summed up the ratio of the aforesaid cases in the following terms:-- "Where it is alleged that attorney holder has committed a fraud in transferring the property of the principal in the name of his nearest relative, the Court must construe the power of attorney strictly and examine the matter thoroughly following the principles of administration of justice to ensure that the person who has executed power of attorney in favour of his Agent is not deprived of his rights including the financial matters arising out of the transactions which are carried out by the attorney on his behalf and also to examine whether the attorney holder has fulfilled his future obligations towards his principal or not."
7. In view of the aforesaid discussion the judgment of the First Appellate Court is in accordance with the dictum laid clown by the Honourable Supreme Court and was justified to reverse the fmdings of the trial Court after reappraisal of the evidence on record whereas the petitioners' counsel fails to point out any infirmity or illegality in the judgment of the First Appellate Court. It is admitted fact on the record that respondent/ plaintiff has taken a definite stand in the contents of the plaint that he has executed General Power of Attorney in favour of petitioner No. 3 to the extent of management of his property, who is real maternal uncle, who has inserted power of sale in the contents of the General Power of Attorney and also he did not receive any sale consideration as alleged in the mutation executed in favour of petitioners Nos.1 and 2 by petitioner No.3 on behalf of respondent/plaintiff and this fact was proved on record by the respondent/ plaintiff by producing oral evidence, therefore, onus is shifted to the petitioners/ defendants who are the beneficiary of the General Power of Attorney. Endorsement on the registered document is although presumed to have happened yet such presumption would be rebutable which is rebutted ' by the respondent/plaintiff as mentioned above in the contents of the plaint as well as through his oral evidence, therefore, it is the duty and obligation of the petitioners/defendants to produce the Sub- Registrar and attesting witnesses of the General Power of Attorney to prove that the General Power of Attorney was executed and the same was read over to the respondent/plaintiff and also to prove that the sale transaction was handed over to the respondent/plaintiff as per law laid down by this Court and the Honourable Supreme Court in the following judgments:- ' Muhammad Shafi v. Allah Dad Khan (PLD 1986 SC 519), Muhammad Tufail v. Abdul Aziz (PLD 1998 Lahore 137), Salman Ali v. Maqbool Hussain 2000 YLR 1983 and Maqsood Ahmad v. Salman All (PLD 2003 SC 31).
It is also settled principle of interpretation of law that the Court has to take into consideration the plaint as a whole and see the nature of the relief claimed by the respondent/plaintiff as per law laid down by the superior Courts in the following judgments:-- ' Saeeda Bano and others v. Muhammad Sabir (1986 CLC 123) and Muhammad Riaz Aslam v.
Muhammad Akhtar (1993 CLC 1391).
8. In view of the aforesaid discussion the plaint be read as a whole along with the whole prayer, which clearly shows that the respondent/plaintiff has challenged that the sale in favour of petitioners Nos. 1 and 2 defendants Nos. 1 and 2 by the petitioner No.3 on behalf of the respondent/plaintiff is by way of fraud and misrepresentation, therefore, suit filed by the respondent/ plaintiff under section 42 of the Specific Relief Act is maintainable, which is in consonance with the law laid down by the superior Courts in the following judgments:- ' Abdul Hamid alias MD Abdul Hamid v. Dr. Sadeque Ali Ahmed and others PLD 1969 Dacca 357 and Daibakilal Basak v. Iqbal Ahmed Quareshi (PLD 1965 Dacca 439).
It is also settled principle of law that when the sale is not in consonance with the aforesaid provisions of law i.e. Sections 214 and 215 of the Contract Act and the law laid down by the Honourable Supreme Court in the aforesaid judgments coupled with the fact that the respondent/plaintiff has taken a definite stand in the contents of the plant and evidence that petitioners have given share of their produce to the respondent/plaintiff till two months prior to filing the suit before the competent Court as is evident from para.4 of the plaint, therefore, suit is not time-barred in view of Articles 91 and 92 of Limitation Act, 1908. The other contention raised by the learned counsel of the petitioners has no relevancy in view of the dictum laid down by the Honourable Supreme Court in Masood Ahmad v. Salman Ali in terms of para. 17 of the judgment of the Honourable Supreme Court supra (PLD 2003 SC 31).
' In view of what has been discussed above, the revision petition has no merits and the same is dismissed.