' Instant revision petition assailed judgment/decree, dated 23-11-1995 passed by the learned Additional District Judge, Faisalabad whereby appeal filed by Mst. Iqbal Bibi deceased respondent No.1, was accepted and by reversing judgment/decree dated 2-3-1991 passed by the trial Court, her suit was decreed.
2. Succinctly, relevant facts are that Mst. Iqbal Bibi deceased filed a suit for declaration that she was owner of land detailed in the plaint. It was pleaded by her that she was married with Atta Ullah, respondent about 4 years earlier to the filing of suit who was a man of bad character and attempted to deprive her of her property. According to her, two years earlier she left house of her husband where after it revealed on approach to the Patwari. Halqa that her land has already been transferred through sale Mutation No.257 dated 4-9-1986. She also pleaded that mutation of sale sanctioned on her behalf was illegal, void, fraudulent, without consideration and ineffective qua her rights. As Rapt Roznamcha dated 2-9-1986 on the basis of which the mutation was sanctioned was got recorded by her attorney who had no instructions to transfer the land. Deceased respondent No.1 on denial of her rights, filed the above-noted suit.
3. Petitioner and other respondents being defendants in the suit contested the same by filing their written statement wherein they raised certain preliminary objections. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned trial Judge who was seized of the matter, after doing the needful, on the basis of his appraisal of evidence, dismissed the suit of Mst. Iqbal Bibi vide judgment/decree dated 2-3-1991. Mst. Iqbal Bibi aggrieved of the decision of the trial Court filed an appeal before the learned Additional District Judge where she succeeded as her appeal was accepted and by reversing judgment/decree, dated 2-3-1991 of the trial Court, her suit was decreed vide appellate judgment/decree dated 23-11-1995. The petitioner being transferee, filed instant revision petition which was admitted to regular hoaring and after completion of record, the same has now been placed for final determination. Contesting respondents have been served but none of them has appeared to contest this petition, hence they are proceeded against ex parte.
4. Learned counsel for the petitioner submitted that the petitioner was a bona fide purchaser for valuable consideration through a lawfully constituted attorney and sale in his favour having been proved through consistent evidence on the file, the suit of respondent No.1 could not have been decreed. It was further submitted that the trial Court in correct appreciation of evidence on the file, rightly dismissed the suit of deceased Mst. Iqbal Bibi but the Appellate Court while reversing well- reasoned judgment, fell in elusions and its finding in this behalf being contrary to record, are not sustainable. It was further submitted on behalf of the petitioner that the respondent/plaintiff produced no evidence in support of her case that transfer by her attorney/husband through a registered document was not justified especially when her husband/attorney had appeared in support of the case of the petitioner, as D.W.6 and admitted the transaction of sale, receipt of sale price and transfer of possession thereunder. It was also emphasized that Patwari concerned and the Revenue Officer who sanctioned the mutation were examined to show that mutation subject of suit was correctly attested. According to him, it was not a sale by Mst. Iqbal Bibi herself and the same being through her husband /attorney, the principles applied by the Appellate Court were not attracted and were wrongly invoked to the disadvantage of the petitioner. It was prayed that the Appellate judgment being against law, may be adjudged and that of the trial Court being in consonance with the record may be required to be revived.
5. I have minutely considered the respective arguments of the learned counsel for the petitioner and have examined the record appended herewith. It is not disputed that deceased Mst. Iqbal Bibi did not appear at the time of sanctioning of Mutation No.257 dated 4-9-1986 and the same was sanctioned on the statement of her attorney Atta Ullah who was also her husband. It is also an admitted fact that relations between the spouses were not cordial and the deceased Mst. Iqbal Bibi had been away from her husband (respondent No.4) on account of strained relations between them. The admitted relationship between the petitioner and respondent No.4 is that they are real paternal-cousins. In this admitted factual background of the case, question which hinged for determination is that what is the legal fate of sale by attorney in favour of his blood relation, without specific authorization by his principal i.e. Mst. Iqbal Bibi who was living away from her husband. Law regarding such transactions is settled by this time whereunder these will be treated transfers in favour of the attorney himself and could not be done without special permission from the owner. Under the provisions of sections 188 and 214 of the Contract Act 1872, the general- attorney was required to take special permission from his principal while transferring her property in his own name or in the name of his close fiduciary relations but there is no evidence on the file that Mst. Iqbal Bibi ever gave any such permission in absence of which, sale in favour of the petitioner cannot be legalized. Reference in this behalf can conveniently be made to the judgments of the Honourable Supreme Court in the cases of Maqsood Ahmad and others v.
Salman Ali PLD 2003 SC 31; Jamil Akhtar and others v. Las Baba and others PLD 2003 SC 494; Fida Muhammad v. Pir Muhammad Khan through L.Rs. And others PLD 1985 SC 341; Haji Faqir Muhammad and others v. Pir Muhammad and others1997 SCM R 1811 and Mst. Shumal Begum v. Mst.
Gulzar Begum and 3 others 1994 SCM R 818 besides judgment by this Court in the case Muhammad Siddique and 2 others v. Mst. Shagufta Begum alias Shugufta Rafique 1994 CLC 1690.
6. Deceased respondent Mst. Iqbal Bibi in support of her claim in the plaint appeared as P.W.3 and rendered material corroboration to her assertions therein. She also produced P.W.1 Muhammad Amin and P.W.2 Muhammad Iqbal to prove that she never entered into any transaction of sale with the petitioner who was real paternal-cousin of her husband (respondent No.4). Under law after denial of transaction of sale by the person on whose behalf it had been entered/sanctioned, onus to prove the same through positive evidence shifts on the shoulders of the beneficiary. Petitioner in order to discharge the onus shifting towards him, examined seven witnesses besides producing copy of Mutation No.257 (Exh.D.1), copy of Rapt Roznamcha No.5, dated 2-9-1986 (Exh.D.2), registered power of attorney in favour of respondent No.4 (Exh.D.3) D.W.1 appeared to prove that Mutation No.257 (Exh.D.1) was according to their record. D.W.2 Khalid Shabbir, Naib Tehsildar was examined to prove sanctioning of mutation in dispute. D.W.3 was Ghulam Mustafa, Revenue Patwari at the relevant time and was produced to show that the mutation was sanctioned during his period of appointment in the circle concerned. D.W.4 Muhammad Munir, Patwari C Halqa deposed that Rapt No.5 dated 2-9-1986 (Exh.D.2) was according to record and its copy was correctly prepared. D.W.5 Muhammad Yousaf petitioner stated that respondent No.4 was appointed general attorney of his wife and his bargain of sale was struck with both husband and wife i.e. Respondent No.4 and deceased respondent No.1 at his house for an amount of Rs.3,63,000 which was paid against a receipt which is in his possession. According to him, sale transaction was reported by respondent No.4 to the Patwari concerned on the basis of which mutation was sanctioned on statement of the attorney of deceased respondent No.1 D.W.7 appeared to give support to the sale in favour of the petitioner by deposing that he was present at the time of sanctioning of mutation which was correctly decided on his identification of respondent No.4. This is the entire evidence produced by the petitioner and out of seven witnesses, none uttered a word about bargain, transaction, consent/permission or payment of sale price to respondent No.1 except D.W.5, the petitioner but his self-service statement was not enough to prove sale by deceased respondent No.1, in absence of any corroboration. For the proposition that after denial of execution/ transaction onus shifts towards the beneficiary to prove the transaction, we can refer to the judgments in the cases of Hakim Khan v. Nazeer Amad Lughmani and 10 others 1992 SCM R 1832 Sana Ullah and another v. Muhammad Manzoor and another PLD 1996 SC 256; Muhammad v. Mst.
Rehmon through Mst. Sharifan Bibi 1998 SCM R 1354 and Mst. Rasheeda Begum and 3 others v.
Muhammad Yousaf and others 2002 SCM R 1089.
7. Deceased respondent No.1 (Mst. Iqbal Bibi) besides being Parda observing lady was entitled to special protection under law as observed by the learned Additional District Judge, her property was to be dealt with great care/caution especially by those who stood in fiduciary relationship with her like husband etc. They were bound under law to D prove their good faith and good conscience of the transaction entered on her behalf especially as an attorney, as per law laid down by the Honourable Supreme Court in the cases of Mst. Badshah Begum v. Ghulam Rasul and 4 others PLD 1991 SC 1140; Hakim Khan v. Nazeer Ahmad Lughmani and 10 others 1992 SCM R 1832 and Amirzada Khan and another v. Itbar Khan and others 2001 SCM R 609. In the instant case file is absolutely thirsty of the proof that property of a Pardaha-observing lady was transferred with her consent or in good faith, with clean hands. Scan of evidence left no doubt about the fact that respondent No.4 maliciously got mutation of fake sale in favour of his real first cousin E without receipt of any consideration from him, as he while in the witness-box did not utter a word about concurrence by the deceased respondent No.1 to the sale effected on her behalf. Petitioner had not produced an iota evidence to prove his negotiations of sale with Mst. Iqbal Bibi or regarding concurrence by her to the transaction in dispute. Petitioner had deposed as D.W.5 that payment of sale price was made by him against a receipt but the same was withheld and was not produced in evidence, raising presumptions, adverse to this case.
8. For the reasons noted above and scan of evidence revealed that appellate judgment did not suffer from any illegality/irregularity amenable to revisional jurisdiction of this Court, being in consonance with the evidence on the file and the law applicable thus, this petition being devoid of any merit, is dismissed with costs throughout.