MIAN HAMID FAROOQ, J.--- Petitioners, the successors-in-interest of Noor Muhammad, the original defendant , through the filing of the present revision petition, have called in question judgment and decree dated 27.10.1997, whereby the learned appellate Court accepted respondent No.1's appeal and decreed her suit, while setting aside the judgment and decree dated 17.2.1994, passed by the learned Civil Judge, through which he dismissed the suit for declaration, filed by respondent No.1, against Noor Muhammad and Naveed Alam.
2. Briefly stated the facts of the case are that respondent No.1 filed a suit for declaration, against Noor Muhammad and Naveed Alam, thereby challenging the sale-deed dated 6.8.1978, favouring Noor Muhammad, executed by Naveed Alam, her real brother, on the basis of a general power of attorney, dated 27.7.1978, inter alia, pleading that she never executed the general power of attorney, which is the result of fraud. It was her case that as the general power of attorney is a forged document, therefore, the sale-deed, which has been executed on the basis of the said power of attorney, is also null and void. In the suit, respondent No.1 also prayed for possession of the disputed land. Noor Muhammad and respondent No.2 contested, the suit by filing separate written statements. It was the case of Noor Muhammad that the transaction is a genuine, general power of attorney was validly executed by respondent No. 1 in favour of her real brother and, thus, the sale is legal and in accordance with law. Respondent No.2 also controverted the allegations levelled in the plaint by asserting that respondent No.1 herself executed the general power of attorney, which is a genuine document, thus, the sale-deed is also legal.
Out of the divergent pleadings of the parties, the learned Trial Court framed the issues, the parties led the evidence and ultimately respondent No.1's suit was dismissed by the learned Trial Court vide judgment and decree dated 17.2.1994. Respondent No.1 felt aggrieved and assailed the said decision before, the appellate Court and the learned Additional District Judge accepted her appeal , decreed her suit, while setting aside the judgment and decree passed by the learned Trial Court vide judgment and decree dated 27,10.1997, hence, the present revision petition.
3. Learned counsel for the petitioners has contended that the impugned judgment, passed by the appellate Court, is result of misreading and non-reading of evidence. He has elaborated that although Zafar Ali Sukhera did not appear in this case, yet the learned appellate Court in its judgment has observed that "according to the statement of Zafar Ali Sikhera the alleged signatures of 'the plaintiff, Mst.. Naheed Bibi and Mst. Shahida Bibi on the documents, general power of attorney (Exh. P-1) are forged and fictitious". Conversely, the learned counsel for the respondent No.1 submitted that when the execution of general power of attorney was denied by respondent No. 1, it was the legal obligation of Noor Muhammad to have proved the execution of said document by producing cogent evidence, but neither marginal witnesses nor Naveed Alam, the attorney, were produced in evidence inasmuch as they were not summoned, therefore, the appellate Court has rightly decreed the suit.
4. Upon the examination of the available record, tile real controversy, to my mind, hinges on the question as to whether the general. Power of attorney dated 27.7.1978, was validly and legally executed by respondent No.1 or not, on the basis of which respondent No.2 executed the sale-deed dated 6.8.1978, favouring Noor Muhammad. To resolve that controversy the learned Trial Court framed Issues No. 4 and 5 upon which the parties led evidence. Respondent No.1 in order to prove her case produced P.W. 2, the scribe of the general power of attorney, who has stated that on the asking of Naveed Alam, he scribed the general power of attorney, Naveed Alam signed in his register and that Naheed did not sign. He has further stated in the cross-examination that Mst.
Naheed did not come to him for scribing this power of attorney. Respondent No.1/plaintiff appeared as her own witness and categorically denied that she ever executed the general power of attorney in favour of respondent No.2. It is settled law that when the execution of a document is denied by one party, the onus shifts upon the other party, who is claiming benefit from the said document, to prove the execution of the said document under the law. The learned appellate Court has rightly observed that the beneficiary of power of attorney is to prove that the document was genuinely executed in favour of respondent No. 2. When the onus to prove the validity, legality and execution of general power of attorney shifted to Noor Muhammad, it was his duty to prove the execution of said general power of attorney within the parameters set up under the law. Upon the examination of the evidence produced by Noor Muhammad, it is clear that none of the witnesses has stated about the execution of the document. The best evidence available with Noor Muhammad was the marginal witnesses, which he failed to produce. The original defendant even failed to produce respondent No.2, the general attorney, in his evidence, who was the best witness to prove the execution of the power of attorney. It is true that in his written statement the alleged attorney has supported the defence of the original defendant and asserted that the power of attorney was validly executed by respondent No.1 herself, but the fact remains that after the filing of written statement he absented and did not participate in the rest of the proceedings. In these circumstances, it was all the more necessary for the original defendant to produce the said witness in support of his case, but he tailed to do so inasmuch as tile said witness was not, even summoned. The learned counsel for the contesting respondent is right in submitting hat the defendant did not make any endeavor to produce the marginal witnesses, they were never summoned and the defendant did not make any effort to cause the attendance of those witnesses. In view of the evidence on record, I am of the firm view that by producing the evidence respondent No. 1/plaintiff, has been able to prove that the power of attorney was not validly executed, however, the original defendant could not produce any evidence in order to prove that the power of attorney was validly executed by her. On the basis of available evidence, the learned appellate Court has draw correct inferences to hold that the power of attorney could not be proved to have validly executed by respondent No.1 in favour of respondent No.2.
5. Although it has been urged by the learned counsel for the petitioners that the impugned judgment suffers from misreading and non-reading of evidence, however, when asked to explain us to which portion of the evidence has been misread, the learned counsel despite of his best efforts could not explain any misreading and non-reading of evidence except that although Zafar Ali Sukhera did not appear as a witness, yet his statement has been relied upon by the appellate Court. Even that assertion of the learned counsel has no substance, as that was the contention of the learned counsel for respondent No.1, which was recorded by the appellate Court and that is not the part of findings. To further elaborate it may be noted that para. 5 of the judgment, which contains the aforesaid alleged misreading, pertains to the contentions as raised by the learned counsel for respondent No.1.
6. In my view as the impugned judgment is neither contrary to the evidence on record nor in violation of the principle of administration of justice, thus the judgment of the learned appellate Court should ordinarily be preferred. If any case is needed, judgments reported as Mir Muhammad alias Miral Vs. Ghulam Muhammad (PLD 1996 Kar. 202). Ilamuddin through the legal heirs Vs. Syed Sarfraz Hussain through the legal heirs and 5 others (1999 CLC 313) and Aasa Vs. Ibrahim (2000 CLC 500) can be referred.
7. In the above perspective, I have examined the impugned judgment and find that the same is legal, apt to the facts and circumstances of the case and does not suffer from any material irregularities, much less tile illegality, thus, in my view docs not call for any interference by this Court in exercise of its revisional jurisdiction. The learned counsel for the petitioners has not been able to point any flaw or grave illegality so as to upset the well-reasoned judgment rendered by the learned Additional District Judge, in view whereof the impugned judgment is hereby maintained.
6. Upshot of the above discussion is that the present revision is devoid of merits, thus, the same is dismissed, with no orders as to costs.
Civil revision dismissed.
21005 C.L.R. 1703 [Lahore] Present: UMAR ATA BANDIAL, J. Muhammad Zafar and 4 others Versus Sajjad Munir and others R.S.A. No. 56 of 2005, decided on 30th June, 2005. Civil Procedure Code (V of 1908)--- ---S. 100---Specific Relief Act, 1877, S. 12---Specific performance suit---Allegation of tampering with agreement to sell---Concurrent determination by Courts below---Challenge to---Regular Second Appeal against impugned concurrent determination of Courts below dismissing appellant's specific performance respecting property in dispute---Appellants denied allegation of tampering with agreement to sell in question---To establish his plea, appellant requested for original document to be summoned and examined against deposit of security in the sum of Rs.
10,000---When the document in-question was examined the erasure and alteration highlighted in the appellate judgment were noticed clearly---Security forfeited/RSA dismissed.
(Para 1)
Denial of allegation of alternation in agreement to sell/original document requisitioned in RSA for examination.
For the Appellants/Plaintiffs: Kamil Hussain Naqvi, Advocate For the Respondents/Defendants: Rana Rashid Akram Khan, Advocate.
Date of hearing: 30th June, 2005.
UMAR ATA BANDIAL, J.--- This is a second appeal filed against the finding given by the learned appellate Court vide judgment dated 15.3.2005 dismissing the appeal and affirming the judgment and decree of the learned Civil Judge dated 19.2.98 whereby the appellants suit for specific performance of agreement to sell dated 2.3.1991 was dismissed. The execution of this agreement as well as receipt of any consideration thereunder is denied by the respondents/vendors. Accordingly after consolidation of proceedings with another suit, 8 issues were-framed in which issue No.3 raises the following question:- "3. Whether the defendants No.1 & 2 had entered into agreement of sale dated 2.3.1991 with the plaintiffs against a sum of Rs. 3,80,000/- and that received a sum of Rs. 2,48,000/- in advance?
OPP"
On this issue the learned appellate Court has given very lucid findings which are reproduced as follows:- "Issue No. 3.
Burden to prove this issue was placed upon the appellants. In order to prove this issue the appellants examined 6 witnesses including Muhammad Zafar one of the appellants as P.W.4.
Muhammad Sharif Qadri appeared as P.W.1 who is a deed writer, deposed that he had seen the agreement to sell Exh.P/1 which was in his hand-writing and was entered at S. No.34 dated 2.3.1991 in his register. He was cross-examined. During cross-examination a photo copy (Exh. P.W.1) of the agreement to sell was shown to him to which he admitted that the same was a photo copy of Exh. P/1. He admitted that Exh. P/1 was not completed at the time of its ecution and the name of witnesses were inserted in it on the next day. During cross-examination he stated that the land of Chak No.351/GB was the subject-matter of that agreement. He admitted that Chak No.351/GB (Nagra) was situated at Rajana-Toba road at a distance of 5 kilometers from Toba Tek Singh towards Rajana while he was doing his business at Gojra. He admitted that in between Nagra and Gojra there situated the City of Toba Tek Singh. He admitted that he was having very good relations with the father of appellants and used to go him. This witness has completely destroyed the case of the appellants. He was not declared hostile nor was requested to be subjected to cross-examination by the appellants, therefore, his evidence shall be deemed to be admitted by the appellants. Moreover, bare perusal of Exh. P/1 shows that some interpolations and insertions have been made in Exh. P/1 such as Chak No.291/JB has been re-written after erasing some writing from stamp paper by scraping with a blade or such like instrument. Moreover, the date at the foot of Exh. P/1 is also erased and is re- written. These interpolations are very visible from naked eye. Exh.PW-1/1, which is, a photo copy is also compared. With Exh.P/1. In Exh. P/1 the word at the end of line No. "291" are mentioned on a erased place while in Exh. P/W-1/1 the word, "251" are written. Similarly at the foot of Exh. P.W.1/1 the date is mentioned as first March while in Exh.P/1 the visible erasing is made in place of "1", "2" is inserted. Moreover the name of witness Abdul Majeed s/o Lal Din does not find mentioned in Exh.
P.W.1/1. A deeper analysis of Exh.P/1 shows that the figures "291", 2nd March and name of witness Abdul Majeed s/o Lal Din is with different hand-writing. From the evidence of P.W.1 it is established that the initial agreement was executed in respect of land situated in Chak No. 351/GB and later on by erasing certain contents, the number of village was changed and the date of agreement was also changed".
When foregoing passage in the impugned judgment was confronted to the learned counsel for the appellants he denied the allegation of tampering with agreement to sell. To establish his point, he requested for original document to be summoned and examined against the deposit of security in the sum of Rs. 10,000/- to estajlish validity of his plea. As alteration and tampering of the contents of the agreement to sell formed ground in the appellate judgment, therefore, the request by the learned counsel was acceded. When the document in question was examined the erasure and alteration highlighted in the judgment above were noticed clearly. As a result the finding given by the learned appellate Court is entirely justified. No question of law arises for determination by this Court. This appeal is accordingly dismissed and security deposited by the appellants is forfeited. dismissed.