JAWWAD S. KHAWAJA, J.---This revision petition impugns the concurrent findings of the learned trial Court dated 15-6-1995 and of the' learned lower Appellate Court dated 5-12-2001 whereby a suit filed by the respondents/plaintiffs was decreed.
2. The facts of the case have been set out in the impugned judgments and need not therefore, be reproduced in extenso.
3. Learned counsel for the petitioners, firstly, argued that initially before the learned trial Court there was no specific issue relating to the genuineness of the general power of attorney dated 26-10- 1972 through which Khushi Muhammad was, allegedly, appointed attorney by the respondents/plaintiffs. It was only at the appeal stage that the learned Appellate Court framed an additional issue (8-D) in the following terms:-- "Whether the general power pf attorney dated 26-10-1972 on behalf of the plaintiffs in favour of Khushi Muhammad defendant No.2 was forged and fabricated and a result of fraud? OPP
4. It was argued that the onus of proving this issue was on the respondents/plaintiffs who failed to discharge the same because only one of the plaintiffs, namely, Noor Din appeared as P.W.4 and denied that any power of attorney had been executed by the plaintiffs appointing Khushi Muhammad as their attorney. It was contended that this was insufficient for proving issue No.8-D and in any event the petitioners had not been given any opportunity to lead evidence on the issue after the same had been framed.
5. I have considered the above arguments of learned counsel for the petitioners and find the same to be misconceived: The matter relating to evidence on the additional issue was settled through judgment, dated 26-9-2001 whereby Civil Revision No.2653 of 1996 was decided and the learned Appellate Court was directed to decide the appeal on merits and to decide the above additional issue also on the basis of the evidence available on record. The petitioners Nos.2 to 4 who claimed title through Abdul Karim (respondent/defendant) and petitioner No.1 Allah Rakha who acquired title from petitioners Nos.2 to 4, were duly impleaded as parties by the trial Court after an initial round of litigation which culminated in the judgment of the Honourable Supreme Court, dated 11-6- 1991 whereby the case was remanded to the learned trial Court. The petitioner No.1 and the petitioners Nos.2 to 5 filed their independent written statements and had full opportunity to adduce evidence on the issues as originally framed although as noted above, the additional issue was specifically framed by the learned Appellate Court in relation to the power of attorney dated 26-10- 1972, learned counsel for the petitioners was not able to deny that the issue as originally framed encapsulated the factual controversy between the parties. Moreover, the petitioners cannot assert any prejudice on this score in view of the judgment, dated 26-9-2001 passed' in Civil Revision No.2653 of 1996.
6. In addition to the above, it is to be noted that the petitioners were not dependent on the voluntary appearance of Abdul Karim as a witness in the case. After the testimony of P.Ws.
Including Noor Din, the onus of proving issue No.8-D shifted onto the petitioners/defendants. They could have summoned Abdul Karim as a witness through Court even if he had not chosen to testify in the case. Furthermore, there were independent means available to the petitioners such as comparison of handwriting/thumb-impressions through which they could have proved that Khushi Muhammad had been constituted general attorney of the plaintiffs. They chose not to avail this opportunity.
7. Learned counsel for the petitioners next argued that the learned Appellate Court fell in error by not summoning the legal representatives of the deceased defendants as was required under Order XXII, rule 4(4), C.P.C. This contention is also misconceived in view of the ratio in the case title Khushi Muhammad v. Mst. Aziz Bibi PLD 1988 SC 259. The learned Appellate Court rightly noted that the deceased defendants, who were respondents Nos.2 and 4 to 10, had been proceeded against ex parte on 13-2-1996 and, as such, there was no necessity to substitute their legal representatives in their place. In any event the petitioners, who were defendants in the case and contested the case with full vigour, have no locus standi to urge this ground, nor was any prejudice caused to them on this score.
8. Thirdly, it was argued on behalf of the petitioners that even if the suit of the respondents/plaintiffs was to be decreed, the result of such decree would be the setting aside of the judgment and decree, dated 1-12-1972. Consequently, the suit resulting in the aforesaid decree would stand revived. It was submitted that the learned Courts below had committed excess of jurisdiction by granting a decree for possession to the plaintiffs in the present suit. This submission is not legally tenable. The Courts were fully entitled to grant a decree for possession once it was concluded that there was no decree in favour of Abdul Karim (respondent No.4) and, therefore, no title vested in him whereunder he could have conveyed the suit property to respondents Nos.2 to 4 or delivered possession thereof. As for Allah Rakha (petitioner No.1), he derived title from petitioners Nos.2 to 4 during the pendency of the present lis and, therefore, he could not have asserted any right to the suit property better than that asserted by petitioners Nos.2 to 4. Furthermore, I note that the suit, out of which the present petition arises, was filed as far back as 14-9-1974 and the parties have been embroiled in this litigation for more than three decades. The decree for possession passed by the learned Courts below advances the ends of justice and, therefore, does not require interference in the exercise of revisional jurisdiction.
9. Learned counsel for the petitioners also placed a great deal of stress on the fact that Noor Din while appearing as P.W.4 had only testified in respect of a power of attorney dated 27-12-1972 and not in respect of the power of attorney dated 26-10-1972 which was the basis of the decree, dated 1-12-1972. This, however, has no bearing on the case because the testimony of Noor Din is clearly to the effect that the plaintiffs had not executed any power of attorney to appoint Khushi Muhammad as their general attorney. This testimony was sufficient for the purpose of shifting the onus of proof placed on the plaintiffs in respect of additional Issue No.8-D. The fact that Noor Din referred to a power of attorney, dated 27-12-1972 instead of the power of attorney dated 26-10-1972 is of no consequence.
10. Finally, learned counsel for the petitioners drew my attention to the order, dated 24-4-2002 wherein it has been noted that the L.Rs. Of Zahoor (respondent/plaintiff) had compromised the matter with the petitioners and had relinquished their right in the suit property in favour of the petitioners. On this basis, it was contended that the suit to the extent of the claim of Zahoor deceased (respondent No.2) already stands dismissed vide order, dated 24-4-2002 and, therefore, the impugned decrees require to be modified.
11. In view of the above discussion, the impugned concurrent decrees are upheld subject to the modification that the suit to the extent of Zahoor (respondent No.2) is dismissed.
The respondents/plaintiffs shall be entitled to their costs throughout.