' MAULVI ANWARUL HAQ, J.---This judgment shall decide Civil Revisions Nos.222, 111, 112 and 223 of 2005 as common questions are involved.
2. Some admitted facts of these cases are that the suit-land involved therein measuring 100 Kanals was allotted to Elahi Bakhsh by the Provincial Government under the Co-operative Farming Scheme. After his death, Mutation No.275 was attested on 27-10-1985 in favour of his five daughters and three sons, namely, Ghulam Sarwar, Ghulam Muhammad and Ghulam Rasool.
3. On 27-3-1997 the said five daughters of Elahi Bakhsh (respondents Nos.1 to 11 in this civil revision as Mst. Subhan Bibi died during the pendency of the suit) filed a suit against the petitioners and the remaining respondents. In the plaint after the above noted statement of facts, it was stated that brothers Ghulam Sarwar (petitioner No.1 herein) and Ghulam Rasool made a representation that proceedings are to be taken in the matter of transfer of allotment and conferment of proprietary rights, they should appoint petitioner No.1 as an attorney and that Ghulam Rasool is also doing so.
Consequently, they appointed him as an attorney only for the said purpose and their thumb- impressions were obtained on a paper accordingly. On 1-12-1993 the said plaintiffs came to know that the petitioner No.1 has proceeded to transfer the entire land in favour of his sons (petitioners Nos.2 and 3, respondents Nos.13 and 14 and Ashiq Hussain, the predecessor-in-interest of petitioners Nos.4 to 7 and respondent No.12). They obtained the copies. According to them, they had never authorized petitioner No.1 to alienate their land. The power of attorney was never read over to them and they were not present before the Registrar neither the Registrar read over the power of attorney to them. It was further stated that even if such power is to be assumed having vested in petitioner No.1, he could not have transferred the land to his sons without the knowledge of the plaintiffs and, of course, without any payment of consideration to them. It was further stated that respondents Nos.13 and 14 have transferred 25 Kanals, 3 Marlas of land to Muhammad Akram, the predecessor-in-interest of respondents Nos.15 to 19 by way of an exchange Mutation No.680 attested on 27-2-1997 and a counter-Mutation No.2625 attested on 28-2-1997. With these averments, they sought a declaration that they are co-sharers in possession of the suit-land and the said power of attorney and the alienations are ineffective upon their share of 5/11 in the said suit-land. The said sons of petitioner No.1 in the written statement pleaded that the said ladies and their brother Ghulam Rasool had validly appointed petitioner No.1 as an attorney with full powers of alienation vide registered power of attorney dated 22-12-198'7 and they had also executed a surrender deed in respect of their said inheritance on the same date and got it registered and that this fact was mentioned in the power of attorney. They accordingly pleaded a valid sale in their favour by their father. The petitioner No.1 in his written statement repeated the same contentions.
Muhammad Akram, the transferee under the said exchange mutation claimed himself to be a bona fide transferee and expressed ignorance regarding the remaining contents of the plaint.
Issues were framed. Evidence of the parties was recorded. The learned trial Court dismissed the suit vide judgment and decree dated 4-1-2003. A first appeal filed by the said ladies was allowed by a learned Additional District Judge, Vehari, on 19-1-2005 and he decreed their suit.
4. Civil Revision No.222 of 2005 has been filed by the said petitioners i.e. Ghulam Sarwar and his sons while Civil Revision No.111 of 2005 has been filed by the L.Rs. Of said Muhammad Akram against the judgment and decree of the learned Additional District Judge.
5. The L.Rs. Of the said Ghulam Rasool also on the same date filed a suit against the present petitioners and the other respondents. According to them, Ghulam Rasool had never authorized Ghulam Sarwar to alienate his property. The remaining facts pleaded are the same and the replies are also similar. The suit was dismissed by the learned trial Court on 4-1-2003 while it was decreed by the learned Additional District Judge, Vehari, on 19-1-2005 by allowing the appeal of the said L.Rs. Of Ghulam Rasool. Against this judgment and decree of the learned Additional District Judge, Civil Revision No.223 of 2005 has been filed by Ghulam Sarwar and his sons while Civil Revision No.112 of 2005 has been filed by the L.Rs. Of the said Muhammad Akram.
6. Ch. Muhammad Hussain Jahanian, Advocate/learned counsel for the petitioners in all these cases contends that this was not a case of an ordinary power of attorney but, in fact, the power of attorney in favour of Ghulam Sarwar petitioner No.1 was coupled with an interest inasmuch as the plaintiffs in all these suits had been paid off their shares and they had surrendered their rights in the suit-land in his favour and that apart from a registered surrendered deed, the said fact finds mention in the power of attorney as well. According to him, all the relevant documents i.e. The power of attorney , the surrendered deed and the affidavit have been duly proved on the record by producing all available evidence but the same has been misread by the learned Additional District Judge while passing the impugned judgments and decrees. Notwithstanding the fact that he is holding brief for all the petitioners in the case, he also urges that the transferees/ petitioners (C.R.
No.111 of 2005 and C.R. No.112 of 2005) are bona fide transferees and protected under section 41 of the Transfer of Property Act, 1882, he has cited the case of Abdul Rahim v. Mukhtar Ahmad and 6 others (2001 SCM R 1488), Mian Arshad Latif, Advocate/learned counsel for the contesting respondents/ plaintiffs, on the other hand, has contended that he has no cavil with the operation and implication of section 202 of the Contract Act, 1872. He, however, argues that none of the said documents has been proved on record. He has relied on the cases of Muhammad Boota through L.Rs. v. Mst. Bano Begum and others (2005 SCM R 1885), Mst. Ghulam Fatima v. Muhammad Din and others (2004 SCM R 618), Jamil Akhtar and others v. Las Baba and others (PLD 2003 SC 494) and Qutab Din v. Ali Hassan and others (NLR 1992 AC 25).
7. I have gone through the copies of the records, appended with all these civil revisions, with the assistance of the learned counsel for the parties. I may further note here that during the hearing a controversy arose as to whether or not any original document was produced. I find that the power of attorney dated 22-12-1987 was produced in original and is Exh.D.2 in the civil suit titled "Mushtaq Ahmad and others v. Ashiq Hussain and others" which is the subject-matter of Civil Revision No.223 of 2005 and Civil Revision No.112 of 2005 as per the original records examined by me.
8. Now so far as the said surrender deed is concerned (in the matter of C.R. No.222 of 2005 and Civil Revision No.111 of 2005) a certified copy was produced as Exh.D.8 in the statement of the learned counsel for the petitioners and it was duly objected to. Similarly, in the matter of Civil Revision No.223 of 2005 and Civil Revision No.112 of 2005 a certified copy was produced as Exh.D.1. Now the execution of this document is disputed. The certified copy accordingly is not admissible. There is no reason forthcoming as to why the original was withheld and not produced. There is, of course, no prayer and no order on record for producing secondary evidence. This being so, the said document is inadmissible in evidence and has rightly been discarded by the learned Additional District Judge.
9. Now so far as the power of attorney dated 22-12-1987 is concerned, as noted by me, the original document was produced as Exh.D.2 in the matter of C.R. No.223 of 2005 and Civil Revision No.113 of 2005. Now Shahid Latif appeared as D.W.1. He is the Special Magistrate/SubRegistrar. Now notwithstanding the fact that the said Exh.D.2 is the original document, he has stated that it is a correct certified copy. Be that as it may, he states that he has attested Exh.D.2. In his cross- examination, he has stated that Muhammad Akram, the attesting witness, was an influential.
Personality of the area and person who identified the ladies was Hashim, Councillor. He admitted that Haji Akram is the defendant in this case. He admitted that Hashim who identified the ladies was the son of said Akram. He was unable to identify the women whose photographs were present in his record. Muhammad Haleem Shah appeared as D.W.3 to state that Exh.D.2 was scribed by him and that he has obtained thumb-impressions of the parties. In his cross-examination, he admitted that the said ladies were not known to him. Regarding Ghulam Sarwar, he was unable to answer any question relating to him. D.W.10 is the same Hashim Khan i.e. One of the petitioners. This is the entire evidence in support of the said Exh.D.2. It will be seen that neither the Sub-Registrar nor the scribe know the executants personally. The witness was Muhammad Akram, an ultimate beneficiary while the identifier was his son. It will further be seen that none of the said witnesses have stated that the document was read over to the said ladies or Ghulam Rasool at any time.
10. Now in the matter of C.R. No.222 of 2005 and Civil Revision No.112 of 2005, a certified copy of the said power of attorney has been produced as Exh.D.1 Muhammad Latif Naseem, Naib Tehsildar, produced the said document as D.W.2. According to him, this document was not attested by him.
The said Muhammad Akram appeared as D.W.6 to state that as a Lambardar he identified the executants of Exh.D.1. I find that he has not at all stated that the said ladies were known to him.
D.W.11 is the same Shahid Latif, the then C Sub-Registrar, who stated that Muhammad Hashim identified the donors and he attested the power of attorney. He has admitted in cross-examination that the said donors are not known to him and that the said Hashim is son of Muhammad Akram, a defendant in the case.
11. Having, thus, read the said evidence, I do find that there is no proof of valid execution of the document by the said ladies and Ghulam Rasool. Ch. Muhammad Hussain Jahanian has argued with some force that the ladies had not denied the execution rather they admitted having thumb- marked the document. This may be so but then their case is that they were made to thumb-mark the document on the representation that it is being obtained for getting the land of the father from the department in the names of the heirs and I have already noted above that no witness has stated that the document was read over to the said ladies or Ghulam Rasool. Reference be made to the case of Muhammad Boota through L.Rs.
12. Now this leaves the said affidavit. Now to begin with in the matter of Civil Revision No.222 of 2005 and Civil Revision No.111 of 2005, this document was produced as Exh.D.5. It bears the date 30-9- 1990 and is purported to be thumb-marked by the said ladies and Ghulam Rasool and is attested by one Muhammad Zahid Ali Qureshi, Oath Cominissioner, Vehari. Muhammad Latif appeared as D.W.5 to state that he had scribed the said affidavit and 3/4 ladies and a man had come to him for the purpose. In his cross-examination, he has stated that he did not know the said persons. He stated that he had written their NIC numbers in the body of the document. However, he was unable to say that the ladies whose N.I.Cs. Have been mentioned appeared before him. No other person identified the ladies before him. The said Oath Commissioner had not been produced.
13. In the matter of Civil Revision No.223 of 2005.And Civil Revision No.112 of 2005, this document had not been produced. Now apart from the fact that the said affidavit has not been proved at all to have been executed by the said plaintiffs, Mst. Manzooran Bibi one of the plaintiffs-ladies appeared as P.'W.1 and denied having executed any affidavit or to have received any money while executing the power of attorney. She was, of course, not confronted with the alleged surrender deed at all. I, therefore, do find that whereas the original surrender deed was never produced and proved on record, the power of attorney and the said affidavit have also no,t been proved to have been executed by the said ladies and Ghulam Rasool.
14. Now coming to the question of bona fide transfer, before I proceed further I may note here the chain of events. Now late Elahi Bakhsh was an allottee of the suit-land and he died before the conferment of the proprietary rights. These were conferred upon all the said three sons and five daughters of Elahi Bakhsh vide crown sale-deed registered on 4-7-1992 (Exh.D.2) in Civil Revision No.222 of 2005 vide registered gift deed dated 25-4-1993 (Exh.D.3) Ghulam Sarwar after narrating that he is an owner of 18 Kanals, 14 Marlas of land out of the said 100 Kanals, he is transferring 10 Marlas in favour of his sons, namely, Ashiq Hussain, Muhammad Sadiq, Muhammad Ramzan, Muhammad Sultan and Muhammad Luqman. Thereafter, vide registered sale-deed dated 28-4- 1993 he proceeded to sell on behalf of said five sisters and brother Ghulam Rasool 63 Kanals, 14 Marlas of land to his said sons for a consideration of Rs.2,40,000. Now in the Mutation No.2625 (Exh.D.10) the said Muhammad Akram transferred two Kanals of land being 40/3157 share of land 157 Kanals, 17 Marlas to Muhammad Sadiq and Muhammad Ramzan sons of Ghulam Sarwar. In exchange vide Mutation No.680 (Exh.D.12) Muhammad Sadiq and Muhammad Ramzan sons of Ghulam Sarwar transferred 25 Kanals, 13 Marlas of land to the said Muhammad Akram. Both the Mutations appeared to have been attested on 28-2-1997.
15. It will be seen that Muhammad Akram as well as his son Muhammad Hashim have been involved in the said transactions throughout. Muhammad Akram as a marginal witness and Hashim as a Councillor identifying the said ladies and Ghulam Rasool. Now Imtiaz Ahmad respondent No.18 appeared as D.W.12. In his cross-examination, in response to the very first question he expressed ignorance as to wherefrom Ghulam Sarwar got the land which he transferred in favour of his sons, he proceeded to state that in the Revenue Record the land was in the name of Ghulam Sarwar. This is obviously a wrong statement as the crown sale-deed was executed in favour of all the sons and daughters of Ehalhi Bakhsh and was incorporated in the Revenue Records as such. Now Elahi Bakhsh was the owner of 100 Kanals. Consequently, each son got 2/11 or about 18 Kanals of land while each daugher got 1/11 or about 9 Kanals of land.
' Now he transferred 10 Marlas by way of gift Exh.D.3 to his five sons in equal shares. Vide sale-deed Exh.D.4, he did not transfer any land belonging to him but proceeded to transfer the land of Ghulam Rasool and the said five sisters. This means that he had only transferred 10 Marlas to his said sons and that the transferors in the said Mutation No.680 (Exh.D.12) could have transferred only four Marlas to Muhammad Akram. Now in the said state of evidence, the said Muhammad Akram can hardly be held to be a bona fide transferee.
16. For all that has been stated above, I do not find any force in all these civil revisions which are accordingly dismissed but without any orders as to costs.
17. The records of the learned lower Courts be remitted back immediately.