SYED SAKHI HUSSAIN BUKHARI, J.---This revision petition is directed against the judgment, dated 24-9-1999 passed by learned Additional District Judge, Gujrat whereby appeal brought by petitioners against the judgment and decree, dated 8-11-1995 passed by learned Civil Judge, Gujrat was dismissed.
2. Relevant facts for the disposal of this revision petition are that petitioners filed suit for declaration to the effect that suit-land (measuring 32 Kanals, Khasra Nos.319 and 449, Khewat No.159) is Shamlat Deh and they are in possession of the same as co-sharers and that Mutation No.2242 dated 20-12-1983 is illegal, void and ineffective qua their rights. The petitioners stated that Jalal, petitioner is in possession of land measuring 15 Kanals, 18 Marlas bearing Khasra No.319 whereas there is a school bearing Khasra No.449 (16 Kanals, 2 Marlas) and that defendants/respondents have no concern with the suit-land. They further stated that suit-land has not been partitioned so far and that Jalal, petitioner is in possession of Khasra No.319 as owner but in Revenue Record he had been shown as tenant. Also that due to political rivalry and with the connivance of defendants Nos.2 and 3, Mutation No.2242 had been sanctioned on 20-12-1983. The petitioners averred that order dated 19-12-1983 was passed in their absence, also that Mutation No.2242 dated 20-12-1983 was sanctioned without notice to them. They stated that suit-land has not been partitioned so far, therefore, the same could not be transferred in favour of defendants and that impugned orders are mala fide, improper and illegal. The respondents mentioned in written statement that there was a school over the suit-land since 1953. Learned trial Court framed issues, recorded evidence and dismissed the suit brought by petitioners vide judgment dated 8-11-1995. The petitioners filed appeal thereagainst, which was dismissed vide judgment dated 24-9-1999 passed by learned Additional District Judge, Gujrat. Hence this revision petition.
3. I have heard the arguments and perused the record.
4. As mentioned above appeal brought by petitioners was dismissed vide judgment dated 24-9- 1999. However, they did not file revision petition within prescribed time. The petitioners have filed application (C.M. No.4 of 2003) for condonation of delay in filing revision petition. They have mentioned in this application that they could not file revision petition within time due to unavoidable circumstances. However, there is no plausible explanation for condonation of delay.
So I find that there is no reasonable ground for condonation of delay, therefore, their application is dismissed. As such revision petition is time-barred and the same is liable to be dismissed on this score alone.
5. On merits too petitioners have no case. The case of petitioners is that suit-land is `Shamlat Deh' and they are owners in possession of the same as co-sharers and that Mutation No.2242 sanctioned in favour of Education Department is illegal and void. Admittedly suit-land is `Shamlat Deh'. The petitioners have produced copy of "Jantri Taqseem Shamlat Deh" as Exh.P.4. The perusal of this document shows that petitioners and their brother (Bahawal) have 1/66 share (measuring 1 Kanal, 16 Marlas). It is pertinent to note that Jalal, petitioner while appearing as P.W.2 clearly stated that he had sold land measuring 2 Kanals. It shows that petitioners/plaintiffs have already sold land more than their due share. P.W.1, Muhammad Yaqub stated that there is a school over the suit-land for the last 28/30 years and that he was also a student of the same school. He deposed that residents of the village have reserved the land for school. D.W.1 Muhammad Fazil, stated that there is a school over the suit-land for the last 30/32 years as land was reserved by the residents of the village and that plaintiffs/petitioners have no concern with the same. D. W.2, Muhammad Shafi also supported the case of respondents. So it is clear that there is a school over the suit-land for the last many years and that land was reserved by residents of the village. The petitioners have already sold their share from the `Shamlat Deh'. In these circumstances it becomes crystal clear that claim of petitioners is baseless, hence learned trial Court had rightly dismissed their suit. The judgment dated 24-9-1999 shows that learned Additional District Judge has decided the appeal brought by petitioners after appraisal of entire material available on record. Para. No.6 of the said judgment reads as under: "After considering the respective contentions of the parties it is found that the property in dispute is "Shamlat Deh" which is admittedly owned by the owners of the village. The appellants themselves have produced a document Exh.P.4 in which the appellants along with their brother Sajawal and sister Mst. Sardaran are entitled to only 1/66 share amounting to 1 Kanal, 16 Marlas only. It is admitted in evidence by the appellant Jalal Khan as P.W.2 that he has sold the land measuring 2 Kanals from the property in dispute. According to Khasra Girdawari Exh.P.1. Available on the file, Khasra No.449 measuring 16 Kanals, 2 Marlas is Ghair Mumkin School and it is proved on record that a Boys School is running in this Khasra number after construction of a building for the last many years. As far as the other Khasra No.319 (15 Kanals, 18 Marlas) is concerned, the same was shown in cultivating possession of the appellant Jalal but as `tenant at Will'. The owners of the village with the sanction of the D.C. Gujrat, transferred the land in dispute in favour of Provincial Government/Education Department. The attested copy of the mutation is Exh.P.3, available on the file. The appellant is cultivating the land consisting of Khasra No.319 without any right in spite of the fact that same stood transferred to Education Department on 20-12-1983 for construction of A Girls School. The perusal of the record as well as evidence available on the file shows that there is no illegality in the order of the Deputy Commissioner, Gujrat dated 19-12-1983, in the Mutation No.2242, dated 20-12-1983. The appellants have not been prejudiced by the above mentioned orders, nor they have any vested right in the disputed property or any right to, challenge the above said orders/mutation."
It is well-reasoned judgment. There is no illegality or infirmity in the impugned judgments, therefore, there is no justification to disturb the concurrent findings recorded by learned Courts below.
6. The upshot of the above discussion is that this revision petition has no force and the same is accordingly dismissed.
F.M./J-4/LPetition dismissed.
2006 CLC 779 [Lahore] Before Jawad S. Khawaja, J MUHAMMAD TUFAIL----Appellant Versus MUHAMMAD YOUNAS and others----Respondents Regular Second Appeal No.69 of 2004, heard on 22nd September, 2005.
(a) Specific Relief Act (I of 1877)--- ----S. 12---Qanun-e-Shahadat (10 of 1984), Arts.17, 59 & 79---Suit for specific performance of agreement to sell by General Attorney---Suit was decreed but decree was assailed by defendants/third party on the basis of agreement to sell with the vendor---Execution of document---Proof---Document, admittedly executed by General Attorney and at the same time not disputed by defendants would not require proof through testimony of marginal witnesses--- Endorsement of stamp vendor at the back of agreement, registration of same by Notary Public and testimony of scribe had proved that disputed document was not antedated---Execution of document relied upon by defendants, in the present case, was not duly proved in terms of Arts.17 and 79 of Qanun-e-Shahadat, 1984---One of the defendants was Patwari who should be fully aware of legal and procedural requirements pertaining to transactions involving sale of agricultural land but agreement relied upon by defendants was neither scribed by any licensed Petition Writer nor the name of Notary public on the same was legible besides, Notary Public himself admitted that he had not made any entry of disputed agreement in his register--One of the two marginal witnesses was not produced without any justification while the other marginal witness was an interested witness and his testimony had to be considered with extreme caution--- Vendor, though had denied the execution of document but no attempt was made by defendants to prove his signatures on the document---Witnesses' statement that agreement was of public knowledge in the locality had proved that defendants were not bona fide purchasers---Witness also stated that defendant had forcibly taken possession from lessee of suit-land and the testimony was supported by Khasra Girdawari---Contention of defendants that vendor was also present at the time of execution of agreement had no force because in ordinary sense, if the vendor was himself present, he should have signed the document or, at the very least, attested the same as a marginal witness---Execution of document relied upon by plaintiff had duly been proved and mere fact that receipt thereof did not bear the signature of one of witness was of no consequence---Document relied upon by plaintiff stood proved while defendants failed to prove themselves as bone fide purchasers.
Major (Retd.) Ahmad Khan Bhatti v. Mst. Masooda Fatimi PLD 1981 Kar. 398 ref.
(b) Contract Act (IX of 1872)--- ---S. 208---Termination of agency---Requirements---Principal is legally bound to give intimation of cancellation of power of attorney to agent under S.208 of Contract Act, 1872---Where there was no evidence on record to show that Attorney was ever given any intimation of termination of agency then mere fact that Abtalnama was registered; was of no consequence.
(c) Qanun-e-Shahadat (10 of 1984)--- ---Arts. 17 & 79---Scribe as attesting witness---Where a document is attested before scribe and scribe also affixes his signatures on the same that is sufficient to constitute the scribe as attesting witness.
Zafar Ullah Khan v. Mst. Hakim Bibi and another 2000 YLR 2789 ref.
(d) Civil Procedure Code (V of 1908)--- ----S. 101---Second appeal---Finding of fact---Finding of fact arrived at by appellate Court in second appeal can be interfered with on account of limitations set out in S.101, C.P.C.
Ch. Imdad Ali Khan for Appellant.
Ch. Muhammad Yaqoob Sindhu for Respondents.
Date of hearing: 22nd September, 2005.
JAWWAD S. KHAWAJA, J.--- The appellant/plaintiff impugns the appellate decree dated 30-11- 2000 whereby the decree of the learned Civil Court, Arifwala, dated 13-6-1997 was set aside and, as a result, the suit filed by the appellant/plaintiff seeking specific performance of agreement (Exh.P.1), dated 13-1-1987 has been dismissed.
2. Although the record of this case is voluminous, the facts necessary for its disposal are relatively straightforward.
3. The dispute between the parties relates to 100 Kanals, 18 Marlas of agricultural land situated in Chak No.78-EB now falling in Tehsil Arifwala. The land originally was allotted to one Dost Muhammad who was an affectee displaced from Islamabad. Upon his death the property was inherited by Muhammad Nawaz (respondent No.5) now represented by his L.Rs. The case set up by the appellant/plaintiff was that Muhammad Nawaz had appointed Abdul Qayyum (respondent No.6) now represented by. His L.Rs. As his general attorney vide registered power of attorney (Exh.P.3) dated 8-3-1976 and that the said general attorney had executed the agreement (Exh.P.1) along with a receipt (Exh.P.2) showing that out of the total consideration of Rs.1,50,000 a sum of Rs.1,30,000 had been paid by the appellant/plaintiff.
4. The suit of the appellant was not resisted by Muhammad Nawaz (respondent No.5) or by his attorney Abdul Qayyum (respondent No.6).
5. The parties, who opposed the appellant/plaintiff, were respondents Nos.1 to 4, 7 and 8 (hereinafter referred to as the contesting respondents). The defence set up by the contesting respondents was that Muhammad Nawaz had executed an agreement (Exh.D.7) in their favour on 2-1-1987 whereby he had agreed to sell the suit-land to them for a total consideration of Rs.3,00,000 out of which a sum of Rs.50,000 was paid by them. At this juncture it is relevant to note that in their written statement the contesting respondents did not deny the fact that Abdul Qayyum (respondent No.6) was appointed attorney of the vendor Muhammad Nawaz or that Abdul Qayyum had executed Exh.P.1 and Exh.P.2. In paragraph 2 of the written statement it was averred that the power of attorney (Exh.P.3) had been cancelled through Abtaal Nama dated 8-1- 1987. On this basis it was asserted that on the date of execution of Exh.P.1 and Exh.P.2 i.e. 13-1-1987 the aforesaid Abdul Qayyum was not an attorney of Muhammad Nawaz and, therefore, he had no authority to execute the said documents.
6. In respect of the agreement (Exh.P.1) itself it was averred in paragraph 3 of the written statement that Abdul Qayyum had antedated the said agreement with the object of frustrating the purchase of the property by the contesting respondents. It was further alleged in the written statement that the contesting respondents were bona fide purchasers of the suit property for valuable consideration without knowledge of any interest of the appellant/plaintiff in the suit property.
7. Here it is also relevant to note that the contesting respondents produced Rapat Roznarncha No.345 dated 13-3-1987 and Mutation No.723 dated 16-3-1987 whereby the suit-land purportedly was mutated in the name of the contesting respondents. The learned trial Court framed as many as 12 issues including that of relief. However, Issues Nos.1 and 11 are dispositive of the present appeal. These issues were in the following terms:-- "(1) Whether the deceased defendant No.1 entered into agreement to sell the suit-land for consideration of Rs.1,50,000 with the plaintiff on 13-1-1987, executed the Iqrar Nama and receipt thereunder of even date, received an earnest money of Rs.1,30,000 through his special attorney deceased defendant No.2? OPP
(11) Whether the defendants are bona fide purchaser for consideration and possession without knowledge? OPD"
8. The parties led evidence both oral and documentary in support of their respective pleas. Having gone through the judgments of the learned Courts below I note that the learned trial Court has dealt with the case in great detail and while doing so has scrutinized the evidence minutely. The learned appellate Court unfortunately has not only failed to take note of material aspects of the case, its consideration of the available evidence is also perfunctory. Moreover, the learned appellate Court has not met the reasoning of the learned trial Court while reversing its findings.
9. The foremost basis on which the appellant has been non-suited by the learned appellate Court is that the agreement (Exh.P.1) has not been proved because one of the marginal witnesses mentioned therein, namely, Haji Muhammad Jan had not affixed his signatures on the agreement.
In order to determine the validity of this finding I have considered the circumstances borne out from the record. Exh.P.1, as noted above, was not disputed by the vendor Muhammad Nawaz or the attorney Abdul Qayyum. The execution of the said document as per paragraph 3 of the written statement, was not disputed even by the contesting respondents. Their only grievance was that the document had been antedated. The document itself was thus, admittedly, executed by the attorney and consequently did not require proof through the A testimony of marginal witnesses.
Notwithstanding this, as discussed in a latter part of this judgment, Exh.P.1 stands proved even through attesting witnesses.
10. Furthermore, since the execution was not disputed even by the contesting respondents, the only question which remained was whether the attorney had ceased to have authority to execute Exh.P.1 on account of the Abataal Nama (Exh.D.11) dated 8-1-1987 and, secondly, to determine if indeed the agreement (Exh.P.1) had been antedated with the object of frustrating any agreement between the vendor and the contesting respondents.
11. The contesting respondents produced on record not one but two Abtaal Namas; the first (Exh.D.11) is dated 8-1-1987 while there is a second Abtaal Nama (Exh.D.12) dated 15-1-1987. The necessity for the second Abtaal Nama (Exh.D.12) statedly is that the first (Exh.D.11) was not satisfactory. There is no evidence on record to show that the attorney was ever given any intimation of the cancellation of the power of attorney (Exh.P.3). The mere fact that the two Abtaal Namas were registered is of no consequence because requisite intimation of the termination of agency was not given to the agent under section 208 of the Contract Act and furthermore there is nothing on record to show that the appellant had knowledge of such termination. More importantly, however, the execution of the Abtaal Namas was denied by the vendor Muhammad Nawaz and was not otherwise proved. It is, therefore, clear that the power of attorney (Exh.P.3) and the authority conferred thereby on the attorney, was subsisting on 13-1-1987 when the agreement (Exh.P.1) and the receipt (Exh.P.2) were executed.
12. It is also of significance that one of the contesting respondents, namely, Muhammad Younus appeared as D.W.7 and deposed that the Abtaal Namas (Exh.D.11 and Exh.D.12) were forged by the respondent Shafqat Ali Kiani.
13. As to the question of antedating there is ample evidence on record to show that the agreement (Exh.P.1) was executed on 13-1-1987 and was not antedated. Firstly, it is to be noted that the endorsement of the stamp vendor at the back of Exh.P.1 shows that the stamp paper was purchased by the attorney Abdul Qayyum on 13-1-1987. Secondly, Mian Muhammad Aslam, Advocate/Notary Public appeared as P.W.1. He confirmed that he had notarized Exh.P.1 on 13-1-1987 and had duly entered the notarization at Serial No.71 in his register for 13-1-1987. The testimony of P.W. Has not been shaken in cross-examination. This evidence strongly belies the case set up by the contesting respondents that the agreement (Exh.P.1) was antedated.
14. The next witness produced by the appellant/plaintiff was Ali Akbar Chishti, Petition Writer who appeared as P.W.2 and deposed that he had inscribed the agreement (Exh.P.1) on the instructions of the attorney Abdul Qayyum and he had also signed the said document. He further testified that the agreement (Exh.P.1) was entered in his register at Serial No.55 on 13-1-1987. On that date eight documents in all were entered in his register, three prior to Exh.P.1 and four subsequent thereto. This witness is credible and his testimony has also not been undermined in cross-examination.
15. At this point it is important to note that on Exh.P.1 the names of the two marginal witnesses, namely, Subedar Muhammad Mahfooz and Haji Muhammad Jan have been mentioned. Only the signatures of Subedar Muhammad Mahfooz appear on the document while Haji Muhammad Jan's signatures, as noted above, are missing. This omission has been taken note of by the learned appellate Court which has concluded that on account of the missing signatures of Haji Muhammad Jan, the requirements of sections 17 and 79 of the Qanun-e-Shahadat Order have not been met and, therefore, the said document cannot be considered in evidence. This finding is not tenable for more than one reason. The first being that the execution of Exh.P.1 by the attorney Abdul Qayyum is not in dispute at all, as discussed above. Secondly, Ali Akbar Chishti (P.W.2), who was the scribe of the document, deposed that the document was executed by Abdul Qayyum and was witnessed by Subedar Muhammad Mahfooz in his presence and he had also affixed his c signatures on the same. These circumstances are sufficient to constitute P.W.2 an attesting witness. Support, if any, for this legal proposition can be had from the case titled Zafar Ullah Khan v.
Mst. Hakim Bibi and another 2000 YLR 2789. The learned appellate Court thus fell into serious error by holding that Exh.P.1 had not been proved.
16. In addition to the above, learned counsel for the appellant argued that even the wording of the receipt (Exh.P.2) would make it an agreement to sell because the suit property has been mentioned therein together with the total consideration of the amount paid at the time of execution of the receipt. This contention is well-founded and is supported by the ratio of the case titled Major (Retd.) Ahmad Khan Bhatti v. Mst. Masooda Fatimi PLD 1981 Kar. 398. In any event, in view of the.
Above discussion, wherein the agreement (Exh.P.1) has been held to have been attested by two witnesses, namely, Subedar Muhammad Mahfooz and the Petition Writer Ali Akbar Chishti (P.W.2), even if the receipt (Exh.P.2) is not treated as an agreement, the appellant's case based on the agreement (Exh.P.1) stands established.
17. I next come to the defence set up by the contesting respondents. It needs to be noted that one of them, namely, Muhammad Younus (respondent No.1) is a Patwari. It can, therefore, reasonably be assumed that he was fully aware of the legal and procedural requirements pertaining to transactions involving sale of agricultural land. I, therefore, find it odd in the extreme that the agreement (Exh.D.7) relied on by the contesting respondents, is not on stamp paper. This is particularly so because the witnesses of the contesting respondents themselves state that the agreement was prepared in the Tehsil premises. Furthermore, it has not been scribed by any licensed Petition Writer. It does appear to have been notarized although the name of the notary is not legible. One Ch. Muhammad Amin appeared as D.W.4 and claimed that he had notarized E the agreement (Exh.D.7). He admitted that he had not made any entry of the notarization in his register.
There is no valid explanation for this serious omission. Furthermore one of the marginal witnesses to the agreement (Exh.D.7), namely, Raja Shafqat Ali Kiani (respondent No.9 herein) did not appear as a witness to prove the said document. The other marginal witness, namely, Khurshid Ali appeared as D.W.6. This person F is the husband of Mst. Sughran Bibi one of the contesting respondents. He is obviously an interested witness and his testimony has to be considered with extreme caution. His were being a direct beneficiary of the agreement (Exh.D.7) considering the shortcomings of the agreement (Exh.D.7) noted above and the lack of probity of D.W.4 discussed above, I. Am not left in any doubt that the agreement (Exh.D.7) was not proved.
18. Here it is also worth-noting that the agreement (Exh.D.7) was expressly denied by the vendor Muhammad Nawaz. No attempt was made to prove his signatures on the document and the other mode by proving execution i.e. Through the marginal witnesses, was also not complied with by the contesting respondents, as discussed above.
19. From the above discussion, it is clear that the agreement (Exh.P.1) stands duly proved. It is also proved that the said agreement was executed on 13-1-1987 and was not antedated. On the other hand, the agreement (Exh.D.7) relied on by the contesting respondents, has not been proved.
20. Now it only remains to be seen if the contesting respondents were able to prove that they were bona fide purchasers of the suit properly for valuable consideration without notice of the appellant's interest therein. Muhammad Rafique (respondent No.7), who is one of the contesting respondents, appeared as D.W.9. In his cross-examination he admitted that the agreement (Exh.P.1) was of public knowledge in the H locality. The appellant/plaintiff appeared as P.W.9 and categorically deposed that the contesting respondents were fully aware of the agreement (Exh.P.1) in his favour. This part of his testimony has not been disputed in cross-examination. To the same effect is the testimony of Ajmal Faker who appeared as P.W.4.
21. In view of the foregoing discussion, I am not left in any doubt that the contesting respondents failed to prove that they were bona fide purchasers.
22. In addition to the above, it is also to be noted that one Chiragh was the lessee of the suit-land at the time of the agreement (Exh.P.1). This fact is established from the Khasra Girdawari covering the period between Kharif, 1986 and Rabi, 1987 (Exh.P.11) and even the Khasra Girdawari produced by the contesting respondents (Exh.D.20). The son of the aforesaid Chiragh, namely, Ali Asghar appeared as P.W.6 and testified that when the agreement (Exh.P.1) was executed the attorney Abdul Qayyum had informed Chiragh that he was to pay the lease money to the appellant in future. P.W.6 further deposed that for the subsequent crop the lease money, in fact, was paid to the appellant but thereafter the contesting respondents forcibly took possession from Chiragh. The respondent Younus does not claim that he took possession from the vendor or his attorney. His statement is merely to the effect that the land was vacant when he occupied it. This testimony is belied by the Khasra Girdawaris (Exh.P.11) produced by the appellant and Exh.D.20 produced by the contesting respondents themselves.
23. The contesting respondents brought on record testimony of witnesses in some other case between the aforesaid Chiragh and the contesting respondents. The learned trial Court rightly excluded this testimony from evidence in the present case because the proceedings of some other case are neither relevant nor admissible in the present case.
24. The learned appellate Court has utterly failed to consider the above aspects of the case.
Learned counsel for the contesting respondents merely argued that this was a second appeal and, therefore, the finding of fact arrived at by the learned appellate Court could not be interfered with on account of the limitations set out in section 100, C.P.C. This submission, I am afraid, is without merit. If the findings of the appellate Court are contrary to the evidence on record or are based on erroneous premises, as in the present case, the appellate decree cannot be sustained.
25. Secondly, it was contended by learned counsel for the contesting respondents that there was no occasion for the execution of the receipt (Exh.D.2) and that the said document had been subsequently fabricated with the object of introducing the third witness, namely, Muhammad Sibtain (P.W.3) whose name appears on the receipt (Exh.P.2) but not on the agreement (Exh.P.1).
There is no merit in this submission because, for the reasons considered above, Exh.P.1 itself stands proved.
26. Finally, it was contended by learned counsel for the contesting respondents that the appellant Muhammad Tufail while appearing as P.W.8 had admitted that the vendor was present when the agreement (Exh.P.1) and the receipt (Exh.P.2) were executed. It was argued that this statement itself shows that the documents were fabricated because in the ordinary course, if the vendor was himself present, he should have signed the documents or, at the very least, attested the same as a marginal witness. This contention is also without force because the agreement (Exh.P.1) stands duly proved for the reasons considered above.
27. For the foregoing reasons the impugned appellate decree dated 30-11-2000 is set aside and the decree of the learned trial Court stands restored.
28. The appellant shall also be entitled to his costs throughout.