' SYED ZAHID HUSSAIN, J.---A suit for possession, cancellation of power of attorney dated 26-4-1978 and consequential sale being null and void and inoperative qua the rights of the respondents/plaintiffs with injunction was instituted by the respondents/plaintiffs, which was dismissed by the learned trial Judge vide judgment and decree dated 15-5-1994 whereagainst the appeal preferred by the respondents/ plaintiffs was accepted by the learned Additional District Judge, Faisalabad on 15-9-1998. The same has been assailed through this revision petition.
2. It was the case of the respondents/plaintiffs (the successors of Muhammad Siddique) that Muhammad Siddique who had murdered his brother Ismail was an insane person who was in jail when power of attorney dated 26-4-1978 was purported to have been executed by him in favour of Muhammad Shafi, his cousin, which power of attorney was a fraudulent and fabricated document and alienation by Muhammad Shafi (pursuant to such power of attorney) of the suit-land measuring 9 Kanals, 11 Marlas in favour of his son Muhammad Rafique was void and ineffective. The suit was contested, which gave rise to several issues initially framed and some more issues were added later on. In view of the findings on Issues Nos.1 to 7 against the petitioners/defendants only Issues Nos. 8, 8-A, 8-B and 8-C are relevant at present. The same for convenience sake are reproduced:-- "8. Whether general power of attorney dated 26-4-1978 allegedly executed by M.Siddique in favour of Muhammad Shafi was illegal, void and based on fraud, without consideration and misrepre sentation? If so, its effect on sale-deed dated 6-6-1978 and Mutation No.757 dated 27-9-1978 and whether these documents are liable to be cancelled? OPP 8.A. Whether deceased Muhammad Siddique was an insane person? OPP 8-B Whether the plaintiff is entitled to inherit property left by deceased M. Siddique? If so to what extent? OPP 8-C Whether the plaintiff is entitled to the decree as prayed for? OPP ' Findings on these issues were recorded by the trial Court against the respondents/plaintiffs, which, however, were reversed by the learned appellate Court.
3. The learned counsel for the petitioners has challenged the findings recorded by the learned appellate Court that the evidence led by the respondents/ plaintiffs was inconsistent and not in consonance with the case pleaded in the plaint. It is contended that the fraud alleged was to be proved by producing convincing evidence, which was lacking in this case. It is contended that the power of attorney was validly executed by Muhammad Siddique which being a registered document is presumed to be genuine and presumption of authenticity and correctness attaches to the same. According to the learned counsel the burden of proving the case set up by the respondents/plaintiffs was not fully discharged by them. Reference has been made by him to Major (Retd.) Syed Baqar Hussain Shah v. Mst. Rashida Begum (1992 MLD 2515), Chilya Corrugated Board Mills Limited v. M. Ismail and another (1992 CLC 2524), Badar Zaman v. Sultan (1996 CLC 202), Arbab Jamshed Ahmad and another v. Ghazan Khan and others (1995 CLC 695) and Amirullah through Legal Heirs v. Surat Ali and 17 others (PLD 1991 Peshawar 29). According to him the findings recorded by the learned appellate Court are liable to be interfered by this Court.
' The learned counsel for the respondents on the other hand supports the judgment and decree of the appellate Court. It is contended that sufficient evidence had come on the record that Muhammad Siddique was an insane person who had committed murder of his brother and was in jail and the power of attorney was a fabricated and manoeuvred document by Muhammad Shafi who then transferred the land to his son namely Muhammad Rafique. It is contended that in view of such allegations of fraud and forgery the beneficiary of the transaction had to discharge the onus of proving that a valid power of attorney was indeed executed by Muhammad Siddique. According to him the sale made by Muhammad Shafi in favour of his son Muhammad Rafique was also hit by the principle stated in Jamil Akhtar and others v. Las Baba and others (PLD 2003 SC 494). He has also made reference to Muhammad Aslam v. Mst. Razia Begum and others (1999 YLR 620) and Muhammad Akram and 2 others v. Sikandar, deceased, through his legal heirs and others (1994 CLC 185).
4. There can be no cavil qua the propositions stated in the precedents cited by the learned counsel, however, it need to be considered as to which of the Courts below has rendered the findings correctly consistent with the evidence on the record. Suffice it to observe that when the transaction/ alienation is made/claimed on the basis of a power of attorney the valid execution of the said power of attorney is then to be proved by the beneficiary of the transaction when disputed. It is in this context that the findings recorded by the learned Additional District Judge, which have been assailed in this petition are to be considered.
5. The evidence that was led by the respondents/plaintiffs was in the form of the deposition of Fateh Muhammad P.W.1, a cousin of the parties, Muhammad Sharif P.W.2 another cousin of the parties, Imtiaz Ahmed P.W.3 one of the plaintiffs whereas Muhammad Rafique D. W.1 only appeared in defence. The depositions of these witnesses have been gone through with the assistance of the learned counsel. There are undoubtedly some minor inconsistencies in the statements of P.Ws.
Which, however, are of trivial nature and do not have much significance. Their depositions when read with the statement of Muhammad Rafique D.W.1 go to establish beyond doubt that Muhammad Siddique was not a sane person. He had committed murder of his brother and was in jail where he died. He was in jail when the power of attorney was purported to have been executed by him in the name of Muhammad Shafi father of Muhammad Rafique defendant. The learned Additional District Judge while recording his findings has appreciated and evaluated the testimony of these witnesses who came to the conclusion that due execution of power of attorney Exh.P.2 had not been proved. The overall import of the evidence on the record lends support to the conclusions drawn by the learned appellate Court. It may be observed that in view of such allegations of fraud, the circumstances in which Muhammad Siddique was placed and his mental condition, the execution and validity of the power of attorney cannot be presumed straightaway. Muhammad Rafique himself had indeed admitted the commission of murder by Muhammad Siddique of his brother Ismail and the mental condition of Muhammad Siddique. In such view of the matter the burden of onus to prove loses its importance and efficacy and the whole of the evidence in its entirety need to be taken into consideration for forming a view as to the existence or non-existence of power of attorney. The learned Additional District Judge was thus, fully justified to sift the whole of the evidence who came to the conclusion, he arrived at. It may be of significance to note here that Muhammad Shafi though was alive yet he was not produced nor he came forward to support the due execution of power of attorney in his favour. It gives rise to an adverse inference. It is also of significance to note that he had transferred the land in favour of his son without any justification or obtaining consent/permission from Muhammad Siddique, if at all he was acting as his attorney.
The learned appellate Court was thus, fully justified to record its findings on issues referred to above and to reverse the judgment and decree passed by the trial Court.
In view of the above this petition being without merit is dismissed. No order as to costs.