' SYED HAMID ALI SHAH, J.--Through the instant revision petition, the petitioner has assailed the legality, validity and propriety of the concurrent findings of learned Courts below, whereby suit for declaration brought by the petitioner against the respondents was dismissed vide judgment and decree dated 10-2-1990, passed by Mr. Muhammad Shafique Butt, Civil Judge, Faisalabad and an appeal filed against that judgment and decree was dismissed by learned Additional District Judge, Faisalabad vide his judgment and decree dated 30-9-1991.
2. The dispute in this case, is in respect of a shop known as P-24 located in Ward No,6 Chak No,212/RB Tehsil and District Faisalabad. The disputed shop was owned by the petitioner. A special registered power of attorney was purportedly executed.= by the petitioner on 15-3-1980, qua the disputed shop in favour of Muhammad Azim/respondent No,2 Ch. Muhammad Qasim, Advocate and Muhammad Saeed i,e, respondents Nos.3 and 4 were marginal witnesses of the aforesaid special power of attorney. Respondent No,2 on the basis of aforementioned special power of attorney executed registered sale-deed of the disputed shop in favour of respondent No,1 on 30-3- 1980. The petitioner through filing the suit, sought the declarationto the effect that he is owner of the disputed Shop,and had not sold it to anyone. He denied having executed special power of attorney in favour of respondent No,2. He also denied having received any sale consideration. He asserted in plaint that the respondents being. Hands in gloves, with one another had deprived him of his valuable immovable property. The respondents, on the other hand, resisted the suit by maintaining that the petitioner had sold the disputed shop to respondent No,1 and for this purpose had appointed respondent No,2 as his special attorney. It was also maintained that sale consideration of Rs,2,15,000 was paid to the petitioner against a separate receipt. Learned trial Court framed appropriate issues. Thereafter the evidence of the parties was recorded. The suit on the conclusion of trial, was disrnissed through impugned decree. As mentioned supra, the appeal against the judgment of learned trial Court also met the fate of dismissal.
3. Undaunted by the successive failures, the petitioner has filed this revision petition. Learned counsel for the petitioner has taken me through the record to show that the disputed shop was purchased by the petitioner in the year 1978 for a consideration of Rs,38,000 while in the impugned sale-deed the same is shown to have been sold to respondent No,1 for paltry amount of Rs,9,500.
Learned counsel has contended that if the petitioner wanted to execute registered sale-deed of the disputed shop in favour of respondent No 1, he could have done it personally and there was no occasion to appoint respondent No,2 as his special attorney. Learned counsel has contended further that an application under Order XI Rule 15 C.P.C. Was moved, the reply thereof filed by respondents on 6-2-1984, reveals the admission of respondent No,1, that documents are in his safe.
Custody. Learned counsel has added that the respondents then changed the stance twice, with regard to the factum of possession of power of attorney. Respondent No,
1. Took the plea that power of attorney is with income tax authorities, who at the time of raid took it along with other documents. Learned counsel submitted that order dated 23-7-1984 duly reflects this plea. This respondent thereafter changed his stance and attributed non-production of power of attorney to it's destruction by Sub-Registrar being unclaimed document. Learned counsel went on to argue that the petitioner was not provided an opportunity to cross-examine the respondents on the question of non-production of crucial document. Learned counsel while referring to the cases of Nabi Ahmad and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others PLD 1969 SC 599 and Muhammad Irshad v. Aleemuddin and others 2001 M LD 1840, has contended that cross-examination is a vested right and it cannot be denied. He then referred to the cases of Abdul Hamid v. Malik Karam Dad, P.C.S., Election Tribunal, Rawalpindi and 2 others PLD 1966 (W.P.)
Lah. 16 and Muhammad Shafi and others v. The State PLD 1967. SC 167, to submit that purpose of cross-examination is to assist the Court, in bringing truth to light. Cases of Pir Mazharul Haq and others v. The State through Chief Ehtesab Commissioner, Islamabad PLD 2005 SC 63, and Mst. Kaniz Fatima, v. Ghulam Mustafa 1994 M LD 174 were referred to contend that any statement which is not subjected to cross-examination, does not constitute evidence. Learned counsel has then submitted that power of attorney, is not part of title document and as such cannot be a claimed document. It was contended that neither the inventory, nor other proof about the destruction of record was brought on record. Learned counsel took me to para.17 of the impugned judgment of learned trial Court and submitted that learned Court has erroneously found that special power of attorney stood proved and presumption of truth is attached to it. Learned counsel emphasized that presumption is not a proof. He found support is this contention, from the dictum of law laid down by Honourable Supreme Court in the case of Sher Afgan v. Sheikh Anjum Iqbal PLD 2004 SC 671.
Learned counsel pointed out that sale-deed Exh.D.1 was prepared, executed, signed and registered on same day i,e, on 30-3-1980. Similarly, an undue haste was shown while passing the decree.
Respondent sought permission to file the contents of register of petition writer on 10-2-1990 and permission was accorded and the document Exhs.D.4 to D.10 were admitted in evidence on the same day, without providing the petitioner an opportunity to cross-examine. The suit was finally decreed on the same date. Learned counsel summed up his arguments with the contention that evidence of the witnesses who were neither scribe nor marginal witnesses, has no value; inadequacy of consideration and agreement being unconscionable were the factors which were ignored. Learned counsel has referred to a number of case-law to contend, that under the revisional jurisdiction of this Court even concurrent findings of the Courts below can be set aside, varied or modified if the same are shown to be based on conjectures and surmises. Learned counsel has concluded his contention by submitting that both the Courts below committed illegality and material irregularity, in dismissing the suit and as such impugned judgments are liable to be reversed.
4. As against this Ch. Khurshid Ahmad, Advocate, counsel for the respondents, has fully supported the impugned judgments, Learned counsel has referred to the evidence to show that by producing cogent and confidence-inspiring evidence, the respondents had proved that the petitioner had sold the disputed shop to respondent No,1 and to give effect to sale, the petitioner had executed and got registered the special power of attorney (Exh.D.2/1) in favour of respondent No,2. Learned counsel has urged that concurrent findings of the Courts below are unexceptionable.
5. I have given my earnest and careful consideration to the submissions of the learned counsel for the parties. There is no cavil with the legal proposition that under the revisional jurisdiction of this Court, the concurrent findings of Courts, can be modified and reversed if the same are either based on no evidence or inadmissible evidence, or the same are capricious and conjectural.
6. The core and contentious issue in this case is whether or not the petitioner had sold the disputed shop to the petitioner, received consideration and for the purposes of execution of sale-deed had appointed respondent No,2 as his special attorney.
7. This requires appraisal and examination of evidence. The petitioner in his evidence merely denied having executed special power of attorney in favour of respondent No,2. As against this, D.W.1 Muhammad Azam unflinchingly deposed that the petitioner with whom he had business and friendly relations has appointed him as his special attorney for the execution of sale-deed of the disputed shop, in favour of respondent No,l. He deposed further that Muhammad Qasim, Advocate and Saeed (D.Ws.), who are marginal witnesses, had signed the special power of attorney, an attested copy of which is Exh.D.2/1. He deposed further 'that in his presence respondent No,1 had paid sale price of Rs,2,15,000 to the petitioner. The witness also affirmed that on the basis of Exh.D.2./1, he had executed registered sale-deed Exh.D.1 of the disputed shop in favour of respondent No,
1. The witness was subjected to lengthy cross-examination, but nothing material could be extracted through cross-examination. D.W.2 Muhammad Saeed and P.W.3 Ch. Muhammad Qasim Advocate who are marginal witnesses of the special power of attorney (Exh.D.2.11) materially supported statement of D.W.1, without their testimony being shaken in cross- examination. Not only this, D.W.4 Muhammad Rashid, petition writer confidently deposed that on the asking of the petitioner, he had scribed special power of attorney Exh.D.2/1. In addition to it, the statement of D.W.5 Muhammad Anwar is also material, who had scribed the receipt Exh.D.2/1, whereby an amount of Rs,2,15,000 was paid by respondent No,1 to the petitioner. The witness affirmed that in his presence the amount had changed hands. D.W.6 Muhammad Arshad Butt is a marginal witness of the receipt Exh.D.2. He corroborated the evidence of D.W.5 and remained firm in cross-examination. Respondent No,1 had, also reiterated his contention while appearing as D.W.7.
8. It would thus be seen that by cogent, credible, confidence-inspiring and well-corroborated oral and documentary evidence the respondents had succeeded in proving that the petitioner had sold the disputed shop to the petitioner, received consideration of Rs,2,15,000 and appointed respondent No,2 as his special attorney to execute the registered sale-deed in favour of respondent No, l. It is true that paltry amount of Rs,95,00 was mentioned in the sale-deed Exh.D.1.
But this was intended to avoid expenses, likely to incur on registration of B document. In any event this has no material impact on the validity of the sale-deed Exh.D.1. It is also true that the petitioner could have himself executed sale-deed in favour of respondent No,1, but in his wisdom and sagacity he appointed respondent No,2, with whom he had friendly and business relations, to perform this job, which is permissible under the law. Loss of the original special power of attorney has been duly proved. Muhammad Tufail Registry Moharrar, recorded his statement that special power of attorney was available in the record and same was destroyed according to the provisions of section 85 of the Registration Act. His statement without cross-examination, may not carry weight, yet the factum of execution and registration of power of attorney stood proved through other evidence available on the record. Learned Courts below while concurrently reaching the conclusion that a power of attorney was executed and registered, have not based their conclusion on solitary statement of Muhammad Tufail (Registry Moharrar).
9. The, upshot of above discussion is that both the Courts below had exercised the jurisdiction vested in them. There is no illegality or material irregularity. Both the impugned judgments of the Courts below, are unexceptionable. The revision petition is devoid of merits and D consideration.
The same is accordingly dismissed, leaving the parties to bear their own costs. .