' JAWWAD S. KHAWAJA, J.--- This regular second appeal arises out of three suits which were decided through consolidated judgment of the trial Court dated 30-1-1994 and two appeals thereagainst which were filed by the appellant Zafar Iqbal. Both appeals were decided by means of one consolidated appellate judgment dated 21-2-2002.
2. In order to understand the context in which the suits were filed, it is necessary to set out the facts of the case. The dispute between the parties relates to shop No.1-S35, which is situated in Muhammadi Bazar, Block No.1, Sargodha. It is not disputed between the parties that the shop was allotted to Ghulam Muhammad respondent No.1 (now represented by his L.Rs.) vide PTD dated 24- 8-1963. It is also not in dispute that Ghulam. Muhammad had appointed Sh. Muhammad Amin (predecessor-in-interest of respondents Nos.11 to 18) as his general attorney vide registered power of attorney (Exh.P.4) dated 12-11-1960. Aside from these admitted facts, the other circumstances of the case are contentious.
3. Sh. Muhammad Amin purporting to act as general attorney executed two registered mortgage deeds on 26-1-1961. By means of the first of these deeds one half of suit shop was mortgaged in favour of his brother Muhammad Siddique (respondent No.6) and the four sons of Siddique (respondents Nos.7 to 10 herein). Through the other mortgage deed, Sh. Muhammad Amin purported to mortgage the other one half of the suit shop to Abdul Karim father of Zafar Iqbal.
According to the terms of the mortgage deeds the mortgage money in each case was Rs.5,000 and the term of the mortgage was fifty years. Both mortgages were with possession.
4. On 4-6-1977, Ghulam Muhammad revoked the power of attorney (Exh.P.4) by means of abtalnama (Exh.P.12). It is the case of respondents Nos.6 to 10 that before the revocation of the power of attorney Sh. Muhammad Amin had executed an agreement to sell the disputed shop to respondents Nos.6 to 10 for a total consideration of Rs.25,000 out of which Rs.10,000 were statedly paid by these respondents as earnest money. The balance sum of Rs.15,000 was to be paid by 21- 6-1977.
5. On 27-6-1977 Muhammad Siddique and his four sons (respondents Nos.7 to 10) filed a suit against Ghulam Muhammad and the appellant Zafar Iqbal seeking specific performance of the aforesaid agreement dated 28-4-1977. Thereafter Ghulam Muhammad filed two suits on 26-10- 1978. In the first he claimed that the mortgage deeds and the agreement to sell dated 28-4-1977 were based on fraud, forgery and misrepresentation. In the second suit he challenged the sale- deed dated 4-6-1977 and consent decree dated 24-6-1977 which, according to him, had been obtained/fabricated by Zafar Iqbal.
6. The learned trial Court vide judgment and decree dated 30-1-1994 has held that the defence set up by the appellant Zafar Iqbal to the suit filed against him by Ghulam Muhammad was false. This finding has been affirmed by the learned Additional District Judge, Sargodha, in first appeal, vide judgment and decree dated 21-2-2002. Although the decrees of the learned Courts below were concurrently against Zafar lqbal, I nevertheless have gone through the record in detail with the assistance of learned counsel for both sides. For cogent reasons recorded in the impugned judgment with which, I am in full agreement, I find that the appellant Zafar Iqbal was unsuccessful in defending the sale-deed dated 4-6-1977 and the purported consent decree dated 24-6-1977 which were pleaded by him in defence.
7. It is significant that an alleged agreement dated 13-6-1977 whereby Ghulam Muhammad purportedly agreed to corrections in the aforesaid sale-deed was not produced on record.
Secondly, a power of attorney allegedly executed by Ghulam Muhammad on the same date i.e. 13- 6-1977 appointing Ibrahim, brother of Zafar Iqbal, as his attorney has also not been exhibited. Here it may be added that the consent decree dated 24-6-1977 was passed inter alia on the basis of a conceding statement made by the aforesaid Ibrahim. Ghulam Muhammad did not appear in the case which had been filed by Zafar Iqbal. The plaint in the case was based inter alia on the above noted agreement dated 13-6-1977 and sought a decree to rectify the error which, according to Zafar Iqbal, had crept into the sale-deed due to a mistake on the part of the scribe. It is intriguing that Zafar Iqbal chose to obtain a power of attorney in favour of his brother rather than asking Ghulam Muhammad to execute a supplemental deed for correcting any mistake in the sale-deed dated 4-6-1977. Learned counsel fore the appellant Zafar Iqbal was asked to state the reason for this . Strange course adopted by the appellant. He was unable to do so.
8. In addition to the above learned counsel for the appellant could not give any reason for the appellant's failure to produce the agreement and power of attorney dated 13-6-1977. In the absence of these two documents, firstly, the nature of the mistake, which the appellant and Ghulam Muhammad wanted to rectify, cannot be ascertained and, secondly, the power delegated to the brother of the appellant through the power of attorney executed by Ghulam Muhammad cannot be determined. In the circumstances, it is clear that the record does not show that Ghulam Muhammad had consented to the decree dated 24-6-1977. The same was therefore, rightly set aside by the Courts below. At this point it is also important to note that Ibrahim, who is the brother of the appellant and was the alleged attorney of Ghulam Muhammad was not produced as a witness. There is no explanation on the record for this material omission,
9. The above circumstances leave me in no doubt that the appellant had no case and had set up false pleas in his defence.
10. In view of the foregoing discussion, I find ho merit in this appeal which is, therefore, dismissed with costs throughout