' MIAN SAQIB NISAR, J.-Suit for declaration with consequential relief, filed by Hamid Shah, the predecessor-in-interest of the respondents, was allowed by the learned Civil Judge vide judgment and decree, dated 19-3-1986. Appeal filed by the petitioners has failed on 11-1-1988.
2. Briefly stated that facts of the case are that, Hamid Shah was the owner of land measuring 67 Kanals and 12 Marlas situated in Mauza Arzanipur Tehsil Chunian District Kasur. The present petitioners admittedly were the tenants of Hamid Shah, however, they vide registered sale-deed, dated 31-7-1975 purchased the suit property from Hamid Shah through Shakila Bibi his wife as his general attorney, which power of attorney was executed on 7-4-1975 and registered on 16-4-1975.
Subsequently, on 30-4-1978 Hamid Shah brought the above mentioned suit claiming that, he had never appointed Mst, Shakila Bibi his wife as his attorney and that the transaction of sale in favour of the petitioners, is result of either collusion and fraud played by the petitioners and Mst. Shakila Bibi or the petitioners presented some lady other than Mst. Shakila Bibi for the purpose of getting the two documents registered.
3. Anyhow, the suit was contested by the petitioners, Mst. Shakila Bibi was impleaded as defendant No,4 in this case, but she did not file any written statement and was proceeded ex parte. Out of the pleadings of the parties, the following issues were framed by the learned trial Court:- Issues:-
(1) Whether the proper Court fee has not been paid, if so, what is correct fee? OPD
(2) Whether this Court has no jurisdiction to try this suit? OPD
(3) Whether the defendants have made improvements on the suit property, if so, of what value and to what extent? OPD
(4) Whether the suit is barred by time? OPD ,
(5) Whether the suit cannot proceed in form? OPD
(6) Whether the plaintiff has failed to file list of his legal representatives, if so, to what effect? OPD
(7) Whether the defendants are entitled to special costs under section 35-A of C.P.C.? OPD
(8) Whether the plaintiff did not execute the power of attorney in favour of defendant No,4? OPP
(9) Whether the impugned sale-deed is illegal, void and without consideration? OPP
(10) Relief.
4. The parties were put to trial. The plaintiff/respondent examined P.W. 1 Abdul Ghafoor Khan, who is an employee in the Military Account Office at Abbotabad, where Hamid Shah was serving at the relevant time and has deposed that Hamid Shah was on duty on the dates of execution of power of attorney and also of the registration thereof P.W. 2 Muhammad Nawaz Khan, is also an employee of the same office and has deposed to the effect that the plaintiff was on duty on the given dates.
P.W.3 Muhammad Arif is a formal witness, who has just produced the record about the presence of the plaintiff at Military Account Office, Abbotabad. P.W.6 is plaintiff Hamid Shah himself.
' It may be pertinent to state here that though Shakila Bibi was neither examined by the plaintiff nor appeared in defence, but on miscellaneous application filed by the petitioners for production of the original power of attorney, she did appeared before the Court and made the statement denying the possession of the original power of attorney or the execution its present of the sale-deed in favour of the petitioners.
5. As against the above, the petitioners produced evidence to prove the sale-deed in their favour and tendered in evidence certified copy of the power of attorney in favour of Mst. Shakila Bibi.
Anyhow, on conclusion of the trial, the learned Civil Judge by giving findings mainly on issues Nos.8 and 9, held that Hamid Shah was not present in Lahore on the date of execution of the power of attorney or before the local commission, as the document was attested by the Commission on behalf of the Sub-Registrar, and thus, the power of attorney was not a validly proved document, resultantly any sale made by Mst. Shakila Bibi on the basis of the same in favour of the petitioners, is not genuine and valid. Therefore, the suit of the respondent/plaintiff was decreed. Against the above, the petitioners preferred an appeal, but without any success, hence this petition.
6. I have heard the learned counsel for the parties and their submissions shall be reflected in the discussion hereunder made.
7. In the suit, Mst. Shakila Bibi wife of Hamid Shah was impleaded as defendant No,4. Paragraph No,9 of the plaint postulates that, the plaintiff never appointed his wife (defendant No,4) as his attorney, but in the alternative, it is stated that even if, it was so, defendant No,4 knowingly or unknowingly has defrauded the plaintiff, and the plaintiff cannot be penalized for that. A possibility has also been expressed that the present petitioners might have produced some lady for the purpose of getting the power of attorney and the sale- deed registered. However, in his statement, while appearing as P.W.6, the plaintiff has stated that he does not know, if some other lady was produced in place of Mst. Shakila Bibi. He has further admitted that before fifing the suit, he served upon the petitioners with a legal notice (Exh.D.3) through Mr. Iqbal Hussain Kalanuri, Advocate, in which he had stated that, his wife was insane. However, he explained in the cross-examination that he meant to say that, his wife was fraudulently induced in the execution and the registration of the sale-deed.
8. The above two stances of the plaintiff/respondent are poles apart and contradictory and when confronted, no plausible explanation has been given. This has serious reflection upon the bona fide and varacity of the claim made by the plaintiff/respondent.
9. There is another important feature of the case that, Mst. Shakila Bibi was the wife of Hamid Shah' and the allegations in the plaint are that, she in collusion with the petitioners, has manoeuvred the transfer of the property, though it is also stated that she was fraudulently induced in this behalf and, therefore, was impleaded as defendant, but the fact remains, that, she did not file any written statement or appeared in the Court to support the version of the plaintiff. It is strange that, though as per evidence on record and also, ad admitted by her son today present in the Court, who looks to be a man of about 60 years of age, Mst. Shakila Bibi and Hamid Shah were happily married and there was no dispute or discord ever between them, but she was not arrayed as plaintiff to challenge the transaction of sale made in favour of the petitioners on account of any fraud, which was allegedly played directly upon her. The petitioners during the courses of trial have moved application for the production of the original power of attorney, which ought to be in possession of Mst. Shakila Bibi, because in the power of attorney, there was another property belonging to Hamid Shah situated at Bagh Gul Begum, Lahore, qua which, she was authorized to sell as well. But after hectic efforts, including issuance of warrants of arrest, she appeared before the Court and simply stated that she was not given any power of attorney and that she did not execute the sale-deed in favour of the petitioners. However, no opportunity of cross-examination was given to the petitioners, yet despite the fact that, Mst. Shakila Bibi was living with Hamid Shah in a happy matrimonial union, still her conduct was that, she was avoiding to appear in the Court, trying to hide the truth. It seems clear that though, Hamid Shah is shown to be present at his job on the given dates, but the possibility cannot be ruled out that power of attorney was executed by him on some other date, whereas the date on which he was at Abbotabad has been put, to defraud the prospective buyers of the property. Likewise, the same inference can also be drawn against the plaintiff, when the power of attorney was presented before the local commission in pursuance of its registration. The plaintiff, upon whom the onus to prove was, if the power of attorney is invalid, had not examined the marginal witnesses of the documents or the local commission. The argument of the learned counsel for the respondents that it was the duty of the petitioners, suffice it to say that, in the circumstances of the case, particularly the admitted close relationship of Hamid Shah with Mst. Shakila Bibi and allegation levelled in the legal notice (Exh.D.3) and because of the alternate and vague pleas raised in the plaint, it was more incumbent upon the plaintiff to have produced the evidence to prove the fact positively, that it is the petitioners, who had manoeuvred the power of attorney. Having conspicuously failed to lead such evidence, safe inference can be drawn against the respondent's side and in favour of the petitioners, that the power of attorney was genuine.
10. There is an important aspect of the case that, during the hearing of this petition, the learned counsel for the respondents categorically stated that Mst, Shakila Bibi had never executed or got registered the sale-deed in favour of the petitioners; she refuted her thumb impressions on the document. Thus, in order to resolve this part of the controversy, Shakila Bibi was summoned in the Court for the purpose of enabling the comparison of her thumb impressions with that on the sale- deed. After producing her specimen, the matter was referred to the Finger Print Bureau and the report of the bureau is positive, which has been proved by the C.W.l Muhammad Iqbal, examined by this Court. The statement of this witness has not been shattered at all. This fact alone in worthy enough to hold that Hamid Shah, in collusion with Mst. Shakila Bibi was trying to hide the truth from the Court, and knowing fully well that, the sale-deed does bear her thumb impression. Mst. Shakila Bibi avoided to appear at the trial stage; besides that the respondents had also been denying the fact of her executing the sale- deed, which fact was otherwise proved in the additional evidence recorded by this Court.
11. The Two Courts Below have given much weight to the fact, that on the given dates, Hamid Shah was at Abbotabad where he had been marked presence. However the probability, that the document has been dated otherwise than the service record of the plaintiff, in the totality of the facts and the attitude of the respondents' side plus Mst. Shakila Bibi, cannot be ruled out. Therefore, on this score alone, the Courts below could not have declared that the power of attorney is a fake and forged document.
' In the light of above, by setting aside the findings of the Courts below on issues Nos.8 and 9. I hold that, the power of attorney was duly executed by Hamid Shah in favour of Mst. Shakila Bibi, as by no cogent reason, it has, been proved otherwise, and the presumption of correctness to its execution and registration is attached under Article 95 of the Qanun-e- Shahadat, Order, 1984; besides that Mst. Shakila Bibi is also proved to have executed and got registered the sale-deed in favour of the petitioners. The findings on other issues, going against the petitioners also stand set aside with the result that, suit filed by the respondent/plaintiff is dismissed with costs throughout. This petition is accordingly allowed.