' ATTAULLAH KHAN J.---This judgment will commonly dispose of Civil Revisions Nos.328 and 329 of 2006, as both these petitions have been filed by the petitioner Muhammad Suleman against the respondents Syed Amjad Ali Qadri etc; and Muhammad Yameen etc; respectively, arising out of a consolidated judgment and decree dated 14-10-2006 passed by the learned Additional District Judge-IV D.I. Khan.
2. Briefly stated facts of the cases are that the petitioner Muhammad Suleman had sued Syed Amjad Ali Qadri for specific performance of agreement to sell deed executed on 17-4-1980 by Muhammad Shafi, general attorney of the defendant in respect of land measuring 96 kanals 12 marlas detailed in the heading of the plaint and situated in Mouza Bali Shumali D.I. Khan. It was averred in the plaint that the plaintiff had paid an earnest money of Rs,1,60,000 to the said attorney while the remaining amount was agreed to be paid at the time of transfer deed, but in order to grab/usurp the earnest money, Syed Amjad Ali Qadri defendant rescinded the general power of attorney in favour of Muhammad Shafi, defendant No,2 which was thus illegal and ineffective upon his rights. The plaintiff has further averred in the plaint that as the claim of Hadi Razi, defendant No,6, was cancelled, therefore, the land in question was transferred in the name of Amjad Ali Qadri defendant No,1 vide mutation No,307 dated 10-5-1980 by the Revenue Officer. The said order was challenged in a writ petition before this Court which was accepted and the case was remanded to the Revenue Officer for conducting fresh inquiry in the matter, who after due inquiry/satisfaction, reinstated the claim of Hadi Raza to be correct instead of Amjad Ali Qadri and in consequence, the entire land was retransferred to Hadi Razi, due to which he (Hadi Raza) and Muhammad Yamin were also impleaded as defendants to the suit.
3. On the other hand, Muhammad Yamin also instituted suit against Hadi Razi etc. In respect of the same property to have been purchased from Hadi Raza through his general attorney Syed Attique Ahmad to whom the entire sale consideration was alleged to had been paid followed by transfer of possession. His assertion is that Hadi Raza had empowered Syed Attique Ahmad as general attorney who had entered into an agreement to sell with him by executing an agreement deed, dated 2-5-1992 for sale consideration of Rs,5,33,050 out of which Rs, five lacs were paid in advance while the balance was agreed to be paid at the time of attestation of mutation or registration of sale deed but the remaining amount was also paid on 8-5-1992 by obtaining a proper receipt and thus he had become absolute owner of the suit property and prayed for decree of specific performance.
4. The learned trial Court consolidated both the suits and after filing written statements by the defendants, the following consolidated issues were framed:--
(1) Whether the plaintiff has got a cause of action?
(2) Whether the plaintiff is by his own conduct estopped to sue?
(3) Whether the suit is competent in the present form?
(4) Whether the suit is within time?
(5) Whether the suit has been properly valued for the purpose of court-fee and jurisdiction?
(6) Whether the suit is bad for non-joinder of necessary parties?
(7) Whether the suit property is ownership of defendant No,5?
(8) Whether defendant No,1 had obtained back his amount from defendant No,5 after the cancellation of claim and as such entry in revenue papers had been rightly coming in favour of defendant No,5 as owner in possession?
(9) Whether the suit property was the ownership of defendant No,1 who sold away to plaintiff through general attorney defendant No,2 on sale amount of Rs,164305 out of which the plaintiff has paid Rs,160000 and agreement to sell dated 17-4-1980 was executed and the possession was surrendered to plaintiff, if so its effect?
(10) Whether defendant No,1 has fraudulently executed a cancel-lation deed dated 6-5-1980 as he was bound to transfer the suit land after receiving the amount in favour of the plaintiff and the cancellation of general power of attorney is illegal and ineffective upon the rights of the plaintiff, if so, its effect? Similarly, the gift deed dated 22-5-1980 by defendant No,1 in favour of defendant No,3 is also wrong, illegal and ineffective upon the rights of the plaintiff?
(11) Whether defendant Muhammad Yamin is entitled to the decree in his suit as prayed for?
(12) Whether one Attique Ahmad was the general attorney of defendant Hadi Raza and in that capacity he had entered into sale agreement dated 2-5-1992 with defendant Muhammad Yamin and received Rs,5,00,000 as earnest money from him?
(13) Whether defendant Muhammad Yamin had also paid the remaining sale consideration of Rs,3350 vide receipt dated 8-5-1992 to Attique Ahmad and he had become the owner of 76 Kanals 3 Marlas of suit land detailed in his plaint?
(14) Whether the plaintiff is entitled to the decree as prayed for?
(15) Whether in alternative plaintiff is entitled to the recovery of Rs,116000 from the defendant as prayed for?
5. After hearing arguments, the trial Court dismissed both the suits vide judgment dated 28-7- 2003.
6. The said judgment was assailed in appeal before the appellate Court and vide judgment dated 14-10-2006, the learned Additional District Judge-IV D.I.Khan, accepted the appeal of Muhammad Yamin while dismissed that of Muhammad Suleman, hence these two revision petitions.
7. Arguments heard and record on file perused.
8. The suit property as is disclosed from the evidence on record was owned by Hadi Raza initially.
This ownership was further confirmed by restoration of his claim by the Revenue Authorities. The revenue record also supports the ownership of Hadi Raza.
9. P.W.6 Patwari Halqa and P.W.8 ADK appeared in the Trial Court and they confirmed that Hadi Raza is entered as owner and Amjad Ali Qadri has not beer. Shown as owner. In this way, the said Amjad Ali Qadri has nothing to do with the ownership of the suit property.
10. On the other hand, as stated above, the revenue record also confirms the ownership of Hadi Raza.
11. The agreement to sell in favour of Muhammad Yamin is also admitted by Hadi Raza in his written statement. If the agreement to sell is admitted, then there remains no need of its proof. I may rely upon 2002 M LD 1474, wherein it was held that when an agreement to sell is admitted in the pleadings, it need no proof. In this case also as stated above, there is an admission, therefore, the agreement of sell in favour of Muhammad Yamin stands proved.
12. Syed Attique Ahmad was the general attorney of the original owner who executed the sale deed on 2-5-1992 which is available on file. This shows that the sale consideration has been paid. The scribe of the sale deed also appeared as DW-1 who verified its contents and payment of the sale consideration. In this way, the claim of Muhammad Yamin was admitted firstly in the pleadings by the concerned defendant, namely, Hadi Raza and, secondly the scribe appeared in the Court and confirmed the execution of the document of sale. As the said document was admitted by owner, therefore, there is no need to prove it by producing marginal witnesses thereto.
13. The claim of Muhammad Suleman stands denied by Amjad Ali Qadri. He has denied the agreement to sell and also denied even the appointment of attorney, namely, Muhammad Shafique. The power of attorney in fovour of Muhammad Shafique C was also cancelled subsequently. This alleged agreement to sell in favour of the attorney by Amjad Ali Qadri was required to be proved which has not been proved.
14. Moreover, Amjad Ali Qadri was not owner of the property, therefore, he could not alienate it in favour of the petitioner. The title of Amjad Ali Qadri was not valid, therefore, he could not transfer it to another person. I may refer to 2004 M LD 1642 and also to 2004 SCJ 825 wherein it has been held that:- "The outcome of this discussion is D that sale deed executed in favour of Mst. Safiq Begum from whom respondent Mehmooda Begum had purchased the property in dispute was invalid and she cannot base her entitlement over the property on it."
15. In view of the above discussion, I find no merit in either of the two revision petitions which are accordingly dismissed leaving the parties to bear this own costs.