' MUHAMMAD KHALID MEHMOOD KHAN, J,---I propose to decide Regular Second Appeal No,90 of 2008 and Civil Revision No,1455 of 2008 through this single judgment.
2. On 21-7-1999 respondent No,1, filed a suit for possession through specific performance of agreement dated 2-7-1998 or in the alternative recovery of Rs.18,00,000 and permanent injunction against the appellant and respondent No,2 claiming that the appellant is the owner of a house, detailed in the heading of the plaint, he on 21-11-1997 appointed respondent No,2 his general attorney with the authority to sell, alienate, mortgage and gift etc. His house; the respondent No,2 vide agreement to sell dated 2-7-1998 agreed to sell the property to respondent No,1 against consideration of Rs.1.8 million and received Rs.1.5 million as earnest money and balance amount of Rs.3,00,000 was agreed to be payable at the time of registration of sale-deed before the Sub- Registrar; the sale-deed was agreed to be executed within one year; the respondent No,1 received Rs.300,000 on 22-2-1999 against receipt and handed over the possession of one room to him and, as such, the entire consideration was paid. On refusal of appellant and respondent No,2 to execute the sale-deed, the respondent No,1 tiled a suit for specific performance of agreement to sell or in alternative a decree for recovery of Rs.1.8 million against the appellant and respondent No,2.
3. On 23-8-2001 the appellant also filed a suit against the respondents for declaration and permanent injunction praying that he is the absolute owner in possession of house detailed in plaint and agreement to sell dated 13-7-1997, general power of attorney dated 21-7-1997 and agreement dated 22-2-1999 are without lawful authority, illegal, void and without consideration and the possession of one room with the respondent No,2 be ordered to be delivered to him.
4. Both the suits were consolidated and in a suit filed by respondent No,1 for specific performance, the respondent No,2 submitted a conceding written statement, the appellant contested the suit and the suit filed by the appellant was contested by both the respondents. The learned trial Court framed the consolidated issues as under:-- "ISSUES:
(1) Whether the defendant No,1 did not give the power to defendant No,2 to alienate the suit property in any manner? OPD-1
(2) Whether the defendant No,1 executed an agreement dated 13-11-1997 in favour of plaintiff? OPD- 1
(3) Whether the defendant No,1 executed an agreement dated 13-11-1997 in favour of defendant No,2 in which it was agreed by him that if the defendant No,1 remained fail to pay Rs.15,00,000 to him, he will execute the sale-deed regarding the disputed house in favour of the defendant No,2?
OPD
(4) Whether the defendant No,1 empowered the defendant No,2 to alienate the disputed property? .0PD-2
(5) Whether the plaintiff is entitled to a decree of a specific performance of the agreement dated 2-7-1998 executed by the defendant No,2 on behalf of defendant No,1? OPP
(6) Whether the defendant No,1 was bound by agreement of specific performance, executed by defendant No,2 in favour of the plaintiff? OPP (6-A) Whether the defendant No,1 is the owner in the possession of the disputed house and agreement to sell dated 13-11-1997 General-Attorney dated 21-11-1997 and agreement dated 2-7- 1998 is forged, fictitious and result of fraud and liable to be cancelled? OPD-1 (6-B) Whether the defendant No,1 is entitled to recover the possession of the room allegedly given to the plaintiff as licensee? OPD-1
(7) Relief.
5. Learned trial Court vide judgment', and decree dated 27-9-2006 decreed the suit titled "Muhammad Ramzan v. Muhammad Yousaf and another" for possession through specific performance of agreement and suit titled "Muhammad Yousaf v. Muhammad Yar and another" was dismissed. The appellant filed two appeals against the judgment and decree of the learned trial Court dated 27-9-2006 and the learned appellate court on 25-9-2008 dismissed both the appeals. The appellant assailed both the judgments and decrees through Regular Second Appeal (R.S.A. No,90 of 2008) and the Revision Petition (C.R. No,1455 of 2008).
6. Learned counsel for the appellant submits that respondent No,1 is the real brother of respondent No,2, he submits that appellant has never allowed the respondent D No,1 to sell his house without his consent and knowledge; the agreement to sell is collusive and the ultimate beneficiary of the same is respondent No,2. He further submits that as per written statement filed by respondent No,2 he claimed that appellant was not in a position to repay the loan of Rs.1.5 million and for securing and .Repayment of said loan, he appointed him as his general attorney enabling him to recover his amount, hence admittedly the respondent No,2 was not empowered to sell his house. He further claims that agreement to sell is a collusive document and is without his consent and knowledge, the alleged agreement to sell has not been proved; one of the marginal witnesses has not been examined and the scribe of the document cannot be treated as the marginal witness. He adds that in case of transfer of property by the general attorney in his favour or in favour of a benami purchaser, the agent is bound to get the specific permission of principal for his act which is lacking in the present suit; he finally submits that learned -courts below have misread and non-read the record. Learned counsel relied on Fida Muhammad v. Pir Muhammad Khan (Deceased) through legal heirs and others (PLD-1985 SC 341), Haji Faqir Muhammad and others v. Pir Muhammad and another (1997 SCM R 1811), Muhammad Ashraf and 2 others v. Muhammad Malik and 2 others (PLD 2008 SC 389), Qasim Ali v. Khadim Hussain through Legal Representatives and others (PLD 2005 Lahore 634), Mrs. Nasrin Awan v. M. Sadiq and 2 others (1989 ALD 136 (2) Lahore) and Madholal Sindhu v. Asian Assurance Co. Ltd. And others (AIR 1954 Bombay 305) in support of his contentions.
7. Learned counsel for the respondents submits that both the courts below have scanned the evidence minutely and their unanimous conclusion is that agreement to sell was a genuine document. It has been proved that respondent No,2 has received the entire consideration of Rs.1.8 million and, as such, rightly passed the impugned decree in accordance with law; he further submits that it has been proved beyond any shadow of doubt that it is the habit of the appellant to appoint attorney to someone and to obtain money from him and then revoke the power of attorney. He has defrauded number of persons through this mode. Learned counsel for the respondents has relied on Abdul Rahim v. Mukhtar Ahmad and 6 others (2001 SCM R 1488) in support of their contentions.
8. Heard and record perused carefully.
9. Perusal of said record shows that controversy between the parties is that appellant is claiming that he appointed respondent No,2 his attorney but has not authorized him to enter into an agreement to sell without his consent and knowledge that too with his brother; his version is that not a single penny was paid to him and the agreement to sell is collusive and fraudulent, the ultimate beneficiary of the said agreement is the respondent No,2, whereas the stance of respondents Nos.1 and 2 is that respondent No,2 is a valid general attorney of the appellant against consideration and entered into an agreement to sell with respondent No,1 who paid Rs.1.5 million as earnest money and on the day of execution of agreement to sell Rs.300,000 paid the balance amount against receipt and the respondent No,2 has handed over the possession of one room of the property to him. The act of revocation of general power of attorney on the part of appellant is fraudulent and is meant to cause the loss to the respondents. Two agreements have been claimed in this case. One is Ex.P.1 shown to be executed by the appellant in favour of respondent No,2, the contents of which show that appellant is admitting that he has to pay a sum of Rs.1.5 million to respondent No,2 and promised to pay the said amount due up to 30-6-1998 and in case of his default, his house bearing No,5 double storey situated at Qasba Peer-wala, Bano Bazar will be deemed to be sold in favour of respondent No,2 and he will become its absolute owner. Ex.P.2 is the document of General Power of attorney shown to be executed on 21-11-1997 by appellant in favour of respondent No,2. The third document is Ex.P.3 (agreement to sell dated 2-7-1998), the contents of which show that respondent No,2, being the general attorney of appellant agreed to sell a house measuring 8-marla situated in Bano Bazar, Pasrur to respondent No,1 against consideration of Rs.1.8 million, out of which, a sum of Rs.1.5 million was paid on the day of execution of the agreement and the balance amount was agreed to be paid at the time of execution of sale-deed on or before 2-7-1999. Exh.D-1 is the revocation of deed dated 26-2-1999 revoking the general power of attorney dated 21-11-1997.
10. The entire case between the parties revolves against these four documents. In a suit filed by respondent No,1 against the appellant and respondent No,2 for specific performance of agreement, the respondent No,2 conceded the claim of respondent No,1 but the appellant controverted the claim and claimed that the agreement to sell is collusive and fraudulent, the executant of the agreement was appointed attorney only to manage the affairs of the property, respondent No,2 and respondent No,1 are the real brothers. They in collusion with each other have managed the said agreement to sell. The . Agreement to sell Exh.P-3 shows that respondent No,2 has received Rs.1.5 million from the respondent No,1 being the part consideration of house and received Rs.300,000 through receipt Exh.P-3/1, these two documents are shown to be executed by the respondent No,2 in favour of respondent No,1. In agreement to sell, there are two marginal witnesses but only one witness appeared as P.W.7 who deposed in his examination-in-chief that the amount of Rs.1.5 million was paid one day after the execution of agreement he deposed that he signed the said document as marginal witness. In examination-in-chief, he states that when agreement was written, Muhammad Ramzan, Muhammad Yar, he and Dr. Sohail were present, he states that amount was given in the presence of Abdul Rehman who counted the said amount, he admits that appellant was not present at the time of transaction. Abdul Rehman appeared as P.W.6, he in cross-examination admits that he has not counted the amount, he states that the matter of payment of Rs.300,000 is between Din Muhammad, Yar and Muhammad Ramzan but the receipt Exh.P.W.3/1 shows that Deen Muhammad was not present at the time of execution of receipt. Muhammad Ramzan appeared as P.W.5, he deposed in his examinationin-chief that he purchased house from Muhammad Yar, Rs.1.5 million was paid at the time of execution of agreement to sell whereas P.W.7 deposed that amount was paid one day after of execution of agreement, he deposed that at the time of bargain Muhammad Yousaf was present whereas P.W.7 admits that at the time of bargain Muhammad Yousaf was not present, Muhammad Yar handed over the possession of one room after taking over the same from Muhammad Yousaf, he admits that except one room the sold house is in possession of appellant, he admits that Muhammad Yousaf was not present on the day of execution of agreement to sell, he admits that Yar Muhammad has not paid the amount of Rs.1.5 million in his presence. Admittedly for getting the decree, the respondent No,1 has to prove the payment of consideration, one of the marginal witnesses Dr. Sohail has not appeared and the other witnesses have deposed different stories about the payment of Rs.1.5 million even to respondent No,2.
11. The stance of respondent No,2 in the suit for specific performance is that he entered into an agreement to sell with respondent No,2 and received the entire consideration. He further averred that he is the duly authorized agent of the appellant. His case is not that he paid the amount of Rs.1.8 million to appellant but . He alleged that the appellant has to pay Rs.1.5 million to him which he vide Exh. P.1 agreed to pay up to 30-6-1998 and in acknowledgement of the said loan, he appointed him his general attorney with the powers to sell his house, he advanced his claim on the basis of Exh.P.1, for the sake of argument. If, it is admitted that Exh.P-1 was executed by appellant, there is a clause in the agreement that in case of appellant failure to repay Rs.1.5 million, the house will be deemed to be the property of respondent No,2 but surprisingly the respondent No,2 while executing the agreement to sell Exh.P.3, is not claiming to be the owner of said house but is entering into the agreement to sell Exh.P.3 with his real brother as general attorney of the appellant. In the agreement Exh.P.3, the attorney confirms that he has handed over the possession of the house to the purchaser on receipt of Rs.1.5 million but admittedly he is not in possession of the house. If the respondent was confident that on the basis of Exh.P.1 he is the owner of house, why he executed the Exh.P.3 as attorney of appellant. The argument of learned counsel for the respondents is that in fact the general power of attorney was executed by appellant in lieu of an agreement Ex. P.1 which confirms that appellant has borrowed Rs.1.5 million from the respondent No,2 and agreed to pay within one year and on his failure to pay the respondent No,2 will become the owner of said house, and he also executed Exh.P.2, the contents of Exh.P.2 general power of attorney show that this fact does not find mention in the document.
12. The argument of learned counsel for the respondents that general power of attorney is against consideration and is irrevocable and amounts to a sale-deed and admittedly the appellant has failed to return his amount and, as such, the document of general power of attorney has become a sale-deed. This argument of learned counsel for the respondents has no force for the simple reason that there is no reference available in the document of attorney of the alleged agreement Exh. P-1 nor the respondent No,2 has filed any suit against the appellant for the performance of Exh.P.1. The present suit is for specific performance of Exh.P.3 filed by respondent No, 1 . Further if this document of attorney is assumed to be executed in pursuance of Exh.P-1 and is against consideration, this document should be required to compulsory registerable under section 2(21)(b) of Schedule-I of Stamp Act being the conveyance deed, but this document is registered only under section 17 of the Registration Act and is revocable as the same is without consideration.
13. No doubt respondent No,2 has admitted the execution of Exh.P.3 but the appellant is contesting this agreement because he is not executed the same, under the document of attorney Exh.P.2 the principal admittedly is the owner of the house. Under Article 79 of the Qanun-e-Shahadat Order, two marginal witnesses of E the agreement are required to be examined for proving the agreement. P.W.7 Abdul Rasheed appeared who deposed that Muhammad Ramzan agreed to purchase a house against consideration of Rs. l.8 million and paid consideration Rs.1.5 million to him at Sialkot after one day of execution of Exh.P.3. He in his cross examination admits that when transaction was entered into with respondent No,1, Muhammad Yar, he and Doctor Sohail were present. He admits that the cash was paid before Abdul Rehman who counted the same. He admits that a sum of Rs.300,000 was not paid before him and he is not aware when Rs.300,000 were paid. He further admits that Muhammad Yar has sold this house to his real brother on the basis of that attorney. He admits that appellant Muhammad Yousaf was not present at the time of bargain nor he was present at the time of execution of the agreement. He admits that Muhammad Yar is only in possession of one room whereas the entire house is in possession of appellant. Doctor Sohail is the second marginal witness of agreement to sell, he has not been produced nor any evidence has been brought on record confirming that said witness has died or is alive. In the absence of any evidence it will be presumed that he is alive and has been withheld by the respondents. The scribe appeared as P.W.6, he deposed that Exh.P.3 is written by him on the instruction of respondents. Both signed before him, Abdul Rasheed and Doctor Sohail signed it as marginal witnesses. He in his cross examination admits that he has not counted the amount of Rs.1.5 million whereas the marginal witness P.W.7 Abdul Rasheed in his cross examination deposed that Abdul Rehman (P.W.6) has counted the amount of Rs.1.5 million, Abdul Rehman's admission that he never counted the amount, negate the statement of P.W.7. This fact coupled with non- appearance of other marginal witness namely Doctor Sohail is sufficient to prove that no consideration was paid and this fact strengthened the stance of appellant that the ultimate beneficiary of this agreement is Muhammad Yar, the respondent No, 1.
14. The argument of learned counsel for the appellant that under the document of power of attorney, the respondent No,2 was authorized to execute the sale agreement without the consent and knowledge of his principal. Under section 214 of the Contract Act, the agent/attorney if transferred the property in favour of those who were close related to him and that F ultimate beneficiary of the said transfer is the attorney, he is bound to obtain the consent of the principal, failing which, the principal is at liberty to repudiate the transaction. It is proven fact that respondents Nos.1 and 2 are the real brothers. Amount of Rs,1.5 million was not proved to be paid.
The marginal witness Doctor Sohail has not appeared and, as G such, it has been proved on record that the ultimate beneficiary of the alleged agreement to sell Exh.P.3 is Muhammad Yar. Hence the appellant has successfully proved that it is a shame transaction.
15. The argument of learned counsel for the respondents that power of attorney executed in his favour is against consideration, if this is the case then definitely the attorney will be empowered to sale the property of the principal without his consent and knowledge but the evidence produced and the pleadings of the parties proved that the general power of attorney was without consideration. The argument of learned counsel for the, respondents that this power of attorney is with reference to Exh.P.1 the agreement but surprisingly the existence of that agreement is not find mentioned in the deed of power of attorney nor the respondent No,2 has claimed the performance of that document. So the ratio of judgment Abdul Rahim v. Mukhtar Ahmad and 6 others (2001 SCM R 1488) (ibid) is not applicable in this case. The learned courts below have failed to appreciate this aspect of the case and have fallen in error while deciding that the power of attorney is against consideration. The suit of respondent No,1 shows that it has two pleas, in the first instance, he prays for a decree of specific performance of agreement Exh.P.3 but in alternative he prays for return of Rs.1.8 million but from the appellant and not from respondent No,2 who entered into agreement to sell with him. The learned trial court should have passed decree of Rs.1.8 million against respondent No,1 as he has admitted the execution of agreement and received the amount. The respondent No,1 even after the admission of his claim by the respondent No,2 has not pressed the decree against him. This act of respondent No,1 further strengthened the stance of appellant that ultimate beneficiary of the agreement to sell is respondent No,2.
16. From the above said discussion it is proved that respondent No,2 is the ultimate beneficiary of the alleged agreement to sell executed by him in favour of respondent No,1 and, as such, the suit of the plaintiff (Muhammad Ramzan) should have not been decreed for specific performance of the agreement against the appellant (Muhammad Yousaf).
17. The learned Courts below have not considered the evidence produced by respondent No,1 which clearly shows that not a single penny was paid to the principal/the appellant and it was the respondent No,2 who played this fraud with collusion of his real brother. If there was a transaction of Rs.1.5 million between the appellant and respondent No,2 as alleged it was very easy for the respondent No,2 to obtain a decree on the basis of agreement dated 13-11-1997 (Exh.P.1), why he arranged a new agreement to sell. The natural inference in these circumstances is that he was not confident about Exh.P.1 so he decided to insert the agreement to sell in the transaction with the collusion and connivance of his real brother. Decree under the Specific Relief Act is discretionary relief and can be allowed only to a person who approaches the Court with clean hands.
18. As far as the suit for declaration and permanent injunction filed by appellant against the respondent is concerned, the appellant has himself admitted in suit that his son Muhammad Naeem entered into business of prize bonds with the respondent No,2 and in pursuance of that business he executed agreement dated 13-11-1997 Exh.P.1. He also admits that he also executed general power of attorney in favour of the respondent. No evidence has been placed on record that the said agreement was without consideration, what happened about the business between the son and respondent No,2. He further admits that he has handed over possession of one room to respondent No,2 with reference to Exh.P.1. The appellant has failed to prove on record that said agreement was obtained through fraud and misrepresentation or it was without any consideration and, as such, K in the absence of any evidence, the suit was rightly dismissed by the learned courts below.
19. In view of the above said discussion, it is proved that judgments of both the Courts below qua suit for specific performance of agreement suffer from misreading and non-reading of record and are liable to be set aside. Therefore, I set aside both the judgments and decrees dated 27-9-2006 and 25-9-2008 passed by learned courts below in suit titled "Muhammad Ramzan v. Muhammad Yousaf and other" and dismissed the revision petition (C.R. No,1455 of 2008) to the extent of suit titled "Muhammad Yousaf v. Muhammad Yar and other". Appeal is allowed. There is no order as to costs.