' RAJA FAYYAZ AHMED, J.--- This Civil Petition for leave to appeal has been directed against the order dated 23-6-2009 passed in C.M.No,68-1995 in R.F.A. No,76 of 1993, whereby application filed under section 12(2), C.P.C. Against the judgment and decree dated 4-7-1994 of the learned Lahore High Court, Bahawalpur Bench has been dismissed.
2. The precise relevant facts of the case are that respondent No,
1. Mst. Sardar Bibi alias Sardaran (deceased) now represented by her legal heirs instituted a civil suit for specific performance of the agreement against petitioner Sardar Ali son of Ghulam Muhammad and Mst. Sharifan daughter of Ghulam Muhammad, respondent No,2 in respect of agricultural land measuring 179 Kanals and 5- 1/2 Marlas against the sale consideration amounting to Rs,8,96,375 Mst. Sharifan Bibi respondent No,2 filed conceding written statement for herself as also on behalf of the petitioner claiming herself to be the general attorney of the petitioner. The suit initially was dismissed by the learned trial Court on 22-9-1993 against which Mst. Sardar Bibi respondent No,1 filed Regular First Appeal No,76 of 1993/BWP against the petitioner and respondent No,2 in the Lahore High Court Bahawalpur Bench, Bahawalpur, which was accepted by the learned Division Bench of the High Court in view of the agreement entered between the parties and as per statement of Mst. Sharifan Bibi for herself and as general attorney of the petitioner, who is her real brother. Accordingly, the impugned decree of the learned trial Court was set aside and the suit was decreed on payment of Rs,25,000 to be paid by Mst. Sardar Bibi, respondent No,1 before asking for registration of the transaction. The relevant and operative paragraphs of the judgment dated 4-7-1994 for sake of convenience are reproduced hereinbelow:---
(3) Learned counsel for applicant contends that impugned judgment and decree dated 4-7-1994 was obtained through fraud, misrepresentation and want of jurisdiction by the respondent No,1 with the collusion of respondent No,2; that the general power of attorney registered by the Sub- Registrar of Raisingnagar Rajasthan (India) office was cancelled vide cancellation deed on 22-10- 1991; that neither the alleged deed of general power of attorney registered on 16-4-1988 at the office of Sub-Registrar Sadduiqabad vide "Bahi No,4 Jild No,36, Serial No,285 executed by the applicant in favour of respondent No,2 nor any authority was given to respondent No,2 about the transaction of the disputed land so, the above-mentioned deed was executed with the collusion of respondents and concerned officials, the deed is forged one; that respondent No,2 appeared before this Court' as general attorney of the petitioner, neither she had authority to appear before this Court nor she could enter into compromise with the respondent No,1, therefore, the impugned judgment and decree has been obtained through fraud, misrepresentation and want of jurisdiction.
(4) Notice was issued to the respondents Nos.1 and 2 to file reply of this application under section 12(2) C.P.C. It is contended that the decree was obtained validly in para-3, it was contended that ground No,(iii) is incorrect and baseless. The power of attorney dated 16-4-1988 was duly executed by applicant and authority for sale etc. Was given in the deed. The applicant himself executed the power of attorney and appeared before Sub-Registrar and made a statement accepting power of attorney. It was further stated that respondent No,2 appeared with full authority to appear and compromise on the basis of genuine power of attorney. No fraud was ever committed nor any misrepresentation occurred nor any want of jurisdiction."
3. Petitioner Sardar Ali filed application under section 12(2), C.P.C. Before the learned High Court challenging the above-mentioned judgment and decree passed in RFA on the ground that the same was obtained by fraud and misrepresentation by inter se collusion and that the general power of attorney registered by the Sub-Registrar of Raisingnagar Rajisthan (India) was cancelled vide revocation deed dated 22-10-1991. This application was contested seriously. In view of the divergent pleadings of the parties, following issues were framed by the learned High Court:---
(i) Whether the judgment and decree dated 4-7-1994 has been obtained through fraud and misrepresentation and the same is liable to be set aside? OPA.
(ii) Relief.
' With the consent of the learned counsel for the parties, the learned High Court vide order dated 20-4-2005, directed the learned Additional Sessions Judge, Sadiq Abad to record the evidence of the parties and submit the same before the said Court. After recording the evidence in the matter, the matter was re-submitted to the learned High Court. The relevant and operating paragraphs of the impugned order are read as under:-- "(7) The onus to prove issue No,1 was upon the applicant. To discharge the same, the applicant produced Wazir son of Ghulam Muhammad brother and attorney of Sardar Ali applicant A.W.1, Allah Bachaya son of Allah Dewaya A.W.2 and Abdul Aziz son of Ghulam Muhammad A.W.3. Since respondent was the beneficiary of the power of attorney therefore it was the duty and obligation of beneficiary to prove execution of general power of attorney when its execution is denied by alleged executant of general power of attorney. Reliance can be placed on the cases reported as Mst.
Najma v. Rehmat Ali and others. 2004 M LD 620.
(8) On behalf of respondent Mushtaq Ahmad Registry Moharrer, Ghulam Qadir petition writer of District Court Sadiqabad, Muhammad Hussain son of Karam Khan appeared as R.W.1 R.W.2 and R.W.3 respectively. Muhammad Hussain R.W.3 stated on oath that 17/18 years ago Sardar Ali got executed general power of attorney in favour of Mst. Sharifan. The same was reduced into writing by Ghulam Qadir Petition Writer. Sardar Ali marginal witness, put his thumb-impression in his presence. He also put his thumb-impression on the same. Haji Nabi Bukhsh had died. Death of Haji Nabi Bukhsh was not disputed. Mst. Jameela Bibi daughter of Mst. Sardaran Bibi appeared as R.W.4 and Mst. Sharifan daughter of Ghulam Muhammad appeared as R.W.S.
(9) It is settled law that power of attorney has to be construed strictly. See case of (NLR 1992 SCJ(sic)). On the touch stone of section 3 of the Transfer of Property Act, power of attorney is to be attested by two witnesses.
(11) The definition of "attested" requires attestation of an instrument by two or more witnesses. The role of witnesses in such attestation is that each of them has seen the executant sign or affix his thumb-mark to the instrument or has seen some other person sign the instrument in the presence and under the direction of the executant. See case of Abdul Hakeem v. Mst. IC Jannat Bibi 2005 SCM R 1228.
(12) Now objection to the general power of attorney is not tenable because sufficient proof for its execution and registration is forthcoming on the record. Even at the time of decreeing the suit the Court found that the power of attorney being suspicious and the appeal can be decided as per terms of the compromise. It was observed that respondent No,1 was Indian National deed of general power of attorney on his behalf was executed at Sadiqabad District R.Y. Khan. The Court directed the Deputy Commissioner, R.Y. Khan to hold an inquiry and submit a report as to if the deed of attorney was validly executed by respondent and secondly if the respondent No,1 had entcred into Pakistan under valid authority. According to the judgment dated 4-7-1994 in R.F.A.
No,76 of 1993 the Deputy Commissioner, R.Y. Khan submitted the report with the findings that respondent No,1 Indian National had come to Pakistan on 13-2-1988 and power of attorney by him was validly executed on 16-4-1988 in his presence before the concerned Sub-Registrar, before he left for India. It was further observed that the suit property in Pakistan went to respondent No,1 in "inheritance" Attestation of Sub-Registrar is rebuttable as held in base reported as Atta Muhammad and others v. Mst. Mehtab Bibi and another 1985 SCM R 144 but the applicant has failed to produce any evidence to prove that the general power of attorney is not genuine."
4. The learned counsel for the petitioner has been heard in the light of the impugned order gone through carefully with his assistance including the judgment passed in R.F.A.
5. The learned counsel for the petitioner mainly reiterated the grounds urged by him during the course of arguments before the learned High Court and in support of the application filed under section 12(2), C.P.C.. Each one of the grounds has been considered and dealt with in the light of evidence adduced before the learned Additional District Judge in accordance with the law to which no exception could be shown. We have also perused carefully and minutely the impugned order and the findings recorded by the learned High Court which squarely are based on the evidence led by the parties on the issues framed in the matter by the learned High Court and have not been able to find any impropriety or illegality in the said order. Admittedly, the onus was on the petitioner to substantiate that the decree was obtained by respondent No,1 Mst. Sardar Bibi by playing fraud and misrepresentation and none of the grounds urged in the application filed under section 12(2), C.P.C. Could be substantiated by the petitioner by discharging the onus, hence; in our considered opinion, the impugned order is not open to any interference by this Court.
6. Thus, for the foregoing reasons, this Civil Petition being without any substance is dismissed.
Leave declined.