JUDGMENT MUHAMMAD KHALID MEHMOOD KHAN, J.---Respondent No.1 filed a suit for declaration to the effect that she and respondents Nos.2 to 5 are the legal heirs of one Allah Bukhsh who were holding Dakheel Kari Rights in the land detailed in the heading of plaint. The said Allah Buksh died on 3-12-1977 when he was 120 years old. He was mentally and physically sick. He was unable to speak and understand. He had also lost his eye sight. Respondent No.5 Sultan Mehmood got prepared a fraudulent General. Power of Attorney on behalf of deceased Allah Bukhsh in his favour.
The, said respondent obtained permission from District Collector Vehari on 20-4-1976 for transferring the suit land by way of gift in favour of his father in law namely Allah Yar, the real son of deceased Allah Bukhsh. The respondent No.5 on 17-6-1977 transferred the suit land through two registered $ale-deeds Nos.1743 and 1744 in favour of petitioner. It is further averred that Allah Bukhsh in his life time himself filed a suit through her challenging the legality of two sale-deeds and general power of attorney but after his death the said suit become infructuous and withdrawn.
The respondent No.1 through the suit challenged the validity, genuineness and correctness of registered General Power of Attorney allegedly executed by Allah Bukhsh deceased in favour of Sultan Mehmood and subsequent transfer of land by Sultan Mehmood in favour of Allah Yar.
2. The petitioner opposed the suit along with other defendants and controverted the assertions of plaint claiming that sale in his favour is with the permission obtained under section 19 of Colonization of Government Lands Act, 1912. The deceased executed General Power of Attorney in favour of Sultan Mehmood respondent No.5 who transferred the suit property through two registered sale-deeds.
3. Learned trial Court, out of divergent pleadings of parties, framed the following issues:- "ISSUES:- (1) Whether the suit is not maintainable in its present form? OPD
(2) Whether the plaintiff has no cause of action? OPD (3). Whether the plaintiff has no locus Standi to file the present form? OPD
(4) Whether the plaintiff is in possession of the suit-land and therefore, the suit for declaration is not maintainable.? OPD
(5) Whether this court lacks jurisdiction to try the present suit? OPD
(6) Whether the suit is bad for misjoinder of a necessary parties and non joinder of the necessary parties? OPD
(7) Whether the suit is insufficiently stamped and incorrectly valued for the purpose of court fee and jurisdiction? OPD
(8) Whether the suit is time-barred? OPD
(9) Whether the suit is frivolous and therefore defendant are entitled for special costs under section 35-A of C.P.C.? OPD
(10) Whether the plaint is liable to be rejected under Order VII Rule 11 of C.P.C.? OPD
(11) Whether the plaintiff is estopped to file the present suit? OPD
(12) Whether the general power of attorney No.338 dated 9-12-1975 is executed by Allah Bakhsh deceased in favour of the defendant is illegal against facts and result of collusiveness, fraud and under influence? OPP
(13) Whether the subsequently Sale-deeds Nos.1743 and 1744 dated 17-6-1976 are illegal against law and fact without consideration result of fraud, void and therefore, inoperative against the rights of the plaintiff? OPP
(14) Whether the plaintiff No.1 along with the defendants Nos.2 and 6 are legal heirs of Allah Bakhsh deceased and are in possession of the suit land being owners? OPP (15).Relief"
4. Both the parties produced their respective evidence both verbal as well as documentary and vide judgment and decree dated 2-6-1992, the learned trial court dismissed the suit. Respondent No.1 assailed the said judgment and decree through an appeal which was allowed vide judgment and decree dated 18-12-1995. Hence, the present revision petition.
5. Learned counsel for the petitioner submits that judgment of learned appellate court suffers from misreading and non-reading of record. He submits that Power of Attorney Exh.D-1 has been proved as its marginal witnesses and scribe appeared before the court and confirmed the execution of said document. Further submits that the petitioner originally filed a suit for cancellation of Power of Attorney and two sale-deeds on behalf of Allah Bukhsh which was withdrawn on 14-12-1997 and as such the second suit was not maintainable. Further submits that the suit was in fact filed by respondent No.1 and not deceased Allah Bukhsh as she herself admits that deceased was incapacitated person unable to speak and see and as such the two transactions were in her knowledge and claimed the bar of limitation. He adds that second suit was barred by time. He submits that in paras. Nos.3 and 4 of the plaint the respondent No.1 has claimed that she came to know about the disputed document on 7-3-1989 whereas she had already filed a suit which was withdrawn against the said document and as such the suit was hopelessly barred by time. He submits that the sale was in terms of Exh.P-8 which was issued by the Province of Punjab and as such the sale-deed was rightly executed by the respondents. He relied on Mst. Chanan Bibi and 4 others v. Muhammad Shafi and 3 others (PLD 1977 Supreme Court 28) Rasool Bukhsh and another v.
Muhammad Ramzan (2007 SCMR 85), Muhammad Bashir and others v. Mst. Walayat Begum and others (PLD 1967 Lahore 391), Noor Muhammad Khan and 3 others v. Habibullah Khan and 27 others (PLD 1994 Supreme Court 650) and Ghulam Haider v. (Hafiz) Allah Bakhsh 1985 SCMR 1218.
6. Learned counsel for respondents supports the impugned judgment and decree and submits that petitioner has miserably failed to prove that the Province of Punjab ever permitted to them to sell the property in dispute. He submits that Exh.P-8 is in fact permission for pronouncement of gift and not sale. Further submits that even if it is assumed that Power of Attorney was rightly executed by the deceased Allah Bukhsh even then the property could not be transferred by the attorney in favour of his father in law.. He adds that permission under section 19 of Colonization of Government.
Lands Act, 1912 was restricted only for 6 months and admittedly no gift was registered within six months and as such the disputed sale is against the law and facts.. He relied on Fida Muhammad v. Pir Muhammad Khan through tegal heirs and others (PLD 1985 Supreme Court 341), Muhammad Qasim Khan and 6 others v. Mst. Mehbooba and 6 others (1991 SCMR 515), Mst. Shumal Begum v.
Mst. Gulzar Begum and 3 others (1994 SCMR 818), Muhammad Amin and 2 others v. Akhtar Munir through Attorney (2005 YLR 1700), Sheikh Muhammad Sadiq v. Elahi Bakhsh and 2 others (2006 SCMR 12) and Muhammad Taj v. Arshad Mehmood and 3 others (2009 SCMR 114).
7. Heard. Record perused.
8. It is an admitted fact between the parties that respondents Nos.2 to 5 and petitioners are brother and sisters and are the legal heirs of deceased Allah Buksh who was the owner of land in dispute.
The only dispute between the parties is about the transfer of land in favour of Allah Yar in exclusion of the legal heirs. Modus operendi for transfer of property in favour of petitioner is that, the petitioner arranged a General Power of Attorney on behalf of deceased Allah Bukhsh, the owner of suit land in favour of respondent No.5. Respondent No.5 on the basis of said General Power of Attorney transferred the land in favour of petitioner.
9. It is an admitted fact that respondent No.5 Sultan Mehmood is the son in law of petitioner. It is also an admitted fact between the parties that at the time of execution of General Power of Attorney as well as sale-deed, the deceased Allah Bukhsh was having Dakheel Kari rights in the land and as such for transfer or alienation of his property he was to obtain permission from respondent No.6, the Provincial Government. Registered Power of Attorney Exh.D-1 was shown to be executed on 8-12-1975. The purpose for appointing Allah Yar son of Yar Muhammad, is shown, that principal Allah Bukhsh wanted to transfer his Dakheel Kari rights in suit land in favour of Allah Yar or any other person and due to his oldage he is unable to appear before the Collector and as such he appoints his relative and well wisher Sultan Mehmood son of Allah Bukhsh as his general attorney with the power to obtain permission to sell and transfer of his rights in the land and execute the sale-deed etc. It is also an admitted fact that respondent No.5, being attorney of Allah Bakhsh, applied to respondent No.6 for issuance of permission under section 19 of the Colonization of Government Lands Act, 1912 and the District Collector Multan vide order dated 20-4-1976 passed the following order:-- "ORDER: Sultan Mehmood son of Allah Bakhsh General Attorney on behalf of Allah Bakhsh son of Pir Bakhsh transferer and Allah Yar son of Allah Bakhsh transferee are present. They have been heard. They have admitted the gift transaction of accupancy rights equal to 1/3 share in total area of 535 kanals, 6 marlas in Khewat No.39 Khatuni Nos.183 to 200 measuring 178 kanals, 9 marlas situated in Chak No.33/WB, Tehsil Vehari, held by the transferer to Allah Yar his real son. As recommended by the Assistant Commissioner, Vehari permission under section 19 of the Colonization of Government Lands (Punjab) Act, 1912 to alienate the transfer of above Dakhilkari rights is hereby accorded provided the transaction is not hit by the provisions of M.L.R.
115. The contract should be concluded within a period of six months from the date of this order failing which the permission should be considered to have been withdrawn."
10. Perusal of above said permission shows that it was obtained for pronouncement of a gift of occupancy rights in favour of petitioner. The order dated 20-4-1976 shows that Sultan Mehmood has gifted the property of his principal to petitioner, the real son of Allah Bakhsh.
11. The argument of learned counsel for the petitioner that General Power of Attorney was not proved, is not supported by any evidence. The marginal witnesses and scribe of General Power of Attorney appeared and categorically stated that the same was executed by Allah Bakhsh.
Lumberdar of the Deh appeared and deposed that deceased Allah Bakhsh had appointed Sultan Mehmood his attorney. D.W-2 Muhammad Zafar is the marginal witness of power of attorney along with Muhammad Hussain D.W-3. They confirmed the execution of General Power of' Attorney Exh.D- 1 by Allah Bakhsh in their presence and as such attorney is proved. Learned appellate court has held that as the document of General Power of Attorney is proved and two sale-deeds stand proved. Now question arose even if we accept that General Power of Attorney was tightly executed by Allah Bakhsh it has to be seen whether Allah Bakhsh was aware of the fact that his property on the basis of said attorney will be transferred in favour of petitioner, his real son Allah Yar in exclusion of his daughters. The very Contents of Exh.D-1, Power of Attorney shows that Allah Bakhsh appointed Sultan Mehmood for doing different jobs qua his property including the right to transfer and sale in favour of Allah Yar or any other person. The land was the property of respondent No.6, the Provincial Government and Allah Bakhsh deceased; at the relevant time, was holding only Dakheelkari rights in the property. Respondent No.5 on the basis of Power of Attorney Exh.D-1 applied to District Collector Multan for issuance of permission under section 19 of Colonization of Government Lands Act, 1912 and made the statement before the District Collector that Sultan Mehmood son of Allah Bakhsh, general attorney of Allah Bakhsh son of Pir Bakhsh is a transferor and Allah Yar son of Allah Bakhsh is the transferee. They have made the statement that Sultan Mehmood has gifted the disputed land to Allah Yar and the District Collector Multan passed the following order:-- "They have been heard. They have admitted the gift transaction of accupancy rights equal to 1/3 share in total area of 535 kanals 6 marlas in khewat No.39 Khatuni Nos.183 to 200 measuring 178 kanals 9 marlas situated in Chak No.33/WB, Tehsil Vehari, held by the transferer to Allah Yar his real son."
The above said statement of Sultan Mehmood and Allah Yar before the District Collector Multan, is sufficient to unearth the fraud committed by these two persons who are father in law and son-in- law. They specifically admitted before the District Collector Multan that property has been gifted to Allah Yar. Both have admitted the fact of gift and on their specific admission and statement before District Collector Multan, the permission under section 19 of Colonization of Govt. Lands Act, 1912 was given. Admittedly the sale-deeds are subsequent to the issuance of permission under section 19 of Colonization of Government Lands Act, 1912, Exh.P-8. It means that on the date of execution of sale-deed in favour of Allah Yar the property was already in the name of Allah Yar being the donee but for strengthening their rights and to pre-empt any claim of other legal heirs of Allah Bukhsh the son-in-law transferred the land in favour of petitioner (his father-in-law) through two registered sale-deeds. Now the question arose if the property was sold whether the consideration, was paid to Allah Bakhsh or. Not? It is nowhere mentioned in the document of attorney that attorney will not pay the consideration to principal and will be his property. Any witness of petitioner is not uttered a single word about the payment of price of land to Allah Baksh which was admittedly alive at that time. The authority and extent of agent and the duty to communicate the principal is defined in sections 188 and 214 of the Contract Act. For better appreciation and perusal which are reproduced as under:-- "188. Extent of agent's authority. An agent having an authority to do an act has authority to do every lawful thing which is necessary in order to do such act.
An agent having an authority to carry on a business has authority to do every lawful thing necessary for the purpose, or usually done in the course of conducting such business.
214. Agent's duty to communicate with principal. ---It is the duty of an agent, in cases of difficulty to use all reasonable diligence in communicating with his principal and in seeking to obtain his' instructions."
12. Under the document of attorney the powers are defined. The principal has given the specific powers to the attorney/agent. In case the attorney wanted to sell the property in his favour or in favour of his relative, the attorney is bound to take special permission from principal at the time of transfer of property in his on name or in the name of close fiduciary relations.
13. It is established principle of law that in case of dispute the attorney is bound to satisfy the court that the time of entering into the transaction of sale the principal was not available and in absence of such F evidence transaction would not hold good unless it is established on record that the same has been made with the knowledge and consent of petitioner.
14. In the present case Allah Yar, the petitioner is the real son of Allah Bakhsh' and the respondent No.5 is the son-in-law of petitioner. Allah Bakhsh has no direct relation with Sultan Mehmood. It is not understandable why Allah Bakhsh has appointed the son-in-law of petitioner by ignoring the petitioner, his real son, if it was the deal that Allah Bakhsh has agreed to transfer the entire land in exclusion of his other legal heirs to Allah Yar what was the need to appoint son-in-law of petitioner as his attorney. It is an admitted fact on record that before alienating or transferring Dakheelkari rights to Allah Bakhsh in the disputed land, permission under section 19 of Colonization of Govt.
Lands Act, 1912 was required. The attorney and the petitioner who were in league with each other appeared before the Collector and made the statement, that attorney has gifted the property in dispute to Allah Yar and permission may be accorded to them for completing the transaction. The Collector recorded their statements and on their admission that gift has been completed he issued permission. If the transaction of gift was genuine then there was no need to transfer the land in dispute through registered sale-deed. This fact remained unattended before both the courts below. It is proved on record that petitioner hatched the conspiracy with respondent No.5 for usurping the land of Allah Bakhsh who was admittedly an ailing old person only to deny the right of respondent No.1 and the other daughters of deceased Allah Bakhsh. The attorney managed to camouflage the transaction for the benefit of petitioner. The sale-deeds are executed by the attorney and the ultimate beneficiary of entire transaction is the petitioner and as such the transaction of sale-deed is hit by sections 188 and 214 of the Contract Act. It is proved on record H that no gift was ever pronounced and the pronouncement of gift before the Collector was of device to obtain permission for transfer of property in dispute in favour of petitioner.
15. There is another aspect of this case that permission was specifically for the purpose of gift which was pronounced even before the Collector and as such no permission was given to the attorney for I execution of sale-deed in favour of petitioner of the land in dispute. The sale on this ground is also proved to be fraudulent.
16.The other argument of learned Counsel for the petitioner that the suit is hit by law of limitation, hag no force as it is admitted fact that the transaction of sale is fraudulent and on the day of death of Allah Bakhsh, respondent No. 1 become the share holder in the property and as such bar of limitation is not applicable against the legal heirs of deceased in the case of inheritance.
17. Learned counsel for the petitioner further argued that suit was filed by Allah Bakhsh in his life time challenging the sale-deeds and attorney and as such second suit on behalf of respondent was not maintainable. It is proved on record that earlier suit came to an end on the death of Allah Bakhsh and after the death of Allah Bakhsh the petitioner become his legal heir and as such fresh cause of action accrue independently in her favour after the death of Allah Bakhsh, hence the institution of suit by Allah Bakhsh is not hurdle in the way of respondent No.1 to claim her share in the estate of deceased Allah Bakhsh.
18. The upshot of above discussion is that the sale, subject-matter of suit, is proved fraudulent and as such is not binding against the rights of respondent No.1. The present petition fails and is dismissed accordingly..