' AMIR HANI MUSLIM, J.---Through this Civil Appeal, appellants have impugned the judgment of the learned Lahore High Court, Lahore passed in R.S.A. No, 69 of 2004 filed by the respondent No,1 against the appellants by which it has set aside the judgment of first appellate Court, filed by the respondents and has maintained the decree and judgment of the trial Court.
2. The facts of the case which are relevant to the present proceedings are that the property, which was subject-matter of the litigation between the parties, is agricultural land measuring 100 kanals and 18 marlas situated' at Chak No,78/EB Tehsil Arif Wala, District Pakpattan. The property in dispute was allotted to one Dost Muhammad and' on his death, it was inherited by Noor Khanum (his wife) and Rab 'Nawaz (his son). Share of Noor Khanum in the landed property as per inheritance was 1/8th whereas share of Rab Nawaz son of the deceased Dost Muhammad was 7/8th.
3. On 8-3-1976, Rab Nawaz and Noor Khanum executed a registered General Power of Attorney in favour of respondent No,3 Raja Abdul Qayyum, who was not related to them, authorizing him to sell, mortgage, rent out, lease out, cultivate and or to deal with the said property in any manner as he deems proper. On 22-11-1983, Noor Khanum, one of the principal, died, who had 1/8th share in the property in dispute and was signatory to the. Said General Power of Attorney. On 2-1-1987, Rab Nawaz claims to have executed a sale agreement with the appellants in respect of the disputed land for a sale consideration of Rs,3,00,000 and an amount of Rs, 50,000 was acknowledged to have been received by him at the time of execution of sale agreement from the appellants. Rab Nawaz had sold the entire property as by that time her mother who had 1/8th share in the land, was also reverted to Rab Nawaz owing to her death.
4. On 8-1-1987, the registered General Power of Attorney in favour of respondent No,3. Raja Abdul Qayyum was cancelled by Rab Nawaz through Abtaal-nama (Exh.D-II), admittedly, without notice to Raja Abdul Qayyum.
5. On 13-1-1987, Raja Abdul Qayyum attorney/respondent No,3, executed a sale agreement with respondent No,I Muhammad Tufail in respect of the same property. Sale consideration was agreed at Rs,1,50,000, out of which a sum of Rs,1,30,000 Was claimed to have been paid to Raja Abdul Qayyum, attorney of Rab Nawaz, and remaining amount was to be paid on execution of registered sale deed. In the sale agreement (Exh.P-I), possession of land in question was also handed over by Abdul Qayyum to the respondent No,1, who was originally one of the tenants of Noor Khanum and Rab Nawaz and was in actual possession of the land in dispute.
6. On 29-3-1987, the respondent No,1 tiled a suit for specific performance in respect of the disputed land in the Court of Senior Civil Judge, Arifwala, against Muhammad Nawaz alias Rab Nawaz and others seeking enforcement of the sale agreement dated 13-1-1987, with the following prayer:- "In the circumstances, it is prayed that decree for specific performance of agreement to sell dated 13-1-1987 for the land mentioned in para-1 of the plaint against the defendants as per contents of the plaint be passed with costs and special costs as per section 35-A, C.P.C.."
7. The written statements were filed by the parties out of which the following issues were framed:-
(I) Whether the deceased defendant No,1 entered into agreement to sell the suit land for consideration of Rs,1,50,000 with, the plaintiff on 13-1-1987, executed the Iqrar nama and receipt there under of even date, received an earnest money of Rs,I,30,000 through his special attorney deceased defendant No,2? OPP
(2) Whether the defendant No, 1 transferred the possession of the suit land to the plaintiff? OPP Whether the plaintiff has no cause of action and locus standi to bring this suit? OPD
(4) Whether the suit has not been duly verified, if so, its effect? OPD
(5) Whether the plaintiff is estopped to file this suit on account of his words and conduct? OPD
(6) Whether this suit is not maintainable in its present form? OPD
(7) Whether the plaintiff has not come to the court with clean hands, hence he is not entitled to any relief? OPD
(8) Whether the defendants Nos.2 to 8 are entitled to recover special costs from the plaintiff under section 35-A of C.P.C.? OPD
(9) Whether the suit is collusive? OPD
(10) Whether the suit has not been properly valued? OPD
(11) Whether the defendants are bona fide purchasers for consideration and the possession without knowledge? OPD
(12) Relief
8. During the proceedings of the suit, an application was filed by respondent No,1 Muhammad Tufail praying therein that the respondents were forcibly dispossessed by the appellants. The said application was deferred and after recording evidence, the trial Court decreed the suit in favour of respondent No,1, against the appellants and others with the direction to the respondent No,1 to restore possession. The trial Court decided all the issues against the appellants holding that they have failed to prove their version stated in the written statement and the agreement entered between the respondents Nos.1 and 3 in 1987 was valid and enforceable. The appellants preferred first appeal challenging the decree of the trial Court. The first appellate Court by its judgment dated 30-11-2000, allowed the appeal and reversed the findings of the trial Court holding therein that the agreement to sell between the respondents Nos.1 and 3 was neither executed by Rab Nawaz nor the possession of the suit land was delivered to the respondent No,1 by deceased Rab Nawaz through its general power of attorney and the appellants were the bona, fide purchasers without notice with possession. The findings on issues Nos.1, 2 and 11 recorded by the trial Court were reversed and the suit was dismissed against which the respondent No,1 filed RSA and the learned High Court after hearing the parties had set aside the judgment and decree of the appellate Court and maintained the one passed by the trial Court, against which the present appeal has been preferred.
9. It is contended by the learned counsel for the appellants that the learned High Court was in error in upsetting the findings of the first appellate Court. He has submitted that the sale agreement dated 13-1-1987, executed between the respondents Nos.1 and 3 was not proved as one of the attesting witnesses was not examined by the parties before the trial Court. According to the leaned counsel, Article 79 of the Qanun-e-Shahadat Ogler, 1984, requires a party to examine two attesting witnesses in order to prove the contents of the sale agreement whereas only one witness was examined, and, therefore, findings given by the learned High Court that sale agreement was proved was violative of the provisions of the said Article.
10. His next contention was that on 8-1-1987, the general power of attorney was cancelled by a registered instrument, therefore, the respondent No,3, in law, did not have the authority to, enter into sale agreement with respondent No, 1 . He has contended that the 'trial Court and the learned High Court did not appreciate that under section 208 of the Contract Act, on the death of the Principal, the power of attorney stands revoked. He further contended that no notice was required to be issued to the respondent No,3 prior to cancellation of the General Power of Attorney. He contended that registration of a document itself is a notice to the public and the respondent No,3 falls within the phrase "Public". He in support of his submissions, has relied upon the cases of Khadim Hussain v.' Rasheed Ahmad (2008 M LD 81) and Abdul Maeed v. Amjad Farooq (2008 YLR 61).
' He further contended that even otherwise Noor Khanum died on 22-11-1983 and on her death the General Power of Attorney executed by her stood revoked. According to him, the respondent No,3 did not have any subsisting authority after the death of the Principal and sale agreement which was admittedly executed after the death of Noor Khanum was nullity in the eyes of law. In support of his submissions, he has relied upon the provisions of section 201 of the Contract Act and has cited the cases of Mehdi Khan v. Faqir Muhammad (PLD 1980 Lahore 110) and Garapati Venkanna v.
Mullapudi Atchutaramanna and others (AIR 1938 Madras 542).
10. As against this, the learned counsel for the respondents Nos.1 and 3 (i-v, vii) has contended that the issue of General Power of Attorney executed by Noor Khanum and Rab Nawaz was not raised throughout the proceedings and the appellants cannot be allowed to raise such a plea which has not been 'agitated throughout the proceedings. He next contended that the General Power of Attorney executed by the parties would not attract the provisions of section 201 of the Contract Act.
He further submitted that the trial Court as well as the learned High Court have rightly held that the agreement between the respondents Nos.1 and 3 and the receipt of the earnest money issued pursuant to the sale agreement were proved and the documents relied upon and produced by the appellants in support of their claim were held to be forged and were not proved as per the findings of the learned High Court and the trial Court. He further contended that even otherwise, the sale agreement dated 2-1-1987 executed between respondent No,2 Rab Nawaz and the appellants was not proved as neither the scribe was examined nor the sale agreement was on the non judicial paper (Stamp Paper). He submitted that the L.Rs of Rab Nawaz were represented by their attorney i,e, respondent No,2(i) Rafaqat, who was also one of the legal heirs of Rab Nawaz. In his statement before the Court, he has stated that they have received the sale consideration out of the sale agreement executed by the respondents No,3 with respondent No,
1. He submitted that the impugned judgment was based on sound reasoning and does not warrant interference.
11. We have heard the learned counsel for the parties and have gone through the record. There is no conflict of interest between respondents Nos.1 and 3. It is not in dispute that neither Rab Nawaz nor the appellants have filed any proceedings seeking cancellation of the sale agreement executed between respondents Nos.1 and 3 before any Court of law. The suit for specific performance filed by the respondent No,1 against respondent No,3 and its scope was confined to the sale agreement dated 13-1-1987 entered into between the parties and no findings, in law, could be given by the Court in such proceedings in respect of the sale agreement dated 2-1-1987 which was claimed to have been executed by Rab Nawaz with the appellants. In a suit for specific performance between the parties, a Court, in law, cannot enlarge its scope to give a finding in respect of another sale agreement executed between the other parties, who are stranger to the sale agreement sought to be enforced. Rab Nawaz and or the appellants, in law, had independent cause of action and they cannot get a decree in a suit for specific performance filed by the respondent No,1 against the respondent No,3 when they were admittedly arrayed as defendants. The plea of Rab Nawaz and or appellants raised in their written statements in respect of another sale agreement dated 2-1-1987 cannot form the subject-matter of the suit between respondent No,1 and respondent No,3 nor the Courts in law can decree a suit in favour of Rab Nawaz and the appellants on the basis of such pleas. Rab Nawaz and the appellants have distinct cause which could be adjudicated upon by filing separate proceedings.
12. It is also not in dispute that on the date of execution of General Power of Attorney, the property in dispute was in physical possession of the tenants and on the date -when the sale agreement was executed between Rab Nawaz and the appellants none of them was in physical possession of the suit property, which fact is borne out from the very sale agreement dated 2-1-1987 entered into between them, as it does not mention as to who possess the land. Neither in the sale agreement nor in any other document produced before the trial Court, the physical possession was shown to have been delivered by Rab Nawaz to the appellants nor there is any material produced by the appellants to establish that Rab Nawaz was in actual possession of the land in dispute at any time.
It appears that during pendency of the suit, the appellants have taken forcible possession which fact was borne out from the contents of the application made by the respondent No,1 to the trial Court. In such circumstances, even otherwise, if it is presumed that the respondent No,3 did not have the authority to sell the land in question to respondent No,1, still Rab Nawaz and or the appellants, in law, were required ,to file an independent suit against the respondent No,1 for possession as the respondent No,1 who was tenant in possession was delivered possession under the sale agreement by respondent No,3, which agreement was subject-matter of the suit.
13. The contention of the learned counsel for the appellant that the contents of the agreement to sell executed between the respondents Nos.1 and 3 were not proved for want of examination of one of the attesting witnesses is also of no significance. The sale agreement between them has not been challenged throughout by the appellants in the proceedings by filing a separate suit beside the agreement to sell dated 134-1987 was produced and exhibited as (Exh.P.1) without any.
Objection. The appellants, at this stage, in law, cannot object to the contents of the agreement before this Court, once the same has been produced and exhibited before the trial Court without any objection.
14. Neither the appellant nor Rab Nawaz has challenged the authority of the respondent No,3, which he has exercised by, virtue of the registered General Power of Attorney and nor they have sought .Cancellation of sale agreement dated 13-1-1987 before any Court of law. In the proceedings, which are outcome of the suit between the respondents Nos.1 and 3, no findings could be recorded by the Courts on such an issue, as the grievance of Rab Nawaz and or the appellants could only have been redressed by a separate suit having distinct cause of action, which cannot be decided in the present collateral proceedings. Moreover, the plain reading of the General Power of Attorney implies that it was coupled with interest and no material has been produced to establish that it was executed without consideration. Therefore, whether, in law, Rab Nawaz was competent to cancel a registered General Power of Attorney without notice, was also an unanswered important issue, on which all the Courts have failed to record any finding.
15. For the aforesaid reasons, we are of the view that the impugned judgment of the learned High Court was proper and does not warrant any interference by this Court. The above are the reasons for our short order dated 30-6-2011 by which the appeal of the appellants was dismissed.