AMIN-UD-DIN KHAN, J. ---- Through this single judgment I intend to dispose of RSA No.3 of 2011 and connected RSA No. 26 of 2005 as both the appeals are against the consolidated judgment/decree dated 15-12-2005 passed by the learned Additional District Judge Chishtian. However, the separate details of each appeal is given below:- "Muhammad Aslam etc filed RSA No.3 of 2011 against judgment and decree dated 15-12-2005 passed by learned Additional District Judge, Chishtian whereby The accepted the appeal filed by Mst. Absar Fatima and by setting aside the judgment and decree dated 4.9.1996 decreeing the suit passed by the learned Civil Judge 1st Class, Chishtian dismissed the suit filed by Muhammad Aslam and others against Mst. Absar Fatima and others.
RSA No. 26 of 2005 was filed by Muhammad Din and others, the appellants against the concurrent judgments and decrees dated 15.12.2005 and 4.9.1996 passed by learned Additional District Judge, Chishtian as well as learned Civil Judge Ist Class, Chishtian, respectively, dismissing the suit for specific performance as well as the appeal.
2. Brief facts of the case RSA NO.3 of 2011 are that uit for specific performance of the contract was filed by Muhammad Aslam, and others on 14.10.1984 on the basis of registered agreement to sell dated 13.5.1984. Another suit titled "Muhammad Din and others vs. Mst Absar Fatima and others" was filed on 2.9.1984 on the basis of alleged agreement to sell dated 1.12.1983. Both the suits were consolidated as suit property in both 'the suits is same and defendant/seller is the same and proceedings were ordered to be held in the suit filed by "Muhammad Din and others vs Mst. Absar Fatima and others." Therefore, the appellants of this appeal were presumed to be defendants in the consolidated proceedings. There witnesses were recorded as DWs and documentary evidence as Ex.Ds The learned Trial Court after framing the consolidated issued invited the parties to produce their respective evidence. After recording the pro and contra evidence of the parties, learned Trial Court vide judgment and decree dated 4.9.1996 decreed the suit filed by Muhammad Aslam etc appellants whereas suit filed by Muhammad Din and others was dismissed. Feeling aggrieved of the decision of learned Trial Court dated 4.9.1996 three appeals were filed, one by Mst. Absar Fatima against Muhammad Aslam etc, the second and third by Muhammad din and others against Mst. Absar Fatima and others. Before the learned Additional District Judge Chishtian.
Muhammad Din etc remained unsuccessful as their appeals were dismissed whereas appeal filed by Mst. Absar Fatima and others was accepted vide judgment and decree dated 15.12.2005. Being dissatisfied Muhammad Aslam etc filed appeal against judgment and decree of first Appellate Court and Muhammad Din etc have challenged the impugned judgments and decrees passed by both the courts through their instant appeal.
3. Raja Muhammad Sohail Iftikhar, Advocate for the appellants argued that he has proved his suit, therefore, the learned Trial Court rightly decreed the suit in his favour and the findings on issues No. 7 to 9 of learned First Appellate Court are contrary to law and are result of misinterpretation of documentary evidence on the file; that the learned First Appellate Court has confirmed the findings recorded by the learned Trial Court on issues NO.1 to 6; that he has fully proved the power of attorney as well as agreement to sell; that the witnesses produced by the appellants were not cross-examined by the learned counsel for Mst.Absar Fatima; that originally the attorney of Mst.
Absar Fatima filed a consenting written statement. Thereafter she sought permission for filing a new written statement which was initially granted by the learned Trial Court on 29.9.1985. On review application, it was withdrawn vide order dated 25.3.1986. This order was challenged by Muhammad Din in FAO No. 17 of 1986 but the same was dismissed by this court vide order dated 7.2.1996 by declaring that written statement and power of attorney on the basis of which written statement was filed was valid one. Lastly, learned counsel for the appellants prayed for acceptance of RSA'
No.3 of 2011.
4. Mr.Ljaz Ahmad Ansari Advocate for appellants in RSA No.26 of 2005 argued that judgments and decrees passed by both the courts below are against law and facts of the case; that Mst. Absar Fatima never appeared before the court and no documentary evidence was produced on her behalf. So the evidence produced by the appellants was unrebutted; that both the courts below ignored the documentary evidence produced by the appellants as Ex.P2 to Ex.P11 which strongly support the version of the appellants; that judgments of both the courts below suffer from misreading and non-reading of evidence. He prayed for acceptance of the appeal and for decreeing the suit filed by the appellants and for dismissal of RSA No. 3 of 2011 filed by Muhammad Aslam etc.
5. Nadeem Iqbal Ch. Advocate for respondents argued that the appellants/plaintiffs have not proved the agreement to sell and the power of attorney on the basis of which agreement to sell was entered between the parties. He further argued that the alleged attorney Imam Din transferred the land in favour of his relatives; therefore, he was bound to obtain special permission from the principal for transfer of land in the name of his near relatives. Accordingly to leaner counsel no money was passed to the original owner. He lastly prayed for dismissal of both the appeals.
6. I have heard the learned counsel for the parties at length and one through the record with their valuable assistance.
7. So far as the point of consenting written statement is concerned, it has already been decided by my leaner brother Mr. Khurshid Ahmad, J. As then he was vide judgment dated 7.2.1986 passed in FAO No. 17 of 1986 titled "Muhammad Din etc vs. Mst Absar Fatima etc." The relevant paragraph NO. 11 is reproduced as under:- "The court is to proceed on the basis of written statement filed by defendant No.2 on behalf of defendant No.1 during the time that powers delegated to him were still subsisting ex-facie.
Revocation deed executed by defendant No.1 related to the revocation of registered power of attorney and therefore was to take effect from its registration and the date of registration of the revocation deed was 6.6.1985. Defendant No.2 as held supra, had all the powers delegated to him to represent defendant No.1 and as defendant No.2 had filed a written statement during the subsistence of the said power, defendant No.1 was bound to ratify such act of defendant No.2 performed by him at attorney on her behalf."
8. So far as the submissions of learned counsel for the appellants regarding the point that the witnesses of the appellants were not cross-examined by the learned counsel for Mst. Absar Fatima is concerned, in this way under the law the statement of a witness recorded in-chief will be presumed to have been admitted by the owner-Mst Absar Fatima. The agreement to sell is registered document.
It has not been specifically denied by the owner-Mst. Absar Fatima because she filed consenting written statement and witnesses of the appellants were not cross-examined. Even otherwise the appellants proved the agreement to sell with full oral as well as documentary evidence.
9. So far as the point that when an attorney transferred the property of the principal in favour of his near relative, the attorney is bound to take special permission from the principal is concerned, I have noticed that Ex.D-17 is general power of attorney on behalf of Mst. Absar Fatima in favour of Ch. Lmran Din. It is an irrevocable power of attorney. It is settled law the when a person gives an irrevocable power of attorney, no rights of principal are left in the property. The contention of leaned counsel for the respondents that when an agent transferred the property of principal in favour of his near relatives he is bound to obtain permission from the principal. First of all- the respondents have not proved that the agent has transferred the property of the principal in favour of his near relatives. Learned Counsel for the appellants submits that only on the basis of resemblance of parentage this contention has been raised, there is no relationship between the agent and appellants. The contentions of learned counsel for the respondents has weight in case of simple power of attorney in favour of agent, the agent is bound to seek permission to transfer property in favour of his near relatives but I find that when an irrevocable power of attorney has been giveh to the agent, it means that no interest or proprietary rights left in the property of the principal. She has given all the rights to the attorney and under the language of power of attorney all the rights have been transferred in favour of the agent, therefore, irrevocable power of attorney has been executed in favour of said Imam Din, hence, the agreement with the appellants by Imam Din was valid one. The findings recorded by the learned First Appellate Court being contrary to law and misinterpretation of documentary evidence on record are set aside.
10. As far as the RSA No. 26 of 2005 filed by Muhammad Din etc against Mst. Absar Fatima etc is concerned, the concurrent findings of both the courts below have been challenged by the appellants. The suit land in both the suits is the same. Rival plaintiffs/appellants of appeal No. 3 of 2011 have proved their case and the findings recorded by the learned First Appellate Court being contrary to law and misinterpretation of documentary evidence on record have been set aside.
Even otherwise concurrent findings of the learned courts below impugned herein cannot be set at naught by this Court unless it is established that the same are perverse or erroneous in view of the dicta laid down by the apex court. This court finds that no jurisdictional error or misreading or non- reading of evidence has been pointed out by the learned counsel for Muhammad Din etc- appellants in the impugned decision of the courts below.
11. In the light of what has been discussed above, RSA No. 26-2005 titled "Muhammad Din and others vs. Mst. Absar Fatima and others" having no substance is hereby dismissed. RSA No. 3 of 2011 titled "Muhammad Aslam etc vs. Mst. Absar Fatima" is accepted. The findings recorded and judgment and decree passed by the learned Trial Court in the suit filed by Muhammad Aslam etc are hereby restored. Resultantly, the suit filed by Muhammad Aslam is hereby decreed. .