This revision petition is directed against the judgment and decree dated 17.6.2010 passed by Additional District Judge, Karak at Takht-e-Nasrati, whereby the appeal of the present petitioner was dismissed and the judgment and decree dated 12.11.2009 passed by the learned Civil Judge, Takht-e-Nasrati was maintained.
2. Muhammad Raees, seeking his right of pre-emption instituted a suit for possession challenging sale of land Measuring 7 'Kanals' 12 `Marlas' situated in various `Khasra' numbers in `Mauza' Sorati Kalla, Tehsil Takht-e-Nasrati, District Karak, ("disputed property), whereby present respondents purchased the same through Mutation No. 4279 attested on 28.12.2006 ("disputed sale"). The petitioner asserted that he at 1500 hours on 22.1.2007 was informed about the disputed sale by Jamshed Khan, while he was sitting in his `Hujra' with his brother Muhammad Nawaz and he on that occasion announced his Talb-i-Muwathibat' He further asserts that on 25.1.2007, he served the requisite notices to the present respondents, the said notices were witnessed by Muhammad Nawaz and Jamshed, which constituted Talb-i-Ishhad'. And finally, Talb-i-Khusumar was made by him on 21.2.2007, when he instituted the suit for possession challenging the disputed sale before the trial Court.
3. The present respondents, on appearing before the trial Court, disputed the assertions made by the present petitioner and prayed that the present petitioner be denied the possession prayed for.
4. Both parties produced their respective evidence, and based there on, the trial Court dismissed the suit of the present petitioner vide judgment and decree dated 12.11.2009.
5. Aggrieved thereof, the present petitioner impugned the same in appeal, which too was dismissed by the appellate Court vide judgment and decree dated 17.6.2010. Hence, the present petition.
6. The learned counsel for the petitioner vehemently contended that the present petitioner had proved the three 'nibs' in accordance with law 13 of the N.W.F.P. Pre-emption Act, 1987 ("Act"); that the Courts below had totally ignored the application of the present respondents not to produce any evidence and thereby admitting the claim of the present petitioner; and that the suit filed by the present petitioner was maintainable as it was filed by a lawfully appointed attorney; that the two witnesses required for proving the `Talbs' under the Act, could not be produced as Muhammad Nawaz, one of the witnesses, who was also the brother of the present petitioner had died. The learned counsel for the petitioner relied upon the judgments in cases titled Roohul Qadoos Vs. Muhammad Rafique (2002 CLC 379), Muhammad Ayub Khan Vs.. Muhammad Zaman (PLD 1990 Peshawar 181), Mst.Kharo Vs. Sher Afzal (1992 SCMR 1844) and Asif Rashid Khan Durrani Vs. Haji Hazrat Gul (PLJ2010 Peshawar 10).
7. In rebuttal, the learned counsel for the respondents disputed the assertions made by the learned counsel for the petitioner and contended that the Courts below had validly dismissed the claim of the petitioner; that `Talb-i-Khusumat' purportedly made by the present petitioner was through an attorney, appointed vide special power of attorney dated 22.2.2007 ("Deed"), which did not delegate express authority upon the attorney to exercise the `Talbs' on behalf of the present petitioners; that when Talb-i-Ishhad' was refused by the present respondents, then to prove the same, the petitioner had to produce the postman, which was not done in the present case; that the petitioner in his statement completely belied the evidence, which was clear on the face of the record, particularly when he stated that he personally filed the suit and also that he signed the `Talb-i-Ishhad' himself. In support of his assertions, the learned counsel relied upon the judgments in cases titled Sardar Ali Vs. Mst.Sardar Bibi (2010 SCMR 1066), Sultan Muhammad Vs. Muhammad Qasim (2010 SCMR 1630), Muhammad Aslam Vs. Mst. Inayat Bibi (1995 CLC 1572), Muhammad Ishaq Khan Kundi Vs. Abdul Ghafoor (1987 CLC 2134), Muhammad Ali Vs. Jawad Iqbal Nabi (PLD 2009 Lahore 49), Murid Hussain Vs. Muhammad Sharif (1996 AC 299), Gul Taj Begum Vs. Lal Hussain (PLD 1980 SC (AJK) 60), Gul Taj Begum Vs. Iqbal Hussain (NLR 1980 SCJ 218), Naseeb Khan Vs. Inayat Jan (2003 CLC 1336), Muhammad Mehraban Vs. Sadruddin (1995 CLC 1541), Muhammad Bashir Vs. Abbas Ali Shah (2007 SCJ 689), Akbar Ali Vs. Muhammad Abdullah (2007 SCMR 1233).
8. The learned counsel for the petitioner after hearing the arguments addressed by the learned counsel for the respondents urged this Court not to consider any fresh ground of challenge to the claim of the present petitioner, which was not taken and addressed earlier by the Courts below.
This Court agrees with the said submission of the learned counsel for the petitioner and would, therefore, only consider issues which were agitated by the respondents and duly addressed and adjudicated upon by the Courts below.
9. In this regard, the issue relating to the `Talbs' being in accordance with Section 13 of the Act was an express issue framed and evidence regarding the same was duly led by the parties and findings thereon recorded by the Courts below. Hence, the same is taken up at the outset.
10.Talb-e-Khusumat' was admittedly filed by Jamshed Khan, (P.W.3), the attorney of the present petitioner, who had been appointed by the petitioner through the Deed. The contents of the Deed reveals that the present petitioner had only delegated general authority to Jamshed Khan, to institute and proceed with, on his behalf, cases of civil nature. There was no express authority vested in Jamshed Khan to exercise the right of the present petitioner in relation to the `Talbs' in accordance with Section 13 of the Act. The relevant extracts of the Deed reads as; {{URDU TEXT}}
11. Section 14 of the Act provides for an "agent" to take steps on behalf of a person to exercise his rights as provided under the Act. Section 14 reads as:-- "14. Demands by the guardian or agent.--Where a person is unable to make demands under Section 13, his guardian or agent may make the required demands on his behalf."
In view of the clear mandate of the statute, a validly appointed "agent" can make the requisite Tsalbs on behalf of the "principal". The settled principles of legal interpretation of such authority vested through written instruments has been discussed by the august Supreme Court in Imam-din and 4 others Vs. Bashir Ahmed and 10 others (PLD 2005 SC.418) wherein it was stated that: "....The power of attorney is a written authorization by virtue of which the principal assigns to person as his agent and confers upon him the authority to perform specified acts on his behalf and thus primary purpose of instrument of this nature is to assign the authority of the principal to another person as his agent. The main object of such type agency is that the agent has to act in the name of principal and the principal also purports to rectify all the acts and deeds of his agent done by him under the authority conferred through the instrument. In view of nature of authority, the power of attorney must be strictly construed and proved and further the object and scope of the power of attorney must be seen in the light of its recital to ascertain the manner of the exercise of the authority in relation to the terms and conditions specified in the instrument. The rule of construction of such a document is that special powers contained therein followed by general words are to be construed as limited to what is necessary for the proper exercise of special powers and where the authority is given to do a particular act followed by general words, the authority is deemed to be restricted to what is necessary for the purpose of doing the particular act. The general words do not confer general power but are limited for the purpose for which the authority is given and are construed for enlarging the special powers necessary for that purpose and must be construed so as to include the purpose necessary for effective execution. "(Emphasis provided by this Court.)
Thus written instruments are to be interpreted in the terms stated therein. The intention of the parties would only be considered, when the terms and words implied therein are vague and cannot be given any meaning. In this regard, the Supreme Court of India in Chun Jha Vs. Ebadat Alp (AIR 1954 SC 345) held that:- "Where a document has to be construed, the intention must be gathered, in the first place from the document itself. If the words are express and clear, a fact must be given to them and any extraneous inquiry and to what was thought or intended is ruled out. The real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used, it, however, if, however, there is ambiguity in the language implied, then it is permissible to look to the surrounding circumstances to determine what was intended."
In the present case the special power of attorney is very clear in its terms; whereby no authority has been expressly vested in Jamshed Khan to exercise the rights of pre-emption on behalf of the present petitioner. What is also important to note, is that power of attorney has to be construed strictly and the terms provided therein cannot be extended to imply a meaning which was not expressly provided therein. In a titled Muhammad Ishaq Khan Kundi Vs. Abdul Ghafoor (1987 CLC 2134), this Court dealt with a similar case, where an 'attorney' instituted a suit on behalf of `principal'/ pre-emptor. The rule laid down by this Court in the said case was that:-- "On the careful reading of the above judgment Gul Taj Begum Vs. Lal Muhammad (PLD 1980 SC
(AJK) 60) with special reference to the contents to the power of attorney.....
In that case similar words were used in the Mukhtiar Nama' were pressed into service to show that the attorney was empowered to file any civil suit including that of pre-emption. Their lordship, however, in repelling the arguments observed that: "The reading of the document on the whole conveys a clear sense that the general power of attorney was executed in respect of immoveable property relating to land and build up house in Tehsil Mir Pur and unrestricted powers were given to Sajawal Khan in respect of this property authorizing to launch all sorts of proceedings including the civil suit relating to his property only.
It in no way allows Sajawal Khan to travel beyond it and file a pre-emption suit. The power of attorney is couched in clear terms and admits no doubt that Sajawal Khan was not authorized to file the pre-emption suit."
This aforementioned principle laid down by this Court has been consistently followed by superior Courts in our jurisdiction. In this regard reference may be made to Sardar Ali Vs. Mst. Sardar Bibi (2010 SCMR 1066), Muhammad Mehraban Vs. Saddruddin (1995 CLC 1541), Muhammad Islam Vs. Inayat Bibi (1995 CLC 1572), Murid Hussain Vs. Muhammad Sharif (1996 CLC 161) and Eagle Star Ensureance Company Ltd. Vs. Usman Sons (PLD 1969 Karachi 123), Murid Hussain Vs. Muhammad Sharif (1996 CLC 161), Naseeb Khan Vs. Inayat Jan (2003 CLC 1336) and Nawab Ali Vs. Javed Iqbal (PLD 2009 Lahore 49).
12.In view of the clear and consistent principle, stated hereinabove, it can safely be held that an attorney who does not have express, authority of the 'principal'/pre-emptor to institute or exercise the 'Talbs' cannot proceed to do so on his behalf. And in case, the said attorney proceeds, all actions taken by him, without the express authority of the `principal7pre-emptor, would be a nullity in the eyes of law. Accordingly, in the present case, all actions taken by Jamshed Khan, on behalf of the present petitioner, without express authority delegated to him under the Deed to proceed in a pre-emption case on his behalf, would be illegal and void, ab initio.
13.Thus, having declared that the `Talb-i-Khusumar was not made in accordance with the provisions contained under Section 13 of the Act, there would be no need for this Court to further discuss any the other grounds taken by the learned counsel for the respondents, challenging the claim of the present petitioner.
14.Before parting, it would be important to refer to the application of the present respondents not produce any evidence. It is an admitted, established and settled principle of law that initially, the burden of proving ones cause is on the person who knocks at the door of the law. Article 117 of the `Qanoon-e-Shahadat' Order, 1984 reaffirms the said principle. Thus, the present petitioners cannot take refuge behind the weaknesses, of the present respondents. In this regard the august Supreme Court of Pakistan has recently in Sultan Muhammad Vs. Muhammad Qasim (2010 SCMR 1630) reaffirmed that:-- "Party approaching the Court for grant of relief would have to discharge his own burden and stand on his own legs to succeed and could not avail benefit of any weakness in the case of the opposite party."
15.This Court is adjudicating the present petition in its revisional jurisdiction, the scope thereof has been provided under Section 115 of the Code of Civil Procedure, 1908 ("CPC'), which has been dilated upon by the august Supreme Court in Shumail Begum V. Gulzar Begum (1994 SCMR 818) and more recently, reaffirmed in Muhammad Idrees Vs. Muhammad Parvez (2010 SCMR 5).
Keeping in view the guiding principle regarding exercise of revisional jurisdiction rendered in the above titled cases, this Court considers that the Courts below had the jurisdiction to adjudicate upon the matter and that while exercising the said jurisdiction they applied their conscious mind to the facts of the case and correctly applied and interpreted the applicable law. Moreover, both the Courts below have rendered their concurrent findings and this Court does find the same as arbitrary, capricious or out rightly absurd, for it to invoke its revisional jurisdiction.
16. Accordingly, for the reasons stated above, this Court finds that the judgments and decrees passed by the Courts below are correct and in accordance with law and hence do not deserve any interference. This revision petition is dismissed. No order as to costs.
No order as to costs.