JUDGMENT JUDGMENT CH. MUHAMMAD TARIQ, J.--- This civil revision has been directed against the judgment and decree dated 19-9-2002 passed by Syed Munir Hussain Shah, Learned Additional District Judge, Mandi Baha-ud Din.
2. Brief facts of the case are that respondent No.1 namely Muhammad Khan on 24-7-1996 filed a suit for declaration and permanent injunction contending therein that he is owner in possession of the disputed property measuring 73 kanals, 13 marlas fully described in the head note of the plaint while Mst. Anwar Bibi respondent No.2 is the were of Zulqarnain who asked the plaintiff /respondent No.1 that she needs loan for the construction of house and requested him to go along with her to Mandi Baha-ud Din for execution of general power of attorney. He further stated that he is an illiterate and artless person whereas respondent No.2 Mst. Anwar Bibi is very cunning and clever woman and she got attested general power of attorney on behalf of the plaintiff /respondent No.1 it) her favour fraudulently on 28-6-1995 in connivance with Aman Ullah Patwari and Manager, ADBP, Mandi Baha-ud-Din.
3. That on the next day of execution of General Power of Attorney, respondent No.2 transferred the suit-land in favour of her brother namely Riasat Ali respondent No.3 vide mutation of Sale No.2829 dated 29-6-1995. The plaintiff /respondent No.1 contended that he neither sold the suit-land in favour of respondent No.3 nor received consideration price mentioned in the mutation of sale.
Further contended that general power of attorney and mutation of sale are the bogus documents, which were got executed by fraud, misrepresentation and concealment of relevant fact. He further maintained that after purchase of land, respondent No.3 further entered into a transaction and exchanged the suit land measuring 73 kanals with petitioners against 48 kanals 13 marlas through mutation of exchange, therefore, mutations in dispute in favour of petitioner/defendant No.3 be declared null and void against the law, ineffective upon the rights of the plaintiff and liable to be cancelled.
4. That the suit was contested. The petitioner and respondent No.3 in their written statements contended that respondent No.3 on 5-6-1996 had exchanged the suit-land with the petitioner after obtaining land from respondent No.2. They further contended that respondent No.2 has not committed any fraud and in fact the petitioner himself had sold the suit land to respondent No.3 for consideration of Rs.9,00,000 and on 25-6-1996 he received Rs.7,00,000 and had also transferred the possession of suit land to them. Regarding remaining amount of Rs.2,00,000 which was due against respondent No.3, the plaintiff appointed respondent No.2 as his general attorney vide power of attorney registered at No.163/4 dated 28-6-1995.
5. That the petitioner while submitting his written statement contended that his rights are protected under section 41 of the Transfer of Property Act because he is a bona fide purchaser without notice. Further contended that the plaintiff /respondent No.1 and other respondents are close relatives. The plaintiff /respondent No.1 had executed the power of attorney in favour of respondent No.2 Mst. Anwar Bibi with his free will and respondent No.2 had transferred the land in favour of respondent No.3 on the direction of plaintiff/ respondent No.1 and when the mutation of exchange was attested in favour of the petitioner, respondent No.1/plaintiff in corroboration with respondents Nos.2 and 3 tried to get decree by filing fraudulent, false and frivolous suit in absence of the petitioner.
6. Out of the divergent pleadings of the parties, the following issues, were framed:-- ISSUES: (1) Whether the plaintiff is owner in possession of the suit-land? OPP
(2) Whether the general power of attorney dated 28-6-1995 in favour of respondent No.1 is based on fraud, ineffective upon the rights of the plaintiff and liable to be cancelled? OPP
(3) Whether the Mutation No.2829 dated 29-6-1995 on the basis of general power of attorney is also based on fraud, ineffective on the rights of the plaintiff? OPP
(4) Whether the plaintiff has no cause of action?OPD
(5) Whether the plaintiff has not come to the court with clean hands? OPD
(6) Whether the plaintiff's suit is not maintainable in its present form? OPD
(7) Whether the plaintiff's suit is false and frivolous and defendants are entitled to get the special cost under section 35-A of C.P.C.? OPD
(8) Relief.
7. After recording of oral well as documentary evidence of the parties, the learned trial Court vide its judgment and decree dated 25-10-2001 dismissed the suit.
8. Aggrieved from the judgment of the learned trial Court, the plaintiff/ respondent No.1 filed an appeal which was entrusted to Syed Munir Hussain Shah, learned Additional District Judge, Mandi Baha-ud Din who vide judgment and decree dated 10-9-2002 set aside the judgment and decree of learned trial Court and decreed the suit in favour of plaintiff /respondent No.1. Hence, this civil revision.
9. Learned counsel for the petitioner contends that Mst. Anwar Bibi respondent No.2 was were of Zulqarnain who is the son of Muhammad Annar. Learned counsel further contend that Muhammad Annar is the first cousin of the plaintiff /respondent No.1 Muhammad Khan. Mst. Anwar Bibi respondent No.2 was appointed as a general attorney and general power of attorney was duly registered with the Sub-Registrar. Learned counsel further contends that Riasat Ali respondent No.3 and Mst. Anwar Bibi respondent No.2 are the real brother and sister. Further contends that power of attorney was rightly executed in favour of respondent No.2 which was duly registered with Sub- Registrar and marginal witnesses of this power of attorney were Zulqarnain who is the husband of Mst. Anwar Bibi respondent No.2 and P.W.3 Muhammad Annar who is the father-in-law of Mst.
Anwar Bibi.
10. That after the execution of general power of attorney in favour of respondent No.2 on 29-6-1995, Mst. Anwar Bibi respondent No.2 alienated the suit-land in favour of Riasat Ali respondent No.3 vide mutation of Sale No.2829.
11. That after completion of sale, Riasat Ali further exchanged the suit-land with the petitioner vide mutation of Exchange No.2523 dated 9-6-1996.
12. Learned counsel for the petitioner further contends that after the execution and completion of mutation of exchange, respondent No.3 Riasat Ali have sold the land which he acquired as a result of exchange to the party and thereafter respondent No.1 has filed the instant suit in league with the other respondents which is collusive suit and has been filed just to deprive the petitioner from his valuable rights, therefore, civil revision be allowed, impugned judgment and decree passed by the learned first appellate court be set aside and judgment and decree of the learned trial Court be maintained.
13. On the other hand, learned counsel for the respondents has vehemently opposed the revision petition and supported the impugned judgment and decree passed by the learned first appellate court. Learned counsel for the respondents contends that the plaintiff /respondent No.1 is in continuous possession of land. Power of attorney executed in favour of respondent No.2 does not authorize respondent No.2 to alienate the suit-land because the power to alienate the suit-land was not entrusted to respondent No.2. Learned counsel further contends that there is no proof of execution of agreement to sell or payment of consideration price of the suit-land. Further contends that power of attorney was executed on 28-5-1995 and on the same day, the land was mutated in favour of respondent No.3 who was real brother of respondent No.2 without obtaining any permission from the principal, therefore, the transaction of sale in favour of respondent No.3 by respondent No.2 is void, ab initio. Learned counsel for the respondents further contends that on the day of execution of power of attorney, the executants were very much present there and there was no bar that instead of principal, executing the power of attorney in favour of respondent No.2 would have directly get entered the mutation of sale in favour of respondent No.3. Learned counsel further contends that act of respondent No.2 itself makes it doubtful. Learned counsel further contends that fact of the matter is that the plaintiff /respondent No.1 who is an illiterate person was asked to give power of attorney to obtain a loan but in the shadow of loan, respondent No.1 was deceived and thus the general power of attorney was obtained. Therefore, the impugned judgment and decree passed by the first appellate court is in accordance with law. Civil revision is not maintainable because the matter of facts could not be agitated under section 115 of the C.P.C.
Learned counsel for the respondents has relied on PLD 1983 SC 440, PLD 1985 SC 341 and PLD 2008 SC 389 and has prayed that civil revision be dismissed, impugned judgment and decree be maintained.
14. Arguments heard. Record perused.
15. The moot point in this case is issue No.2 that "Whether the general power of attorney dated 28- 6-1995 in favour of respondent No.1 is based on fraud, ineffective upon the rights of the plaintiff and liable to be cancelled.?OPP" The onus to prove was on the plaintiff. The plaintiff /respondent No.1 appeared himself as P.W.1 and in support of his version, Zulqarnain appeared as P.W.2 while Muhammad Anwar appeared as P.W.3. In addition to the oral evidence, plaintiff /respondent No.1 filed Exh.P.1 to Exh.P.7 in shape of documentary evidence. The plaintiff /respondent No.1 during his examination-in-chief deposed that Mst. Anwar Bibi induced him that she would send him abroad as her brothers are employed there. She Further asked respondent No.1 that she is in need of money for the construction of house so on this pretext she got general power of attorney in her favour fraudulently and by misrepresentation and transferred the suit land in favour of her real brother Riasat Ali respondent No.3. The plaintiff /respondent No.1 further deposed that he is un- educated and illiterate person, he was trapped. But the circumstances and evidence on record categorically rebut the contention of the plaintiff /respondent No.1 because plaintiff/ respondent No.1 himself appeared before the Sub-Registrar where he got executed general power of attorney in favour of respondent No.2 on 29-6-1995 and thereafter vide mutation of Sale No.2829 Exh.P.4, the suit-land was sold to respondent No.3 Riasat Ali. During his cross-examination, the plaintiff /respondent, No.1 has frankly admitted that he had been putting up in the house of the respondents with whom he has cordial relations. Further it is established that till today, the suit power of attorney has not been cancelled by the plaintiff /respondent No. 1. Another important fact which negates the version of the respondents is that the suit land was mortgaged with ADBP and it was redeemed by the petitioner in the knowledge of respondent No.1/plaintiff.
16. According to the evidence and contents of the plaint, the suit land was sold to respondent No.3 on 29-6-1995 and further this land was exchanged vide mutation of exchange deed No.2923 on 9- 5-1996. The suit land was 73 kanals, 15 marlas which was exchanged with the petitioner. In lieu of 73 kanals, the petitioner exchanged land measuring 48 kanals 13 marlas which was alienated in the name of respondent No.3.
17. That on 1-3-2001, vide Mutation No.888 respondent No.3 had sold the land, which he acquired in lieu of exchange and thereafter the plaintiff /respondent No.1 filed the instant suit in connivance with the other respondents.
18. The next contention of the learned counsel for the respondents that power of alienation of land was not delegated upon the attorney (respondent No.2) is misconceived because in Exh.D.2'
(general power of attorney), the power of alienation of land was specifically delegated upon the attorney.
19. Perusal of the record and the statements of the parties fully establish that respondent No.1/plaintiff with his free will appointed Mst. Anwar Bibi respondent No.2 as his general attorney who further alienated the land to respondent No.3 in the knowledge of the plaintiff /respondent No.1 which was further exchanged with the petitioner. Respondent No.1/plaintiff delegated the powers of alienation of land to respondent No.2 specifically. All the respondents are relatives and known to each other having cordial relations with each other so the contention of respondent No.1/plaintiff that power of attorney was executed as a result of fraud, misrepresentation and concealment of fact is misconceived and without any foundation. The suit is collusive, the impugned judgment and decree passed by the learned first appellate court is based on surmises and conjectures which is result of misreading and non-reading of evidence and the learned first appellate court failed to appreciate the evidence produced on the file. Resultantly, this civil revision is allowed, impugned judgment and decree dated 10-9-2002 passed by the learned Additional District Judge, Mandi Baha-udDin is set aside and the suit of the plaintiff /respondent No.1 is dismissed with costs throughout..