AMIN-UD-DIN KHAN, J. --- Through this civil revision the plaintiffs-petitioners have challenged, the judgment and decree dated 3.11.1999 passed by the learned Additional District Judge, Ahmadpur East, whereby the appeal filed by the plaintiffs-petitioners was dismissed against the judgment and decree dated 28.9.1993 ,whereby the suit filed by the plaintiffs-petitioners was dismissed by the learned Civil Judge, Ahmadpur East, District Bahawalpur.
2. Brief facts of the case are that the predecessor of the petitioners filed a suit for declaration wherein she challenged the mutation of Gift No. 1033 attested on 27.10.1974 and the decree dated 25.5.1980 procured on the basis of the gift by defendant No. 1 on 25.5.1980 from the Court of Civil Judge, Ahmadpur East. The suit was contested by the defendants Nos. 1 and 2, whereas defendants Nos. 3 and 4 filed consenting written statement. The learned Trial Court out of divergent pleadings of the parties framed issues and invited the parties to produce their respective evidence. Both the parties produced their respective evidence. The learned Trial Court vide judgment and decree dated 20.9.1993 dismissed the suit and an appeal was filed by the plaintiffs-petitioners which was also dismissed on 3.11.1999 by the first Appellate Court, hence this civil revision.
3. Learned counsel for the petitioners contends that alleged mutation of gift by the plaintiffs- petitioners and defendants Nos. 3 and 4 have been got sanctioned on the basis of power-of- attorney by defendant No. 2 in favour of his son i.e. Defendant No. 1. Learned counsel contends that this is only pivotal point in this suit. Further states that both the Courts below while dismissing suit relied upon order on the application under Section 12(2), C.P.C. For setting aside the decree dated 25.5.1980, therefore, reached to a wrong conclusion. Therefore states that both the Courts below fell in error while dismissing the suit as well as appeal.
4. On the other hand, learned counsel for the respondents states that there are concurrent findings of fact recorded by both the Courts and further states that Ex.D-2 which is a copy of the impugned mutation, at the time of entrance of this mutation in column No. 14 there is written that plaintiff and other donors are present, therefore, states that this mutation was attested in the presence of the donors as well as their attorneys.
5. I have heard the arguments of the learned counsel for the parties and have perused the entire record with their able assistance.
6. There are two points determinable by this Court in this case. Point No. 1 is whether an attorney is empowered to gift the property of the Principal and further in favour of his son. Point No. 2 is whether a decree granted in previous suit challenge through application under Section 12(2), C.P.C.
And the said application was dismissed whether in hand the plaintiff was entitled to challenge the said decree.
7. First of all, I take first point. So far as transfer of the property to the Principal through mutation of gift by the agent is concerned, I am clear in my mind that agent cannot gift the property of the Principal. The power-of-attorney at the most can be used for implementation of the gift in the revenue record or registration of gift deed etc. In that eventuality there must be a gift by the Principal himself in favour of the donee and the agent can only complete the documents etc. On the instructions of Principal and further it is also equally important that the beneficiary must prove the transaction. In this case when the plaintiff appeared as PW.1 and made statement on oath before the Court, the onus shifted to the defendants to prove the gift by the donor which is missing in this case. The point raised by the respondents that at the time of entrance of impugned mutation in Column No. 14 the presence of the donor has been marked by the Patwari. I have minutely scrutinized this document. This presence has been marked on the basis of Rupt Roznamcha Patwari but I have noticed that the copy of Rupt has not been produced by the defendants before the Trial Court. Admittedly, the donor was not present at the time of attestation of the mutation by the revenue officer. In this way the point raised by the learned counsel for the respondents has no value and the presence of the donor is not proved at the time of attestation of mutation. It is settled principle of law that an agent cannot transfer the property of the Principal in favour of his own kith and kin except with the special permission of the Principal. I have also considered view that the agent cannot gift the property of the Principal to any one what to talk about in favour of his own son, therefore, this transfer was absolutely bad in the eyes of law and Mutation No. 1033 attested on 27.10.1974 has no value against the rights of the plaintiff-petitioners.
8. So far as second point regarding ex parte decree procured by defendant No. 1 against the present plaintiff-petitioners is concerned, this decree is for possession and it negates the versions of the defendants, as if the possession was not delivered to him under the gift mutation then the mutation of gift was bad on that score also. I am of the view that where before filing application under Section 12(2), C.P.C. Plaintiff-petitioner requires declaration of his title, in that eventuality a composite suit for declaration of title as well as challenging validity of decree is competent. As in the suit in hand the plaintiff was required to seek a declaration against the attestation of Mutation No 1033 attested on 27.10.1974 and then to challenge the ex parte decree for possession procured by the defendants on the basis of said mutation, till the time that mutation is not declared illegal or having no effect against the rights of the plaintiff-petitioners, the plaintiff cannot challenge the decree for possession. In this view of the matter application under Section 12(2), C.P.C. Was not beneficial for the plaintiff, therefore, if the application has been filed and that was dismissed it has no adverse effect against the rights of the petitioners . I am clear in my mind where prior to the filing of the application under Section 12(2), C.P.C. The declaration is required to establish the rights of the plaintiff, that decree can be validly challenged in a suit for declaration because it is principle of law that multiplicity of the proceedings is never the intention of law.
9. If the plaintiff be asked to first file suit for declaration of this rights and title and then after a decree is granted in his favour then he should challenge the previously granted decree against him, in application under Section 12(2), C.P.C., this principle will amount to create multiplicity of proceedings and will cause agony for the parties. Therefore, the filing of the suit for declaration of title and challenging the decree, in a suit for declaration was competent.
10. As I have discussed that defendant No. 1 was bound under the law to prove the gift in his favour through proving the ingredients of the gift i.e. Offer, acceptance and delivery of possession, which the defendants have miserably failed to prove and further the impugned mutation of gift has been got attested by the agent on behalf of the Principal which is not permissible under the law, therefore, the impugned mutation is bad for that reason also. Further the decree previously procured by defendant No. 1, dated 25.5.1980 for possession also negates the impugned mutation and further the petitioners have validly challenged decree in his declaratory suit.
Civil revision .