MUHAMMAD AMEER BHATTI, J. - I propose to decide both the Civil Revisions (1521/2000) which are outcome of the impugned judgment through which the suit of the plaintiff against the respondents in C.R. 1521/2000 has been partially accepted the appeal of the respondent and the Second Civil Revision No. 2109/2000 was filed by the respondents against the partial dismissal of appeal.
2. The brief facts of the case are that the petitioners on 4.6.1992 filed a suit for declaration with consequential relief on the ground that they were owners in possession of the suit land and general power-of-attorney dated 22.8.1968 and on the basis of this general attorney, the sale-deed was executed by the attorney dated 28.3.1991. On the basis of this sale-deed the name of the respondent has been incorporated in the Jamabandi dated 4.6.1991 which are illegal and void on the ground that they have never given this general power-of-attorney nor any permission has been granted to the general attorney for entering into a sale and the transactions including the general attorney are based on the fraud and collusion of the Patwari concerned. Further alleged that Shukar Bibi, one of the real sister's thumb impression is not available on the general attorney, hence this attorney was not empowered to sell her share. Therefore, in this way, the general attorney is also fake and the transaction on the basis of this fake attorney is also wrongful and void.
3. The written statement was filed by the respondent/defendant on 19.9.1992 wherein they took the preliminary objections i.e. Limitation, no cause of action, non- maintainability of suit, mala fide and estoppel. On merits, the facts have been controverted. However, the defendant No. 2, the general attorney has not filed written statement. He filed an application under Order 7, Rule 11, CPC for the rejection of the plaint,. Being time-barred and the learned Trial Court while accepting his application vide its judgment dated 6.10.1992 rejected the plaint of the present petitioners. On filing of appeal by the petitioners, the learned first Appellate Court accepted the appeal and remanded the case back to the learned Trial Court for decision on merits. Subsequently, the suit was again decreed by the learned Trial Court vide its judgment dated 11.7.1995. However, on filing of appeal of the respondent, the learned Appellate Court vide its judgment dated 20.5.1994 set aside the decree of the learned Trial Court and remanded the case back to the learned Trial Court after framing three additional issues (4-A to 4-C) with the further direction to the learned Trial Court that after obtaining the evidence from both the parties, the suit shall be decided in accordance with law.
4. The present petitioners produced four more witnesses but the respondent No. 1 relied On the same evidence. The learned Trial Court vide its judgment dated 29.4.1999 decreed the suit.
Respondent No 1 filed an appeal which, was partially allowed and the decree to the extent of Shukar Bibi was maintained and the suit about the remaining plaintiffs was dismissed. Aggrieved of the judgment and Jecree of the learned first Appellate Court, both the parties filed their revisions.
The present petitioner filed the Civil Revision No. 1521/2000 against the dismissal of suit of the remaining plaintiffs and the other Civil Revision No. 2109/2000 was filed by the respondent No. 1 against the maintaining of the decree of plaintiff Shukar Bibi.
5. Learned counsel for the petitioner contends that the power-of-attorney has not been proved in accordance with law as neither the original power-of-attorney has been placed on record nor the defendant No. 2, the general attorney has appeared who was proceeded against ex parte. Further contends that no witness has been produced about the attorney, hence the respondent has failed to prove the execution of the power-of-attorney and the sale on the basis of this attorney cannot be sustained. Further contends that even if it is presumed that the thumb impressions have been put on the attorney, even then it was the duty of the respondents to prove the contents of the instrument. Reliance has been placed on T 984 SCMR 568, 1998 CLC 700. It is further contended that Barkat Ali, the predecessor-in-interest of the present petitioner was the original owner of this property and the same has been mutated in favour of them in the year 1991 and at the time of issuing this power-of-attorney, they were not owners of this land, hence no benefit of the attorney can be drawn. Further contends that the limitation cannot run against the petitioner as transaction is based on fraud. Reliance is placed on PLD 1970 Lahore 617.
6. Conversely, learned counsel for respondent No. 1 argued that the main stress of the petitioners is that they have not executed the general power-of-attorney, hence the transaction is sham in the eye of law. "He has referred to Para No. 5 of the plaint wherein the stand Of the petitioner/plaintiff is that the documents of general power-of- attorney and sale-deeds are fraudulent, forged, fictitious, bogus and illegal. Moreover, these documents are without consideration. The said documents have been prepared by the defendant through fraud and impersonation without the knowledge of the plaintiff. However, he referred to Ex.P.11 which is an application submitted by Machal Khan, one of the plaintiffs to the Deputy Commissioner, Lahore which is as under:- U>2499/^Cfy'J'lsj'z ftftW Cvl3^ [(urdu text)] He has referred the evidence of the plaintiff who appeared as P.W.2. In cross-examination, available at page 59 of this C.R. No. 2109/2000, he was confronted with this application and its contents, which was admitted in the following words:- - ^ ^1 (j~ W* ^ tJ [(urdu text)] Learned counsel for the respondent further contends that the plaintiffs are also raising the objection through this revision that they were/are owners of land about 24-kanals but in the sale- deed, the land measuring 76-kanals has been mentioned to have been purchased from the petitioners. This also reinforces the fact that the sale-deed is invalid. Learned counsel for the respondent contends that about this explanation has already made by the petitioners in their suit.
He has referred to Para No. 3 of the plaint wherein it is specifically mentioned that the plaintiffs predecessor was owner of 76-kanals but during the consolidation proceedings, the area given to the predecessor-in-interest of the plaintiffs was 24-kanals. The same khata number and khasra number have been mentioned in Para No. 3 of the plaint which is part of the sale-deed. On the basis of the above-mentioned facts, the learned counsel for the petitioner contends that admission on he part Of the petitioners about the execution of the general power-of-attorney is a sufficient proof and it did not further required to be proved as Iaid down by the Hon'ble Supreme Court and this Court. He has relied on 2010 SCM R 72, 2008 YLR 135, 2005 SCM R 1295, 2007 CLC 1089 and 960 and 2005 CLC 870. The learned counsel further contends that since 1969, after the registration of the sale-deed, they are in uninterrupted possession of the suit land. Although, they are living in the same vicinity and the petitioners are also close relatives of respondent No. 1. He further contends that the suit in the present form is also not maintainable. He relied on NLR 1980 Lahore 243, PLD 1973 Lahore 455, PLD 1968 Dhaka 172, -- 1966 Peshawar, PLD 1991 259. Since the case of the petitioner is based on documentary evidence and the documentary evidence excludes the oral evidence, as it is settled law. Reliance is placed on 2001 CLC 1332, 2007 CLC 960. Contends that under Article 114 of Qanun-e-Shahadat, the principle of estoppel is also applicable on the petitioners/plaintiffs and they cannot breathe approbate and reprobate.
7. I have given anxious consideration to the arguments of the learned counsel for the parties and have thoroughly gone through the record available in the file.
8. In the light of the admission made by the plaintiff about the execution of the general power-of- attorney, the petitioners cannot get any benefit from the nonproduction of original general power- of-attorney or its witnesses. Since the plaintiffs through the plaint tried to plead their case as the general power-of-attorney and sale on the basis of this attorney is fraudulent, forged and fictitious but at the time of recording his evidence, truth could not stay under their teeth. One of plaintiffs in his on statement has admitted about submission of application to the Deputy Commissioner and also admitted the contents of the application/genera! Power-of-attorney, as he filed an application to the Deputy Commissioner where he has in clear words mentioned and admitted the execution of the general power-of-attorney. Such conduct of the plaintiffs would tantamount to estoppel under Article 114 of Qanun-e- Shahada, 1984, thus he could not retract from his position now. Learned counsel has rightly relied upon law laid down by the Hon'ble Supreme Court and on the basis of it, it is sufficient for holding this fact that the general power- of-attorney was executed by all the plaintiffs except Shukar Bibi. However, the plaintiffs/petitioners by filing this suit have tried to establish that they have neither issued this general power-of-attorney nor they put their thumb impressions, hence this is a fabricated exercise otherwise borne out from their on evidence. The plaintiffs have tried to mislead the Courts as they themselves were aware Of this fact that a valid general power-of-attorney has been issued by them but even then they on the basis of false narration in the plaint tried to get the land back from the respondent who is a bona fide purchaser from the general attorney of the plaintiffs. Since the general power-of-attorney has been admitted and stood proved from the evidence of the plaintiffs, there was no need to lead any evidence by the respondent for its proof. It was for the petitioners to prove their case but there is no. Evidence to show that general power-of-attorney and sale- deed are based on fraud. As mentioned ,above, they have failed to produce trustworthy evidence in support of their case. So learned first Appellate Court had rightly accepted the appeal except against Shukar Bibi who was not party in the attorney. Even otherwise this document has not been prepared by the respondent nor is it the allegation against the present respondent by the plaintiff that he has prepared this document, hence the onus could not be shifted on the shoulder of the vendee. The land in dispute is ceaselessly in possession of the respondent/vendee since 1968 from the date of registered sale- deed and never interrupted by the petitioners/plaintiffs, although they are close relatives and owner of the transaction from the day of its execution, hence they are disentitled to any relief as claimed in this civil revision. The same is accordingly dismissed.
9, So far as the other Civil Revision No. 2109 filed by respondent No. 1 is concerned, that is against the claim of one of the plaintiffs Shukar Bibi. Since her thumb impression is not available on the general power-of-attorney, hence the attorney was not in a position to sale out the land in the ownership of Shukar Bibi.. So, the learned first Appellate Court rightly maintained the decree to the extent of Shukar Bibi, hence this civil revision being meritless to that extent is dismissed.