' CH. SHAHID SAEED, J.---The petitioner Mian Abdul Aziz by way of filing the instant civil revision has challenged the vires of judgment and decree 4-5-2011 passed by learned Additional District Judge, Pasrur who accepted the appeal of the respondent and reversed the judgment and decree dated 20-12-2010 passed by learned Civil Judge First Class, Pasrur whereby the suit of the petitioner was decreed.
2. Succinctly stated the facts of the case leading to the filing of this civil revision are that the petitioner filed a suit for possession through specific performance of agreement to sell dated 1-4- 2004 alleging that he had purchased the land measuring 1 kanal, 5 marla, fully described in the plaint, from the respondent against consideration of Rs,8,43,750 which stood fully paid on 1-4-2004 when the agreement (Exh.Pl) was reduced in writing. The plaintiff averred that the respondent had agreed not to cancel the agreement and make sale-deed in favour of the plaintiff whenever demanded by him. On the same day, i,e, 1-4-2004, the respondent also executed general power of attorney (Exh.P2) in favour of the petitioner. It was further stated in the plaint that two days prior to the institution of the suit, the respondent backed out from her words and cancelled the general power of attorney dated 1-4-2004 with mala fide intention, which be declared ineffective qua the rights of the petitioner-plaintiff.
3. The suit was hotly contested by the respondent by filing written statement mainly on the ground of "pardanasheen lady". It was also the plea of the respondent that she executed the general power of attorney dated 1-4-2004 in favour Of the petitioner just to look after the suit plot. The petitioner fraudulently got signature of the respondent on some blank stamp papers and converted these into the agreement to sell and when she came to know about nefarious designs of the petitioner, she cancelled the general power of attorney.
4. Out of divergent pleadings of the parties, learned trial Court framed eight issues including that of relief, recorded oral as well as documentary evidence of the parties and proceeded to decree the suit vide judgment and decree dated 20-12-2010. Feeling dissatisfied, the respondent filed appeal which was allowed by the learned Additional District Judge, Pasrur vide judgment and decree dated' 4-5-2011 whereby the judgment and decree of learned trial Court was set aside and the suit of the petitioner was dismissed, hence this civil revision.
5. Learned counsel for the petitioner mainly contends that. The petitioner is a property dealer who purchased the suit property from the respondent and after receipt of total consideration amount, the respondent executed agreement -to sell as well as general power of attorney, both dated 1-4- 2004. He further contends that it was agreed between the parties that the vendor will not cancel the deal and will execute registered sale-deed in favour of the vendee whenever he asks, however, the respondent lady backing out her words has cancelled the general power of attorney which is ineffective upon the rights of the petitioner. He further contends that the petitioner has produced the receipts which are duly signed by the respondent-lady who when appears before the court does not deny her signature thereupon as well as on agreement to sell. He next argues that the petitioner has successfully proved his case by producing one marginal witness as well as deed- writer and stamp-vendor of agreement to sell but learned lower appellate court has badly failed to appreciate the evidence adduced by the petitioner and has illegally and unlawfully dismissed the suit of the petitioner merely on the ground that the vendor is a pardanasheen lady. Learned counsel further maintains that the respondent having passed her intermediate examination is a literate lady who has been serving in the Health Department and also made sale/purchase of some property prior to instant one, therefore, the plea of pardanasheen lady is no more available to her. Learned counsel avers that the judgment and decree passed by learned lower court is perversed and based upon mere surmises and conjectures and suffers from misreading/non- reading of evidence, therefore, this civil revision be allowed, the impugned judgment and decree be set aside and the judgment and decree passed by learned trial Court be restored.
6. On the other hand, learned counsel of the respondent vehemently opposes this civil revision and fully supports the impugned judgment and decree. He contends that the petitioner was follower of husband of respondent lady who, just to look after the suit plot, executed general power of attorney, in favour of the petitioner and because of faith upon the petitioner, she also signed some blank stamp papers at the instant of the petitioner which were fraudulently converted into sale agreement by the petitioner, therefore, the respondent cancelled the general power of attorney. His main stress was on the points that the plaintiff has failed to prove the payment of consideration amount and also to prove one of the marginal witnesses of agreement to sell. He prays that since instant civil revision has no force, it be dismissed.
7. Arguments advanced by learned counsel for the parties have been heard and record also perused.
8. It reveals from the record that the alleged agreement to sell was written on 1-4-2004 (Exh.P1) whereby the respondent sold the suit property to the petitioner and also promised that she would not revoke the sale agreement and execute registered sale deed in favour of the petitioner-vendee whenever he so desires. On the same day, i,e, 1-4-2004, the respondent also executes a general power of attorney (Exh.P2) in favour of the petitioner which is throughout admitted by the respondent. She only disputes the agreement to sell dated 1-4-2004 (Exh.P1) taking plea that the petitioner was follower of her husband; that she had faith upon the petitioner; that the petitioner taking undue advantage of respondent's faith upon him, got signed some blank stamp papers from her fraudulently. She also denies of having received any consideration amount. Both Exh.P1 and Exh.P2 were written in presence of same witnesses.
9. Being the beneficiary of agreement to sell (Exh.P1), the onus to prove the same was on the plaintiff. The plaintiff among others produced one marginal witness of agreement to sell (Exh.P1) namely iftikhar Khursheed Bokhari Lumberdar as P.W.5 and Deed Writer Mian Javed Akhtar as P.W.3.
Both the said P. Ws. Fully support the version of the plaintiff and state that Exh.P1 was written at the instance of the respondent lady; that Exh.P1 was read over and made comprehended to the respondent lady; that though payment was not made in their presence but the parties admitted at the time of sale agreement that the consideration amount has already been paid/received and then it was signed by the respective parties as well as the marginal witnesses. The stamp vendor Zulfiqar Ali Shah (P.W.2) was also produced before the court who deposed that the stamp papers of Exh.P1 and Exh.P2 were purchased by the respondent lady herself after signing at the backside of the stamp papers which was duly entered into his register at Serial No,9725, dated 20-3-2004. h addition, the plaintiff-petitioner himself appeared before the court as P.W.1 and reiterated the contents of the plaint.
10. The respondent lady herself appeared as DW-1. She admits execution of general power of attorney (Exh.P2) and also that the signature on Exh.P1 were made by her though she alleges that these were obtained fraudulently. She also admits her signature on payment receipt dated 3-12- 2003 and 23-2-2004 whereby she was paid Rs,400,000 and Rs,230,000 respectively by the petitioner-plaintiff. In both the said receipts, it has clearly been mentioned that the respondent lady after receipt of balance consideration amount will execute registered sale deed in favour of the petitioner-vendee. In agreement to sell (Exh.Pl), she unambiguously admits that she has received the total consideration amount and also that she had executed general power of attorney in favour of the petitioner which will not be revoked by her. Whenever general power of attorney is executed along with the sale agreement, it will tantamount to part and parcel of the sale agreement and cannot be revoked afterwards.
11. It is evident from the record that the respondent lady is F.A., she has been serving in the Health Department and also made sale/purchase of a cold storage, as such, the plea of "pardanasheen lady" is no more available to her when she is an educated lady, has remained in government service and also made sale/purchase transaction prior to the instant one.
12. So far as the contentions of learned counsel for the respondent that one marginal witness namely Malik Masud Sadiq was not produced, it is evident from the record that the plaintiff after the said witness became hostile filed application before the trial Court for summoning the e said witness. So, there is not fault on the part of the petitioner in this regard. Even otherwise, the petitioner has produced two witnesses, i,e, one marginalwitness and the other deed writer. It is settled ,principle of law that the deed-writer is as good as marginal witness who supported the version of the petitioner, therefore, the requirements of Article 79 of Qanun-e-Shahadat Order, 1984 were duly fulfilled and the agreement to sell stands fully proved by the petitioner-plaintiff.
13. The other contention' of learned counsel for the respondent before this court is that the consideration amount was not paid to the respondent lady is misconceived as when the lady herself admits her signature on the payment receipts as well as on agreement to sell, it cannot be presumed that she had not received the consideration amount. She is an educated lady and expected to sign any document after having read its contents.
14. The epitome of whole discussion is that the petitioner-plaintiff has successfully proved his case by producing one marginal witness and deed-writer who is as good as marginal witness. The respondent lady A admits her signatures on agreement to sell as well as payment receipts, therefore, presumption would be that she had signed these documents after receipt of consideration amount. The revocation of general power of attorney by the respondent-lady appears to be an afterthought to deprive the petitioner from his lawful right which cannot be allowed under the law. The learned Additional District Judge has passed the judgment against law and fact which cannot sustain in the eye of law. Resultantly, this civil revision is allowed, the impugned judgment and decree dated 4-5-2011 passed by learned Additional District Judge, Pasrur is set aside and the judgment and decree dated 20-12-2010 passed by learned trial Court is restored whereby the suit of petitioner already stands decreed.