' CH. SHAHID SAEED, J.--- Through this civil revision, the petitioner has assailed the judgment and decree dated 2-6-2006 passed by Mian Muhammad Anwar, learned Additional District Judge, Sialkot who dismissed the appeal of the petitioner and upheld the judgment and decree dated 16- 12-2004 passed by Mr. Ahmed Mujahid Sherdil Cheema, learned Civil Judge, Daska whereby the suit for declaration and permanent injunction filed by the respondents was decreed Crl Org.
Petition No,103-C of 2006 has also been filed by the petitioner which also be disposed of through this judgment.
2. Brief facts of the case are that the predecessor-in-interest of respondents Muhammad Bashir filed a suit for declaration and permanent injunction regarding the property, fully described in the plaint, against the present petitioner asserting that he was the owner of the suit property'; that defendant No,2 Muhammad Ali obtained registered power of attorney from him fraudulently who alienated land measuring 3 kanals and 9 marlas without consideration in the name of the petitioner-defendant No,1 Muhammad Suleman vide Mutation No,430 dated 16-4-1999 without seeking permission from the plaintiff, so the same is unlawful and without any authority. The plaintiff further asserted in the plaint that he has revoked the said power of attorney on 11-5-1999 and that the petitioner-defendant Muhammad Suleman wanted to usurp the land of the plaintiff.
3. The suit was hotly contested by the defendants saying that the plaintiff had no locus standi to file the suit; that the sale mutation was sanctioned with the consent of the plaintiff and denying the same is an afterthought, as such the suit was not maintainable.
4. Out of divergent pleadings of the parties, as many as 13 issues including that of relief were framed. After recording oral as well as documentary evidence of the parties, the learned trial court decreed the suit of the plaintiff - respondents vide judgment and decree dated 16-12-2004. The appeal preferred there against by the petitioner was also dismissed vide impugned judgment.
Hence this civil revision.
5. Learned counsel for the petitioner contends that the impugned judgments suffer from grave misreading and non-reading of evidence, and are based on mere conjectures, surmises and common sense. It is settled principle that a Judge should base his verdict on law, facts and evidence adduced by the parties applying his judicious mind and not on the basis of the common sense. The learned courts below have categorically and rightly held that the power of attorney executed by the plaintiff Muhammad Bashir in favour of Muhammad Ali is a valid document but has unlawfully decreed the suit while holding that the disputed mutation is the result of collusiveness and fraud. He asserts that when the power of attorney given to Muhammad Ali is held by both the learned courts below to be true, then the sale transaction made by Muhammad Ali on behalf of the plaintiff is fully valid and lawful.
6. Learned counsel next argues that the suit-land was purchased by the plaintiff through pre- emption and it is a common practice that inflated price is always given in such matters to protect the sale from pre-emption. The plaintiff had purchased the suit-land at a price of Rs,62,500/- which was a inflated price while the actual price of the same was not more than Rs,50,000/- at that time. As such, the findings of learned courts below .Regarding selling of land at a price less than its purchase price are unconvincing and without considering the factum of pre-emption.
7. Learned counsel for the petitioner further contends that the petitioner is a bona fide purchaser against consideration, so he is protected under Section 41 of the Transfer of Property Act. Learned counsel states that there is also misreading and non-reading of evidence committed by learned lower courts. He points out that in the impugned judgment; the learned Additional District Judge observes that PW-3 Muhammad Zafar, who is son of the plaintiff, says that his father was not in need of money. The learned court further observes that PW-3 was not put any question regarding payment but both these observations are not correct as the question regarding payment was put to PW-3 and in his cross- examination, PW-3 admits that his father was in need of money.
8. Learned counsel further points out that the learned Additional District Judge finds that no one was put to support the version of petitioner-defendant which is contradicted from the record as DW-3 Sajjad Ahmed, Lumberdar appeared before the court and supported the version of the petitioner regarding sale transaction and payment of consideration amount. DW-3 deposes that in his presence, Tehsildar asked Muhammad Ali, attorney, as to whether he has received the money who answered in affirmative. DW-5/Naib Tehsildar also appeared before the court and deposed that Muhammad Ali attorney had received Rs,50,000/- in his presence, then he proceeded to sanction the mutation.. Learned counsel avers that the impugned judgments and decrees passed by learned courts below are illegal and without lawful authority, therefore, the same be set aside by allowing this civil revision and the suit of the plaintiff-respondents be also dismissed.
9. Conversely, learned counsel for the respondents vehemently controverts this civil revision and supports the impugned judgments and decrees. He avers that the learned lower courts have delivered elaborate and well-reasoned judgments covering all the aspects of the issue in hand. He argues that there are concurrent findings of law and fact against the petitioner which cannot be interfered with by this Court. Learned counsel for the respondents asserts that reappraisal of evidence at this stage is also not permitted. He points out that there are material discrepancies regarding payment of consideration amount and the disputed mutation is result of fraud and collusiveness. He avers that no payment was made to the plaintiff Muhammad Bashir. Learned counsel further argues that neither any witness of agreement nor any receipt could be produced by the petitioner and his mere statement regarding sale transaction having taken place is insufficient to prove the same. The act of an attorney which is prima facie against the interests of the principal is unlawful and illegal. The value of the suit-land at the time of sale was much higher than that it was sold, so the act of the attorney itself shows collusiveness. Learned counsel also argues that the disputed property was purchased by the plaintiff against consideration of Rs,62,500/- and he could not sell the same at Rs,50,000/-, less than the purchase value. He asserts that the civil revision is without any merit, therefore, it be dismissed.
10. I have heard the arguments advanced by learned counsel for the parties and perused the record with their able assistance.
11. The moot points in this case are as to whether the plaintiff Muhammad Bashir with his free consent made power of attorney (Exh.D2) in favour of Muhammad Ali who on behalf of the plaintiff Muhammad Bashir sold the suit property to the petitioner vide sale Mutation No,430, dated 16-4- 1999 (sanctioned on 5-5-1999) and whether the power of attorney was revoked before the disputed transaction took place or after the sale of the demised land.
12. The perusal of record highlights that the plaintiff Muhammad Bashir, predecessor-in-interest of the respondents appointed Muhammad Ali as his general power of attorney authorizing him to inter alia sell the land in question. The power of attorney was duly got registered with Sub-Registrar Daska on 16-6-1993. On the basis of the said power of attorney, Muhammad Ali sold the suit property to the petitioner-defendant Muhammad Suleman through sale -Mutation No,430, dated 16-4-1999 (sanctioned on 5-5-1999) against consideration of Rs,50,000/- and just after few days, i,e, on 11-5-1999, the plaintiff Muhammad Bashir cancelled the power of attorney given to Muhammad Ali. Later on, he filed the instant suit.
13. DW-3 Sajjad Ahmed Lumberdar appeared before the court and deposed that Muhammad Ali was attorney of plaintiff Muhammad Bashir, predecessor-in-interest of the respondents. In his presence, on query by Tehsildar, Muhammad Ali admitted that he had received the whole consideration amount and the petitioner also admitted before Tehsildar/Naib Tehsildar that the possession has been delivered to him. Naib Tehsildar was examined as DW-5 who states that the sale consideration of Rs, 50,000/- was given in his presence to Muhammad Ali, attorney. PW-3 Muhammad Zafar, son of the plaintiff, appeared before the court and in his cross-examination, he admitted that his father was in need of money.
14. The main contention of learned counsel for the respondents is that the disputed property was purchased by the plaintiff against consideration of Rs,62,500/- and he could not sell the same at Rs,50,000/-, less than the purchase value. It is admitted by the plaintiff himself that the land in dispute was purchased by him as a result of preemption suit. It is common practice in our society that in order to defeat the right of pre-emption, the inflated value is inserted in the sale agreements. So, the contention of learned counsel for the petitioner is convincing that the actual value of the property at that time was not more than Rs,50,000/- but the plaintiff purchased the same at Rs,62,500/- as a result of fre-emption suit. Moreover, the plaintiff was in need of money, as stated by his own son Muhammad Zafar during his cross-examination, so, the sale even at the rate of purchase or with some loss is not such that could not be believed as when someone is in need of money, he is expected to sell his assets even at the lesser rates. It is also pertinent to note that when sale proceedings were continuing, the plaintiff remained mum but when the mutation was sanctioned on 5-5-1999, he just after six days, i,e, 11-5-1999, revoked the power of attorney of Muhammad Ali and filed the instant suit which was not justified.
15. The other important contention of learned counsel for the respondents that the plaintiff Muhammad Bashir did not receive the consideration amount is also misconceived as once an attorney is appointed, he, for the purposes of any transaction mentioned in the power of attorney, is as good as the principal, so no benefit could be derived by the plaintiff under the pretext that consideration amount was not received by him.
16. Learned responden'ts' counsel also argues that the plaintiff Muhammad Bashir was an old man with ill health, so he was trapped by the attorney but the record speaks otherwise. It stands proved from the record that Muhammad Bashir was healthy with sound eyesight as he himself filed the suit on 28-7-1999 and remained alive for about one year thereafter.
17. Issues Nos.1 and 10 'regarding issuance of power of attorney validly by the plaintiff have been elaborately discussed and decided in favour of the petitioner concurrently by both the learned courts below holding that the plaintiff himself had made general power of attorney in favour of Muhammad Ali with his free consent, the same was duly registered with Sub-Registrar on 16-6- 1993 and it is not the result of any fraud or forgery. When it stands decided that the power of attorney was issued validly by the plaintiff in favour of the attorney, then the powers exercised by the attorney were also valid till the power of attorney remains in field. The attorney sold the property in dispute vides Mutation. No,430 dated 16-4-1999 (Exh.P4) and the same was sanctioned on 5-5-1999. The plaintiff revoked the power of attorney on 11-5-1999. It means that when the disputed transaction took place, the power of attorney was holding the field. So, when the attorney is valid, the powers exercised by him will also be considered valid. In the circumstances, the plaintiff cannot be allowed .To derive any benefit under the pretext that the transaction was not made by him and the attorney was required to get permission from him before exercising any power mentioned in the power of attorney as when the powers already mentioned in the power of attorney, it means that the same have been vested to the attorney and no further permission was, required under the law.
18. Issue No,2 is regarding revocation of power of attorney. This is vital issue but the learned first appellate court without discussing it properly has decided the same in favour of the respondents- plaintiff just relying on the judgment of the learned trial court. The important point involved in this issue is that when the power of attorney was revoked either before the disputed transaction or after the transaction took place. The record shows that the plaintiff made the power of attorney (Exh. D2) in favour of Muhammad Ali on 16-6-1993 mentioning powers inter alia the sale of the property, which fact is evident from the plaint and also admitted by the plaintiff himself by revocation of power of attorney on 11-5-1999 just after six days of sanctioning of disputed sale Mutation No,430 on 5-5-1999.
19. The respondents' side has taken plea that the disputed mutation was result of fraud and collusiveness amongst the petitioner, attorney and the revenue authorities. Through Issues Nos.3 to 6, the plaintiff was required to prove the collusiveness and male fide on the part of the petitioner- defendant and the revenue authorities. Learned courts below fell in error while holding that the attorney was required to get permission from the principal. However, under the law, when the power of attorney is valid and contains certain powers, then such powers exercised by the attorney will also be valid and there will be no need of further permission from the principal. However, no mala fide and collusiveness on the part of the petitioner-defendant or revenue authorities could be proved.
20. Issues Nos.7 and 8 pertain to locus standi of the plaintiff and the maintainability of the suit. It is crystal clear from the record that the disputed transaction was made by a valid attorney in accordance with the contents of the power of attorney, so the sale-deed/mutation in question was with lawful authority and the plaintiff had no cause of action, as such, the suit was not maintainable.
21. Issue No,12 pertains to sale of property by the attorney with the authority of plaintiff. It is settled principle of law that once someone is appointed as attorney, he is deemed to have been vested with all the powers mentioned in the power of attorney by the principal. So, any transaction within the ambit of vested powers will be deemed legal and with lawful authority. When the plaintiff in his plaint himself says "if the power of attorney is genuine", it means that he is admitting impliedly that it was genuine and true document. The power of attorney in the instant case is a registered document, wherein plaintiff himself had authorized the attorney Muhammad Ali inter alia to sell the disputed land. So when the attorney sold the land to the petitioner against consideration which is duly proved through evidence and mutation was also sanctioned on 5-5-1999, then the plaintiff could not be allowed to revoke the attorney. The sale transaction, once completed, will be deemed to be within the knowledge and permission of the plaintiff/principal, legal and lawful. Even if there was any defect in the power of attorney, the vendee who has purchased the land bonafidely from the attorney could not be held responsible for the same.
22. Issue No,11 is with regard to the petitioner-defendant having been bona fide purchaser of the suit-land against consideration. The record shows that the petitioner is a bona fide purchaser against consideration who has purchased the demised property from the attorney of the plaintiff, so he is protected under the law. If there is any dispute regarding obtaining permission by the attorney from the plaintiff before entering into sale agreement, it is a matter between the plaintiff and the attorney and the vendee has no concern with it. The plaintiff is, however, at liberty to deal with the attorney in accordance with law agitating his grievance before a competent court of law.
There are some minor discrepancies regarding payment of consideration but these are not fatal to the case of petitioner as agreement to sell was reached in the year 1999 but the evidence was recorded after five years in the year 2004, so minor discrepancies are natural. The respondents- plaintiffs could not produce any documentary evidence in support of their assertion that the price of the disputed land was higher than that received at the time of its sale. Though there are concurrent findings of law and fact by two learned courts below against the petitioner but where material facts have been overlooked by learned courts below and the learned lower courts have reached an erroneous conclusion, it would be deemed that they have committed material irregularly. In such like situation, the High Court is fully competent to reverse concurrent findings of lower courts. I am fortified by the dictums laid down in cases "Sajawal v. Mst. Sobia Hameed and others (1994 CLC 1328) and "Shah Gul and others v. Mst. Shamim Akhtar and others (1990 SCM R 110)".
23. In a nutshell, the disputed mutation was sanctioned validly and with consent of the plaintiff which took place through attorney of the plaintiff namely Muhammad Ali on 5-5-1999 but the plaintiff as a result of an afterthought, cancelled the power of attorney made in favour of Muhammad Ali on 11-5-1999 and filed the instant suit which is not based on cogent reasons. Since the sale transaction was made, the consideration amount paid and the mutation sanctioned in the presence and with consent of the attorney, the plaintiff had no right to file this suit. Resultantly, this civil revision is allowed, the impugned judgments and decrees passed by both the learned courts below are set aside and the suit of plaintiff Muhammad Bashir is dismissed.
24. The Crl. Org. No,103-C of 2006 was filed in the civil revision in hand praying that the respondents be directed not to violate the stay order granted by this Court vide order dated 1-8-2006. Since the civil revision has been decided/allowed, this contempt petition has become infructuous and is accordingly disposed of.