' CH. SHAHID SAEED, J.-- This 'civil revision assails the judgment and decree dated 26-2-1992 passed by learned Additional and District Judge, Lahore who dismissed the appeal of the petitioner and - maintained the judgment and decree dated 2-12-1990 passed by learned Civil Judge, Lahore whereby the suit of the petitioner for declaration with consequential relief was dismissed.
2. Succinctly, facts leading to the institution of this civil revision are that the petitioner filed a suit for declaration with consequential relief on 4-6-1987 with the averments that he was given a plot measuring 3 kanals, 16 marlas, 192 sq.Ft falling in Abu Baker Block Garden Town, Lahore in lieu of his land situated in village Ichhra which was acquired for a housing scheme. This exemption was made on the basis of a general power of attorney dated 27-5-1971 (registered on 28-5-1971) made by the petitioner in favour of Fazal-e-Azeem, respondent-defendant No, 1 . The above mentioned land was said to have been transferred by Fazal-e-Azeem to Ch. Manzoor Ahmad, respondent- defendant No,2 vide registered sale-deed dated 8-4-1972 who further alienated the same in favour of Dr. Javaid Shafi, respondent-defendant No,3 in January, 1973. In the plaint, the, petitioner-plaintiff sought declaration to the effect that he is owner of the plot in dispute and the said general power of attorney, agreement of sale dated 8-4-1972 and the subsequent sale-deed are result of fraud, forgery and impersonation, therefore, the possession of the property be given to the plaintiff.
3. Summonses were issued. Despite service, respondent No,2 did not put appearance before the court, as such, he was proceeded against ex parte. Respondent No,1 submitted written statement and denied the allegations of forgery. He also denied that he has entered into any sale agreement.
Respondent No,3 contested the suit mainly on the grounds of bona fide purchaser and that the suit was barred by time Out of divergent pleadings of the parties, the learned trial court framed issues, recorded oral as well as documentary 'evidence adduced by the parties and proceeded to dismiss the suit vide judgment and decree dated 20-12-1990. The appeal preferred there against also met with the same fate vide judgment and decree dated 26-2-1992 passed by learned first appellate court. The petitioner through this civil revision has challenged the legality of both the said judgments and decrees passed by learned courts below.
4. Learned counsel for the petitioner inter alia contends that respondent No,1 in para No,4 of his written statement has specifically denied of having signed any sale-deed; that when legality and validity of sale-deeds was challenged by the petitioner and it was also denied by the alleged attorney of having signed the alleged sale-deeds, the onus to prove the same shifted upon the beneficiary, i,e, respondent No,3. He further maintains that not to speak of proving the alleged sale- deeds, respondent No,3 has badly failed to even submit the original documents/sale-deeds.
Learned counsel further argues that no marginal witness of the sale-deeds was produced before the court to prove the same, as such, requirements of Articles 17, 78 and- 79 of Qanun-eShahadat Order, 1984 were not fulfilled. Learned counsel avers that the alleged sale-deeds are , not voidable but void, therefore, Articles 142 and 144 of the Limitation Act, 1908 are attracted whereby limitation is 12 years, as such, the suit was within time because the petitioner came to know about the alleged sale-deed in the year 1978 and the suit was filed on 4-6-1987. Learned counsel asserts that the learned courts below have badly failed to apply their judicious mind and to consider the evidence of the petitioner while passing the impugned judgments which are against the law and facts. He also takes the plea that till date, the petitioner is owner of the suit property as per record of the LDA.
He prays that the civil revision be allowed, the impugned judgments and decrees being illegal be set aside and the suit of the petitioner be decreed.
5. On the other hand, learned counsel for contesting respondent have vehemently opposed this civil revision and supported the impugned judgments and decrees. He mainly argues that the petitioner's conduct throughout the proceedings has been lethargic. According to plaintiff's own statement, he came to know about the alleged sale-deed in the year 1978 but he filed the suit on 4-6-1987 after more than eight years. He avers that the suit is badly barred by time and not maintainable. He further avers that the respondent No,3 is a bona fide purchaser from an ostensible purchaser, therefore, he is protected under the law. He prays that the civil revision be dismissed as the same is without any merit.
6. I have heard the arguments advanced by learned counsel for the parties and perused the record.
7. The moot point in this case is as to whether the petitioner had appointed an attorney vide general power of attorney dated 27-5-1971 (registered on 28-5-1971) and if so, he has validly and lawfully sold the disputed property to someone else or not.
8. It is nowhere denied by either side that the suit property was given to the petitioner-plaintiff against his land in village Ichhra which was acquired for a housing scheme. The claim of respondent No,3 is that the, attorney Fazal-e-Azeem had sold the property to respondent No,2 who further alienated the same to respondent No,3. However, the petitioner-plaintiff says that the attorney in connivance with other defendants has committed forgery with the general power of attorney given to him and the sale-deeds are also result of fraud and impersonation. The alleged forgery in the power of attorney is with regard to the portion of the power of attorney whereby the attorney was authorized to sell the property in question. On the other hand, respondent-defendant No,1 (attorney), in para 4 of his written statement, categorically denies of having signed the alleged sale-deed. In para 5, he denies that he forged the power of attorney. In the same para, he further denies that he got registered the power of attorney. He also denies that he has committed any forgery with the power of attorney given to him. As there appears no difference in writing style etc. Of the said portion from the rest of contents of the power of attorney, I am not convinced with the contention of learned counsel for the petitioner that the power of attorney was forged one.
9. Further, when the sale-deed was under challenge, and the alleged attorney has denied that he has signed the alleged sale-deed and also when according to the record of the LDA, the petitioner is owner of the disputed property, the onus to prove the sale-deeds. Shifts .Upon the beneficiary, i,e, respondent No,3 and it becomes incumbent upon him to prove that he has purchased the property from its lawful owner against consideration. Under the law, mere signature or thumb-impression upon, a document is insufficient, rather to show the genuineness of the document, it will have to be proved that the signatures or thumb-impressions were put in presence of the witnesses in whose presence it was Written and read over before the vendor who accepted the same by putting thumb-impressions/signatures after having understood the same. Since the onus to prove the documents shifted upon the respondent, he was required to produce the marginal witnesses of the sale-deeds and also that of the attorney in his favour but he has badly failed to produce them. So, the requirements of Articles 17 and 79 of Qanun-e-Shahadat Order, 1984 could not be fulfilled by him.
10. In order to assert that he is bona fide purchaser, respondent No,3 ought to have prove that he has made his level best to know as to who is the owner of the property. When according to the LDA record, the petitioner is owner of the property till date and there is no denial by the respondent about the said factum, the respondent cannot be termed as bona fide purchaser as he has failed to make any effort to know as to, who is the real owner of the property: So, even if it is believed that the general power of attorney has been made with all the powers giyen therein, it cannot be said that the attorney has sold the same to, defendant No,2 who further alienated the property to defendant No,3 as the attorney has categorically denied of having signed the alleged sale-deed. In the circumstances, it was incumbent upon the respondent to produce the original documents to establish his claim and also produce the marginal witnesses thereof but he has neither produced the original sale-deeds, general power of attorney nor has produced marginal witnesses thereof.
As such, respondent No,3 does not appear to be a bona fide purchaser.
11. Further, identification of vendor through reliable evidence is also necessary so that it could be ascertained that the alleged vendor/owner was real one. In this case, the respondents have badly failed to prove that the alleged sale-deed has in fact taken place because neither any marginal witness nor the attorney who have allegedly sold the land to defendant No,2 could be produced before the court. In this view of the matter. I am of the considered view that the alleged sale-deed 8-4-1972 allegedly made by the attorney in favour of respondent No,2 is result of fraud, invalid, unlawful, void ab initio and is ineffective upon the rights of the petitioner-plaintiff. When the basic sale-deed is void, the subsequent sale-deed would also be void as it is settled principle of law that when basic document is not proved and declared null and void, the whole structure, whatsoever, built upon it would automatically collapse.
12. The contention of learned counsel for the respondent-defendant is that the suit of the petitioner for declaration with consequential relief was not maintainable rather he should have sought cancellation of the sale-deeds. I am not in agreement with this argument. There is a distinction between voidable and void transactions. Where a transaction is voidable, it will have legal effects, therefore, its cancellation or setting aside will be sought, however, where the transaction is void, it will neither have any legal effect nor the question of its setting aside or declaring it null and void will arise, because it has no legal effect. Learned counsel for the respondent could not deny that as per record of LDA, the petitioner-plaintiff is still owner of the suit property. When the petitioner is still owner of the property as per LDA record and this factum is not denied by the other side, the sale- deeds under challenge were denied of having been signed by the alleged executant and respondent No,3 has miserably failed to prove them through cogent evidence, the alleged transactions are invalid and void as stated above and their cancellation being void is not required rather declaration with consequential relief will be sought as rightly done by the petitioner-plaintiff.
13. Apropos question of limitation, the, petitioner-plaintiff came to know about the alleged sale in the year 1978. He filed an application before the Deputy Martial Law Administrator wherefrom he could not get any relief. Thereafter, he filed the instant suit on 4-6-1987 for declaration with consequential relief. The respondent's claim is that the suit was barred by time as the limitation was three years, however, I do not agree with the same as under the settled principles being followed by the superior courts, where the alleged document is void, the matter will fall under Articles 142 and 144 of the Limitation Act, 1908 and the period of limitation will be 12 years. With regard to commencement of limitation, there is no cavil that in case of alleged fraud, the limitation will start from the date of knowledge. As the cause of action accrued to the petitioner in the year 1978 when he came to know about the alleged sale and he filed the suit on 4-6-1987, the suit in hand was well in time and not barred by law. Respectful reliance is placed on the dictums laid down in cases Abdul Majeed and 6 others v. Muhammad Subhan and 2 others (1999 SCM R 1245), Abdul Rehman and others v. Ghulam Muhammad through LRs and others (2010 SCM R 978) and Rahim Shah and another v. Din Muhammad through LRs and others (2006 YLR 2829).
14. So far as concurrent findings against the petitioner are concerned, it is well-settled principle now that if a glaring illegality has been committed by the lower courts, the High Courts have powers enough to dislodge them. In my view, the learned courts below have fallen in error while dealing with the issue of limitation and erroneously held that the suit was hit by laches. The learned court below have also failed to apply their judicious mind while dismissing the suit of the petitioner, therefore, the impugned judgments cannot sustain in the eye of law.
15. In a nutshell, when the alleged sale-deed was denied of having been signed by the alleged executant-attorney, the onus to prove the same shifted upon the respondent-defendant who has miserably failed to discharge the same. As a result, this civil revision is allowed, the impugned judgments and decrees dated 26-2-1992 and 20-12-1990 passed by learned Additional District Judge, Lahore and learned Civil Judge, Lahore respectively are set aside and the suit of the petitioner-plaintiff is decreed as prayed for.