' ROOH-UL-AMIN KHAN J.---Through the instant revision petition, the petitioners have sought the indulgence of this court to set at naught the concurrent judgments and decrees of the learned two courts below dated 30-5-2008 and 28-1-2009 respectively, whereby their suit for declaration, perpetual injunction and possession of the property in question was dismissed.
2. Brief and essential facts of the case as averred in the plaint are that some landed property fully described in the plaint was allotted to one Hassan Muhammad son of Naseer Khan who died on way while migrating to Pakistan from India at the time of partition of the Sub-Continent in the year 1947. He was allotted the suit property in District D.I.Khan, in lieu of his verified Claim No, 1388, in Chak No,71/WB, Vehari Punjab. On getting knowledge about the same, Hazrat Nabi, defendant No,1, through a fake and fictitious power of attorney fraudulently transferred the said property to defendants Nos. 2 to 4 on behalf of late Hassan Muhammad. Muhammad Jamil and five others, plaintiffs/petitioners, being the legal heirs of the deceased Hassan Muhammad, filed a suit against the said Hazrat Nabi and three others, defendants/respondents, for declaration to the effect that they are owners-in-possession of the property fully described in the plaint through inheritance from their predecessor-in-interest, namely, Hassan Muhammad and the defendants had got no concern therewith. They also sought declaration to the effect that the subsequent transfer of the suit property by defendant No,1 in the name of defendant No,2 on the basis of a forged and fake general power of attorney through mutations detailed in the plaint are false, mala fide, illegal and fraudulent and thus ineffective upon their rights. Likewise, they also prayed that the so-called power of attorney allegedly executed by late Hassan Muhammad, their predecessor-in-interest in favour of ,defendant No,1 being fake and fictitious was thus liable to cancellation. Along with the suit, the plaintiffs also sought perpetualcum-mandatory injunction restraining the defendants from interference and possession of the suit property. They averred that defendants Nos. 2 to 4 having shown bogus National Identity Card of late Hassan Muhammad and on the basis thereof, the bogus power of attorney was prepared for fake and shames transactions, sheerly to deprive the plaintiffs from their property, which being ineffective on their rights was liable to cancellation. The plaintiffs alleged that the defendants were time and again asked to admit their claim but in vain.
3. It is pertinent to observe that during the proceedings before the trial Court, one Hassan Muhammad appeared before the court and submitted an application for rejection of the plaint on the ground that the plaintiffs had brought a bogus claim before the court because neither they are his relatives nor known to him and have committed fraud to grab his property. He also asserted that he has also charged the plaintiffs for commission of a criminal offence and had lodged an F.I.R. No, 197 dated 3-10-1995 under sections 419/420/408/471 P.P.C. In Police Station Cantt: D.I.Khan.
The above-mentioned person, namely, Hassan Muhammad, also produced the original claim, allotment form and his original National Identity Card. The trial Court after recording his statement dismissed the suit of the plaintiffs with cost of Rs,5,000 vide order dated 29-5-1996 and their appeal against the above said order before the District Judge also met the same fate and was dismissed vide order dated 7-11-1996. Ultimately, the Revision Petition bearing No,10 of 1997 was accepted by this court vide judgment and decree dated 21-5-1999 and the case was remanded to the learned trial Court to decide the same on merits after recording evidence of the parties. At the same time, an additional issue to the following effect was also framed:-- "Whether Hassan Muhammad, son of Naseer Khan, the original claimant/ allottee of the suit-land and predecessor-in-interest of the plaintiffs is dead"? OPP ' The trial Court was thus directed to record evidence of the parties on the issues including additional issue framed above and to decide the case thereafter.
4. After remand of the case, the parties produced their pro and contra evidence and the divergent pleading of the parties gave rise to the framing of ten issues including the relief. On issue No,2, the defendants alleged that since the plaintiffs had not impleaded Hassan Muhammad, their predecessor-in-inertest as party in the suit, therefore, the suit was bad for non-joinder of necessary party. However, the learned trial judge while deciding issue No,2; held that since the plaintiffs had alleged that the said Hassan Muhammad had died on his way to Pakistan at the time of partition of the Sub-Continent and the suit property was allotted to him against his verified claim coupled with the fact that he was issueless, thus he could not be impleaded and the issue was decided in negative. The learned trial Judge on evaluating the materials brought on record and considering the arguments of the learned counsel for the parties addressed at the bar, dismissed the suit of the plaintiffs and simultaneously the transfer in favour of the respondents on behalf of Hassan Muhammad was declared based on forged and bogus power of attorney. Petitioners assailed the Judgment and decree of the trial Court dated 29-5-1996, before the learned District Judge, D.I. Khan, however, the contesting defendants while accepting the finding of trial Court did not file appeal against the above-mentioned judgment and decree. Appeal of the petitioners could not succeed and was dismissed vide Judgment and decree dated 28-1-2009. Aggrieved from the concurrent findings of the learned lower courts the plaintiffs/petitioners have come up to this court through the instant revision petition. The respondents/defendants being contented with the impugned judgments and decrees have not filed any petition.
5. The learned counsel for the petitioners vividly contended that the impugned Judgments and decrees are against facts, law and the material available on record, thus are liable to be set aside.
He urged that the impugned findings are based on misreading/non-reading of evidence. He advocated that undisputedly, late Hassan Muhammad was a displaced person having verified Claim No, 1388, who died during the partition of Indo-Pak and the plaintiffs/ petitioners are his legal heirs; that in lieu of the verified Claim No,1388, certain evacuee property at D.I.Khan was allotted to him. He argued that with the active connivance of Mst. Robina Shaheen, defendant No,2, Hazrat Nabi, defendant No,1, had fraudulently executed a false and fabricated power of attorney on behalf of late Hassan Muhammad, despite the fact that he was dead and not alive to appoint any attorney and this fact had been rightly appreciated by both the courts below in their impugned findings. He submitted that the petitioners being the descendants of Hassan Muhammad, the original allotee/owner, were legally entitled to inherit the legacy i.e, suit property of their predecessor-ininterest. According to the learned counsel, Mst. Robina Shaheen, defendant No,2, was neither a bona fide purchaser of the suit property from ostensible owner, nor her rights were protected under section 41 of the Transfer of Property Act, 1882, because the alleged power of attorney was absolutely fake and factitious and thus all the transactions taken thereunder have no legal sanctity. In such eventualities, the finding of the courts below to remit the suit property to the Central Government were totally unfounded, because the Government had already transferred the property in question to the deceased Hassan Muhammad in lieu of his verified claim being a displaced person and the petitioners being his legal heirs were entitled to the decree as prayed for in the plaint. He contended that in view of the order of this court referred above, the defendants had neither produced late Hassan Muhammad who, according to them, was alive, nor produced the original power of attorney in the trial Court. He, therefore, argued that the courts below have failed to appreciate the evidence of the parties while passing the impugned findings and have arrived at an erroneous conclusion, which are thus liable to be set at naught and suit of the plaintiffs/ petitioners is liable to be decreed as prayed for in the plaint.
6. On the other hand, learned counsel for the defendants/ respondents defended the impugned judgments and decrees of the learned two courts below on almost the same grounds mentioned therein.
7. Having heard the learned counsel for the parties, perusal of the record depicts that admittedly late Hassan Muhammad was a displaced person who died during the partition of Indo-Pak. It is also an admitted fact that the said Hassan Muhammad was holder of verified Claim No,1388 and in lieu thereof, certain landed property was allotted to him at D.I.Khan. There is also no denial of the fact that late Hassan Muhammad was issueless and petitioners being his legal heirs are thus entitled to inherit his legacy. The moot question for determination in the case in hand is that whether the power of attorney allegedly executed in favour of Hazrat Nabi, defendant No,2, on behalf of late Hassan Muhammad was fake or genuine. The record shows that Hazrat Nabi, defendant No,2, was the resident of District Mardan, having no nexus/relationship with late Hassan Muhammad, and he had prepared his bogus National Identity Card, whereby the bogus power of attorney was executed on his behalf. The record further shows that late Hassan Muhammad was not alive at the time of execution of the alleged power of attorney on his behalf. The defendants despite the orders of this court had neither been able to produce the said late Hassan Muhammad before the trial Court, nor could produce the original power of attorney.
8. The defendants being beneficiaries of the power of attorney were under legal obligation to have proved its genuineness at the initial stage. During pre-remand proceedings, the imposter Hassan Khan appeared before the trial Court and recorded his statement in favour of defendants, with regard to genuineness of the alleged power of attorney, but amazingly after remand of the case from this court and after framing of additional issue in respect of death of Hassan Muhammad, the imposter disappeared and never turned up before the court again. The National Identity Card number affixed on the power of attorney was verified by the trial Court through examining P.W.5, who produced letter dated 1-6-2006, issued by District Registrar, Sahiwal, according to which the NIC number 334-33-009645 (affixed on power of attorney) has never been issued to person namely Hassan Muhammad son of Naseer Khan resident of Chak No, 987/6R, Tehsil and District Sahiwal. He produced the relevant record, according to which National Identity Card ibid has been issued to Muhammad Yousaf, son of Kher Din. From the above facts, it can easily be inferred that Hassan Muhammad has died before establishment of Registration Department (now NADRA) and obviously was not holding any National Identity Card and the alleged power of attorney on behalf of Hassan Muhammad was forged, bogus, and fabricated document, used fraudulently for transfer of the claimed property of Hassan Muhammad. Both the courts below have arrived at just and proper conclusion to the extent that the power of attorney is forged and not genuine. The above finding of the trial Court as well as of appellate court, have also been accepted by the defendants/respondents, because they have neither filed appeal before the District Judge, nor revision before this court against A the judgment of the appellate court.
9. Coming to the question of relationship of the plaintiffs with late Hassan Muhammad, it is evident from first para of the plaint, that the plaintiffs and late Hassan Muhammad were first paternal cousins. The plaintiffs are the sons of Shadi Khan and Kalay Khan respectively, while Hassan Muhammad was the son of Naseer Khan. Shadi Khan, Kalay Khan and Naseer Khan were the sons of Ghulam Hassan. Thus, in this respect, the plaintiffs and Hassan Muhammad are cousins inter se.
It is also not controverted by any person that they were not the surviving legal heirs of deceased Hassan Muhammad. P.W.8, Umer Din, special attorney of the plaintiffs while appearing before the court, reiterated the pedigree-table, provided in para-1 of the plaint and has succeeded to establish his relation with late Hassan Muhammad.
'During proceedings before the trial Court, no body has come forward to rebut the pedigree table mentioned by the plaintiffs in the plaint.
' The respondents had not claimed themselves to be the legal heirs of Hassan Muhammad, rather have alleged that one Hazrat Nabi defendant was the sole person, who allotted all the claims in favour of Hassan Muhammad and subsequently as his general attorney transferred his property through different deeds in the name of Mst. Robina Shaheen, defendant/respondent No,
1. The above referred Hazrat Nabi was never produced to ascertain the above facts. Besides, the respondents failed to prove any transfer from the original allottee Hassan Muhammad, or to show any nexus of Hazrat Nabi with him. The claim of the defendants has already been dismissed by both the courts below and they have attorned the findings of trial as well as appellate court. The judgments and decrees of the courts below have attained finality against the defendants, thus their assertion in respect of relationship of plaintiffs with late Hassan Muhammad is insignificant and has no legal force.
10. It is also the matter of record that the Central Government had transferred the suit property to late Hassan Muhammad being a displaced person in lieu of his verified Claim No,1388, which was not returnable to it. It is also an admitted fact that Hassan Muhammad deceased was the holder of original Claim No,1388. Record depicts that during the trial, the record regarding the disputed claim was requisitioned, but in response of the summons of the trial Court, the Deputy Secretary, S&R, Board of Revenue, Punjab House Lahore, requested the court through letter, that the required record is of sensitive nature and cannot be sent, therefore, requested for inspection of record through Commission. Consequently, on mutual consent of the parties, Mr.Suba Khan, Reader of the Court, was appointed as Local Commission to verify the Claim No,1388 from original record. The local commissioner visited Lahore and inspected the claim of Hassan Muhammad in Central Record Room Lahore. He submitted his report dated 6-9-2007, according to which the Central Government has issued the claim No, 1388 to Hassan Muhammad, son of. Naseer Khan Chak No, WB/71 Tehsil Vehari District Multan. Report of the Commissioner divulged that the Central government has allotted the evacuee property to Hassan Muhammad, predecessor of the plaintiffs, through Claim No, 1388. The Central Government has neither contested the suit, nor denied the claim of Hassan Muhammad, thus the courts below have erroneously returned the property to the Federal Government. The defendants have shown the bogus and forged National Identity Card of Hassan Muhammad on the basis of which a factitious and fabricated power of attorney was prepared and used for transfer of the property, which has rightly been set aside by the trial Court. In such a situation, both the courts below have arrived at a wrong conclusion while dismissing the suit of the plaintiffs/ petitioners.
11. For the reasons discussed above, I accept this revision petition, set aside the impugned judgments and decrees of both the learned lower courts and decree the suit of the plaintiffs/petitioners as prayed for in the plaint. The compensatory cost of Rs,10,000 imposed upon the plaintiffs/ petitioners is also declared null and void.