MOHAMMAD AZAM KHAN, CJ. --- Through the captioned appeal, by leave of the Court, the appellant has called in question the judgment and decree of the High Court dated 13th June, 2012, whereby while accepting appeal No. 164 of 2010 filed by Muhammad Latif, respondent No. 1 herein, the compromise decree passed by the District Judge, Mirpur on 25th January, 2010 has been amended to the extent of land measuring 1 kanal, 5 marlas, 41/2 sarsai.
2. Necessary facts for the disposal of instant appeal are that the appellant herein, Noor Alam, filed a suit for declaration and cancellation of gift-deed dated 4th May, 2000, against Muhammad Sharif and Muhammad Rasheed, his real sons, on 15th February, 2003 in the Court of Civil Judge, Mirpur on the ground that he is an old man. Defendant No. 1 brought him to Mirpur on the pretext that he shall execute a power-of-attorney for taking care of the land and houses. Defendant No. 1 with the connivance of defendant No. 2 instead of executing power-of-attorney got registered a gift-deed in respect of suit land. Muhammad Latif, respondent No. 1 herein, had already filed a suit for cancellation of said gift-deed on 16th January, 2001 against the appellant herein and respondents No. 2 and 3 herein on the ground that he has purchased the land from his father and he has constructed houses on the said land. Both the suits were consolidated. All the three defendants filed separate written statements. Muhammad Rasheed refuted the claim of plaintiff, Noor Alam, and requested for dismissal of same, while Muhammad Sharif, defendant, claimed in the written statement that Muhammad Latif, defendant No. 3, has already constructed houses in the land. Without consequential relief of possession, the suit is not maintainable. He has gifted land measuring 1 kanal, 5 marlas, comprising survey Nos. 1143 and 1144 to Muhammad Latif verbally and now he has executed a power-of-attorney. After necessary proceedings the Trial Court dismissed both the suits on 4th May, 2005. Noor Alam, appellant herein, filed an appeal before the District Judge, Mirpur, while Muhammad Latif failed to file any appeal. The appeal was dismissed by the District Judge on 30th December, 2005. Noor Alam filed an appeal in the High Court and alleged that the parties have entered into a compromise and the statements of respondents for acceptance of appeal were recorded on 15th November, 2005. The appeal should have been accepted on the ground of the terms of compromise. The High Court accepted the appeal and remanded the case to District Judge for decision in the light of the statement recorded in flurence of compromise. After hearing the {{PAGE BLUR}} accepted and the suit filed by Noo _ result of compromise on 13th January, 2010 Latif challenged the said compromise decree by way of appeal in the High Court on the ground that the suit was dismissed by the Trial Court on 4th May, 2005 and the appeal was filed in the Court of District Judge, Mirpur on 19th May, 2005. Muhammad Sharif, respondent, has executed a power-of-attorney in favour of Khuram Latif. Khuram Latif, while acting on behalf of Muhammad Sharif, executed a gift-deed in favour of Muhammad Latif on 19th May 2005, the day on which the appeal in the Court of District Judge was filed. The learned Chief Justice in the High Court accepted the appeal on the ground that on 15th November, 2005 when the application for compromise on behalf of Muhammad Sharif was filed, he was not owner of the land. The land has already been transferred to Muhammad Latif. Hence this appeal by way of leave of the Court.
3. Mr. Muhammad Akram Mughal, the learned counsel for the appellant, argued that the judgment of the High Court is against the law and not maintainable on the ground that Khuram Latif, who was attorney of Muhammad Sharif, executed a gift-deed in favour of his father, Muhammad Latif. It is settled law that an attorney cannot transfer a property to his on kith and kin without permission of the principal. He referred to a case reported as Maqsood Ahmad & another v. Muhammad Razzaque & 9 others [2009 SCR 38], wherein it was observed that Muhammad Razzaq, after obtaining prior permission of attorney transferred the land to his son Arshad Hussain while it is settled law that attorney before transfer of land to his on kith and kin has to obtain permission from the principal.
4. The learned counsel further argued that the District Judge passed a compromise decree in favour of appellant herein. Compromise decree cannot be challenged by way of appeal. He requested for acceptance of appeal. In support of his assertions the learned counsel relied upon the following case-law:---
(i) Sree Nalini Kanta Sen v. Babu Monaranjan Prasad Barman [PLD 1967 Dacca 155] Mst. Amna Bibi v. Muhammad Iqbal [1990 CLC 1492] (i.e) Sindh Road Transport Corporation v. Major (Rtd.) S.M. All Zaheer Khan [1991 SCM R 425]
(iv) Umar Bakhsh and 2 others v. Azim Khan and 12 others [1993 SCM R 374]
(v) Shaukat Habib and 5 others v. Raja Muhammad Bashir and another [2004 YLR 1775] In the case reported as Sree Nalini Kanta Sen v. Babu Monaranjan Prasad Barman [PLD 1967 Dacca 155], it was observed that when the Court is satisfied that the compromise is lawful it is mandatory to record the terms of compromise and pass decree in accordance therewith.
In the case reported as Sindh Road Transport Corporation v. Major (Rtd.) S.M. Ali Zaheer Khan [1991 SCM R 425], the suit was for partition of plot and delivery of separate possession of said portion of plot. The parties moved an application for compromise which contained a fresh agreement-to-sell of the immovable property. The petition for leave to appeal was converted into appeal and the same was allowed with the result that the order passed by the High Court was set aside. This case is not relevant to the case in hand.
In the case reported as Umar Bakhsh and 2 others v. Azim Khan and 12 others [1993 SCM R 374], it was observed that a compromise will complete only when it is accepted by the Court and orders are passed by the Court as desired by the parties. The Court would consider the document to be compromise when both the parties signing it agree and reiterate the contents before the Court. If one party to the document resiles from it before the Court then the document can be called anything but an agreement or a compromise.
In the case reported as Mst. Amna Bibi v. Muhammad Iqbal [1990 CLC 1492], it was observed that compromise decree is neither appealable nor revisable.
In the case reported as Shaukat Habib and 5 others v. Raja Muhammad Bashir and another [2004 YLR 1775], it was observed that while passing a compromise decree the Court would not deal with the merits of the case but would decide the same on the basis of compromise.
5. While controverting the arguments, Ch. Yasir Mehmood, the learned counsel for the respondents, argued that the judgment of the High Court is perfectly legal. The compromise was effected between Muhammad Rasheed and Noor Alam. Muhammad Latif had not entered into compromise therefore he is entitled to challenge the compromise decree. The learned counsel submitted that the appeal in the Court of District Judge was filed on 19th May, 2005 by Noor Alam against Muhammad Sharif, Muhammad Rasheed and Muhammad Latif from the judgment and decree of Civil Judge, Mirpur dated 4th May, 2005. On the same day, i.e., 19th May, 2005, Khurram Latif, attorney of Muhammad Sharif transferred the land in dispute in the name of Muhammad Latif, respondent No. 1. After registration of gift-deed, Muhammad Sharif was no more owner of land; on 15th November, 2005, how he could enter into a compromise in respect of land which was not in his ownership. The learned counsel submitted that this was on record of District Judge that Muhammad Sharif has transferred the land by way of gift to Muhammad Latif and Noor Alam has challenged the same by way of a separate suit. A compromise decree could not be passed by the Court to the extent of share of Muhammad Latif. The learned counsel further submitted that the application for compromise was moved by Muhammad Rasheed, respondent, on behalf of Muhammad Sharif as his attorney. Muhammad Rasheed was not attorney of Muhammad Sharif.
He has no power to enter into compromise on behalf of Muhammad Sharif, therefore, the compromise decree was a nullity to the extent of Muhammad Sharif and it has correctly been cancelled by the High Court. The learned counsel also argued that the argument of the counsel for the appellant that an attorney cannot transfer a property to his on kith and kin without permission of the principal is not available to him because firstly Muhammad Sharif has not challenged the same; he has impliedly accepted it and secondly by filing concise statement in this Court Muhammad Sharif has accepted the transfer of land as valid through gift-deed. It has been transferred with his consent.
6. We have heard the learned counsel for the parties and perused the record. The record reveals that the appellant and respondent are father and son. Noor Alam made a gift of his land in favour of proforma-respondent Muhammad Sharif and Muhammad Rasheed. Firstly Muhammad Latif challenged the same that he purchased the land measuring 1 kanal, 5 marlas, from his father and has constructed the house. Noor Alam also later of challenged the said gift-deed by way of a civil suit. Both the suits were consolidated. Through the written statement filed in the suit by Muhammad Latif, Noor Alam, Muhammad Sharif and Muhammad Rasheed, defended the and in the written statement filed in the case titled Noor Alam v. Muhammad Sharif & others, Muhammad Sharif fled written statement by taking position that he has transferred the land to the extent of his share measuring 1 kanal, 5 marlas, to his brother Muhammad Latif, who has already constructed house in it and without consequential prayer for possession, the suit is not maintainable. Both the suits were dismissed. The appeal was filed by Noor Alam in the Court of District Judge. It appears from the record that on 19th May, 2005, Muhammad Sharif transferred his share measuring 1 kanal, 5 marlas, 41/2 sarsai, in favour of Muhammad Latif through attorney Khuram Latif by way of gift- deed. Later on, on 15th November, 2005, during the pendency of appeal, Muhammad Rasheed moved an application for compromise on his on behalf and on behalf of Muhammad Sharif in the capacity of his attorney that they have accepted the claim of the appellant, the appeal be accepted. We have perused the power-of-attorney allegedly executed by Muhammad Sharif in favour of Muhammad Rasheed, on 2nd July, 2005, who was also respondent in the appeal. For correct appreciation, we deem it appropriate to reproduce the power-of-attorney which is as under:--- {{URDU TEXT}} (LAU j1.5.1.4)"
5 ,JuS1 Ls-11-14 u.;.1..)1Ji.,* a 81302-2958163-3i:1...i 4=1_).. 11 Ju 2 a.11.1.5 ,168/162)yLia_ms c 718/637 ,(:).41145.)4.43 j 4iDA 1144 168/162)+4 s 720/638.)+4.14 1143 c-1--1a3 ,..,545-1 m-LAJAu:.-4. t"J d1"335 cs4 CJ" J.J.1 cri JS ,r4211.. Ati ..)10 1.):31:1 81302-J4-4 (1#'4'5 .014 CP' t'lL'-)-0 1.-) is e-mi bi f'S .1-11Z _)S _)_)14 f-6-4 JS 2683245-1 uyL J-04 e-JIA c.r4 -g-JS '2-% ,, ':-."1.3.'._)-1 ia.1 4.14.4 (11.4:1 Lf.S LILA .4_,A 4.tuiS j,}4 col-1,3 4)144 csib (t J 4.".11.5k>1 csS -)11 L5.1)4 J441 14 4.,31iL cs:44J-1 LeAS j".)44 J4-59 a31-5-1 J4'..1-) LW LA". LeS '5"1-1 LC- -)4L'a .)? Li4A .11" "ALI L.e1.) j.Cal.& JAI) J.S 1' . 6.Y.Y 3+'-'":11.9-14 c:)S1-" Jr A perusal of aforesaid power-of-attorney reveals that Muhammad Sharif appointed Muhammad Rasheed as his attorney for filing suit for cancellation of gift-deed executed by Khuram Latif in favour of Muhammad Latif. He has not appointed him attorney in respect of appeal titled Noor Alam v. Muhammad Sharif and others. Muhammad Rasheed had no authority to act on behalf of Muhammad Sharif in the referred appeal pending in the Court of District Judge Mirpur. It is settled law that a power-of-attorney shall be strictly construed. An attorney can exercise only such powers which are conferred upon him in the said power-of-attorney. The agent may neither go beyond nor deviate from the terms of instrument. In a case reported as Middle East Contractors, Mirpur v.
Project Director, Resettlement Organization Mangla Dam Project, WAPDA Mirpur and, 2 others [PLD 1978 SC (AJ&K) 143], it was observed as under-- "A power-of-attorney under Order III, rule 2, Civil Procedure Code should be construed strictly. It gives only such authority as it confers expressly or by necessary implication and it cannot empower beyond what it really conveys. One of the most important rules for the construction of power-of-attorney is that regard must be had to the recitals which, as showing the scope and object of the power, will control all general terms in the operative part of the instrument. Where authority is given to do a particular act, followed or preceded by the general words, general words are restricted to what is necessary for the proper performance of the particular act and general words in no way confer general powers but are limited to the purpose for which the authority is given and are construed as enlarging the special powers only when necessary for the purpose. It, therefore, follows that where special powers are followed by general words and vice versa, the general words are to be construed as limited to what is necessary for the proper exercise of the special powers."
Similarly in the case reported as Gul Taj Begum v. Lal Hussain & another [PLD 1980 SC (AJ&K) 60] it was observed as under:--- ".... A power-of-attorney should be construed strictly and should be interpreted to give only such authority as it confers expressly or by necessary implication. The important rule for the construction of such a document is that regard must be had to the recitals which as showing the object of the power would control all general terms in operative part of instrument."
In the case reported as Muhammad Mehrban v. Sadrud Din & another [1995 SCR 274], it was observed as under:--- "11. The general rule of construction is that powers of attorney must be constructed strictly as giving only such authority as those confer expressly or by necessary implication.
12. In Jiwibai v. Ramkuwar Shriaiwas Muraka Agarwala' (AIR 1947 Nag. 17), it was observed as follows:--- "A power-of-attorney is subjected to strict interpretation because it delegates powers which are to be interpreted in strict terms and in such a way, as would be necessary to carry into effect the authority that is expressly given. The power-of-attorney is not open to that liberal interpretation which is given to less formal instruments such as ordinary letters or instructions in commercial transaction."
13. In case reported as 'Muhammad Afsar Khan and another v. Khadim Hussain and others [PLD 1978 SC (AJ&K) 143] it was opined that:--- "A power-of-attorney under Order III, Rule 2, Civil Procedure Code should be construed strictly. It gives only such authority as it confers expressly or by necessary implication and it cannot empower beyond what it really conveys. One of the most important rules for the construction of power-of-attorney is that regard must be had to the recitals which, as showing the scope and object of the power, will control all general terms in the operative part of the instrument. Where authority is given to do a particular act, followed or preceded by the general words, general words are restricted to what is necessary for the proper performance of the particular act and general words in no way cover general powers but are limited to the purpose for which the authority is given and are constructed as enlarging the special powers only when necessary for the purpose. It, therefore, follows that where special powers are followed by general words and vice versa, the general words are to be construed as limited to what is necessary for the proper exercise of the special powers."
7. In the instant case Muhammad Rasheed was not empowered by Muhammad Sharif to act on his behalf in the referred appeal in the Court of District Judge. He had no authority to enter into compromise on behalf of Muhammad Sharif for acceptance of his appeal. His act of compromising the matter on behalf of Muhammad Sharif has no legal value, therefore, the compromise decree passed by the District Judge, Mirpur to the extent of the share Of Muhammad Sharif was a nullity and not maintainable.
8. The District Judge while passing the compromise decree has observed in the judgment that it is not proved from the record that a gift-deed has been executed in favour of Muhammad Latif. The order dated 25th November, 2005 on the said file reveals that the counsel for respondent No. 3 stated that a gift-deed of the land was executed on 19th May, 2005. The appellant has challenged the said order by way of another suit. It is a sufficient proof that it was already on record of Appellate Court that a gift-deed of the land has been executed which has been challenged by the appellant and the counsel for Muhammad Latif argued that after obtaining gift-deed, Muhammad Sharif is no more the owner of land, therefore, the compromise decree cannot be passed. The learned District Judge failed to consider the same. When a new situation has emerged, one of the defendant-respondents has alienated the land during the pendency of suit, he no more remains owner of property. After alienating the same, he cannot compromise the matter in favour of appellant and the interest of donee. The compromise decree on this score is also not maintainable.
9. We have also considered the argument of the counsel for the appellant that a compromise decree cannot be challenged by way of appeal. Rule of law laid down in some of the authorities referred to by the counsel for the appellant is correct that if a lawful and valid compromise has been entered between the parties and the parties state the same before the Court, then it is enjoined upon the Court to pass order in the light of the compromise. A lawful order passed in the result of compromise is not open to appeal or revision, but in the instant case Muhammad Rasheed moved an application for compromise on his behalf and on behalf of Muhammad Sharif as his attorney. He was not attorney of Muhammad Sharif. He was appointed attorney for different purpose which has no nexus with the appeal wherein he moved an application for compromise. It was not a legal compromise on behalf of Muhammad Sharif. Furthermore Muhammad Latif, who was a party in the line of proforma respondents in the appeal specifically objected to the compromise that Muhammad Sharif has transferred the land in his name, therefore after the gift deed dated 19.5.2005, Muhammad Sharif is not owner of land. He had no authority to compromise in respect of land which is not in his ownership. It is settled law that a person who is not a party in a compromise, has not accepted the same and the compromise is against his interests, can validly challenge the compromise decree. Muhammad Latif has not accepted the compromise, which is against his interest. Therefore his appeal was competent before the High Court.
10. We have considered the argument of the learned counsel for the appellant that an attorney cannot transfer a land in favour of his on kith and kin without permission of principal. The proposition is legally correct. Muhammad Sharif, while filing concise statement has defended the judgment of the High Court and admitted the gift-deed as valid. Para 2 of the concise statement is reproduced below:--- "2. That the impugned judgment passed by the honourable High Court is quite in accordance with law and rules holding the field because the disputed gift deed was quite in accordance with law.
Anyhow, the compromise made by Mr. Rasheed in the Trial Court was based on mala fide and collusion and is liable to be set at naught."
A perusal of above-referred para leaves no doubt that the gift-deed was executed with permission/consent of Muhammad Sharif. He has disowned the compromise entered on his behalf by Muhammad Rasheed.
The result of above discussion is that finding no force in this appeal, it is hereby dismissed with no order as to costs.