' AMIN-UD-DIN KHAN, Through this appeal, appellants have challenged the judgment and decree dated 18-6-2005 passed by learned Addl: District Judge, Khanewal whereby the appeal filed by the respondents-defendants was accepted and the judgment and decree dated 25-3-1990 passed by learned Civil Judge 1st Class, Khanewal decreeing the suit for declaration and permanent injunction of present appellants-plaintiffs, were set aside.
2. According to the brief facts as leading to this appeal, the plaintiffs appellants on 1-4-1986 filed a suit for declaration and permanent injunction against the defendants-respondents. Separate written statements were filed by both the defendants. Defendant No,1 contested the suit. From the divergent pleadings of the parties learned trial Court framed issues and invited the parties to produce their respective evidence. Both the parties produced oral as well as documentary evidence in support of their versions. After the closing of trial, learned trial Court vide judgment and decree dated 25-3-1990 decreed the suit. An appeal bearing R.F.A.No,44 of 1990 was filed by the defendants before this Court but due to enhancement of pecuniary jurisdiction of learned District Judge, same was transmitted to the District Court. Learned Addl: District Judge, Khanewal vide judgment and decree dated 18-6-2005 accepted the appeal of defendants and as such the judgment and decree dated 25-3-1990 passed by learned trial Court were set aside. Hence, this second appeal by the appellants-plaintiffs.
3. Against an order dated 28-1-2009 passed by this Court on C.M. No,311-C2008 the appellants filed Review Petition No,01 of 2009, which has been fixed before this Division Bench along with main appeal. As agreed by the learned counsel for the parties that arguments on main appeal be heard first and then on review petition if need be, therefore we have heard the learned counsel for the parties in this appeal.
4. Learned counsel for the appellants-plaintiffs argues that, the land in question was of Tube-Well sinking scheme which was allotted in the name of Abdul Rehman (defendant No, 1) in the year 1960 in Chak No,156/10-R Khanewal measuring 1103- Kanals 15-Marlas and when he could not fulfil the conditions of allotment of land and could not make the same cultivable by installing Tube-Wells, therefore he entered into an agreement to sell with defendant No, 2 (father of appellants-plaintiffs) on 5-11-1968 through Exh.P-3; that the lot was cancelled on 10-5-1969 by the Assistant Commissioner due to the fact that the allottee could not fulfil the conditions of allotment and as such an appeal was filed before the Commissioner, which was dismissed on 17-7-1972; that the revision was filed before the Member Board of Revenue, which also met with the same fate vide order dated 8-9-1972; that civil suit was filed in the name of allottee before the Civil Court, wherein all the orders of cancellation of allotment as well as the orders of Commissioner and Member Board of Revenue were challenged. Learned counsel states that though all the litigation was in the name of allottee but the same was pursued by defendant No,2 in whose favour there was an agreement to sell and all the expenses were incurred by the latter. Further argues that by making the land cultivable and fulfilment of conditions of allotment, defendant No,2 invested huge amount as well as labour put by the appellants-plaintiff who are the sons of defendant No,2 and due to the fact that the land was made cultivable, learned trial Court decreed the suit; that when the land was made cultivable, therefore on the demand of defendant No,2 another registered agreement to sell (Exh.P-1) was executed by the allottee in favour of his sons (the plaintiffs) and on the same day through Exh.P-2, defendant No,2 was also appointed Attorney of defendant No 1 and both these documents are registered documents; that the appellants-plaintiffs after completion of conditions got prepared sale deed (Bae Nama Shahi) in favour of allottee which was registered in his favour on 14-5-1984 and on the basis of said sale deed Mutation No,230 was sanctioned in favour of Abdul Rehman and was also incorporated in the revenue record; that defendant No,2 as Attorney transferred whole of the said land in favour of plaintiffs through Mutation No,231 dated 6-10-1984.
Leaned counsel states that two sons of defendant No,1 filed a pre-emption suit to pre-empt the sale of land in favour of plaintiffs through Mutation No,231 sanctioned on 6-10-1984 but subsequently suit was dismissed; that when defendant No,1 started to interfere into the possession and ownership rights of plaintiffs and intended to fictitiously transfer the property in favour of other persons, therefore the plaintiffs were forced to file a suit for declaration and permanent injunction; that learned trial Court has rightly reached to the conclusion while taking into consideration the complete oral as well as documentary evidence, whereas learned Addl: District Judge has ignored the valuable evidence produced by the parties and further that no reason has been given while reversing well reasoned findings recorded, by learned trial Court. Further argues that learned trial Court has competently compared the signatures and thumb impressions of defendant. No,1 with the admitted signatures and thumb impressions upon Exh.P-1 and Exh.P-2 etc. It has been further argued that Abdul Rehman intentionally did not appear as a witness and produced his Attorney; that the original sale deed was produced by the plaintiffs as it was in their possession and further that original receipts for payment of installments of impugned land as Exh.P-5 to Exh.P-8 have also been produced by the plaintiffs; that the original receipt for payment of tax at the time of registration of sale deed was also produced by the plaintiffs; that receipts of payment of Zakat with regard to suit property pertaining to Kharif 1984-85 and Rabee 1986 were produced as Exh.P-12, Exh.P-13, original challan for payment of Rs, 10197 as Exh.P-14 and original receipt for payment of Rs,5000 as Exh.P-15; that all these original documents produced by the plaintiffs in evidence speaks volume but the learned Addl: District Judge has ignored this fact also.
5. On legal side learned counsel for the appellants argues that after the conferment of proprietary rights of allotted land in accordance with section 30 of the Colonization of Government Lands (Punjab) Act, 1912 the conditions relating to tenancy vanish; that as the proprietary rights were transferred in favour of allottee, therefore bar of section 19 of the Colonization of Government Lands (Punjab) Act is not applicable after the registration of 'Bae Nama Shahi'. Further argues that learned first appellate Court has drawn wrong inferences by holding that the agreement and power of attorney were having no legal value and further that wrongly interpreted the legal position of sections 19 and 30 of the Colonization of Government Lands (Punjab) Act, 1912.
6. Learned counsel has also argued that by filing C.M. No,311-C-2008 by the respondents, in Para 1 of which it is stated that the point determinable before this Court is that whether an Attorney can transfer a property in favour of his kith and kin. States that it is an admission on the part of respondents about agreement to sell and power of attorney in favour of defendant No,2, therefore prays for acceptance of this appeal by setting aside the judgment and decree passed by learned first appellate Court and restoration of the judgment and decree of learned trial Court.
7. On the other hand, learned counsel appearing on behalf of respondents Nos.5-A to 5-D and 7 states that he adopts the arguments advanced by learned counsel for the appellants and he has no objection if the appeal is accepted.
8. The contest is mainly with respondent No,1, legal heirs of respondent No,2, respondents Nos.3 and 4, who are legal heirs of original defendant No,1, Abdul Rehman. Learned counsel appearing on behalf of these respondents argues that all the proceedings with regard to _restoration of lot after its cancellation were conducted by Abdul Rehman himself and there was no investment or there was no agreement in favour of father of appellants or in favour of appellants; that the alleged agreement to sell is in favour of three sons of defendant No,2, whereas the property has been transferred in favour of his five sons; that Exh.P-1 is forged and fictitious document; that the description of property is not correct and that the property mentioned in power of attorney as well as agreement does not tally with the suit land. Learned counsel with regard to producing the original documents i,e, sale deed of suit land by Government in favour of defendant No,1 etc by the plaintiffs in their evidence states that some, documents were in the possession of Mr. Zia Elahi, Advocate who was counsel for defendant and he dishonestly handed over said documents to the plaintiffs. With regard to suit for preemption learned counsel states that it was a fictitious suit and was not filed by the sons of defendant; that at the time of filing of suit in hand, possession of suit land was forcibly taken by the plaintiffs, prior to that defendant No,1 was in possession of suit land; that according to Register Haqdaran Zameen for the year 1977-78 which is Exh.P-24 names of five sons of defendant No,2 have been recorded with the original owner Abdul Rehman in cultivating possession of suit land; that if the agreement was with defendant No,2, how the names of these five sons are as cultivators. Further while referring Exh.P-25, Register Haqdaran Zameen for the year 1981 states that in that Jamabandi also five sons of defendant No,2 are recorded as in cultivating possession along with Abdul Rehman, defendant No,1. Learned counsel states that the findings recorded by the first appellate Court are in accordance with law, therefore prays for dismissal of the appeal.
9. In rebuttal learned counsel for the appellants argues that with regard to section 19 of the Colonization of Government Lands (Punjab) Act, 1912 at this stage the respondents cannot be allowed to agitate this point. So far as the matter of description of property mentioned in the suit as well as in the agreement and power of attorney is concerned, learned counsel argues that due to consolidation proceedings in the Mourza some Khasra Numbers were changed, therefore the plaintiffs have rightly filed the suit with regard to the suit property, as whole of the lot was agreed to sell in favour of plaintiffs and defendant No,2 rightly transferred the same under the power of attorney and further that this point has also been raised by the respondents before this Court first time, which is not tenable under the law.
10. We have heard the learned counsel for the parties at full length and also gone through the voluminous record with their able assistance.
11. The history of litigation is very long and documentary evidence also relates to a very long period.
There is registered agreement to sell and power of attorney, Exh.P-1 and Exh.P-2. When questioned to the learned counsel for the respondents that whether Abdul Rehman, the original defendant No,1, has ever challenged these documents in any suit. The response of learned counsel is that he has not challenged these documents through any, suit. Learned counsel argues that as a setoff in suit in hand the same have been challenged. We are afraid that it is not a case of set-off because under Order VIII, Rule 6 of the C.P.C. a set-off can be with regard to claim of money by the defendant. We are astonished to hear the argument of learned counsel for the respondents that in a suit for declaration filed by the plaintiffs for declaration of title with regard to immovable property, the registered documents on behalf of defendant can be challenged as a set-off, we are unable to understand that how this argument is tenable. We have not heard or read this interpretation of set-off anywhere having experience as student of law.
12. The facts are that there is a registered agreement to sell (Exh.P-1) in favour of plaintiffs Nos.l to 3 of the property measuring 148 Acres 03-Kanals 08-Marlas situated in Chak No,156/10-R Khanewal of Tube-Well sinking scheme allotted in favour of Abdul Rehman (defendant No,1). The agreement to sell registered at Sr. No,1567 dated 29-1-1983 in which whole of the history of litigation as well as writing of previous as well as this agreement to sell is mentioned and further that on the same day through registered power of attorney No,160/4 dated 29-1-1983 (Exh.P-2) Abdul Rehman appointed Lt. Col. Mehmood Nawaz Khan Durrani his Attorney, who is father of the plaintiffs, to transfer the land in their favour. This power of attorney is irrevocable as well as in this power of attorney specifically there is mention of agreement to sell. On the basis of power of attorney defendant No,2 transferred the suit property in favour of plaintiffs and mutation No,231 was duly sanctioned on 6- 10-1984 and incorporated in the revenue record.
13. As noted above, defendant No,1 has never challenged these documents in any forum through any suit or any other proceedings. The argument of learned counsel for the respondents that the written statement filed in suit in hand be taken as set off, we are of the view that a set-off can be claimed under Order VIII, Rule 6 of the C.P.C. With regard to recovery of money only. In this case the respondent-defendant cannot claim that the registered documents have been challenged through a set-off as we have earlier observed that this novel interpretation of set-off has been heard first time today in our carrier as student of law.
14. The further facts are that the Mutation No,231 of sale of suit property in favour of plaintiffs was sanctioned and same was incorporated in the revenue record. The record shows that when defendant No,1 filed an appeal on 1-3-1986 before the Assistant Commissioner against the sanction of Mutation No,231, copy of grounds of appeal is available as Exh.D-6, which necessitated the plaintiffs to file suit in hand on 1-4-1986. The appeal was ultimately dismissed by the Assistant Commissioner on 20-9-1986, copy of which is available as Exh.D-7, on the ground that as the civil suit is pending between the parties, therefore he cannot determine the mutation. The record further shows that against the dismissal of appeal Abdul Rehman (defendant No,1) preferred revision petition before the Commissioner, which was adjourned sine die on the statement of counsel for revision petitioner i,e, Abdul Rehman on 16-2-1988.
15. The plaintiffs have filed a suit for declaration that they be declared owner in possession of suit property, as according to the record long before filing of suit a Mutation No,231 was sanctioned in their favour on 6-10-1984 and they were recorded in the revenue record owners of suit land. By scrutiny of the facts and law we have seen that the plaintiffs have not filed the suit for declaration of the agreement to sell, power of attorney or mutation in their favour as valid and genuine documents. Though these documents have been referred in their pleadings and also have been produced in the evidence but their claim is not for declaring these documents as valid and genuine documents. We are also astonished that why the suit for declaration has been filed if there was any interruption in their ownership by the defendant, the simple suit for permanent injunction was sufficient when admittedly the defendant has never challenged registered agreement to sell by him in favour of plaintiffs Nos.1 to 3 and appointment of Attorney through Exh.P-2, registered power of attorney to defendant No,2 for transferring the property.
16. So far as the filing of appeal by defendant No,1 wherein he has challenged the attestation of mutation is concerned, we are of the view that it was not in the ambit of Assistant Commissioner to adjudicate upon the registered agreement to sell or registered power of attorney. Even we have noticed .That in the grounds of appeal which are available as Exh.D-6 it is pleaded that Mehmood Nawaz Khan Durrani, who is respondent No,6 in that appeal, fraudulently showing him Attorney has transferred the property through oral mutation in favour of respondents Nos.1 to 5 of that appeal.
Neither the agreement to sell nor power of attorney have been challenged in the said appeal nor the same could have been challenged in that appeal, therefore it remains admitted fact that agreement to sell (Exh.P-1) and power of attorney (Exh.P-2) have never been challenged before any forum and in existence of registered agreement to sell and registered power of attorney, Assistant Commissioner was not competent to cancel the mutation, therefore he dismissed the appeal on the ground that civil suit i,e, suit in hand was pending before the Civil Court at that time.
17. So far as the legal objection of bar under section 19 of the Colonization of Government Lands (Punjab) Act, 1912 is concerned, there is no issue in this regard , as first time it has been raised before this Court and further that law is clear now that bar of above said Section is not available to the agreement to sell. Light can be taken from the judgment of august Supreme Court reported as "PLD 2000 Supreme Court 792 (Daulat All through Legal heirs and 2 others v. Ahmad through Legal heirs and 2 others)". With regard to violation of conditions of sale deed we are of the view that section 30 of the Colonization of Government Lands (Punjab) Act, 1912 is clear. After the completion of sale and 'Bae Nama Shahi' registered in favour of allottee, the conditions of tenancy vanish and he becomes the owner. Even otherwise, one cannot take benefit of his own fault. If defendant No,1 has sold out the land in violation of the conditions of sale deed (Bae Nama Shahi), he cannot press and use the conditions to cancel the sale by saying that he has violated the conditions, as no one can be allowed to take the benefit of his own fault.
18. Now the question of variation of land in the agreement to sell, in power of attorney as well as of the suit land is concerned, first of all as we have observed that defendant No,1 has never challenged this power of attorney and agreement to sell and further in his written statement he has totally denied from all the agreements to sell and this power of attorney by him in favour of defendant No,2, therefore he cannot agitate this point now. The explanation of learned counsel for the appellants that due to process of consolidation proceedings some Killa Numbers were changed, therefore the land for which there was agreement and finally transferred through sale deed (Bae Nama Shahi) in favour of defendant No,1 and subsequently transferred in favour of plaintiffs, has no defect. In paragraph No,1 of the plaint it has been pleaded that suit land was allotted to defendant No,1 in Kharif 1960 under the Tube-Well sinking scheme, in written statement Para No,1 has been admitted, therefore raising this objection now is not sustainable under the law.
The explanation advanced by learned counsel for the appellants is plausible. Further we have observed that in power of attorney (Exh.P-2) there is specifie mention that it is irrevocable power of attorney as the owner has agreed to sell the same in favour of sons of Attorney and there is no interest of Principal left in the suit property, therefore no further permission was required from the Principal for transferring the property in favour of his sons by the Attorney. The original documents were produced by the plaintiffs i,e, receipts as well as original sale deed and further we have seen that Exh.P-22 is an order passed by the Civil Court dated 25-6-1973 whereby a stay was confirmed in favour of Abdul Rehman in the case titled "Abdul Rehman v. Province of Punjab etc" previously filed suit, certified copy of this order was procured on 22-11-1973, same has been produced by the plaintiffs as Exh.P-22.
19. The defendant's case is that all the documents are forged and fictitious and the plaintiffs have absolutely no concern with the suit property and they have taken the possession of same at the time of filing of suit, whereas we have noted learned counsel for the respondents argued that in the Jamabandies for the year 1977-78 (Exh.P-24), 1981-82 (Exh.P-25) the names of all the plaintiffs are mentioned along with Abdul Rehman in the column of cultivation. Learned counsel for the respondents has though referred these documents to show that why the names of five plaintiffs were mentioned when there was agreement in favour of father of the plaintiffs at that time. This argument may not give benefit to the respondents but it is admitted that at least names of plaintiffs as cultivators in the year 1977-78 are available with regard to the suit land in the revenue record since the year 1977-78.
20. The explanation by defendant No,1 with regard to receipt of Rs,8000 through cheque on 6-11- 1968 at the time of agreement to sell (Exh.P -3) is also unbelievable.
21. So far as the point that when agreement to sell was in favour of three plaintiffs, why the land was transferred in favour of five plaintiffs, is concerned, it is common practice that it is the sweet will of proposed vendee to join any other person with him in the final sale transaction, therefore this objection is also of technical nature and not helpful for the respondents. In these circumstances, it is crystal clear that the plaintiffs have not filed their suit to declare these documents as valid and genuine one. They have filed the suit as a shield against Abdul Rehman from his interference in their possession and ownership rights. Abdul Rehman opted not to file any proceedings or suit to challenge the agreement to sell (Exh.P-1) and power of attorney (Exh.P-2), even he opted not to appear as his own witness. Even otherwise the findings of learned trial Court are exhaustive and in accordance with law with regard to the genuineness of these documents. The arguments of learned counsel for the appellants are sustainable that learned Addl: District Judge has not given a single reason that why he is setting aside the factual findings recorded by learned trial Court. We have noticed that the findings recorded by learned trial Court with regard to genuineness of documents Exh.P-1 and Exh.P-2 are based upon the oral as well as documentary evidence produced by the plaintiffs. Even otherwise we have noticed that there are registered documents which have presumptions of correctness under Articles 85, 92 and 95 of the Qanun-e-Shahadat Order, 1984 and the suit is not for declaring these documents as genuine or correct but in series of facts these documents were referred and the same were proved by the plaintiffs and when the same have never been challenged by Abdul Rehman (executor of these documents) before any forum, there was no need to adjudicate upon said documents in detail when there is also no rebuttal available on the file. In this view of the matter, the findings recorded by the learned first appellate Court are not only against the evidence available on the file but also the Court has travelled beyond its jurisdiction to go into the questions which were not in issue before it, therefore the findings recorded by learned first appellate Court while reversing the findings of trial Court on issues Nos.9 to 13 are not sustainable under the law. The findings on issues Nos.3 to 5, 7 and 8 have also been recorded by the Court against the law.
22. In the light of what has been discussed above, we accept this appeal with costs throughout while setting aside the impugned judgment and decree dated 18-6-2005 passed by learned Addl: District Judge, Khanewal and restore to that of learned trial Court.