Ali Akbar Qureshi, J:- This civil revision is directed against the judgments and decrees dated 14.02.2001 and 13.12.1993, by which the learned courts below dismissed the suit for declaration with consequential relief of possession, filed by the predecessor of the petitioners.
2. Shortly, the facts for the disposal of this civil revision are, that the predecessor of the petitioners instituted a suit for declaration with consequential relief of possession, in the court of learned Senior Civil Judge, Bahawalnagar, alleging therein, that he was allotted a land measuring 100 Kanal under Grow More Food Scheme in Chak No.272/HR Tehsil Fortabbas District Bahawalnagar; at one point of time, the land allotted to the petitioners came within the municipal limits of Fort Abbas, a prohibited zone and because of this, the land was confiscated; the predecessor of the petitioners, on the asking of two persons, namely, Mehar Nabi Busksh and Niamat Ali, given a general power of attorney to one Barkat Ali, who was an employee of Education Department, to manage the affairs of the petitioners, pertaining to the land which has been confiscated; said Barkat Ali, got the thumb impression of the petitioners on blank paper and assured him, that he will get the land in exchange of the land confiscated by the government; Barkat Ali, alleged general attorney, succeeded to get the alternate land but without the knowledge of the petitioner, alienated the suit land in favour of his son, being the general attorney of the petitioners, by playing fraud and misrepresentation; the alleged power of attorney was registered on 26.10.1973; Barkat Ali obtained sanction from the authority to alienate the land under Section 19 of the Colonization of the Government Lands Act, on 11.03.1978, and then transferred the same through registered sale deed on 22.03.1978, in favour of his son; lastly prayed, that the sanction obtained from the District Collector and execution of the sale deed etc. may be declared illegal and unlawful and possession of the suit land may also be given to the petitioners.
3. The suit was contested on legal as well as factual side. Mainly, it was stated, that the power of attorney was executed by the predecessor of the petitioners in favour of Barkat Ali respondent and subsequently, the same was sold in favour of son of Barkat Ali, with the consent of the predecessor of the petitioners. The learned trial court framed necessary issues on the divergent pleadings of the parties, recorded respective evidence and finally dismissed the suit.
4. Being dissatisfied of the judgment and decree dated 13.12.1993, the petitioners filed an appeal which too was dismissed, hence, this civil revision.
5. Learned counsel for the petitioners, at the very outset of the arguments, has pointed out a glaring illegality which is floating on the surface of the record and not denied by the other side, that the alleged agreement to sell dated 10.12.1977, executed by Jiwan, predecessor of the petitioners in favour of Muhammad Riaz son of Barkat Ali (the alleged attorney of Jiwan), is without signature of the vendee namely, Muhammad Riaz and this illegality is not sustainable being violative of the law declared by the Hon'ble Supreme Court of Pakistan in esteemed judgments cited as Mst. Gulshan Hamid v. Kh. Abdul Rehman and others (2010 SCM R 334), Jamil Akhtar and others v. Las Baba and others (PLD 2003 Supreme Court 494), Farzand Ali v. Khuda Bakhsh and others (PLD 2015 Supreme Court 187).
6. Learned counsel further argued, that although the predecessor of the respondent No.2, Barkat Ali was appointed general attorney simply to administrate and look after the matters pertaining to the suit land, which was confiscated by the government, but the predecessor of the respondent No.2, without the consent of the predecessor of the petitioners, transferred the suit land by way of a registered sale deed in favour of respondent No.2, who is the real son of Barkat Ali. Lastly, submitted, that this type of the transaction is hardly sustainable in law.
7. Conversely, learned counsel for the respondents opposed the contentions raised by learned counsel for the petitioners.
8. Arguments have been heard and record perused.
9. In order to attend the arguments advanced by learned counsel for the petitioners, firstly, the document namely, agreement to sell dated 10.12.1977, was examined with the assistance of learned counsel for the parties. From the careful perusal and examination of the agreement to sell dated 10.12.1977, allegedly executed by Jiwan, predecessor in interest of the petitioners, in favour of respondent No.2, it appears, that the agreement to sell dated 10.12.1977, has not been signed by the vendee i.e. respondent No.2, therefore, in view of the dictum laid down by Hon'ble Supreme Court of Pakistan in judgment supra, this type of the document has no legal sanctity or validity in the eye of law. Even otherwise, if the contract is reduced into writing, it should not only be signed by the vendor but also by the vendee to complete the imperative element of offer and acceptance, so that it should reflect and establish their "consensus ad idem". This proposition has been dealt with by the Hon'ble Supreme Court of Pakistan in a recent esteemed judgment titled Farzand Ali v.
Khuda Bakhsh and others (PLD 2015 Supreme Court 187), the relevant portion is reproduced as under: "9. In the above context, the first and the foremost aspect of the case is, if the agreement to sell of the appellants was valid because if it is not valid the question of its enforcement through the process of law and the exercise of discretion does not arise. It is an undisputed fact that appellants' agreement has not been signed by them. And an agreement to sell immovable property is not a "deed poll", unlike e.g. a power of attorney which is only executed by the principal and the agent's execution is neither required nor expedient. Rather in law such an agreement (of immovable property) is a contract (note: may be executory in nature) and the first, and the foremost requisite of a contract (agreement) is that the parties should have reached agreement, which unmistakably means, that an agreement is founded upon offer and acceptance. Thus for the purposes of a valid contract (agreement) there should be the meeting of minds of the contracting parties (who are competent in law to contract). And where a contract is reduced into writing, not only should it be founded upon the imperative elements of offer and acceptance, but its proof is also dependent upon the execution of the contract by both the contracting parties i.e. by signing or affixing their thumb impression. So that it should reflect and establish their "consensus ad ident", which obviously is the inherent and basic element of the meeting of the minds, which connotes the mutuality of ascent, and reflects and proves the intention of the parties thereto. In particular it refers to the situation where there is a common understanding of the parties in the formation of the contract in the absence of which there is neither a concept nor the possibility of a valid contract.
But in this case this is conspicuously lacking by virtue of non-execution (non-signing) of the agreement by the appellants, therefore, in law and fact is no contract (agreement). The argument that the agreement to sell in favour of the appellants has been admitted by the vendors and, therefore, is valid and the non-signing has lost its efficacy, suffice it to say that despite the above, the respondent has joined issue with the appellants vis--vis the validity and valid execution of the agreement, therefore, the appellants cannot rely upon and take advantage of any admission made by the vendors, because of the law, that an admission made by a co-defendant is not binding on the other even if made in the written statement."
10. As regard the power of attorney, the Hon'ble Supreme Court of Pakistan has observed in the judgment supra (PLD 2003 Supreme Court 494), that the appointment of a general attorney is in fact a matter of routine and it does not indicate by itself, of a sale or absolute sale on behalf of the principal and particularly, in favour of his son and in these circumstances, it was imperative upon the predecessor of the respondent No.2, to take special permission from the principal while transferring principal's property in the name of his closest relative i.e. his son.
11. Learned counsel for the respondent No.2 although argued the case and submitted, that the power of attorney was validly executed by the predecessor of the petitioners and the attorney i.e. predecessor of the respondent No.2 strictly acted in terms of the power of attorney, therefore, there was no need to take the permission from the principal i.e. predecessor of the petitioners.
12. I am afraid, that the argument advanced by learned counsel for the respondent No.2 has any force or substance in the presence of the principle laid down by the Hon'ble Supreme Court of Pakistan in judgment supra.
Further it has already been ruled by the Hon'ble Supreme Court of Pakistan, that if the agreement to sell is legally invalid, as in this case, the question of its enforcement through the process of law and the exercise of discretion does not arise. It is undisputed fact and even not denied by the learned counsel for the respondents, that the agreement to sell dated 10.12.1977, has not been signed by the vendee i.e. respondent No.2, therefore, it was not a "deed poll" as observed by the Hon'ble Supreme Court of Pakistan, unlike a power of attorney, which is only executed by the principal and not singed by the attorney/agent.
13. In view of the above, it can safely be observed, that the agreement to sell allegedly executed by the predecessor of the respondent No.2 in favour of respondent No.2 is an invalid document/agreement and cannot be enforced through the process of law as observed by the Hon'ble Supreme Court of Pakistan. Therefore, all the subsequent transactions, on the basis of said agreement, are declared illegal, unlawful, without lawful authority and void abinitio.
14. It has also been argued by the learned counsel for the petitioners, that there is no valid and solid proof on the record, to show the payment of the consideration of the suit land to the predecessor of the petitioners.
15. For this purpose, the statement of respondent No.2 as D.W.2 may be referred. The respondent No.2 (D.W.2), while appearing in the witness box, has stated in cross-examination, as under: {{URDU TEXT}}
16. Although both the learned courts below have concurrently concluded, that the petitioners could not prove their case and the sale was validly executed in favour of respondent No.2 and normally the concurrent findings are not interfered or disturbed but where the serious illegality and irregularity has been committed by the learned courts below, the Hon'ble Supreme Court of Pakistan has observed in Nasir Abbas v. manzoor Haider Shah (PLD 1989 Supreme Court 568), that this type of the concurrent findings can be interfered. The relevant portion is reproduced as under: "11. It is also settled that if the lower Court, misreads the evidence on record and fails to take notice of a vital fact appearing therein, comes to an erroneous conclusion, it would be deemed to have acted with material irregularity and its decision is open to revision by the High Court. See Dwarika v.
Bagawati (A.I.R. 1939 Rangoon 413) and Fut Chong v. Maung Po Cho (A.I.R. 1929 Rangoon 145)."
In another esteemed judgment cited as Muhammad Nawaz alias Nawaza and others v. Member Judicial, Board of Revenue and others (2014 SCM R 914) the Hon'ble Supreme Court of Pakistan has observed as under: "8. The argument that when all the fora functioning in the revenue hierarchy concurrently held that the appellants were occupying the land in dispute in their capacity as tenants, such finding being one of fact could not have been interfered with by the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, has not impressed us as a finding does not become sacrosanct because it is concurrent. It becomes sacrosanct only if it is based on proper appraisal of evidence. The finding of the fora functioning in the revenue hierarchy despite being concurrent was not based on proper appraisal of evidence and due application of law, therefore, the High Court was well within its jurisdiction to interfere therewith. For the very condition for conferment of jurisdiction on a Court of law is to render a finding on proper appraisal of evidence and due application of law. If and when it would do otherwise, it would go outside its jurisdiction. Such order can well be quashed in exercise of Constitutional jurisdiction of the High Court. An order thus passed cannot be protected because the repository of such jurisdiction has the jurisdiction to pass it. Lord Denning in his well known book "the Discipline of law", while commenting on orders of this nature at page 74, observed as under:- "This brings me to the latest case. In it I ventured to suggest that whenever a tribunal goes wrong in law, it goes outside the jurisdiction conferred on it and its decision is void, because parliament only conferred jurisdiction on the tribunal on condition that it decided in accordance with law."
Another paragraph of this book at page 76 also merits a keen look which reads as under:- "I would suggest that this distinction should now be discarded. The High Court has, and should have, jurisdiction to control the proceedings of inferior courts and tribunals by way of judicial review. When they go wrong in law, the High Court should have power to put them right. Not only in the instant case to do justice to the complainant. But also so as to secure that all courts and tribunals, when faced with the same point of law, should decide it in the same way. It is intolerable that a citizen's rights in point of law should depend on which judge tries his case, or in what court it is heard. The way to get things right is to hold thus: No court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends. If it makes such an error, it goes outside its jurisdiction and certiorari will lie to correct it."
17. In view of above, this civil revision is allowed. Consequently, the judgments and decrees passed by the learned courts below are set aside, the suit filed by the petitioners is decreed. No order as to cost.