' WAQAR AHMAD SETH, J---This revision petition under section 115, C.P.C. Is directed against the judgment and decree dated 30-6-2006, whereby Additional District Judge-II Mansehra on acceptance of appeal filed by the respondents set-aside the judgment and decree of trial Court dated 6-4-1993 and dismissed the suit of the petitioner.
2. Brief facts leading to this petition are that the suit land measuring 02 kanals was the ownership of Said Alam, father of the petitioner; that the said. Said Alam was blind and deaf during the days when the alleged general power of attorney was executed on his behalf in favoour of respondent No,
1. Respondent No,1 transferred the landed property on the basis of general power of attorney in favour of Ali Mardan, the predecessor of respondents Nos.2 to 8; that in the year 1990 Said Alam along with his daughter came from Karachi and knowing about the fraud instituted civil suit against respondent No,
1. The respondents appeared and contested the suit by filing written statement and learned trial Court after recording evidence and hearing the parties decreed the suit. The respondents preferred appeal, which was remanded twice and ultimately the Additional District Judge-II, Mansehra accepted the appeal of respondents and dismissed the suit of the petitioner, hence, the instant petition.
3. Arguments heard and record perused.
4. A perusal of record would reveal that the fractional share measuring 2 kanals out of suit khasra No,241-145 situated in the estate of village Mochi Pool of District Mansehra was the ownership of one Said Alam, now dead, was blind and deaf during those days when the alleged general power of attorney Exh.P.W.4/2 was executed in the name of Khan Sheeen respondent No,1 on 23-1-1988.
Said Aim being blind and deaf was residing with his daughter at Landhi Karachi and immediately on the basis of Exh.P.W.4/2 the said land was transferred on 29-3-1988 in the name of Ali Mardan, now dead, the predecessor of respondents Nos.2 to 8 fraudulently and without making any payment to the executor of Exh.P.W.4/2, as per plaint. Upon return to the village Chakia from Karachi in the year 1990 and knowledge of sale Mutation No,1227 on the basis of general power of attorney Said Alam then alive filed civil suit against the respondents wherein he challenged the alleged sale on the basis of fraud and non-payment of sale price along with general power of attorney. Since plaintiff Said Alam was blind and deaf, incapable to file and pursue the suit, hence, the same was filed through attorney, his son-in-law.
5. A perusal of Exh.P.W.4/2 dated 23-1-1988 reveals that no description of property was given and the owner of the suit land Said Alam deceased was having other property too in the same village and how the suit land was chosen by the respondents for the purpose of sale and transfer, which makes the transaction fraudulent (Exh.P.W.2/6 is referred). The land in dispute is situated in one province and power of attorney has been executed and registered in other province.
6. After the remand by this Court, the disputed power of attorney Exh.P.W.4/2 was referred for expert opinion and accordingly statement of CW1, SOK was recorded. In the instant case the most important question is ability to understand and act of execute;. Of Exh.P.W.4/2 is involved, as he was .Blind and deaf. At the time of signing the same whether he was of the knowledge that what he is signing.
7. The executor of Exh.P.W.4/2 himself, challenging the same, filed instant suit. Admittedly, plaintiff Said Alam was completely blind and deaf at the time of signing Exh.P.W.4/2 and was residing with his daughter and son-in-law at Landhi Karachi. Disputed power of attorney is in favour of Khan Shereen respondent No,1 and on the basis of the same mutation was attested in favour of Ali Mardan respondent No .2 .
8. In the entire evidence of respondents/defendants there is no mention of payment of sale money, .When and where. No documentary, proof that all other brothers of plaintiffs executed special power of attorney in favour of Khan Shereen respondent No, 1, as claimed. Respondent No,2 is the cousin of respondent No,1 and Muhammad Saeed (witness of Exh.P.W.4/2) is the son in law of respondent No, 1, hence, the disputed power of attorney was used for the benefit of very near relation with no special permission. All this is admitted by DW-1 in his statement beside saying that brother of plaintiff and witness of Exh.P.W.4/2 was residing at Karahi in Landhi. Reliance is placed on "Firdos Shah v. Mst. Mehmoona Bibi" reported as 2007 CLC 500 (b), wherein it has been held as under:-- "Ss. 188, 214 & 215---Power of attorney---Scope---Execution of power of attorney, neither would amount to be divesting the principal of the authority over the subject-matter nor would it amount to absolute right of the attorney over the property as its owner---Attorney had to act as an agent of principal and he had to account for all the transactions and it was not sufficient to prove that attorney had the authority to enter into a transaction, but in addition thereto, he was duty bound to explain that he had rendered true accounts of the transaction to the principal---If the attorney entered into a bargain of sale, he received the consideration on behalf of the principal, which had to be refunded to him and in case of an exchange, he had to explain the true value of the property received and that given in exchange---Transaction of lease and mortgage, should also be for the benefit of the principal---Attorney had to take the principal in confidence before converting the property of the principal on the force of the power of attorney into personal or for the benefit of his near relatives---If the property of the principal was transferred against petty amount and there was no proof that said amount was ever transferred by the authority to the principal the transaction would suffer from inherent defect of being contrary to law and authority of the attorney".
9. In the case report Jamil Akhtar and others v. Las Baba and others (PLD 2003 SC 494) (b) it has been held as under:- "Ss. 188 & 214---Powers of Attorney Act (VII of 1882), S.2--Agent---Transfer of principal's property-- -Duty of agent---Appointment of a general attorney is a matter of routine as well as requirement of principal and is never indicative by itself of a sale or absolute sale on behalf of principal; special permission from principal while transferring his principal's property in his own name or in the name of his close fiduciary relations".
10. In the case of "Mst. Ghulam Fatima v. Muhammad Din and others" reported as 2004 SCM R 618 it was also held as under:-- "Ss 188, 214 & 215---Sale of land by Attorney to his own wife without consulting the principal--- Validity--Attorney, if wanted to exercise such power in his own favour, had to consult the principal before doing so---Such sale was liable to be struck down".
11. One witness, namely, Mohammad Hamayun of the disputed power of attorney is the brother of plaintiff and the other Mohammad Saeed son of respondent No,2. DW2 is the respondent No,2, whose son is the marginal witness of Exh.P.W.4/2 and admitted that plaintiff is blind and deaf for the last 40 years and marginal witness to disputed Exh.P.W.4/2 is dead and was residing at Landhi Karahi, whereas address mentioned in Exh.P.W.4/2 is quite different. It is also admitted by him that factum of transaction of payment of money and purchase of land was not mentioned in the disputed power of attorney, nor the particulars of the property are mentioned. The said witness has not explained the payment of sale consideration and before whom as executor was blind and deaf.
DW-3 is the son of respondent No,2, son-in-law of respondent No,1 and marginal witness to the Exh.P.W.4/2. He for the first time introduced the agreement for sale of the suit land struck between him and plaintiff with no documentary proof. DW-4 introduced for the first time payment of sale consideration, whereas neither other DWs mentioned his name nor there is any mention in the written statement.
12. As per record on the basis of said general power of attorney Exh.P.W.4/2 mutation of suit land was attested in favour of respondent No,2 and sale consideration was paid by the respondent No,2 then why he has not signed the Exh.P.W.4/2. Moreover, there is no mention of sale consideration in the disputed Exh.P.W.4/2, this fact alone creates doubt and question mark on the very execution of Exh.P.W.4/2 with free and fair consent. May be executor/ plaintiff had signed the same but entire evidence reflects that he was not aware that what he was signing as he was blind and deaf besides having no fair counselling regarding the document.
13. The conduct of respondent No,1, in whose favour disputed power of attorney was executed, is not above board as he is also defendant in a suit pending in which such like general power of attorney in his favour is challenged. Respondent No,1/ DW-1 admitted this fact in his cross-examination.
Since the plaintiff/executor of Exh.P.W.4/2 has challenged the validity and correctness of the general power of attorney, thus, the burden is shifted to the beneficiary but no cogent, convincing and strong evidence is on record rather interested witnesses are there and that too with lot of contradictions creating doubts. In such like cases when the executor is blind and deaf, it would be the prime duty of the beneficiary to prove/establish by highly satisfactory and strong evidence that such person had fully understood the contents of documents at the time of signing.
14. The respondents are mainly relying on the expert opinion obtained after remand of the case, which declare similarities in the characteristics of signatures of executor but the expert opinion is always declared as weak type of evidence in the presence of confidence inspiring evidence on record. In the case titled "Mst. Saadat Sultan and others v. Muhammad Zahur Khan and others" reported as 2006 SCM R 193(a), it was held as under:-- "Arts. 59, 60 & 61---Expert opinion---Handwriting expert-- Scope---Opinion of handwriting expert is very weak type of evidence and is not of a conclusive nature---Expert's evidence is only confirmatory or explanatory of direct or circumstantial evidence and confirmatory evidence cannot be given preference where confidence inspiring and worthy of credence evidence is available---No doubt the opinion of handwriting expert is relevant but it does not amount to conclusive proof and can be rebutted by overwhelming independent evidence--- Always risky to base findings of genuineness of writing on expert's opinion---Nothing in Qanun- eShahadat exists which requires the evidence given by an expert in any particular case to be corroborated before it can be acted upon as sufficient proof of what the expert states--- Question as to how much reliance a Court should place on the statement of any particular witness in any particular case must necessarily depend on the facts and circumstances of that case".
15. In the case titled Syed Muhammad Umer Shah v. Bashir Ahmed reported as 2004 SCM R 1859(b) it was held:- " Art. 59---Opinion of Handwriting Expert---Contention was that the Handwriting Expert though was examined in the case, but no benefit of his statement was extended to the petitioner--- Validity---Opinion of a Handwriting expert, otherwise a weak piece of evidence, should not be allowed to prevail against strong circumstances and strong evidence giving inference altogether to the contrary---Once the petitioner had failed to prove his case on the basis of the very evidence produced by him, he could not be given the benefit of the only favourable opinion by the expert, being otherwise a weak piece of evidence".
16. Admittedly, there is no agreement to sell, as alleged by DWs, nevertheless is a such factum in the disputed power of attorney Exh.P.W.4/2 nor mention of sale consideration in it, moreover, the specification/particulars of the sold property are there thus the mutation of sale has no evidentiary value. In the case of Fida Hussain and others v. Murid Sakina reported as 2004 SCM R 1043(a), it was held:-- "S. 42---Mutation of sale---Evidentiary value---Burden of proof---Mutation is not a deed of title, but is merely indicative of some previous oral sale between the parties---Whenever mutation is challenged, burden squarely lies on its beneficiary to prove not only mutation, but also original transaction, which he is required to fall back upon".
17. In view of the above, the judgment and decree dated 30-6-2006 of Additional District Judge-II, Mansehra are set-aside and that of Civil Judge-I, Mansehra are restored. The general power of attorney Exh.P.W.4/2 attested on 23-1-1988 and Mutation No,1227 dated 29-3-1988 are declared null and void. No order as to costs.