Ali Akbar Qureshi, J:- This civil revision called in question the validity of judgment and decree 10.12.1995, passed by Additional District Judge, Alipur, whereby the appeal filed by the respondents was allowed and the judgment and decree dated 07.11.1991, passed by the learned trial court was set aside.
2. Shortly the facts in brief are, that the petitioner/plaintiff filed a suit for declaration in respect of land measuring 35 kanal 12 marlas, situated in mouza Bate Burera, against the respondents, alleging therein, that the petitioner/plaintiff is owner of the suit land which was inherited to her through inheritance mutation; that the respondent/defendant No.5 by playing fraud and misrepresentation obtained general power of attorney of the petitioner, on the pretext to obtain a loan for the benefit of the petitioner and subsequently, transferred the suit land of the petitioner, who is an illiterate lady, in favour of defendant No.1 to 4, through registered sale deeds No.1953, dated 24.06.1977 and No.2038, dated 06.07.1977 respectively, with the connivance of the revenue staff; that the petitioner although filed an abtal-nama to cancel the alleged power of attorney obtained by the respondent No.5 but that too was deleted from the record and lastly prayed that the power of attorney as well as the sale deed are result of fraud and misrepresentation, therefore, those be cancelled.
The suit was contested by the respondents/ defendants No.1 & 5, while the defendants/ respondents No.2 to 4 admitted the claim of the petitioner/plaintiff.
The learned trial court on the divergent pleadings framed as many as six issues, recorded the evidence of the parties and finally decreed the suit on 07.11.1991.
Being aggrieved thereof, an appeal was filed by the respondents/defendants, which was accepted and the judgment and decree passed by learned trial court was set aside.
3. Learned counsel for the petitioner contends, that admittedly, the petitioner/plaintiff is an illiterate lady and the defendant No.5 by playing fraud and misrepresentation managed to obtain the power of attorney in his favour and consequently transferred the land owned by the petitioner, which is violative of law. Next contended that the petitioner timely on coming to know, cancel the power of attorney but that too was deleted from the record by the respondent No.5, with the connivance of the revenue staff and lastly that all the alleged transactions conducted by respondent No.5 on the basis of power of attorney is without consideration.
4. The arguments advanced by learned counsel for the petitioner were seriously opposed by the other side.
5. Arguments heard. Record perused.
6. Although, the learned appellate Court through a detailed judgment by referring the material available on the record, set aside the judgment and decree passed by the learned trial court but has failed to take the cognizance of an important aspect of the case. It has been contended by the petitioner, that she is an illiterate lady and there is no rebuttal on the file to this contention raised by the petitioner. Secondly, there is no evidence on the record, that as to whether at the time of transferring the suit property admittedly owned by the petitioner, the alleged general attorney obtained the permission from the petitioner. The evidence produced by the parties and the findings recorded by the learned appellate court were carefully scanned with the assistance of learned counsel for the parties and it is nowhere found, that this mandatory provisions of law declared by the Hon'ble Supreme Court of Pakistan, has been complied with. Reliance is placed on the judgment titled "Mian Allah Ditta through L.Rs. v. Mst. Sakina Bibi" (2013 SCM R 868), wherein the Hon'ble Supreme Court of Pakistan has ruled, that the legal protection provided to the Parda Nasheen lady is also available to an illiterate lady. The relevant esteemed paragraph is reproduced as under: "6. ....The contention that the general power of attorney was given by the respondent/ plaintiff not to a stranger but to her own son-in-law and that she was not a 'Pardanasheen Lady' for which the courts of law have provided protection is not tenable in the facts and circumstances of the instant case, first, because it is in evidence that the relations between the two were too strained on account of the discord between him and her daughter and in the normal course of events she could not have reposed that kind of trust; second, the protection provided to them in law is on account of the fact that they invariably are helpless, weak and vulnerable. The said consideration would equally be attracted to an illiterate lady particularly when she was placed in circumstances which made her vulnerable to deceit misrepresentation."
Further it is now well established principle of law laid down by the Hon'ble Supreme Court of Pakistan in plethora judgment, that at the time of transferring the property/title on the basis of the general power of attorney, the attorney will seek/obtain the permission of the principal, whereas in this case, the principal is admittedly an illiterate lady to whom legal protection of law is available.
Reliance is placed on "Muhammad Taj v. Arshad Mehmood and 3 others" (2009 SCM R 114). The relevant portion is reproduced as under:- "It is settled principle of law that whenever a general attorney transfers the property of his principal in his own name or in the name of his close fiduciary relations, he has to take special permission from the principal."
7. As appears from the findings of learned appellate court, the learned appellate court has mainly relied upon the limitation to file the suit and that the land was transferred by the respondent No.5 on the basis of the power of attorney in favour of the brothers of the petitioner. But at the same time the learned appellate court restrained itself to appreciate the legal aspect of this case particularly when the petitioner lady has alleged, that a fraud has been committed with her. Thus the findings recorded by the learned appellate court while deciding the fate of the appeal are hardly sustainable in law.
8. When this legal aspect of the case and the mandatory principle laid down by the Hon'ble Supreme Court of Pakistan, in the judgment supra, was confronted to the learned counsel appearing on behalf of the respondent No.5 (General Attorney), the learned counsel could not offer any satisfactory explanation and repeated his earlier arguments but anyhow, the learned counsel admitted that there is nothing on the file to show that the permission, at the time of transferring the suit land, was obtained by the respondent No.5 of the principal i.e. the petitioner/Mst. Ameer Khatoon.
9. In view of the above and the law laid down by the Hon'ble Supreme Court of Pakistan, this civil revision stands accepted, the judgment and decree dated 18.11.1991, passed by the learned appellate court is set aside and that of the learned trial court is affirmed. No order as to cost.