' Through instant 2nd Appeal, the appellants have assailed the legality of judgment and decree dated 28th September 2005 and 3rd October 2005 passed by learned Additional District Judge, Shandadpur in Civil Appeal. No, 04 of 2004 "Re-Rais Khadirn Hussain v. Bozai Jalaluddin and others" whereby while allowing appeal,' judgment and decree dated 29.10.2003 and 04.11,2003 passed by learned trial Court (Senior Civil Judge, Shandadpur), were set aside; consequently judgment and decree in favour of appellants Were reversed whereas suit filed by Respondent No, 1 was decreed.
2. Succinctly, but relevant facts, for disposal of the instant appeal are that Respondent No, 3 was the owner of agricultural land Bearing S. No, 66 (1-29), S.No, 12; 13/1 to 3; 17/AB, 18, 20, 45, 47, 48, 49, 50, 51, 56, 57, 66 and 820 total area 7904 acres situated in Deh Jama Rayati, Taluka Shandadpur, District Sanghar which, the Respondent No, 3, sold to the Respondent No, 5 through registered sale- deed on 24,5.1984 for a total consideration of Rs, 17250/ and possession was delivered to him.
Respondent No, 3, subsequently sold the remaining property through different registered sale- deeds in the following manner--
(i) On 04.6.1995 S. Nos. 45, 47, 48, 49, 820 area 19.37 acres to Appellant No, 4 Sajjad Ali for consideration of Rs, 239,1000/-;
(ii) On 04.6.1995 S.No, 49, 50, 51, 47 area 18-21 acres to Shehzad Ali, the Respondent No, 2 for consideration of Rs, 222,000/-;
(iii) On 04.6.1995 S.No, 50 (4-33) acres to Ali Nawaz and Niaz Ahmed, the Appellants No, 2 and 3 respectively for a consideration of Rs, 59,400/-;
(iv) On 04.6.1995 S.No, 12; 13/1 to 3 area 10-08 acres for consideration of Rs, 24,000/- to Abdul Hafeez and Moula Bux, the Respondents No, 5 and 7;
(v) On 04.6.1995 S. No, 20 (total area 9-03 acres) under sale 3.25 acres out of total area to Moula Bux, Appellant No, 7 for total consideration of Rs, 72,500/-;
(vi) On 04.6.1995 S. No, 17/B, area 6-31 acres to Abdul Hafiz, Abdul Razzak and Moula Bux (Respondents No, 5,6 and 7 respectively) for consideration of Rs, 135,500/-.
3. Accordingly, on basis of above registered sale-deeds the mutations were effected in record of the rights in names of purchasers. It was further pleaded that the Respondent No, 1, being an influential person, manoeuvred agreement of sale purporting to have been executed by Respondent No, 2, being an attorney of his wife Respondent No, 3 for above land. Sale agreement was executed on 19.7.1989 for consideration of Rs, 632,000/- out of which the-Respondent No, 1 claimed to have paid Rs, 400,000/- as earnest money to Respondent No, 2 and it was agreed that sale-deed would be completed on 01.01.1990. After about 7 years of above agreement, to sale the Respondent No, 1 filed FC Suit No, 53 of 1993 for Specific Performance of Contract in the Court of Senior Civil Judge, Shandadpur as well as for cancellation of sale-deeds in favour of Appellants No, 1 to 7 on 21.7.1996.
4. The Respondent No, 1 to 7 also filed FC Suit No, 82 of 2001 on 05.11.2001 for Declaration, Possession and Mesne profits against the Respondent No,
1. According to them, appellants were owners of property as well as in possession but Respondent No, 1 unauthorizedly and forcibly occupied major portion of land measuring 60.4 acres out of the 79.04 acres of the property in question in Kharif 2001.
5. Parties filed their respective written statements wherein sticking with their respective stands.
During proceedings of the suits, both suits were consolidated, thereby the FC Suit No, 53 of 1996 "ReRais Khadim Hussain Vs Bozai Jalaluddin & others was made as leading suit.
6. The trial Court framed following issues:-
(1) Whether there is any sale agreement in favour of Khadim Hussain (plaintiff in Suit No, 53/19961?
(2) Whether Defendant No, 1 namely Bozai Jalaluddin received, part payment of Rs, 400,000/- (four lam) towards sale consideration being attorney of Defendant No, 2 from the plaintiff Khadim Hussain?
(3) Whether the Defendant No, 1 failed to performance his part of contract?
(4) Whether plaintiff in Suit No, 82/2001 are exclusively owners of suit land?
(5) Whether registered sale-deeds in Suit No, 82/2001 are legal, valued?
(6) Whether plaintiff in FC Suit No, 82/01 are entitled for possession and mesne profits of suit land at the rate of Rs, 5000/- acres per year?
(7) Whether the Suit No, 53/1996 is maintainable?
(8) Whether the Suit No, 82/2001 is time barred?
(9) Whether plaintiff of FC Suit No, 53/1996 is entitled for relief claimed?
(10) Whether FC Suit No, 82/2001 is bad for non joinder of the parties?
(11) What should the decree be?
7. At the trial, plaintiff Khadim Hussain examined himself and produced sale agreement in original, receipt; of Ks. 100,000/-, Bill of Abiyana, land revenue receipts of year 1995 and 1996. He also examined his witnesses Ghulam Hussain, Muhakamuddin, Muhammad Soomar who produced Khatas No, 172,174 and others and also produced land revenue/Abiyana receipt, certificate of possession, issued by Mukhtiarkar. PW Sobho was also examined while PW Muhammad Hussain filed his statement for closing the side on behalf of plaintiff.
8. Defendant Moula Bux examined himself and produced seven registered sale-deeds, Form VII (six in number) of suit property, 10 land revenue receipts, 2 Zakat receipts, and bill of Abiyana. DW Dr. Yar Muhammad was also examined who was guardian-ad-litem of Defendant No, 6 to 8. DW Ali Nawaz and Khan Muhammad were also examined and then defendants' side was dosed.
9. Thereafter, the learned trial Court judge heard arguments; recorded the judgment and decree, whereby dismissed the Suit No, 53/1996 while the Suit No, 82/2001 was decreed as prayed with direction that the plaintiffs are entitled for Mesne profits at rate of Rs, 1000/- per year per acre from the year 2000.
10. The Respondent No, 1 filed the Civil Appeal No, 4 of 2004 before the learned District Judge, Sanghar which was made over to the Court of Additional District Judge, Shandadpur. The learned Additional District Judge, having heard the arguments, allowed the appeal of the Respondent No, 1 whereby setting aside judgment and decree of trial Court and in consequence suit of the Respondent No, 1 (Suit No, 53/1996) was decreed while that of appellants (Suit No, 82/2001) was dismissed.
11. Learned counsel for the appellants contended that learned appellate Judge failed to appreciate the evidence brought by the applicants; trial Court, while thrashing with evidence recorded finding in accordance with law; suit of the respondents was barred by limitation.
12. On other hand, the learned counsel for the respondents argued that appeal is not maintainable under the law; scope of 2nd appeal is very narrow, appellate Court has given finding on proper appreciation of evidence; respondents purchased suit property through sale agreement, possession was delivered to them; appeal is devoid of merits.
13. Both the learned lower Court (s) have disagreed with each other in respect of the conclusion (s)/consequence (s) of the framed Issues, therefore, it would be in all fairness to examine the all contested issues.
' ISSUE No, 2 & 3
14. These issues were crucial and the burden was upon the plaintiff/respondent Khadim Hussain to prove the same. I have examined the findings of both the Court(s) below on these issues. The discussion of the learned appellate Court towards application of the Articles 17 and 79 of the Qanun-e-Shahadat appear to be in line with the objective of these articles. However, both the learned lower Court (s) entirely failed in appreciating another very crucial legal aspect towards legality of the document. It is a matter of record that the plaintiff/respondent Khadim Hussain specifically claimed that he entered into agreement with Bozai Jalaluddin while considering him to be 'general attorney' of the principal i.e respondent Mat. Abida, particularly when he (Khadim Hussain) claimed that respondent Mst. Abida was also with Bozai Jalaluddin on the day of first meeting at house of Jalaluddin Bozai. In existence of such a claim the respondent Khadim Hussain was required under the law to have made inquiries about 'legal authority' of Bozai Jalaluddin or should have entered into contract directly with respondent Mst. Abida, who, per claim of Khadim Hussain, was available there and was consenting to sell, as he admitted in his examination-in- chief and cross as under:-- 'Such land was in name of Defendant No, 2 when I purchased, Jalaluddin sold out the suit land to me as a attorney of Defendant No, 2 ' When we reached at house of the Defendant No, 1, one Nizamuddin and Met. Abida, Defendant No, 2 were present there'
15. Thus, it appears that the respondent Khadim Hussain did not act in good faith nor took reasonable care to ascertain that the transferor had power to make the transfer not acted personally. To take the refuge of Section 41 of the Transfer of Property Act, 1882 the Vendee must established that he inquired into title of his vendor right from point A to point Z i.e entire chain of ownership of vendor to see that there was no missing link in chain nor same was clouded by suspicious and doubtful circumstances. The Honourable Supreme Court of Pakistan in the case, reported as 2011 SCM R 837, held that: ' Even otherwise the appellants cannot take refuge behind the provisions as enumerated, in Section 41 of the Transfer of Property Act, 1882 as no precautionary measure has been taken to see as to whether any authentic and genuine power of attorney was ever executed on behalf of Met.
Yasmeen Khan (being minor)
16. It is germane to state that one can insist enforcement of a 'contract' but before insisting he is legally bound to establish competency of the vendor because it is a settled principle of law that 'one cannot give a better title then what he/she holds'). Here a reference to Sections-10 & 11 of the Contract Act, being material, is reproduced hereunder:- ' Sec.10. What agreements are contracts.--All agreements are contracts it they are made by the free consent of parties competent to contract for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.
11. Who are competent to contract.--Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contacting by any law which he is subject.
'To make an agreement a 'contract' it should be made by parties 'competent to contract'. This term should always be given due weight because in absence of competency one cannot attach 'legality' thereto else the term competent to contract shall lose its value. Further, the Transfer of Property Act only permits those ' transfer' which are 'competently made' by 'legally authorized persons' hence within meaning of Section 11 of the Contract Act the absence of legal authority always be taken as 'disqualification from contracting' which will make a contract 'void'. Needless to add here that no rights and liabilities can be attached to or arise out of a void contract (2011 SCM R 837).
17. It is made clear here that it is not the blood relation which authorizes one to make other responsible for his acts/omissions and consequences thereof but the recognized authority of law and law. Alone which legalize the acts/omission and consequences of one (agent), upon other (his/her principal). The respondent Khadim Hussain has been a beneficiary of the document (sale agreement) allegedly executed by Bozai Jalaluddin as general attorney; burden was upon him to have established such status of the executant but it is a matter of record that the respondent Khadim Hussain neither produced such document (attorney) nor attempted to lead any evidence to the effect that Bozai Jalaluddin was legally constituted 'attorney' of respondent Mst. Abida.
Where the status of executant as, 'competent person' is not established the contract cannot be said to be legal hence cannot be enforced. I am guided in my such view with the case laws, reported as 2010 SCM R 1066 wherein it was held by honourable Supreme Court that: "Since the respondent was the beneficiary of the power of attorney therefore, it was the duty and obligation of beneficiary to prove execution of general power of attorney when its execution is denied by alleged executant of general power of attorney.
' In another case, reported as 2012 SCM R-1, the honourable Supreme Court of Pakistan, held that:-- 4: There are concurrent findings of facts reached by all three Courts below that power of attorney in favour of Sanaullah was neither produced in original nor it has been proved in accordance with law though the appellant was a beneficiary and was required to do so.
18. The respondent Khadim Hussain referred to the registered sale-deed executed by Bozai Jalaluddin as attorney of respondent Mst. Abida, it would suffice to say that such attorney is dated 19.5.1994 while the agreement in favour of Khadim Hussain pertains to 19th July 1989 and even receipt, allegedly executed by Jalaluddin (not owner herself) is dated 29.19.1989 hence such subsequently executed 'attorney' would not legalize the earlier acts of Bozai Jalaluddin particularly when at no times respondent Mst. Abida (the owner of the lands) confirmed such acts to had been done under her authority.
19. In view of above discussion and legal position, I am of the clear that there could be no answer to Issue No, 1 except in 'negative' as was responded by trial Court.
20. Since in view of discussion regarding Issue. No, 1, it stood established that respondent Khadim Hussain failed to establish legal status of Bozai Jalaluddin as 'attorney' of Defendant No, 2 hence this issue, needs no further discussion, and is answered as 'negative'.
21. Since from discussion regarding Issue No, 1, it stood clear that Bozai Jalaiuddin was not a 'competent person' to contract in respect of land in question at relevant time hence this issue became redundant. However, a failure of suit because of imperfect title will not or disturbs remedy, provided by Section 18(d) of the Specific Relief Act. 1877 which reads as under: Sec.18. Specific Relief Act, 1877. Purchaser's rights' against vendor with imperfect title: Where a person contracts to sell or let certain property, having only an imperfect title "thereto, the purchaser or lessee (excepts otherwise provided, by this Chapter) has the following rights:-- (a)
(b)
(c)
(d) where the vendor or lessor sues for specific performance of the contract, and the suit is dismissed on the ground of his imperfect title, the defendant has a right to a return of his deposit ( if any) with interest thereof, to his costs of the suit, and to a lien for such deposit, interest and costs, on the interest of the vendor or lessor in the property greed to be sold or let.
ISSUES NO.4, 5 & 6
22. The burden to prove these issues was upon the appellants who to prove their title produced registered sale-deed (s) which were executed either by owner herself or by her duly constituted General Attorney therefore, such a document of transfer was rightly held to be legal by the learned trial Court and findings of learned trial Court, being proper, are endorsed are correct.
23. The registered sale-deed(s) are legal document whereby a competent person can competently transfer his/her title for a legal consideration which, being legal, shall have a binding effect. A registered document can only be declared to be null and void or cancelled if the same is established to be fraudulent or where it is established that it was either executed by incompetent person or was for without legal consideration. Such relief can be sought by the executant (owner) of person, having legal character/status under owner or the person claiming an enforceable right.
In the instant matter the owner Respondent No, 2 or her authorized agent did not challenge the register sale-deed (s) and since the document in favour of respondent Khadim Hussain, being not from competent person, became void hence the answer to this issue was properly concluded by trial Court as ' affirmative'.
24. Since in view of discussions, made above, the legal status, of the plaintiffs of FC Suit No, 82 of 2001 stood established therefore, they are entitled for possession of their property from which they have been dispossessed. However, as regard the quantum of mesne profit the plaintiffs of FC Suit No, 82 of 2001 brought nothing on record to establish that rate of lease of the property in question would be Rs, 5000/- per acre per year, however, since it stood established that possession of the Respondent No, 1 was not authorized one therefore, the learned trial Court judge also rightly held mesne profit as Rs, 1000/- per acre per year.
ISSUE NO 7
25. I may add here that the issue of maintainability of the suit shall always consist of all aspects.
Since the question of limitation is also a legal issue hence the plaintiff shall have to discharge such burden completely. It is the Article 113 of Limitation Act which specifies the limitation for specific performance of a contract as: ' Article.113. For specific performance of a contract. The date fixed for the performance, or if no such date is fixed when the plaintiff has notice that performance has been refused.
The above Article is clear in its meaning that limitation shall start from the fixed date or if no date is so fixed then from the date of notice of refusal. In the instant matter the date for registration was admittedly agreed as '1st January, 1990'. The respondent Khadim Hussain, in his examination-in- chief, that: 'On fixed date for registration of sale-deed, the defendants did not come at Shandadpur, Thereafter, I went at Karachi but I came to know that defendants have been shifted to other place through neighbours. Thereafter, I did not go to Karachi to defendants due to where about not known.
' This clearly shows that the respondent Khadim Hussain was aware of the 'fixed date' and even alleged shifting of the Respondent Nos. 2 and 3 but did not file any suit for enforcement of his rights till the time he acquired knowledge in year 1995 that present appellants have purchased the lands from Respondent Nos. 2 and 3. Since I am quite conscious of the legally established principle that if a petition or a suit etc. Is filed beyond limitation each day's delay has to be explained and if from statement in plaint suit appears to be barred by limitation, Court is obliged to reject plaint under R.
11 Order VII, CPC and if a petition or a suit etc. Reliance, if any case be made to the case of Hakim Muhammad Buta & another vs Habib Ahmed & others.
"As such if from statement in plaint suit appears to be barred by limitation, Court is obliged to reject plaint under R. 11 Order VII, CPC.---Similarly, limitation plea cannot be waived and even if waived it can be taken up by party waiving it and by Courts themselves--In exceptional cases, a defendant would, however, be debarred from rising plea of limitation.---This would be a general principle of estoppel arising from defendant's conduct and would be particularly so if plea belatedly taken involves an inquiry on facts".
26. In view of above discussion, I am clear in my view that learned trial Court judge committed no illegality in holding the suit of respondent Khadim Hussain as barred by Limitation Act.
ISSUES NO. 8 & 9
27. Since it stood established that the appellants legally purchased the land through registered sale-deed (s) and had claimed to have been dispossessed by force therefore, they had legally filed the suit for the relief (s) which are recognized by Specific Relief Act. Further, the evidence of Tapedar, examined by respondent Khadim Hussain also shows that possession of respondent Khadim Hussain was stated to be from last five years. Even otherwise an unauthorized possession justifies no legal right to keep a legal owner to approach Court for legal remedy hence their suit was rightly held to be maintainable by learned trial Court Judge.
28. Findings of the learned trial Court Judge on this issue are also in line with discussion in respect of the earlier issues, therefore, the respondent Khadim Hussain was rightly held to be not entitled for any relief on basis of instant suit.
ISSUE NO. 10
29. It would suffice for this issue that since no relief was sought against the Respondent Nos. 2 and 3 (Jalaluddin and Mst. Abida) hence they were not the necessary parties to the suit. Both these respondents namely jalaluddin and Mat. Abida did not deny the legality of registered sale-deed(s) in favour of appellants nor were claiming any interest therein after such sale hence they were rightly not arrayed as parties by appellants. The necessary party is one against whom a relief is sought or a judgment/decision in the suit causes an effect upon such person. Both these requisite ingredients are missing hence the findings of learned trial Court Judge on this issue were also proper.
30. In view of above discussion, I am of the clear view that that the judgment and decree of the learned trial Court were proper hence this appeal is accepted. In consequence thereof the judgment and decree of appellate Court is hereby set-aside while that of trial Court is maintained.
However, there is no order as to costs.
31. With regard to CMA No, 264/2013 for production of general power of attorney and CMA No, 265/2013 for leading additional evidence, suffice to say that detail reasons on both legal aspects have been discussed in Para No, 18 and 22 hence both applications are also devoid of merits.
32. These are the detailed reasons whereby instant revision was allowed by short order dated.
30.10.2014.