HABIB ULLAH AMIR, J.--- Through this revision petition, petitioners have assailed judgment and decree dated 10.2.2004 passed by learned Additional District Judge, Khanewal, whereby he dismissed the appeal filed by the petitioners and upheld the judgment and decree dated 16.9.2002 passed by learned Civil Judge, Jahanian, District Khanewal.
2. The facts, in brief of this case are that respondents/plaintiffs Nos.1 to Yinstituted a suit for declaration challenging the validity of general power of attorney No.35, registered on 7.4.1967 by Sub-Registrar, Bahawalpur and also challenged the subsequent mutations of exchange, mortgage, sale and mutation of inheritance based on fraud, forgery and against law. Respondents/plaintiffs Nos.1 to 3 averred in suit that Abdul Aziz, their predecessor-in-interest was the owner of property measuring 160 Kanals 09, Marlas situated in Chak No.130/10-R, Tehsil Jahanian, District Khanewal.
Abdul Aziz died leaving behind legal heirs i.e. Mst. Maqsoodan Bibi, widow, Mst. Khadija Bibi, Mst.
Feroz Bibi and Mst. Bakhsh Bibi, daughters, Khizar Yaseen and Zahoor Ahmad, sons and predecessor-in-interest of Mst. Qamar-un-Nisa and Mst. Khurshid Bibi, petitioners/defendants Nos.3 and 4, namely, Naseer-ud-Din, who being eldest son used to cultivate the agriculture land and used to divide the share of produce to the legal heirs. Soon after death of Abdul Aziz, Naseer- ud-Din was involved in a murder case. However, after some period, Naseer-ud-Din was released from jail and all the family members handed over to him the landed property for the purpose of cultivation and prior to that the property was cultivated by Khizar Yaseen and Zahoor Ahmad. Due to bad habits of Naseer-ud-Din, he was attacked by his son Iftikhar Ahmad, however, he was seriously injured but survived. Naseer-ud-Din divorced his wife Mst. Karam Elahi, who was also his paternal cousin. Naseer-ud-Din despite of bad habits was enjoying full trust of plaintiffs whereas he was collusive with his other brothers and he regularly paid the share of agriculture produce to the plaintiffs and plaintiffs were satisfied. With the efforts of plaintiffs, Naseer-ud-Din was married with Mst. Sharman Mai, however, no issue was born out of the wedlock and Iftikhar son of Naseer- ud-Din died prior to the death of Naseer-ud-Din whereas Naseerud-Din died in the year 1993 and survived by his two daughters, widow, mother, three sisters and two brothers. Naseer-ud-Din deceased's one brother and widow continuously paid the share of produce to the plaintiffs but later on refused to pay the same and denied their ownership over the disputed property and on checking of the revenue record, it was found that forged power of attorney had been prepared on behalf of plaintiffs and their mother Mst. Maqsoodan Bibi and after getting attested the general power of attorney, Naseer-ud-Din mortgaged the property and borrowed Ilan from Agricultural Development Bank of Pakistan, he exchanged the portion of his property with his real paternal uncle Abdul Ghafoor son of Allah Baldish but he did not get entered the Rapt in Roznamcha Waqiati prepared by the Patwari. Naseer-ud-Din got entered mutation No.32, regarding the oral sale on 29.4.1971 by which he alienated the share of the plaintiffs and their mother for consideration of Rs.12,000/- in favour of his son and two brothers. Iftikhar son of Naseer-ud-Din died and property owned by him was mutated through inheritance mutation in favour of Naseer-ud-Din. After death of Naseerud-Din, his inheritance devolved upon his daughters, sisters, brothers and mother, thus, all mutations are illegal, against law and are liable to be cancelled. The version of the plaintiffs is also that they had neither appointed Naseer-ud-Din as their general attorney nor they appeared before the Attesting Officer for recording their statements in favour of Naseer-ud-Din and the property was situated in Tehsil Khanewal, whereas power of attorney was attested by Sub- Registrar, Bahawalpur which clearly indicates the fraud committed by Naseer-ud-Din. Plaintiffs moved applications for the cancellation of mutations before the District Collector, Khanewal and during the hearing of above said applications, defendants/petitioners about the general power of attorney, however, District Collector advised plaintiffs to seek remedy from the competent civil court by filing a civil suit and in this way civil suit was instituted. The suit was controverted by defendants/petitioners by filing written statement. On divergent pleadings of parties, learned trial Court framed following issues:- "1. Whether the plaintiffs are entitled to get their legal share being legal heirs of deceased Abdul Aziz and general power of attorney dated 7.4.1967 and consequent mutation No.21 dated 21.12.1986, mutation No.22 dated 31.12.1968, mutation No.32 dated 31.4.1971, mutation No.183 dated 10.8.1982 and mutation 'No.383 dated 31.1.1994 are illegal, void, against law and facts and ineffective to the rights of the'plaintiffs? OPP
2. Whether the plaintiffs have no cause of action and locus standi to file this suit? OPD
3. Whether the suit is time barred? OPD
4. Whether the suit is not properly valued for the purpose of court fee and jurisdiction, if so, what is the correct valuation of the suit? OPD
5. Whether the suit is not maintainable in view of preliminary objection No.5 of the written statement? OPD
6. Whether this court lacks territorial jurisdiction to try this suit? OPD
7. Whether the suit is false, frivolous and vexatious? OPD
8. Whether the suit is not maintainable in its present form? OPD
9. Relief."
3. After framing the issues, parties were directed to lead evidence and vide judgment and decree dated 16.9.2002, learned trial court decreed the suit. Feeling aggrieved, defendants/petitioners preferred an appeal which met the fate of dismissal vide judgment dated 10.2.2004 passed by learned Additional District Judge, Khanewal, hence this revision petition.
4. Learned counsel for petitioners contends that mutations of inheritance regarding property of Abdul Aziz, predecessor-in-interest of plaintiffs/respondents and defendants/petitioners Nos.1 to 3 had been attested in accordance with Sharia and names of legal heirs have been incorporated in mutation of inheritance correctly sanctioned by revenue officer while property belonged to Abdul Aziz, deceased devolved to legal heirs; It has failed to be appreciated that it was the property of Naseer-ud-Din which was duly mortgaged while subsequently mutation of exchange of property with Abdul Ghafoor was attested by the plaintiffs through general attorney while vide mutation No.32 respondents sold away their property through general attorney to Khizar Yaseen and Zahoor Ahmad brothers of plaintiffs; that it has failed to be appreciated that claim of plaintiffs was barred by limitation as mutations were sanctioned on 29.11.1971 but suit has been filed in the year 2000 after the expiry of 29 years; that the application submitted by plaintiffs for review of mutation No.22 indicates that plaintiffs were out of possession after few years of 1971 and once person is uut of possession his suit for simple declaration is not maintainable because they have not claimed possession of suit property that general power of attorney was executed and registered on 7.4.1967 which has been challenged after more than 33 years and the same carries presumption that the said document was executed duly and both the learned courts below have ignored this fact; that it has failed to be appreciated that plaintiffs' witnesses are interested witnesses; that once the witnesses; that once the witnesses had disputed their signatures on general power of attorney.
Comparison of their signatures was mandatory but this fact has been ignored by learned courts below; that both learned courts below have misconstrued the statement of Mst. Maqsoodan Bibi who has deposed against plaintiffs and it has proved on record that plaintiffs validly executed the power of attorney; it has not been pointed out or given details about the fraud committed by petitioners; that plaintiffs have not claimed possession or made prayer for possession and issue No.4 has wrongly been decided against defendants/petitioners; that the documentary evidence available on record has been misconstrued and both learned courts below have exercised jurisdiction by relying upon inadmissible evidence, thus, committed jurisdictional error by passing impugned judgments and decrees; that both learned courts below passed the impugned judgments and decrees on surmises and conjectures. In the end, it has been prayed that impugned judgments and decrees passed by learned courts below may be set aside and suit of plaintiffs may be dismissed.
5. On the other hand, petition in hand has been controverted by learned counsel for respondents.
6. I have heard learned counsel for parties and perused the file with their assistance.
7. Mst. Khadija Bibi etc. plaintiffs have averred in suit that Abdul Aziz their predecessor-in-interest was owner of property measuring 168 Kanals, 09 Marlas having been fully described in the caption of suit and after his demise, land was under the cultivation of Naseer-ud-Din, real son of Abdul Aziz who used to pay share of agricultural produce to plaintiffs and at the time of death of Naseer-ud- Din, he was survived by Mst. Sharman Mai, his widow who was issueless and his son Iftikhar also died before his death and he was survived by his two daughters, widow, mother, three sisters and two brothers and when share of produce was refused to plaintiffs it transpired that fictitious and forged general power of attorney was prepared and registered at Bahawalpur on the basis of which Naseer-ud-Din mortgaged property to A.D.B.P., Khanewal and on the same day, i.e. 31.12.1968, got registered exchange deed with his real uncle Abdul Ghafoor and thereafter vide mutation No.32 attested on 29.4.1971, shares of plaintiffs and their mother was transferred in lieu of Rs.12,000/- in favour of his son and real brother while brothers of Naseer-ud-Din deprived plaintiffs of their property. On the other hand, defendants/petitioners controverted this stance of plaintiffs and also denied preparation of any fictitious agreement, general power of attorney and also disputed that subsequent mutations were sanctioned on the basis of fraud. P.W.1 Mst. Khadija Bibi has deposed that plaintiffs have never executed general power of attorney in favour of Naseer-ud-Din and after his demise his sons promised to continue to distribute share of produce which was refused and on inquiry, it transpired that forged and fictitious general power of attorney was prepared. Mst. Feroz Bibi, P.W.2 has also supported the averments made in suit By denying that general power of attorney was executed by them rather she has deposed that property in dispute was transferred illegally to his sons and son-in-law by Naseer-ud-Din. P.W.3 Ghulam Nabi, P.W.4 Imam Din and P.W.5 Muhammad Anwar categorically denied that they have put their signatures as witnesses on the general power of attorney. Plaintiffs also produced documentary evidence Exh.P.l to Exh.P.19 and closed their evidence while Maqsoodan Bibi appeared as D.W.1, Zahoor Ahmad and Rabnawaz as D.W.2 and D.W.3 respectively and produced documentary evidence Exh.D.1 to Exh.D.6 and closed defendants' evidence.
8. Mst. Maqsoodan Bibi widow of Abdul Aziz deceased appeared as D.W.1 and deposed that plaintiffs Nos.1 and 2 are her daughters while Mst. Bakhsh Bibi her daughter has passed away and defendants Nos.3-A to 3-D are her legal heirs. 30 years back, she along with her daughters had put their thumb impressions on general power of attorney executed in favour of Naseer-ud-Din and had given their property to him. They put their thumb impressions in the office at Bahawalpur by their freewill and consent and Naseer-ud-Din did not commit any fraud. Naseer-ud-Din died 15 years back and in his life time, plaintiffs did not institute the suit and plaintiffs have never demanded share of produce and on the asking of Nadeem son of Mst. Khadija Bibi suit has been filed. Zahoor Ahmad D.W.2 deposed that Naseer-ud-Din was his nephew whereas Mst. Maqsoodan Bibi was his mother and plaintiffs Nos.3(a) to 3(d) are his brother and sisters. He further deposed that in the year 1967 Naseer-ud-Din was appointed General Attorney of plaintiffs till his death and in his life time neither any property was claimed nor plaintiffs demanded share of produce.
Previously plaintiffs made application before District Collector while Naseer-ud-Din on the basis of general power of attorney rightly got sanctioned mutations in his favour and property was mortgaged with A.D.B.P. and land was also got exchanged but even then no action was taken by plaintiffs.
9.As far as relationship between the parties is concerned, it has not been disputed or denied from any corner that originally property was owned by Abdul Aziz, real father of plaintiffs who owned property measuring 160 Kanals, 09 Marlas and admittedly general power of attorney was registered on 7.4.1967 in the office of Sub Registrar, Bahawalpur and on the basis of same subsequent mutations have been attested and plaintiffs have alleged that they have never executed or got registered any power of attorney in favour of Naseer-ud-Din and the copy of general power of attorney i.e. Exh.P.1 has also been produced on record. The said document unveils that the same was signed by Muhammad Anwar who appeared in the witness box as P.W.5 and categorically deposed that he had never put his signatures on the power of attorney dated 7.4.1967 as a witness. Imam Din, another witness of agreement to sell has also been produced in the witness box by plaintiffs as P.W.4. He also categorically deposed that he had never put his signatures as witness on any general power of attorney in favour of Naseer-ur-Din. Moreover P.W.3 Ghulam Nabi has also denied that he has put his signatures on agreement to sell. Moreover, defendants themselves have not disputed that on the death of Abdul Aziz, predecessor-in-interest of parties, mutation of inheritance was sanctioned in favour of all legal heirs whereafter the property was mortgaged with A.D.B.P., Khanewal and subsequently another mutation regarding exchange of property with Abdul Ghafoor was attested and sanctioned through general attorney vide mutation No.32 plaintiffs have allegedly sold their propefty to Khizar Yaseen and Zahoor Ahmad brothers of plaintiffs and one Iftikhar, nephew of plaintiffs.
10. Plaintiffs have produced marginal witnesses of general power of attorney and they have denied that they had attested general power of attorney. In view of Article 79 of the Qanun-e-Shahadat Order, 1984 where a person who is alleged to have executed document had denied his signatures, his signatures could be proved by calling the person in whose presence such document was executed. Signatures of executant could be proved by calling two attesting witnesses in whose presence, person concerned had signed the document and in the instant case defendants being beneficiary of the general power of attorney, onus-to prove the general power of attorney was on him but no evidence has been brought on the record establishing that general power of attorney allegedly had been executed by plaintiffs in favour of Naseer-ud-Din with the consent and signatures or thumb impressions of the plaintiffs. Plaintiffs witnesses have denied that they have put their signatures or affixed thumb impressions on the general power of attorney and defendants despite of the fact that they were beneficiary burden was on them to prove the execution of general power of attorney but as D.W.2 Zahoor Ahmad simply stated that actually general power of attorney was given by plaintiffs in favour of Naseer-ud-Din. In this regard they had made an application to District Collector which was dismissed while D.W.1 real mother Mst. Maqsoodan Bibi has also been produced in witness box but she has simply stated that they had put their thumb impressions at Bahawalpur and that they had given land to Naseer-ud-Din. She further stated that at the time of putting thumb impressions, her daughter, Naseer-ud-Din and one officer was present. She has also not denied that her son Naseer-ud-Din was a clerk with an advocate in Khanewal. Learned counsel for petitioner has argued that marginal witnesses had turned hostile and though it has been argued that actually they put their thumb impressions on the general power of attorney but no move was made by petitioners in trial for comparison of the signatures of the witnesses. It has been held in the cases reported as "Zafar Yasin and 2 others v. Abdur Rashid Khan and others" (PLJ 2002 Lahore 1982 (DB)) and "Akhtar Zaman v. Additional District Judge and others"(2003 YLR 696) that in case of disputed signatures it is duty of a party contending that document did not contain his genuine signatures, such party should request court for sending such document for comparison to Handwriting Expert at his expense and it is not the duty of court in civil cases to incur such expenditure at State expense.
11. Another aspect of this case is also that defendants themselves have not denied that property in dispute was mortgaged with A.D.B.P. and that the same was also transferred vide mutation of exchange with Abdul Ghafoor and also vide mutation No.32 on the basis of oral agreement dated 29.4.1971 transferred in favour of son and brothers of Naseer-ud-Din. In this case transferees of property are admittedly kith and kin of Naseer-ud-Din deceased and under the law scope of the - holder of a general power of attorney in alienating the property of his principal in favour of those who are so closely related to the agent that ultimate beneficiary would be the agent himself, he should in own interest obtain the consent of the principal failing which the principal is at liberty to repudiate the transaction. Reliance is placed on the judgments reported as "Haji Faqir Muhammad and others v. Pir Muhammad and another" (1997 SCM R 1811) "Maqsood Ahmad and another v.
Muhammad Razzaque and 9 others" (PLD 2009 Supreme Court (AJ&K) 13) and "Muhammad Yousaf v. Muhammad Ramzan and another" (2010 YLR 3222).
12. It has also been held in the case reported as "Khushi Muhammad and 2 others v. Jannat Bibi"
(2004 CLC 1747) that if it was assumed that general power of attorney has been executed and carried a presumption of correctness attached to it under section 33 of Registration Act, 1908 and under the provisions of Power of Attorney Act, and Qanun-e-Shahadat Order, 1984, even then the defendant was required to prove that before transferring the property in favour of other defendants, who were his sons, he consulted the plaintiff and made payment of the sale proceeds to her but no such evidence was available on record. Law regarding transfer by the attorney in favour of his own kith and kin without consulting his principal is settled and it will be presumed that the sale is in favour of attorney himself, which is void.
13. Defendants have also claimed that land in question was transferred by plaintiffs through general power of attorney vide mutation No.32 attested on 29.4.1971 and that Naseer-ud-Din transferred the share of his sister and mother foe the consideration of Rs.12,000/- in favour of his son and brothers and once there 'Was a transaction of sale even then defendants was bound to establish as burden was on attorney to prove that such sale was genuine but no such evidence has been produced by defendants being beneficiary and being burdened with to prove this fact. I am also fortified by the view expressed by apex court in the cases reported as "Asif Raees Ahmad v.
Mst. Zubaida Bibi and another" (2005 YLR 2761) and "Mst.' Ghulam Fatima v. Muhammad Din and others" SCMR 618) that sale of land by attorney to his kith and kin without consulting the principal such sale has been held liable to be struck down and the same was struck down.
14. Learned counsel for petitioners has also argued that, in fact, the marginal witnesses have turned hostile. However, in respect to execution of power of attorney the law is now settled that in absence of adequate and strong evidence presumption in favour of execution of the power of attorney could not be lawfully drawn. Execution in the context of Articles 82 and 79 of Qanun-e-Shahadat Order, 1984 not only meant signing by the executant but it meant and includes attestation as well, which is the last of the series of acts necessary to give completeness and formal validity to a deed and necessity of calling the attesting witness is not merely to prove the signature of the executant but to prove attestation as well. If the said witness turns hostile or refuses to prove execution or attestation other witness may be called for the same purpose but no evidence has been produced by defendants proving that in their presence marginal witnesses had attested general power of attorney.
15. Another aspect of this case is that plaintiffs namely Mst. Khadija Bibi. Mst. Feroz Bibi and Mst.
Bakhsh Bibi were legal heirs and successors-in-interest of late Abdul Aziz and once fraud has been alleged by a woman against defendants the relevant law is that once defendants stood beneficiary, he is required to prove through positive evidence that the transaction of sale was genuine and plaintiffs in this case are village residing ladies and such women are always protected under the law and it was obligatory to show that she before parting with their immovable property, they entered into agreement with freewill and volition and that she had an opportunity to sell the same to an independent person or she has some independent advice in this behalf and in this case despite of the fact that defendants are beneficiary of the documents, i.e. general power of attorney and mutation of exchange and sale but no evidence has been produced-by defendants to prove that plaintiffs have ever executed any general power of attorney in favour of Naseer-ud-Din and that mutation of exchange and sale are genuine or that plaintiffs had knowledge about transfer of property and even the fact of mortgage of property with A.D.B.P. was not in the knowledge of plaintiffs ,thus, learned courts below have rightly held that plaintiffs are entitled to get their legal shares and general power of attorney executed on 7.4.1967 and mutation No.22 dated 31.12.1968, mutation No.32 dated 29.4.1971 and 183, 383 dated 10.8.1982 are illegal, void and against law and ineffective qua the rights of plaintiffs over the suit property.
16. Learned counsel for petitioner has also argued that suit was hopelessly barred by limitation and in this regard learned counsel for petitioners has placed reliance on the judgment reported as "Muhammad Ishaq v. Member (R), Board of Revenue. Punjab, Lahore and 18 others (1994 M LD 2254), "Faqir Taj and others v. Mst. Shamsho and others" (2003 YLR 894) and Begum Syeda Azra Masood v. Begum Noshaba Moeen and others" (2007 SCM R 914). Admittedly plaintiffs are women who had claimed the disputed property on the grounds that fraud was committed by Naseer-ud- Din and the forged and fictitious general power of attorney was prepared on the basis of which subsequent transactions were made and in this regard, copy of order dated 24.4.2000 passed by District Collector, Khanewal which was passed after when plaintiffs had challenged mutations as well as validity of general power of attorney executed in favour of Naseer-ud-Din and the said order reveals that for review of mutations the matter was agitated before District Collector Khanewal who observed that the documents have been questioned by petitioners that those are outcome of fraud and revenue courts cannot determine the documents in summary proceedings as such the matter was disposed of and the parties were set to be at liberty to seek remedy before civil court. This order is dated 24.4.2000 and record shows that suit has been instituted on 15.6.2000 and this depicts that claim of plaintiffs has never been barred by limitation. Even otherwise the matter is inter se legal heirs and successors-in-interest of late Abdul Aziz. In the circumstances, when it has specifically been alleged that fraud was committed and on the basis of fraud general power of attorney was prepared and on the basis of said general power of attorney subsequent mutations of exchange and sale were entered and attested, It has rightly been held that findings of learned courts below on issue No.3 are also according to law on available evidence while findings of learned courts below on all the issues are according to record including the evidence produced by parties.
17. The revisional jurisdiction under section 115, C.P.C. exercised by the High Court is attracted only in cases where the lower Court has exercised a jurisdiction not vested in it by law or it has failed to exercise jurisdiction so vested in it or while exercising jurisdiction the Courts below have acted illegally or with material irregularity. It is, therefore, quite clear that the High Court while exercising revisional jurisdiction cannot disturb the finding of fact arrived at by the lower Court in proper exercise of the jurisdiction vested in the Court and upon consideration of the relevant evidence on record. The finding of fact by the lower Court could only be disturbed in revisional jurisdiction by the High Court, if it is found to be fanciful, perverse or it has been arrived at by a process which had rendered the exercise of the jurisdiction vested in the Court defectively. In this case, no illegality has been found in the impugned judgments and decrees and in the circumstances, discussed above, this petition stands dismissed being devoid of merits with no order as to cost.