AMIN-UD-DIN KHAN, J.--- Through this petitioners, who are successors of the plaintiff, have challenged the judgment and decree dated 28.7.2004 passed by the learned Additional District Judge, Rawalpindi whereby appeal filed by the petitioners was dismissed and judgment and decree dated 12.7.1981 passed by learned Civil Judge, Rawalpindi whereby a suit for declaration filed by the plaintiff was dismissed.
2. Brief facts of the case are that plaintiff, predecessor of the petitioners, on 12.9.1974 filed a suit for declaration that agency created by defendant No,1 in favour of plaintiff vide deed of general power of attorney registered at No,95 dated 4.2.1967 being coupled with the interest in the property allotted against allotment permit No,D001218 forming the subject matter of the agency is irrevocable and could not be terminated to the prejudice of the plaintiff's interest in the said property and that the act of defendant No,1 in revoking the plaintiff's agency by cancelling the said general power of attorney executed in favour of the plaintiff and in creating a fresh agency in favour of defendant No,2 by nominating and appointing him as his general attorney and executing agreement of sale in favour of defendant No,3 being absolutely illegal, without lawful authority and mala fide are null and void and that the plaintiff continues to be the lawful attorney of defendant No,1 and as a consequential relief for permanent injunction restraining defendant No,1 from creating any third party interest of any nature whatsoever in the subject matter of the plaintiff agency and defendant No,2 from acting as general attorney of defendant No,1 in respect of the subject matter of the plaintiff's agency and restraining the defendants from interfering with the plaintiff's possession of land in any manner whatsoever. Joint written statement was filed by respondents Nos,1 to 3. Suit was contested. Learned trial court framed the issues, invited the parties to produce their evidence. Both the parties produced their respective oral as well as documentary evidence. Learned trial court dismissed the suit in the present round of litigation vide judgment and decree dated 12.7.1981. Appeal was preferred, which also met with the same fate vide judgment and decree dated 28.7.2004. Hence, this civil revision.
3. Learned counsel argues that learned trial court dismissed the suit while recording findings on Issues Nos,1 and 3 plaintiff is not in possession of the suit property, therefore, under section 42 of the Specific Relief Act, 1877 suit is not competent and further that under section 19 of the Colonization of Government Lands (Punjab) Act-V of 1912 the suit is barred whereas states that learned first appellate court held that it is actually sale and not an agreement to sell, therefore, there was a bar of section 19 of the Act, ibid and in accordance with section 42 of the Specific Relief Act, 1877 the suit was incompetent, therefore, appeal was dismissed. States that agreement has been produced as Exh.P.3 and power of attorney as Exh.P.2. While relying upon "Muhammad Rafique v. Muhammad"
(1989 CLC 1318) argues that it is in the contents of the document which show that whether it is an agreement to sell or a sale deed. States that it is actually an agreement to sell, therefore, there was no occasion to attract section 19 of the Colonization of Government Lands (Punjab) Act-V of 1912 to non-suit the plaintiff-petitioner. Further that at the time of filing of the suit the tenant was in possession, therefore, there was no need to make a prayer for possession as a consequential relief.
While relying upon "Baisnab Das Mohanta v. Nani Gopal Das and others" (PLD 1963 Dacca 504), "Syed Shafigue Hussain v. Syed Abul Qasim" (PLD 1979 Karachi 22) and "Hakim Ali and another v.
Atta Muhammad and others" (1981 SCMR 993) and "Mst. Hajran Bibi and others v. Suleman and others" (2003 SCMR 1555) prays for acceptance of this civil revision and decree of the suit.
4.On the other hand, learned counsel for the respondents argues that there are concurrent findings of fact recorded by the two courts below and further that power of attorney was revoked before filing of the suit, therefore, form of the suit was wrong. States that even the land was not allotted at the time of alleged agreement to sell. Learned counsel for LRs of respondents Nos,6 and 7 argues that suit is not maintainable in accordance with section 202 of the Contract Act, 1872.
Further that the alleged pronote Exh.P.1 has not been proved and further that when agreement was denied, plaintiff was required to produce complete evidence in order to prove the agreement to sell by producing at least two attesting witnesses but only one witness has been produced. Further that both the courts below held that defendants are in possession of the suit property, therefore, case law referred by learned counsel for the petitioners is not applicable to the facts of this case, therefore, not helpful for them. Lastly argues that plaintiff was never in possession of the suit property. Prays for dismissal of the civil revision.
5.I have heard learned counsel for the parties at length and gone through the record with their able assistance and scrutinized general power of attorney (Exh.P.2) and the alleged agreement to sell (Exh.P.3).
6.The language of the power of attorney and the contents as well as caption of Exh.P2 do not show that it is irrevocable power of attorney. The plaintiff has pressed his stance that it is irrevocable power of attorney on the basis that along with the power of attorney there is an agreement to sell in his favour. Astonishingly, he has not pressed the decree on the basis of agreement to sell though in the body of the plaint he has mentioned about the agreement to sell in his favour but has not pressed for specific performance of the same. It seems that intentionally he has not done so because the suit property was to be allotted in District Multan and when property was allotted in Tehsil Khanewal, District Multan the suit for specific performance was competent before the Court where the immovable property is situated. When base of a claim of the plaintiff is that he has an agreement to sell in his favour, which creates right in favour of the plaintiff, therefore, it is the contention of plaintiff that power of attorney is irrevocable.
7. So far as creation of right through agreement to sell in favour of second party is concerned, I am clear in my mind that agreement to sell does not create or confer rights in the property except a right to file a suit for specific performance in the Court of competent jurisdiction. Even in the instant suit the plaintiff has not pressed for specific performance, he wants to use that agreement to sell Exh.P.3 as supporting document to make the power of attorney Exh.P.2 as irrevocable. The plaintiff has opted not to produce both the alleged witnesses of Exh.P.3 when same has been denied by the defendants in their written statement. PW-1 Daleel Khan one of the alleged witnesses of the agreement to sell has been produced. His statement is also not helpful for the plaintiff as this witness says nothing about the contents of Exh.P.3.
8. In the above circumstances, benefit of section 202 of the Contract Act, 1872 as pressed by learned counsel for the petitioner and relied case law, is not applicable and helpful for the petitioner as petitioner failed to prove execution of agreement Exh.P.3 when he has not produced the second witness as well as stamp vendor to show that actually the stamp was purchased by defendant No,1, therefore, power of attorney cannot be said to be irrevocable power of attorney by any stretch of imagination and record shows that power of attorney was revoked even before the filing of the suit, the form of the suit with a prayer that same could not be terminated was factually incorrect as the same was already terminated by the registration of "Abtaal Nama" of the said power of attorney Exh.P.2.
9.So far as question of application or non-application of section 19 of the Colonization of Government Lands (Punjab) Act-V of 1912 is concerned, in the circumstances of this case when the agreement has not been pressed or sale has not been claimed by the plaintiff-petitioner, therefore, no question of application of section 19 of the Colonization of Government Lands (Punjab) Act-V of 1912 arises. Simultaneously, when a suit for declaration that the power of attorney is not revocable, in my view section 42 of the Relief Act, 1877 has rightly been applied by the Court below and non-suited the plaintiff that he was competent to make further prayer in the suit but he failed, therefore, the suit was not competent, his only prayer is that the power of attorney be declared irrevocable. The upshot of this discussion is that the agreement to sell Exh.P.3 has not been proved in accordance with law, language of Exh.P.2 (Power of Attorney) does not suggest that it is irrevocable power of attorney even it is not mentioned in the power of attorney that it is in furtherance of agreement to sell, therefore, suit as well as appeal has rightly been dismissed.
10. In this view of the matter, no case for interference by this Court has been made out when there are concurrent findings of fact recorded by the two courts below.
11. On the basis of above discussion this civil revision is not competent, same stands dismissed.