Raja Saeed Akram Khan, J.--This appeal by leave of the Court has been directed against the judgment of the High Court dated 1.6.2016 in Civil Appeal No.100 of 2008.
2. Facts necessary for disposal of the appeal are that Mst. Nazar Jan, predecessor-in-interest of the appellants, filed a suit for declaration and perpetual injunction before the Senior Civil Judge Mirpur alleging therein that the land measuring 1 kanal 16 marla, total measuring 25 kanal 18 marla, Khaata No.1291/1447 to 1449, Khewat No.213/316 and the land measuring 16 kanal 18 marla, Khaata No.1304/1406 to 1463, 214/318, situate at village Boa, Tehsil and District Mirpur was in possession and ownership of the plaintiff on the basis of jamabandi year 2000-2001. It was alleged that the suit land along with a house was inherited by her from the legacy of her patents. It was averred that being illiterate, the plaintiff did not know about the exact location and demarcation of her land. It was averred that defendant No.1 asked and induced her that her share is present in the inheritance of her parents, so she should get it separated through partition. It was alleged that defendant No.1 took her to the Court and got a power of attorney so that the land may be entered in her name. Thereafter, one Ghulam Muhammad s/o Khuda Bakhsh told her that defendant No.1, on the basis of power of that attorney, has executed a sale-deed in favour of his son, defendant No.2, by practicing fraud. It was further averred that the plaintiff did not give him power or possession to alienate the suit land. It was prayed that the document may be declared null and void upon the rights of the plaintiff. The suit was contested by the defendant-respondents, who appeared before the Court while taking the stance that the plaintiff has executed the sale-deed with her own free will in favour of defendant No.2. In the light of pleadings of the parties, issues were framed on 22.4.2004.
The learned Senior Civil Judge after hearing arguments, dismissed the suit for want of proof vide judgment dated 10.10.2006. Feeling aggrieved, Nazar Jan, the plaintiff, filed an appeal before the District Judge Mirpur on 1.11.2006. The District Judge Mirpur on 15.2.2008 accepted the appeal and set aside the judgment and decree passed by the trial Court, which was assailed by the respondents by way of the appeal before the High Court.
The appeal was accepted and judgment of the trial Court dated 10.10.2006 was maintained through the impugned judgment dated 1.6.2016, hence this appeal.
3. Mr. Riaz Inqalabi, advocate for the appellants, submitted that the impugned judgment suffers from misreading and non-reading of evidence. He submitted that the High Court through the impugned judgment, has disturbed the well-reasoned judgment of the District Judge without assigning any reason. He referred to the written statement filed by the respondents while submitting that the version of the appellants was admitted by the other side but in spite of the fact, issue No.1 was decided against them without adhering to the law that admitted facts need not to be proved. He also submitted that a specific plea was taken before the trial Court that the power of attorney was obtained by practicing fraud for the demarcation of the land and to separate the share of the predecessor-in-interest of the appellants, as she was an illiterate lady whereas she never delegated any power to alienate the property in favour of any person but this important fact remained escaped from the notice of the High Court. He added that the power of attorney was not proved in accordance with statutory provisions of law, as beneficiary of the power of attorney has not appeared in the witness box. Moreover, it was enjoined upon the respondent/beneficiary to prove that the document was validly executed while producing at least two marginal witnesses. In the absence of that, sheer violation of statutory provisions of the Qanoon-e-Shahadat Order, 1984 has been made and on the strength of such document, every sort of transaction is null and void. The learned High Court has failed to consider this important legal position while handing down the judgment. The learned advocate referred to and relied upon following case-law:
1. [PLD 1985 SC (AJ&K) 341],
2. Muhammad Mehrban vs. Sadrud Din & another [1995 SCR 274], and
3. Anaitullah Khan & 2 others vs. Sarfraz Khan & 16 others [PLD 1979 SC (AJ&K) 53].
There is no case law at page 341 of the report.
In Muhammad Mehrban vs. Sadrud Din & another [1995 SCR 274], it was observed that the general rule of construction of power of attorney is that it may be construed strictly as giving only such authority as that confers expressly or by necessary implication.
In Anaitullah Khan & 2 others vs. Sarfraz Khan & 16 others [PLD 1979 SC (AJ&K) 53], it was observed that appreciation of evidence with regard to its credibility or adequacy made by courts below in accordance with correct principles cannot be interfered with by the High Court.
4. On the other hand, Raja Hassan Akhtar, advocate, counsel for the respondents, strongly supported the impugned judgment while submitting that the same is perfectly legal and is not open for interference by this Court. The learned advocate submitted that Mst. Nazar Jan (deceased) herself admitted that the power of attorney was executed in favour of Muhammad Mehrban while appearing in the Court. She also affirmed the thumb-impressions affixed on the power of attorney. Moreover, the document i.e. power of attorney is admitted, which need not to be proved. He added that in spite of the fact, the same was proved by producing the stamp- vendor. In continuation of his arguments, the learned advocate submitted that an important witness namely Ghulam Muhammad appeared as witness, on whose instigation, the suit was filed and fee of the suit was also paid by said Ghulam Muhammad to the counsel. All these important valid pieces of evidence were not considered by the District Judge while accepting the appeal of the respondents, herein, which was rightly corrected by the High Court while restoring the judgment and decree of the trial Court as the plaintiff failed to prove her case, which was rightly dismissed for want of proof. The learned advocate referred to and relied upon the case reported as Mst. Fazal Noor Begum vs. Muhammad Akbar & 4 others [1997 SCR 57].
In Mst. Fazal Noor Begum vs. Muhammad Akbar & 4 others [1997 SCR 57], it was observed that in order to succeed, the plaintiff must prove his own case and stand on his own legs rather to take advantage of the weakness of the case of the other party.
5. We have heard the learned advocates for the parties and gone through the record of the case.
6. The predecessor-in-interest of the appellants, namely Mst. Nazar Jan, filed a suit for declaration and perpetual injunction before the Senior Civil Judge Mirpur on the ground that a power of attorney was executed for demarcation of the land/separation of her share on the instigation of one Muhammad Mehrban but by practicing fraud. The attorney has transferred her share in the name of his son Zayad, defendant No.2, through a sale-deed. The argument of the learned advocate for the respondents that the suit was filed on the instigation of one Ghulam Muhammad is ill-founded and rejected. When the document, which goes to the roots of the controversy, is not proved to be a valid document, the whole structure built on that automatically falls. The law is settled that for proving the execution of a document, it is essential that two attesting witnesses appear before the Court and state that the document was executed by the executant in their presence and the executant has signed the document in their presence and identify the signatures. To prove a document, Article 79 of the Qanoon-e-Shahadat Order, 1984, guides as under:- "79. Proof of execution of document required by law to be attested: If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence.
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
While discussing the above-referred legal provision, this Court in a case reported as Khan Muhammad Badar & 6 others vs. Mst. Roshni & 43 others [2008 SCR 46], has opined as under:- "....Article 79 of the Qanun-e-Shadat clearly contains that "where a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive and subject to process of Court and capable of giving the evidence.'"
Similarly, in another case reported as Maqsood Ahmad & another vs. Muhammad Razzaque & 9 others [2009 SCR 38], it has been observed by this Court as under:- "....Thus in the light of Article 79 of Qanun-e-Shahadat Order 1984 it was the duty of Muhammad Razzaque to prove that the power of attorney was executed in his favour by Gulab Khan. According to this provision of law it was necessary for proving execution of document to produce at least two attesting witnesses of the deed in whose presence the document was executed, but in the instant case only one witness was produced. This sole witness too has failed to prove execution of document."
In the peculiar circumstances of the case, the contents of power of attorney were not proved through cogent and reliable evidence as in the case in hand admittedly only one witness has appeared. Moreover, the beneficiary, i.e. the attorney has not himself appeared in the witness box to prove the document on the strength of which the whole transaction is made. In this regard reliance can be placed on the case reported as Muhammad Sharif Khan vs. Mst. Ismat Bibi & 4 others [PLJ 1982 SC (AJ&K) 110], wherein it was observed as under:- "17. The appellant, who is expected to know the whole controversy, had also not cared to come into the witness-box. It is the bounden duty of a party who personally knows the whole of the circumstances of the case to go into the witness-box to dispel the suspicions attaching to his case, and if he, being present in the Court, fails to do so (as is done in the present case), his non-appearance as a witness would be the strongest possible circumstances going to discredit the truth of his case...."
Thus, it can safely be concluded that to prove the power of attorney, at least two attesting witnesses of the deed should have been produced as witnesses, which is missing in the case in hand. The beneficiary of the power of attorney has also not appeared in the witness box, therefore, the power of attorney has rightly been declared to have not been proved by the Additional District Judge Mirpur.
7. As far the argument of the counsel for the appellants that no such power was delegated to the attorney to alienate the property and he was not equipped with any power to transfer the land to his son without prior permission of the principal, is concerned, we appreciate the argument and have examined the contents of the power of attorney. Although the power to alienate the property is there but it is also not denied that such power was used without prior permission of the principal. It is well-settled principle of law that on the strength of a power of attorney, the agent cannot transfer the land to his kith and kin without prior permission of the principal.
In the case reported as Maqsood Ahmed & another vs. Muhammad Razzaque & 9 others [2009 SCR 38], it has been observed by this Court as under:- "14. It would not be out of place to mentioned here that Muhammad Razzaque after obtaining power of attorney transferred the land to his son, Arshad Hussain, while it is settled principle of law that an attorney before transferring the land to his own kith and kin has to obtain permission from the principle."
This view has been upheld by this Court in another case reported as Khalid Mehmood vs. Muhammad Rasheed (deceased) through LH [2016 SCR 830], whereby it has been observed as under:- "6. Before proceeding further, it may be observed that the rule of law laid down in the case reported as Maqsood Ahmed & another vs. Muhammad Razzaque & 9 others [2009 SCR 38, is correct that holder of 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 his own interest obtain the consent of the principal failing which the principal is at liberty to repudiate the transaction."
In view of the law laid down in supra pronouncements, we are of the view that the transfer of land on the strength of power of attorney, without prior permission of the principal, was illegal.
9. By leaving aside all other aspects of the case, the stance taken by the respondents that for proving the document they produced the stamp-vendor and the document has not been denied, is not convincing in nature.
As the specific stance has been taken in the plaint by the plaintiff that the power was not given to the attorney to transfer the land and all the transaction was made through fraud, in such like situations, it was enjoined upon the beneficiary to prove that the document was validly executed by producing at least two witnesses and appear himself as witness to verify the contents of the document but the same has not been done in the case in hand, in absence of which no validity can be given to the sale-deed, which was executed on the strength of power of attorney, whose execution was not proved in accordance with the law.
As we have reached the conclusion that the power of attorney was not proved in the light of statutory provisions of the law, therefore, on the strength of the said document, execution of the sale-deed is null and void and inoperative on the rights of the plaintiffs. Resultantly the appeal is accepted and judgment and decree of the High Court is set aside. The judgment and decree passed by the District Judge Mirpur dated 15.2.2008 is restored with no order as to the costs.