SHAHID WAHEED, Unsuccessful defendants have brought this petition under Section 115, C.P.C. to seek revision of the concurrent findings returned by the Courts below through which the declaratory suit of the plaintiff, Muhammad Ismail, predecessor of the present respondents was allowed.
2. Dispute in this case related to swa th of land measuring 106-Kanals 19-Marlas situated at Chak No,134-J.B., Tehsil Chiniot which was owned by Muhammad Ismail. On 22.12.1988 general power of attorney was executed in favour of Muhammad (brother of Muhammad Ismail) to administer and manage the affairs of the said land. On the basis of general power of attorney, the land stood transferred vide sale mutation No,631 dated 24.09.1994 in the name of Ahmad Yar (petitioner No,2) who was son of Muhammad. Subsequently, on 08.09.1996 Muhammad Ismail instituted a suit against the present petitioners and sought decree for declaration to the effect that general power of attorney dated 22.12.1988 and mutation No,631 dated 24.09.1994 were illegal, void and ineffective upon his rights. It was alleged in the plaint that present petitioners through fraud and misrepresentation obtained thumb impression of the plaintiffs on a plain paper on the pretext to procure loan from the Agricultural Bank for the purchase of tractor: and, that the petitioner No,1, who was real brother of Muhammad Ismail, after getting identity card of the plaintiff fraudulently got executed general power of attorney dated 22.12.1988 and on its basis transferred the land in favour of petitioner No,2. During trial Muhammad Ismail died and resultantly his legal heirs were impleaded in the suit. The present petitioners contested the suit by filing joint written statement, wherein it was maintained that Muhammad himself transferred the property in the name of his son (petitioner No,2, Ahmad Yar) after receiving consideration amount before the Tehsildar.
3. The rival stances of the parties led the Trial Court to frame issues. After recording evidence the Trial Court came to the conclusion that the petitioners-defendants had failed to prove the due execution of general power of attorney dated 22.12.1988 and mutation No,631 dated 24.09.1994. On the basis of said conclusion decree was issued in favour of plaintiffs-respondents vide judgment dated 08.07.2008. The petitioners appealed against decree of the Trial Court. On appeal, the evidence available on record was reappraised and findings of the Trial Court were found free from any infirmity. The conclusion of the first Appellate Court was that since the general power of attorney dated 22.12.1988 had not conferred any specific. power upon the Attorney to transfer the property to any of his fiduciary relation, sale mutation No,631 dated 24.09.1994 was illegal. The appeal was, therefore, dismissed vide judgment and decree dated 06.02.2010. So, this petition.
4. The petitioners have challenged the findings of the Courts below on the grounds that no limitation had been placed on the Attorney (petitioner No,1, Muhammad) to transfer the suit land in favour of his son, that is, Ahmad Yar (petitioner No,2), therefore, it could not be held that power of attorney had been misused or mutation No,631 dated 24.09.1994 was not valid. In support of this argument reliance has been placed to the case of "Muhammad Younas v. Muhammad and 2 others" (1999 SCM R 2574). The above stated argument sans merit. The precedent cited by the petitioners' counsel is inapt as in that case the Attorney had not transferred the property in his own name or in the name of his kith and kin. The admitted facts of the present case are that the Attorney namely Muhammad (petitioner No,1) was the real -brother of Muhammad Ismail (Principal-plaintiff) whereas Ahmad Yar (Transferee-petitioner No,2) was the real son of the Attorney. Question which falls for determination in this case is whether the Attorney on the basis of general power of attorney dated 22.12.1988, in the given facts and circumstances of the case, could transfer the suit property to his real son, Ahmad Yar ("petitioner No,2). The law governing this question has been settled by the Hon'ble Supreme Court of Pakistan. First judgment on the above said question was rendered in the case of "Fida Muhammad v. Pir Muhammad Khan (deceased) through Legal Heirs and others" (PLD 1985 Supreme Court 341) wherein it was held that if the agent dealt on his own account with the property under agency, e.g. if he purchased it himself or for his own benefit, he in his own interest should obtain the consent of the principal in that behalf after acquainting him with all material circumstances on the subject. failing which the principal was at liberty to repudiate the transaction. The second judgment was passed in the case of "Muhammad Taj Arshad Mehmood and 3 others" (2009 SCM R 114) in which it was settled that whenever general attorney transferred property of his principal in his own name or in the name of his close fiduciary relations, the attorney had to take special permission from the principal. Lastly in the case of "Mst.
Naila Kausar and another v. Sardar Muhammad Bakhsh and others" (2016 SCM R 1781) the Hon'ble Supreme Court of Pakistan has held that attorney can not utilize the powers conferred upon him to transfer the property to himself or to his kith and kin without special and specific consent and permission of the principal. In the present case neither the general power of attorney dated 22.12.1988 contained any special and specific power conferring right upon Attorney (Muhammad- petitioner No, 1) to transfer the suit property to his real son namely Ahmad Yar (petitioner No,2) nor any of the witnesses who appeared before the Trial Court deposed that permission of the Principal Muhammad Ismail was obtained prior to transfer of suit land in favour of Ahmad Yar. In these attending circumstances, the transaction of sale as incorporated in the mutation No, 631 dated 24.09.1994 could not be held valid. Exactly the same conclusion was drawn by the Courts below and thus interference therewith is not called for in exercise of revisional jurisdiction of this Court.
5. This petition being devoid of any merit is dismissed with no order as to costs.