AMIN-UD-DIN KHAN, J.--Through this appeal appellants have impugned the judgment and decree dated 11.11.2015 passed by learned Civil Judge Class-I, Gujranwala whereby suit for declaration, possession and permanent injunction filed by the appellants-plaintiffs was dismissed.
2. Brief facts of the case are that appellants-plaintiffs on 24.10.2007 filed suit subject matter of this appeal to challenge the validity of registered General Power of Attorney of Muhammad Akram, their father, Exh.P.1 in favour of Muhammad Riaz/respondent No, 1 and Exh.P.2 General Power of Attorney by their father in favour of Muhammad Anwar/respondent No, 2 and challenged all the transactions of transfer of land owned by their father in favour of the other defendants. On 19.4.2008 Muhammad Riaz filed consenting written statement whereas all the other defendants filed contesting written statements. Learned trial court on 17.06.2009 framed the following issues:--
1. Whether the plaintiffs are owner in possession of the suit property as mentioned in para No, 1 of the plaint? OPP
2. Whether the disputed mutation and registered sale deeds and general power of attorneys are false and frivolous, null void and ineffective upon rights of the plaintiffs? OPP
3. Whether the plaintiffs are entitled for decree of declaration through possession and permanent injunction as prayed for? OPP
4. Whether the instant suit is false and frivolous hence liable to be dismissed? OPD
5. Whether the plaintiffs have not come to the court with clean hands and they have no locus- standi to file the instant suit? OPD
6. Whether the plaintiffs are estopped by their word and conduct? OPD
7. Whether the plaintiffs have concealed material facts from the court? OPD
8. Relief.
Issue No, 1 was re-framed on 20.3.2013, same is reproduced as under:--
1. Whether the plaintiffs are owner of suit property being legal heirs of Muhammad Akram deceased? OPP Learned trial court invited the parties to produce their evidence. Both the parties produced their oral as well as documentary evidence. Learned trial court dismissed the suit vide judgment and decree dated 11.11.2015. Hence, this RFA.
3. Learned counsel for the appellants argues that Muhammad Shafi, the sole witness of Exh.P.1/impugned power of attorney, was not produced. The alleged witness of Exh.P.2 is Muhammad Riaz/defendant No, 1, who denied being the marginal witness of the said document.
Learned counsel for the appellants has relied upon "Muhammad Nawaz v. Shahida Perveen and others" (PLD 2017 Islamabad 375), "Bashir Hussain Shah and 3 others v. Imdad Hussain Shah and 2 others" (2008 YLR 433), "Noor Hassan and others v. Ali Sher and others" (2015 SCM R 452), "Sardar Ali v. Mst. Sardar Bibi alias Sardaran through L.Rs," (2010 SCM R 1066) and "Maqsood Ahmad and others v. Salman Ali" (PLD 2003 Supreme Court 31). It has lastly been argued that even some transactions have fraudulently been shown in favour of the plaintiffs/appellants by the said Attorneys and subsequently property transferred through the said transactions in favour of the appellants which too were further transferred fraudulently in order to cover the fraud committed by the respondents.
4. On the other hand, learned counsel for the respondents argues that Muhammad Akram passed away on 20.5.2005 whereas power of attorney Exh.P.1 is registered one and dated 14.3.1995 and Exh.P.2 is also registered one and dated 13.09.1997. Muhammad Akram never challenged the power of attorney nor disputed the same nor he challenged any transaction made by the Attorneys in his life time. Further that complete evidence which was in the, knowledge and command of the transferees/the defendants was produced in the learned trial court. Defendants produced Tehsildar who attested various mutations. Further that when fraud was pleaded it was the responsibility of the appellants-plaintiffs to plead and prove the fraud in accordance with the standards set by this Court as well as august Supreme Court of Pakistan. The appellants-plaintiffs failed to plead and prove the fraud in accordance with law, therefore, their suit was rightly dismissed and the suit was time barred also. Further that some of the transactions made by the Attorneys were in favour of the appellants-plaintiffs. Neither they can deny the knowledge of those transactions nor their father challenged the same. Prays for dismissal of the appeal.
5. We have heard learned counsel for the parties at length and gone through the voluminous record with their able assistance as well as findings recorded by the learned court below.
6. Pivotal issue is Issue No,
2. The learned trial court while discussing in detail the documentary evidence decided the issue against the plaintiffs/appellants. So far as question of proving execution of general power of attorneys Exh.P.1 and Exh.P.2 is concerned, we bow before the law declared by the august Supreme Court of Pakistan with regard to proving a document by the beneficiary but we are equally of the view that the case where validity of a registered document is challenged and the connivance of Sub-Registrar as well as officials of the A Province of Punjab is pleaded, the Province of the Punjab in that eventuality becomes a necessary party. Further that fraud must be pleaded under Order VI, Rule 4 of the B C.P.C. In the case in hand neither the Province of Punjab nor any official whose connivance is pleaded regarding fraud has been impleaded as defendant nor the detail of fraud has been pleaded in the suit.
7. We are of the further view and considered opinion that codified law as well as precedents of this Court and august Supreme Court of Pakistan are applied on the basis of series of facts if the same are similar.
8. In case in hand which is under discussion what we have gathered is that the principal i,e, father of the plaintiffs was having an arrangement with defendants Nos, 1 and 2 his attorneys through Exh.D-16 which is a document from the register of the Petition Writer to show the agreement between the principal and the agent. It seems that on the basis of that agreement (Exh.D.16), Exh.P.1 and Exh.P.2 were executed and the said Attorneys further transferred the land in favour of other defendants/transferees. When in series the transactions were being made and not challenged for the valuable land, the purchasers were confident that a valid attorney entered into the contract of transfer of land of the principal. Even some transactions were made by the Attorneys in favour of the plaintiffs through Exh. P.9 which is mutation of Gift No, 38868 attested on 2.4.1998 by Muhammad Akram through Muhammad Riaz, Attorney in favour of Sana Ullah son of the principal/donor; Exh.P.10 is mutation No, 38869 attested on 2.4.1998 by Muhammad Akram/principal through Muhammad Riaz .General Attorney in favour of Ehsan Ullah appellant and Exh. P.11 is mutation No, 38870 attested on 2.4.1998 in favour of Mst. Maryam Bibi wife of Muhammad Akram/Principal/ donor. DW-7 Abdul Rauf Awan Tehsildar stated that even in some transactions in favour of defendants, Sana Ullah appeared and identified the parties as "Pattidar".
9. In these circumstances of this case, the appellants-plaintiffs when failed to plead the fraud in accordance with Order VI, Rule 4 of the C.P.C. and produce evidence requisite by law and further to implead the necessary parties allegedly contributory to fraud, the onus to prove the execution of power of attorney did not shift upon the vendees/transferees, furthermore plaintiffs are third party who challenged the validity of execution of registered General Power of Attorneys of the year 1995 and 1997 by their father who remained alive till 2005. There is another astonishing fact that even one of the attorneys who is defendant No, 1 of the suit and privy to the contract Exh.P.16/ agreement with the original owner has denied his position being the attorney and further that he transferred the property of the Principal in favour of the transferees/ the defendants. Transferees if wanted to design the transfer of property of the principal in their favour through fraud what necessitated them to get defendant No, 1 appointed as attorney who is favouring the appellants-plaintiffs. In these circumstances of this case when the onus in our view was never shifted upon the transferees, therefore, the onus to produce at least two witnesses of the power of attorney in the light of judgments of the august Supreme Court of Pakistan as well as of this Court were not applicable as the defendants were not obliged to prove valid execution of power of attorneys in the circumstances of this case, when plaintiffs failed to discharge their onus, therefore, the onus did not shift upon defendants. The presumption attached to a registered document was available in the benefit of defendants and was sufficient in this case to consider a valid document. The defendants have discharged the onus with regard to the transactions as we are of the view that when an act is performed by a public functionary in performance of his public duty it has presumptions that it has been performed in accordance with law unless proved otherwise, in the instant case, the registration of document as well as attestation of mutations have presumptions unless rebutted. The appellants-plaintiffs failed to rebut the presumptions attached to these transactions. Further the suit which has been filed even two years after the death of principal i,e, their father and at least 12 years of registration of the first power of attorney Exh.P1 and 10 years of attestation of Exh.P.2, thus the suit was barred by time also.
10. In view of what has been discussed above, we have no other option except to dismiss this appeal, hence, this appeal is dismissed with costs throughout.