MUHAMMAD NAEEM ANW AR, J. This civil revision is directed against the judgment and decree of the learned Additional District Judge-I, Peshawar , whereby appeal of respondent No.1 was accepted and petitioner's suit was dismissed.
2. Plaintif f through his suit has sought declaration that he is owner in possession of 1/2 share in the constructed house measuring 4000 Sq.ft, situated at Zaryab Colony Peshawar on the strength of a decree in Civil Suit No.592/1, decided on 20.06.1978 in case titled "Abdul Wahid v. Jehanzeb and others", complete description of which was given in heading of plaint, with which defendants has got no concern whatsoever , its alienation through alleged registered deeds No.1902 dated 13.07.1994 and No.1991 dated 28.07.1 994, on the basis of so called power of attorney bearing No.248 dated 29.01.1992 is wrong, against the fact, based on fraud and collusion, thus ineffective upon his rights. Similarly , he prayed for perpetual injunction that they be restrained from alleging their ownership rights, from further alienation and making any kind of alteration in it. In addition, he sought recovery of possession through partition. In contents of plaint, he alleged that disputed house was jointly purchased by him and respondent No.1 from Jehanzeb and Akhtar Javed sons of Gui Muhammad . Later-on, due to unjustified interference by the vendor , they (plaintif f and defendant No.1) has filed a suit before civil court, which was decreed in their favour . They have improved it by making construction consisting upon six rooms and both of them started their business in it. Thereafter , plaintif f filed a suit for partition of the said house against defendant No.1 and when defendant No.1 filed his written statement and annexed alleged power of attorney and registered deeds, then he has filed amended plaint by challenging the power of attorney and registered deeds, besides, seeking recovery of possession through partition. Suit was contested by defendants Nos.1 to 3 through their separate written statements on number of legal and factual objections. At trial, plaintif f in support of his suit appeared as PW-1 and narrated all the facts. On the other side, defendants produced Hamayun Khan, Record Keeper from the office of Sub-Registrar , Ghulam Abbas, Technician, Muhammad Qamar Inspector Taxation Office, Peshawar , Fazal Hakeem, Sales Supervisor , SNGPL, Peshawar , Muhammad Saisal as attorney for defendant No.2, Iftikhar Ahmad Advocate, Shagufta Nasreen, Defendants Nos.1 and 3 appeared in person and Zahid Gul. After completion of evidence, learned trial court decreed the suit through judgment and decree dated 28.12.201 1. Respondent No.1 has preferred an appeal, which was allowed by the learned appellate court on 28.02.2015, hence this petition.
3. Arguments heard and record perused.
4. The whole wrangle hinges on issue No.9, which was framed as "Whether registered deeds No.1902 dated 13.07.1994 and No.1991 dated 28.07.1994 were validly executed"?. Scrutiny of record transpires that allege d attorney Danish Gul (respondent No.3) transferee, Mst. Bahrawar Sultana (respondent No.1) are son and wife of Abdul Wahid (respondent No.2). Only marginal witness produced namely Faisal is also son of respondent No.2 and brother of respondent No.3. Zahid Gui, the witness of payment of sale consideration is the brother of respondent No.2. They deposed that the other marginal witness of alleged power of attorney Ex.DW -1/x-1 is dead. Scribe of Ex.DW -1/x-1 not produced being dead. Similarly , stamp vendor was also not produced. Interestingly , all the alleged deeds Ex.DW -1/x-1, Ex.DW -7/1 and Ex.DW -7/2 were written by Nisar Butt, petition writer , who too was not produced being dead. Marginal witness of Ex.DW -7/1 and Ex.DW -7/2 were Iftikhar Butt (DW-7) and Abdul Hameed.
But Abdul Hameed was also not produced by the respondent without any reason. It is in the statement of Zahid Gul that plaintif f (petitioner) has five sons, three of them are Ifran, Shahzad and Fahad, but none of them is a witness of any deed. Respondents produced Shagufta Nasreen, daughter of Syed Imran Ali Shah in order to prove the signature of her father on Ex.DW -1/x-1, when one of the marginal witness of general power of attorney was dead, then production of Stamp Vendor and Sub-Registrar was one of the requirement for respondent to prove the genuineness of the document. Similarly , the other deeds Ex.DW -7/1 and Ex.DW -7/2 were also required to be proved in accordance with Article 79 of the Qanun-e-Shahadat Order , 1984. For the reasons best known to respondents they have not produced Abdul Hameed, the other marginal witness of both the deeds and the one, they produced he was not only the son of Petition Writer but remained as couns el for respondent from the very early stage of filing of written statement. His statement is also not confidence inspiring. When the petitioner has challenged the power of attorney , the agent was required to prove not only the authenticity of document but also that before transferring the property of principal, he has got special permission from the principal, in the circumstances, especially when the attorney is transferring the property to his near and dear. Danish Gul, the attorney had transferred the property in favour of his mother , the other marginal witness of deed is Faisal, his brother , who also remained the special attorney for his mother , all these circumstances leads to the conclusion that all the respondents collusively , fraudulently and deceitfully managed / prepared the power of attorney and sale deeds. If the property of principal is transferred against petty amount of Rs.1,20,000/- for the constructed house, and there is no independent proof that even the said amount was ever transferred to the principal by the attorney , in such an eventuality , the transaction shall suffer from inherent defect of being contrary to the law and authority of the attorney . The recitals of Ex.DW -1/x-1 reveals that it was general in nature authorizing the attorney to deal in the property in all manners but before making any transfer the special permission of principal was pre-condition and second that the sale consideration must have been paid to the principal. In case titled "Maqsood Ahmad and others v . Salmon Ali" (PLD 2003 SC 31 ), the Hon'ble Supreme Court has held that: - "13. With reference to the context of power of attorney we have pointed out to the learned counsel for appellants that as appellant Maqsood Ahmad had been authorized to deal with the affairs of the property including the financial powers, therefore, if he wanted to transfer the land in respect whereof allegedly respondent appointed him as attorney to deal with his property , it was incumbent upon him to have sought prior approval of the Principal before transferring the land on the name of his brother Muhammad Ayub being the close relative of the attorney in order to make it a valid transaction in terms of section 211 read with section 215 of the Contract Act. His contention was that the respondent had already received Rs.36,06,000 in between the period commencing from 1992 to 1995 with a commitment to transfer 71 Kanals, 18 Marlas in favour of appellants, therefo re, after making payment of this much amount which admittedly was received by respondent in parts from time to time including the payment of Rs.6,00,000 as per Exh.D/1, therefore, the Attorney Maqsood Ahmad had an implied consent of the respondent for transfer of the property on the name of his brother Muhammad Ayub".
5. Again in case titled "Jamil Akhtar and others v. Las Baba and others" (PLD 2003 SC 494), it was observed by the apex Court that: - "Ss.188 & 214---Power of Attorney Act (VII of 1882), S.2---Agent---T ransfer of princ ipal's property---Duty of agent--- Appointment of a general attorney is a matter of routine as well as requirement of principal and is never indicative by itself of a sale or absolute sale on behalf of principal; much less a sale in favour of agent himself--General attorney must take special permission from principal while transferring his principal's property in his own name or in the name of his close fiduciary relations".
6. The law of the land has also been established that the attorney would require prior permission, approval and consent of the principal when he wants to transfer the property in the name of his close relatives. B Reliance can be placed on Mst. Shumail Begum v. Mst. Gulzar Begum and 3 others" (1994 SCMR 818) and Mst. Ghulam Fatima v. Muhammad Din and others (2004 SCMR 516). The entire evidence was scrutinized but riot even an iota of evidence is available on record for such prior permission.
7. Likewise, the payment of sale consideration to the principal through cogent and confident inspiring evidence is also lacking as enunciated by the Hon'ble Supreme Court in case titled "Sardar Ali v. Wazir Khan" (2005 SCMR 1583 ) has held: - "It is true that P.W.3 is scribe of the docum ent but he had failed to furnish trustworthy evidence to establish that the 'transaction in respect of sale of land took place between the parties in pursuance whereof the petitioner paid Rs.1,00,000 out of total sale consideration of Rs.1,25,000. Since the document (Exh.P .1) has not been proved on record according to law, therefore, no exception can be taken to the impugned judgment which is based on correct appreciation of evidence available on record".
Similarly , the Apex Court in case titled "Ghulam Mustafa v. Muhammad Yahya" (2013 SCMR 684) has held that: - "this is an admitted fact that only one marginal witness to the agreement to sell was produced and he also did not support the claim of the appellant regarding payment of sale consideration in his presence as was mentioned in the agreement therefore, the assertion of the respondent that her signature on the agreement were obtained deceitfully would be sufficiently supported by the evidence on the record. The genuineness of the agreement and the transaction of sale was not proved as per requirement of Article 17 read with Article 15 of Qaaun-e-Shahadat Order , 1984 and this is settled law that relief of specific performance cannot be granted unless the execution of sale agreement as per requirement of law and payment of sale consideration in part or full is proved."
8. Though the respondents have produced eleven witnesses but could not establish the execution of power of attorney in favour of respondent No. 1 . Similarly , prior permission for transferring the property and payment of sale consideration also remained shrouded in mystery . Thus, the findings of the learned appellate Court are not in accordance with law and as such warrants interference, therefore, for the reasons discussed above, this petition stands allowed, consequently the judgment and decree of the learned appellate court is set aside and that of learned trial court is restored, with no order as to cost.