MUHAMMAD EJAZ SWATI, J.---The respondent No.1 (plaintif f) filed a suit for declaration and specific performance, against the petitioner (defendant No.1) and respondents Nos.2 and 3, that he has purchased a plot/land bearing Khasra No.9 measuring 9000 Sq. Ft, situated at Mohal, Mouza Khushkaba Sahibzada, Tappa Durrani, Tehsil City, District Quetta from the respondent No.2 Kamran son of Sabar Khan (respondent No.2), against the sale consideration of Rs.13,21,500/-. It was further contended that out of above land 2000 sq. ft was owned by respondent No.3 and remaining land measuring i.e. 6810 sq. ft in the same Khasra No.09 was in the name of Bahadur Khan son of Bole Khan (the petitioner). That the petitioner had given power of attorney to the respondent No.2 for the purpose of sale of land in question.
2. It is the case of respondent No.1/plain tiff that he had paid Rs.1100000/- on the date of agreement i.e. 29-08- 2013 and Rs.100000/- was paid on 22-10-2013 through Muhammad Azeem and possession of land was handed over to him by the respondent No.2 and he was bound to transfer the mutation entry in the name of plaintif f according to agreement, while the remaining amount of Rs.221500/- to be paid at the time of mutation. The plaintif f in his suit had sought following relief, i. To declare that the plaintiff is the legal owner of the land Khasra No.9 totally measuring 9000 Sq. Ft situated at Mohal and Mouza Khushkaba Sahizada Tappa Durrani Tehsil City District Quetta and defendants Nos.1 and 2 has no concern or connection with the same. ii. To direct the revenue authorities/T ehsildar City Quetta to transfer the Mutation entries in the name of plaintiff from defendants Nos.1 and 2. iii. To restrain the defendants permanently and direct them not to interfere in the peaceful possession of the plaintiff over the land in question. iv. Any other relief as may be deemed fit and appropriate in the circumstance of the case may also be awarded."
3. The suit was contested by the petitione r. Out of divergent pleadings 8 issues were framed, after having evidence on record from both the sides, the learned Judicial Magistrate-IX/Civil Judge Quetta-, vide judgment dated 31- 10- 2016, 'decreed the suit in favour of the plaintif f as under , "It is held that suit brought by plaintiff is hereby decreed and he is entitled to relief claimed for and the defendants Nos. 1 and 5 are directed to transfer the mutation entries of disputed property in favour of the plaintiff' after payment of the outstanding amount to defendant No.1.
Given under my hand and seal of this Court on this day of 31st October , 2016."
4. On appeal filed by the petitioner , the learned Additional District Judge-VII Quetta Balochistan, vide judgment and decree dated 23-7-2020 dismissed the appeal.
5. The learned counsel for the petitioner contended that the plaintif f alleged purchase of property in dispute from the petitioner through his attorney i.e. respondent No.2, but no such power of attorney was produced to substantiate his claim that respondent No.2 acted as agent of the petitioner . That the whole suit of the plaintif f was based on an agreement dated 29-8-2013, which has not been produced and suit has been decided on the basis of oral evidence, which was beyond the pleadings. That respondent No.2 had no authority either to dispose of the property in dispute, without having a lawful authority from the petitioner (real owner of the property) nor any such general power of attorney was produced. That the impugned judgment and decree suffers from misreading, non- reading of evidence and misinterpretation of law .
6. The learned counsel for the respondent No. 1 contended that the sale of the property in dispute has not been denied by the respondent C No.2 and he validly entered into an agreement with plaintif f and received the consideration amount and in this respect plaintif f has substantiated his case through evidence, therefore, impugned judgment and decree is liable to be sustained.
7. Having heard the learned counsel for the parties and perused the record. The respondent No.1 /plaintif f in his plaint at paragraph No.1 asserted as under , "On the date 29/8/2013 plaintiff owned a plot/land bearing Khasra No.09 measurin g 9000 Sq ft, situated at Mohal Mouza Khushkaba, Sahibzada Tappa Durrani, Tehsil City, District Quetta from one Kamran son of Sabar Khan against a sale transaction of Rs.132500/- in which the owner of land measuring 2000 Sq ft. Kamran son of Sabar Khan an the remaining land measuring 6810 Sq ft in the same Khasra No.09 which is in the name of Bahadur Khan son of Bole Khan, who has been given the power of attorney to Kamran son of Sabar Khan for sale the said land in question, as such after payment of consideration amount 1100000/- paid on the date of Agreement to the defendant No.2 on 29/8/2013, while the amount Rs.100,000/- paid on 22/10/2013 through Muhammad Azeem son of Haji Umar Draz the possession of the land was handed over to the plaintiff and the defendant No.2 is bound to transfer the mutation entry in the name of plaintiff according to the agreement at the time of giving remaining amount Rs.221500/- copies of agreement, fard, receipts are annexed herewith as Annexure A, A-1, A-2, A-3."
8. The petitioner/defendant No.1 specifically denied the contention of the plaintif f as under , "The factual position is that neither replying defendant nor his son sold out their land to any one nor given authority to sell out their land, the plaintiff has managed concocted story in order to deprive replying defendant from his right by means of filing such a baseless suit."
9. The learned trial court in respect of above controversies framed issue No.5 which reads as under , "Issue No.5.
Whether the plaintiff has purchased the property in dispute measuring 9000 Sq. Ft. from defendant No.2 appearing as representative of defendant No.3 and attorney of defendant No.1 against Rs.150/- Per Sq. Ft. vide oral agreement on 29.08.2010 followed by the written agreement dated 29.08.2013 and has paid Rs.11,00,000/- to the defendant No.1 and defendant No.2?"
10. To prove its case the plaintif f produced PW-1 Shahzada, PW-2 Muhammad Azeem, PW-3 Gul Rau, PW-4 Muhammad Abid and got recorded his statement.
11. The above witnesses of the plaintif f have deposed the fact beyond the pleadings and none of above witness attested the impugned agreement dated 29-8-2013. The plaintif f himself stated that the petitioner/defendant No.1 verbally sold 8000 Sq feet of his property to him, while in plaint, the plaintif f asserted that land in dispute belonging to the petitioner was purchased by him through attorney of the petitioner i.e. respondent No.2 vide agreement dated 29-8-2013 (the agreement).
12. The evidence and statement of the plaintif f is not consistent with what has been pleaded by the plaintif f in his plaint. It is settled principle that averment made in the pleadings do not constitute evidence, but evidence led in their support must be consistent therewith. Anything stated outside the scope of such averment cannot be looked into.
Reliance in placed on cases reported in 2006 SCMR 562 , PLD 1976 SC 469 and 1996 SCMR 336 .
13. The other aspect of the matter regarding which the trial court and appella te court eared in holding that agreement dated 29-8-2013 has validly been arrived between the parties is the agreement dated 29.8.2013 was specifically denied by the petitioner/defendant No.1. The agreement was neithe r produced by the plaintif f nor marginal witnesses G thereof were produced. It is settled law that an agreement to sell an immovable property squarely fall within the provision of Section 17 (2) of the Qanun-e-Shahadat Order , 1984 (the Order) and has to be compulsory attested by two witness and this is sine qua non for the validity of the agreement. For proof of such agreement, it is mandatory that two attesting witnesses must be examined by parties as per Article 79 of the Order ibid. In the instant case the petitioner had unequivocally denied execution of the agreement and it is on account of that issue No.5 was framed requiring respondent No.1/plaintif f to prove the agreement, an admission of co-defendant with regard to the I agreement would not absolve the plaintif f to prove the same in term of law as enunciated in case titled Hafiz Tassaduq Hussain v. Muhammad Din through legal heirs and others (PLD 201 1 SC 241 ) where in the Honorable Supreme Court of Pakistan observed as under , "The purpose and object of the attestation of a document by a certain number of witnesses and its proof through them is also meant to eliminate the possibility of fraud and purported attempt to create and fabricate falls evidence for the proof thereof and for this the legislature in its wisdom has established a class of documents which are specified, inter alia, in Article 17 of the Order , 1984. (See Ram Samujh Singh v. Mst. Mainath Kuer and others (AIR 1925 Oudh 737). The resume of above discussion leads us to an irresistible conclusion that for the validity of the instruments falling within Article 17 of the Attestation as required therein is abso lute and imperative. And for the purpose of proof of such a document, the attesting witnesses have to be compulsorily examined as per the requirement of Article 79, otherwise, it shall not be considered and taken as proved and used in evidence. This is in line with the principle that where the law requires an act to be done in a particular manner , it is to be done in the way and not otherwise."
14. The respondent No. 1/plaintif f besides relying the agreement also asserted that respondent No.2 being a lawful attorney of the petitioner executed the agreement to sell property belonging to the petitioner .
15. According to section 2 of Attorney Act 1882, power of attorney is written authorization, whereby the "principle" authorizes the "agent" to do the acts spec ified therein on behalf of "principle" which when executed will be bindings on the "principle" as if done by him. Primary purpose of instrument of such nature is to assign authority of "principle" to another person as his agent. Power of attorney is a document which creates. financial liabilities, as such, is to be attested by at least two witnesses and proved by evidence of attesting witnesses as required under the Order 1984. A power of attorney is held to confer only those powers which are specified therein and in case power of attorney create any rights, title or interest in immovable property , the same should have been compulsory registered as per law. Reference in this respect is to be made to case titled Siraj Din and others v. Ghulam Nabi and others ( PLD 2003 SC 159 ), wherein the Honorable Supreme Court of Pakistan observed as 'tinder , "The entire case hinges upon the authenticity of alleged general power of attorney said to have been executed by Mst. Sardaran Bib! in favour of Allah Ditta. The record shows that no such general power of attorney was produced in the evidence before the trial Court as such its being in non-existence, the questio n of its validity does not arise at all. 'Under section 17 (b) of the Registra tion Act, any document that purports to create right, title or interest in immovable property requires compulsory registration. In case if it was in existence, the same should have been compulsory registered as per law and its mere attestation by the Notary Public was not sufficient to meet the requirement of the law . "
16. The case of the plaintif f as reflected in the plaint was based on an agreement dated 29-8-2013 and deed of power of attorney , both essential documentary evidence have not been produced by the plaintif f to substantiate his case, therefore, findings of the trial court and appellate court lacked consideration of the above legal aspect of the matter and impugned judgment and decree suffer from material irregularity , illega lity and mis-construction of law, thus cannot be sustained.
In view of the above, instant Civil Revisi on Petition No.278 of 2020 is allowed. Impugned judgment and decree dated 31-10-2016 passed by Judicial Magistrate-IX/Civil Judge, Quetta and judgment dated 23.07.2020 passed by Additional District Judge-VII, Quetta to the extent of petitioner are set aside and suit filed by the respondent No.1 is dismissed.