Rasaal Hasan Syed, J.
C.M. No.1-C of 2022 This miscellaneous application has been filed for permission to adduce additional evidence. It is prayed that Asghar Ali, one of the marginal witnesses to the disputed agreement of sale who was earlier not produced during the trial of the case, may be allowed to be produced and his statement be recorded as additional evidence at this stage.
2. Petitioners in the instant application after narrating the facts, allege that the evidence produced in the suit was sufficient to prove their case and that the case needs to be decided on preponderance of evidence and also that the prudent conclusion from the evidence could only be in their favour as the petitioners in their own perception had produced all the material evidence to prove and establish their case. Regarding Asghar Ali it was alleged that he could not be produced during the trial as he was out of reach and contact of petitioners and that he was a permanent resident of district Bahawalnagar and had abandoned the petitioners in the year 2001 and that the petitioners could not trace him. It is asserted that the learned Addl. District Judge dismissed the suit while accepting the appeal of respondents on inter alia the ground that the petitioners had not produced the other attesting witness and from this it was presumed that if the witness had been produced he would have deposed against the petitioners and that though the suit of the petitioners was decreed by the Trial Court on the existing evidence; yet the appeal was accepted and decree was set aside in appeal and that the petitioners now seek permission to produce Asghar Ali in evidence by way of additional evidence.
3. Under Order XLI, Rule 27, C.P.C. the Appellate Court has the discretion to allow the additional evidence if the court from whose decree the appeal was preferred had refused to admit the evidence which ought to have been admitted or where the Appellate Court itself is satisfied that the additional evidence could not be produced before the Trial Court for reasons beyond the control of the party or that the Appellate Court itself requires such evidence as to enable it to pronounce judgment. In the instant case the suit was filed on 12.7.2005, it remained pending for about ten years before the civil court; the petitioners were allowed full opportunity to produce evidence who opted to produce oral and documentary evidence as was deemed necessary and, thereafter, they closed their evidence.
After closure of their evidence, respondents' evidence was recorded and the suit was finally decided by the learned Civil Judge on 22.6.2015. During the trial that lasted ten years approximately, it was never claimed that Asghar Ali was not traceable or that the petitioners could not contact him or that they intended to summon Asghar Ali as a witness and that the process of the court be issued for the said purpose. To the contrary the petitioners felt confident and certain in their own perception that the evidence produced by them was sufficient to prove their case for grant of decree.
4. The judgment and decree passed by the Trial Court was challenged in appeal, which too remained pending for approximately for four years. Neither during the pendency of the suit nor during the pendency of the appeal, any request for production of Asghar Ali as a witness was ever made before the Trial Court or the Appellate Court despite the fact that one of the grounds raised in the appeal to challenge the validity of judgment of the Trial Court was that the mandatory evidence was not produced, material witnesses were withheld and that the case otherwise could not be established by any credible evidence. The appeal was allowed on 08.8.2019 whereafter the instant civil revision was filed which has been pending for more than three years . Even in the grounds of revision petition, the petitioners did not express any desire or intention to produce Asghar Ali as a witness nor did they feel the necessity of production of such evidence in the case. To the contrary the stance throughout was that the rule of preponderance of evidence should have been followed and considering the rule the petitioners had allegedly made out the case for the relief and that the suit could not be dismissed due to non-production of second marginal witness. In the course of lengthy hearing of this revision petition, the respondents amongst other points had been stressing the effect of non-production of Asghar Ali as a witness yet the petitioners continued with their stance that the rule of preponderance of evidence should be followed and that the judgment of the Appellate Court could not sustain. Even in the present application the petitioners have tried to shift the onus upon the Appellate Court by asserting that they were "taken by surprise" when one of the grounds that prevailed with the Appellate Court was that the mandatory requirement of Article 79 of Qanun-e-Shahadat Order, 1984 was not complied with. Ground "(b)" of the application is as follows: "b. That the learned Court of Appeal has dismissed the suit of the Petitioners on the ground that the Petitioners have not produced the other attesting witness leading the court to presume that had he been so produced, he would have deposed against the Petitioners. The learned court of Appeal has based the Impugned Judgment and Decree dated 08.08.2019 on wrong application of principles of appreciation of evidence while administering justice on civil side.
It is cardinal principle of law that appreciation of evidence in civil cases is based upon the concept of preponderance of probabilities. The normal rule which governs the civil proceedings is that a fact can be said to be established if it is provided by preponderance of probabilities. This is for the reason that under Qanun-e- Shahadat, 1984, a fact is said to be proved when the court either believes it to exist or consider its existence so probable that a prudent man ought under the circumstances of a particular case, to act upon the supposition that it exists. Article 2(4) is reproduced verbatim for ready reference.
"A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
5. In "Ejaz Muhammad Khan and others v. Mst. Sahib Bibi trough Shahzad Khan and others" (1996 SCMR 598) it was observed to the effect that no doubt Order XLI, Rule 27, C.P.C. empowered the Appellate Court to receive additional evidence in appropriate cases but lack of vigilance on the part of petitioners of years rendered it an unfit case for the exercise of such power in their favour. In the said case the total duration period of inaction on the part of the petitioner was about seven years wherein it could not be explained as to why the steps to produce the evidence in question were not taken for so many years and the order of declining permission under Rule 27 of Order XLI, C.P.C. was affirmed. In "Shtamand and others v. Zahir Shah and others" (2005 SCMR 348) it was observed that parties could not be allowed to fill up lacunas in evidence at appellate stage and that if there was no explanation for the inordinate delay except that the application could be accepted by imposing costs, there was no tenable justification for permission to adduce evidence: "We have carefully examined the contentions as agitated on behalf of petitioners in the light of provisions as contained in Order 41, rule 27, C.P.C. It is worth mentioning that the suit was filed on 6-6 1994 and proper opportunity of hearing to lead evidence was afforded to the petitioners, who woke up from a deep slumber after nine years and moved an application for additional evidence. Mr.Fateh Muhammad Khan, learned Advocate Supreme Court when asked pointedly that why the application for additional evidence was moved with inordinate delay, no satisfactory answer could be given except that the application could have been accepted by imposing cost. We have gone through the judgment of the learned Trial Court which is indicative of the fact that the sale- deed (Exh.P.W.2/1) dated 23-1-1932 has been taken into consideration and discarded for the reason that it had no nexus with the property in-question which was not mentioned therein. In such view of the matter the question as to whether the sale-deed was registered or otherwise, would have no substantial bearing on the merits of the case. In fact the petitioners want to fill in the gaps and lacunas at appellate stage which could not have been done by invocation of the provisions as contained in Order 41, rule, 27, C.P.C. The application for additional evidence cannot be allowed on flimsy grounds and the Courts below were justified in refusing to allow production of additional evidence at Appellate stage in absence of any reasonable justification which is lacking in this case. In this regard we are fortified by the dictum laid down in cases titled Rehmatullah v. Fazal Baqi 1998 SCMR 670, Mad Ajab v. Awal Badshah 1984 SCMR 440, Nazeef v. Abdul Ghaffar PLD 1966 SC 267 and Parsotim Thakur v. Lal Mohar Thakur AIR 1931 PC 143."
6. In "Rana Abdul Aleem Khan v. Idara National Industrial Co-Operative Finance Corporation Defunct through Chairman Punjab Cooperative Board for Liquidation, Lahore and another" (2016 SCMR 2067) it was observed to the effect that the provisions of Order XLI, Rule 27, C.P.C. as are available for additional evidence did not impart unfettered power nor did the Appellate Court have the discretion to allow the additional evidence as a matter of choice rather the discretion is structured/limited by the factors enunciated in the said provisions, i.e. where the court from whose decree the appeal had been preferred has refused to admit any evidence which it ought to have been admitted and that the provision does not mean to give a delinquent litigant a chance to make up his omission or fill up the lacunas in his case by way of additional evidence. Material part of the precedent is reproduced as under: "Learned counsel for the petitioner argued that when it is necessary for the Court for the purposes of pronouncing a judgment, there is no bar upon the Court which has a discretion to allow additional evidence and for this to remand the matter. We are afraid that the power under the provisions of Order XLI, Rule 27 of the C.P.C. for allowing additional evidence available is not unfettered nor does the Appellate Court has the discretion to allow additional evidence per its own caprice, rather it (discretion) is structured/limited by the factors enunciated in the said provisions of law i.e., where the Court from whose decree the appeal has been preferred has refused to admit any evidence which it ought to have admit. In this case, the petitioner never moved the Courts below to produce any evidence in the nature of examination of the Postman which was declined; that the Appellate Court requires any document or examination of witnesses enabling it to pronounce its judgment does not mean that the Court shall provide a delinquent with a chance to make up for his omission and fill up the lacuna of his case and allow additional evidence particularly in the circumstances when neither in the grounds of appeal a case for additional evidence has been set out nor any independent formal application has been moved for the purposes of producing additional evidence. It is categorically held in number of judgments including that reported as Muhammad Tariq and others v. Mst. Shamsa Tanveer and others (PLD 2011 SC 151) that, "...such power should not be exercised as a matter of course to favour a delinquent litigant, rather in genuine cases....", and that too within the strict scope of Order XLI, Rule 27 of the C.P.C. We do not find this to be a case falling within the purview of the provision ibid. The judgment reported as Mst. Fazal Jan v. Roshan Din and 2 others (PLD 1992 SC 811) cited by the learned counsel for the petitioner has no bearing on the facts and circumstances of the case and, therefore, is inapplicable, Consequently, we do not find any reason to interfere in the impugned judgment.
Petition is dismissed accordingly."
7. It is evident from the rule consistently observed in the cases cited supra that the provisions of Order XLI, Rule 27, C.P.C. are discretionary in nature. The discretion has to be exercised within the parameters of the rules and that it does not allow a negligent litigant to make up deficiencies or fill up the lacunas and that for seeking permission the proposed additional evidence shall have been declined by the Trial Court. None of these circumstances obtain in the instant case.
8. In the Trial Court or in the Appellate Court where the matter remained pending collectively for approximately thirteen years no such application was ever filed. Rather the petitioners voluntarily closed their evidence and did not feel the necessity of producing any other evidence including that of Asghar Ali. The appeal was allowed in the year 2015 and one of the factors which were considered in the judgment of the Appellate Court was the effect of non-compliance with Article 79 of the Qanun-e-Shahadat Order, 1984 but despite that the petitioners contested the reasoning of the learned Addl. District Judge in the grounds of the revision petition and insisted that the rule of preponderance of evidence should have been followed and that there was sufficient evidence to affirm the judgment of the Trial Court and that the learned Addl. District Judge, in petitioners' perception, did not act in accordance with the applicable rule. Even in the present application the petitioners are stressing more about their belief that there is sufficient evidence on record to decree the suit and are expressing their surprise to the reasoning that prevailed with the court below little appreciating that the mandatory condition of proving a document under Article 79 of Qanun-e-Shahadat Order, 1984 was the production of marginal witnesses if they are alive. Petitioners at no stage ever claimed lack of contact with the witness nor expressed any inability to produce Asghar Ali as witness rather their case throughout had been that they had produced sufficient evidence for decreeing their suit. In view of the petitioners' own conduct, inaction and act of the delinquency and an attempt to throw the onus upon the Appellate Court, they are not entitled to any indulgence in discretionary jurisdiction. Even otherwise petitioners' plea that the suit was dismissed for only one reason appears to be predicated on misreading of the Appellate Court's determination wherein many other factors were considered, particularly, the inconsistency in the pleadings and evidence; contradictions in statements of witnesses including the petitioners as P.W.1 and P.W.2 and the conclusions of Appellate Court were based on multiple reasons and correct analysis of the entire evidence on record. Regardless for disposal of this application suffice it to observe that the petitioners' conduct does not justify the indulgence in discretionary jurisdiction and that the preconditions of Order XLI, Rule 27, C.P.C. being non existent, instant C.M. No. 1-C of 2022 being devoid of substance merits to be declined and is accordingly dismissed.
Main Case Through this civil revision consolidated judgment dated 08.8.2019 of the learned Addl. District Judge, Lahore is impugned whereby appeals of respondents were allowed, judgment and decree dated 22.6.2015 of the Trial Court was set aside and the suit of the petitioners in result was dismissed.
2. Precisely the facts out of which this revision petition stems are that petitioners instituted a suit for declaration, cancellation of document, possession and permanent injunction against the respondents asserting that petitioner No.1 purchased land measuring 24 kanals and 19 marlas from respondent No.1 through an agreement to sell dated 28.7.1999; the agreed price was Rs. 39,95,000/- out of which Rs.39,90,000/- was allegedly paid at the time of the agreement and balance amount of Rs. 5,000/- was received after few days; two receipts were allegedly executed by respondent No.1 in favour of petitioner No.1 to acknowledge receipt of full amount and handing over of possession of land; an irrevocable general power of attorney was allegedly executed in favour of petitioner No.2 (father of petitioner No.1) for the purpose of transfer of proprietary rights as per demand of petitioner No.1 which was registered as document No. 5290, Book No. 04, volume 1023 dated 02.9.1999; original title document was allegedly handed over to the petitioner No.1; the petitioner No.1 allegedly purchased stamp papers for the execution of sale deed in favour of his mother through petitioner No.2 who obtained "Fard Malkiat" from Patwari Halqa but that due to heavy increase in the prices of suit land respondent No.1 became greedy and acquiring knowledge of the intended execution of sale deed in favour of mother of the petitioner No.1, respondent No.1 cancelled the general power of attorney vide document No. 3624, bahi No.4, jild No. 48 dated 20.8.2003 registered with the Sub-Registrar Model Town, Lahore. It was petitioners' claim that respondent No.1 along with his daughter sold land to respondent No.2 vide sale deed No. 6036, bahi No.1, jild No. 369 dated 20.7.2004 registered with the Sub-Registrar, Aziz Bhatti Town, Lahore in the month of April 2005 and that in the garb of sale deed respondent No. 2 forcibly took over the possession of 11 kanals and 8 marlas of the land subject matter of agreement to sell in favour of petitioner No.1 and that respondent No.1 having already alienated his land in favour of petitioner No.1 through agreement to sell, two receipts and executed an irrevocable general power of attorney in favour of petitioner No.2, had no authority to either revoke the power of attorney or alienate any portion of the land subject matter of sale agreement nor respondent No.2 had any authority to dispossess petitioner No.1 forcibly from the suit property. In this backdrop a claim for declaration, cancellation, possession and injunction was made.
3. Respondents filed their separate written statements wherein respondent No.1 denied the sale agreement and also the alleged payment of consideration and termed the document as self-concocted; the plea of the petitioner regarding transfer of possession was also denied and it was specifically stated that no agreement to sell was ever executed nor any consideration was received and that the alleged documents were a result of fraud. Respondent No.2 in his response stated that land measuring 19 kanals and 13 marlas in khewat No. 83, khatauni No. 191 situated at Haddbast Mauza Raja Bholay, Tehsil Cantt., District Lahore was purchased from respondent No.1 and his sister through registered sale deed dated 20.7.2004, possession was transferred in his favour and that he was owner in possession thereof in his own right as a lawful purchaser for valuable consideration.
4. Issues were framed and parties produced their oral and documentary evidence; whereafter the learned Civil Judge vide judgment dated 22.6.2015 allowed a decree for recovery of possession of land to the extent of 11 kanals and 8 marlas from respondent No.2. Feeling aggrieved thereof the respondents filed separate appeals which were accepted by the learned Addl. District Judge vide consolidated judgment dated 08.8.2019 in terms whereof the findings of Trial Court as to the agreement of sale and payment of consideration were reversed, the judgment and decree of the trial court was set aside and the suit of petitioners was dismissed; which judgment is now under challenge in the instant revision petition.
5. Learned counsels for the petitioners inter alia argued that the case should have been decided by the appellate court on the basis of preponderance of evidence instead of indulging in technicalities and that collective reading of evidence leads to no other conclusion except that the plea raised by the petitioners was sufficiently established which evidence was ignored or not appreciated correctly, certain admissions on record were unjustifiably omitted from consideration, the findings of the learned Civil Judge were based on correct analysis of evidence which were illegally interfered with in appeal and that the conclusions drawn by the court of appeal were based on misreading and non-reading or misappreciation of evidence on record. In response respondents' learned counsels supported the judgment and reiterated the reasons which prevailed upon the learned Addl. District Judge for reversing the judgment of the Trial Court with the further assertion that the evidence of the parties was correctly appreciated, no misreading could be pointed out which could vitiate the findings and that the petitioner was unable to prove the existence of sale transaction as also the execution of agreement of sale and that the suit was rightly dismissed in appeal which was otherwise not maintainable and that no declaration of title could be claimed on the basis of alleged agreement of sale or the power of attorney which was lawfully cancelled.
6. Due consideration of the facts supra in the light of material documents annexed with this petition shows that the claim of petitioner No. 1 was based on an alleged agreement of sale dated 28.7.1999 in terms whereof it was his case that land measuring 24 kanals and 19 marlas was purchased for consideration of Rs. 39,95,000/-, the total consideration was paid and that a general power of attorney was executed in favour of petitioner No. 2, father of petitioner No.1, which was irrevocable and in terms whereof the petitioner attempted to transfer the property in favour of his mother when the power of attorney was cancelled and respondent No. 1 executed a sale deed in favour of respondent No.2 which was registered as document No. 6036, bahi No.1, jild No. 369 on 20.7.2004 with the office of Sub-Registrar Aziz Bhatti Town, Lahore and that in the garb thereof respondent No. 2 took over the possession of 11 kanals and 8 marlas of property subject matter of the agreement of sale purportedly executed in favour of petitioner No.1. Petitioners in this backdrop claim relief of declaration, cancellation of "Abtaal Nama" and sale deed and for possession of the land allegedly taken over by respondent No. 2. The existence of the alleged sale transaction, execution of the agreement, the alleged payment of consideration and also the execution of two receipts, was questioned and disputed by respondent No.1 who categorically took the stance that no such deal was ever made nor possession was ever given or agreement executed, or receipts signed as acknowledgement of payment. As to the power of attorney dated 02.9.1999 which was registered as document No. 5290, book No.4 and volume 1023, the same was statedly cancelled through "Abtaal Nama' bearing document No. 3624, bahi No.4, jild No. 48 dated 20.8.2003 registered with the office of Sub-Registrar Model Town, Lahore. Respondents' stance was that the land was sold by respondent No.1 along with his daughter through sale deed No. 6036, bahi No.1, jild 369 dated 20.7.2004 registered with the office of Sub-Registrar Aziz Bhatti Town, Lahore and that the possession was lawfully delivered to respondent No.2. The allegation of forcible dispossession was also specifically denied.
7. Perusal of the pleadings and evidence reveals that there are lot of inconsistencies in the pleadings and the evidence and also the statement of witnesses inter se. Petitioner No. 1 who was under a heavy onus to prove the execution of agreement and payment of consideration, alleged in paragraph "2" of the plaint that he purchased the land through agreement of sale dated 28.7.1999 for a consideration of Rs.39,95,000/-, out of which Rs.
39,90,000/- were paid at the time of agreement to sell and the balance amount of Rs. 5,000/- was received by defendant No.1 after few days and that defendant No.1 executed two receipts acknowledging the total amount received by him. The pertinent part of paragraph "2" of the plaint reads as follows: "2. That plaintiff No. 1 purchased the land measuring 24 kanals 19 marlas from defendant No.1 through an agreement to sell dated 28.7.1999, out of the above mentioned joint khata whereas defendant No. 1 was owner of total land measuring 26 kanals 18 marlas and the total consideration of amount agreed between the parties was Rs. 39,95,000/-, out of which Rs. 39,90,000/- was paid at the time of agreement to sell and the balance amount of Rs. 5,000/- was also received by defendant No.1 after few days. The defendant No. 1 executed two receipts in favour of plaintiff No.1 acknowledging the total amount received by him..."
8. It is obvious that in the pleadings petitioners' own stance was that the agreement was allegedly made on 28.7.1999 and that amount of Rs.39,90,000/- out of total sale consideration was paid at the time of agreement to sell but while appearing as P.W.1 petitioner No.1 namely Aamir Ashraf in his cross-examination stated that the agreement was written on 19.8.1999 and that sum of Rs. 39,90,000/- was allegedly paid two to three days prior to the execution of agreement to sell. He further deposed that no receipt was executed at the time of payment and that the first portion of sale consideration as also the remaining Rs. 5,000/- was paid on the same day (i.e., 19.8.1999) at the time of agreement and power of attorney and that both the receipts were of the same date. To the contrary the stance in the plaint was that the payment was made at the time of sale agreement which was purportedly made on 28.7.1999. It was not the petitioners' case that any agreement was executed on 19.8.1999 or that any payment was made on this date; the petitioners, therefore, themselves belied the plea of payment of Rs.
39,95,000/- on 28.7.1999 which was the basis of the claim in the plaint. As to the document/agreement of sale itself which was tendered in evidence as Ex.P2, P.W.1 was cross-examined at length. He stated in cross- examination that he did not know as to the day on which the stamp paper was issued. It was further stated that the stamp paper of the agreement was got issued by Raja Walayat, Advocate and he did not know from where and by whom the stamp paper was issued. He deposed that Raja Walayat, Advocate was appointed by him who was paid fee by him and that he knew Mumtaz Ahmad who was his servant. Further deposed that he did not recall as to where and when the agreement of sale was written and that he also did not remember as to whether at the time of obtaining of signatures and thumb-impression the agreement of sale was already written or it was written there and then.
9. Deeper consideration of the portion of the statement of P.W.1 referred above shows that the petitioner contradicted his stance in the plaint while appearing as witness and that according to plaint, at the time of agreement (i.e. on 28.7.1999) the payment was allegedly made while he deposed that it was made two to three days before and that no payment was made at the time of agreement and that no payment was made at the time of receipts Ex.P4 and Ex.P5. His statement that the stamp paper was got issued by Raja Walayat, Advocate was incorrect and in point of fact he was unaware of the scribe of the agreement or about the date and day of purchase of stamp or preparation of the document. In the light of his statement, when alleged agreement to sell Ex.P2 is examined, it is mentioned therein that Rs. 39,90,000/- were allegedly paid at the time of agreement in the presence of witnesses. Petitioner No.1 himself did not support the contents of plaint or Ex.P2 when he claimed that the payment was made two to three days before the agreement, which was not so claimed in the plaint as it was nowhere written that payment was made two to three days before. The reverse of the stamp paper shows that it was purchased through Mumtaz Ahmad and not through Raja Walayat, Advocate. Neither Raja Walayat, Advocate nor Mumtaz Ahmad was produced as witness. Even register of stamp vendor was also not produced in evidence. The scribe of agreement, whether he was the Advocate or somebody else, was not produced in evidence. Out of the two witnesses only one witness i.e. Shahid Azmat was produced with whom respondent No.1 had serious issues of property and business as is discernible in the evidence. He deposed contrary to the plaint and also the alleged agreement and claimed that the payment was made four to five days before the alleged agreement. The other witness of the document Asghar Ali was not produced in the witness-box nor it was felt necessary to produce him as a witness to fulfil the mandate of Article 79 of Qanun-e-Shahadat Order, 1984. It is evident that neither in the Trial Court nor before the Appellate Court any effort was made to produce him as a witness. The appeal was decided by the learned Addl. District Judge vide impugned judgment dated 08.8.2019.
Even in revision petition initially no request was made to seek permission for the production of Asghar Ali in evidence. It was only at the stage of fag-end of final arguments in this civil revision that a CM was filed in which the petitioner insisted that the case should be decided on the basis of preponderance of evidence and that sufficient evidence exists on record to prove the case and that they were taken by surprise by the Appellate Court and at a belated stage they be allowed to fill up the lacuna by producing the said witness which application has been declined for reasons recorded hereinabove. Petitioners' reliance on receipts Ex.P4 and Ex.P5 possibly did not render any assistance for the reason that payment of huge amount could not be proved by any credible evidence. The receipts were deficient in respect of material ingredients inasmuch as neither the particulars of the land with reference to khasra number, khatauni number and khewat number were mentioned therein nor was any reference incorporated as to any sale agreement either of 29.7.1999 or 13.8.1999. In the receipts no date is given at the bottom of document. So much so in his statement petitioner No.1 as P.W.1 himself alleged that the payment of Rs.39,90,000/- was allegedly made two to three days prior to the sale agreement while in the plaint it was neither mentioned as to the date and when the receipts were executed nor where the payment was made or at what place the receipts were prepared and who drew the same and only assertions was that few days after the agreement the receipts were executed. Even the scribe of receipts was not produced. The plea taken in evidence as also the plaint being mutually contradictory and also the contradictions inter se statements of P.W.1, P.W.2 and P.W.3 the same could not prove the existence of any sale transaction, execution of agreement and receipts as also payment of sale consideration.
10. One of the important facts that possibly could not be overlooked was that there was no explanation or reason given either in the pleadings or in the evidence as to why the sale deed could not be executed, if according to petitioner, full consideration had been paid particularly when it was not the case that there was any injunctive order qua alienation of land or there was any obstacle of clearance of mortgage charge. This in itself raises serious doubt about the genuineness to the alleged agreement or the transaction. The agreement is claimed in the plaint to be dated 29.7.1999 while the suit was filed on 12.7.2005. As to why the petitioner did not take steps or institute proceedings to seek specific performance of the agreement particularly when the document Ex.P2 would show that after receiving Rs.5,000/- the sale deed would be registered. The petitioner No.1 could not give any reason for petitioners' silence and for not taking steps to enforce the alleged agreement through a suit. No correspondence was claimed to have been exchanged between the parties. The petitioner attempted to take up the plea that the power of attorney Ex.P3 was executed for the purpose of enforcing the sale in terms of the agreement of sale. In other words, the stance was that the power of attorney was issued in lieu of the interest of the petitioner No.2. As against this the stance of respondent No.1 was that he was suffering from abdominal cancer and in view thereof he could not look after his property and, as such, appointed petitioner No.2 Muhammad Ashraf as his attorney who was his brother-in-law and that he was bound to act only as per instructions and that since he attempted to misuse the document by fabricating a draft sale deed in favour of his own wife i.e. mother of petitioner No.1, the power of attorney was cancelled vide "Abtaal Nama" dated 20.8.2003.
Perusal of the power of attorney shows that no power to alienate the property/land was delegated to the attorney i.e. petitioner No. 2 to execute any sale deed or to transfer the property in favour of his son, wife or any of his close relatives. The power of attorney Ex.P3 also did not give even the remote impression of having been executed in consideration of any interest under sale agreement. Another important fact was that the stamp paper of the agreement Ex.P2 was purchased on 28.7.1999 while the stamp paper of the power of attorney was purchased on 26.7.1999 on which the power of attorney was drafted on 29.7.1999 and was registered on 02.09.1999. Had it been in consideration of Ex.P2, the power of attorney Ex.P3 would have reflected this fact; but this was not so. Another important aspect of the matter is that in terms of the alleged draft sale deed Ex.P7 the petitioner No.2 intended to transfer the property in favour of his own wife for which there was no authority or instructions in the document nor any prior consent and permission of the respondent No.1 was claimed to have been secured from respondent No.1. Deeper examination of the power of attorney Ex. P 3 shows that it nowhere authorizes the attorney to execute the sale deed or alienate the property in favour of his relatives or legal heirs viz.: the son or the wife. In "Mst. Naila Kausar and others v. Sardar Muhammad Bakhsh and others" (2016 SCMR 1781) it was observed that to the effect it is settled law that an attorney cannot utilize the power 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. Reference can also be made to "Mst. Ghulam Fatima v. Muhammad Din and other"
(2004 SCMR 618). Perusal of the alleged draft sale deed Ex.P7 by which the petitioner No.2 intended to transfer land in favour of his wife shows that it was not signed by any person including the petitioner No.2 or his wife. It was merely a draft of document which was never registered. In these circumstances the power of attorney was validly cancelled by respondent No.1 to which no exception could be taken. There appears to be substance in the submission that in fact the power of attorney was intended to be misused for the purpose of fraudulently depriving respondent No. 1 from his lawfully owned property which fact was also established from the document Ex.P7 itself by which the petitioner No.2 intended to transfer the property of respondent No.1 for Rs.3,55,000/- in favour of his wife; though as per petitioner's own stance its value was Rs.39,95,000/- in year 1999. Having acquired knowledge of intended fraud the respondent No.1, therefore, rightly cancelled the power of attorney Ex.P3 through "Abtaal Nama" to which no lawful exception could be taken.
11. Another objection to the maintainability of the suit was that the petitioners not only failed to prove the existence of any sale transaction or execution of sale agreement but even otherwise no suit for declaration could be maintained on the plea of any agreement of sale. Petitioner filed a suit for declaration, cancellation of documents and for possession. Their claim was based on alleged agreement of sale which they could not prove. Otherwise also no title in the property could be claimed on the basis of agreement of sale. Petitioners' reliance was on section 53-A of Transfer of Property Act, 1882 which could be used only as a shield and not as a sword.
Reference can be made to "Muhammad Yousaf v. Munawar Hussain and 5 others" (2000 SCMR 204) wherein while examining the scope of section 53-A ibid. it was observed to the effect that the said provision of law enabled the transferee to protect the possession if he proves the existence of any agreement and transfer of possession thereunder in part performance thereof and that the person claiming such agreement could not seek a declaratory decree on the basis of an agreement to sell and that right course for him would be to institute suit for specific performance if at all such agreement was executed inasmuch as the agreement to sell could not confer any title on the vendee because the same is not title deed nor it confers any proprietary rights and therefore no declaration could be granted under section 42 of the Specific Relief Act, 1877.
12. In view of the reasons noted supra, it is observed that the petitioners could not prove the existence of any sale transaction or the execution of the alleged agreement of sale as also the receipts or the payment thereunder and that the "Abtaal Nama" was lawfully registered for the cancellation of power of attorney and that the petitioners could not file any suit for declaration on the assumption of title nor could claim possession or object to the sale in favour of respondent No.2. The Appellate Court duly took into consideration all the reasons as have been noted supra which proved beyond doubt that there did not exist any agreement of sale in favour of the petitioners and that the suit of the petitioners was legally not maintainable. Even the findings of learned Addl. District Judge in respect of the land purchased by respondent No.2 to the effect that it was different property which devolved upon respondent No.1 and two daughters through inheritance and that they alienated the land measuring 19 kanals and 13 marlas from the inherited property in favour of respondent No.2 through registered sale deed dated 20.6.2004 Ex.D2 and delivered possession in pursuance thereof. These facts were also admitted by the petitioner No.1 in his statement as P.W.1 where he did not deny that the said land belonged to Nighat Sultana on whose demise it devolved upon Zahid Hussain respondent No. 1 and two daughters from Nighat Sultana. It was also admitted in cross-examination that inherited area was sold by Zahid Hussain, Mehwish Hussain and Sehrish Hussain and that the land purchased by Basharat respondent No.2 formed part of the inherited property. In view thereof it was obvious that the land purchased by Basharat respondent No.2 had no concern with the suit property claimed by petitioners and, therefore, they were unable to make any case against the respondent No.2.
13. Comparative examination of the findings recorded by the courts below reveals that the judgment of learned Civil Judge was based on misreading of evidence and also on erroneous propositions of law while learned Addl.
District Judge, after in-depth scrutiny of the evidence on record, correctly concluded that the execution of sale agreement could not be proved, existence of any sale transaction was not established and that the alleged payment of consideration was also not proved by any credible evidence and that the power of attorney was a simple document of attorney which could not be by any stretch of imagination assumed to be irrevocable and, therefore, it was rightly cancelled in view of the intentions of the petitioners to commit fraud by making an illegal attempt to transfer the property in favour of the wife of petitioner No.2. No exception could be taken to the act of cancellation of power of attorney by respondent No.1 nor any tenable objection could be raised thereto.
14. For the reasons hereinabove, the judgment of the appellate court does not suffer from any legal infirmity or misreading or non-reading of evidence so as to warrant any interference. Resultantly, this revision petition being devoid of merit is dismissed .