SYED SHAHID BAHAR, J. The captioned appeal has been directed against the judgment and decree passed by the learned Additional District Judge Kotli dated 30.03.2017, whereby, the suit of the appellant was dismissed.
Facts in brevity
2. Summarized facts necessary for disposal of the titled appeal are that the plaintiff/appellant filed a suit for specific performance against the defendants/respondents before District Judge Kotli, who made over the same to the learned Additional District Judge, Kotli, while, cross suit for perpetual injunction and a declaratory suit were also filed by the respondents before the said Court. All the suits were consolidated by the learned court below. In light of the pleadings of the parties, the learned trial Court framed 15 issues. After framing of issues, the plaintiffs were directed to produce evidence. The plaintiff-appellant Muhammad Khaliq in support of his version, produced 09 witnesses and recorded their statements along with his statement and he also produced documentary evidence i.e. "Exh.PA, Exh.PB, Exh. PC, Exh.PD, Exh .PI, Exh.PM, Exh.PN, Exh.PO, Exh.PQ, Exh.PR, Exh.PY, Exh.PY/1, Exh.PY/2, Exh.PY/3, Exh.PY/4, Exh.PY/5", before the trial Court. While in rebuttal, the defendants produced oral witnesses and recorded their statements before the trial Court and also produced documentary evidence " Ex.DA ", Exh.DB, Exh. DC and Exh. DD.
3. The learned trial Court after hearing the parties, finally dismissed all the suits vide impugned judgment and decrees dated 30.03.2017, hence, this appeal.
4. The learned counsel for the parties submitted written arguments on the direction of this Court.
Stance of Appellant
5. Ch. Muhammad Ilyas, the learned counsel for the appellant in written arguments averred that the learned court below fell in grave error while dismissing the suit of the plaintiff/appellant. He contended that issue No.2 was resolved in favour of the appellant/plaintiff but despite this fact, the learned court below finally dismissed the suit of the appellant. He vehemently contended that the plaintiff has proved his claim by producing oral as well as documentary evidence but the learned court below overlooked all the evidence and arrived at wrong conclusion. The learned counsel vehemently contended that respondent No.1 through agreement to sell sold the suit land measuring 10 marla out of land survey No.760, to plaintiff appellant in lieu of rupees 10 Lac, hence, plaintiff appellant was entitled for decree of specific performance in favour of plaintiff appellant but the learned court below illegally dismissed the suit of the appellant, hence, the impugned judgment and decree is not maintainable under law. The learned counsel prayed that by accepting the instant appeal, the impugned judgment and decree dated 30.03.2017 may be set- aside and respondents may be ordered to execute sale deed in favour of appellant in light of agreement to sell dated 29.05.2007 and possession of suit land may be handed over to appellant from respondent No.4.
Narrative of the respondents
6. Zahid ul Hassan Chaudhary, Advocate submitted written arguments on behalf of respondent No.1, wherein he contended that respondent No.1 is the owner of land survey number 760 measuring 10 marla, who sold the same along with with the house. The learned counsel prayed that by accepting the appeal, a decree may be granted according to suit of the plaintiff/appellant.
7. Conversely, Raja Javed Akhtar, learned counsel for respondents Nos.2 to 5 also submitted written arguments, wherein he negated the whole stance taken in the written arguments by the appellant and contended that neither. any power of attorney has been given to the attorney of the appellant regarding selling of house along with courtyard nor he was authorized to perform agreement to sell or sale deed, hence, the learned court below has not committed any illegality or irregularity while passing the impugned judgment and decree. The learned counsel finally prayed that the appeal filed by the appellant may be dismissed with costs. In support of his submission, the learned counsel placed reliance upon the following referred case laws:--
(a) 2012 YLR 2152
(b) 2016 SCR 1577.
8. I have considered written arguments as well as record of the case with due care.
Determination
9. Be that as it may an Attorney cannot go beyond the scope and four corners of the power of attorney, as powers conferred to him are bracketed with language employed in the relevant instrument i.e. power of attorney. Thus, execution of a deed, instrument, promise has no legal value at all.
10. It has been held by the Apex Court in the case titled "Gul Taj Begum v. Lal Hussain" [PLD 1980 SC AJ&K 601] as under:-- "A power of attorney should be construed strictly and should be interpreted to give only such authority as it confers expressly or by necessary implication the important rule for the construction of such a document is that regard must be bad to the recital which is showing the object of the powers"
Same view was reiterated in PLD 1978 SC AJ&K 143 as well as 2012 YLR 2152 case titled "Manzoor Begum v. Haji Fazal Elahi."
11. It is settled principle of law that power of attorney should always be construed strictly and the powers which have not been specifically given to an attorney or to do flow from the contents of the document by necessary implications, those should not be deemed to have been conferred on the authority concerned).[1]
12. It is trite law that power of attorney cannot transgress and cross the limits of power indicated in the said instrument, any act beyond the authority specifically given bears no weight. Language employed in the power of attorney is to be construed strictly. Nobody can claim any right any gains of the unauthorized and unlawful act of the attorney who misused and travelled outside from the powers conferred to him. (Underlining is ours)
13. It is settled law that language of a power of attorney must be strictly construed.
It has been held by the apex Court of Pakistan in the case "Imam Din v. Bashir" (PLD 2005 SC 418) that "the Rule of Strict Construction applies to such an instrument and if a power to sell a property has been given even than the same needs to be exercised strictly in the manner specified in the power of attorney (POA).
14. A perusal of record reveals that regarding general power of attorney (Exh.PB) the authority has not been given to general attorney for executing agreement to sell to Ayesha Bibi by Ghulam Fatima etc. The script of power of attorney does not disclose that she was allowed to perform agreement to sell with someone through the said general power, moreover, in the general power of attorney she was not given power to sell the house or courtyard, whereas, through agreement to sell (Exh.PA) 10 marla piece of land along with a concrete house and courtyard were sold in lieu of rupees Ten Lac (1000000/- rupees). Report of Patwari Exh. PN reveals that total share of land of Ghulam Fatima, Zubeda Bibi, Um e Kulsoom daughters of Muhammad Sharif has 1 kanal 10 marla 2 sarsahi, which have to be divided among four daughters on equal proportions. In such like situation, Fatima Bibi had made an agreement above from her share. As per stance/statement of the appellant, the house is stated to be in possession of Umar-defendant, hence, it can be said that Ghulam Fatima performed the agreement regarding the house which was not in her possession.
15. As far as the matter of cognovits given by Ghulam Fatima is concerned, as said earlier she was not entitled under law to execute agreement to sell of the land measuring 10 marlas along with house which was above from her original share. If she had given, the said cognovits in favour of appellant/plaintiff even then the same has no value in the eye of law.
16. I have gone through the whole record of the case and arrived at the conclusion that the learned court below has not committed any illegality or irregularity while passing the impugned judgment and decree, hence, the impugned judgment and decree stands intact.
17. In the light of what has been stated above, finding no force in the instant appeal, the same stands dismissed with no order as to costs.
1. 1989 CLC 316 Ghazanfar Hussain v. Rehmat 1995 CLC 1541.