Anwaar Hussain, J. Through this single judgment, titled Civil Revision (hereinafter referred to as "CR No. 103"), along with Civil Revision No.104-D/2022 (hereinafter referred to as "CR No. 104") as well as Civil Revision No. 212-D/2022 (hereinafter referred to as "CR No. 212") are intended to be decided.
2. Civil Revisions referred above lay challenge to the findings of the learned Appellate Court below passed by way of a consolidated judgment dated 11.12.2021, in three separate appeals under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC"). CR No. 103 emanates from the civil suit titled "Naila Tabassum v. District Collector and others" (hereinafter referred to as "the declaratory suit") in which declaration along with possession as well as permanent and mandatory injunction and cancellation of sale deed bearing Document No.3610/1 dated 20.12.2018 (hereinafter referred to as "the impugned sale deed") pertaining to house measuring 06 marlas and 249 square feet situated in Model Colony, Jhelum (hereinafter referred to as "the suit property") was sought whereas CRs No.104 and 212 relate to findings of the learned Courts below in case titled "Naila Tabassum v. Sheraz Ali and others" (hereinafter referred to as "the recovery suit") wherein recovery of household articles, valuing Rs. 3,153,700/-, was prayed for by respondent No.3/Naila Tabassum, who for facility of reference is hereinafter referred to as "the plaintiff/respondent". The learned Trial Court decreed the declaratory suit and judgment and decree of learned Trial Court was upheld by the learned Appellate Court below whereas the recovery suit was dismissed by the learned Trial Court, however, the learned Appellate Court accepted appeal of the plaintiff/respondent and decreed the recovery suit as well. The petitioners in CR No. 103, namely, Muhammad Umair Pasha and Mst. Ayesha Pasha Dar were defendant Nos.4 & 5 in the declaratory suit and were purchasers of the suit property and are hereinafter referred to as "the defendants/purchasers". Respondent No.4, namely, Sheraz Ali was defendant No.3 in the declaratory suit and is also petitioner in CR No. 212, who was admittedly given general power of attorney by the plaintiff/respondent to deal with suit property and is hereinafter referred to as "the defendant/attorney". In the declaratory suit, District Collector, Jhelum as well as Sub-Registrar, Jhelum were also arrayed as defendants who are respondents before this Court in CR No. 103 and are hereinafter referred to as "the official respondents". In the recovery suit, defendant/attorney was defendant No.1 and defendants/purchasers were defendants No.2 & 3.
3. Succinctly stated, the plaintiff/respondent in the declaratory suit claimed that she is owner in possession of the suit property vide registered sale deed No.443 dated 08.03.1993 and the defendants/purchasers as well as the defendant/attorney have nothing to do therewith, with the averments that the defendant/attorney, in connivance with the official respondents, prepared a general power of attorney bearing Document No.235/4 dated 27.04.2017 (hereinafter referred to as "the GPA") and misused the same for selling the suit property to the defendants/purchasers through the impugned sale deed and when the plaintiff/respondent came to Pakistan from Denmark, on 23.01.2019, she immediately got the GPA revoked, through revocation deed dated 29.01.2019 and, hence, the impugned sale deed, in favour of the defendants/purchasers is result of fraud and is liable to be cancelled. The defendants/purchasers filed contesting written statement with the plea that they are transferees for value and the declaratory suit has been instituted just to cause harassm ent to them. The defendant/attorney also filed a contesting written statement with the assertion that the plaintiff/respondent took Rs.6,000,000/- from him and the GPA was accordingly executed in his favour and it was on the strength of the GPA, which is a duly registered document for consideration, that he sold the suit property to the defendants/ purchasers and possession was accordingly delivered. In the recovery suit, the plaintiff/respondent asserted that there were household articles lying in the suit property, as per list appended with the recovery suit, which have been illegally taken over by the defendants/purchasers and despite repeated demands, the same have not been returned. The recovery suit was also contested by the defendants/purchasers as well as the defendant/attorney by filing separate written statements.
4. Consolidated issues were framed in both the suits, followed by recording of the evidence and, vide judgment and decree dated 08.06.2021, the declaratory suit of the plaintiff/respondent was decreed whereas the recovery suit was dismissed. The said judgment was assailed by all the parties except the official respondents and same was upheld in appeal, vide impugned judgment and decree dated 11.12.2021, to the extent of the declaratory decree in favour of the plaintiff/respondent and was reversed by the learned Appellate Court below to the extent of the recovery suit by accepting the appeal of the plaintiff/respondent and the recovery suit was also decreed. Hence, the instant as well as the connected Civil Revisions have been filed.
5. Learned counsel for the defendants/purchasers submits that execution of the GPA by the plaintiff/respondent in favour of the defendant/attorney was never denied and hence, the findings of the learned Courts below are not sustainable in the eye of law. It is all the more so when no particulars of fraud have been given in the plaint, in general, and the averments made in the plaint of the declaratory suit does not contain a word against the defendants/purchasers in particular.
Adds that the defendants/purchasers are transferees for value and both the learned Courts below have erred in appreciating the factual matrix as well as evidentiary resume of the case inasmuch as prior to institution of the suits, the plaintiff/respondent instituted a suit against the defendants/purchasers as well as the defendant/attorney (hereinafter referred to as "the prior suit"), on 02.02.2019, with same relief, with the averments that one Khurram Shahzad is son of a cousin of the plaintiff/respondent and on instructions of said Khurram Shahzad, she executed the GPA in favour of the defendant/attorney who is statedly the best friend of said Khurram Shahzad and the purpose was to defend a suit titled "Manzoor Masih vs Naila Tabassum" instituted against her by one Manzoor Masih pending before the Civil Court, Jhelum pertaining to the suit property and the GPA has been misused by the defendant/attorney whereas in the declaratory suit, the plaintiff/respondent has twisted her stance regarding the role of said Khuram Shahzad. Further adds that the plaintiff/respondent is approbating and reprobating inasmuch as on the one hand, she claims that she is a household lady settled in Denmark for the last 40 years, prior to the institution of the suits, and is unable to read and write Urdu language and was unaware of the contents of the GPA whereas, on the other hand, her entire pleadings are in Urdu and so is the GPA as well as the revocation deed, which goes on to show that the plaintiff/respondent is in league with the defendant/attorney and said Khurram Shahzad, and intends to deprive the defendants/purchasers from the ownership of the suit property, which she herself has sold to the defendants/purchasers, through her general attorney (defendant/ attorney).
6. Learned counsel for the defendant/attorney submits that the defendant/attorney purchased the suit property for value coupled with the GPA, which is duly registered and on the basis of the same, the suit property was further sold to the defendants/purchasers and hence, no fraud was committed.
7. Conversely, learned counsel for the plaintiff/respondent submits that the learned Appellate Court below has rightly upheld the findings in the declaratory suit instituted by the plaintiff/respondent and has rightly reversed the findings of the learned Trial Court in the recovery suit, to the extent of recovery of household articles lying in the suit property. Learned Law Officer submits that the matter relates to the dispute between the private parties and allegation of any connivance of the official respondents in preparation of the GPA has not been established and the same, being genuine and registered, carries presumption of truth, which the plaintiff/respondent failed to rebut.
8. Arguments heard. Record perused.
9. Following are the core issues, which require opinion of this Court: i. Whether the plaintiff/respondent was able to prove that the defendant/attorney obtained the GPA fraudulently in connivance with the defendants/purchasers and the official respondents and while exceeding the authority granted to him under the GPA, has alienated the suit property in favour of the defendants/purchasers through the impugned sale deed and therefore, the same is void ab-initio and not binding on the plaintiff/ respondent and whether she has discharged the burden to prove the same? and ii. Whether the plaintiff/respondent was entitled to get benefit of being a pardanashin lady and as a consequence thereof it was for the defendants/purchasers to prove that they are bonafide purchasers?
10. The plaintiff/respondent admittedly is an overseas Pakistani residing in Denmark for the last more than 40 years. She claims that she is a simple and pardanashin lady, unable to read and write Urdu language and is also unaware of the niceties of the legal process in Pakistan and hence, when she was persuaded by her close relative, namely, Khurram Shahzad to execute the GPA in favour of the defendant/attorney for pursuing the suit instituted by one Manzoor Masih, she did so without being conscious and aware of the fact that power to sell the suit property has also been included in the GPA and conferred upon the defendant/attorney. In this manner, fraud has been committed and played upon her and the GPA was misused by the defendant/attorney. It is with such assertions that the declaratory suit was instituted whereas the recovery suit was instituted with the averments that when the possession of the suit property was given by the defendant/attorney to the defendants/purchasers, valuables such as furniture, electronics etc., worth Rs.3,153,700/- were lying in the same that have been taken over illegally by the defendants/purchasers.
11. Before rendering the opinion in the matter, it will be imperative to reproduce consolidated issues framed by the learned Trial Court, which read as under: "CONSOLIDATED ISSUES
1. Whether plaintiff Naila Tabassum is owner of the suit house while registered sale deed No.3610 dated 20.12.2018, executed in favour of defendants No.4 & 5, by defendant No.3 through general power of attorney No.235 dated 27.04.2017 is result of fraud, misrepresentation and collusiveness of defendants, hence same is liable to be cancelled? OPP
2. Whether defendants No.4 & 5 have illegally occupied the suit house? OPP
3. If issue No.1 & 2 are proved in affirmative, whether plaintiff Naila Tabassum is entitled to get the decree of declaration, cancellation of registered sale deed No.3610 dated 20.12.2018, recovery of possession alongwith permanent and mandatory injunction as prayed for? OPP
4. Whether plaintiff Naila Tabassum is entitled to recover household articles as per list annexed with connected plaint of suit title Naila Tabassum VS. Sheraz Ali etc or Rs.31,53,700/- as alternative price? OPP
5. Whether plaintiff has no cause of action to file instant suit as well as connected suit title Naila Tabassum VS. Sheraz Ali etc? OPD
6. Whether defendants No.4 & 5 are bona-fide purchaser of the suit house through registered sale deed No.3610 dated 20.12.2018? OPD No.4 & 5.
7. Whether the suits of plaintiff title "Naila Tabassum VS. District Collector etc" and "Naila Tabassum vs. Sheraz Ali, etc" are false and frivolous, hence, same are liable to be dismissed with special cost u/s 35-A CPC? OPD.
8. Relief."
The suits were heard together and as stated earlier, through consolidated judgment, the learned Trial Court, decreed the declaratory suit whereas the recovery suit was dismissed. Insofar as dismissal of the recovery suit is concerned, the glaring contradiction between the statements of the plaintiff/respondent led the learned Trial Court to render its findings inasmuch as the plaintiff/respondent in a criminal case got registered by her, admittedly, claimed the value of the household articles in terms of Rs.1,000,000/- whereas the same has been inflated to Rs.3,153,700/- as alternate price of said articles claimed in the recovery suit. While deciding the appeals preferred by the parties, the learned Appellate Court upheld the findings of the learned Trial Court to the extent of the declaratory suit whereas regarding the recovery suit, the findings were reversed and the recovery suit was also decreed, inter alia, for the reasons that prior to execution of the impugned sale deed by the defendant/attorney in favour of the defendants/purchasers, an agreement to sell was executed which contemplated that the suit property was sold along with household articles and hence, the defendants cannot deny that said articles are not lying with them.
12. The nub of the matter is the status of the GPA. Perusal of the record with the able assistance of learned counsel for the parties reveals that the plaint, the revocation deed as well as the appeal are clearly written in Urdu language and hence, the argument of learned counsel for the plaintiff/respondent that she was naive and unaware about the contents of the GPA does not hold water. A copy of FIR No.86/19 was exhibited as Exh-P.5 whereas the copy of the suit titled "Manzoor Masih v. Naila Tabassum" was exhibited as Exh-P.6. Certified copy of the prior suit was also exhibited as Exh-D.2. In the said FIR, the plaintiff/respondent narrated the following story: However, when the plaintiff instituted the prior suit (Exh-D.2), she categorically stated as under (Emphasis supplied)
From perusal of the above quoted passage from the FIR as well as the plaint of the prior suit when put in juxtaposition with the plaint of the declaratory suit, it is abundantly clear that there is a disconnect in stance of the plaintiff/respondent inasmuch as, in the prior suit, she clearly alleged act of blackmailing on part of the defendant/attorney as well as her own nephew, namely, Khurram Shahzad and subsequently, in the declaratory as well as recovery suits, produced said Khurram Shahzad as her own witness in support of her contentions without rendering any plausible explanation as to why she decided not to prosecute rather produce him as her own witness when Khurram Shahzad was allegedly instrumental in introducing the defendant/attorney to the plaintiff/respondent. Moreover, it is astonishing that on the one hand, she alleges in the prior suit that Khurram Shahzad is a blackmailer and has acted in connivance with the defendant/attorney to her detriment and on the other hand, she has produced said Khurram Shahzad as her own witness and relied upon his testimony in the proceedings conducted in the suits. This conduct of the plaintiff/respondent is quite improbable to be believed upon. Her stance that she is unable to understand Urdu language also falls on the ground when she herself stated in the prior suit that the composition of the GPA was written/prepared by the said Khurram Shahzad who never stated in his statement that no power to sell the suit property was conferred upon the defendant/attorney and some fraud was committed in connivance with the official respondents. In fact, in plaint of the declaratory suit, there is just a single line to the effect that the GPA was executed in connivance with the official respondents, however, in the deposition, no such facts were asserted. Even due execution and registration process was not seriously challenged by the plaintiff/respondent and hence, it fortifies presumption of due execution of the GPA and truth attached thereto. Even otherwise, if the GPA is carefully perused, the same discloses that it was executed by the plaintiff/respondent which she admitted and based upon the GPA, after about more than one year and seven months of its execution, the defendant/attorney alienated the suit property in favour of the defendants/purchasers much prior to the revocation of the GPA by the plaintiff/respondent and as such, the GPA has already been acted upon by her attorney before its revocation. Therefore, the plaintiff/ respondent, being the principal, is bound by the act of the defendant/attorney.
13. At this juncture, it is worth mentioning that a power of attorney is written authorization, whereby "the principal" authorizes the agent to do the acts specified therein on behalf of "the principal" which, when executed, will be binding on "the principal" as if done by "the principal" himself.
Primary purpose of instrument of such nature is to assign authority of "the principal" to another person as his agent. In this regard, case reported as "Imam Din and 4 others v. Bashir Ahmed and 10 others" (PLD 2005 Supreme Court 418) is referred wherein, the Hon'ble Supreme Court of Pakistan, inter alia, has held as under: "7. ...The power of attorney is a written authorization by virtue of which the principal assigns to a person as his agent and confers upon him the authority to perform specified acts on his behalf and thus primary purpose of instrument of this nature is to assign the authority of the principal to another person as his agent. The main object of such type of agency is that the agent has to act in the name of principal and the principal also purports to rectify all the acts and deeds of his agent done by him under the authority conferred through the instrument."
14. In the instant case, since the factum of execution of the GPA is admitted, the plaintiff/respondent, as the principal thereunder, cannot absolve herself from the acts done by the attorney/defendant on her behalf under the GPA. It has been the stance of the plaintiff/respondent that she had not authorized the defendant/attorney to execute the impugned sale deed and the GPA was only executed for a specific purpose of contesting a case, which had been instituted at behest of the defendant/attorney by one Manzoor Masih. The plaintiff/respondent came to the Court with a specific stance and hence, was required to prove the case independently and cannot bank upon the weakness of the statement of the defendants/purchasers. The defendants/purchasers cannot be called upon to prove the negative thing that the GPA was not fraudulent rather the plaintiff/respondent was obligated to prove the same with positive evidence.
In addition, needless to mention that as per Article 129 of Qanun-e-Shahdat Order, 1984 (hereinafter referred to as "the QSO"), the Court has to draw a presumption regarding execution and authenticity of a registered instrument such as the GPA. The plaintiff/respondent admitted that she executed the GPA in favour of the defendant/attorney but claimed that fraud was played on her. The plaintiff/respondent while being cross-examined categorically accused the defendant/attorney (Sheraz) by stating as under: (Emphasis supplied)
The collusion in obtaining the GPA has not been attributed to the defendants/purchasers let alone that the same was proved. Moreover, even if it is assumed that she had been defrauded by her attorney, the consequences of the fraud cannot be shifted to the defendants/ purchasers who purchased the suit property on the basis of the GPA, the execution whereof is admitted by the plaintiff/respondent herself. If the consequences of a fraud are ever to be faced by someone, it ought to be the one who made the commission of such fraud possible and not the one who has no role to play with the commission of such a fraud. Therefore, the defendants/respondents are not to be blamed for.
15. It is also worth mentioning that the plaintiff/respondent denied the contents of the GPA on the ground that she is an overseas Pakistani settled in Denmark for the last more than 40 years and is a simple housewife having no awareness of the legal formalities in Pakistan. At this juncture, it is imperative for this Court to address the second core issue as to whether the plaintiff/respondent was entitled to plead the defence that she is an elderly and simple lady entitled to protection that law envisages for a pardanashin lady. Needless to mention that the burden could have been shifted to the defendants/purchasers, being beneficiaries under the impugned sale deed executed by an attorney, to prove the sale transaction and payment made thereunder only if the plaintiff/respondent had measured up to the status of a pardanashin lady unable to transact her worldly affairs on account of her seclusion and privacy from socio-economic conditions of the outer world. In case reported as "Muhammad Naeem Khan & another v. Muqadas Khan (decd) thr. LRs & another" (PLD 2022 SC 99), the Hon'ble Supreme Court of Pakistan held as under: "8. The denotation and import of phrase "Pardanashin lady" depicts a woman who heeded stringent and unyielding canons and ethics of seclusion and privacy and according to the customs may object to show up in a public office or have no communication except behind the screen with any male person save as near relatives .............. If authenticity or trueness of a transaction entered into by a pardanashin lady is disputed or claimed to have been secured on the basis of fraud or misrepresentation, then onus would lie on the beneficiary of the transaction to prove his good faith and the court has to consider whether it was done with freewill or under duress and has to assess further for an affirmative proof whether the said document was read over to the pardanashin or illiterate lady in her native language for her proper understanding."
The Hon'ble Supreme Court further held as under: "9. The obvious underlying principle is to protect and save a weak and helpless woman from danger and risk of an unfair deal, thenceforth, it is to be ensured by the court in tandem, whether the alleged deal or transaction was effected by her free will or through coercion/duress or emotional blackmailing or whether it was simply aimed to deprive her right or interest in the property or divest her due share in the inheritance by male members of her family. The survey and analysis of some judicial precedents rendered by our courts and pronouncement of courts from Indian jurisdiction have in fact woven a cloak of protection for pardanashin ladies, who because of their ignorance, inexperience of business matters and social conditions are not able to understand the nature of business transactions.......... The question is whether a lady is pardanashin or not is always a question of fact which should be specifically pleaded and proved by some cogent evidence and is not to be used as weapon or shield to defend the lawsuit under the garb of this plea at original or appellate stage."
(Emphasis supplied)
Keeping in sight the above quoted principles laid down by the Hon'ble Supreme Court, the assertion of the plaintiff/respondent seems to be not plausible inasmuch as it sounds quite unbelievable and defies common sense and logic that a lady who is well settled in Europe for the last 40 years and managing the suit property on her own, prior to execution of the GPA, by frequently travelling back to Pakistan for this purpose, and signing the documents in English, would be too naive to not even ask for the contents of a document to be read over to her that admittedly pertains to the suit property and will not make an enquiry into state of affairs regarding the suit property particularly when, as per her own contentions, the purpose to defend the suit titled "Manzoor Masih v. Naila Tabassum" had been completed for which the GPA was executed and the GPA was not revoked immediately thereafter. It can be further noted that even the alleged execution of the GPA for the purpose of defending the suit titled as "Manzoor Masih v. Naila Tabassum", as per her own assertion was on the asking of Khurram Shahzad without the advice and/or association of her immediate male family members. This in itself belies her claim of being a pardanashin lady. Similarly, in terms of Section 60 (2) of the Registration Act, 1908 (hereinafter referred to as "the Act 1908"), certificate of registration shall be admissible for proving that the document has been registered in the manner required under law and is an extension of mandate as provided under Article 129 (e) of the QSO that officials acts are presumed to have been performed in regular and legitimate manner. It is also testament to the fact that endorsement as referred in Section 59 of the Act, 1908 has occurred in the manner in which it has been mentioned.
Hence, presumption of genuineness is attached to the endorsement made by office of the Sub- Registrar concerned. It is imperative to note that the plaintiff/respondent, both in her plaint and also in evidence, did not speak anything as to what had happened in the office of the Sub- Registrar more particularly when she was accompanied by the person of her trust, namely, Khurram Shahzad. There is a complete silence as to the proceedings before the Sub-Registrar on part of the plaintiff/respondent, which can prove that any fraud was committed through connivance of the official respondents.
16. There is also no evidence or even averment to the effect that the defendants/purchasers through the defendant/attorney had induced the plaintiff/respondent to sign the GPA and what has been deposed by the plaintiff/respondent is that she executed the GPA as proposed by her close relative, Khurram Shahzad whom she is not accusing of any forgery in the declaratory suit, out of which the present proceedings have emanated although in the prior suit she labelled him as a blackmailer. There is no plausible explanation regarding the said somersault made by the plaintiff/respondent. Moreover, it would be a very natural reaction for a lady who asserts herself to be not knowing much about the worldly affairs by communicating it to her husband/brother/son or other male members of the family that her property has been subjected to litigation but astonishingly, in the instant case, she chose Khurram Shahzad for consultation where after accused him with act of blackmailing but later on produced him as her own witness. All these attending circumstances go on to show that if at all there is a fraud played by anyone, the same was by the defendant/attorney with the support of Khurram Shahzad and not by defendants/purchasers. Furthermore, the plaintiff/respondent herself brought on record a report from the Office of District Police Officer, Jhelum (Exh.P5), perusal whereof reveals that her own witness Khurram Shahzad submitted an affidavit clearly acknowledging that the suit property was sold and Rs.6,000,000/- received by the defendant/attorney as consideration was not paid to the plaintiff/respondent. Khurram Shahzad deposed in similar terms while appearing as witness (PW- 2). There is nothing on record to rebut the same. This fact alone indicates that the sale in favour of the defendants/purchasers is not result of any fraud on part of the defendants/purchasers, which also contradicts the assertion of the plaintiff/respondent that the transaction underlying the impugned sale deed is without consideration.
17. The above discussion clearly establishes that the learned Trial Court as well as the learned Appellate Court below have given undue weightage to the fact that the defendants/purchasers could not prove the payment of sale consideration when they failed to produce Arshad Khalil, Tehsildar and Abdul Aziz, Lumberdar in whose presence the defendants/purchasers claim to have paid the money inasmuch as plaintiff/respondent's own witness, namely, Khurram Shahzad categorically acknowledged in his affidavit as per report brought on record as Exh-P5 that the suit property was sold and Rs.6,000,000/- were lying with defendant/attorney. It is imperative to note that the plaintiff/respondent also asserted that the value of the suit property was around twenty five to thirty million whereas the sale was effected for Rs.7,685,600/-, without putting forth any evidence that the market value of the suit property was around rupees twenty five to thirty million at the relevant time and it was sold on much lesser price which, had it been established and proved, could have been the only point on the basis of which it could have been held that the defendants/purchasers purchased the suit property without good faith.
18. It is settled principle of law that when a plaintiff comes forward with the averment regarding fraud, it must be specifically pleaded and proved beyond all reasonable doubts. On analysis of the above facts and the law, in this case, in the plaint itself, the plaintiff/respondent has only asserted fraud played by the defendant/attorney when he was introduced to the former by her nephew Khurram Shahzad and no details as to the role of the defendants/purchasers has been mentioned.
All these factors would indicate that there was no element of fraud which has been proved by the plaintiff/respondent as against the defendants/purchasers and when she admits execution of the GPA she cannot seek to set aside the impugned sale deed registered on the basis of the GPA pleading innocence and ignorance about the contents of the GPA, which admittedly were prepared by her own witness. Here it is also imperative to note that no relation or connivance has been established between the defendant/attorney and the defendants/ purchasers regarding execution of the GPA in favour of the defendant/attorney. It is also not denied that on the strength of the GPA, the suit property has been sold to the defendants/purchasers. In addition, the evidence has to be read as a whole to determine its preponderance and the minor contradictions in the statements of the defendants/purchasers or any other weakness thereof cannot be made basis to deprive them from their lawful rights accrued in their favour and it was the plaintiff/respondent who was required to stand on her own legs and prove her case.
19. In the light of the above discussion, this Court finds that there is error on the part of learned Trial Court as well as the Appellate Court below in assessing pleadings, oral and documentary evidence available on record and decreeing the suits of the plaintiff/respondent against the defendants/purchasers and it is unjustifiable and discordant with the conscience of justice on part of the learned Courts below to make the defendants/purchasers suffer the consequence of fraud, if any, in which they had no contributory role to play and it is the plaintiff/respondent who contributed, out of her innocence, negligence or otherwise, to the commission thereof.
20. Having opined that the GPA is an admitted document and was the basis of the sale of the suit property by the defendant/attorney to the defendants/purchasers, the plaintiff/ respondent cannot back out as she has failed to discharge her burden that the GPA was result of any fraud practiced by the defendants/purchasers, this Court takes up the controversy forming subject matter of the recovery suit. The judgments in the recovery suit are at variance. Issue No.4 was the relevant issue in this regard and onus thereof was on the plaintiff/respondent. In a very apt manner, the learned Trial Court decided the issue in the following terms: "19. Onus to prove this issue was placed upon the plaintiff. Plaintiff alleged that the household articles as per list annexed with the plaint are in illegal custody of defendants. In evidence plaintiff as PW.1 stated that her household articles as per Exh.P4 are in possession of defendants No.3 to 5.
During cross-examination PW.1 denied from the suggestion that the household articles of defendants No.4 & 5 are lying in the house. PW.1 admitted that she lodged FIR regarding household articles and mentioned the value of articles more than Rs.10,00,000/-. I would like to reproduce the relevant portion of cross-examination of PW.1 as under:-
20. ...
21. Plaintiff alleged that household articles as per Exh.P4 were lying in her house and produced the list. The list i.e. Exh.P4 shows that the two portion of said house shows the ground floor consists upon two rooms, one kitchen and courtyard while ground floor consist upon two room, one kitchen and one store room. Plaintiff mentioned same tape recorder in room No.1 & 2 of ground floor. Similarly, most of articles are written two times as on both stories. It is mentioned that the unstitch and stitch cloths, coat, jewellery, shaals, jacket, perfume are lying in room No.2 and similarly, same sweaters, unstitch clothes, shoes, purse also lying in room No.3. It is mentioned in Exh.P4, the washing machine and spinner were lying in the courtyard alongwith chairs, tables, ups. As per Exh.P4, on second floor of the house, same articles mentioned. Admittedly plaintiff used to live abroad and visited Pakistan after one or two years but there is nothing on the record to show that the whole articles as per Exh.P4 were in custody of plaintiff. Plaintiff is residing abroad but left the washing machine and other articles in courtyard without care. Moreover, admittedly she was alone and these huge number of articles could not in use of alone person. Furthermore, there is nothing on the record to show that these articles were owned by plaintiff because she never produced any document of purchasing these articles. Plaintiff admitted that in FIR, she had written the value of articles as Rs.10,00,000/- which is self-contradiction. In these circumstances, plaintiff has badly failed to prove this issue, hence same is decided against the plaintiff."
(Emphasis supplied)
With the above analysis of the learned Trial Court in sight, the learned Appellate Court below has taken a different decision, merely, on the ground that on behalf of the defendants/purchasers, defendant No.1, namely, Muhammad Umair Pasha (DW.2) appeared and in his cross-examination admitted that prior to execution of the impugned sale deed in their favour, an agreement to sell was signed, which though was never produced before the Court by either side but a copy was presented during the investigation carried out by the police officials and the said agreement reads that the suit property was sold with the household articles and this aspect alone has persuaded the learned Appellate Court below to upset the findings of the learned Trial Court. No effort was made to bring on record the copy of said agreement to sell as secondary evidence, if the original was not available to establish that any cutting was made therein while adding the words with furniture by the defendant/attorney. Moreover, learned Appellate Court below ignored that the plaintiff/respondent while appearing as PW.1 clearly acknowledged the sale but stated that she did not sell the household articles to the defendants/purchasers. The plaintiff/respondent as PW-1 stated as under: (Emphasis supplied)
Moreover, the statement of DW.1 (the defendant/attorney) that four chairs, one table, one sofa and one bed were lying in the suit property has been mis-read to decree the recovery suit against the defendants/purchasers inasmuch as he categorically stated that he sold the suit property without the household articles. The defendant/attorney stated as under: (Emphasis supplied)
The statement of the plaintiff/respondent as PW-1 during the cross-examination reveals that she came to Pakistan within 04/05 months after execution of the GPA and there is no explanation as to why she had not sought revocation of the GPA if the issue with Manzoor Masih was settled by that time. It is well evident from the above quoted part of evidence of the plaintiff/respondent that while no association of the defendants/purchasers was asserted or established with the plaintiff/respondent or the defendant/attorney, the relationship of the plaintiff/respondent with defendant/attorney is admitted by both of them. Similarly, if any articles were present in the suit property and the same were to be recovered, the said recovery is to be affected from the defendant/attorney whom the plaintiff/respondent herself allowed to deal with the same by executing the GPA. The learned Appellate Court below has erred in not appreciating that assertion of a particular fact, albeit with contradictions, is one thing and proving the same is another and the plaintiff/respondent in the instant case not only contradicted regarding the particulars of the household articles and the value thereof but also failed to put forth any evidence in support of her contentions. It is reiterated that the minor discrepancies or weaknesses in the statements/case of the defendants in general and the defendants/ purchasers in particular cannot be made basis for decreeing the recovery suit as prayed for by the plaintiff/respondent. Even otherwise, when the factum of execution of the GPA is admitted and sale by the defendant/attorney has been effected on the basis of the GPA, the defendant/attorney is to be considered as trustee of the household articles of the plaintiff/respondent, if any, lying in the suit property and issue of recovery of the said articles from the purchasers/defendants does not arise. Needless to mention that the recovery suit was also not maintainable, in terms of Order II, Rule 2, CPC inasmuch as while instituting the prior suit as well as the declaratory suit, the plaintiff/respondent failed to raise claim of recovery of the household articles purportedly lying in the suit property.
21. In the light of above discussion, this Court is of the opinion that there is also no case of the plaintiff/respondent against the defendants/purchasers for recovery of the household articles since they have dealt with the defendant/attorney duly appointed by the plaintiff/respondent herself and purchased the suit property through the impugned sale deed which is a registered document wherein there is no mentioning of the household articles and hence, they were not obligated to prove that there was absence of mala fide on their part and they acted in good faith as the registered document in their favour has presumption of truth attached to it and a copy of mere agreement to sell which was not brought on record cannot be made basis of decree of the recovery suit against the purchasers/defendants.
22. Having opined that the defendants/purchasers have no role to play in any collusion/fraud in relation to the execution of the GPA in favour of the defendant/attorney and they purchased the suit property through a registered instrument to which presumption of truth is attached, it is pertinent to mention that the defendant/attorney took the plea that he had purchased the suit property for consideration as a result of which the plaintiff/respondent had executed the GPA. Thus, it becomes amply clear that the role of the defendant/attorney was most relevant who claims that he purchased the suit property and as a result thereof, the GPA was executed in his favour.
However, it has not been brought on record on part of the defendant/attorney that he actually paid Rs.6,000,000/- as sale price of the suit property to the plaintiff/ respondent either before or after sale of the suit property to the defendants/purchasers. Similarly, he could not establish as to how the household articles were dealt with by him when he has not sold the suit property along with the said articles to the defendants/purchasers. Since the defence of the defendant/attorney does not confine to the execution of the GPA by the plaintiff/respondent in his favour to merely deal with the suit property rather he alleges that he had purchased the suit property for consideration on account of which the GPA had been executed, therefore, it falls upon him to prove that he had paid the due consideration to the plaintiff/respondent. The defendants/purchasers are required to be protected being transferee of the suit property for consideration duly received by the defendant/attorney under the GPA on behalf of the Principal (the plaintiff/respondent), whereas the defendant/attorney was required to prove his transaction of sale as it is he who is beneficiary of both the transactions, i.e., purported purchase from the plaintiff/respondent along with execution of the GPA and the sale in favour of the defendants/purchasers as he also asserts and admits both the transactions but the case has not been examined by the learned Courts below from this angle at all.
23. For what has been discussed above, the Civil Revisions are allowed, the impugned judgments and decrees passed by the learned Courts below in the declaratory suit as well as the impugned judgment by the Appellate Court below in the recovery suit are set aside and the suits of the plaintiff/respondent are dismissed. However, before parting with, it is observed that the defendant/attorney has not been able to prove his stance that the GPA admittedly executed in his favour by the plaintiff/respondent was, in-fact for consideration. Similarly, the defendant/attorney has also not been able to render any explanation regarding the manner in which he dealt with the furniture and fixtures lying in the suit property when admittedly, he has not sold the suit property to the defendants/purchasers along with furniture and fixtures. Therefore, the plaintiff/respondent is at liberty to initiate appropriate proceedings against the defendant/attorney for redressal of her grievance, in accordance with law, on account of misuse of the GPA, if any and for recovery of sale consideration as well as the household articles, and the observations of this Court in this judgment shall neither affect nor influence the proceedings, if and when initiated by the plaintiff/respondent, against the defendant/attorney, and the decision to be rendered therein.
Anwaar Hussain, J. For the reasons recorded in my judgment of even date in Civil Revision No.103/D/2022, this Civil Revision is allowed, the impugned judgment and decree passed by the learned Appellate Court below is set aside and the suit of respondent No.1 is dismissed.
Anwaar Hussain, J. For the reasons recorded in my judgment of even date in Civil Revision No.103/D/2022, this Civil Revision is allowed, the impugned judgment and decree passed by the learned Appellate Court below is set aside and the suit of respondent No.2 is dismissed. However, before parting with, it is observed that the petitioner has not been able to prove his stance that the General Power of Attorney admittedly executed in his favour by respondent No.2 was, in-fact for consideration. Similarly, the petitioner has also not been able to render any explanation regarding the manner in which he dealt with the furniture and fixtures lying in the suit property when admittedly, he has not sold the suit property to respondents No.3 & 4 along with furniture and fixtures. Therefore, respondent No.2 is at liberty to initiate appropriate proceedings against the petitioner for redressal of her grievance, in accordance with law, on account of misuse of the General Power of Attorney, if any and for recovery of sale consideration as well as the household articles, and the observations of this Court in this judgment shall neither affect nor influence the proceedings, if and when initiated by respondent No.2, against the petitioner, and the decision to be rendered therein.