MIANGUL HASSAN AURANGZEB, J:- Through the instant civil revision petition the petitioner, Sana Ullah Gondal, impugns the judgment and decree dated 04.05.2024 passed by the Court of the learned Additional District Judge (West), Islamabad whereby his appeal against the judgment and decree dated 21.11.2023 passed by the Court of the learned Civil Judge, Islamabad (West) was dismissed. Vide the said judgment and decree dated 21.11.2023, the learned Civil Court dismissed the petitioner's suit for declaration, permanent and mandatory injunction. Vide the said suit, the petitioner had sought a direction to the Capital Development Authority ("CDA") to issue an allotment letter for plot No.1736 measuring 25 x 40 situated in Sector I-11/2, Islamabad ("suit plot") in his favour.
2. Learned counsel for the petitioner submitted that vide sale agreement to sell dated 10.03.2004 (Exh.PW-1/2), the petitioner purchased the suit plot from Man Raza; that the petitioner paid the whole sale consideration to the vendor which fact has been mentioned in clause (1) of the sale agreement; that Man Raza executed an irrevocable general power of attorney in the petitioner's favour which was registered with the Sub-Registrar; that he has also been handed over all original title documents; that the petitioner applied to the CDA for the transfer of the suit plot; that at that time, the CDA verified the general power of attorney executed by Man Raza and intimated the petitioner that he can correspond with the CDA about the suit plot; that the said Man Raza was allotted the suit plot vide letter dated 05.07.1999 as a result of package deal between the CDA and affectees of village Badia Qadir Bakhsh; that due to a pending inquiry before the National Accountability Bureau, the suit plot could not be transferred in favour of the petitioner; that in the meanwhile, the said Man Raza had died; that on the CDA's demand, the petitioner paid all dues with regard to the suit plot; that on the petitioner's request for the transfer of the suit plot, the CDA once again verified the genuineness of the general power of attorney; and that despite the verification, the CDA did not transfer the suit plot in the petitioner's name.
3. Learned counsel for the petitioner further submitted that on 19.02.2018, due to persistent refusal of the CDA, the petitioner instituted a suit for declaration, permanent and mandatory injunction against the CDA; that the petitioner subsequently impleaded the legal heirs of Man Raza as defendants in the said suit; that the petitioner's suit was concurrently dismissed by the learned Courts below on the basis of erroneous interpretation of the law; that the learned Courts below did not take into account the material aspect that the sale agreement in the petitioner's favour was not disputed by anyone; that the petitioner apprehends that the CDA would cancel the basic allotment of the suit plot and would create a third party interest; and that the impugned judgments suffer from grave misreading and non-reading of evidence. Learned counsel for the petitioner prayed for the revision petition to be allowed in terms of the relief sought therein.
4. On the other hand, learned counsel for the CDA submitted that even if it is assumed that a general power of attorney had been duly executed by the deceased Man Raza in the petitioner's favour, the said power of attorney became inoperative on the demise of Man Raza on 20.01.2010; that under the said power of attorney, the petitioner had been authorized to construct a house on the suit plot with the funds provided by Man Raza; that the said power of attorney cannot be used as a document of title over the suit plot by the petitioner; that as the funds for the construction of the house were to be provided by Man Raza, it implies that he was to remain the owner of the suit plot; that the petitioner was not able to prove the execution of the agreement to sell (Exh.PW-1/2) by producing its two marginal witnesses; that there was nothing preventing the petitioner from producing the legal heirs of Man Raza before the CDA so that they, as sellers, could transfer the suit plot in the petitioner's favour; that the CDA cannot carry out the process of the transfer of any property without the presence of the seller and/or his / her duly authorized attorney; and that this Court ought not to interfere in the concurrent findings of the learned Courts below. Learned counsel for the CDA prayed for the civil revision petition to be dismissed.
5. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance.
6. In essence the petitioner's case is that he purchased the suit plot through agreement to sell executed in March 2004. This agreement was produced as Exh.PW-1/2 in the proceedings before the learned trial Court. The said agreement shows that Man Raza, the allottee of the suit plot, had agreed to sell the same to the petitioner for a total sale consideration of Rs.4,00,000/- the receipt whereof is acknowledged in clause (1) of the said agreement. Man Raza had bound himself to transfer the suit plot to the petitioner or his nominee. Furthermore, as per clause (7) of the said agreement, the petitioner could sell the suit plot at any price and Man Raza would have no objection to such sale. The said agreement also makes mention of an irrevocable general power of attorney executed by Man Raza in favour of the petitioner.
7. The two attesting witnesses of the said agreement were Mamraiz Khan and Abdul Hameed, who had not been produced as witnesses during the trial. The general power of attorney registered on 10.03.2004 was produced as Exh.PW-1/4. Through the said general power of attorney, Man Raza authorized the petitioner to correspond with the CDA and sign any documents, deeds or paper required to be signed or executed by the CDA with respect to the suit plot. Furthermore, the petitioner was also authorized to take possession of the suit plot from the CDA. More importantly the petitioner was also authorized to inter alia sell the suit plot for any sale consideration as may be considered desirable by the general attorney.
8. The CDA through letter dated 21.09.2005 had requested Man Raza to confirm as to whether the said general power of attorney had been executed by him and registered with the Joint Sub- Registrar, Islamabad. Man Raza's endorsement on the said letter shows that he had indeed executed that power of attorney. Learned counsel for the petitioner submitted that the said letter was available in the records of the CDA and had been provided as Exh.P-1/8. He stressed that since the CDA had been corresponding and dealing with the petitioner regarding the suit plot, the same should have transferred in the petitioner's name.
9. Although Man Raza had died on 20.01.2010, it was not until 19.02.2018 that the petitioner filed a suit for declaration, permanent and mandatory injunction against the CDA. Subsequently, after information provided by the National Database & Registration Authority regarding Man Raza's legal heirs, they were also impleaded as defendants in the suit. After resorting to substituted service, the legal heirs of Man Raza were proceeded against ex-parte. The trial culminated in the judgment and decree dated 21.11.2023 whereby the suit instituted by the petitioner was dismissed. The petitioner's appeal against the said judgment and decree was dismissed by the learned appellate Court vide judgment and decree dated 04.05.2024. The said concurrent judgments and decrees have been assailed by the petitioner in the instant civil revision petition.
10. Proceeding on the assumption that Man Raza had indeed executed the general power of attorney in favour of the petitioner and that the same was registered on 10.03.2004, the vital question that needs to be answered is whether the said general power of attorney could have been utilized by the petitioner after Man Raza's demise on 20.01.2010 for the transfer of the suit plot in his name.
11. It is well settled that on the death of one of the executants, the general power of attorney ceases to have its effect. In the case of Mahr Muhammad Iqbal Vs. Subedar Muhammad Zaman (2003 SCMR 783), it was held inter alia that a power of attorney become inoperative and a nullity in the eyes of law due to the death of one of the principals / owners. In the case of Imam Din Vs. Bashir Ahmed (PLD 2005 SC 418), it was held that the death of one of the principals would result into termination of the authority of the agent not only with regard to the deceased but also on behalf of others. Law to the said effect has also been laid down in the case of Mst. Nazir Begum Vs. Syed Abid Hussain Shah (PLD 2005 Lahore 419) and Sitara Vs. Sohran (PLD 2014 Lahore 179).
12. I cannot fault by the judgments passed by the learned Courts below holding that the general power of attorney Exh.PW-1/4 could not be utilized in any manner by the petitioner after Man Raza's demise on 20.01.2010. By the time Man Raza died ownership of the suit plot had not been transferred in the petitioner's name. As regards the general power of attorney, there is no mention therein as to the agreement to sell (Exh.PW-1/2) or even any consideration paid to Man Raza by the petitioner.
Therefore, the said general power of attorney cannot be termed as one coupled with interest and therefore cannot be held to be irrevocable by virtue of Section 202 of the Contract Act, 1872. In the case of Arif-uz-Zaman Vs. Mst. Sabir Jan (PLD 2019 Islamabad 406), this Court had the occasion to hold as follows:- "24. A registered power of attorney coupled with interest becomes irrevocable by virtue of the provisions of Section 202 of the Contract Act, 1872. As regards the registered power of attorneys dated 14.03.1988 (Exh.P.7 and Exh.P.8), the same are not coupled with interest. These power of attorneys do not make any reference to any agreement to sell executed between the appellant and Muzaffar Khan. There is neither any reference in them to any consideration paid by the appellant to Muzaffar Khan nor has the appellant been authorized to sell the suit plot. There is nothing provided in the said power of attorneys to indicate that the appellant had acquired ownership's rights or even an interest in the suit property. On the contrary, the following clauses of the General Power of Attorney (Exh.P-7) executed by Muzaffar Khan in the appellant's favour show that he was supposed to construct a house on the suit plot with funds provided by Muzaffar Khan and then transfer the suit plot in Muzaffar Khan's name in the C.D.A. records:- "To construct a house on the plot with the funds supplied by me and to do all acts, deeds and things necessary for the purpose e.g. submitting plans, getting them approved, getting water, electric and sui gas connections, engaging architects, engineers, planners contractors, masons, labour etc procuring and purchasing the materials etc. To complete all formalities with the C.D.A. for issuance of completion certificate and for execution of agreement in my favour and conveyance deed for getting the plot finally transferred in my name.""
14. The clauses of the general power of attorney in the case at hand are similar to the ones in the case referred to hereinabove, which was upheld by the Hon'ble Supreme Court vide order dated 28.05.2019 passed in CPLA No.689/2019. In the instant case, Man Raza, as the executant of the said general power of attorney, had through paragraphs 4 and 5 thereof authorized the petitioner to inter alia do as follows:- "4. To construct a house on the said plot with the funds supplied by me and to do all acts, deeds and things necessary for the purposes e.g. submitting plans, getting them approved, getting water, electric and sui gas connections, engaging architects, engineers and planners, contractors, masons, labour etc., procuring and purchasing the materials etc.
5. To complete all formalities with the CDA for issue of completion certificate and for execution of agreement in my favour and conveyance deed for getting the said plot finally transferred in my name."
15. Another serious flaw in the petitioner's case is that he was not able to prove the execution of the agreement to sell (Exh.PW-1/2) by producing its two attesting witnesses. The production of such witnesses is essential as the petitioner was claiming title over the suit plot on the basis of the said agreement. It was for the petitioner to prove the execution of the agreement to sell (Exh.PW-1/2) and thereafter seek its specific enforcement against the legal heirs of Man Raza. A suit for declaration as to the petitioner's ownership over the suit plot did not lie since such property had not been transferred in the petitioner's name in the records of the CDA. It is well settled that an agreement to sell immovable property, if reduced into writing, has mandatorily to be attested in terms of Article 17(2)(a) of the Qanun-e-Shahadat Order, 1984 ("the 1984 Order"). Article 79 of the said 1984 Order provides that if a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence. It is also well settled that in order to prove the execution of an agreement to sell immovable property, the two attesting witnesses of such an agreement must be called for the purpose of proving its execution. In this regard, reference may be made to the following case law:-
(i) In the case of Farzand Ali Vs. Khuda Bakhsh (PLD 2015 SC 187), the appellants had produced only one of the attesting witnesses of the agreement to sell in question. No explanation had been advanced by the appellants for the vital omission to produce the second attesting witness of the agreement in order to prove its execution. It was held that such an omission was fatal to the appellant's case. Furthermore, it was held as follows:- "[I]t is settled law that an agreement to sell an immovable property squarely falls within the purview of the provisions of Article 17(2) of the Qanun-e-Shahadat Order, 1984 and has to be compulsorily attested by the two witnesses and this is sine qua non for the validity of the agreement. For the purposes of proof of such agreement it is mandatory that two attesting witnesses must be examined by the party to the lis as per Article 79 of the [Qanoon-e-Shahadat Order, 1984]."
(ii) In the case of Farid Bakhsh Vs. Jind Wadda (2015 SCMR 1044), the Hon'ble Supreme Court interpreted Article 79 of the 1984 Order in the following terms:- "This Article in clear and unambiguous words provides that a document required to be attested shall not be used as evidence unless two attesting witnesses at least have been called for the purpose of proving its execution. The words "shall not be used as evidence" unmistakably show that such document shall be proved in such and no other manner. The words "two attesting witnesses at least" further show that calling two attesting witnesses for the purpose of proving its execution is a bare minimum. Nothing short of two attesting witnesses if alive and capable of giving evidence can even be imagined for proving its execution. Construing the requirement of the Article as being procedural rather than substantive and equating the testimony of a Scribe with that of an attesting witness would not only defeat the letter and spirit of the Article but reduce the whole exercise of re-enacting it to a farce. We, thus, have no doubt in our mind that this Article being mandatory has to be construed and complied with as such."
(iii) In the case of Hafiz Tassaduq Hussain Vs. Muhammad Din (PLD 2011 SC 241), it was held inter- alia that an agreement to sell immovable property was required by Article 17(2)(a) of the 1984 Order to be attested by two men, or one man and two women. Furthermore, it was held that where such an agreement is not proved in accordance with Article 79 of the said Order, the same cannot be read in evidence. In this regard, paragraph 8 of the said report is reproduced herein below:- "8. The command of the Article 79 is vividly discernible which elucidates that in order to prove an instrument which by law is required to be attested, it has to be proved by two attesting witnesses, if they are alive and otherwise are not incapacitated and are subject to the process of the Court and capable of giving evidence. The powerful expression "shall not be used as evidence" until the requisite number of attesting witnesses have been examined to prove its execution is couched in the negative, which depicts the clear and unquestionable intention of the legislature, barring and placing a complete prohibition for using in evidence any such document, which is either not attested as mandated by the law and/or if the required number of attesting witnesses are not produced to prove it. As the consequence of the failure in this behalf are provided by the Article itself, therefore, it is a mandatory provision of law and should be given due effect by the Courts in letter and spirit. The provisions of this Article are most uncompromising, so long as there is an attesting witness alive capable of giving evidence and subject to the process of the Court, no document which is required by law to be attested can be used in evidence until such witness has been called, the omission to call the requisite number of attesting witnesses is fatal to the admissibility of the document. See Sheikh Karimullah v. Gudar Koeri and others (AIR 1925 Allahabad 56). The purpose and object of the attestation of a document by a certain number of witnesses and its proof through them is also meant to eliminate the possibility of fraud and purported attempt to create and fabricate false evidence for the proof thereof and for this the legislature in its wisdom has established a class of documents which are specified, inter alia, in Article 17 of the Order, 1984. (See Ram Samujh Singh v. Mst. Mainath Kuer and others (AIR 1925 Oudh 737). The resume of the above discussion leads us to an irresistible conclusion that for the validity of the instruments falling within Article 17 the attestation as required therein is absolute and imperative. And for the purpose of proof of such a document, the attesting witnesses have to be compulsorily examined as per the requirement of Article 79, otherwise, it shall not be considered and taken as proved and used in evidence. This is in line with the principle that where the law requires an act to be done in a particular manner, it has to be done in that way and not otherwise."
(iv) In the case of Rafaqat Ali Vs. Mst. Jamshed Bibi (2007 SCMR 1076), it was held as follows:- "According to Articles 17 and 79 of Qanun-e-Shahadat Order, 1984, petitioners had to produce two attesting witnesses of the agreement in question. As mentioned above, petitioners had produced only one witness to prove the agreement to sell, therefore, all the Courts below were justified to non-suit the petitioners as law laid down by this Court in various pronouncements. See Suleman Ali's case 2000 YLR 1983, Maqsood Ahmad's case PLD 2003 SC 31, Qazi Muhammad Saqib Khan's case 2003 MLD 131."
(v) In the case of Mst. Rasheeda Begum Vs. Muhammad Yousaf (2002 SCMR 1089), it has been held as follows:- "11. An agreement to sell immovable property is a contract enforceable I by law. Section 54 of the Transfer of Property Act expressly provides that a contract of sale does not, of itself, create any interest in or charge on the immovable property which constitutes its subject-matter. As a matter of fact an agreement to sell only creates a right to obtain another document conferring title in respect of the immovable property mentioned therein and for that very reason it does not require registration. There is also no legal provision to the effect that an agreement to sell should only be in writing. Be that as it may, while determining the question whether an agreement to sell is required by law to be attested by witnesses a line of demarcation must be drawn between the agreements of sell executed before and after promulgation of Qanun-e-Shahadat Order, 1984.
Unquestionably, an agreement to sell involves future obligations, therefore, if reduced to writing and executed after coming into force of Qanun-e-Shahdat Order, 1984, it is required by sub-Article (2)(a) of Article 17 thereof to be attested by two male or one male and two female witnesses, as the case may be."
(Emphasis added)
16. Since I do not find any jurisdictional error or irregularity in the concurrent judgments and decrees passed by the learned Courts below, the instant civil revision petition is dismissed with no order as to costs.