Mirza Viqas Rauf, J. By way of this single judgment, I intend to decide the titled petition as well as C.R.No.424-D of 2024, being raising similar questions of fact and law, ensuing from consolidated judgment and decree dated 09th of July, 2024, handed down by learned Additional District Judge, Rawalpindi, whereby he proceeded to dismiss the appeals preferred by the petitioner and affirmed the judgment and decree dated 13th January 2024, passed by learned Civil Judge, Rawalpindi.
2. Facts in brief are that the petitioner instituted a suit for separate possession through partition in the first instance averring therein that he is settled in United Kingdom (U.K.). It is asserted that parents of the petitioner namely Gul Hameed Asghar and Mst. Nusrat Parveen were joint owners in possession of land measuring 1800-kanal in the revenue estates of Jattal, Pind Dadu and Ghariba, Tehsil and District Rawalpindi. As per averments contained in the plaint, the petitioner entered into an investment agreement dated 27.07.2006 with his father to the extent of land measuring 165- kanal and in furtherance thereof he invested an amount of 165000 sterling pounds which was acknowledged by his father through investment agreement. It was also agreed between the petitioner and his father that in case he has less land than 165-kanals at his credit then the said deficiency will be made good from the land of his mother Mst. Nusrat Parveen, due to the fact that whole land measuring 1800-kanals was purchased from his own pocket by Gul Hameed Asghar which fact was not only known to the mother but also to the other family members. It is averred in the plaint that Gul Hameed Asghar died on 16.11.2014, leaving behind land measuring 1635-kanals as his legacy which devolved upon his legal heirs at the ratio i.e. 204-kanal in the name of Mst.
Nusrat Parveen, 317-kanal in the name of each son and 159-kanal in the name of daughter. In this backdrop, the petitioner claiming himself to be co-owner, sought decree for possession through partition of land measuring 482-kanal. The suit was resisted by the respondents, who submitted their written statement, raising preliminary objections and also controverting the factual assertions contained in the plaint. The petitioner then instituted a second suit for declaration, seeking cancellation of Mutations No.3420, 3421, 994 and 995 and injunction with the assertion that Gul Hameed Asghar, father of the petitioner, died on 16.11.2014, leaving behind the petitioner as well as other legal heirs, including respondent No.6. It is asserted that petitioner entered into an investment agreement with his father in furtherance whereof latter received an amount of 165000 sterling pounds from the petitioner for transfer of 165-kanal land from his ownership in favour of the petitioner, which deal was not matured.
As per averments contained in the plaint, case titled "Ch. Riaz versus Gul Hameed Asghar" was pending adjudication before Civil Court at Rawalpindi during life time of the father in which the petitioner and other legal heirs have now stepped into his shoes, being legal heirs. The petitioner asserted that he alongwith other legal heirs of the deceased executed general power of attorney through registered deed No.1868 dated 15.05.2015 in favour of respondent No.6, being his brother but deed of attorney was cancelled by the petitioner vide cancellation deed No.300 dated 29.01.2019, as respondent No.6 misused the general power of attorney and deceitfully transferred petitioner's property in favour of M/s Marble Arch Developers, being Director through Mutations No.3420, 3421, 994 and 995. As per averments contained in the plaint, respondent No.6 transferred 90% of the landed property in his own favour and remaining 10% in favour of Mst. Nusrat Parveen on 16.03.2018 but later on he included respondents No.1 to 5 as shareholders which factum came in his knowledge during the pendency of the suit for separate possession through partition. It is asserted that in furtherance thereof, a housing society upon the land of the petitioner has been developed unauthorizedly. This suit was also contested by the respondents by filing written statement. Both the suits were consolidated and as a result, from the divergent pleadings of the parties, issues were framed. After framing of issues, evidence of both the sides was recorded and finally suit was dismissed by way of judgment and decree dated 13.01.2024 passed by learned Civil Judge, Rawalpindi. Feeling aggrieved, the petitioner though preferred an appeal before learned Additional District Judge but remained unsuccessful as appeal was also dismissed by way of impugned judgment and decree.
3. Learned counsel for the petitioner contended that respondent No.6, being attorney of the petitioner, misused his authority and alienated property in the name of M/s Marble Arch Developers for his own benefit. It is contended that law to this effect is well settled that an attorney cannot alienate property of the principal without his prior consent in his own favour or in favour of his kith and kin. Learned counsel emphasized that though overwhelming evidence was produced by the petitioner in support of his claim but it has been discarded without assigning any lawful reasoning.
It is emphatically contended by learned counsel that judgments of two courts are though concurrent but outcome of gross misreading and non-reading of evidence. In support of his contention, learned counsel placed reliance on MUHAMMAD MUMTAZ KHAN (deceased) through L.Rs. and others versus Mst. SIRAJ BIBI (deceased) through L.Rs and others (2024 SCMR 978), HAQ NAWAZ and others versus BANARAS and others (2022 SCMR 1068) and Mst. AKHTAR SULTANA versus Major Retd. MUZAFFAR KHAN MALIK through his legal heirs and others (PLD 2021 Supreme Court 715).
4. Conversely, learned counsel representing the respondents seriously resisted these petitions. It is contended that respondent No.6, being attorney of the petitioner, only got registered land subject matter of Mutations No.3421 and 994 for which he obtained permission from the petitioner which fact is also evident from the statement of the petitioner himself. Learned counsel while making reference to the statement of the petitioner emphasized that petitioner is estopped by his words and conduct to challenge the mutations in question. It is submitted that petitioner was not sole principal who appointed respondent No.6 as attorney on his behalf but deed of attorney was executed jointly by the petitioner alongwith his two brothers who did not challenge the transfer made by respondent No.6 in furtherance of the deed of attorney which itself shows that the suit is frivolous. It is argued with vehemence that after alienation of the suit property through respondent No.6, being attorney of the petitioner, petitioner has left with no right, whatsoever, in the suit property and as such suits were rightly dismissed. Learned counsel contended that concurrent findings are based on proper appraisal of evidence and there is no room for interference by this Court in exercise of revisional jurisdiction.
5. Learned Law Officer also supported the arguments of learned counsel for the respondents.
6. I have heard learned counsel for the parties and perused the record.
7. Before embarking upon the matter in controversy inter se parties, it would be advantageous to observe that the petitioner alongwith his brothers namely Fahad Hameed and Waqas Hameed executed a general power of attorney (Exh.P-4) in favour of respondent No.6, being their real brother with regard to the suit property, perusal whereof reveals that being principal, the petitioner alongwith his brothers authorized and empowered respondent No.6, being their attorney to supervise, to manage, to sell, to transfer by way of gift etc or to mortgage the suit land or enter into a sale agreement, to receive earnest, full and final sale consideration and execute sale deed or mutation on their behalf. In furtherance thereof, respondent No.6 got executed Mutations No.3420 (Exh.P-6), 3421 (Exh.P-7), 994 (Exh.P17) and 995 (Exh.P-16) in favour of respondent No.7. Needless to mention that though all these mutations have been questioned by the petitioner in the suit but learned counsel for the parties are in agreement that only Mutations No.3421 (Exh.P-7) and 994 (Exh.P-17) are the mutations whereby the land of the petitioner has been transferred by respondent No.6, being his attorney. In this background, Issue No.3-B becomes pivotal, which reads as under:- 3-B Whether mutation No.3421, 3420, 994 and 995 sanctioned in favour of defendant No.7 and subsequent mutations in favour of RDA and someone else are liable to be cancelled being unlawful? OPP
8. Adverting to the moot point, it is noticed that execution of the general power of attorney in favour of respondent No.6 is not disputed by the petitioner but his claim is that respondent No.6 misused the powers given through general power of attorney and as such he deceitfully transferred the landed property of the petitioner in favour of respondent No.7 in which respondent No.6 is one of the Directors. No doubt, power of attorney was later on revoked through deed (Exh.P-5) but it was executed on 29.01.2019 much later to the sanctioning of Mutations No.3421 (Exh.P-7) and 994 (Exh.P- 17).
9. There is no cavil to the proposition that in case of transfer of property in his own name or in the name of close relatives, attorney is bound to seek prior permission, approval and consent of the principal as is laid down in the judgments (supra) heavily relied upon by learned counsel for the petitioner. Now, while examining the case in the light of well settled principles, it is noticed that ample material is available on the record to form an opinion that the mutations in questions were sanctioned with consent and knowledge of the petitioner. To this effect, statement of the petitioner, being PW-1 is of significance importance, relevant excerpt from the same is reproduced below:- It clearly evinces from the above that as per own statement of the petitioner, he duly authorized respondent No.6 to sell his property who at the time of sale of land in favour of respondent No.7 consulted with the petitioner and apprised him about the sale transaction. Though, in the volunteer portion, the petitioner stated that he was not apprised fully but this sole volunteer portion is of no avail to him. The above noted portion of the statement of the petitioner leads me to an irresistible conclusion that the land was transferred by respondent No.6 with the consent of the petitioner and he became well aware of the transaction in 2018 and also received his share in lieu thereof.
10. Section 215 of the Contract Act, 1872 equips the principal with a right to repudiate the transaction when agent deals on his own account, in the business of the agency without principal's consent.
For ready reference and convenience, same is reproduced:-
215. Right of principal when agent deals on his own account, in business of agency without principal's consent.--If an agent deals on his own account in the business of the agency, without first obtaining the consent of his principal and acquainting him with all material circumstances which have come to his own knowledge on the subject, the principal may repudiate the transaction, if the case shows, either that any material fact has been dishonestly concealed from him by the agent, or that the dealings of the agent have been disadvantageous to him.
From perusal of above referred provision of law, it clearly manifests that a principal can repudiate the transaction if:- i. an agent deals on his own account in the business of the agency; ii. without obtaining the prior consent of the principal; iii. not acquainting the principal with all material circumstances which comes to his own knowledge; iv. if it is shown either that any material fact has been dishonestly concealed from the principal by the agent or that dealing of the agent has been disadvantageous to the principal.
Section 215 of the Act, ibid, however, nowhere ordains that consent of the principal shall be in writing. It may thus be oral as well. There is sufficient material available on record, as noted hereinabove, which indicates that before entering into the sale transaction, respondent No.6, being attorney of the petitioner, apprised him about the transaction and after obtaining his consent, executed the mutations under challenge. The petitioner is thus precluded to exercise his right of repudiation as it is no more available to him in the circumstances.
11. Needless to mention that the petitioner despite having knowledge of all the transactions, in the first instance, instituted a suit for separate possession through partition wherein he neither called in question Mutations No.3421 (Exh.P-7) and 994 (Exh.P-17) nor asserted that respondent No.6 misused his authority, being attorney, which goes a long way to speak about the conduct of the petitioner.
12. Though, learned counsel for the respondents resisted second suit while pleading a bar under Rule 2 of Order II of the Code of Civil Procedure (V of 1908) to which effect Issue No.5-A was also framed but when they were confronted with the Court's query that both suits were ultimately consolidated, which is sufficient to diminish the impact of said provision of law, they conceded the legal proposition. Even otherwise, when the petitioner parted with his ownership in the suit property by virtue of sanctioning of Mutations No.3421 (Exh.P-7) and 994 (Exh.P-17), he could not claim himself as co-owner of the property and as such suit for separate possession through partition was not maintainable at all and the bar in terms of Order II, Rule 2 of Code, ibid, would not come into play in the light of law laid down in GHULAM NABI AND OTHERS vs. Seth MUHAMMAD YAQUB AND OTHERS (PLD 1983 Supreme Court 344).
13. There are concurrent findings of facts recorded by two courts of competent jurisdiction, which are, apparently, founded on proper appraisal of evidence. Scope of revisional jurisdiction under Section 115 of the CPC is quite limited where both the lower courts are unanimous in forming their view. This Court, being revisional court cannot substitute the concurrent findings of the two courts of competent jurisdiction merely on the ground that from the re-appraisal of evidence, some other view is possible. The exercise of revisional powers is always guided by the necessary pre- conditions laid down in the above referred provision of law. The scanning of evidence and the perusal of impugned judgments does not reflect any illegality or material irregularity, justifying interference by this Court. Reference in this respect can be made to GHULAM QADIR and others versus Sh. ABDUL WADOOD and others (PLD 2016 Supreme Court 712), Mst. ZARSHEDA versus NOBAT KHAN (PLD 2022 Supreme Court 21) and MUHAMMAD SARWAR and others versus HASHMAL KHAN and others (PLD 2022 Supreme Court 13).
14. The nutshell of above discussion is that these petitions are devoid of any merits. Resultantly, the same are dismissed, with no order as to costs.