' This is a second appeal against the judgment and decree of the learned Additional Judge, Poonch (Bagh), dated 21-8-1983, whereby the appeal of the respondents against the judgment and decree of the learned Sub-Judge Bagh, dated 11-10-1980 was accepted and the suit of Ghulab Din against Muhammad Bashir and Muhammad Alam defendants, decreed by the Sub-Judge, was dismissed.
2. The brief facts of the case are:- ' Ghulab Din brought a declaratory suit before the Sub-Judge, Bagh on 17-11-1973 (the suit was amended on 19-4-1974) to the effect that the sale-deed as regards to the suit land under Khasra Nos. 339, 340, 341 and 347 measuring 16 Kanals and 111 Marlas alongwith a Kotha situate in village Dhulli, executed on 28-3-1970 by Muhammad Alam (vendor) in favour of his son Muhammad Bashir (vendee) is liable to be cancelled because the plaintiff Ghulab Din had appointed Muhammad Alam son of Samloo as his general power of attorney holder, vide document Exh. D.A.
Executed on 19-12-1969 and not Muhammad Alam son of Nooru who sold the suit land in favour of his son mala fide and without any power, authority or competency to sell. The plaintiff Ghulab Din also prayed for the possession of the land and cancellation of the sale-deed, dated 28-3-1970 as consequential reliefs. The learned Sub-Judge decreed the suit in favour of the plaintiff against the defendants Muhammad Bashir and Muhammad Alam (the vendor and the vendee) and cancelled the sale-deed on the ground that the plaintiff had never appointed Muhammad Alam son of Nooru as his 'Mukhtare Am' and therefore, Muhammad Alam son of Nooru had no authority to sell the land of a third person to his son.
3. The defendants went up in appeal before the learned District Judge on 9-11-1980, who set aside the decree of the learned Sub-Judge, Bagh, vide his judgment and decree, dated 21-8-1983.
4. Now the plaintiff Ghulab Din, feeling aggrieved by the judgment and decree passed by the learned Additional District Judge, Bagh (Poonch) has come up in second appeal before the High Court.
5. The learned counsel for the plaintiff-appellant has assailed the judgment and decree of the learned District Judge on the following grounds: -
(1) That the plaintiff has appointed Muhammad Alam son of Samloo and not Muhammad Alam son of Nooru. The Exh. D.A. Mentions the name of the General Power of Attorney holder as Muhammad Alam son of. Samloo. Therefore, the sale-deed of 28-3-1970 whereby he was deprived of his landed property was rightly declared void and cancelled by the learned Sub-Judge;
(2) that it is a clear case of fraud whereby he was deprived of his property. As fraud vitiates the most solemn transaction, no premium should be placed on fraud;
(3) that the learned District Judge has misconstrued and misinterpreted the General Power of Authority Exh. D.A;
(4) that the whole-sale transaction was male fide and it is an accepted principle of law that a mala fide act is without jurisdiction;
(5) that the learned District Judge has wrongly held that the suit was time-barred. Article 91 of the Limitation Act does not apply to this case.
6. On the other hand, the learned counsel for the respondents contended:-
(1) That Muhammad Alam, has rightly transferred the suit land in favour of his son because the vendor was the general power of attorney holder;
(2) that the judgment and the decree of the learned District Judge are correct and need no interference;
(3) that the suit is time-barred under Article 91 of the Limitation Act;
(4) that the High Court is not competent to go through and discuss the document Exh. D.A. As it is a question of fact that Muhammad. Alam the vendor was the general power of attorney holder and as such he validly transferred the suit land in favour of his son Muhammad Bashir. No question of law is involved in this case;
(5) the learned counsel for the respondents referred:-
(i) 1980 CLC 1098,
(ii) PLD 1983 Azad J K 22.
7. I have gone through the record and have given due consideration to the arguments addressed in this case.
8. A bare reeding of the General Power of Attorney Exh. D.A. Clearly shows that this power of attorney was executed in favour of Muhammad Alam son of Samloo and not Muhammad Alam son of Nooru. I have carefully read the statement of Raja Muhammad Yaqub Khan Kiani, the scriber of the document Exh. D.A. Who deposed on 29-5-1976 that Exh. D.A. Was written by him and was in favour of Muhammad Alam. In cross-examination no question was put to him as to whether this general power of attorney, Exh. D.A. Was written in favour of Muhammad Alam son of Nooru, The failure to put this question to the scriber who was produced by the defendants and was an independent witness, shows that Muhammad Alam son of Nooru had no authority whatsoever, under this document to transfer the suit land in favour of his son. Raja Muhammad Yaqub Khan deposed that he knew Ghulab Din personally, and that Ghulab Din (plaintiff) was serving in the Army hence he executed the said document Exh. D.A. In his cross-examination, Ghulab Din, says that he is an illiterate person. Not a single question was put to the plaintiff whether the Exh. D.A. Was in fact written and executed in favour of Muhammad Alam son of Nooru.
9. The case of the respondents is that Muhammad Alam was the General Power of Attorney holder of Ghulab' Din appellant-plaintiff and hence his sale-deed in favour of his son is valid in law. Raja Muhammad Yaqub Kiani the scriber of the document Exh. D.D. Does not mention the said document to be executed in favour of the respondent. Hence I have got no hesitation after going through the document Exh. D.A. Itself that it was not executed in favour of Muhammad Alam son of Nooru.
10. I am reminded of the famous play "Julius Caesar written by Shakespeare in which there was a conspirator whose name was Cinna. When Julius Caesar was killed and there was a reaction against the conspirators, the people caught hold of one Cinna who pleaded not 'guilty and said that he was Cinna the poet and not Cinna the conspirator. The unrully mob did not spare his life and tore him to pieces for his bad verses.
11. Here in this case, Muhammad Alam son of Nooru has sold the suit land in favour of his son and his argument is that he is Muhammad Alam the General Power of Attorney holder and it does not matter if he is son of Nooru and not of Samloo.
12. I am afraid, I cannot treat him as Muhammad Alam son of Saml and thus deprive an illiterate plaintiff of his landed property becaus this will amount to putting a premium on fraud or an illegal sale. Hence the sale-deed does not find any protection of law and is illega and if we see all the suspicious attending circumstances, of the case, even mala fide.
13. In Abdul Rehman v . Khalida Bi and two others 1980 CLC 1098 the appeal was dismissed. As there were concurrent findings of fact in that case It was a case in which Mst. Khalida Bi had secured a decree for dissolution of her marriage. At page 1109 of this judgment it is of course mentioned that the allegations in plaint and in written statement are to be taken into consideration for finding out the truth or falsehood of a case built up at trial but it was held that failure to plead material facts in offence or defence deprives pleadings of most of their value and the defect creates hinderance in the administration of justice. . The plaint in the instant case is very clear that the sale-deed is liable to be cancelled. It no doubt mentions some other power of attorney regarding the redemption of a mortgage but we are not concerned with it here. We have only to see if the Exh. D.A. (the Power of Attorney), which is relevant in this case invests the respondent Muhammad Aslam son of Nooru with powers of sale or not and whether on the basis of this document in favour of Muhammad Alam son of Nooru he can validly transfer the suit land. As I have held that the respondent-defendant had no authority to transfer the suit land under Exh. D.A. The authority 1980 CLC 1098 does not help the case of the respondent as it is not applicable to this case.
14. PLD 1983 A J K 22, is of course about a power of attorney to sell land. In this case, it is not alleged that the power of attorney is a forged one but that the power of attorney Exh. D.A. Does not authorize and empower Muhammad Alam respondent to alienate the property of the plaintiff. Here in this case, the document Exh. D.A. Is admitted by both the parties and it is only the construction and interpretation of this document which is mainly involved here. Hence this authority is also not applicable to the case before me.
15. Now I would like to discuss the point of limitation. The Article 91 held applicable by the learned District Judge reads: 91 To cancel or set aside Three years. When the facts entitling the plaintiff to have the instrument set aside become known to him.. an instrument not otherwise provided for.
16. This Article does not apply:-
(1) when the cancellation of a document is not an essential part of the plaintiff's relief.
(2) where the transaction, though, a voidable 'one, does not require to be set aside through the intervention of the Court;
(3) where the suit was not to cancel or set aside an instrument but only to amend it by substituting the name of the plaintiff for the name of another person mentioned in the deed;. And
(4) where the plaintiff was not a party to the instrument sought to be avoided where the instrument was not executed by the plaintiff, he is not bound to set it aside
17. Now here, the plaintiff did not appoint Muhammad Alam son of Nooru as his lawful attorney and appointed one Muhammad Alam son of Samloo as his Attorney hence the sale in favour of his son Muhammad Bashir by Muhammad Alam son of Nooru is void and as such the plaintiff B is not bound to get it set aside. Under these circumstances, I hold that Article 91 does not apply in this case. It has been held in various authorities that Article 91 does not apply where a deed is void; AIR 1921 Cal. 786; AIR 1929 Cal. 606; AIR 1939-All. 348; A I It 1950 Pat.
247.
18. Now I would like to refer to some important cases decided by the Supreme Court of Pakistan.
(i) In Shamshad Ali Shah v. Hassan Shah PLD 1964 SC 143 the Supreme Court of Pakistan examined the question as to whether it is always necessary to seek the setting aside or cancellation of instruments obtained by fraud, it was observed that:- "A person who claims that a deed which purports to be executed by him is a forgery is not asking that the deed be set aside and is not bound to sue within three years and further that the sole criterion for the applicability of Article 91 is whether the deed affects rights till some person entitled to have it set aside does so. If the deed as a matter of fact never affected rights the need for its being set aside would never arise."
' A rider, however, was placed subject of course to the foregoing that "the position, however, with respect of the attack on the ground of fraud is different. As provided in section 19 of the Contract Act a contract affected by fraud is voidable and not void."
' An earlier ruling of the Privy Council AIR 1945 P C 54 was also discussed in which the Privy Council had observed:- "Having regard to the findings, of the High Court, which their Lordship find no reason to reject the main question for determination before the Board as stated already, is whether the suit is barred by Article 91, Limitation Act. If the deed of gift is a void transaction, no question of cancelling or setting aside, would arise, but if it is only a voidable transaction that is a transaction valid until rescinded, then the necessity to set it aside is obvious before possession of the property can be claimed."
' According to Kaikaus, -J. (as he then was) (P L .D 1964 SC 143) it was laid down as under:- "The criterion, for the application of Article 91 will be whether the instrument is effective till it is set aside. If an instrument be such that it has produced legal effects but some person has the option to have it set aside so that it will be rendered without effect a suit has to be filed for setting it aside and a suit for any other relief which relief cannot be granted unless the instrument is set aside will also be governed by Article 91. On the other hand if the instrument has not produced any legal effect at all, it does not stand in need of being set aside and Article 91 will not be attracted by the mere facts that reliefs asked for cannot be granted unless the instrument is found to be ineffective or void. No person is bound to sue for a declaration that an instrUment is void from its inception though it should be explained here that a suit for cancellation of even a void instrument does lie.
Between cancellation and setting aside there is a distinction though it is not always kept in view. An instrument that produces no effect does not stand in need of being set aside and the use of the expression setting aside is inappropriate in respect of a void instrument. Cancellation of an instrument has, however, a different meaning. According to section 39 of the Specific Relief Act a person may sue for cancellation of an instrument which is "void or voidable." The relief granted by the section is that the instrument will be "delivered up and cancelled." The reason why even in respect of void instruments a person is granted the relief of cancellation is, as appears from section 39 itself, that such instrument "if left outstanding may cause him serious injury. "However, if in respect of a void instrument no suit for cancellation is brought within three years it does not acquire any validity and remains ineffective as before."
(ii) In Raja Habib Ahmed Khan v. The Income-tax Officer, Hazara Circle Abbottabad 1972 SCMR 629 a gift deed was void ab initio hence Article of the Limitation Act did not apply.
(iii) In Hamida Begurn v. Murad Begum PLD 1975 SC 624, while interpreting Article 91 of the Limitation Act, which provides limitation of three years for filing a suit to cancel or set aside an instrument, a distinction was made between void and voidable instruments in so far as the legal requirement to seek the setting aside of the instrument was concerned. It was held that a voidable instrument would remain operative so long as it was not set aside by a, competent Court in accordance with the principles embodied in sections 19 and 19-A of the Contract Act. There was, however, no such compulsion to approach a Court with regard to instruments which are void ab intio and thus nullity. In the light of these basic rules, it was further held that Articles 91 would not be attracted if the substantial relief claimed by the plaintiff is not the cancellation of the instrument and it is merely ancillary to some other substantial claim, for example, recovery of possession, or a declaration that the instrument is in effective as against the plaintiffs rights as "the principle is that if the plaintiff is not bound by the document, or if he is not claiming under the same, and the substantial relief prayed for by him is not the cancellation or setting aside of the instrument, then the suit is not governed by Article 91 of the Limitation Act".
' This principle laid down in PLD 1975 SC 624 was approved and was reiterated in PLD 1981 SC 165.
' The Supreme Court of Pakistan has considered the applicability of Article 91 and 95 of Limitation Act (IX of 1908) in Mst. Izzat v. Allah Ditta PLD 1981 SC 165.
' Muhammad Afzal Zullah, J. Has written a lucid judgment in which it has been held that where the main relief claimed by the plaintiff is with regard to the possession and the prayer for ancillary relief is made by seeking permanent injunction and declaration that the registered deed was void and ineffective qua the rights of the plaintiff, bar of Article 91 and 95 would not be attracted to such a case. The relevant portion of the judgment may be read from pages 541, 543 and 544. The earlier authorties: -
(i) PLD 1964 SC 143. PLD 1975 SC 624. are also referred to and discussed in it.
19. Therefore, I treat the sale made under the shield of Exh. D.A. As a nullity and void ab initio. It was not a case of fraud which is voidable but an instrument got executed and registered under a power of attorney Which never gave any power to the vendor-respondent Muhammad Alam son of Nooru to transfer the land of the plaintiff to somebody else. It is not necessary to set aside this void sale-deed and hence Article 91 of the Limitation Act does not apply. It is indifferent to the plaintiff whether the document (sale-deed) is cancelled or not; all that he seeks is the possession of his land. Even otherwise, where Article 91 applies, the law leans towards a Pardanishin lady or an illiterate person and the terminus a quo starts from the date when the1 plaintiff becomes aware of the true nature and legal consequences of the instrument. PLD 1948 P C 40 and 1973 SCM R 248 may be cited in support of this view.
' Under these circumstances, I accept this appeal and set aside the judgment and decree of the learned Additional District Judge and restore the decree of the learned Sub-Judge passed in favour of the plaintiff appellant, dated 11-10-1980. The appeal is accepted with costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.