1. ' This second appeal has arisen out of suit filed by the respondent against the present appellant for the declaration that the present appellant had fraudulently disposed of his land situated in Deh Jalbandi Taluka Naushehro Feroze District Nawabshah. The respondent Abdul Razzak is the owner of Survey Nos.719, 720, 694/4 and 693/3 in Deh Jalbani Taluka Naushehro Feroze. It is alleged in the plaint that he had to pursue his claim in respect of some other property in Mardan and had to go out of the town. He, therefore, asked the appellant to lookafter the land while he was away. The appellant prepared a power of attorney in his favour on 19-6-1961. The respondent admittedly is an old man and infirm person having very weak eye-sight and he is illiterate. It was represented to him that this power was a special power of attorney and he should sign it. On this representation the plaintiff put his left thumb-impression on this power of attorney. He was taken to Nawabshah where a Notary Public attested this power. Thereafter the respondent was taken to the office of Sub-Registrar where this power was registered. Long after this he came to know from one Ali Muhammad that the appellant had sold away some of his lands to this Ali Muhammad who approached the respondent for a 'Batai'. On this information the respondent was alarmed and he approached the appellant with this information. The appellant denied the same and took him to Ali Muhammad at Naushehro Feroze and asked Ali Muhammad not to make any such false allegation.
2. The next day, it is alleged in the plaint the appellant took the respondent to Naushehro Feroze and held out that he was getting a document written for cancellation of the power of attorney dated 19-6-1961. Thus, another paper was written by script writer named Ghulab Khan. It was attested by a Notary Public Maso Khan. The appellant held out that this was the cancellation for the power of attorney (Exh.5) dated 19-6-1961. Later it turned out to be a deed of ratification for all acts done and action taken by this appellant under the power of attorney given to him by the respondent No,l.
3. After some time Ali Muhammad again approached the respondent No,1 and repeated his demand for 'Batai' on the allegation that he has purchased the land under a duly registered sale-deed executed by the appellant and attorney of respondent No,1 on 3-11-1965. This information set the respondent No,1 on enquiry. This enquiry revealed that the appellant on the strength of the power of attorney (Exh.5) had fraudulently and dishonestly disposed of his entire lands to Ali Muhammad by sale-deed dated 3-11-1965 and to his own father Feroze under sale-deed dated 1-1-1966. To question these actions the respondent No,1 filed the suit being Suit No,179 of 1966 in the Court of the Civil Judge, Naushehro Feroze on 1st December, 1966 praying the relief of declaration and injunction against the appellant. This suit was contested by the appellant and it was contended that he in exercise of powers conferred on him by respondent No,1 under the General Power of Attorney had disposed of the land to Ali Muhammad and Feroz and had made over sale proceeds of the land to respondent No,l. The allegation of fraud and misrepresentation was denied. The learned Civil Judge struck ten issues in the case. Other issues had lost their importance and the controversy has now centered down on issues Nos.4 and 5 which are as follows:-- "4. Whether defendant Muhammad Hanif obtained general power of attorney from the plaintiff by fraud. If yes, what is its effect?
5. Whether defendant Muhammad Hanif obtained a deed of ratification from the plaintiff by fraud?"
4. ' Parties led evidence. The respondent No,1 was examined and he supported the allegation in the plaint. The appellant also examined himself. He also examined two witnesses namely Amanullah scribe of the power of attorney dated 19-6-1961 and Ghulab Khan, the scribe of ratification deed dated 15-8-1966. The learned Senior Civil Judge dismissed the suit of the respondent No,1. His views on Issue No,4 are:-- "Admittedly the plaintiff is an illiterate man yet it cannot lie with him to state that he had executed the special power of attorney. He has to prove his case. The party who alleges fraud must prove the same. In this case the plaintiff has put forth the plea of fraud. It was his duty to have proved fraud.
5. This document was executed by the plaintiff in the year 1961 in the month of June. Defendant Muhammad Hanif sold the land of the plaintiff on the basis of this document in the year 1966. It cannot be argued that the plaintiff had given special power of attorney to the plaintiff. The scribe of the document has in clear terms said that the plaintiff had executed the general power of attorney in favour of Muhammad Hanif. The plaintiff has led no evidence whatsoever from which it can be inferred that he had executed special power of attorney. Subsequently on 15-8-1966 the plaintiff had executed an agreement or acknowledgment whereby he ratified all the acts done by Muhammad Hanif as his General Attorney. The defendants have examined the scribe of this document at Exh.72. He is D.W. Gulab. He is petition writer at Naushehro Feroze. He claims to have written the ratification deed Exh.56 on the instructions of plaintiff Abdul Razak. According to this witness after the document was written he had read it out and explained the same to the plaintiff who admitted the contents and then affixed his L.T.I. This document has been attested by Mr.Masu Khan, Notary Public on the same day. The plaintiff has admitted the execution but he says that it was a cancellation deed. From the contents of the document it is quite clear that the plaintiff has ratified all the acts of his General attorney Muhammad Hanif by executing this document. It was the duty of the plaintiff to prove that he had executed the cancellation deed and not the ratification deed. The onus of proof was on him. In this subsequent document the plaintiff has admitted to have executed the General power of attorney in favour of Muhammad Hanif. Under the circumstances of the present case I hold that defendant Muhammad Hanif had not obtained General power of attorney from the plaintiff by fraud."
6. ' The findings of the learned Judge on Issue No,5 are in the affirmative and the learned Judge has held that the defendant Muhammad Hanif had not obtained a deed of ratification from the plaintiff by fraud.
7. ' Against these findings and the decree an appeal was filed by Abdul Razak plaintiff/respondent No,1 before the Second Additional District Judge, Nawabshah. It was registered as Civil Appeal No,1 of 1969. The view taken by the learned Civil Judge has not been concurred by the learned Second Additional District Judge, Nawabshah.
8. ' Against this judgment the appeal has been allowed and the findings of the learned Civil Judge reversed. The appellant has now filed this appeal in the High Court.
9. ' The position that finally emerges in the case is that the appellant had disposed of the land belonging to the respondent No,l, purporting to act under the power of attorney dated 19-6-1965.
10. Wt ether it was a special power of attorney as alleged by respondent No,1 or a general power of attorney as claimed by the appellant is a secondary question of technical merit. The real question involved is whether the respondent had or had not authorised the appellant to sell the land belonging t him and the appellant in furtherence of that 'authrisation has honestly contracted to sell them for benefit of the respondent. Assuming that it was a general power but the respondent No,1 never desired that this power should be used for the disposal of the lands then this authority though technically available to the appellant could not be exercised against the intention and against the interest of the respondent for the benefit by the appellant. As found by the learned first appellate Court A the respondent was an infirm disabled person having a weak eye-sight and quite illiterate. He has not signed the power but put his L.T.I. On this power of attorney which shows that he is illiterate. In this situation one has to examine the version of the two parties not on the basis of word against word but also through surrounding circumstances. These surrounding circumstances had been noted in the judgment of the first appellate Court. I need my opinion, the conclusions arrived at in this judgment are well-founded and should be accepted. I should better reproduce the views of the appellant and thus allowing the appeal of the respondent No,1. At page 9 of the judgment the learned Additional District Judge has given his appreciation of the case as follows:-- "The appellant has from the very beginning been challenging the execution of Exh.55 as an authority to the respondent Muhammad Hanif for the sale of his land. He also denied that Exh..55 was ever read out to him by any authority. The evidence on record proves that neither the Oath Commissioner or the Sub-Registrar read out the contents of the document to the appellant and-- the solitary word of the scribe Inamullah is not corroborated by any evidence of the marginally noted witnesses. The respondent Muhammad Hanif sold the part of the suit land to his father Feroze and on his death he had inherited the same alongwith his mother. This is also a strong circumstance to establish that the false document in the nature of Exh.55 was got executed obviously with the ulterior motive to grab the land of the aged and illiterate appellant. Respondent Muhammad Hanif claims that he paid the sale consideration to the appellant. But he neither produced any receipt nor he produced any oral evidence to support his contention in respect thereof. This circumstance also goes to support the case of the appellant that no sale consideration was ever paid to him. In view of these facts and circumstances it is proved that the appellant never executed the General Power of Attorney dated 19-6-1961 in favour of respondent Muhammad Hanif, so as to authorise him to sell away his land. As a result, therefore, I conclude that the respondent Muhammad Hanif had fraudulently obtained Exh.55 as the said General Power of Attorney from the appellant."
11. ' The learned Judge made further observations in his judgment which are as follows:-- "Surprisingly the scribe did' not state in his evidence that he had accompanied the parties to the Sub-Registrar, Nawab Shah. The General Power of Attorney Exh.55 shows that it was executed on 19-6-1961 while the sale-deeds in question were executed by respondent Muhammad Hanif in favour of respondent No,3 Ali Muhammad and Feroze in 1965. It is astonishing to note that within the vast span of about four years the General Attorney/ appellant Muhammad Hanif peformed no act on behalf of the appellant and all along it was the appellant who was exercising the control on his property being in possession thereof. At no time the respondent Muhammad Hanif claims that he did any work about the lands on behalf of the appellant as his General Attorney. But after the lapse of about 4 years the respondent Muhammad Hanif seized an opportunity and defrauded the appellant by exercising only the solitary and selling the land while he did nothing else. From the discussions made hereinabove it become crystal clear that the evidence of ascribe Inamullah and respondent Muhammad Hanif are in dissonance. The Oath Commissioner in his endorsement on Exh.55 claims to have made attestation on the identification of ascribe Inamullah. But against the usual practice the ascribe Inamullah did not make any endorsement of identification with his responsibility on the General Power of Attorney Exh.55. On the contrary as is obvious from his evidence he was not even sure if the attestation was made by the Notary Public or Oath Commissioner. Ascribe Inamullah also deposed that the document was executed and explained by him to the appellant in presence of the marginally noted two witnesses on Exh .55. But the respondent did not examine these two witnesses to corroborate the evidence of ascribe Inamullah.
12. I would be justified in drawing a presumption that had these witnesses been examined they would have not supported the respondent Muhammad Hanif."
13. ' Mr. Matloob Hassan Siddiqui, the learned counsel for the appellant has made very brief submissions in support of this appeal and has contended that Exh.5, the power of attorney which is a registered document belies the contention of the plaintiff that he had executed only a special power of attorney and not a General Power of Attorney. The learned counsel contends that the burden was on the respondent/ plaintiff to show that he intended to issue a special power and not General Power of Attorney. The contention is good so far as it goes, but on examination, it has no merit. Firstly it is admitted position that the respondent No,1 is a handicapped and illiterate person and it would be too much to expect that he can make a distinction between the special and General Power of Attorney, and the consequences flowing from the distinction between the two.
14. Secondly assuming for sake of argument that he was informed that he was putting his L.T.I. On a paper which was a General Power of Attorney still the fact remains that unless it is shown that the appellant was exercising the powers in good faith and for the good and benefit of the respondent, th respondent cannot be non-suited merely because it has now been found to be that he had executed a General Power of Attorney. As rightly held by learned first appellate Court no witnesses have been examined and indeed no material has been brought on the record to show that the respondent had willingly authorised the appellant to dispose of his - land nor any material has been brought to show that the sale consideration realized by the appellant was made over to the respondent. Further, this remains unexplained why a power executed in 1961 was utilized in 1966 and why possession of the land all along remained with the respondent and not for a day the appellant had the benefits of possession of the property. In a situation like this when the parties are illiterate and villagers it is not merely the document but also surrounding circumstances on which conclusion should be derived. This is exactly what the learned first appellate Court has done and Mr.Matloob Hassan the learned counsel has not been able to show that these findings deserve to be modified.
15. ' In the circumstances there seem to be no merits in this second appeal and it should be dismissed 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.