1. SALAHUDDIN AHMED, J.-This appeal, by special leave, is from the judgment of a learned Single Judge of the then High Court of West Pakistan, Peshawar Bench, whereby a decree passed by a civil Court at Mardan for the cancellation of a deed of sale and affirmed by the Additional District Judge, Mardan, was reversed in revision.
2. It appears that on the 26th of January 1959, respondent No. 1 Musa Khan executed a power of attorney in favour of respondent No. 2 Wali Muhammad authorising him to sell 3 kanals and 1 marla of land out of the lands of Khasra No. 1198 in the area of Tazagram, District Mardan, to the appellant Hamid Khan. On the strength of this power of attorney respon--dent No. 2 executed a sale-deed on the 2nd of February 1959, in favour of the appellant in respect of 6 kanals and 2 marlas of land for a consideration of Rs. 3,500. Respondent No. 2 claimed to have sold this excess area on the strength of another power of attorney executed in his favour and registered by respondent No, 1 on the 10th of February 1959. It may In stated here that both these powers of attorney were executed at Mir Pur Khas in Sind.
3. On the 28th of March 1959, respondent No. 1 cancelled both the powers of attorney by a duly attested affidavit which was communicated to respon--dent No. 2 through P. W. 3 Saeed Muhammad. Notice of the revocation of the powers was also published in a daily local newspaper on the 29th of April 1959. Notice of this revocation was also given to respondent No. 2 by registered on the 12th of May 1959, which he appears to have received on the 14th of May 1959.
4. Notwithstanding this revocation, the aforesaid sale-deed was presented for registration on the 26th of May 1959, and it was registered on the statement of respondent No. 2 in the absence of respondent No. 1. Respondent No. 1 filed the present suit on the 2nd of July 1'`459, for the cancellation of the aforesaid sale-deed in its entirety. The suit was, however, decreed in respect of 3 kanals and 2 marlas only. The excess one marla was decreed through inadvertence. Two appeals were preferred from the decree, one by plaintiff'-respondent Musa Khan, and the other by appellant l4amid Khan. Although both the appeals were dismissed the decree of the trial Court was modified and it was made applicable to kanals and 1 marla of land only instead of 3 kanals and 2,jnarlas of land.
5. Both the parties filed revision petitions before the High Court. The revision petition of the appellant was dismissed, while that of respondent No. t was allowed, and the suit in respect of the entire land, namely, 6 kanals and 2 marlas was decreed on the ground that respondent No. 2 Wali Muhammad was not legally authorised to present the sale-deed for registration after the powers of attorney executed in his favour had already been canceled on 28th of March 1959, and intimation of this revocation had been communicated to him before the deed was presented for registra--petition.
6. The learned Single Judge of the High Court further held that the appellant-vendee must also be fixed with the knowledge of the public notice issued in the, newspaper on the 29th of April 1959, regarding the cancellation of tie power of attorney, and that both the defendants, namely, the vendee appellant and respondent No. 2 had acted in league and close contact with each other to transfer the whole of the land belonging to respondent Musa Khan.
7. Leave to appeal was granted to consider two points only, namely, (i) as to whether an affidavit was sufficient to revoke a registered power of attorney and (ii) whether the revocation of the power of attorney after the execution of the deed of sale but before the presentation thereof for registration, was sufficient to invalidate the deed in toto.
8. It has been contended before us on behalf of the appellant that he was a bona fide purchaser for value without having had any notice of the revoca--petition of the authority given to respondent No. 2 Wali Muhammad to sell the property to him and the sale was, therefore, valid in respect of the entire 6 kanals and 2 marlas of land. Furthermore that the lack of authority on the part of respondent No. 2 on the 2nd of February 1959 to sell the entire land, namely, 6 kanals and 2 marlas of land, was made up by the subsequent execution of the second power of attorney on the 10th of February 1959, authorising the attorney to sell the entire land.
9. It is evident from the evidence that no consideration ever passed between vendor and the vendee.
10. Although the sale deed dated the 2nd of February 1959 and the written statements of appellant Hamid Khan and respondent No. 2 Wali Muhammad stated that the price of the property had already been realised, the vendor-respondent Musa Khan said that he did not receive any price and this statement was left unchallenged. Appellant Hamid Khan himself did not appear in the witness-box but examined his son and attorney, D. W 2, and the latter said that the price of the property had been realised and possession of the land given to the vendee. In cross-- examination he stated that he paid the money to Musa Khan in the presence of Jabangir Khan and Sher in Mardan. Sher was not examined and D. W. Jahangir Khan is related to both Wali Muhammad respondent and Hamid Khan appellant. In the written statement of the appellant it was not stated that he had paid the price in the presence of Jahangir Khan and Sher. The scribe D. W. 1 Maqbool stated that upon the instructions of the parties he had written to the sale-deed that the price would be paid in the; presence of the Registrar, but later at their request this v-as cancelled. The scribe said that he did not know whether there was any transaction of payment in his presence. In the special power of attorney dated the 26th of January 1959 (Exh. D. X/1), Musa Khan asked his attorney to execute the sale-deed in favour of Hamid Khan and also to receive the price thereof from him. In the second power of attorney dated the 10th of February 1959, (Exh. D. X/2), the attorney was authorised to sell 6 kanals and 2 rnarlas of land belonging to respondent Musa Khan to any body at any price he deemed fit and to receive the consideration thereof from the vendee. If the price of the property had already been received by the vendor before the date of sale, namely, the 2nd of February 1959, there was no reason to omit this fact in the second power of attorney executed on the 10th of February 1959. On the contrary the second power of attorney authorised the attorney to receive the consideration of the property from the vendee. It is indeed curious that no receipt at all was obtained from respondent Musa Khan in respect of the large amount of money alleged to have been paid to him in Mardan.
11. The transaction of sale having been found to be fictitious and collusive, the sale-deed was rightly ordered to be cancelled.
12. The appeal is, accordingly, dismissed with costs.