1. ' MUHAMMAD GUL, J.-This judgment deals with two Civil Appeals by Special Leave namely, Nos, 10-P and 11-P of 1972, arising out of two declaratory Suits Nos. 71/1 and 72/1 of 1962 instituted in the Court of Additional Civil Judge, Hazara, by two brothers Muhammad Aslam Khan and Muhammad Afzal Khan (respondents in both the appeals and hereinafter called the plaintiffs). In Suit No, 71/1 which has culminated in Civil Appeal No, 11-P, the plaintiffs sought a declaration that land measuring 37 kanals 9 marlas bearing Khasras Nos. 69 to 75 situate in village Jallalpura Mangal, Tehsil Abbottabad, was under a mortgage with Inayatullah defendant respondent for a sum of Rs, 1,000 only as per mutation No, 11 attested on 6-8-19t9 and was redeemable by the plaintiffs on the payment of the same amount and that subsequent mutation attested at the.Instance of Hazrat Shah son of Sammunder Shah respondent No, 3 purporting to act on behalf of the plaintiffs were not binding upon them. Dost Muhammad son of Inayatullah as impleaded as a defendant because be claimed to have purchased equity of redemption in the 31 kanals 9 marlas from the plaintiffs through their attorney Hazrat Shah, respondent No,
3. Dost Muhammad is respondent No, 2 in this appeal.
2. ' In Suit No, 72/1, which has culminated in Civil Appeal No, 10 of 1972, the plaintiffs sought a declaration of their title in 4 kanals 16 marlas being 1/2 share of Kbasra Nos. 60 to 68 situate in village Jalalpura Mangal, which purported to have been sold on their behalf by Hazrat Shah aforesaid to Inayatullah for Rs, 1,100 vide mutation No, 101 attested on 21-1-1951.
3. ' The essential facts bearing on the two suits are these. The plaintiffs, it appears, were owners of extensive lands in a number of villages in Tehsil Abbottabad. On 2-2-1950, they executed a registered general power of attorney (Exh. P. A.) in favour of 4 persons including Hazrat Shah son of Sammundar Shah respondent, empowering each of them to act jointly and severally on behalf of two plaintiffs to manage their lands, to prosecute or defend any legal proceedings whether in a civil, criminal or revenue Court, to enter into compromise or refer any dispute to which the plaintiffs may be parties, to arbitration etc. And also to authenticate and affirm deeds and other instruments and do all incidental acts with regard thereto.
4. ' It appears that Hazrat Shah aforesaid, while purporting to act as general attorney of the two plaintiffs had a mutation for sale of 4 kanals 16 marlas entered at No, 101, and got it attested by the Mutation Officer. In Suit No, 72/1 the plaintiffs repudiated the purported sale on their behalf on the allegation that Hazrat Shah had no authority to enter into any contract of sale on their behalf. They also denied having received any consideration, through their appointed agent.
5. ' In Suit No, 71/5 the plaintiffs admitted the initial mortgage of 37 kanals 9 marlas in favour of Inayatullah for Rs, 1,000 as per mutation No, 11 attested on 6-8-1949. It appears that by another mutation entered at No, 122 also at the instance of Hazrat Shah and attested on 29-1-1951, the initial mortgage on the land for Rs, 1,000 was redeemed. Simultaneously, by another mutation entered at No, 103 again at the instance of Hazrat Shah, the same land was mortgaged on behalf of the plaintiffs to Inayatullah for Rs, 4,000. By yet another mutation No, 114 attested on 17-1-1952, the equity of redemption in the same land was sold by Hazrat Shah purporting to be on behalf of the two plaintiffs for Rs, 4,100 in favour of Dost Muhammad son of Inayatullah the prior mortgagee. The sale price included the previous mortgage amount alleged to be payable to the vendees' father.
6. Barring mutation No, 11 attested on 6-8-1949, the plaintiffs repudiated all subsequent mutations with regard to these 37 kanals 9 marlas on the same allegations as in the other suit.
7. ' Both the suits were contested by Inayatullah and his son Dost Muhammad Khan appellants herein, who on the one hand pleaded that they had entared into the impugned transactions in both the suits directly with the two plaintiffs and had paid the consideration therefor directly to them. On the other hand, they further pleaded that Hazrat Shah son of Sammundar Shah had full power of disposition of property by sale, mortgage or otherwise on behalf of the two plaintiffs and acting in exercise of that authority, Hazrat Shah had entered into and acknowledged the various transactions relating to the lands in dispute in both the suits.
8. ' The learned trial Judge on the basis of evidence produced in the two suits, came to the conclusion that Hazrat Shah respondent had full power of disposition of property whether by sale or mortgage on behalf of the plaintiffs by virtue of the general power of attorney (Exh. P. A.). Accordingly, both the suits were dismissed.
9. ' In two separate appeals filed by the two plaintiffs, the judgments and the decrees of the trial Court in both the suits were reversed by the learned District Judge, Hazara. He took the view that on a proper construction of the general power of attorney dated 2-2-1950, Hazrat Shah respondent was given the power to attest and affirm sale-deeds and other legal instruments of disposition of property on behalf of the two plaintiffs but was not given himself the power of disposition over the property of the plaintiffs. The learned District Judge, also pointed out that in their written statement, the contesting respondents had definitely pleaded that the impugned transactions were entered into directly with the two plaintiffs to whom the various amounts whether as mortgage money or sale price were directly paid and that at the time of these payments, receipts were also, drawn up by one Muhammad Jee. However, neither any such receipts had been produced nor Muhammad Jee examined in proof of payments of the various amounts to the plaintiffs. Accordingly, the learned District Judge reversed the judgments of the trial court in both the suits and granted the plaintiffs declaration they had prayed for.
10. ' Against the two judgments of the District Judge, Inayatullah alone filed two Regular Second Appeals in the High Court, both of which were dismissed by a learned Single Judge by two separate judgments each dated 11-11-1968. It is however, important to point out that Dost Muhammad Khan to whom the equity of redemption in land in dispute in Suit No, 71/1 was sold, did not file any appeal against the judgment of the learned District Judge. Accordingly, he was impleaded as respondent in R. S. A. No, 478 of 1964.
11. ' The learned Single Judge in the High Court dismissed both the appeals and upheld the judgments of the District Judge and the reasons on which these judgments were based.
12. ' Leave was granted to consider, whether in view of the fact that the various impugned mutations in favour of Inayatullah and his son Dost Muhammad Khan, having been given effect in the subsequent jamabandis for a period of almost ten years, supporting the title of appellants herein, the first appellate Court and the High Court were right to displace the presumption of correctness attaching to the entries in the jamabandis?
13. ' Learned counsel for the plaintiffs-respondents raised a preliminary objection as to the competency of Civil Appeal No, 10-P of 1972, on the ground that Inayatullah's son Dost Muhammad, who was the ultimate transferee of 37 kanlas 9 mamas of land in dispute in that appeal, not having taken an appeal to the High Court against the judgment of the learned District Judge, could not now file Civil Appeal No, 10-P in this Court. The argument was that in the absence of appeal by him in the High Court, the judgment of the learned District Judge, became final against him and is therefore, not open to any challenge by him in this Court. The objection even went further and it was submitted that the mortgagee rights of Inayatullah in 37 kanals 9 marlas having merged in the sale of the land in favour of his son, Civil Appeal No, 10-P of 1972 had become wholly incompetent.
14. Accordingly, it was contended that Civil Appeal No, 10-P of 1972 be dismissed on that short ground.
15. The objection against the competency of Civil Appeal No, 10-P by Dost Muhammad Khan is unexceptionable and must therefore, prevail. He having failed to file any appeal against the judgment of the learned District Judge, cannot be permitted to challenge in this Court, the finding of that Court, or of the High Court. Therefore, Civil Appeal No, 10-P must fail vis-a-vis Dost Muhammad Khan on the short ground.
16. ' But that would not affect the competency of Civil Appeal No, 10-P so far as Inayatullah is concerned. He is a previous mortgagee of the land in dispute in that appeal, from the plaintiffs.
17. What is alleged to have been sold to Dost Muhammad Khan, is equity of redemption of that land purporting to be on behalf of the plaintiffs. These transactions stand on an independent footing, though concerning the same land. On no discoverable principle, can there he an automatic merger of equity of redemption of the land sold to Dost Muhammad Khan with the mortgagee rights in the land earlier held by his father. The doctrine of merger of equity of redemption springs from the fact that when the entire legal and equitable state are united in one and the same person, ordinarily it could be of no use to the owner to preserve the charge on the estate of which he has become the, owner. In the instant case, the legal and the equitable estates in 37 kanals 9 marlas in dispute in Civil Appeal No, 10-P vest in two different persons as a result distinct transactions removed from each other in point of time. Even section 60 of the Transfer of Property Act, 1882 does not envisage the extinction of the equity of redemption by operation of law, except when the mortgagee acquires the equity of redemption by inheritance. Therefore, any disability suffered by Dost Muhammad Khan, by reason of his failure to appeal to the High Court against the judgment of the Additional District Judge will not defeat the appeal by his father, as mortgagee of the land.
18. ' The question of law, on which leave was granted, nevertheless remains common in both the appeals, notwithstanding the want of competency of Civil Appeal No, 10-P vis-a-vis Dost Muhammad Khan in the above circumstances.
19. ' Learned counsel for Inayatullah appellant argued that it was conceded in the plaint in the two suit's that Hazrat Shah respondent held general power of attorney from the two plaintiffs, though power conferred upon Hazrat Shah was qualified by the condition that in the event of any disposition of property on behalf of his principals, Hazrat Shah would obtain their express permission. On the other hand, learned counsel for the plaintiffs submitted that under the terms of power of attorney (Exb. P. A ), the power of Hazrat Shah respondent No, 3 was limited, merely to admitting or authenticating the disposition of property on behalf of the plaintiffs before the revenue and other authorities without actually conferring power of alienation on their behalf.
20. Reading the power of attorney as a whole, the impression created on one's mind is that the power was given to as many as four attorneys, including Hazrat Shah respondent to prosecute or defend jointly or severally legal proceedings in civil, revenue Courts on behalf of the plaintiffs. This included the power to sign pleadings, applications for making reference to arbitration, withdrawal of suits or entering into compromise etc. And then occur the following crucial words {{URDU TEXT}} Learned counsel for Inayatullah appellant submitted, that these words by necessary implication conferred upon the four attorneys, the power of disposition of property on behalf of the plaintiffs. It is however, important to note that the power conferred scrupulously avoid the use of the words like {{URDU TEXT}} or some other words to that effect. Power to sign a document on behalf of another does not necessarily imply the power to enter into the transaction on his behalf. That being a larger power express words are required to give effect to any such intention. In the absence of such words, I incline to strictly construe the empowering words, to confine them to merely signing and authenticating the instruments of sale or mortgage on behalf of the plaintiffs.
21. ' However, that may be, in the instant case, as rightly pointed out by the learned District Judge and the High Court, both the appellants in paragraphs 2 and 5 of their joint written statement had expressly stated that the impugned mutations in both the cases were attested in the presence and with the consent of the plaintiffs. Not only that Inayatullah appellant, while in the witness-box had stated in no uncertain language that he himself paid Rs, 3,000 in cash to the two plaintiffs at the time of attestation of mutation No, 1G3 for Rs, 4,000 in the baithak of the plaintiffs and that the plaintiffs themselves (and not their attorney) had got the mutation attested. He also stated in his cross-examination that the appellants had executed a receipt for Rs, 4,000 in his favour. Hazrat Shah Respondent No, 3 who entered the witness-box in support of the two appellants, also stated that Rs, 3,000 were paid directly to the two plaintiffs and that one Muhammad Jee scribed the receipt. No such receipt has been produced in the case, nor Muhammad Jee has been examined.
22. In the face of this unsatisfactory evidence, it is no wonder that both the learned District Judge and the learned Judge in the High Court, recorded a finding against the two appellants.
23. ' Similarly, there is no creditable direct evidence in support of the purported sale of 4 kanlas 16 marias (in dispute in Civil Appeal No, 11-P) by the plaintiffs in favour of Inayatullah for Rs, 1,100.
24. However, learned counsel for the appellant argued in the alternative that the various mutations having been incorporated in the jamabandi, the initial presumption of correctness must be raised in favour of the entries in the jamabandis and it lay heavily upon the plaintiffs to rebut the entries in the jamabandis and consequently, even if the evidence about the payment of consideration to the plaintiffs on account of the various transactions in dispute entered into between them and the applicants, has not been proved by the best evidence. In support of his argument, learned counsel relied upon the Privy Council's judgment in Heirs of Prince Muhammad Saleem v. The Attorney General of Palestine (1). The proposition laid down by their Lordships of the Privy Council in that case is not open to any exception. But what probative value is to be attached to the entries, must depend upon the facts of each case and it was not intended to lay down in the precedent case, that the presumption of correctness attaching to the entries in the revenue record is absolute. In the instant cases, on the balance of evidence produced in the case, the learned District Judge and the learned Judge in the High Court had rightly held that the presumption of correctness in the jamabandb has been rebutted and that barring mutation No, 11 attested on 6-8-1949 with regard to 37 kanals 9 marlas which has been admitted by the two plaintiffs in their plaint, the other transactions have rightly been held to have been disproved.
25. ' For the foregoing reasons, I would dismiss the two appeals with costs in Civil Appeal No, 11-P.
26. Parties will bear their own costs in Civil Appeal No, 10-P.
(1) AIR 1941 P C 99