1. This is an application under section 115, Civil P.C. by defendant No. 1 in the suit against judgments and decrees of the two Courts below decreeing suit for recovery of actual possession of agricultural land with mesne profits in favour of the successors of original plaintiff since deceased.
2. Lower Courts concurred, on material points arising for decision in the civil suit. Following facts will explain the nature of questions requiring determination in the case.
3. Nawab Shamshad Ali was owner of considerable land in undivided India. He died in or about the event of partition. He was survived by a widow Mst. Imtiaz Begum, sister Mst. Shahjahan Begum and a brother namely Muhammad Ejaz Ali. He left no issue, male or female. His widow submitted a claim for verification in respect of land abandoned by him in India. Claim No.-309 filed by her was verified for 2701 P.I. Units. Inheritance-mutation No.1077 relating to the estate of Nawab Shamshad Ali in India was attested on 15-4-1964, in favour of his above three heirs. Verified claim was shared between the widow, sister and brother of the deceased in the ratio of 1/4 and :1/2 respectively. 675 P.I.U. went to share of the widow and the sister each and, the remaining share of P.I. Units were taken by the brother of the deceased.
4. Since the brother was a national of India, his share of claim was not adjusted for allotment of evacuee land in Pakistan.
5. Verified claim was transferred to District Sargodha for adjustment. On 16-9-1960, 94 Kanals of non- Muslim evacuee land in Chak No. 44-Shumali of District Sargodha was allotted to Mst. Imtiaz Begum and Mst. Shahjahan Begum on R.L. II No. 47. Allotment of the above land having been set aside on 14-11-1960 by Additional Settlement Commissioner (Lands), was eventually restored on 9- 10-1965, in favour of the above two allottees. Allotted land was comprised in Sq. No. 19, Killa Nos. 1 to 7, 8/1, 9/3, 10/2, 15 and Sq. No. 20, Killa Nos. 5 to 7 of Chak No. 44 in District Sargodha. Mst. Imtiaz Begum and Mst. Shahjahan had mutually agreed to divide the allotted land. In view of this adjustment, Mst. Imtiaz Begum was to get 69 Kanals, 8 Marlas of land out of it from Sq. No. 19 Killa Nos. 1 to 7, 8/1, 9/3, 10/2-min and Mst. Shahjahan Begum was to get land from Sq. No. 19, Killa No. 10/2-min, 15 Killa Nos. 5 to 7 of Sq. No. 20, in lieu of 240 P.I. Units. By an order passed in appeal on 5- 9-1968 at the instance of Mst. Imtiaz Begum, RA/DSC (Lands) Sargodha gave effect to this mutual agreement between the two ladies and divided the land to them. An application by Maulvi Abdul Aziz defendant No. 1 for becoming a party to the appeal before the D.S.C. was dismissed by him.
6. Revision against the order passed in appeal preferred by Maulvi Abdul Aziz was dismissed on 21-10- 1968 by Additional Commissioner (Revenue) /Settlement Commissioner) (Lands) Sargodha.
7. Prior to it, on 17-10-1961, Mst. Shahjahan Begum had allegedly agreed for the sale of her 1/4th share in the jointly allotted land to Maulvi Abdul Aziz for a sum of Rs.8,100. By Mutation No. 1107, attested on 31-7-1964, 23-1/2 Kanals being 1/4th share of 94 Kanals comprised in Khata No. 98 was sold by Mst.
8. Shahjahan to Maulvi Abdul Aziz against the sale-price of Rs.2,760. By order dated 7-5-1966, Sale Mutation No. 1107 was reviewed but it was restored on 2-3-1966 by Revenue Officer in pursuance to an order of Commissioner passed on 11-11-1966.
9. Mst. Imtiaz Begum instituted a pre-emption suit in respect .~of the transaction evidenced by the above mutation, but the suit was not pursuid and, was allowed to be dismissed in the trial Court. A suit for declaration was also brought, but it was withdrawn by her.
10. On 13-12-1966, Mst. Shahjahan Begum instituted a civil suit for annulment of agreement for sale of units dated 17-10-.1961, a general Power of attorney executed by her and sale-mutation respecting her 23-1/2 Kanals, against Maulvi Abdul Aziz Khan, on the grounds of fraud, misrepresentation and want of consideration. On trial, the suits was decreed in her favour, on 8-4-1972 by the trial Court.
11. This decree was maintained in first appeal, revision and petition for leave to appeal to' the Supreme Court. The decision of the Supreme Court was reported as Maulvi Abdul Aziz Khan v.
12. Nawabzada Sarfraz Ali and others in 1985 SCM R 98. Suit for specific performance of an agreement to sell brought by Maulvi Abdul Aziz Khan against Mst. Shahjahan Begum was similarly dismissed at all the levels. Reference to it is available in the above judgment of the Supreme Court. Final adjudication in the suit filed by Mst. Shahjahan Begum against Maulvi Abdul Aziz Khan denuded the transaction in his favour of its legal validity and annulled it in its entirety in law. Thereafter, he held no right in the law conveyed by Mutation No. 1107. Alongwith the sale, general power of attorney and agreement to sell were also quashed.
13. As observed above, 69 Kanals, 8 Marlas of land in Killa Nos. 1 to 7, 8/1, 9/3, 10/2-min equivalent to 676 P.I. Units was allowed to Mst. Imtiaz Begum out of the joint allotment of 94 Kanals, vide, an order of DSC (Land) on compromise between her and Mst. Shahjahan Begum on 5-9-1968. 23-1/2 Kanals out of it comprised in Killa Nos. 1, 2, 3/1 of Sq. No. 19 were in possession of one Inayat Masih as Pattadar of Mst. Imtiaz Begum. On 18-7-1969, with the assistance of an Army Officer under the umbrella of Martial Law, Maulvi Abdul Aziz Khan took possession of the above 23-1/2 Kanals of land from Inayat Masih and entered upon its possession himself, and, ever since maintained it, without sharing its usufructs with its true owner.
14. On 10-9-1969, Mst. Imtiaz Begum commenced the present civil action for recovery of possession of this piece of land from Maulvi Abdul Aziz Khan, and, its actual occupant, Lal son of Imam Din, on his behalf, and also for the relief of mesne-profits for being in unlawful possession of the land. In course of the trial of the suit, Mst. Imtiaz Begum expired, on 7-2-1973, and was substituted by Rao Ashfaque Ahmad, Rao Mushtaq Ahmad and Rao Akhlaque Ahmad as her surviving heirs. Rao Akhlaque Ahmad did not join as the plaintiff. Other two namely Rao Ashfaque Ahmad and Rao Mushtaq Ahmad opted to pursue the suit and were impleaded as plaintiffs. Amended plaint was consequently filed. It may be observed that civil suit was initially instituted by Mst. Imtiaz Begum through Rao Ashfaque Ahmad, who held a general power of attorney registered on 9-11-1959, from her. Her other land was mutated in favour of the above three persons in equal shares, by Mutation No. 2519 attested on 22-10-1973. Maul%+ Abdul Aziz Khan contested the suit. It was, however, admitted that he had taken possession of the land through the agency of Martial Law. Defendant No. 3, namely, Rao Akhlaque Ahmad claimed his share of the land and mesne profits from it.
15. Suit was tried on following issues:-- (1)Whether the plaintiff is owner of suit property? OPP (2)Whether the plaintiff was in possession of suit property through her lessee and was illegally dispossessed by the defendant? OPP (3)Whether the plaintiff is entitled to mesne-profits of the suit land, if so, to what extent? OPP
(4) Relief.
16. An additional following issue numbered 5 was subsequently added:-- Whether power of attorney in favour of Ashfaque Ahmad is fictitious and forged and whether this suit has not been properly instituted?
17. Parties to the suit gave their evidence in support of the above issues. By its judgment dated 30-9- 1980, the trial Court gave decree for possession of the land in dispute and also held the plaintiffs and defendant No. 3 entitled to recover mesne profits from defendant No. 1 (Maulvi Abdul Aziz Khan) from 18-7-1969 to 14-12-1978 at the rate of Rs.249 per acre per year and at the rate of Rs.500 from 15-12-1978 to 30-9-1980 and directed the plaintiffs to pay the court-fee on relief of mesne profits within sixty days of the date of the decree.
18. Defendant No. 1 preferred an appeal against the decree of the trial Court. Respondent No. 1 filed cross-objections. Appeal and cross-objections were heard together and disposed of by a common judgment on 9-3-1985 with a partial modification in the decree of the trial Court to the effect that each respondent shall be entitled to separate share of mesne-profits upon payment of his share of court-fee. With the above modification, the appeal was dismissed by Additional District Judge.
19. Thereupon, defendant No. 1 has come up to this Court for revision of the judgments and decrees of the lower Courts.
20. At the hearing, learned counsel for the petitioner seriously questioned exclusive ownership of the land in dispute by late Mst. Imtiaz Begum; her right to claim mesne profits and also doubted the competency of the suit through the general attorney, namely, Rao Mushtaq Ahmad. Learned counsel for the plaintiffs-respondents supported the judgment and decree given in appeal as also those of the trial Court, on merits.
21. Voluminous oral evidence and a large number of documents were produced at the trial in support of respective versions of the parties, but in view of the previous adjudication made in the litigation, the scope of controversy was much narrowed down. Broadly the basics were either admitted or proved on record. It was clear that 94 Kanals of land were initially jointly allotted to Mst. Imtiaz Begum and Mst. Shahjahan in equal share. In appeal, 69 Kanals, 8 Marlas out of it were separately given to Mst. Imtiaz Begum, on mutual agreement by the DSC (Lands). Consequently, the land in dispute had fallen to the exclusive share of Mst. Imtiaz Begum. Mst. Shahjahan did not ever question the allotment of separate area of 69 Kanals, 9 Marlas of land to Mst. Imtiaz Begum.
22. Petitioner Maulvi Abdul Aziz Khan was found to have no locus on it. Even otherwise, the civil Court could not have sat in judgment on the final decision of the DSC. Agreement to sell, mutation of sale in respect of the land-in-dispute and general power of attorney by Mst. Shahjahan were all annulled and set aside in the previous litigation up to the Supreme Court of Pakistan. Clear result of it would be that the land-in-dispute shall be held to be in the exclusive ownership of Mst. Imtiaz Begum. Finding on this point, therefore, was not open to question.
23. There was neither much doubt nor serious dispute that the land in dispute was previously possessed by Inayat Masih, on behalf of Mst. Imtiaz begum and he was dispossessed from it by Maulvi Abdul Aziz, on 18-7-1969, and he was eversince in its possession. Obviously, his possession of the land in dispute was unauthorised. He had no title left in him to hold the land and the transactions in his favour were annulled in Court proceedings on proof of fraud etc. As the petitioner wrongly deprived the real owner of the land from its possession and appropriated its usufruets, the plaintiffs were entitled to a decree for mesne profits and there was no flaw in the judgments and decrees on this score.
24. Also, there was no defect in the initial filing of the civil suit by Mst. Imtiaz Begum through her attorney Rao Ashfaque Ahmad. She was not accustomed to public appearance in Courts. Much of the litigation on her behalf was conducted by Rao Ashfaque Ahmad as her attorney. There was clear proof of it on the present record. Lower appellate Court also referred to it in its judgment.
25. Further, enough evidence was given to prove execution of general power of attorney by her in favour of Rao Ashfaque Ahmad. General power of attorney was a registered document. In the first instance, its existence and correctness were neither disputed nor questioned in the written statements. Much later, an objection was raised on this score, on 15-11-1976. Certified copy of registered power of attorney was Exh. P-16 on the file. A registered power of attorney was admissible in evidence to prove the agency created by it and unless its genuineness was suspected, the agent could be allowed to appear and act on its basis. As said above, sufficient proof of its execution and registration was forthcoming on present record. In these circumstances, objection to its genuineness was not tenable.
26. In the result, this revision petition fails and must be dismissed with costs. Records be returned.