' This judgment will dispose of Civil Revision No, 490 of 1984 entitled Sadiq Ali Khan, etc. v. Abdul Rehman, etc. And FAO. No, 29 of 1984, entitled Abdul. Rehman, etc. v. Sultan Ahmad Khan, etc. Being directed against the same judgment.
2. In all the dispute in this case relates to about 90 Kanals of land.
' About 30 Kanals of land was owned by Din Muhammad one of the plaintiff/respondent No, 2 and the rest by the other plaintiffs/respondents. Sultan Ahmad Khan, respondent No, 5, herein (ex parte) was the general attorney of the other respondents by virtue of documents Exh. D-1 executed by respondents Nos. 1, 3 and 4 on 3-10-1972 and Exh. D-4 executed by respondent No, 2 (Din Muhammad) and registered on 5-1-1972. Exercising his authority derived from Exh. D-1 and Exh. D-4 respondent No, 5 sold the suit land through mutation No, 1303, attested on 28-12-1974 for a sum of Rs,80,000 in favour of the present petitioners.
3. On 2-10-1975, respondents Nos. 1 to 4 filed a suit for declaration that they were the owners of the suit land on account of the fact that Sultan Ahmad Khan was never conferred the authority to sell the suit land and, therefore, the mutation of sale No, 1303 dated 28-12-1974 was illegal and without consequence. This suit was resisted by the present petitioners. It seems that Sultan Ahmad Khan, the defendant in the suit was not interested and was proceeded ex parte. The pleadings of the parties gave rise to numbers of issues. After recording the evidence the trial Court on 4-4-1978, dismissed the suit holding that the suit was maintainable, that there was no collusion in the transactions and that the power of attorney No, 397 was validly executed and consequently Mutation No, 1303, was legal. Aggrieved, the plaintiff preferred an appeal before the District Court which came to be heard and disposed of by an Additional District Judge. Vide judgment dated 19- 3-1984, the learned lower Appellate Court by reversing the findings under Issues Nos. 3, 5, 6, and 6- A, remanded the case for retrial of issue No, 1 (maintainability). However, from the tenor of judgment it does not seem as to what the trial Court was to do after giving afresh finding under Issue No,
1. In other words it was not clear whether the records were to be sent back to the learned lower Court or the trial Court was to give a fresh decree only on the basis of its findings under Issue No, 1.
4. Both the parties felt aggrieved against this judgment of the lower Appellate Court. Civil Revision No, 490/84 is directed against this judgment and has been filed by the defendants/vendees. FA.O.
No, 29/84 has been filed by the plaintiffs to call in question the same judgment. This judgment will dispose of both these cases.
5. With the assistance of the learned counsel for the parties the two judgments at variance have been examined side by side and the record has also been minutely perused. It would facilitate the decision if the case of Din Muhammad, is separated from the other plaintiffs as authority to sell about 30 Kanals of land belonging to this plaintiff is derived under the power of attorney which is marked as Exh. D-4. The learned counsel for the, petitioners in civil revision has urged that learned lower Appellate Court in reversing the findings of the trial Court has not at all considered the reasons advanced by the trial Court in favour of its findings. It is his case that Exh. D-4 was never challenged in the suit nor Din Muhammad the executant of Exh. D-4 ever appeared as a witness in the Court to assert that he had never constituted Sultan Ahmad Khan as his attorney or if constituted the attorney was never given authority to sell the land. To this argument, learned counsel appearing for plaintiffs has only maintained that in the body of the power of attorney (Exh.
D-4) the sentence that attorney can also mortgage and sell the land has been added after the writing of the deed came to an end and it was through a note that the Mukhtar, was given the authority to sell. I have examined Exh. D-4. While it is correct that the power of sale, etc. Is given through a note at the end of the writting but it still is part of the document and this line appears before the closure of the document. It has not been denied by the learned counsel that neither Exh.
D-4 was specifically challenged in plaint nor Din Muhammad appeared as witness to assert in support of his case. In the circumstances I accept the submission of Mr. Ayyaz Muhammad Khan, Advocate, learned counsel for the petitioners that the learned lower Court has acted illegally in reversing the decree in favour of the petitioners in so far as the land belonging to Din Muhammad, respondent is concerned. It is hereby declared that the sale of land belonging to Din Muhammad, plaintiff/respondent No, 2 under the authority of document Exh. D-4 is valid.
6. As regards the execution of the document Exh. D-1 by which the other three plaintiffs/respondents constituted Sultan Ahmad Khan as their general attorney, the case made in the plaint was not that of out-right denial but the plaintiffs stated that they did appoint Sultan Ahmad Khan, as their attorney but only to look after the lands and the cases. They maintained that Sultan Ahmad Khan was never conferred the authority to alienate the land in any manner. This was the case which was supported by Abdul Rehman when he appeared on behalf of the plaintiffs as P.W.
3. He also asserted that by virtue of a separate documents Exh. P-1 and Exh. P-2 executed on the same date viz 3-10-1972, sultan Ahmad Khan and the plaintiffs agreed not to sell/alienate the land as attorney while the plaintiffs through Exh. P-1 agreed to transfer to him 3 acres of land in lieu of services of Sultan Ahmad Khan. The precise submission of the learned counsel for the plaintiffs is that in view of the execution of Exh. P-2, the authority conferred on Sultan Ahmad Khan through Exh.
D-1 to sell the land had been taken away. In other words if there was no agreement Exh. P-2, the act of Sultan Ahmad Khan under the power of attorney Exh. D-1 would be valid.
7. Learned counsel appearing for the petitioners has relied on AIR 1928 Calcutta 371 to contend that the private arrangement between a principal and his agent does not bind the third patties who acting on the authority conferred on the agent can lawfully enter into transaction and if in the process the agent violates any other arrangement/agreement with his principal, the third parties are not affected. In other words if Exh. D-1 gives the authority to sell, and Exh. P-2 takes away the authority or reduces the authority then in the absence of any assertion and evidence to the contrary that the transaction was entered into in spite of knowledge of Exh. P-2, the third parties/petitioners are protected. In the same line, the learned counsel has referred to AIR' 1932 Allahabad 540 which lays down that private instructions from principal to his agent are not binding on third parties.
8. There is great force in what has been submitted by Mr. Ayyaz Muhammad Khan, Advocate, learned counsel for the revision petitioners. On the face of it Exh. D-1 confers authority of sale, etc. On Sultan Ahmad Khan. If the intention of the plaintiffs was to curtail the authority of the agent, the proper course for them was to cancel the power of attorney Exh. D-1 and to execute a fresh one.
The mechanism adopted by them failed the purpose. It is admitted that Exh. P-2 was and is a separate document and there is no inference at all that this was to the notice of the present petitioners or to the public at large. In the circumstances, the Principle of law laid down in the two cited judgments is attracted. The findings of the learned lower Appellate Court on these issues (Issues Nos. 5, 6 and 6-A) are hereby reversed and that of the trial Court are restored.
9. Mr. Abdul Qadir Hashmi, Advocate whose industry and devotion to the case I hereby appreciate, has referred to sections 227, 228, 235 and 237 of the Contract Act to build an argument that as Sultan Ahmad Khan had exceeded his authority and what has been done by Sultan Ahmad Khan in excess of authority has not been ratified by the Principal, therefore, with reference to those sections the mutation in question is rendered without authority. The bare reading of the sections shows that they are not attracted. It is not a case where the question whether Sultan Ahmad had exceeded his authority or not. As discussed above, the case is whether Sultan Ahmad Khan had the authority and as I have stated, and held Exh. D-1 did give him the authority to sell. This authority could only have been taken away by cancelling Exh. D-1 and not through the mechanism of executing a private document Exh.P-2.
9. For all that has been stated above Civil Revision No, 490/84 is allowed, the judgment of lower Appellate Court is set aside and the decree of dismissal passed by the trial Court is hereby restored. Consequently, F.A.O. No, 29 of 1984 praying for decreeing the suit in favour of the plaintiffs is dismissed. The parties are left to bear their own costs.