MIR HAZAR KHAN KHOSO, J.---Petitioner Saifullah Khan and respondent Nisar Ahmad are real brothers. Petitioner Mst. Nizakat Afza is their sister. Petitioners Saifullah Khan and Mst. Nizakat Afza filed a suit against their brother respondent Nisar Ahmad and Javed Iqbal in the Court of Civil Judge, Mardan. In their plaint they averred that they were owners of House No. 162-C, situate in Bazar Bicket Gunj, Mardan, to the extent of 1-1/2 Marla whereas their brother Nisar Ahmad was owner to the extent of 1 Marla. They further averred that by Registered Deed No.562, dated 3-1-1982 their brother Nisar Ahmad sold the entire house to Javed Iqbal. They had not authorized him to sell the house. Thus the sale was without consideration, illegal, ineffective and without any legal effect.
The suit was contested. In all 12 issues were framed. The parties led evidence. However, the learned civil Judge, Mardan, dismissed the suit. The appeal filed by them before the District Judge, Mardan, was also dismissed on 20-12-1993. They approached the Peshawar High Court, Peshawar, in revision petition which to was dismissed on 11-4-1994. Hence they have come before this Court and sought for leave to appeal.
2. The learned counsel for the petitioners contended that:-
(i) The general powers of attorney executed by the to petitioners were fictitious and fraudulent, which as such have no legal value.. ,
(ii) The petitioners are the owners of their share. They have not handed over the possession of their share to respondent Javed Iqbal.
(i.e) The trial Court has erred in saying that it was for the plaintiffs to disprove the execution of the general powers of attorney.
(iv) The attesting witnesses to the powers of attorney have not been produced, hence the provisions of Article 79 of the Qanun-e-Shahadat have been violated.
(v) Application was moved before the trial Court for sending the powers of attorney to the expert for examining the signatures of the plaintiffs, but the application was turned down..
Reliance was placed on PLD 1970 SC 642 and 1993 SCM R 618.
3. We have gone through the written statement filed by respondent Nisar Ahmad. He has admitted that general powers of attorney were given to him by his brother and sister in the years 1977 and 1978. In his written statement he has claimed that he was sole owner of the property in dispute and he had not sold it to anybody else. In his statement recorded before the trial Court he has taken turn over and stated that the property in dispute is their joint property and the plaintiffs had not executed any power of attorney in his favour. It seems that his such statement did not find favour with the trial Court who observed that the plaintiffs in collusion with Nisar Ahmad had filed the suit.
To prove the sale respondent Javed lqbal produced D.W.3 Pervez Ahmad, who deposed that Nisar .
Ahmad had signed the sale-deed in his presence. The crucial point involved in this case is evidence produced by the petitioners before the trial Court. Neither Saifullah Khan nor Mst. Nizakat Afza appeared before the trial Court to rebut the averments of Javed Iqbal. They have produced their attorney Ikramullah son of Sharifullah. His evidence is based on hearsay. No material was brought on the record to establish that the general powers of attorney executed by petitioners Saifullah and Mst. Nizakat Afza were fictitious, particularly, when Nisar Ahmad had himself admitted in his written statement that they were executed in his favour. The first ground taken by the petitioners' counsel, therefore, fails.
4. In their evidence brought through mouth of their attorney Ikramullah the petitioners have not said anything regarding possession of the house. Such averments of the petitioners is contradictory to the written statement filed by respondent Nisar Ahmad. To rebut the sale and the powers of attorney the petitioners have examined Liaqat Ali, Moharrir, Registration Office, Mardan.
As matter of fact the document produced by Liaqat Ali supports the contention of Javed Iqbal that he had validly purchased the house on the basis of general powers of attorney. In such view of the fact the learned Lower Courts were justified in observing that the plaintiffs had failed to prove that the general powers of attorney were bogus or fraudulent or collusive. The above-said observation of the learned three Courts, therefore, does not suffer from any infirmity. The ground taken by the learned counsel for the petitioners in that respect also fails.
5. We have gone through the provisions of Article 79 of the Qanun-e---Shahadat. It says that if a document is required by law to be attested, it shall not be used as evidence until to attesting witnesses at least have been called for the purpose of proving its execution, that also if they are alive. In the instant case no, material was produced before us by the learned counsel for the petitioners showing that the powers of attorney compulsorily needed attestation of to witnesses at least. In such view of the fact the ground taken by the learned counsel for the petitioners also fails.
6. Lastly, regarding the examination of the powers of attorney, it may be observed that they were in the possession of Nisar Ahmad. He did not produce it before the Court. It was not possible for the respondent, Javed lqbal, to have produced it. Thus, objection does not carry any weight. The authorities relied upon by the learned counsel for the petitioners also do not come to his rescue.
There are concurrent findings of the fact arrived at by the Civil Judge, District Judge, Mardan and the High Court. We do not see any defect therewith. There is no merit in the petition which as such is dismissed. Leave to appeal is refused accordingly.