SYED JAMSHED ALI, J.- This order will dispose of Civil Revision No. 1814 of 1982, also. As the two are directed against the judgment and decree dated 20.11.1982 of the learned Addl. District Judge, Toba Tek Singh.
2. On 5.12.1972, Noor Ahmad deceased respondent No. 1 and Maqbool Ahmad respondent No, 2 brought a suit challenging the registered sale-deed 25.5.1971 (Ex D-2) in favour of Ghulam Mustafa deceased appellant No. 1, now represented by his legal heirs by Abdul Khaliq appellant No. 2 as attorney of Muhammad Boota, the father of the plaintiff-respondents. This alienation was challenged on the ground of customary restraints and also that Muhammad Boota was an old and infirm person who under undue influence of Abdul Kaliq, a grandson of Muhammad Boota. The power of attorney dated 17.2.1971 (Ex D.I) on the basis of which the sale was made was alleged to be fictitious, Sham and outcome of fraud, undue influence and coercion.
3. The suit was contested on which necessary issues were framed and it was tried. On the basis of the finding of the learned trial Court that the alienation was without consideration and legal necessity, Muhammad Boota was governed by custom the land was ancestoral 'qua the plaintiff, the sale was out-come of coercion and undue influence (issue No. 3), the suit of the plaintiff- respondent, was decreed on .10.3.1979. The petitioners took an appeal before the learned District Court. The above findings of the learned Trial Court were up-held except that the learned first appellate Court held the sale was for consideration but without necessity and that the power of attorney had duly been proved. Accordingly, the decree was modified. The finding of the learned Trial Court on issue No. 3 was reversed and it was directed that the suit of the respondents shall stand decreed subject to payment of Rs. 44,000/- and costs of the suit and appeal to Ghulam Mustafa appellant. This was vide judgment and decree dated 20.11.1982.
4. Both the parties have filed separate revision petitions. C.R. No. 533 of 1983 is by the vendee and Abdul Khaliq while C.R. No. 1814 of 1982, is by the plaintiffs.
5. The learned counsellor the parties have been heard and the record examined with their assistance. The learned counsel for the petitioners (vendee) has contended that the revision petition merits to be allowed in view of Section 2-A added to the West Pakistan Muslim Personal Law Shariat (Application) Act (No. V of 1962) by virtue of the Punjab Muslim Personal Law Shariat (Application (Amendment) Ordinance (No. XIII of 1983). According to him, the judgment and decree of the learned first appellate Court stand nullified in view of the said provision as the same are based on customary restraints which had been removed by section 2-A aforesaid.
6. The learned counsel for the respondents-plaintiffs, in all fairness, did not controvert this legal position but contended that the alienation was also challenged on the ground that the power of attorney (Ex D.I) on the basis of which sale was made was out-come of fraud, coercion and undue influence and the sale base thereon was nullity.
7. On the other hand, the learned counsel for the vendee has contended that the allegations of fraud and undue influence were not supported by any evidence.
8. I have considered submissions of the learned counsel for the parties. One of the issues framed in the case was:- "3. Whether the alienation of suit property was the effect of undue influence and coercion exercised over Muhammad Boota?" The learned Trial Court answered the issue in favour of the plaintiff by holding "I fail to understand as to whom I should believe i.e. The Sub-Registrar D.W. 1 who states the man about 100 years of age and subject to confirmation of is health by the medical authorities or to those as Muhammad Ashraf D.W. 2 who describes him a bit deaf but the lambardar of the village Abdul Aziz D.W. 4 claims that he was absolutely hale and hearty. The entire evidence in this respect is full of inconsistencies. They are incontrast with each other without any corroboration and as such the benefit of doubt has to go to the plaintiffs."
9. The learned first appellate Court, however, found that the power of attorney was duly proved and accordingly, reversed the finding of the learned trial Court on issue No. 3 on the basis of his findings on issue No. 4-A (and not issue No. 4 as recorded in the said judgment).
10. The only controversy that survives is issue No. 3. I may add that this issue was not happily worded. The alienation was disputed solely on the basis that the power of attorney was the result of fraud, undue influence and coercion. The factum of alienation was not in dispute. If, therefore, the power of attorney is found to have been executed by Muhammad Boota in favour of Abdul Khaliq, his grandson, then the plaintiff will not have any case.
11. According to the learned first Appellate Court the power of attorney was proved by DW-1, the Sub-Registrar, DW-2 the petition writer, DW-3 (a marginal witness), DW-4 the Lumbardar, (another marginal witness who also identified Muhammad Boota before the Sub-Registrar) and Abdul Khaliq the attorney who appeared as DW-6.
12. The learned counsel for the plaintiffs has pressed before me that the power of .Attorney was the result of fraud and coercion. Plea of undue influence in the matter of execution of the power of attorney was not pressed. Presumeably, he was conscious that fraud and indue influence are mutually destructive.
13. Therefore, I have been left to examine whether the power of attorney was the out-come of fraud or coercion. The learned counsel, has tried to persuade me that the facts and the circumstances identified below should be held as sufficient to undo direct evidence of execution of the power of attorney.
(a) That Muhammad Boota was an extremely old man, hard of hearing.
(b) The property was situated in Chak No. 309/J.B. While the marginal witnesses belonged to Chak No. 388/J.B.
(c) He relies on Ex P-6, statement of Muhammad Boota recorded on 15.7.1971, in the proceedings of an application made by Noor Muhammad, his son, under section I0O of the Cr.P.C.
(d) Certificate dated 2.2.1971 appended to the power of attorney issued by the Medical Superintendent Civil Hospital Jhang (not exhibited) to the effect that Muhammad Boota was mentaly fit to make a statement was also pressed in support of the plea.
(e) According to PW-1 to PW-4, Abdul Khaliq obtained power of attorney on the pretext that he wanted to give security for employment.
14. The circumstances pointed out by the learned counsel for the plaintiffs can hardly undo direct evidence of execution of Ex D.I the power of attorney. Execution of a document is a question of fact and stands concluded by finding of fact of the learned first Appellate Court and is based on evidence. Even if another view of evidence could be taken, it cannot be upset in exercise of revisional jurisdiction.
15. 1 may add that it was a case of no evidence that Ex D.I was the outcome of coercion. Particulars of fraud had not been given in the plaint although expressly required by rule 4 of Order 6 of the Code of Civil Procedure and, therefore, the testimony of PW-1 to PW-4 did not merit any consideration. The statements made by them are inconsistant. Fraud was not even in issue as per the contents of issue No. 3.
16. The plea of coercion stands falsified by the statements of PW-1 to PW- 4 who stated that Muhammad Boota was duped into execution of the power of attorney. I may add that the please of fraud and coercion are also mutually inconsistent, it may also be noted that in Revision Petition No. 1814 of 1982, the plaintiffs have not questioned the findings of the learned first Appellate Court that the power of attorney was duly proved.
17. The decree of the learned first Appellate Court on the basis of customary restraints is not sustainable. The plaintiff have not been able to prove that the power of attorney Ex D.I was the out- come of fraud or coercion accordingly, this revision petition is allowed, the impugned judgment and decree dated 20.11.1982 of the learned Addl. District Judge Toba Tek Singh are set-aside and the suit brought by the plaintiffs-respondents is dismissed. Civil Revision No. 1814/1982 filed by Noor Ahmad etc the plaintiff in the case is dismissed. Parties are left to bear their on costs.