' CH. MUHAMMAD ARIF, J.---Through this petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 leave to appeal is sought against the judgment dated 19-3-1998 passed by the Lahore High Court, Lahore allowing respondent-Muhammad Anwar Joya's Civil.
Revision No,525-D of 1992 by setting aside the judgment and leave dated 18-2-1992 of the 1st Appellate Court and restoring that of the trial Court/ Civil Judge Chunian dated 17-6-1990, whereby respondent Muhammad Anwar Joya's suit was decreed.
2. The facts leading to the instant petition are that petitioner No,2 Fazal Mahmood, a nephew of respondent-Muhammad Anwar Joya, was constituted a Special Attorney by the respondent vide registered Special Power of Attorney dated 24-4-1984 empowering him to alienate the plot measuring 10 Marlas situated at Chunian, District Kasur. One half share of the above plot constituted the suit plot. On 13-7-1986, the respondent executed a sale-deed in favour of petitioner No,2 with the recital that he had received the entire price of the suit plot from petitioner No,2.
However, this deed was not got registered by the respondent. Petitioner No,2, with the concurrence of the respondent, transferred the suit plot in favour of petitioner No,1 vide registered sale-deed dated 17-7.1986.
3. It was on 28-7-1986 that the respondent filed Suit No,306/1 seeking a declaration that the registered sale-deed dated 17-7-1986 was based on fraud collusion etc. And hence the same did not adversely affect his property interest therein. Further, the Special Power of Attorney dated 24-4- 1984 had been duly cancelled by him vide revocation deed dated 16-9-1985. The petitioners resisted the suit on legal as well as factual objections and the pleadings of the parties were reflected in as many as 5-issues, including the issue of relief, which read thus:-- "(1) Whether impugned sale-deed registered dated 17-7-1986 is based on fraud, illegal, against facts, as such is inoperative upon the rights of the plaintiff? O.P.P.?
(2), Whether the plaintiff is estopped by his word and act and conduct? O. P D
(3) Whether revocation dated 16-9-1985 of power of attorney dated 24-4-1984 was not legal, if so its effect?
(4) Whether the plaintiff has no cause of action? O.P.D.
(5) Relief."
4. After holding trial and after hearing the arguments for and on behalf of the parties; the trial Court decreed the suit vide its judgment and decree dated 17-6-1990.
5. It was in appeal by the petitioners against the judgment and on decree dated 17-6-1990 of the trial Court that the 1st Appellate Court set aside the same vide its judgment and decree dated 18- 2-1992 with the result that the declaratory suit, brought by the respondent, was dismissed.
6. The respondent successfully challenged the judgment and decree dated 18-2-1992 of the Appellate Court through Civil Revision No, 525 of 1992 and the learned Judge in Chambers allowed the same through the impugned judgment specifically noticing that: (1) Exh. P2, deed of cancellation of power of attorney, which was registered on 16-9-1985, cancellation of document is evident; (2) it was not even so much as alleged by petitioner No,2 that no. Notice of cancellation of power of attorney was issued or that he did not have the knowledge of the revocation of his authority; (3) Exh.P3, the sale-deed in favour of petitioner No,1, was registered on 17-7-1986 and the date on which it was attested or executed by petitioner No,2, is subsequent to the date of cancellation of the deed of attorney with the result that petitioner No,2 was not the attorney of the respondent on that date and could not act on as such; (4) the 1st Appellate Court was in error in being influenced by the plea that a day before the sale-deed the respondent had visited Chunian and had received the consideration in that this plea was inconsistent with the document as well as the pleadings in written statement "...Even otherwise, the plea raised, is not only ridiculous but does not appeal to the reason. If according to respondent No,1, (petitioner No,1) the petitioner (respondent) was present, then why the sale-deed was not got executed from him. Similarly, if any payment had been made to him, it should have been mentioned in the sale-deed or some receipt should have been obtained from the petitioner (respondent). Again, if the petitioner (respondent) was present and the sale-deed was already drafted, why his signatures were not obtained, as a attesting witness. Apart therefrom, the plea of direct payment, to (respondent), of his visit to Chunian and giving consent to the sale, having not been raised, in the written statement, no evidence could be led nor any such evidence, for which there was no basis in the pleading, could be considered. It is a settled rule, that the material facts, must be disclosed in the pleadings and no evidence can be led, on a plea which has not been raised in the written statement. Reference can be made to 1996 SCM R 336 and 1991 CLC 140. (5) The Appellate Court was also in error in ignoring that after the cancellation of deed of attorney petitioner No,2 got a sale-deed prepared for transfer of the property in his own favour in the name of the respondent, '...As he knew, that he did not hold any authority and if, the power of attorney had not been cancelled he could have directly executed document, without any interference of petitioner.' And (6) the question of bona fide of purchase does not appear to have been specifically raised by the petitioners in their written statement. "Even otherwise, no evidence worthy of consideration, has been led to prove bona fide purchase.
Respondent No,1 (petitioner No,1) who was an Advocate, should have been more vigilant and taken pain, to make inquiry, before entering into deal. The power of attorney was cancelled and deed of cancellation was registered with the Sub-Registrar, where the original document had been registered. A little bit of inquiry from the office of Sub-Registrar Kasur would have disclosed, that the authority of respondent No,2 had already been revoked and he was not competent to sell the property. It is not provided, if any, inquiry was made at site or as to the existence of the power of attorney. The respondents (the petitioners) could not make out any case of bona fide purchase.
'Apart therefrom this issue was never raised throughout the trial and, therefore, for the first time in appeal, the same could not be urged." (Underlining is for emphasis).
7. Mr. Sardar Shaukat Ali, learned Advocate Supreme Court appearing in support of this petition, was critical of the judgments of the trial Court and the High Court with the assertion that the lower Appellate Court was quite right in holding that the trial Court had erred in decreeing the suit of the respondent.
8. Contrarily, Mr. Rana Abdul Majeed, learned Advocate Supreme Court appearing on behalf of the respondent/ caveator, has supported the impugned judgment.
9. We are afraid the plea being raised by the learned counsel for the petitioners is of little help to his clients when the same is considered in juxtaposition with the findings recorded by the High Court in relation to the judgment dated 18-2-1992 of the lower Appellate Court. The learned Judge in Chambers considered the case in its minutest details, as reflected in para. 6 above, and by comparing the judgment of the Courts below with each other, observed that "The learned Civil Judge, look into consideration the circumstances noted supra and also the entire evidence on record and thereafter, held that the sale-deed in question was nullity in law and was without any lawful authority and that the same was inoperative against the rights of the petitioner. In appeal, the learned Additional District Judge, ignored the evidence on record, failed to consider the reasons recorded by the learned trial Court and by misreading the evidence, banking upon inadmissible and irrlevant consideration and on illegal assumption, reversed the findings. The findings recorded in appeal, suffer from preversity of reasoning and being contrary to law cannot sustain." (Underlining is for emphasis).
10. It is not the case the petitioners that the learned Judge in Chambers was not possessed of the requisite jurisdiction to reverse the judgment of the lower Appellate Court in the exercise of his jurisdiction under section 115, C.P.C. It was after specifically detailing and considering the deficiencies in the judgment of the 1st impugned judgment was rendered. In the absence of even so much as any jurisdictional error being alluded to by and on behalf of the petitioners defendants, we are not inclined to interfere in the impugned judgment.
11. Resultantly, this petition fails and is hereby dismissed.