' The suit land was admittedly owned by respondent No,11, Malik Amir Muhammad Khan and Ghulam Ali, the predecessor-in-interest of respondents Nos.1 to 10 filed a suit against respondents Nos.11-12. It was stated in the plaint that respondent No,11 through her husband and general attorney respondent No,12 entered into an agreement for sale of suit land in their favour of a consideration of Rs,1,20,000. Out of this amount a sum of Rs,5,000 was paid as advance while balance amount was to be paid at the time of registration of sale-deed which was to be executed one month after conferment of proprietary rights on respondent No,11; that the conveyance deed has been executed and registered in favour of respondent No,11 by the Provincial Government on 20-8-1979. It was alleged that respondent No,11 is making attempt to transfer the suit land to some other person. With these averments a prayer was made for a decree for specific performance of the said agreement to sell, dated 17-1-1979. Later on it was disclosed that the land was sold by respondent No,11 to present appellants Nos.13 to 22 vide registered sale-deed, dated 20-8-1979. This sale was pre-empted by appellants Nos.1 to 12 and a decree was passed in their favour in the said suit. Consequently, all the appellants were impleaded as a party to the suit. Respondents Nos.11 and 12, in their written statements, denied execution of any agreement to sell in favour of the respondents Nos.1 to 10 and further took the plea that respondent No,12 was not an attorney of respondent No,11 on 17-1-1979 i,e, the date the alleged agreement was stated to be executed by respondent No,12 on behalf of respondent No,11. To similar effect was the defence of the two sets of appellants. Issues in the suit were framed. Evidence of the parties was recorded. The learned trial Court vide judgment and decree, dated 30-3-1989 dismissed the suit of respondents Nos.1 to 10. An appeal filed by the said respondents was heard by learned District Judge, Khanewal who allowed the same and decree the suit of respondents Nos.1 to 10.
2. Learned counsel for the appellants contends that the learned District Judge has grossly misread the evidence on record. According to the learned counsel there is no evidence on the record that respondent No,12 was the attorney of respondent No,11 on the day the alleged agreement was executed. It was also averred that what to speak of proving a valid agreement, even the original agreement was not produced and instead a photo copy was allowed to be produced without any proceedings or order under Article 76 of the Qanoon-e-Shahadat Order, 1984. Also contends that a bare look on the signatures appearing on the alleged agreement and other undisputed signatures of respondent No,12 would show that the original of the agreement was an out and out forgery.
Learned counsel also argues that the alleged special power of attorney was produced out of the blue without any nexus with the pleadings and without any proof whatsoever but the learned District Judge placed implicit reliance on the same. Learned counsel for respondents Nos.1 to 10, on the other hand has tried to support the impugned judgment and decree of the learned District Judge.
3. I have gone through the records of the learned two Courts below, with the assistance of learned counsel for the parties.
4. 1 find that the agreement, dated 17-1-1979, (photo copy) is Exh.P.1 on the record. It states that Raja Qamar-uz-Zaman, respondent No,12, is executing the said agreement acting as general attorney of respondent No,11. No particulars of the said general power of attorney are mentioned in Exh.P.1. So much so, even a date is not available. To prove this document respondents Nos.1 to 10 produced Abdul Ghaffar, Stamp Vendor P.W.1. His testimony is of no help at all to the said respondents as he stated that he cannot say on an examination of Exh.P.1 as to whether he sold the stamp for the same or not. P.W.2 is Malik Aurangzeb Khan, Advocate, who is a marginal witness of Exh.P.1. This witness has categorically stated that Raja Qamar-uz-Zaman was general attorney of respondent No,11 and he executed the agreement in that capacity. He claims that Raja Qamar-uz-Zaman was known to him but states that he does not know his address, does not know even his father's name and neither does he know particulars of his brothers and sisters. He admits that he did not see any general power of attorney at the time of alleged execution of Exh.P.1. The third witness is Amir Anwar P.W.3, he is the second marginal witness of Exh.P.1. He also categorically stated that Raja Qamar- uzZaman was the attorney of his wife. In response to the cross-examination conducted on behalf of respondents Nos.11 and 12 he admitted without any demur that on 17-1-1979 Raja Qamar-uz- Zaman had no power of attorney in his favour from respondent No,11. Next in line is Shaukat Ali scribe P.W.S. This witness also states that Raja Qamar-uz-Zaman was the general attorney of respondent No,11. In his cross-examination he states that he did not know Raja Qamar-uz-Zaman personally; that Qamar-uz-Zaman despite his asking did neither produce a power of attorney nor his identity card. Malik Amir Muhammad one of the deceased plaintiffs appeared as P.W.8 and he also stated that Qamar-uz-Zaman was the general attorney of respondent No,11. In his cross- examination he changed his stance and stated that Qamar-uz-Zaman was a special attorney and produced from his pocket a Photostat copy which was marked as "A". To rebut, Ahmed Din special attorney of respondent No,11 entered the witness-box and denied on oath that Qamar-uz-Zaman was not an attorney of respondent No,11 on 17-1-1979 and that it was on 1-8-1979 that for the first time respondent No,11 appointed respondent No,12 as her attorney; that no agreement was entered into by respondent No,11 with respondents Nos. I to 11 and that respondent No,12 had no authority to entered into such an agreement. This witness was not confronted with the alleged special power of attorney mark "A". It will be interesting to note that it was suggested to this witness that respondent No,1 herself entered into the agreement and executed the same which of course was denied by that said witness.
5. No attempt was made to prove the document mark "A". The cumulative effect of the evidence, on its proper reading is that it was the case of respondents Nos.1 to 10 as also of their witnesses that respondent No,12 was a general attorney of respondent No,11 but they failed to either produce the said power of attorney or to prove the same. The photo copy Mark "A" would be of no help to the respondents Nos.1 to 10 as the same had. Not been proved in any manner prescribed by law and the document by itself is inadmissible in evidence and that is why it was not exhibited.
6. On a reading of the said evidence the only possible conclusion is that apart from the fact that there is no proof on record that respondent No,12 was a validly appointed attorney of respondent No,11 and was duly authorised to enter into an agreement to sell the suit land in favor of respondents Nos.1 to 10, even the execution of the so-called agreement Exh.P.1 by him has not been proved. I have also, with the assistance of learned counsel, made a comparison of the signatures of respondent No,12 on Exh.P.1 with document Exh.D.1 as also Exh.P.6, Exh.P.11, Exh.P.12. Exh.P.13 and Exh.P.14 (the plaintiffs exhibits have been also relied upon by the learned District Judge) and I find that even to a naked eye it appears that the Exh.P.1 does not bear the signatures of the person whose signatures appear on the said documents referred to above. The word " {{URDU TEXT}} " is written as " {{URDU TEXT}} " in Exh.P.1 whereas in all the said documents referred to by me above the said word is written as {{URDU TEXT}} "Exh.P.1 is nothing but a crude attempt at forgery and to my mind this explains the reasons for withholding the original document.
7. I am also not in agreement with learned District Judge that respondent No,11 could be presumed to be the attorney of respondent No, 11 as he had been conducting some proceedings on her behalf so as to be authorized to enter into the agreement in question with respondents Nos.l to 10.
8. Ch. Imdad Ali Khan, Advocate has cited the case of Muhammad Ibrahim through Legal Heirs and others v. Mst. Basri through Legal Heirs and others 1998 SCM R 96 to support the plea that failure to produce the original power of attorney on the basis whereof the agreement was allegedly executed would lead to drawing of an adverse presumption against respondents Nos.1 to 10. Also refers to the case of Zardad Khan v. Mst. Safia Begum 1998 CLC 2006, for the proposition that sale of wife's property by husband without lawful authority to sell the same was not valid. To similar effect is the case of Syed Sajid Ali Asif through Legal Heirs v. Mumtaz Ahmed and 3 others, PLD 1993 Kar.
520. In order to support the exercise undertaken by the learned trial Court in comparing the disputed signatures of Qamar-uz-Zaman on Exh.P.1 with the undisputed signatures learned counsel cites the case of Syed Gul Muhammad Shah v. Choudhry Naseer and 4 others 1998 M LD 1908, which judgment of the High Court of Sindh at Karachi is supported by the judgment of the Supreme Court in the case of Sirbaland v. Allah Loke and others 1996 SCM R 575.
9. In view of the above discussion I find that the impugned judgment of the learned District Judge is contrary to law and cannot be sustained. Accordingly this R.S.A. Is allowed, the judgment and decree, dated 14-5-1990 of learned District Judge, Khanewal is set aside and that dated 30-3-1989 of the learned trial Court is restored with costs throughout.